United States District Court, E.D. Wisconsin
JOSEPH A. ANDERER, MILWAUKEE POLICE ASSOCIATION, and MICHAEL V. CRIVELLO, Plaintiffs,
CITY OF MILWAUKEE, Defendant.
Stadtmueller U.S. District Judge
September 30, 2016, defendant City of Milwaukee (the
“defendant” or “City”) filed a motion
for judgment on the pleadings, seeking dismissal of the
entirety of the Complaint. (Docket #11). On October 20, 2016,
plaintiffs Joseph A. Anderer, Milwaukee Police Association,
and Michael V. Crivello (collectively the
“plaintiffs” or “Officers”) responded
to the motion. (Docket #16). On November 2, 2016, the City
submitted a reply in support of its motion. (Docket #17). The
motion is now fully briefed and, for the reasons explained
below, it will be granted.
STANDARD OF REVIEW
Rule of Civil Procedure (“FRCP”) 12(c) permits a
party to seek judgment once each side has filed its
pleadings. Fed.R.Civ.P. 12(c). The Court reviews such motions
by employing the same standard that applies when reviewing a
motion to dismiss for failure to state a claim under [FRCP]
12(b)(6)…. Thus, we view the facts in the complaint in
the light most favorable to the nonmoving party and will
grant the motion only if it appears beyond doubt that the
plaintiff cannot prove any facts that would support his claim
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citations and quotations omitted). The
Court must “draw all reasonable inferences and facts in
favor of the nonmovant, but need not accept as true any legal
assertions.” Wagner v. Teva Pharmaceuticals USA,
Inc., No. 15-2294, 2016 WL 6081381 *1 (7th Cir. Oct. 18,
2016). The City concedes as much; it admits all of the
material factual allegations stated in the complaint,
disputing only the legal conclusions drawn therefrom.
See (Docket #1-1 at 4-11; Docket #2; Docket #12 at
Court may take judicial notice of documents in the public
record without converting a FRCP 12(c) motion to one for
summary judgment under FRCP 56 (which would necessitate
discovery). Scherr v. Marriott Intern., Inc., 703
F.3d 1069, 1073 (7th Cir. 2013). The City requests that the
Court take judicial notice of the documents appended to its
motion, which include a Wisconsin state statute and various
official documents of the City of Milwaukee and its
subdivisions. See (Docket #12-1). The Officers do
not oppose this request. The documents the City presents are
the proper subjects of judicial notice and the Court will,
therefore, take notice of them. See Fed. R. Evid.
201(b) and (c)(2); U.S. v. Hemphill, 447 F.
App'x 733, 736 (7th Cir. 2011).
following facts are gleaned from viewing the factual
allegations of the complaint in a light most favorable to the
plaintiffs. The plaintiffs are two individual police officers
and the union that represents Milwaukee Police Department
(“MPD”) officers, the Milwaukee Police
Association (“MPA”). (Docket #1-1 at ¶¶
3-5). Prior to 2013, a City charter ordinance required all
City employees to reside within the
municipality. Id. at ¶ 8. In 2013,
Wisconsin statute Section 66.0502 was enacted, eliminating
all such “residency” requirements in cities
throughout the state. Id. at ¶ 9. The statute
permitted an exception for law enforcement personnel such
that a municipality could require those employees to reside
within fifteen miles of the city limits (the
“Zone”). Id. at ¶ 10. The statute
became effective on July 2, 2013. Id. at ¶ 11.
same day, instead of explicitly adopting a Zone requirement
for its law enforcement employees, the City promulgated a
resolution “directing all City officials to continue
enforcement of [the residency ordinance], ” and this
resolution was signed into law by the mayor. Id. at
¶¶ 12-14. The MPA sued the City to challenge
continued enforcement of the residency requirement.
Id. at ¶ 15. On June 23, 2016, the Wisconsin
Supreme Court ruled in the MPA's favor. Id. at
¶ 16; see Black v. City of Milwaukee, 882
N.W.2d 333 (Wis. 2016). The City made no attempt to impose a
Zone requirement throughout the pendency of that case.
Id. at ¶ 17.
the time between the passage of Section 66.0502 and the
Black ruling, some law enforcement officers moved
outside the City and the area which would be included in the
City's Zone. Id. at ¶¶ 18, 21.
Further, the City hired a number of new officers who lived
outside the Zone. Id. at ¶¶ 19-20. On July
26, 2016, the City finally imposed a Zone requirement on all
law enforcement personnel, including those who had moved out
of the Zone in the interim. Id. at ¶¶
22-23. As with the previous residency ordinance, living
outside the Zone meant the employee would be terminated.
Id. at ¶ 24. The new ordinance softened the
rule in three ways: 1) an employee could ask for up to six
months' time to move into the Zone, 2) an employee could
be granted a “temporary exception” by the
relevant City authorities based on financial hardship, and 3)
an employee could be granted a complete exception if they
were married to a person who was also subject to a residency
requirement for a different municipality. See
(Docket #12-1 at 9-10). The City's Zone requirement took
effect on October 11, 2016. Id. at 10.
Officers allege two causes of action. First, they assert a
“Violation of Substantive Due Process (Property
Right)[.]” (Docket #1-1 at 9). The Officers claim that
Section 66.0502 and Black granted them a right to be
free of the City's residency requirement. Id. at
¶¶ 26-27. They do not contest the City's
authority to impose a Zone requirement, but allege that it
cannot do so retroactively. Id. at ¶¶
28-29. The Officers argue that this would interfere with
rights of those law enforcement employees who left the Zone
before the Zone requirement was created. Id. at
¶ 30. They claim that this denies those employees
substantive due process in violation of the Fifth and
Fourteenth Amendments. Id. The second cause of
action is also for substantive due process, but brought
pursuant to the Wisconsin Constitution. Id. at 10.
The Officers assert the same violation as detailed in the
first cause of action. Id. at ¶¶ 31-32.
City presents two arguments in favor of dismissal. First, it
asserts that the Zone requirement does not apply
retroactively, and thus does not affect the Officers'
claimed substantive rights. Second, the City argues that even
if the Zone requirement is viewed as having retroactive
effect, it does not violate a recognizable substantive due
process right. While these two considerations are closely
linked, as discussed below, the first is dispositive. The
Court addresses each cause of action separately.
Federal Constitutional Claim
City contends that the Zone requirement does not operate
retroactively, but instead only
prospectively. (Docket #12 at 7-10). It relies
almost entirely on the Seventh Circuit's decision in
Andre v. Board of Trustees of the Village of
Maywood, 561 F.2d 48 (7th Cir. 1977). In Andre,
the court upheld an ordinance similar to the one at issue in
the instant case. Id. at 51. There, the Village of
Maywood (“Maywood”) enacted an ordinance
requiring municipal employees to establish residence within
the municipality within a few years. Id. at 49. The
plaintiffs, law enforcement and emergency services personnel,
challenged the ordinance on the grounds that, inter
alia, it operated retroactively to impair their
pre-existing, vested right to live outside Maywood.
Id. The plaintiffs found support for this alleged
right in a previously enacted hiring preference ordinance,
which permitted Maywood employees to live outside the city
boundaries but gave preference in hiring to those within
them. Id. at 50. The court explained that
[i]t is plaintiffs' principal argument that the 1971
adoption of [the hiring preference ordinance], together with
the past actions of Maywood in allowing its employees to
reside elsewhere, created in plaintiffs a vested contractual
right to live outside Maywood. The adoption of the 1975
residency requirement ordinance acted to repeal [the hiring
preference ordinance's] “express approval and
authorization” to reside outside Maywood and, their
argument concludes, resulted in an unconstitutional exercise
of the municipality's police power.
court disagreed, finding that the hiring preference ordinance
gave no indication of “the creation of an absolute
unconditional right in plaintiffs to live outside
Maywood.” Id. at 51. Further, “[e]ven if
[it] did create some interest in the plaintiffs, that
interest would have been contingent upon the anticipated
continuance of the ordinance. Such an interest does not
amount to a vested right.” Id. The court also
determined that the residency ordinance was not retroactive.
Id. It simply required current Maywood employees to
change their residence by a certain deadline. Id. No
employee could be charged with violating the ordinance
because they lived outside Maywood in the past. Id.
“As such, ” the ...