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Wisconsin High Court Hears Residency Case

MADISON (CN) - The Wisconsin Supreme Court heard arguments Wednesday over whether certain city employees should be forced to live within Milwaukee city limits.

Between a louder-than-normal crowd of capitol singers and infighting in the state's high court, the latest stage of Milwaukee's residency battle suffered its share of distractions.

The city and its police union, supported by the firefighters' local and the State of Wisconsin, debated Wednesday whether the Republican-supported law forbidding cities to require employees to live within their bounds concerned statewide matter, and whether it unfairly singled out the mostly-Democratic Milwaukee.

"The city of Milwaukee enacted its residency Charter Ordinance more than 75 years ago, predicated on the home rule amendment, which differentiates it from Wisconsin municipalities that derive authority for such ordinances from statutory home rule," according to a case summary sent out by the Wisconsin Supreme Court's public information office. "The ordinance requires all employees of the city of Milwaukee to establish and maintain their actual bona fide residences within the boundaries of the city or be terminated."

The state law abolishing this ordinance allowed cities to require that emergency and public safety personnel, such as firefighters and police officers, live within 15 miles of their city of employment.

The lawsuit came about after Milwaukee officials directed city employees to disregard the new state law, a position the city eventually backed off after the suit was commenced.

Milwaukee County Circuit Court Judge Paul Van Grunsven sided with the union, ruling on Jan. 27, 2014, that the state law applied uniformly to all municipalities and was thus valid.

Further, he ruled, it implicated a statewide concern of protecting employees from "unfairly restrictive employment conditions" and regulating public safety services.

But a three-member appeals panel disagreed last summer, unanimously overturning Van Grunsven's decision.

Wisconsin Court of Appeals Judge Patricia Curley wrote for the majority that the law uniformly applying to all cities does not mean that it uniformly affects them, which is a requirement before the state can supersede local rule.

"There is no dispute that, while the statute does not overtly single out any particular municipality, it will have an outsize impact on the City of Milwaukee," Curley wrote.

According to a Legislative Fiscal Bureau analysis that focused almost exclusively on Milwaukee, the state law would likely result in an exodus of city employees, who tend to make more and live in homes with higher property values than other residents, the appeals court opinion states.

Another analysis estimated this exodus would cause "a reduction in the tax base of $622 million in residential land values and $27 million in retail property values," according to the ruling.

Based on these figures, the argument that the law was intended to affect all municipalities uniformly does not add up, Curley wrote.

"Indeed, the notion that a statute purporting to gut the tax bases and compromise neighborhood integrity of all municipalities would pass both houses of the legislature defies logic," the July 2015 opinion states.

The appeals court did not invalidate the state law, ruling instead that it "did not apply to Milwaukee" due to the city's charter ordinance, according to the state supreme court's case summary.

On Wednesday, Jonathan Cermele of Milwaukee-based Cermele & Matthews, arguing first on behalf of the union, claimed the appeals court decision undid 80-year-old Wisconsin Supreme Court precedent by focusing on the law's impact on a single city.

"We know that it's inappropriate to look at the impact of a law on a municipality," Cermele told the state's high court, referencing a 1912 opinion that stated it was "literally impossible" for a state law to affect all municipalities equally.

Shortly after, when former Chief Justice Shirley Abrahamson asked about the union's challenge to the city resolution directing employees to disregard the new state law, her squabble with Justice Michael Gableman seemed to officially begin.

It continued throughout the hearing, with Gableman also taking digs at Justice Ann Bradley and Chief Justice Patience Roggensack as he clearly supported the legislature's right to pass and enforce the law.

Justice Annette Ziegler was one of the first to bring up a recurring issue: the difference between the words "impact," "apply," "affect" and "effect," and which the courts should consider when evaluating whether a state law was fair.

Bradley added the example that, "I can have a rule that applies to all of my children, but it affects each of them differently."

While the petitioners' testimony was split between three attorneys, Assistant City Attorney Miriam Horwitz took the floor for Milwaukee for more than a half hour, arguing that the home rule must be respected for "intimate and direct" issues such as employee residency.

When an issue does come up, she said, it should be the courts that decide whether a law is fair and of statewide concern - and this one is not.

"It cannot, by its very nature, affect every municipality uniformly," Horwitz said.

Gableman's final comment on Cermele's rebuttal was that it was "very clear" that the legislature had taken Milwaukee's concerns into account when drafting the law.

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