                                                                 2016 WI 47

                  SUPREME COURT               OF     WISCONSIN
CASE NO.:                  2014AP400
COMPLETE TITLE:            James A. Black, Glen J. Podlesnik and Steven J.
                           Van Erden,
                                      Plaintiffs-Respondents-Petitioners,
                           Milwaukee Professional Fire Fighters
                           Association Local 215,
                                      Intervenor-Plaintiff-Respondent-
                           Petitioner,
                           Milwaukee Police Association and Michael V.
                           Crivello,
                                      Plaintiffs-Respondents-Cross-
                           Appellants-Petitioners,
                                v.
                           City of Milwaukee,
                                      Defendant-Appellant-Cross-Respondent.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                            (Reported at 364 Wis. 2d 626, 869 N.W.2d 522)
                                      (Ct. App. 2015 – Published)
                                         PDC No: 2015 WI App 60

OPINION FILED:             June 23, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:             February 24, 2016

SOURCE OF APPEAL:
   COURT:                  Circuit
   COUNTY:                 Milwaukee
   JUDGE:                  Paul R. Van Grunsven

JUSTICES:
   CONCURRED:              BRADLEY, R. G., J. concurs (Opinion filed).
   CONCURRED/DISSENTED:    BRADLEY, A. W., J. and ABRAHAMSON, J. concur
                           and dissent (Opinion filed).
  DISSENTED:
  NOT PARTICIPATING:

ATTORNEYS:
       For        the     plaintiffs-respondents-petitioners,        intervenor-
plaintiff-respondent-petitioner,               and     plaintiffs-respondents-
cross-appellants-petitioners,              there   were   briefs    by   Jonathan
Cermele,      Brendan       P.   Matthews,   and   Cermele   &   Matthews,   S.C.,
Milwaukee, and John F. Fuchs, Rebecca Boyle, and Fuchs & Boyle
S.C., Milwaukee.     Oral argument by Jonathan Cermele and John F.
Fuchs.


    For the defendant-appellant-cross-respondent, there was a
brief by Grant F. Langley, Milwaukee City Attorney and Miriam R.
Horwitz, Milwaukee Deputy City Attorney, and oral argument by
Miriam R. Horwitz.


    There was an amicus curiae brief by Richard M. Esenberg,
Thomas C. Kamenick, Kenneth Chesebro, Cambridge, MA (pro hac
vice), and Wisconsin Institute for Law & Liberty, Milwaukee.


    There was an amicus curiae brief by Luke N. Berg, deputy
solicitor general with whom on the brief was Brad D. Schimel,
attorney general and    Misha Tseytlin, solicitor general.


    There was an amicus curiae brief by Claire Silverman and
League of Wisconsin Municipalities.




                                  2
                                                                  2016 WI 47
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2014AP400
(L.C. No.   2013CV5977)

STATE OF WISCONSIN                      :            IN SUPREME COURT

James A. Black, Glen J. Podlesnik and Steven J.
Van Erden,

            Plaintiffs-Respondents-Petitioners,

Milwaukee Professional Fire Fighters
Association Local 215,

            Intervenor-Plaintiff-Respondent-
            Petitioner,
                                                               FILED
Milwaukee Police Association and Michael V.               JUN 23, 2016
Crivello,
                                                             Diane M. Fremgen
                                                          Clerk of Supreme Court
            Plaintiffs-Respondents-Cross-
            Appellants-Petitioners,

      v.

City of Milwaukee,

            Defendant-Appellant-Cross-Respondent.




      REVIEW of a decision of the Court of Appeals.             Affirmed in

part and reversed in part.
                                                                                     No.    2014AP400



      ¶1       MICHAEL       J.    GABLEMAN,         J.      This       is    a    review      of    a

published decision of the court of appeals, which affirmed in

part and reversed in part the Milwaukee County Circuit Court's1

grant     of    summary      judgment      in     favor         of    the     Milwaukee      Police

Association            ("Police          Association")                and      the         Milwaukee

Professional Fire Fighters Association Local 215 ("Fire Fighters

Association"). Black v. City of Milwaukee, 2015 WI App 60, 364

Wis. 2d 626, 869 N.W.2d 522.

      ¶2       This case requires us to interpret and apply Article

XI, § 3(1) of the Wisconsin Constitution, better known as the

home rule amendment. "Adopted in 1924, the home rule amendment

was     intended       to    provide       cities         and        villages      with     greater

autonomy        over     local         affairs,"       while          still       retaining        the

Legislature's          power      to    legislate.          Madison         Teachers,       Inc.    v.

Walker,        2014     WI     99,      ¶89,     358        Wis. 2d 1,         851     N.W.2d 337

(footnotes omitted). Accordingly, the home rule amendment gives

cities     and    villages         the    ability         "to        determine       their     local

affairs and government, subject only to this constitution and to
such enactments of the legislature of statewide concern as with

uniformity       shall       affect      every       city    or      every     village."2       Wis.


      1
          The Honorable Paul R. Van Grunsven presided.
      2
       In Madison Teachers, Inc. v. Walker, 2014 WI 99, 358
Wis. 2d 1, 851 N.W.2d 337, we noted, "The home rule amendment
does not apply to counties in Wisconsin. However, counties have
home rule protection pursuant to statute, though it is more
limited than the protection afforded by constitutional municipal
home rule." 358 Wis. 2d 1, ¶89 n.26.


                                                 2
                                                                                 No.     2014AP400



Const. art. XI, § 3(1). In other words, a city or village may,

under its home rule authority, create a law that deals with its

local affairs, but the Legislature has the power to statutorily

override      the     city's      or     village's        law     if     the    state       statute

touches      upon     a    matter      of     statewide        concern    or    if     the    state

statute uniformly affects every city or village. See Madison

Teachers, 358 Wis. 2d 1, ¶101.

       ¶3     In the present case, we interpret and apply the home

rule amendment to determine whether a section in the City of

Milwaukee's         ("the    City"       or    "Milwaukee")        charter       can     trump    a

statute enacted by the Legislature. Since 1938, Milwaukee has

required       its        city    employees          to   comply         with    a     residency

requirement          or    face     termination           of     their     employment.          Its

residency requirement is set forth in section 5-02 of the City's

charter. Put simply, it requires city employees to reside within

city       limits.    In     2013,       the     Legislature           enacted       Wis.     Stat.

§ 66.0502       (2013-14).3          Simply       stated,         Wis.     Stat.       § 66.0502

prohibits       cities,          villages,           towns,      counties,        and        school
districts4 from requiring their employees to reside within their

jurisdictional limits. It is obvious the charter and the statute

conflict:      one        imposes    a      residency      requirement          and     one    bans

residency       requirements.               Despite       enactment        of     Wis.        Stat.

       3
       All subsequent references to the Wisconsin Statutes are
the 2013-2014 version unless otherwise noted.
       4
       As noted in an earlier footnote, the home rule amendment
applies only to cities and villages. Wisconsin Stat. § 66.0502
applies to any city, village, town, county, or school district.


                                                 3
                                                                               No.     2014AP400



§ 66.0502,       the    City     has    continued      to       enforce   its        residency

requirement.5

      ¶4     The City claims that it can continue to enforce its

residency requirement pursuant to its home rule authority under

Article    XI,    § 3(1)        of    the     Wisconsin         Constitution.         The    City

contends that its residency requirement (contained in section 5-

02 of its charter) involves a matter of "local affairs" because

(1) the City has an interest in maintaining a tax base from

which to draw revenue; (2) the City has an interest in its

employees    sharing        a   common      community       investment         as    Milwaukee

residents;       and   (3)      the    City    has    an    interest      in    efficiently

delivering city services. Moreover, the City argues that Wis.

Stat. § 66.0502 cannot trump section 5-02 because it does not

with uniformity affect every city or every village. It believes

that "uniformity" must be understood as "actually affecting all

municipalities         in   equal      measure     uniformly."        According         to    the

City,     Wis.   Stat.       § 66.0502        fails   to        satisfy   the        home    rule

amendment's uniformity requirement because it does not impact
all cities or villages in equal measure.

      ¶5     In contrast, the Police Association claims that the

City can no longer enforce its residency requirement because

Wis. Stat. § 66.0502 trumps section 5-02 of the City's charter.

The     Police     Association          contends,          in    relevant       part,        that

      5
       In their briefs, both the City and the Police Association
state that the parties have agreed that the City will not act to
enforce its residency requirement until our final decision on
the merits.


                                               4
                                                                         No.    2014AP400



residency      requirements         constitute       a    matter     primarily        of

statewide concern because (1) when the Legislature enacted Wis.

Stat.      § 66.0502,    it    found     that    "public      employee         residency

requirements are a matter of statewide concern;" and (2) the

Legislature may legislate on matters that concern public health,

safety, and welfare, and here, it is reasonable to presume that

the     Legislature        determined         that       residency       requirements

negatively impact the welfare of public employees. Additionally,

the Police Association argues that Wis. Stat. § 66.0502 trumps

section 5-02 of the City's charter because Wis. Stat. § 66.0502

with uniformity affects every city or village. Unlike the City,

it believes that "uniformity" must be understood as requiring

"facial uniformity." According to the Police Association, Wis.

Stat. § 66.0502 is facially uniform because, by its terms, it

applies to all cities, villages, towns, counties, and school

districts.     Finally,       the   Police     Association       seeks    relief     and

damages     under   42     U.S.C.     § 1983.     It     claims    that        the   City

unconstitutionally deprived it of its "liberty interest in being
free from 'residency' being required as a condition of municipal

employment" when the City continued enforcement of its residency

requirement after the Legislature enacted Wis. Stat. § 66.0502.

      ¶6     This   case      presents   two    issues     for    our    review.      The

first is whether Wis. Stat. § 66.0502 precludes the City from

enforcing its residency requirement. The second is whether the

Police Association is entitled to relief and damages under 42

U.S.C. § 1983.


                                          5
                                                                             No.       2014AP400



      ¶7     As    to     the    first    issue,         we   hold    that       Wis.     Stat.

§ 66.0502        precludes      the    City       from     enforcing       its     residency

requirement.       The    Legislature         has    the      power   to     legislate       on

matters of local affairs when its enactment uniformly affects

every     city    or    every    village,         notwithstanding          the     home    rule

amendment. For purposes of the home rule amendment, an enactment

is    uniform      when    it     is     facially        uniform.      Wisconsin          Stat.

§ 66.0502 is facially uniform because it applies to "any city,

village, town, county, or school district." Wis. Stat. § 66.0502

(2)   (emphasis        added).    Because      Wis.      Stat.   § 66.0502         uniformly

affects every city or village, it trumps section 5-02 of the

City's charter. As a result, Milwaukee may no longer enforce its

residency requirement.

      ¶8     As    to     the    second    issue,        we   hold    that       the    Police

Association is not entitled to relief or damages under 42 U.S.C.

§ 1983.     Its     section       1983    claim       fails      because         the    Police

Association has not met the requirements necessary to prevail on

a section 1983 claim. Specifically, the Police Association has
not shown a deprivation of rights, privileges, or immunities

protected by the Constitution or the laws of the United States.6




      6
       Stated otherwise, we affirm the court of appeals'
determination that the Police Association is not entitled to
relief and damages pursuant to section 1983. However, we reverse
the court of appeals' conclusion that, under the home rule
amendment, section 5-02 of the City's charter trumps Wis. Stat.
§ 66.0502.


                                              6
                                                                    No.    2014AP400



            I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

    ¶9      For   many     years,    Milwaukee7      has   required       its   city

employees   to    reside    within     city       limits   as   a   condition     of

employment. Moreover, it has mandated discharge for any employee

caught living outside its city limits. Section 5-02 of the City

charter contains Milwaukee's residency rule:

    1. RESIDENCY REQUIRED. All employe[e]s of the city of
    Milwaukee are required to establish and maintain their
    actual bona fide residence within the boundaries of
    the city. Any employe[e] who does not reside within
    the city shall be ineligible for employment by the
    city and his employment shall be terminated in a
    manner hereinafter set forth.
    ¶10     On    June   20,   2013,        the    Legislature      enacted     2013

Wisconsin Act 20 ("Act 20").8 Section 1270 of Act 20 created Wis.

Stat. § 66.0502, which prohibits any city, village, county, or

school district from requiring an employee to live within a

jurisdictional limit. Specifically, it states,




    7
       Milwaukee is certainly not the only city that had a
residency requirement prior to the enactment of Wis. Stat.
§ 66.0502. The record shows that 114 municipalities have some
type of restriction on where their employees reside. Moreover,
13 municipalities required all their employees to live within
the municipal limits. The record also shows that 20 counties
have some type of residency restriction on where their employees
reside. Further, 3 counties require all or most of their
employees to live within the county. See Legis. Fiscal Bureau,
No. 544, Local Government Employee Residency Requirements, at 3
(May 9, 2013).
    8
       The Governor signed Act 20 on June 30, 2013, and the Act
took effect on July 2, 2013.


                                        7
                                                   No.   2014AP400


    (1) The     legislature finds that public employee
    residency   requirements are a matter of statewide
    concern.

    (2) In this section, "local governmental unit" means
    any city, village, town, county, or school district.

    (3)(a) Except as provided in sub. (4), no local
    governmental unit may require, as a condition of
    employment, that any employee or prospective employee
    reside within any jurisdictional unit.

    (b) If a local governmental unit has a residency
    requirement in effect on July 2, 2013, the residency
    requirement does not apply and may not be enforced.9

    9
       Wisconsin Stat. § 66.0502 contains exceptions that permit
a 15 mile residency requirement for law enforcement, fire, or
emergency personnel:

    (4)(a) This statute does not affect any statute that
    requires residency within the jurisdictional limits of
    any local governmental unit or any provision of state
    or local law that requires residency in this state.

    (b) Subject to par. (c), a local governmental unit may
    impose a residency requirement on law enforcement,
    fire, or emergency personnel that requires such
    personnel   to  reside   within   15   miles  of   the
    jurisdictional boundaries of the local governmental
    unit.

    (c) If the local governmental unit is a county, the
    county may impose a residency requirement on law
    enforcement,   fire,   or  emergency   personnel  that
    requires such personnel to reside within 15 miles of
    the jurisdictional boundaries of the city, village, or
    town to which the personnel are assigned.

    (d) A residency requirement imposed by a local
    governmental unit under par. (b) or (c) does not apply
    to any volunteer law enforcement, fire, or emergency
    personnel who are employees of a local governmental
    unit.

Wis. Stat. § 66.0502(4)(a)-(d).


                                  8
                                                                  No.     2014AP400


Wis. Stat. § 66.0502(1)-(3)(b).
    ¶11   On   the       day   Act   20   took   effect,   the   City's    Common

Council   passed     a    resolution      titled,    "Substitute    resolution

directing all City officials to continue enforcement of s. 5-02

of the Milwaukee City charter relating to residency." It states,

in pertinent part,

    This resolution directs all City officials to continue
    enforcement of s. 5-02 of the Milwaukee City Charter
    relating to residency of City employees. The Common
    Council    finds   that    legislative    action,    and
    specifically the enactment of 2013 Wisconsin Act 20,
    s. 1270, violates the City's constitutional home rule
    authority under Article XI, Section 3(1), of the
    Wisconsin State Constitution. Section 1270 purports to
    prohibit   most  municipal   laws   requiring   employee
    residency including provisions of the Milwaukee City
    Charter.

    The Common Council further finds that acquiescence to
    this unconstitutional exercise of state authority
    would significantly harm the interests of the City and
    its residents.

     . . . .

    [] The issue of local residency is not a matter                       of
    state-wide concern but is instead clearly a matter                    of
    "local affairs and government" to be determined                       by
    local governments that are directly accountable                       to
    local voters; and

    [] In 1938, as an exercise of its Constitutional Home
    Rule authority, the City of Milwaukee enacted a
    charter ordinance, now City Charter s. 5-02, requiring
    that all employees reside within the boundaries of the
    City . . . .
Furthermore, the resolution listed justifications for the Common

Council's decision to pass the resolution, such as (1) "the need

to ensure that sufficient staff are able to respond in a timely
manner to" emergencies; (2) the need to "minimize[] the City's

                                          9
                                                                      No.   2014AP400



response time;" (3) the need for city employees to "contribut[e]

to the City's economy; (4) and the desire for city employees to

have        "better   knowledge      of         neighborhoods     and       enhanced

relationships with residents."

       ¶12    The City's Mayor signed the resolution on the same day

the Common Council passed it. In addition, the Mayor publicly

announced that the City would terminate the employment of any

employee found to be in violation of its residency requirement.

       ¶13    On July 10, 2013, the Police Association10 filed suit

against the City in Milwaukee County Circuit Court. The Police

Association      sought   a    declaratory       judgment,    pursuant      to    Wis.

Stat.       § 806.04,11   in     order    to     determine      the    rights     and

obligations of the parties under Wis. Stat. § 66.0502, as well

as     a    declaration   that     the    City     had    violated     Wis.      Stat.

§ 66.0502.12      Additionally,     the        Police    Association    asked      for
       10
       The Police Association filed on behalf of "itself and on
behalf of its Members, Michael V. Crivello, James A. Black,
Glenn J. Podlesnik, and Steven J. Van Erden." For readability
purposes, we refer to this group collectively as the "Police
Association."
       11
       Wisconsin Stat. § 806.04(1) provides, in pertinent part,
"Courts of record within their respective jurisdictions shall
have power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed."
       12
       At one point, the Police Association also sought a writ
of mandamus compelling the City to begin complying with Wis.
Stat. § 66.0502 by ceasing enforcement of its residency
requirement. However, as the circuit court noted in its decision
and order, "[The Police Association] is no longer pursuing the
writ of mandamus set forth as the third cause of action in the
complaint . . . ." Accordingly, we do not consider whether the
Police Association is entitled to a writ of mandamus.


                                          10
                                                                                  No.     2014AP400



relief and damages under 42 U.S.C. § 1983. It claimed that it

was   entitled          to    relief    under      section         1983   because       the    City

violated         its    liberty        interest         to    be    free    from        residency

requirements           as    a     condition      of    employment         when    its     Common

Council passed, and the Mayor signed, the resolution.

      ¶14        Some       time     later,       the    Fire       Fighters       Association

intervened in the action. It sought an "adjudication of the

constitutionality and enforceability of § 66.0502 of Wisconsin

Statutes," and "a permanent injunction enjoining the City of

Milwaukee from enforcing any ordinances, resolutions, policies,

orders,      or    directives         in    any    form,      in    contravention         of    the

rights      of    the       members    of   Local       215    under      § 66.0502       of    the

Wisconsin Statutes."13 All parties moved for summary judgment.

      ¶15        On January 27, 2014, the circuit court held a hearing

on the parties' motions for summary judgment. That same day, the

court      issued       a    decision      and    order.      Regarding      the        home   rule

amendment, the circuit court succinctly stated its findings in

its concluding paragraph:

      This Court finds that Wis. Stat. § 66.0502 deals with
      a matter primarily of statewide concern and applies
      uniformly to all local government units in this state.
      The enactment of Wis. Stat. § 66.0502 withdrew from
      local governments the power to regulate the matter of
      residency requirements for municipal employees, and
      thereby removed the issue of residency from the scope
      of home rule authority under art. XI, sec. 3(1), Wis.
      Const. Consequently, the home rule amendment does not
      authorize the City to continue regulating residency
      13
       In addition, the Fire Fighters Association sought costs
and disbursements.


                                                  11
                                                                      No.     2014AP400


    requirements by enforcing an ordinance which is
    directly contrary to the legislative mandates of Wis.
    Stat. § 66.0502. The City's residency ordinance and
    related [resolution] are unenforceable to the extent
    that they fail to comply with the legislative mandates
    of Wis. Stat. § 66.0502.
Regarding       the   Police   Association's        section        1983    claim     for

damages, the circuit court concluded that "Wis. Stat. § 66.0502

creates     a     liberty      interest       in    freedom        from     residency

requirements as a condition of municipal employment, except as

provided by the statute." But the court did not award damages
because "the City's actions thus far have not deprived any part

of the liberty interest created by Wis. Stat. § 66.0502."

    ¶16     The City appealed, and the Police Association14 cross-

appealed. The court of appeals affirmed in part and reversed in

part the circuit court's grant of summary judgment. Black v.

City of Milwaukee, 2015 WI App 60, ¶3, 364 Wis. 2d 626, 869

N.W.2d 522. With respect to the section 1983 claim, the court of

appeals   affirmed      the    circuit    court's     decision       not    to     award

relief or damages under section 1983. Id., ¶3. It did so on the

grounds that Wis. Stat. § 66.0502 "did not create a protectable

liberty   interest."      Id.,   ¶35.     With     respect    to    the     home    rule

amendment, the court of appeals concluded, "because Wis. Stat.

§ 66.0502 does not involve a matter of statewide concern and

does not affect all local government units uniformly, it does

not trump the Milwaukee ordinance." Id., ¶3 (emphasis omitted).

    14
       Only the Police Association and Michael Crivello cross-
appealed. James Black, Glenn Podlesnik, and Steven Van Erden did
not cross-appeal.


                                         12
                                                                            No.      2014AP400



       ¶17     In reaching its conclusion on the home rule amendment,

the     court       of      appeals       expressed      deep       concern        over    the

disproportionate "impact" it believed Wis. Stat. § 66.0502 could

have on the City. See id., ¶¶5-8, 20-29, 33; see also id., ¶¶36-

37 (Kessler, J., concurring).                  As a consequence of that concern,

it determined that Wis. Stat. § 66.0502 primarily addressed a

matter of local affairs and did not impact every city or village

equally. To support its conclusions, the court of appeals relied

on the Legislative Fiscal Bureau's Paper (#554), titled "Local

Government and Employee Residency Requirements." According to

the court of appeals, Paper #554 hypothesized that elimination

of such requirements might adversely impact Milwaukee's "levels

of      employment,          incomes,         and     home      values        in     certain

neighborhoods." Id. ¶6 (majority opinion).

       ¶18     Further, the court of appeals feared that Milwaukee

might        become        the     next    Detroit:       "Significantly, . . . the

Legislative Fiscal Bureau paper's analysis warns that abolishing

residency requirements could result in Milwaukee's suffering the
same    economic         decline      recently       experienced      by   the      city    of

Detroit," and "The report surmised that Milwaukee could face the

same      fate        as         [Detroit],         despite        arguments        to     the

contrary . . . ." Id., ¶7. The court of appeals felt so strongly

about the impact Wis. Stat. § 66.0502 might have on the City, it

went    so    far     as    to    state,   "Regardless        of    what   the     statute's

language says, the facts in the record make clear that only one

city——Milwaukee——will be deeply and broadly affected." Id., ¶33
(emphasis added); see also id., ¶21 ("The facts in the record,
                                               13
                                                                   No.    2014AP400



exemplified by the Legislative Fiscal Bureau's paper, make clear

that the goal of Wis. Stat. § 66.0502 was to target the City of

Milwaukee."        (emphasis    added)).     Consequently,    the        court    of

appeals ruled that section 5-02 of the City's ordinance was

"still good law." Id., ¶35.

      ¶19    The    Police     Association    petitioned     this    court       for

review. We granted the petition on November 4, 2015.

                             II. STANDARD OF REVIEW

      ¶20    This case comes before the court as an action for

declaratory judgment and on cross-motions for summary judgment.

"When    a   circuit    court's    ruling    on   motions    for    declaratory

judgment depends on a question of law, we review the ruling de

novo." Gister v. Am. Family Mut. Ins. Co., 2012 WI 86, ¶8, 342

Wis. 2d 496, 818 N.W.2d 880. "We review the partial grant of

summary judgment independently, applying the same methodology as

the circuit court." In re Brianca M.W., 2007 WI 30, ¶8, 299

Wis. 2d 637, 728 N.W.2d 652. "Summary judgment is appropriate

when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law." Id.

      ¶21    In this case, we must also interpret a provision of

the Wisconsin Constitution as well as a state statute. "The

interpretation of a constitutional provision is a question of

law that we review de novo." Appling v. Walker, 2014 WI 96, ¶17,

358     Wis. 2d 132,     853     N.W.2d 888.      "The   interpretation          and

application of a statute present questions of law that this

court reviews de novo while benefitting from the analyses of the


                                       14
                                                                           No.    2014AP400



court of appeals and circuit court." In re Commitment of Alger,

2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346.

                                   III. DISCUSSION

       ¶22    We    first    discuss        whether        Wis.     Stat.        § 66.0502

precludes the City from enforcing its residency requirement. We

then   consider      whether   the    Police         Association     is    entitled     to

relief and damages under 42 U.S.C. § 1983.

       A. WHETHER WIS. STAT. § 66.0502 PRECLUDES THE CITY FROM
                 ENFORCING ITS RESIDENCY REQUIREMENT
       ¶23    "The legislative power in this state is lodged in the

legislature. When it exerts that power, it exerts it on behalf

of and in the name of the people of the State of Wisconsin." Van

Gilder v. City of Madison, 222 Wis. 58, 67, 267 N.W. 25 (1936).

Conversely,        "cities   are    creatures         of   the     state    legislature

[that]    have     no   inherent    right       of    self-government        beyond    the

powers       expressly    granted     to     them."        Madison    Teachers,        358

Wis. 2d 1, ¶89 (citing Van Gilder, 222 Wis. at 72-73 (citing

City of Trenton v. New Jersey, 262 U.S. 182, 187 (1923) ("A

municipality is merely a department of the state, and the state
may withhold, grant, or withdraw power and privileges as it sees

fit. However great or small, its sphere of action, it remains

the creature of the state exercising and holding powers and

privileges subject to the sovereign will."))).

       ¶24    Adopted in 1924, the "recognized purpose" of the home

rule amendment "was to confer upon cities and villages a measure

of self-government not theretofore possessed." State ex rel. v.
Baxter,      195   Wis. 437,       445,    219       N.W. 858     (1928)    ("Baxter").

                                           15
                                                               No.   2014AP400



Correspondingly,   the   home   rule     amendment   permits   "cities    and

villages   to   determine   their      local   affairs   and    government,

subject only to this constitution and to such enactments of the

legislature of statewide concern as with uniformity shall affect

every city or every village."15 Wis. Const. art. XI, § 3(1).

     ¶25   Two years ago, we clarified the relevant analytical

framework for the home rule amendment:

     [O]ur home rule case law instructs us that, when
     reviewing a legislative enactment under the home rule
     amendment, we apply a two-step analysis. First, as a
     threshold matter, the court determines whether the
     statute concerns a matter of primarily statewide or
     primarily local concern. If the statute concerns a
     matter of primarily statewide interest, the home rule
     amendment is not implicated and our analysis ends. If,
     however, the statute concerns a matter of primarily
     local affairs, the reviewing court then examines
     whether   the   statute   satisfies   the   uniformity
     requirement. If the statute does not, it violates the
     home rule amendment.
Madison Teachers, 358 Wis. 2d 1, ¶101.

     15
       In full, the home rule amendment states, "Cities and
villages organized pursuant to state law may determine their
local affairs and government, subject only to the constitution
and to such enactments of the legislature of statewide concern
as with uniformity shall affect every city or every village. The
method of such determination shall be prescribed by the
legislature." Wis. Const. art. XI, § 3(1) (amended 1981).

     An earlier version of the home rule amendment read, "Cities
and villages organized pursuant to state law are hereby
empowered, to determine their local affairs and government,
subject only to the constitution and to such enactments of the
legislature of state-wide concern as shall with uniformity
affect every city or every village. The method of such
determination shall be prescribed by the legislature." Wis.
Const. art. XI, § 3(1) (1924).


                                    16
                                                                        No.   2014AP400



     ¶26       The City takes issue with our recent interpretation

of the home rule amendment. It believes that pursuant to the

home rule amendment, a legislative enactment can trump a city

charter ordinance only when the enactment both (1) addresses a

matter of statewide concern, and (2) with uniformity affects

every   city    or    village.       In    contrast,    we   have    held     that    a

legislative enactment can trump a city charter ordinance either

(1) when the enactment addresses a matter of statewide concern,

or (2) when the enactment with uniformity affects every city or

village. See id., ¶99.

     ¶27   We    reached       our    determination       after     analyzing        and

applying   firmly-rooted        and       long-established    Wisconsin       Supreme

Court precedent. See id., ¶105 (highlighting "this court's long-

held rule that when a charter ordinance of a home rule city

concerns a matter of local affairs, conflicting legislation must

be   uniformly       applied    statewide        to    satisfy    the     home    rule

amendment"); id., ¶109 n.32 (surveying the "ample scholarship on

the topic of state constitutional home rule," and concluding
that it aligned with this court's interpretation of the home

rule amendment); State ex rel. Harbach v. City of Milwaukee, 189




                                            17
                                                          No.    2014AP400



Wis. 84, 86, 206 N.W.2d 210 (1925)16 ("Harbach") ("It is obvious

that the limitation placed upon the power of the legislature

with reference to laws which 'shall with uniformity affect every

city or every village' is confined to the 'local affairs and

government'   of   cities   and   villages.   With   reference   to   all

subjects that do not constitute 'local affairs,' or relate to

the government of cities and villages, the legislature has the

same power of classification that it had before the adoption of

the home-rule amendment." (emphasis added)); Baxter, 195 Wis. at

44917 ("The power of the legislature to legislate in the future

as it has in the past has not been limited. But where the

    16
        The home rule amendment was adopted in 1924. While our
current review of the home rule amendment may be temporally
removed from its adoption, the court's review and interpretation
in State ex rel. Harbach v. City of Milwaukee, 189 Wis. 84, 206
N.W.2d 210 (1925) was almost simultaneous with the amendment's
enactment, as that case was decided in 1925. At the time of
adoption, our interpretation of the amendment (which mirrors the
Harbach   court's  interpretation)  was   considered  "obvious."
Harbach, 189 Wis. at 86.
    17
       State ex rel. v. Baxter, 195 Wis. 437, 219 N.W. 858
(1928) examined the text, in particular the structure, of the
home rule amendment, explaining,

    Power is granted to cities and villages "to determine
    their local affairs and government, subject only to
    the constitution and to such enactments of the
    legislature of state-wide concern as with uniformity
    shall affect every city or every village." The phrase
    "subject only to this Constitution," etc., is a phrase
    of limitation, but it is a limitation upon the power
    granted to cities and villages. Nowhere do we find
    words of limitation upon the power of the Legislature.

195 Wis. at 445.


                                   18
                                                                            No.      2014AP400



legislation of a city enacted within the scope of its home-rule

powers comes in conflict with state legislation, the legislation

of the city prevails over the state legislation, unless the

state legislation affects uniformly every city . . . .");                                  Van

Gilder, 222 Wis. at 84 ("When the legislature deals with local

affairs and government of a city, if its act is not to be

subordinate to a charter ordinance, the act must be one which

affects with uniformity every city. . . . [In contrast,] [w]hen

the legislature deals with matters which are primarily matters

of   state-wide       concern,   it     may      deal   with    them     free      from   any

restriction contained in the home-rule amendment. The home-rule

amendment did not withdraw from the legislature its power to

deal    with   matters       primarily      of     state-wide     concern         which    it

possessed before the adoption of the amendment."); Thompson v.

Kenosha Cty., 64 Wis. 2d 673, 686, 221 N.W. 845 (1974) ("[A]s

this court held in Van Gilder v. Madison and affirmed in West

Allis v. Milwaukee County, this uniformity limitation applies

only if the subject of the statute concerns primarily local
affairs.    If   the       subject    of    the    legislation      is    of      statewide

concern, the uniformity restriction is inapplicable." (footnotes

omitted)); State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520,

530 n.16, 253 N.W.2d 505 (1977) ("Michalek") (noting that the

home rule amendment limits the legislature only in the "field of

local   affairs       of    cities    and     villages;"       thus,     the      home    rule

amendment      does    not    limit     the       legislature     in     the      field    of

statewide      affairs      (emphasis       added)).     Adoption      of      the    City's
argument would require us to overturn precedent from this court
                                            19
                                                             No.     2014AP400



dating back to 1925. We see no reason to toss out nearly a

century's   worth   of   precedent,    and   so   we   proceed     under   the

framework set forth in Harbach, Baxter, Van Gilder, Thompson,

Michalek, and Madison Teachers.18




     18
        Similar to the City, the concurrence and the dissent
believe   that  "a   legislative   enactment  prevails  over   a
conflicting city charter ordinance under the home rule amendment
when the enactment both concerns a matter of statewide concern
and affects every city or village with uniformity." Concurrence,
¶66; dissent, ¶121 ("A legislative act must be of statewide
concern and then it must apply uniformly.").

     The dissent purports to reach its conclusion by reading the
text of the amendment to "mean what it says." See dissent, ¶120.
Its "textual" analysis consists of a regurgitation of the home
rule amendment, followed by a conclusory statement that the text
of the amendment requires both a statewide concern and
uniformity. Dissent, ¶¶120-21. Nowhere does the dissent attempt
to engage in a true analysis of the text by pulling apart,
explaining, and defining the phrases and terms used in the home
rule amendment.

     The bulk of the concurrence's analysis rests on an amicus
brief from the Baxter case and some newspaper clippings.
According to the concurrence, the amicus brief, written by the
drafter of the home rule amendment, confirms that a legislative
enactment must both involve a matter of statewide concern and
with uniformity affect every city or every village. Concurrence,
¶62; but see State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶52, 271 Wis. 2d 633, 681 N.W.2d 110 ("Ours is a
government of laws not men, and it is simply incompatible with
democratic government, or indeed, even with fair government, to
have the meaning of a law determined by what the lawgiver meant,
rather than by what the lawgiver promulgated. It is the law that
governs, not the intent of the lawgiver . . . Men may intend
what they will; but it is only the laws that they enact which
bind us." (internal quotation marks omitted) (citing Antonin
Scalia, A Matter of Interpretation, at 17 (Princeton University
Press, 1997)).

                                                                 (continued)
                                  20
                                                   No.   2014AP400




     What the concurrence fails to note is that numerous amicus
briefs in addition to the one cited by the concurrence were
filed in Baxter and other home rule amendment cases. These
briefs   raised  varying   interpretations  of  the   home  rule
amendment. See Harbach, 189 Wis. 84, Walter H. Bender on behalf
of the Board of Trustees of Milwaukee Public School Teachers
Annuity and Retirement Fund as Amicus Curiae, at 17-18 (1925)
(noting that the phrase "subject to such enactments of the
legislature of statewide concern as shall with uniformity affect
every city or every village," "limit[s] the powers conferred
upon the municipality by the grant" and "limit[s] the
restrictive effect which the grant would otherwise have upon the
powers of the legislature"); Baxter, 195 Wis. 437, William Ryan
on behalf of Olin and Butler as Amicus Curiae, at 24 (1928)
("This limitation . . . has been seized upon by the advocates of
paramount authority of cities under the home rule amendment as a
limitation upon the power of the legislature, rather than a
limitation upon the power granted to cities and villages by the
home rule amendment. Much of the uncertainty regarding the scope
of the home rule amendment seems to have arisen from this
confusion of the application of the limitation; treating it as a
limitation upon the power of the legislature instead of treating
it as it clearly is——a limitation upon the exercise of the grant
of power under the home rule amendment."); Id., William F.
Hannan as Amicus Curiae, at 5 (1928) ("If, by the ratification
of the home rule amendment, any restriction has been placed upon
the power of the legislature to legislate with respect to
municipalities (such a restriction is not conceded), it is a
restriction or limitation upon the legislative power to deal
with 'the local affairs of government' of cities and villages.
No contention is or can be made that the power of the
legislature, with respect to matters that do not constitute 'the
local affairs and government' of cities and villages, has been
curtailed in any way.").

                                                     (continued)
                               21
                                                            No.     2014AP400




  1. Whether Residency Requirements Are Primarily Of Statewide
            Concern Or Are Primarily Of Local Concern
    ¶28   We   have   long   recognized    "that     the    terms    'local

affairs' and 'statewide concern' in the home rule amendment are

problematically   vague."    Id.,   ¶113   (citing    Van    Gilder,     222

Wis. at 73). "Further, the terms 'local affairs' and 'statewide

concern' carry the risk of oversimplifying reality [because] the

'functions of state and local governments necessarily overlap,'

and moreover, the nature of government functions can change over
time." Id. (citation omitted) (citing Van Gilder, 222 Wis. at

64). As a result, "home rule challenges are, by necessity, fact-

specific inquiries, and determinations are made on an ad hoc

basis." Id.




     Since 1925, many Justices have been called upon to
interpret the home rule amendment. These Justices had ample
briefing,    with    numerous    parties   presenting    varying
interpretations of the home rule amendment. See, e.g., Baxter,
195 Wis. at 443-44 ("[W]e invited briefs amicus curiae [to
address questions related to the home rule amendment.] The
response to this invitation was most gratifying. We have been
favored with excellent briefs on the part of able counsel, and
we have been greatly assisted thereby in arriving definitely and
clearly at the conclusions hereinafter announced."). The very
first court to interpret the amendment unanimously declared that
our reading of the home rule amendment was "obvious." Harbach,
189 Wis. at 86. Additionally, subsequent courts interpreting the
home rule amendment have found our reading "definite[] and
clear[]." Baxter, 195 Wis. at 443-44.

     In short, the dissent and the concurrence may present one
way   to  interpret   the   home   rule amendment.   But  their
interpretation has been outright rejected by informed Wisconsin
Supreme Court Justices since 1925.


                                    22
                                                                                   No.       2014AP400



       ¶29    As part of our statewide or local concern analysis,

"we have outlined three areas of legislative enactment: those

that are (1) exclusively a statewide concern; (2) exclusively a

local    concern;         or    (3)    a     'mixed      bag.'"       Id.,    ¶96;       see     also

Michalek,         77    Wis. 2d at         526-28.       If    a     legislative         enactment

concerns      a    policy       matter       that       is    exclusively         of     statewide

concern, then the home rule amendment grants no city or village

the    authority         to    regulate      the       matter.      Madison       Teachers,       358

Wis. 2d 1, ¶97; see also Van Gilder, 222 Wis. at 84 ("When the

legislature deals with matters which are primarily matters of

state-wide         concern,       it       may    deal       with    them     free       from     any

restriction            contained       in        the     home-rule       amendment.").             In

contrast, if a legislative enactment concerns a policy matter of

"purely      local       affairs,"         then     "home      rule    municipalities             may

regulate those local matters and, under the home rule amendment,

state    legislation           that    would      preempt       or    make    that       municipal

regulation         unlawful,       unless        uniformly          applied       statewide,       is

prohibited."           Madison        Teachers,         358    Wis. 2d 1,          ¶98       (citing
Michalek,         77     Wis. 2d at         529).       Finally,       if     a    "legislative

enactment touches on an issue that concerns both statewide and

local government interests (a 'mixed bag')," then a court must

determine whether the matter is "primarily" or "paramountly" a

matter       of    statewide          or    local       concern.       Id.,       ¶100       (citing

Michalek, 77 Wis. 2d at 528).

       ¶30    Here,       the     Legislature           specially      included          a    public

policy statement in Wis. Stat. § 66.0502: "The legislature finds
that    public         employee    residency           requirements         are    a     matter    of
                                                  23
                                                                        No.     2014AP400



statewide       concern."      Wis.    Stat.     § 66.0502(1).       This     court   has

previously        held    that        legislative    determinations           regarding

whether a policy matter constitutes a "statewide concern" or a

matter     of    "local   affairs,"       are    "entitled     to    great     weight."

Madison Teachers, 358 Wis. 2d 1, ¶125 (citing Van Gilder, 222

Wis. at 73-74 (noting that "[e]ven though the determination made

[by   the       Legislature]     should     be    held   not    to    be    absolutely

controlling, nevertheless, it is entitled to great weight")).

Deference        is   proper    because     "matters     of    public       policy    are

primarily for the legislature." Van Gilder, 222 Wis. at 73-74;19

see also Flynn v. Dep't of Admin., 216 Wis. 2d 521, ¶24, 576

N.W.2d 245 (1988) ("This court has long held that it is the

province of the legislature, not the court, to determine public

policy" because as the "voice of the people," "[i]t is the best

      19
           In full, Van Gilder states,

      The home-rule amendment does not lodge the power to
      determine what is a "local affair" or what is a
      "matter of state-wide concern' either with the
      municipality or with the legislature or attempt to
      define those terms. In the event of a controversy
      between municipalities and the state therefore the
      court is required to make the ultimate determination.
      In the first instance, the determination of what is a
      "local affair" and what is a "matter of state-wide
      concern" would seem to be for the legislature for the
      reason that such a determination must involve large
      considerations of public policy. Even though the
      determination made by it should be held not to be
      absolutely controlling, nevertheless it is entitled to
      great weight because matters of public policy are
      primarily for the legislature.

222 Wis. at 73-74.


                                           24
                                                                                No.   2014AP400



judge     of     what     is    necessary         to   meet     the     needs         of   the

public . . . .").         While       we   give   deference      to     a       Legislature's

determination,          the    ultimate      decision        "whether       a    legislative

enactment is primarily a matter of local or statewide concern

rests     with    this        court    and    not      the    legislature."           Madison

Teachers, 359 Wis. 2d 1, ¶128.20




     20
       Despite articulating an understanding of the rule that
the Legislature's determination is entitled to great weight, the
court of appeals chose to dismiss the Legislature's specific
determination here:

          The argument that residency requirements are a
     matter of statewide concern simply because the
     legislature said so is not persuasive because it is
     unsubstantiated. Neither the Police Association nor
     the trial court point to any facts supporting this
     claim; the Police Association merely argues on appeal
     that the Legislature can do what it wants. We
     disagree. . . . In this case, we cannot conclude that
     "because the legislature said so" is reason enough to
     affirm the trial court when there are no facts to
     support such a conclusion. The facts in the record,
     exemplified by the Legislative Fiscal Bureau Paper,
     make clear that the goal of Wis. Stat. § 66.0502 was
     to target the City of Milwaukee. Nearly every portion
     of the Legislative Fiscal Bureau paper's analysis
     explains in great detail how Milwaukee will be
     affected. The effect on the state, on the other hand,
     is never substantiated, and only given lip-service
     with broad policy arguments.

                                                                                 (continued)
                                             25
                                                                            No.    2014AP400



       ¶31    In this case, we are being asked to weigh a statewide

policy-based concern against a local economic interest. On the

one hand, the Legislature, through its enactment of Wis. Stat.

§ 66.0502, has determined that public employees should have the

right to choose where they wish to live. On the other hand, the

City    has       asserted       an   interest     in    maintaining       its    residency

requirement in order to protect its tax base, its interest in

its    employees         sharing      a   common      community    investment      as     city

residents,         and     its    interest       in     its    efficient      delivery     of

services.21

       ¶32    Given       the     competing        interests       outlined      above,     we

conclude that Wis. Stat. § 66.0502 constitutes a "mixed bag"

because it concerns both statewide and local interests. At this

point,       we    would     ordinarily       proceed         to   apply   the     test    of

paramountcy to determine whether the legislative enactment is

"primarily" or "paramountly" a matter of local affairs or a


Black v. City of Milwaukee, 2015 WI App 60, ¶21, 364
Wis. 2d 626, 869 N.W.2d 522. Our cases discussing deference to
legislative determinations of whether a matter is primarily of
local or statewide concern under the home rule amendment have
never   required    the   Legislature   to    substantiate such
determinations. See, e.g., Madison Teachers, 358 Wis. 2d 1,
¶¶125-128; Van Gilder, 222 Wis. at 73-74. The court of appeals
was not bound by the Legislature's determination that "public
employee residency requirements are a matter of statewide
concern." However, the court of appeals should have at least
attempted to follow the law it said it understood by giving
great weight to that legislative determination.
       21
       In its brief, the Police Association conceded that
residency requirements at least partly involve matters of local
concern.


                                              26
                                                                      No.      2014AP400



matter of statewide concern. However, in this case, we do not

apply the test of paramountcy to determine which interest (state

or local) is paramount. Instead, we give the City the benefit of

the   doubt:     we    assume,    without      deciding,       that     Wis.      Stat.

§ 66.0502 is a matter of local affairs. Accordingly, we move on

to consider the second step in the home rule analysis——whether

Wis. Stat. § 66.0502 uniformly affects every city or village.

  2. Whether Wis. Stat. § 66.0502 With Uniformity Affects Every
                         City Or Village
      ¶33   We   are    instructed     by     our   determination       in       Madison

Teachers that if the statute concerns a matter of primarily

local affairs, the reviewing court then examines whether the

statute     "with     uniformity"      "affects"      "every     city       or    every

village." See 358 Wis. 2d 1, ¶101. This is not the first time we

have examined the home rule amendment's uniformity requirement.

We addressed the home rule amendment's uniformity requirement in

Thompson    v.   Kenosha    County,      64    Wis. 2d 673,      221     N.W.2d 845

(1974), and Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W.

25 (1936). Both of these cases are constitutional home rule
cases,    interpreting     and   applying       the   same     amendment         we   are

currently interpreting and applying: Article XI, § 3(1) of the

Wisconsin Constitution. With this precedent as our guide, we

turn to the question of whether Wis. Stat. § 66.0502 affects

with uniformity every city or village.

      ¶34   In      Thompson,    the    Legislature      passed         Wis.      Stat.

§ 70.99,    which     allowed    any   Wisconsin      county     to    establish        a
county assessor system. 64 Wis. 2d at 676. The plaintiffs argued

                                        27
                                                             No.     2014AP400



that Wis. Stat. § 70.99 violated the home rule amendment. Under

the statute, if a county chose to establish a county assessor

system, then the office of assessor in all cities, villages, and

towns within the county was eliminated. Id. Kenosha County chose

to adopt a county assessor system; thus, the office of assessor

was eliminated in all cities, villages, and towns within Kenosha

County.   Relying   on   the   home   rule    amendment,   the     plaintiffs

argued that   Wis. Stat. § 70.99           did not uniformly affect all

cities and villages because the cities and villages in Kenosha

County had no office of assessor, while cities and villages

located in counties that chose to forego adoption of a county

assessor system had an office of assessor. Id. at 683. This

court dismissed their argument, commenting,

    Sec. 70.99 is, on its face, uniformly applicable
    throughout the state. The legislature did not enact a
    statute which could only apply to Kenosha county, or
    as is often the case, Milwaukee county. Each county in
    the state has an equal right to decide to adopt a
    countywide assessor system. . . . Where a statute
    confers equal legal powers, that would seem sufficient
    to satisfy the uniformity requirement. Thus, for
    example, two cities may have identical powers, yet the
    respective city councils may enact entirely different
    sets of ordinances. The state could hardly be held to
    have violated the uniformity requirement in such a
    situation.
Id. at 687 (emphasis added). In short, since 1974 we have held

that a statute satisfies the home rule amendment's uniformity

requirement if it is, on its face, uniformly applicable to every

city or village. Id.




                                      28
                                                                           No.   2014AP400



       ¶35    We also considered the uniformity requirement in Van

Gilder. There, we expressed skepticism toward the notion that a

law could have a uniform impact on every city or village:

       Was it the intention of the people that the
       legislature should be without power to enact any law
       affecting a city of 2,500 people unless that law at
       the same time affected in the same way the City of
       Milwaukee, a metropolitan community having few if any
       interests akin to those of a small city of the fourth
       class? What was meant by uniformity? Was the law to be
       uniform in its application to the city of X with 2,500
       population and affect it in the same way it affects
       the city of Milwaukee, a metropolitan community having
       a population of 600,000? In that sense there could
       hardly be a law affecting with uniformity every city.
       A law uniform in its application might work out one
       way in one city and in another way in another city
       depending upon the local situation and the way in
       which it was in fact administered and so "affect" them
       differently.
Van Gilder, 222 Wis. at 67 (emphasis added). We ultimately held,

"[W]e   can     reach     no   other     conclusion        than    that    it    was   the

intention      of   the   people    in    the   adoption      of    the    [home      rule]

amendment to leave a large measure of control over municipal

affairs      with   the   legislature."         Id.   at    71.    We     went   on,    "To

construe      the    amendment      as    meaning     that        every    act   of     the

legislature relating to cities is subject to a charter ordinance

unless the act of the legislature affected with uniformity every

city    from    smallest       to   the    greatest,         practically         destroys

legislative         control     over      municipal         affairs . . . ."            Id.

(emphasis added).

       ¶36    In sum, our precedent——going back to at least 1936——
confirms that facial uniformity is sufficient to satisfy the


                                           29
                                                                                   No.      2014AP400



home rule amendment's uniformity requirement. As long as the

statute,      on    its       face,    uniformly          affects        cities       or    villages

throughout         the    State,      the     home       rule    amendment's            uniformity

requirement is satisfied.

    ¶37       The effect of the court of appeals' interpretation of

uniformity is to ignore the holdings in Van Gilder and Thompson.

That is, while            Van Gilder          and      Thompson      instruct that facial

uniformity is sufficient, the court of appeals would hold that

facial   uniformity            would    "all        but      obliterate         the     home     rule

amendment." Black, 364 Wis. 2d 626, ¶32. The court of appeals

misperceives the point of the home rule amendment. As stated

previously, "The legislative power in this state is lodged in

the legislature. When it exerts that power, it exerts it on

behalf   of    and       in    the     name    of      the     people      of     the      State   of

Wisconsin." Van Gilder, 222 Wis. at 67. The home rule amendment

"confer[red]         upon      cities       and     villages         a    measure          of   self-

government not theretofore possessed;" however, the amendment

did so via "a grant of power to cities and villages," not via an
"express      limitation         upon       the        power    of       the    Legislature."22

    22
       "In ascertaining the meaning of the home-rule amendment,
we should also take into account the fact that the legislature
was not hostile to a larger measure of local self-government by
cities." Van Gilder, 222 Wis. 2d at 71. The Legislature was not
adverse to the idea of cities having some control because, as
noted by the Attorney General in the helpful amicus curiae brief
prepared by the Solicitor General's office,

    At the time Wisconsin debated the Amendment, the
    problem of the day was the Legislature enacting city-
    specific legislation, addressing purely local issues,
    because cities lacked sufficient legal power to
                                                   (continued)
                                                  30
                                                                        No.      2014AP400



Baxter, 195 Wis. at 445. ("The [amendment] is a grant of power

to cities and villages. . . . The phrase 'subject only to this

constitution,' etc., is a phrase of limitation, but it is a

limitation upon the power granted to cities and villages.").

      ¶38    Thus, under the home rule amendment, a city or village

"operates freed from legislative restriction" only in "a rather

narrow field." Van Gilder, 222 Wis. at 80-81. We have explained,

      When the legislature deals with local affairs as
      distinguished from matters which are primarily of
      state-wide concern, it can only do so effectually by
      an act which affects with uniformity every city. It is
      true that this leaves a rather narrow field in which
      the    home-rule   amendment    operates    freed    from
      legislative restriction, but there is no middle
      ground. Either the field within which the home-rule
      amendment operates must be narrowed or the field
      within   which   the   legislature   operates   must   be
      narrowed, and as was pointed out in the Baxter Case,
      the    amendment   clearly    contemplates    legislative
      regulation of municipal affairs and there was no
      intention on the part of the people in adopting the
      home rule amendment to create a state within a state,
      an imperium in imperio.
Id.   at    80-81.    When   the     Legislature       wants    to   legislate      on   a
matter of local affairs, it may do so if the law, on its face,

uniformly affects every city or village.

      ¶39    In      this    case,     the        Legislature    banned       residency

requirements         throughout      Wisconsin        by    enacting      Wis.     Stat.

§ 66.0502.     We    conclude      that   Wis.      Stat.   § 66.0502     (consistent


      regulate their own affairs. The Amendment sought to
      cure this problem by giving cities general law-making
      authority so the Legislature would no longer have to
      pass such laws.


                                             31
                                                              No.     2014AP400



with the home rule amendment) uniformly affects every city or

village. We so conclude because the plain language of Wis. Stat.

§ 66.0502 demonstrates its uniform effect: Wis. Stat. § 66.0502

says that "no local governmental unit" may have a residency

requirement, and it goes on to define "local governmental unit"

to mean "any city, village, town, county, or school district" in

the    State.   Wis.    Stat.     § 66.0502(2)-(3)    (emphasis      added).23

Consequently,    Wis.    Stat.    § 66.0502     uniformly   bans    residency

requirements,    and    in   so   doing,   it   satisfies   the     home   rule

amendment's uniformity requirement.24



       23
       Here, the Legislature ensured that Wis. Stat. § 66.0502
would with uniformity affect every city or village by making
Wis. Stat. § 66.0502 apply to any city, village, town, county,
or school district in the state. While the Legislature can
preempt a city ordinance under the home rule amendment by making
a statute apply to all cities or villages, it is no small
decision to make a statute applicable to every city or village
in the State. The Legislature must still make an important
trade-off when it is considering whether it should legislate on
a matter of local concern.
       24
       In its petition for review, the Police Association raised
two additional issues:

      1. May a municipality disregard legislative prohibitions on
         certain conditions of municipal employment, by simply
         passing an ordinance disputing the legislature's policy
         determination and asserting [h]ome [r]ule authority to do
         so, without first seeking a declaration as to the rights
         and obligations of the parties?

      2. Should a municipality be required to prove "beyond a
         reasonable doubt" that a statute is an unconstitutional
         overreach of its authority under the [h]ome [r]ule
         [a]mendment?

                                                                   (continued)
                                      32
                                                                        No.        2014AP400




   B. WHETHER THE POLICE ASSOCIATION IS ENTITLED TO RELIEF AND
                    DAMAGES UNDER SECTION 1983
       ¶40    Finally, we address the Police Association's argument

that    it    is    entitled     to   relief     and     damages    under     42    U.S.C.

§ 1983. "Section 1983 provides a remedy against 'any person'

who,    under      color    of   state    law,     deprives    another        of    rights

protected      by    the    Constitution."25       Collins    v.    City      of    Harker

Heights, Tex., 503 U.S. 115, 120-21 (1992). "Section 1983, by

itself, does not create any substantive constitutional rights;"
rather, it "provides a remedy for a deprivation of such rights."

Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, ¶22, 565

N.W.2d 521         (1997)   (citing      Chapman    v.    Houston    Welfare        Rights

We do not address these issues because they are not necessary to
resolve this case. See State v. Cain, 2012 WI 68, ¶37 n.11, 342
Wis. 2d 1, 816 N.W.2d 177 ("[A]n appellate court should decide
cases on the narrowest possible grounds." (quoting Md. Arms Ltd.
P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786
N.W.2d 15)); see also Hull v. State Farm Mut. Auto Ins. Co., 222
Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule,
when our resolution of one issue disposes of a case, we will not
address additional issues.").
       25
            In full, section 1983 reads,

       Every person who, under color of any statute,
       ordinance, regulation, custom, or usage, of any State
       or Territory of the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United
       States or other person within the jurisdiction thereof
       to the deprivation of any rights, privileges, or
       immunities secured by the Constitution and laws, shall
       be liable to the party injured in an action at law,
       suit in equity, or other proper proceeding for
       redress.

42 U.S.C. § 1983.


                                           33
                                                                       No.   2014AP400



Org., 441 U.S. 600, 617-18 (1979)). Accordingly, in order to

state a claim under section 1983, "a party must allege: (1) that

a   person    acting    under   the   color       of   state   law    committed    the

alleged conduct; and (2) that this conduct deprived the party of

rights, privileges, or immunities protected by the Constitution

or laws of the United States." Penterman, 211 Wis. 2d 458, ¶22.

      ¶41     The Police Association bases its section 1983 claim on

an alleged denial of due process. The Due Process Clause of the

Fourteenth        Amendment   "prohibits      a    state   from      depriving    'any

person of life, liberty, or property without due process of

law.'" Id., ¶39. Both this court and the Supreme Court of the

United States recognize that three types of section 1983 claims

may be brought against a state under the Due Process Clause:

      (1) Plaintiffs may bring suit under sec. 1983 for
      state officials' violations of their rights under a
      specific provision in the Bill of Rights; (2) The Due
      Process Clause contains a substantive component that
      bars certain arbitrary, wrongful government actions
      (these are commonly known as substantive due process
      rights); and (3) An action may be brought under sec.
      1983 for a violation of procedural due process.
Casteel      v.   McCaughtry,   176   Wis. 2d 571,         578,      500   N.W.2d 277

(1993) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)). In

other words, a person bringing a section 1983 claim under the

Due Process Clause can base this claim on an alleged violation

of a specific provision in the bill of rights, on an alleged

violation of substantive due process, or on an alleged violation

of procedural due process.




                                        34
                                                                      No.    2014AP400



       ¶42    The   Police    Association        makes    no   argument     that   its

section 1983 claim is based on a specific provision in the Bill

of Rights, nor does it argue a procedural due process violation;

rather, throughout its briefing, it has referred exclusively to

substantive due process. Accordingly, we turn to discuss whether

the    City    violated      the   Police       Association's      substantive      due

process rights.

        1. Whether The City Violated The Police Association's
                    Substantive Due Process Rights
       ¶43    Substantive      due    process      "protects    individuals        from

'certain arbitrary, wrongful actions regardless of the fairness

of    the    procedures   used       to   implement      them.'"    Penterman,      211

Wis. 2d 458,        ¶39   (some       quotation      marks     omitted)     (quoting

Zinermon, 494 U.S. at 125). "The test to determine if state

conduct complained of violates substantive due process is if the

conduct 'shocks the conscience . . . or interferes with rights

implicit in the concept of ordered society.'"                       State ex rel.

Greer, 353 Wis. 2d 307, ¶57 (quoting State v. Schulpius, 2006 WI

1, ¶33, 287 Wis. 2d 44, 707 N.W.2d 495). The Police Association
argues both that the City's actions shock the conscience and

that its actions interfere with a liberty interest. We address

each argument in turn.

            i. Whether The City's Actions Shock The Conscience

       ¶44    Actions shock the conscience when they offend "even

hardened sensibilities" or "the decencies of civilized conduct."

Rochin v. California, 342 U.S. 165, 172-73 (1952);                          see also
Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.) ("[T]he 'shock

                                           35
                                                                   No.      2014AP400



the     conscience'      standard      requires       a     high      level       of

outrageousness . . . ."      (citing       Collins,   503    U.S.      at    128));

Harron v. Town of Franklin, 660 F.3d 531, 536 (1st Cir. 2011)

(describing acts that shock the conscience as "truly outrageous,

uncivilized,      and   intolerable").      For   example,      in     Rochin     v.

California, 342 U.S. 165 (1952), the case that first developed

the shock the conscience test, police officers illegally broke

into Rochin's home, jumped on him, handcuffed him, struggled to

open his mouth, forced an emetic solution into his stomach, and

made him vomit, so they could obtain evidence. 342 U.S. at 166.

The Supreme Court of the United States held that these actions

were "too close to the rack and the screw to permit . . . ." Id.

at 172.

      ¶45   In the present case, the Common Council passed, and

the Mayor signed, a resolution, which affirmed the section of

its City charter requiring city employee residency. Relying on

the home rule amendment, the resolution claimed that the City

could     still   enforce   its     residency     requirement        because     its
charter (section 5.02) trumped the state statute (Wis. Stat.

§ 66.0502). Because the City believed its charter prevailed over




                                      36
                                                                      No.    2014AP400



the state statute, the resolution stated that the City would

continue to enforce its residency requirement.26

     ¶46    Simply    stated,       these    actions     do     not    "shock      the

conscience"——they do not offend "even hardened sensibilities" or

"the decencies of civilized conduct." Here, we had a genuine

legal dispute as to which law, Wis. Stat. § 66.0502 or section

5-02 of the City's charter, would prevail. The Common Council

and the Mayor, by passing the resolution, merely provided the

City's    opinion    that,    pursuant       to   the   home    rule     amendment,

section 5-02 of the City's charter trumped Wis. Stat. § 66.0502.

The City has not pointed to any case where factually similar

conduct was held to shock the conscience. Therefore, we are not

willing    to   conclude     that   a   genuine     legal      dispute      over   the

priority of two competing laws (one a statute and one a section

of a city charter) rises to the level of conscience-shocking

behavior.

 ii. Whether The City's Actions Deprived The Police Association
               Of A Fundamental Right Or Liberty
     ¶47    The Supreme Court of the United States "has always
been reluctant to expand the concept of substantive due process


     26
       In its brief, the Police Association applied the shocks
the conscience test to both the Mayor's actions and the Common
Council's actions: "Substantive due process is violated by
executive action when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense,"
and "Substantive due process is violated by legislative action
and can properly be recognized as arbitrary or conscience
shocking, when its sweep is unnecessarily broad and invades a
protected freedom." (quotation marks and citation omitted).


                                        37
                                                                                 No.    2014AP400



because     guideposts           for     reasonable        decision       making        in     this

unchartered area are scarce and open-ended." Collins, 503 U.S.

at   126.       This      is         because     "[b]y        extending     constitutional

protection      to     an       asserted        right    or    liberty     interest,          [the

Court], to a great extent, place[s] the matter outside the arena

of   public       debate         and     legislative           action."     Washington           v.

Glucksberg,       521       U.S.       702,     720     (1997).     Accordingly,             "[t]he

doctrine     of      judicial          self-restraint          requires     [a     court]        to

exercise the utmost care whenever [a court] [is] asked to break

new ground in this field," Collins, 503 U.S. at 126, "lest the

liberty     protected            by     the      Due     Process     Clause        be        subtly

transformed into the policy preferences of the [m]embers of [a

court]," Glucksberg, 521 U.S. at 720. In determining whether an

asserted    right         falls       within     the     purview    of    substantive          due

process, the Supreme Court has "regularly observed that the Due

Process Clause specially protects those fundamental rights and

liberties       which       are,        objectively,          'deeply     rooted        in    this

Nation's history and tradition.'" Id. (emphasis added) (quoting
Moore v. City of East Cleveland, Oh., 431 U.S. 494, 503 (1977)

(plurality opinion)).

     ¶48    Here,         the        Police     Association        has    not     asserted        a

fundamental       right         or    liberty     that    is     deeply    rooted       in     this

Nation's history and tradition. Rather, the Police Association

claims that Wis. Stat. § 66.0502——on the day it was enacted——

created     a     liberty            interest     in     being     free    from        residency

requirements         as     a        condition     of    employment.        To     make       this


                                                 38
                                                                                   No.     2014AP400



argument,         the       Police    Association         pulls      from     procedural          due

process cases.

       ¶49       For example, the Police Association relies on Hewitt

v. Helms, 459 U.S. 460 (1983) for the proposition that a liberty

interest may arise from two sources: the Due Process Clause or

the laws of a state. 459 U.S. at 466. In Hewitt, the Supreme

Court       of    the       United     States      ultimately         concluded          that    the

"statutory            framework       governing        the    administration             of     state

prisons gave rise to a liberty interest . . . , but . . . the

procedures afforded [the] respondent were 'due process' under

the Fourteenth Amendment." Id. (emphasis added). Throughout its

opinion, the Court made reference to the state regulation giving

rise       to     procedural          due       process       protections:          "procedural

guidelines," "procedural rights," "procedural requirements," and

"procedural safeguards." Id. at 471, 472, 473, 475. There, the

"Due       Process      Clause       require[d]        only   an     informal      nonadversary

review of evidence . . . in order to confine an inmate feared to

be     a     threat         to     institutional         security       to    administrative
segregation." Id. at 474 (emphasis added).

       ¶50       We recognize that the Supreme Court, in cases like

Hewitt,         has    "repeatedly         held   that       state    statutes       may      create

liberty          interests         that     are        entitled       to     the         procedural

protections            of    the     Due    Process       Clause       of    the     Fourteenth

Amendment." Vitek v. Jones, 445 U.S. 480, 488 (1980) (emphasis

added). However, the "Supreme Court has never held that such

state-created               interests       constitute         a     fundamental              liberty
interest         protected         under    a     substantive        due     process          theory.
                                                  39
                                                                  No.      2014AP400



Rather, the Court has analyzed state-created liberties under a

procedural due process theory." Krausharr v. Flanigan, 45 F.3d

1040, 1047 (7th Cir. 1995) (emphasis added); see also Robinson

v. Howell, 902 F. Supp. 836, 843 (S.D. Ind. 1995) ("A state

cannot     legislate    or    otherwise      determine   what   constitutes       a

fundamental principle of justice and liberty so as to be worthy

of   protection   under       the   federal    constitution.").      The    Police

Association has not pointed to any contrary authority. Because

"[t]he     doctrine    of    judicial   restraint   requires    [a      court]   to

exercise the utmost care" when determining whether a substantive

due process right exists, we decline to create a new right or

liberty interest in being free from residency requirements as a

condition of employment. See Collins, 503 U.S. at 126. As a

result, we conclude that the Police Association's substantive

due process argument fails. Because the Police Association has

not shown a deprivation of rights, privileges, or immunities

protected by the Constitution or laws of the United States, it

is not entitled to relief or damages under section 1983.27




      27
       The Police Association appears to argue (1) that the
City's resolution deprived it of a non-fundamental liberty
interest in being free from a residency requirement and (2) that
this deprivation does not survive rational basis review. Even
assuming that the first of these arguments is valid (which we do
not decide), the resolution survives rational basis review. The
resolution was rationally related to the City's legitimate
interest in expressing its opinion on whether, pursuant to the
home rule amendment, section 5-02 of the City's charter trumped
Wis. Stat. § 66.0502.


                                        40
                                                                               No.    2014AP400



                                    IV. CONCLUSION

      ¶51    To summarize, first, we hold that Wis. Stat. § 66.0502

precludes the City from enforcing its residency requirement. The

Legislature       has    the    power      to    legislate        on   matters       of    local

affairs when its enactment uniformly affects every city or every

village, notwithstanding the home rule amendment. For purposes

of the home rule amendment, an enactment is uniform when it is

facially uniform. Wisconsin Stat. § 66.0502 is facially uniform

because     it    applies      to   "any    city,         village,     town,     county,      or

school     district."      Wis.     Stat.       § 66.0502        (2)   (emphasis      added).

Because Wis. Stat. § 66.0502 uniformly affects every city or

village, it trumps section 5-02 of the City's charter. Milwaukee

may no longer enforce its residency requirement. Second, we hold

that the Police Association is not entitled to relief or damages

under 42 U.S.C. § 1983. Its section 1983 claim fails because the

Police Association has not met the requirements necessary to

prevail     on    a     section     1983    claim.         Specifically,        the       Police

Association has not shown a deprivation of rights, privileges,
or   immunities       protected      by    the       Constitution       or   laws     of    the

United States.

      By    the    Court.—The       decision         of    the    court   of     appeals      is

affirmed in part and reversed in part.




                                                41
                                                                          No.    2014AP400.rgb




       ¶52    REBECCA G. BRADLEY, J.                      (concurring).        I agree that

Wis. Stat. § 66.0502 trumps Milwaukee's residency ordinance and

therefore I join the majority opinion.                          I write separately to

point out that the original meaning of the home rule amendment

to the Wisconsin Constitution decrees a different interpretation

than this court gives.                The home rule amendment provides that:

"Cities and villages . . . may determine their local affairs and

government,      subject       only     to       this      constitution        and    to     such

enactments      of    the    legislature             of    statewide    concern        as    with

uniformity shall affect every city or every village. . . ."

Wis.   Const.    art.       XI,   §    3(1).          The    majority     holds       that    the

statute      controls   over      any    conflicting           city    charter        ordinance

"either (1) when the enactment addresses a matter of statewide

concern, or (2) when the enactment with uniformity affects every

city or village."           Majority op., ¶26.

       ¶53    I cannot agree with this interpretation based on the

text of the home rule amendment and its original meaning.                                   After
examining the constitutional debates and practices surrounding

the    amendment's          adoption,        I       conclude    that      a     legislative

enactment preempts a conflicting city charter ordinance under

the home rule amendment only when the enactment both concerns a

matter of statewide concern and with uniformity affects every

city or village.            See Wis. Const. art. XI, § 3(1).                      Here, Wis.

Stat. § 66.0502 meets both the statewide concern and uniformity

requirements;        therefore,        § 66.0502          prevails     over     the    City    of
Milwaukee's residency requirement found in section 5-02 of the

                                                 1
                                                                               No.    2014AP400.rgb


City's       charter.        As     a   result,         although    I    disagree       with    the

majority's        interpretation             and    application          of    the     home    rule

amendment, I agree with the end result: Wis. Stat. § 66.0502

precludes the City of Milwaukee from enforcing its residency

requirement.

                 I. INTERPRETATION OF THE HOME RULE AMENDMENT

       ¶54      The methodology used to interpret amendments to the

Wisconsin         Constitution          is     well          established.            See,      e.g.,

Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶19, 295

Wis.       2d    1,    719       N.W.2d      408;       id.,    ¶¶114-17           (Prosser,     J.,

concurring in part, dissenting in part); Thompson v. Craney, 199

Wis.       2d   674,   680,       546   N.W.2d         123    (1996).         We    independently

interpret the Wisconsin Constitution,1 "to give effect to the

intent of the framers and of the people who adopted it; and it

is a rule of construction applicable to all constitutions that

they are to be construed so as to promote the objects for which

they were framed and adopted."                      State v. Cole, 2003 WI 112, ¶10,

264 Wis. 2d 520, 665 N.W.2d 328 (quotation marks and citations
omitted).         We may look to "three primary sources in determining

the    meaning         of    a    constitutional             provision:        [1]     the     plain

meaning, [2] the constitutional debates and practices of the

time, and [3] the earliest interpretations of the provision by

the    legislature,          as    manifested          through     the    first       legislative

action following adoption."                    Dairyland Greyhound Park, 295 Wis.



       1
       Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123
(1996).


                                                   2
                                                               No.    2014AP400.rgb


2d 1, ¶19.2       A focus on the first two sources shows the text of

the   home   rule    amendment     authorizes       cities   and     villages    to

"determine their local affairs and government" subject only to

the   Wisconsin     Constitution    and    a     legislative   enactment        both

addressing    a    statewide   concern     and    with   uniformity     affecting

every city or every village.           See Wis. Const. art. XI, § 3(1).

I give priority to the plain meaning of the words of the home

rule amendment.       See Dairyland Greyhound Park, 295 Wis. 2d 1,

¶117 (Prosser, J., concurring in part, dissenting in part).

                               A. Plain meaning

      ¶55    To understand the original meaning of the home rule

amendment, I begin with the text of the amendment.                      The home

rule amendment provides, in pertinent part: "Cities and villages

organized    pursuant    to    state   law       may   determine     their   local

affairs and government, subject only to this constitution and to

such enactments of the legislature of statewide concern as with

uniformity shall affect every city or every village."                         Wis.


      I do not address legislative interpretations to determine
      2

the meaning of the home rule amendment because

           In the performance of assigned constitutional
      duties each branch of the Government must initially
      interpret the Constitution, and the interpretation of
      its powers by any branch is due great respect from the
      others. . . . Many decisions of this Court, however,
      have unequivocally reaffirmed the holding of Marbury
      v. Madison that '(i)t is emphatically the province and
      duty of the judicial department to say what the law
      is.'

United States v. Nixon, 418 U.S. 683, 703 (1974)(quoting Marbury
v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60
(1803))(internal citation omitted).

                                       3
                                                                          No.      2014AP400.rgb


Const. art. XI, § 3(1).                  The structure of this sentence reveals

the    meaning    of    the       home    rule       amendment.        The     first      clause

provides: "Cities and villages organized pursuant to state law

may determine their local affairs and government."                                       See   id.

This independent clause grants power to cities and villages to

govern      "their     local      affairs    and      government."           See    id.        The

second       clause,    a      dependent        clause,      modifies        the     preceding

independent clause and places two limitations on the grant of

power to cities and villages.                   First, the constitution may limit

city or village authority to determine its local affairs.                                      The

second limitation subordinates the power of cities and villages

to:    "such enactments of the legislature of statewide concern as

with uniformity shall affect every city or every village."                                     See

id.    This second limitation contains two requirements evidenced

by its grammatical construction.3                     The subject of this limitation

is "enactments of the legislature," while the verb is "shall

affect."       The phrase "of statewide concern" specifies the type

of enactments that supersede local governance, and the phrase
"as    with     uniformity"            specifies      how    those    enactments          "shall

affect"       every    city       or    every    village.            Because       one    phrase

modifies the subject and the other phrase modifies the verb,

both       modifiers        are        necessary,       rather        than      unilaterally

sufficient requirements.                 In other words, the text of the home

rule       amendment    authorizes         cities      and    villages       to     "determine

       3
       "Words are to be given the meaning that proper grammar and
usage would assign them."     Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 140 (2012).


                                                 4
                                                                 No.   2014AP400.rgb


their   local      affairs     and   government"     subject       only     to   the

Wisconsin    Constitution         and   a     legislative       enactment        both

addressing   a     statewide     concern    and   with    uniformity      affecting

every city or every village.               The "subject to" phrase accords

priority4 over local governance to both the constitution and

enactments of the legislature of statewide concern, provided the

uniformity requirement is met.             In the event of conflict between

a local enactment and either the constitution or an enactment of

the legislature (1) where the subject matter is of statewide

concern and (2) that applies with uniformity to every city and

village, the local enactment must give way.                     The text of the

home rule amendment cannot be reasonably or grammatically read

in any other way.

    ¶56     Much of this court's precedent, including our recent

decision in Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶101,

358 Wis. 2d 1, 851 N.W.2d 337, fails to apply the plain meaning

of the home rule amendment.             Nevertheless, the majority relies

entirely    upon    the   home   rule   framework        set   forth   in   Madison
Teachers without any attempt to explain how the text of the

amendment supports that framework.            The majority states:

    [O]ur home rule case law instructs us that, when
    reviewing a legislative enactment under the home rule
    amendment, we apply a two-step analysis. First, as a
    threshold matter, the court determines whether the
    statute concerns a matter of primarily statewide or
    primarily local concern.   If the statute concerns a
    matter of primarily statewide interest, the home rule
    amendment is not implicated and our analysis ends.
    If, however, the statute concerns a matter of
    4
        Id. at 127.


                                        5
                                                                No.   2014AP400.rgb

     primarily local affairs, the reviewing court then
     examines whether the statute satisfies the uniformity
     requirement. If the statute does not, it violates the
     home rule amendment.
Majority op.,       ¶25 (quoting     Madison Teachers, 358 Wis. 2d 1,

¶101) (emphasis added).           To conclude as the majority does, that

analysis of the home rule amendment stops if the legislative

enactment at issue addresses an issue primarily of statewide

concern    and    that   the    uniformity     requirement   applies     only   to

legislation concerning issues primarily of local concern, simply

does not comport with the text of the amendment.

     ¶57    As emphasized above, Madison Teachers did not purport

to rely on the text of the home rule amendment to craft the

analytical       framework     employed   by   the   majority    opinion    here.

Instead, Madison Teachers relied on case law concerning the home

rule amendment dating back to 1926.              Id., ¶¶96-101, 117 (citing

State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 640, 209

N.W. 860 (1926)).         The problem with Madison Teachers' reliance

on precedent and in turn the majority opinion's employment of

the analytical framework from Madison Teachers is that no prior
case reconciles the text of the home rule amendment with this

judicially-created analytical framework.5




     5
       See, e.g., Thompson v. Kenosha Cty., 64 Wis. 2d                  673, 221
N.W.2d 845 (1974); Van Gilder v. City of Madison, 222                   Wis. 58,
267 N.W. 25 (1936); State ex rel. Sleeman v. Baxter,                    195 Wis.
437, 219 N.W. 858 (1928); State ex rel. Ekern v.                         City of
Milwaukee, 190 Wis. 633, 209 N.W. 860 (1926); State                      ex rel.
Harbach v. City of Milwaukee, 189 Wis. 84, 86, 206                      N.W. 210
(1925).


                                          6
                                                                            No.   2014AP400.rgb


    ¶58     Where      even       long-standing         precedent          contravenes      the

constitution, it is ripe for reconsideration.

    "Stare decisis is not . . . a universal, inexorable
    command,"   especially    in    cases    involving   the
    interpretation of the Federal Constitution. Erroneous
    decisions in such constitutional cases are uniquely
    durable,   because   correction    through   legislative
    action,   save   for   constitutional    amendment,   is
    impossible.   It is therefore our duty to reconsider
    constitutional interpretations that "depar[t] from a
    proper understanding" of the Constitution.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954-55

(1992)(Rehnquist, C.J., concurring in part, dissenting in part)

(alteration      in    original)(internal              citations       omitted).          "The

principle   of    stare       decisis      does      not     compel    us    to    adhere   to

erroneous precedents or refuse to correct our own mistakes."

State v. Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶31, 244

Wis. 2d 613, 628 N.W.2d 376.               "Our constitutional watch does not

cease merely because we have spoken before on an issue; when it

becomes   clear       that    a    prior    constitutional            interpretation        is

unsound we are obliged to reexamine the question."                                Casey, 505

U.S. at 955 (Rehnquist, C.J., concurring in part, dissenting in

part).    The durability of erroneous decisions interpreting the

home rule amendment under the Wisconsin Constitution illustrates

the danger of rigidly adhering to the doctrine of stare decisis

at the expense of fidelity to the constitution.                                   It is this

court's   duty    to    reconsider         interpretations            of    the    home   rule

amendment   that       depart      from     a       proper    understanding          of   that

constitutional provision.               This court should be "ready at all
times to subordinate any possible, though unjustifiable, pride


                                                7
                                                                   No.    2014AP400.rgb


of opinion to a justifiable pride in trying to decide rightly."

Ekern, 190 Wis. at 635.

                    B. Constitutional debates and practices

       ¶59    The    plain   meaning     interpretation     of     the        home   rule

amendment      explained      above     finds     support   in     the     historical

context in which the home rule amendment was adopted, including

relevant statements made by the framers of the amendment as well

as public statements made by proponents of the amendment who

communicated         the     meaning     of      the   amendment         to     voters.

Understanding the context in which the home rule amendment was

proposed and ratified is essential because "[t]he meaning of the

constitutional provision having been once firmly established as

of the time of its adoption, such meaning continues forever,

unless it is changed or modified by the Constitution."                         State ex

rel. Bare v. Schinz, 194 Wis. 397, 403, 216 N.W. 509 (1927).

Unlike statutory interpretation where consultation of extrinsic

sources      is      typically       limited     to    resolving     ambiguities,6

examination of constitutional debates and historical practices
from       extrinsic       sources     is       necessary   in      constitutional

interpretation to ascertain original meaning:

       The reasons we employ a different methodology for
       constitutional     interpretation     are     evident.
       Constitutional provisions do not become law until they
       are approved by the people. Voters do not have the
       same access to the "words" of a provision as the
       legislators who framed those words; and most voters
       are not familiar with the debates in the legislature.
       As a result, voters necessarily consider second-hand
       6
       State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶50, 271 Wis. 2d 633, 681 N.W.2d 110.


                                            8
                                                                       No.    2014AP400.rgb

       explanations   and    discussion   at   the   time of
       ratification. In addition, the meaning of words may
       evolve over time, obscuring the original meaning or
       purpose of a provision. The original meaning of a
       provision might be lost if courts could not resort to
       extrinsic    sources.     Finally,    interpreting  a
       constitutional provision is likely to have a more
       lasting effect than the interpretation of a statute,
       inasmuch as statutory language can be more easily
       changed than constitutional language. Thus, it is
       vital for court decisions to capture accurately the
       essence of a constitutional provision.
Dairyland Greyhound Park, 295 Wis. 2d 1,                      ¶116       (Prosser, J.,

concurring in part, dissenting in part).                      Consultation of the

contemporaneous           writings      of   the    framer   of    a     constitutional

amendment may aid in ascertaining original meaning "not because

they were Framers and therefore their intent is authoritative

and must be the law; but rather because their writings, like

those of other intelligent and informed people of the time,

display       how     the   text       of    the    Constitution       was     originally

understood."         Antonin Scalia, A Matter of Interpretation 38 (Amy

Gutmann ed., 1997).

       ¶60    Accordingly, it is first essential to understand the

context      in     which   the    home      rule    amendment     was       drafted    and
proposed.         The home rule amendment arose as a direct result of

this court's decision in State ex rel. Mueller v. Thompson, 149

Wis.       488,     137   N.W.    20    (1912).7        In   Mueller,        this      court

invalidated a 1911 statute, known as the "home rule act," which

authorized cities to amend their city charters.                              Id. at 490,

493-94, 497.         The "home rule act" at issue in Mueller provided:
       7
       Daniel   W.  Hoan,   Brief   for   Wisconsin   League of
Municipalities as Amicus Curiae at 2 (No. 252) in State ex rel.
Sleeman v. Baxter, 195 Wis. 437, 219 N.W. 858 (1928).

                                              9
                                                                No.    2014AP400.rgb

    "Every city, in addition to the powers now possessed,
    is hereby given authority to alter or amend its
    charter, or to adopt a new charter by convention, in
    the manner provided in this act, and for that purpose
    is hereby granted and declared to have all powers in
    relation to the form of its government, and to the
    conduct of its municipal affairs not in contravention
    of or withheld by the constitution or laws, operative
    generally throughout the state."
Id. at 493-94.         Operating under the "home rule act," the City of

Milwaukee's Common Council adopted a resolution to amend its

charter to allow the City to operate an ice plant.                     Id. at 498-

99 (Timlin, J., concurring).              After the resolution passed, the

City Clerk refused to place the proposed amendment of the City's

charter    on    the   ballot.      Id.    at   489.     The   State    pursued   a

mandamus action against the City Clerk that the circuit court

granted.        Id. at 489.       This court reversed and held that the

City Clerk had no duty to place the proposed amendment to the

City's charter on the ballot because the "home rule act" that

granted the authority to cities to amend their charters was an

unconstitutional delegation of legislative power.                     Id. at 491-

92, 497.        The court then alluded to the possibility of a home

rule amendment to our constitution:

    It is correctly claimed on the one side, and not
    effectually, if at all, denied upon the other, that in
    most cases where legislation of the nature of that in
    question has been adopted it was preceded by a
    constitutional amendment expressly authorizing it,
    while in those not so preceded the legislation was
    condemned as unconstitutional.
Id. at 497-98.

    ¶61     Following the invalidation of the "home rule act" in
Mueller, work on a home rule amendment culminated in a joint

resolution       "[t]o    amend    section      3   of   article      XI   of   the
                                          10
                                                    No.   2014AP400.rgb


constitution, relating to powers of cities and villages"8 that

passed both houses in 1921 and 1923 and was set for the 1924

general election.    Wisconsin Legislative Reference Bureau, State

of Wisconsin Blue Book 219 (2015-16).       A joint resolution set

forth the amendment, in pertinent part:

          Resolved by the senate, the assembly concurring,
     That section 3 of article XI of the constitution be
     amended to read: (Article XI) Section 3: Cities and
     villages organized pursuant to state law It shall be
     the duty of the legislature, and they are hereby
     empowered, to determine their local affairs and
     government, subject only to this constitution and to
     such enactments of the legislature of state-wide
     concern as shall with uniformity affect every city or
     every village. The method of such determination shall
     be prescribed by the legislature. to provide for the
     organization of cities and incorporated villages, and
     to restrict their power of taxation, assessment,
     borrowing money, contracting debts and loaning their
     credit, so as to prevent abuses in assessments and
     taxation, and in contracting debts by such municipal
     corporations.
Jt. Res. 18-S (Wis. 1923)(italics and internal quotation marks

omitted).9

     ¶62     Not only was the home rule amendment an outgrowth of

our decision in Mueller, but the attorney who represented the

City Clerk in that case, Daniel W. Hoan, was a primary drafter

of the home rule amendment.        See Daniel W. Hoan, Brief for

Wisconsin League of Municipalities as Amicus Curiae at 2 (No.

252) in Baxter, 195 Wis. 437.         Hoan, who served as mayor of


     8
         Jt. Res. 39-S (Wis. 1921); Jt. Res. 34 (Wis. 1923).
     9
       A subsequent change in the home rule amendment from "are
hereby empowered, to" to "may" is not pertinent to my analysis.


                                 11
                                                                          No.   2014AP400.rgb


Milwaukee from 1916-1940,10 filed an amicus brief on behalf of

the League of Municipalities in Baxter, in which he set forth a

detailed     account      of    his    intent        in    drafting       the    home     rule

amendment.      Id.       Hoan first explained in his amicus brief in

Baxter that he "drafted this Home Rule Amendment to overcome the

difficulties pointed out in [Mueller]" and that he presented the

amendment's wording and meaning to city attorneys around the

state and to legislative committee members and that during those

presentations       "no   other       interpretation         of    this    amendment       was

there offered except as outlined in this brief."                                Id. at 2-3.

He   then    explained     that       he    determined       that     striking      certain

language from Article XI, Section 3, pertaining to legislative

authority,     to    create     the        grant    of    authority       to    cities     and

villages, rather than adding a new section to the constitution,

would provide greater clarity as to the purpose and meaning of

the home rule amendment.               Id. at 8.            He stated that the home

rule amendment makes "certain that cities and villages shall

have    a   grant   of    power   to       determine       their    local       affairs    and
government."        Id. at 12-13.           To ensure that cities and villages

received     this    authority        under    the        home    rule    amendment,      the

amendment      contains        only     two        limitations      on     local        power:

"'subject only to this constitution and to such enactments of

the legislature of state-wide concern as shall with uniformity

affect every city or every village.'"                       Id. at 13 (quoting Wis.

Const. art. XI, § 3(1)).              Hoan explains:

       10
       Edward S. Kerstein, Milwaukee's All-American                                     Mayor:
Portrait of Daniel Webster Hoan 82, 178 (1966).


                                              12
                                                                   No.   2014AP400.rgb

      We ask the court to particularly take note of the
      words "only" and "uniformity."      We ask the court
      likewise to note carefully the wording of this clause
      as leaving no doubt that all parts of it are
      descriptive of the type of legislative act that the
      local power is subject to.       We submit that this
      wording is not ambiguous as other constitutional Home
      Rule amendments may be.    It does not say——subject to
      state laws, subject to state laws of state-wide
      concern, or subject to laws uniformly affecting
      cities, but it does say——subject only to such state
      laws as are therein defined, and these laws must meet
      two tests: First——do they involve a subject of state-
      wide concern, and second——do they with uniformity
      affect every city or village?
Id. at      13-14 (emphasis added)        (italics in original).                  There

could not be a clearer confirmation of the original meaning of

the home rule amendment than this.                The person who drafted the

home rule amendment specifically clarified that a legislative

enactment must both involve a matter of statewide concern and

with uniformity affect every city or every village.

      ¶63      In addition to the framer's interpretation of the home

rule amendment, between 1919 and 1924, newspapers from across

the state published content addressing the need for a home rule

amendment and providing voters with information regarding the
meaning of home rule amendment.               For example, in 1919, Hoan, who

was then Mayor of Milwaukee, wrote a letter to the editor in

support of the home rule amendment, which had recently failed to

pass the Senate by a single vote.               Daniel W. Hoan, Letter to the

Editor, Voice of the People, The Capital Times, Apr. 22, 1919,

at 4.    Mayor Hoan's letter strongly advocated for the passage of

the     home    rule   amendment    to        address    the   problem       of    the
legislature      having   to   review    numerous       proposed    bills    dealing

with purely local matters.          Id.        He stated: "At this time when
                                         13
                                                                No.     2014AP400.rgb


everyone     in    the     legislature    is   crying    out   about      the    long

session, why should we continue a system which piles up hundreds

of bills affecting cities to be considered by that body."                       Id.

      ¶64    The sentiment that a home rule amendment was necessary

to not only free the legislature from addressing purely local

matters, but also to grant authority to cities and villages to

adopt amendments to their own charters to deal with such matters

was   repeated      in     several   newspaper     articles.       In    1921,    The

Capital Times reported:

      While the amendment was broad in its application
      covering other cities of the state, the principle
      purpose of passing it was to aid Milwaukee.     It is
      estimated that over 25 percent of the measures before
      the Wisconsin legislature directly affecting Milwaukee
      and a home rule [] could be passed upon locally if
      home rule were in force.
Home Rule Amendment Is Nullified, The Capital Times, Jan. 27,

1921, at 1.        Similarly, the Oshkosh Daily Northwestern reported

that according to Mayor Hoan, "City legislation of only local

interest takes up at least a month of the legislature's time

each session."           Income Tax Bills Posted for Hearing, Oshkosh
Daily Northwestern, Mar. 2, 1921, at 11.                   The Appleton Post-

Crescent stated "one-third of state legislation has to do with

matters pertaining to municipalities and state legislators have

not the training and experience to deal efficiently with mere

local problems."           Home Rule Bill is Indorsed By City Officers,

Appleton Post-Crescent, June 8, 1922, at 1.                    Newspapers cited

examples     of    these    problematic    bills    concerning     purely       local

matters, which under the home rule amendment could be dealt with
locally     by    cities    and   villages.      For    example,   one     recently
                                         14
                                                                           No.     2014AP400.rgb


enacted       bill   allowed       a    city    office       to    install     a   telephone.

Joseph P. Harris, Questions and Answers, The Capital Times, Jan.

19, 1924, at 9.           Another recently introduced bill called for the

insertion of a comma in one City's charter, which would clarify

whether the mayor had the authority to veto a resolution.                                  Henry

Noll, Home Rule Law Big Step Ahead, Urges M'Gregor, Wisconsin

State Journal, July 20, 1924.

       ¶65      Along     with     the    need       for    the    home   rule     amendment,

newspaper       content        also     confirms       the        preservation       of    state

legislative          power       over     cities        and       villages,        which     was

communicated         to   voters        prior     to   the     1924     general      election.

Mayor Hoan explained: "The state will not lose its power over

cities . . . for it can prohibit them from doing anything by

making state wide application to all measures passed.                                     Cities

will be given a free hand in local affairs, without becoming

free from state legislation . . . ."                           Income Tax Bills Posted

for Hearing, Oshkosh Daily Northwestern, Mar. 2, 1921, at 11

(emphasis added).              In a question and answer column that appeared
in    The    Capital      Times,       political       science      Professor       Joseph    P.

Harris explained that "Home rule secures to cities and villages

a    larger    share      in    the     control      over     matters     of   purely      local

concern."       Joseph P. Harris, Questions and Answers, The Capital

Times, Jan. 19, 1924, at 9.                       The Secretary of the Wisconsin

League of Municipalities, Ford H. MacGregor, stated "'The home

rule amendment is intended to give cities and villages greater

powers of local self-government. . . . The amendment will give
municipalities of the state power to draft and adopt amendments

                                                15
                                                                          No.     2014AP400.rgb


to their own charters without having to go to the legislature to

get the general charters law amended.'"                            Cities are Urged to

Favor 'Home Rule,' Manitowoc Herald-Times, July 3, 1924, at 3.

In   a      Wisconsin       State      Journal         article,           MacGreger        also

corroborates       the      priority        accorded          to     state        legislative

enactments of general applicability to all cities and villages

under the home rule amendment:

      While this home rule amendment gives cities and
      villages greater power of local self-government, it in
      no way ties the hands of the state legislature in
      matters of state-wide concern . . . . It does prevent
      the legislature from interfering in purely local
      affairs but it does not prevent the state from passing
      any law in which the state as a whole is interested.
      Any general law relative to public health, education,
      the regulation of public utilities, the police power,
      fire protection, or any other subject of state-wide
      interest may be enacted by the legislature anytime
      provided it applies to all cities or villages.      Of
      course, any home rule charter conflicting with any of
      these general laws would be void.
Henry    Noll,     Home     Rule    Law     Big   Step    Ahead,          Urges     M'Gregor,

Wisconsin State Journal, July 20, 1924. (emphasis added).

      ¶66     Newspaper      articles       leading      up    to     the    1924      general

election      reveal     that    proponents       of     the       home   rule      amendment
communicated       two    main     points    about     the     amendment          to   voters.

First, the home rule amendment was necessary to grant authority

to   cities    and     villages      to     address     matters        of    purely       local

concern,     which     in   turn    would     free     the     legislature          from    the

burden   of    considering         large    volumes      of        proposed       legislation

relating      to   purely    local     concerns.          Second,           the    home    rule

amendment would expand authority to cities and villages, but
would not limit legislative authority over statewide matters as

                                             16
                                                                           No.    2014AP400.rgb


long as the legislation relating to a statewide matter was with

uniformity applied to all cities and villages.                               The original

meaning of the home rule amendment communicated to the voters

who     ratified    the     amendment,         along        with    the     interpretation

detailed by the drafter of the amendment, reinforce the plain

meaning      analysis           above     and      collectively             support        the

interpretation      that        a    legislative    enactment         prevails          over    a

conflicting city charter ordinance under the home rule amendment

when the enactment both concerns a matter of statewide concern

and affects every city or village with uniformity.                                Here, Wis.

Stat. § 66.0502 meets both requirements.

                      II.       WISCONSIN STAT. § 66.0502

       ¶67   As    the     majority           opinion       describes,           Wis.    Stat.

§ 66.0502    "prohibits             cities,    villages,       towns,       counties,      and

school districts from requiring their employees to reside within

their     jurisdictional            limits."       Majority         op.,     ¶3     (footnote

omitted).          Section          66.0502    conflicts           with     the     City       of

Milwaukee's residency requirement found in section 5-02 of the
City's charter.           Id.        Under the original meaning of the home

rule     amendment,        to        prevail     over        the     City's         residency

requirement, § 66.0502 must both (1) address a statewide concern

and (2) with uniformity affect every city or every village.

                         A. Statewide concern requirement

       ¶68   In    determining           whether        a     legislative           enactment

pertains to a local or a statewide concern,

       our court has outlined three areas of legislative
       enactment: (1) Those that are "exclusively of state-
       wide   concern;" (2)  those  that   "may  be  fairly
       classified as entirely of local character;" and (3)
                                17
                                                                   No.    2014AP400.rgb

       those which "it          is not         possible to fit . . .
       exclusively into         one or         the other of these two
       categories."
State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 526-27, 253

N.W.2d    505   (1977)       (footnotes       omitted).      As    for    this       third

category, referred to as a "mixed bag," courts have applied "the

test     of   paramountcy"       to     determine        whether    "a        challenged

legislative     enactment,      state     or    local,    possessing      aspects       of

'state-wide concern' and of 'local affairs,' is primarily or

paramountly a matter of 'local affairs and government' under the

home rule amendment or of 'state-wide concern . . . .'"                             Id. at

527-28.

       ¶69    However,    applying      the    original    meaning       of    the    home

rule     amendment       eliminates       any     need     for     the        "test     of

paramountcy"——a judicial creation conspicuously absent from the

text of the constitution.             This is because the purpose of the

home rule amendment, as discussed in Part I, was to empower

cities and villages to address matters of purely local concern

rather than require legislative action to resolve these matters.

When a legislative enactment involves any degree of statewide

concern, it will not violate the home rule amendment so long as

the    enactment      with    uniformity       affects    every    city        or    every

village.

       ¶70    Here,    Wis.     Stat.     § 66.0502       involves       matters        of

statewide concern; therefore it does not address concerns that

are    purely      local.         First,        § 66.0502(1)       provides:          "The

legislature finds that public employee residency requirements
are a matter of statewide concern."                   This legislative public

policy statement must be given great weight even though the
                             18
                                                                          No.   2014AP400.rgb


court must make the ultimate determination.                           Madison Teachers,

358   Wis.    2d       1,    ¶¶125,   128;      Van    Gilder,    222    Wis.    at    73-74.

Second, the legislature's decision to apply § 66.0502 to all

"local     governmental           units"   meaning      "any     city,    village,     town,

county,      or    school         district"     indicates      that      the    legislative

enactment involves issues of statewide concern.11                          See Wis. Stat.

§ 66.0502(2)-(3).                  Finally,      the    prohibition        on     residency

requirements under § 66.0502 addresses issues of public welfare,

the free movement of citizens, and the recruitment of workers——

all matters of statewide concern.                       In sum, because Wis. Stat.

§ 66.0502 addresses issues of statewide concern, it cannot be

categorized as a legislative enactment addressing a purely local

concern.

                                  B. Uniformity requirement

      ¶71     As referenced above, Wis. Stat. § 66.0502 applies to

any   "city,       village,        town,    county,      or    school     district,"     and

therefore,        on        its   face,    is    uniform.         Majority      op.,    ¶36.

Accordingly, I agree with the majority that § 66.0502 satisfies
the uniformity requirement of the home rule amendment.                                   See

majority op., ¶¶34-39.

                                      III. CONCLUSION



      11
       This idea was contemplated by the drafter of the home
rule amendment, who stated: "For example, if the legislature
passes a bill uniformly affecting all cities . . . the fact that
the legislature acted creates an assumption in legal minds that
the subject matter must be of state-wide concern. See Daniel W.
Hoan, Brief for the Wisconsin League of Municipalities as Amicus
Curiae at 19 (No. 252) in Baxter, 195 Wis. 437.


                                                19
                                                            No.   2014AP400.rgb


    ¶72    Under the home rule amendment, a legislative enactment

prevails   over    a    conflicting   city   charter    ordinance    when   the

enactment both concerns a matter of statewide concern and with

uniformity affects every city or village.              See Wis. Const. art.

XI, § 3(1).       This interpretation is based on the plain meaning

of the home rule amendment as reflected in the history of the

amendment and the constitutional debates and practices at the

time the amendment was adopted.              Here, Wis. Stat.        § 66.0502

meets   both      the     statewide     concern    and     the      uniformity

requirements.

    ¶73    Although I disagree with the majority's interpretation

of the home rule amendment, I agree that Wis. Stat. § 66.0502

precludes the City of Milwaukee from enforcing its residency

requirement.      Accordingly, I respectfully concur.




                                      20
                                                                  No. 2014AP400.awb




    ¶74     ANN WALSH BRADLEY, J. (concurring and dissenting).                       I

agree   with    the   majority    that    the    Police    Association        is   not

entitled to relief or damages.               Majority op., ¶8.         Likewise, I

agree that the purpose of the Home Rule Amendment is to grant

power and self-governance to cities and villages, providing them

with greater autonomy over local affairs.               Majority op., ¶2.

    ¶75     I   write   separately,       however,      because     the      majority

turns   that     purpose    on     its       head.        Instead      of     freeing

municipalities from interference by the legislature when dealing

with local affairs, the majority limits the power and restrains

the ability of municipalities to self-govern.

    ¶76     In reaching its conclusion that Wis. Stat. § 66.0502

precludes the city of Milwaukee from enforcing its residency

requirement,     the    majority        grants    extensive       power      to    the

legislature to interfere with matters that relate exclusively to

the local affairs of Wisconsin's cities and villages.                        It does

this by contravening the well-recognized purpose of the Home
Rule Amendment, ignoring the evidentiary record, and creating a

heretofore unknown facial uniformity rule.

    ¶77     Contrary to the majority, I conclude that the city of

Milwaukee may enforce its residency requirement under the powers

granted to local municipalities by the Wisconsin Constitution's

Home Rule Amendment.         I would therefore affirm the court of

appeals'    determination        that     Wis.    Const.     art.      XI,    § 3(1)

precludes   application     of    Wis.    Stat.      § 66.0502    to   Milwaukee’s
Charter Ordinance 5-02.      Accordingly, I respectfully dissent.

                                         1
                                                                          No. 2014AP400.awb


                                            I.

       ¶78      At issue here is whether the Wisconsin Constitution's

Home       Rule     Amendment     grants    Milwaukee,          through     its    charter

ordinance,          the power to enforce its local residency requirement

despite the legislative enactment of Wis. Stat. § 66.0502.

       ¶79      Municipalities may exercise constitutional home rule

authority by charter ordinance.1                  Wis. Stat. § 66.0101.           The home

rule       constitutional        amendment,       Wis.   Const.     art.    XI    §     3(1),

provides that "[c]ities and villages organized pursuant to state

law may determine their local affairs and government, subject

only       to     this    constitution     and     to    such      enactments      of     the

legislature of statewide concern as with uniformity shall affect

every city or every village."

       ¶80      For over 75 years, pursuant to a charter ordinance,

Milwaukee has required its employees to live within the city

where they work.2           Under its constitutional home rule authority,

Section         5-02(1)     of    Milwaukee's       City    Charter        requires       all

employees         "to    establish   and   maintain        their    actual       bona    fide
residence within the boundaries of the city."                        Milwaukee asserts

that its Charter Ordinance 5-02 has a number of local economic

and societal benefits, such as protecting its tax base, housing

values and local commerce, as well as improved safety through

community policing and rapid response times in emergencies.
       1
       Wis. Stat. 66.0101 includes a detailed, time-consuming
procedure for municipalities to enact a charter ordinance that
overrides a state law as it relates to the local affairs and
government of the city or village.
       2
           See Milwaukee Charter 5-02.

                                              2
                                                                                No. 2014AP400.awb


       ¶81    However,        in   2013     the       Wisconsin       legislature        enacted

Wis.     Stat.        § 66.0502,     which        abolished         all     local       residency

requirements          in    the    State     of       Wisconsin.           The    new    statute

provides      that      "no    local   government            unit     may    require,       as   a

condition        of     employment,        that       any    employee        or     prospective

employee reside within any jurisdictional unit."                                    Wis. Stat.

§ 66.0502(3)(a).

       ¶82    The       legislative         history         of   Wis.       Stat.       § 66.0502

demonstrates that the statute's aim was to eliminate Milwaukee's

residency      requirement.            As    the       court     of    appeals       explained,

"[t]he    facts        in    the   record,        exemplified         by    the     Legislative

Fiscal Bureau paper, make clear that the goal of Wis. Stat.

§ 66.0502 was to target the City of Milwaukee."                                  Black v. City

of Milwaukee, 2015 WI App 60, ¶21, 364 Wis. 2d 626, 869 N.W.2d

522.

       ¶83    Wisconsin municipalities have two distinct sources of

home         rule           authority——constitutional                     and        statutory.

Constitutional home rule is expansive and statutory home rule is
limited.       Contrary to "the direct and expansive delegation of

power to municipalities under Wis. Const. art. XI, section 3,"

statutory home rule authority is limited.                             State ex rel. Teunas

v. Kenosha County, 142 Wis. 2d 498, 504, 418 N.W.2d 833 (1988).

       ¶84    Only cities and villages are granted constitutional

home rule authority.               Other units of local government, such as

counties, towns and school districts, have administrative home

rule authority pursuant to statute.                              See, e.g., Wis. Stat.



                                                  3
                                                                      No. 2014AP400.awb


§ 59.03.3     A county’s statutory home rule authority is limited.

Teunas, 142 Wis. 2d at 504 ("a county board has only such powers

as are expressly conferred upon it or necessarily implied from

the powers expressly given or from the nature of the grant of

power.").

     ¶85    Milwaukee's         residency        requirement    was   enacted     under

"the direct and expansive delegation of power to municipalities

under Wis. Const. art. XI, section 3."                     See id.       However, in

reaching its conclusion that Wis. Stat. § 66.0502 precludes the

city of Milwaukee from enforcing its residency requirement, the

majority restricts the constitutional mandate and instead grants

expansive power to the legislature to govern matters that relate

exclusively      to     the   local    affairs      of   Wisconsin's     cities    and

villages.

                                            II.

     ¶86    The majority purports to follow the two-step analysis

of the Home Rule Amendment set forth in Madison Teachers, Inc.

v. Walker, 2014 WI 99, ¶101, 358 Wis. 2d 1, 851 N.W.2d 337.                          In
applying    the       first    step,   it    explains     that    this    court    has

outlined "three areas of legislative enactment:                       those that are

(1) exclusively a statewide concern; (2) exclusively a local

concern;    or    (3)    a    'mixed   bag.'"        Majority    op.,    ¶29   (citing

Madison Teachers, 358 Wis. 2d 1, ¶96).

     3
       Wis. Stat. § 59.03(1) provides that "[e]very county may
exercise any organizational or administrative power, subject
only to the constitution and to any enactment of the legislature
which is of statewide concern and which uniformly affects every
county."


                                             4
                                                                           No. 2014AP400.awb


    ¶87     Although        the       majority         summarizes          the       parties'

positions and identifies their interests, it reaches its initial

conclusion without any analysis whatsoever of the law or the

facts of record.           Initially, the majority concludes that Wis.

Stat. § 66.0502 is a "mixed bag."                       It acknowledges that this

court should then apply the test of paramountcy to determine

whether     the       legislative          enactment           is       "primarily"           or

"paramountly" a matter of local affairs or a matter of statewide

concern."    Majority op., ¶32.

    ¶88     Remarkably, the majority declines to apply the test of

paramountcy       and      again,      without         any     analysis          whatsoever,

ultimately arrives at a contrary conclusion.                               It "assume[s],

without deciding, that Wis. Stat. § 66.0502 is a matter of local

affairs."    Majority op., ¶32.

    ¶89     In    applying      the    second         step    of    the    analysis,         the

majority    contends        that      "[f]or      purposes         of     the    home      rule

amendment, an enactment is uniform when it is facially uniform."

Majority    op.,     ¶7.        Without      any       consideration            of   how     the
legislative       enactment        "with     uniformity         shall       affect,"         the

majority    summarily       concludes        that       Wis.       Stat.    § 66.0502         is

facially uniform because the text says that it applies to "any

city,     village,      town,       county       or     school       district."              Id.

Accordingly,      the   majority        concludes        that       "Milwaukee         may    no

longer enforce its residence requirement."                      Id.

                                           III.

    ¶90     The      majority's        conclusion            contravenes         the       well-
recognized purpose of the Home Rule Amendment, which is to grant

                                             5
                                                                     No. 2014AP400.awb


power      and    self-government       to   municipalities,    rather     than   the

legislature.

       ¶91       Adopted in 1924, "the home rule amendment was intended

to provide cities and villages with greater autonomy over local

affairs."         Madison Teachers, 358 Wis. 2d 1, ¶89; see also State

ex rel. Sleeman v. Baxter, 195 Wis. 437, 445, 219 N.W. 858

(1928) ("The recognized purpose of this amendment was to confer

upon       cities   and    villages     a    measure   of   self-government       not

theretofore possessed.            It is a grant of power to cities and

villages.").4

       ¶92       Significantly, this grant of local power was intended

to free municipalities from legislative interference.                       Sleeman,

195 Wis. at 447.           This court explained that "[i]n ascertaining

the meaning of the home-rule amendment we should also take into

account      the    fact   that   the    legislature    was    not   hostile    to   a

larger measure of local self-government by cities."                      Van Gilder

v. City of Madison, 222 Wis. 58, 71, 267 N.W. 25 (1936).

       4
       State ex rel. Sleeman v. Baxter, 195 Wis. 437, 445, 219
N.W. 858 (1928), sets forth the parameters of this grant of
power to cities and villages as follows:

       There is no express limitation upon the power of the
       legislature. Such limitations as may be found therein
       are limitations upon the exercise of the power granted
       and not limitations upon the power of the legislature.
       Power is granted to cities and villages 'to determine
       their local affairs and government subject only to
       this constitution and to such enactments of the
       legislature of state-wide concerns as shall with
       uniformity affect every city or every village.'    The
       phrase 'subject only to this constitution,' etc., is a
       phrase of limitation, but it is a limitation upon the
       power granted to cities and villages.


                                             6
                                                                           No. 2014AP400.awb


       ¶93   In    order    to     effect      the        purpose   of     the     Home    Rule

Amendment, the "constitutional expression of the will of the

people is to be liberally construed."                       State ex rel. Michalek v.

LeGrand,     77    Wis.    2d    520,    526,       253    N.W.2d    505     (1977).        The

majority pays only lip-service to the purpose of the Home Rule

Amendment.         It then focuses exclusively on the power of the

legislature,       rather        than    the        expansive       powers       granted    to

municipalities under the Home Rule Amendment.                               Majority op.,

¶24.    As set forth below, the majority's analysis of the Home

Rule Amendment threatens to give license to the legislature to

invade any city it chooses with legislation targeted at matters

of purely local concern.

                                              IV.

       ¶94   Not    only        does    the    majority         contravene        the     well-

recognized purpose of the Home Rule Amendment, it ignores the

facts of record regarding statewide and local interest.                                 Without

consideration       of     the    evidence         in     the   record,      the    majority

"assume[s], without deciding, that Wis. Stat.                            § 66.0502 is a
matter of local affairs."               Majority op., ¶32.

       ¶95   In its discussion of the purported statewide interest

behind Wis. Stat. § 66.0502, the majority gives great deference

to     the    statute's          legislative            policy      statement           without

acknowledging the complete dearth of evidence in support of a

statewide interest.              The primary statewide interest identified

by the majority is the fact that the "Legislature specially

included a public policy statement in Wis. Stat. § 66.0502."
Majority op., ¶30.              This statutory policy simply states:                       "The

                                               7
                                                                    No. 2014AP400.awb


legislature finds that public employee residency requirements

are a matter of statewide concern."              Wis. Stat. § 66.0502(1).

       ¶96    Rather than address the fact that there is no evidence

in    the    record   supporting     a     statewide   interest,     the    majority

repeatedly asserts that legislative enactments are "entitled to

great weight."        Majority op., ¶30.          According to the majority,

"it    is    the   province     of   the    legislature,    not    the    court,   to

determine public policy because as the voice of the people it is

the best judge of what is necessary to meet the needs of the

public."      Majority op., ¶30 (citing Flynn v. Dep't of Admin, 216

Wis. 2d 521, ¶24, 576 N.W.2d 245 (1988) (internal quotations

omitted).

       ¶97    Although    the    legislative      declaration       is    due   great

weight deference, it is certainly not dispositive.                       Van Gilder,

222 Wis. at 73.          As the Van Gilder court explained, this court

is required to make the ultimate determination when there is a

controversy        between    municipalities      and    the      state    regarding

whether a matter is of local or state-wide concern:

       The home–rule amendment does not lodge the power to
       determine what is a 'local affair' or what is a
       'matter of state–wide concern' either with the
       municipality or with the legislature or attempt to
       define those terms.    In the event of a controversy
       between municipalities and the state therefore the
       court is required to make the ultimate determination.

Id.
       ¶98    It is the unique role of the courts to determine the

constitutionality of statutory provisions.                  Marbury v. Madison,
5 U.S. 137, 177 (1803).              No legislative declaration can usurp

this power or release us of this duty.                     Consequently, as the
                                            8
                                                                            No. 2014AP400.awb


court     of    appeals     explained,            "the      argument     that       residency

requirements are a matter of statewide concern simply because

the     legislature       said    so    is     not       persuasive      because       it     is

unsubstantiated."          Black, 364 Wis. 2d 626, ¶21.

      ¶99      In   determining         whether           legislation         addresses        a

statewide      interest,     it    is    necessary            to   examine        whether    the

statutory       policy     expressed         in      Wis.      Stat.    § 66.0502(1)          is

supported      by   the    evidence     in     the       record.       As    the     court    of

appeals     repeatedly      observed,         there      is    scant    evidence       in    the

record supporting a legitimate statewide interest:

      The effect on the state . . . is never substantiated,
      and   only   given  lip-service  with   broad  policy
      arguments.     This complete dearth of evidence to
      support the legislature’s contention does not suffice
      under the law.

                                             . . .

      The problem with the Police Association's argument,
      however, is that no evidence in the record allows us
      to conclude that § 66.0502 was drafted with the
      public's health, safety or welfare in mind. . . .
      Instead, the sole reason we can delineate for the
      statute's existence is the gutting of Milwaukee's
      long-standing residency requirement.

                                             . . .

      More importantly, there is no evidence in this record
      supporting this assertion [that Wis. Stat. § 66.0502
      protects employees against 'unfairly restrictive'
      conditions].
Id., ¶¶21, 22, 24.

      ¶100 Not      only    does       the    majority         ignore       the    dearth     of

evidence supporting a statewide interest, it fails to address
the overwhelming evidence in support of the city of Milwaukee's

local interest in enforcing its residency requirements.                                      The
                              9
                                                                                  No. 2014AP400.awb


majority's "assume without deciding" approach allows it to avoid

discussion          of    the     dire     consequences             this     legislation         will

inflict on the city of Milwaukee.

       ¶101 Detroit's                  experience           after         similar         residency

requirements             were     abolished           in        Michigan     foreshadows          the

impending consequences of the majority's decision in this case.

As     the    unanimous           court        of   appeals         explained,       "abolishing

residency requirements could result in Milwaukee's suffering the

same       economic       decline        recently        experienced         by    the    city    of

Detroit."          Id., ¶7.        After Detroit's residency requirement was

eliminated,          fifty-three          percent          of    the    police      force       moved

outside the city, contributing to a population decline that had

significant economic consequences.5

       ¶102 In this case, the Legislative Fiscal Bureau prepared a

report detailing the expected impact of Wis. Stat. § 66.0502 on

the city of Milwaukee, which employs over 7000 people, with

approximately            half     of    those       employed       as     police    officers      or

firefighters.             Milwaukee Mayor Tom Barret's affidavit attests
that       $366.8       million    of     Milwaukee’s            budget    is     spent    on   city

employees' salaries and wages.                       Mayor Barret's affidavit further

explains that nearly half of Milwaukee’s total operating costs

go towards salaries for police officers and firefighters.

       ¶103 The projected outflow of Milwaukee's city employees

will       cause    a    reduction        in    the      tax     base   of   $622     million      in

       5
       Local   Government  Employee  Residency  Requirements,
Legislative Fiscal Bureau, Joint Committee on Finance, Paper
#554 at 6 (May 9, 2013).


                                                    10
                                                                      No. 2014AP400.awb


residential      land   values     and    $27    million   in    retail      property

values.    As Judge Kessler explained in her concurrence to the

court of appeals decision, "[a] loss of $649 million from the

Milwaukee tax base will obviously directly impact Milwaukee's

ability to pay for necessary infrastructure, services and wages.

There is no evidence in the record that any other municipality

would likely      be similarly affected."              Id.,     ¶42    (Kessler, J.

concurring).

      ¶104 Wis. Stat. § 66.0502 also interferes with Milwaukee's

ability   to   promptly        respond    to    emergencies.          Allowing    city

employees to live outside the city may result in slower service

times during emergencies.6             Milwaukee police are expected to be

responsible for any police matter that comes to their attention

at any time.       See Milwaukee Police Department Rule 4 § 025.00

(Rev. July 2008).             A police officer's ability to respond to

local emergencies at any time is reduced when the officer no

longer lives in the community in which he or she works.

      ¶105 Additionally,         the     city   of   Milwaukee    Police      Chief's
affidavit explains that having police officers live in the city

is   "critical    to    the    police     force's    legitimacy       and   perceived

integrity."      Black, 364 Wis. 2d 626, ¶29.              According to Police



      6
       The court of appeals aptly noted that "the fifteen-mile
rule set by § 66.0502(4)(b,c), which allows local governments to
impose requirements that employees live within fifteen miles of
the city or county that employs them, implicitly recognizes that
citizens are safer and better served when emergency responders
live nearby." Black v. City of Milwaukee, 2015 WI App 60, ¶28,
364 Wis. 2d 626, 869 N.W.2d 522.


                                          11
                                                                       No. 2014AP400.awb


Chief Flynn, community policing increases the effectiveness of

the police force and the safety of the city:

       We have an ongoing struggle, as every urban police
       department does, to maintain our credibility in the
       community we police.  The residency requirement helps
       to prevent the perception . . . that officers are
       outsiders, without any empathy for those they are
       policing,     because  [they]    invade     residents'
       neighborhoods     and later    return    to    distant
       retreats . . .

                                      . . .

       Police officers who live in the community they police
       have an increased motivation to maintain a safe
       environment for themselves, their families, their co-
       officers, and the community as a whole.
Id.     Commenters agree with this view, explaining that cities

with   residency    requirements      have       experienced      the     benefit      of

improved    neighborhoods      and       lower      crime.        See,     e.g.,       Joe

Mulligan, Not in Your Backyard: Ohio's Prohibition on Residency

Requirements    for    Police      Officers,            Firefighters,      and     Other

Municipal Employees, 37 U. Dayton L. Rev. 351, 369 (2012).

       ¶106 Given   the    overwhelming       evidence       of   the    effect       that

Wis.   Stat.   § 66.0502    will     have     on    the    city   of    Milwaukee,      I

conclude    that     the    elimination            of     residency      requirements

addresses a matter primarily of local concern.

                                         V.

       ¶107 The majority further avoids the damaging facts in the

record by creating a heretofore unknown facial uniformity rule

that   essentially    repeals      the    Home      Rule     Amendment.          As    the

Madison Teachers' court explained, "home rule challenges are, by




                                         12
                                                                   No. 2014AP400.awb


necessity,      fact-specific      inquiries. . . ."            358    Wis.    2d   1,

¶113.

    ¶108 Avoiding discussion of the facts of this case, the

majority contends that "[f]or the purposes of the home rule

amendment, an enactment is uniform when it is facially uniform."

Majority op., ¶7.        After making this pronouncement, the majority

summarily     concludes     that    because    the       text    of    Wis.    Stat.

§ 66.0502 applies to "any city, village, town, county, or school

district," it is facially uniform.            Id.

    ¶109 This ipse dixit approach of the majority threatens the

independence of the court.7            It appears to surrender to the

legislature     our    constitutional       role    of   renewing      legislative

enactments.      Instead of engaging in a constitutional analysis of

whether   the    statute    affects    with    uniformity,        in    essence     it

concludes "well . . . the text says it does."

    ¶110 Relying on Thompson v. Kenosha County, 64 Wis. 2d 673,

676, 221 N.W.2d 845 (1974), the majority asserts that "facial

uniformity is sufficient to satisfy the home rule amendment's
uniformity requirement."           Majority op., ¶36.           However, Thompson

is distinguishable because it examined legislation that gave,

rather than eliminated, municipalities' power to govern their

local affairs.        64 Wis. 2d at 687.

    ¶111 As      the     Thompson    court    explained,        conferring      equal

power     satisfies        the       uniformity          requirement          because

    7
       See, e.g., Marmolejo-Campos v. Holder, 558 F.3d 903, 930
(9th Cir. 2009) ("This purported explanation is a non-
explanation——an ipse dixit or 'because I said so' edict.").


                                       13
                                                                No. 2014AP400.awb


municipalities retain the right to enact the ordinances they

choose:

       Each county in the state has an equal right to decide
       to adopt a countywide assessor system. The residents
       of all cites, villages, and towns have an equal right
       to participate in making that decision through their
       right to vote for and petition county board members.
       Where a statute confers equal legal powers, that would
       seem sufficient to satisfy the uniformity requirement.
       Thus, for example, two cities may have identical
       powers, yet the respective city councils may enact
       entirely different sets of ordinances.
Id.    Thompson thus concluded that "[t]he state could hardly be

held   to   have     violated     the   uniformity    requirement       in   such   a

situation."     Id.

       ¶112 Granting municipalities power is distinguishable from

the elimination of Milwaukee's residency requirement under Wis.

Stat § 66.0502.        When the legislature grants every municipality

power over an area of governance, each municipality is uniformly

affected because it retains the discretionary authority to act

under that power.

       ¶113 In contrast, the elimination of residency requirements
restricts, rather than expands a grant of local power.                        Here,

municipalities without an employee residency requirement will be

unaffected by Wis. Stat. § 66.0502, but it will have an outsize

effect    on   the    city   of   Milwaukee   which    did   have   a    residency

requirement.

       ¶114 Admittedly,       Van   Gilder    presents   a   more   challenging

precedent. It sends mixed messages and ultimately lands on a

constitutional interpretation that is at odds with the text of
the constitutional Home Rule Amendment.

                                         14
                                                                        No. 2014AP400.awb


      ¶115 Initially         Van Gilder         signals an interpretation that

honors   the    language         of    the    constitutional         amendment.        "The

power[] of municipalities . . . to enact an organic law dealing

with local affairs and government is subject to such acts of the

legislature relating thereto as are of state-wide concern and

affect with uniformity all cities."                   Van Gilder, 222 Wis. at 73.

      ¶116 Later, however, Van Gilder lands on an interpretation

that is at odds with the text of the Home Rule Amendment:                              "when

the legislature deals with local affairs as distinguished from

matters which are primarily of state-wide concern, it can only

do so effectually by an act which affects with uniformity every

city."   Id. at 80-81.

      ¶117 The        latter           misguided         interpretation           of     the

constitutional        Home        Rule       Amendment     has       been   adopted       by

subsequent courts, including recently by this court in Madison

Teachers and by the majority today.

      ¶118 In Madison Teachers, this court interpreted the Home

Rule Amendment to mean that legislative enactments will trump
local    laws    if   they        either      address     a    statewide     matter      or

uniformly affect every municipality.                     358 Wis. 2d 1, ¶101.            If

the   matter    is    primarily          a    local    concern,       Madison     Teachers

instructs   that      the    court       must      determine     whether    the    statute

uniformly   affects         every      municipality.           Id.     If   the    statute

satisfies the uniformity requirement, it does not violate the

Home Rule Amendment.             Id.    I dissented in Madison Teachers.

      ¶119 Contrary         to    the    majority's       interpretation,         I    agree
with the amicus briefs of the League of Wisconsin Municipalities

                                              15
                                                                      No. 2014AP400.awb


and the Wisconsin Institute for Law and Liberty, as well as the

brief      of   the   city    of    Milwaukee      and    the    unanimous      court    of

appeals'        observation    that        "the   test    articulated      in    Madison

Teachers is somewhat at odds with the plain language of the home

rule amendment."         Black, 364 Wis. 2d 626, ¶15.

       ¶120 The majority here continues this error.                        I interpret

the home rule constitutional amendment to mean what it says:

the legislature can enact a law superseding a municipality's

charter ordinance if the law is of "state wide concern as with

uniformity shall affect every city or every village."8

       ¶121 A legislative act must be of statewide concern and

then it must apply uniformly.                     The majority's interpretation

provides        otherwise.         It   states     that   a     legislative     act     can

supersede a city’s charter ordinance dealing with solely local

matters, with no statewide concern whatsoever, as long as it

does       so   uniformly.         Thus,    the    majority     simply     ignores      the

requisite        "statewide        concern"       language      of   the     Home     Rule

Amendment.
       ¶122 Additionally, the majority also ignores the lack of

uniform effect.        Although Wis. Stat. § 66.0502 does not name any

particular municipality, it will have an outsizes effect on the

city of Milwaukee for the reasons set forth above, including a

projected loss of $649 million from Milwaukee's tax base.



       8
       Because the textual analysis of the Home Rule Amendment is
set forth in ¶4 of Justice Rebecca Bradley's concurrence, I need
not repeat that analysis here.


                                             16
                                                                    No. 2014AP400.awb


      ¶123 The effect on other Wisconsin municipalities is simply

not addressed by the majority opinion.                  As the court of appeals

aptly states, "the notion that a statute purporting to gut the

tax   bases   and    compromise     the      neighborhood        integrity    of    all

municipalities would pass both houses of the legislature defies

logic."       Id.,   ¶33.        The    majority's        newly    created      facial

uniformity rule eliminates the requirement that courts review

the factual particulars of a home rule challenge.

      ¶124 Under the majority opinion, the only legislation that

would not uniformly affect all municipalities is one that would

overtly   single      out    a   particular        city     or     village.         The

legislature is now free to search for laws unique to Milwaukee,

Madison, Green Bay, or any other municipality of its choosing

and   enact   facially      neutral     legislation       abrogating     individual

local laws.

      ¶125 Ultimately,        the      majority     opinion        disregards       the

fundamental rule that "we interpret the home rule amendment with

an eye toward preserving the constitution."                       Id., ¶32 (citing
State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 639, 209

N.W. 860 (1926)).           As the court of appeals warned, a facial

uniformity     standard      "all      but     obliterate[s]       the   home      rule

amendment, which is not only illogical but also contrary to

law."   Id.

      ¶126 In sum, I conclude that the city of Milwaukee may

enforce its residency requirement under the powers granted to

local municipalities by the Wisconsin Constitution's Home Rule
Amendment.      I    would    therefore        affirm    the     court   of   appeals

                                          17
                                                          No. 2014AP400.awb


determination     that   Wis.   Const.    art.   XI,   § 3(1)    precludes

application of Wis. Stat. § 66.0502 to Milwaukee Ordinance 5-02.

Accordingly, I respectfully dissent.

    ¶127 I   am    authorized   to   state   that   Justice     SHIRLEY   S.

ABRAHAMSON, J. joins this concurrence/dissent.




                                     18
    No. 2014AP400.awb




1
