Milwaukee Police Association, Michael V. Crivello, and Joseph A. Anderer, Plaintiffs-Appellants,
City of Milwaukee, Defendant-Appellee. v.
April 4, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 16-CV-1118 - J. P. Stadtmueller,
WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.
Milwaukee Police Association and officers Michael V. Crivello
and Joshua A. Anderer challenge a provision in
Milwaukee's corporate charter requiring all law
enforcement, fire, and emergency personnel to reside within
fifteen miles of city limits.
Milwaukee's corporate charter previously required all
city employees to live within city limits. But in 2013, the
Wisconsin legislature passed a statute prohibiting local
governments from imposing a residency requirement as a
condition of employment. Wis.Stat. § 66.0502(3)(a)
(2013). The statute, however, allows a local government to
"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." Wis.Stat. §
the statute passed, Milwaukee refused to follow it. Milwaukee
instead passed a resolution announcing its intent to enforce
its original residency requirement, citing the Wisconsin
Constitution's home-rule provision as authority. Wis.
Const, art. XI, § 3(1). The police association filed
suit, arguing that the City could not enforce the residency
requirement under the home-rule provision. The Wisconsin
Supreme Court agreed. Black v. City of Milwaukee,
882 N.W.2d 333, 342-50 (Wis. 2016). Four weeks later, the
City amended its corporate charter to require all law
enforcement, fire, and emergency personnel to reside within
fifteen miles of city limits-a requirement consistent with
the Wisconsin statute. The City gave affected employees six
months from the date that the amended charter became
effective to comply If compliance within that timeframe proved
impossible, affected employees could petition the Milwaukee
Board of Fire and Police Commissioners for an extension or a
temporary hardship exception.
plaintiffs then sued. They claimed that the Wisconsin statute
gives them a vested right to live outside of the City and
that Milwaukee's new residency requirement for law
enforcement, fire, and emergency personnel-adopted three
years after the Wisconsin statute became effective-violates
that right. Specifically, the plaintiffs brought a claim
under § 1983, alleging that the City violated the
Fourteenth Amendment's Due Process Clause, and a claim
under the Wisconsin Constitution's related provision,
Article I, § 1. The district court granted the
City's motion for judgment on the pleadings. This appeal
start, the plaintiffs conflate vested rights, which are
protected by procedural due process, with
substantive-due-process rights. They labelled their §
1983 claim "Violation of Substantive Due Process
(Property Right)" but claimed that the City deprived
them of property without due process of law. (R. 1 at 9.) If
the plaintiffs are arguing that the amended charter violates
their substantive-due-process rights, we can dispose of the
claim quickly. Substantive due process "provides
heightened protection against government interference with
certain fundamental rights and liberty interests."
Sung Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d
828, 832 (7th Cir. 2012) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720 (1997)). But the list of
fundamental rights and liberty interests is short.
Id. And municipal employees do not have a
fundamental right to be free from residency requirements.
See McCarthy v. Phila. Civil Serv. Comm'n, 424
U.S. 645, 645-46 (1976); Gusewelle v. City of Wood
River, 374 F.3d 569, 578 (7th Cir. 2004).
the other hand, the plaintiffs are arguing that the amended
charter violates procedural due process by retroac- tively
depriving them of a vested right, we have rejected a similar
argument before. Andre v. Bd. of Trs. of Vill. of
May-wood, 561 F.2d 48, 50-51 (7th Cir. 1977). In
Andre, the village passed an ordinance requiring
certain municipal employees to reside within village limits
as a condition of employment. The previous ordinance had
allowed employees to work for the village despite being
nonresidents. The employees claimed that the new ordinance
violated their vested right to live outside of the village, a
right that the original ordinance had allegedly created. We
rejected that argument for two reasons: first, the statute
did not create a vested right, and second, the ordinance
applied only prospectively.
same analysis applies here. Under Wisconsin law, "[a]
legislative enactment is presumed not to create
'contractual or vested rights but merely declares a
policy to be pursued until the legislature shall ordain
otherwise.'" Madison Teachers, Inc. v.
Walker, 851 N.W.2d 337, 379 (Wis. 2014) (quoting
Nat'l R.R. Passenger Corp. v. Atchison, Topeka &
Santa Fe Ry. Co., 470 U.S. 451, 466 (1985)). Unless a
statute's language clearly expresses the state's
intent to bind itself, a statute does not create a vested
right. Id. at 380.
the statute here abolishes residency requirements generally,
it does not create a vested right for law enforcement, fire,
and emergency personnel to live wherever they want. Quite the
opposite, it grants local governments the authority to adopt
a fifteen-mile radius requirement for those employees. We
could not plausibly say that the plaintiffs have a vested
right when the statute expressly allows the right to be taken
away in this manner. Lands' End, Inc. v. City of
Dodgeville, 881 N.W.2d 702, 716 (Wis. 2016) (defining a
"vested right" as one that is "so far
perfected that it cannot be taken away by statute"). No
employee covered by the new residency requirement could have
moved, and no new employee could have accepted a job, after
Wisconsin passed its statute but before Milwaukee amended its
corporate charter and reasonably expected to be free from a
residency requirement forever. At most, the plaintiffs had a
"right" to live where they wanted, contingent upon
the City not enacting a residency requirement. And that
interest does not amount to a vested right. Andre,
561 F.2d at 51.
as was the case in Andre, the residency requirement
does not apply retroactively. A statute applies retroactively
if it "attaches new legal consequences to events
completed before its enactment." Landgrafv. USI Film
Prods., 511 U.S. 244, 270 (1994). And here, the statute
does not. The amended corporate charter does not penalize
those employees who live outside of the fifteen-mile radius
"for having so resided in the past."
Andre, 561 F.2d at 51. Instead, the amended charter
requires only that all law enforcement, fire, and emergency
personnel live within fifteen miles of city limits as a
condition of continued employment. Simply put, the residency
requirement applies only prospectively and attaches no legal
consequences to any employee's residency before the
plaintiffs fare no better under the Wisconsin Constitution.
Under the Wisconsin Constitution, state conduct violates a
person's substantive-due-process rights "if the
conduct 'shocks the conscience ... or interferes with
rights implicit in the concept of ordered society.'"
Black, 882 N.W.2d at 352 (quoting State ex rel.
Greer v. Wiedenhoeft,845 N.W.2d 373, 386 (Wis. 2014)).
The Wisconsin Supreme Court rejected a similar
substantive-due-process claim in Black. In addition
to challenging the original residency requirement's state
constitutionality, the police association argued in
Black that the City's continued enforcement of
the original residency requirement violated its Fourteenth
Amendment substantive-due-process rights. The court ...