Do Act 12 Mandates Violate State Constitution?

For Milwaukee city and county residents, the recently enacted Act 12 is a mixed bag. On one side, it allowed both government units to head off a looming financial crisis by enabling the city to levy a sales tax and the county to increase its sales tax. It appears that the major cause of this crisis was the state’s refusal to adjust shared revenue to reflect inflation. The result was a shrinkage of about 25% in buying power over the past two decades.

Unfortunately, permission for more sales tax revenue was accompanied by a set of restrictions and mandates aimed specifically at the City of Milwaukee. These include:

• A prohibition on using taxes for “developing, operating, or maintaining a rail fixed guideway transportation system.”
• Eliminating the ability of the Fire and Police Commission to set policy.
• Requiring the city to hire a specific number of police officers, fire fighters and other emergency workers.

By riding roughshod over Milwaukee’s home rule rights, these mandates appear to guarantee a constitutional challenge.

In 1924, Wisconsin voters added a home rule provision  to the Wisconsin Constitution. The resulting Article XI, Section 3 of the Constitution states that:

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. The method of such determination shall be prescribed by the legislature.

This Constitutional amendment was followed up by legislation. Section 66.0101 of Wisconsin statutes states that:

A city or village may elect under this section that any law relating to the local affairs and government of the city or village other than those enactments of the legislature of statewide concern as shall with uniformity affect every city or every village shall not apply to the city or village, and when the election takes effect, the law ceases to be in effect in the city or village.

Unfortunately, neither the Wisconsin Legislature nor the state’s Supreme Court has been friendly to home rule, when it has been challenged. An article by Claire Silverman, Legal Counsel to the League of Wisconsin Municipalities, finds that:

Although Wisconsin cities and villages enjoy extensive home rule powers, those powers have been significantly eroded in recent years by court decisions interpreting the scope of municipal home rule powers and by the legislature which has, with increasing frequency, enacted legislation preempting municipalities from acting in a given area.

The first step in determining whether a municipality is validly exercising its home rule authority is to decide whether the matter is exclusively of statewide concern, exclusively a matter of a municipality’s local affairs, or partly a mixture of both. If the first case, the municipality is free to issue its own rules. If statewide interests predominate, the municipality cannot legislate without specific permission of the state.

In her article, Silverman reports that “with one notable exception, the court has classified legislative enactments falling into the mixed category as matters which are paramountly of statewide concern.” That exception (called Ekern v. Milwaukee) came in 1926, two years after passage of the home rule amendment in 1924. It allowed Milwaukee to set an allowable building height greater than that allowed by the state.

Silverman concludes her article by noting that “although Wisconsin municipalities are quite fortunate to have extensive home rule powers … municipal home rule has been shrinking. Municipalities have not fared well asserting constitutional home rule powers in the courts and statutory home rule powers have been whittled away both by court analysis which allows implied preemption and by the increasing frequency with which the legislature has been willing to strictly limit or preempt municipal regulation.”

Evidence for her conclusion is supported by the fate of Milwaukee’s residency rule which required police and other city employees to live within the city of Milwaukee. At the behest of the Milwaukee Police Association, the legislature passed a law (called Wis. Stat. § 66.0502), banning such public employee residency requirements.

The resulting lawsuit, called Milwaukee Police Ass’n v. City of Milwaukee, eventually reached the Wisconsin Supreme Court. On June 23, 2016, by a vote of 5 to 2, the justices ruled against Milwaukee and home rule.

Voting against Milwaukee were Michael Gableman, Rebecca Bradley, David Prosser, Patience Roggensack, and Annette Ziegler. The two voting for Milwaukee and its claim of home rule rights were Ann Walsh Bradley and Shirley Abrahamson.

Gableman wrote the majority opinion. Even though the target of the state law was clearly Milwaukee’s residency requirement, Gableman was clearly impressed that the state law banned residency requirements statewide.

He also uncritically accepted the legislature’s declaration that residency requirements “are a matter of statewide concern,” exploring the nature of that concern. (Those who have read Gableman’s reports on the 2020 election may notice a common thread: he is quite willing to assert conclusions while stopping short of analyzing the evidence for and against those conclusions.)

Both the likely costs and benefits of the residency requirement would seem to fall mainly on Milwaukee. Thus, the city would be in the best position to balance the two.

The cost to the city of the residency rule was the possibility that the requirement would make it harder to recruit and keep employees. By the same token, that could be a benefit to other governmental units, which make it easier to hire employees.

Two benefits to Milwaukee were listed. One was that keeping city employees in the city would help Milwaukee avoid the fate of cities like Detroit, which lost much of its middle class when city employees were allowed to move to its suburbs. The second benefit is having employees who share the experiences of the people they serve.

The dissent was written by Ann Walsh Bradley, joined by Shirley Abrahamson. It argued that:

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.

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.

Traditionally, conservatives have claimed to support the proposition that policy should be made at the lowest level, that closest to the people. It is ironic, therefore, that the five justices opposing home rule were all considered conservative while the two supporters were liberals.

If a challenge to Act 12’s mandates on Milwaukee reaches the state Supreme Court, supporters of Milwaukee home rule are likely to fare better than they did in the residency requirement case. Questions like how many police officers should be hired, whether a streetcar line should be extended, and who should make policy for police and other public safety personnel seem thoroughly in the middle of the questions that the authors of the home rule amendment felt should be left to cities and villages.

It is hard to credibly argue that these are “matters of statewide concern.” What is left is a deep-seated belief among the GOP-dominated Legislature that they are wiser than the people in Milwaukee.