How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

homeruleToday the Wisconsin Supreme Court issued its opinion in the case of Black v. City of Milwaukee, 2016 WI 47, holding that a state law (Wis. Stat. 66.0502) that prohibits cities and other municipalities from imposing residency requirements on municipal employees does not contravene the Home Rule provision of the Wisconsin Constitution (Art. XI, sec. 3(1)).  The result of the ruling is that the City of Milwaukee may no longer require city employees to reside within the City limits, with the resultant loss of significant tax revenue for Milwaukee.

Reading the text of the Home Rule provision, one might reasonably question how the Wisconsin Supreme Court arrived at this conclusion.  The relevant text of Art. XI states:

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.

However, the Justices of the Wisconsin Supreme Court have very helpfully demonstrated how the clear language of the Wisconsin Constitution can be interpreted away in four easy steps.

Step 1: Give undue deference to the legislature’s declaration that it doesn’t want the Home Rule provision to apply.

When it passed the state law in question, the legislature in Madison included a policy statement to the effect that the legislature considered the issue of residency requirements to be a matter of statewide concern.  In the Black opinion, a majority of the Justices on the Wisconsin Supreme Court decided to give substantial deference to this simple declarative sentence.  Accordingly, they gave it “great weight” when determining whether Wis. Stat. sec. 66.0502 involved matters of statewide concern (see majority opinion, para. 30).

In contrast, the lower court opinion by the Court of Appeals actually demanded that the plaintiffs produce evidence to support the contention that municipal residency requirements are matters of statewide concern.  As the Court of Appeals pointed out, ”the argument that residency requirements are a matter of statewide concern simply because the legislature said so is not persuasive because it is unsubstantiated” (see Justice Ann Walsh Bradley, dissenting, para. 98).

In effect, the reasoning of the Wisconsin Supreme Court has outsourced the question of the scope of the Home Rule provision to the legislature.  While this sort of on/off switch in regards to the text of the State Constitution may prove very useful to the legislature, I am not aware of any other portion of the Constitution that the legislature can simply declare inoperative.  I predict that the power to turn off the Home Rule provision will prove popular with Republican legislators so long as they have a majority.  However, I also predict that at some point in the future Republicans will decide that it is wrong for the legislature to define the reach of the Wisconsin Constitution, and declare instead that the judiciary should judge the scope of the Constitution — a conversion that will most likely occur as soon as the Democrats re-take control of the legislature.

Step 2: Interpret the policy issue in the case in the broadest possible terms, so that one can plausibly argue that the issue in the case is one concerning everyone in Wisconsin.

Racine and Muskego have no interest in whether Milwaukee applies residency rules to its own city employees.  In fact, no one outside of the universe of people who work for the City of Milwaukee is impacted by the residency rule at all.  However, if the issue is not the substance of Milwaukee’s residency rules, but instead is defined as the question of whether any city anywhere should be permitted to adopt residency rules, then all of a sudden it becomes a matter of statewide-concern.

The purpose of the Home Rule provision is to prevent state-level government from dictating rules to local governments on matters of local concern.  The state has no interest in who works for Milwaukee or in whether those persons must live in Milwaukee.  Only by elevating the question to the macro level of whether residency rules should ever be permitted can one claim that the subject is a matter of concern in Madison or Stevens Point.  Indeed, at such a macro level, everything is a matter of statewide concern.

In other words, if the legislature can avoid the Home Rule provision by casting the issue in terms of whether a particular policy is good or bad, then the Home Rule provision will never apply to anything.  Either the legislature should seize complete legislative control over a subject and impose uniform state-wide rules (i.e., take over the process of hiring all municipal employees and impose uniform rules for every city) or it should leave each municipality free to adopt its own rules.  The “rule” in Home Rule means the sovereign power of local governments to govern themselves.

In this regard, Justice Rebecca Bradley is undoubtedly correct when she states “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” (para. 56).

A general rule of thumb to remember: if an interpretation of a constitutional text results in one provision of the constitution being left devoid of real meaning, then that interpretation is probably incorrect (see the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)).

Step 3: Ask Justice Rebecca Bradley to stop writing concurrences that actually discuss the text and the legislative history of the Wisconsin Constitution, as it only makes the majority’s determination to re-write the text more transparent, and it ultimately bolsters the arguments of the dissenting Justices.

Step 4: Sit back and wait for the “usual suspects” in the media and the blogosphere to shower you with praise for your brilliant legal analysis.

This Post Has 3 Comments

  1. Tom Kamenick

    You forgot Step 5: Sit back and wait for the “usual suspects” in the media and the blogosphere to shower you with scorn for your moronic legal analysis. You have to admit that it’s just as predictable.

    I actually agree with you that the concurrence and dissent have the better analysis of the constitutional text. But I disagree with you that there’s no statewide interest here. I have no idea why you would focus only on Milwaukee when the legislation prevents ALL municipalities from having residency requirements. Every citizen in every town, village, and city, is benefited and protected by the law. You’re just wrong when you say nobody who doesn’t work for Milwaukee is impacted by the law. Everybody who works for ANY municipality is impacted by the law, and furthermore, anybody who WANTS to work for any municipality is impacted by the law. Those Racine and Muskego residents are being discriminated against – solely on the basis of their residence – by Milwaukee, and the state has an interest in preventing that. And it works the other way, too – the law protects the interests of people who live in Milwaukee but want to work elsewhere.

  2. Edward A. Fallone


    To be sure, I would be happy to have a discussion of whether and how prohibiting residency requirements for municipal workers advances the public health, safety or welfare statewide (counter-intuitive when it comes to first responders), and also to debate whether the prohibition of residency requirements has a uniform effect on all Wisconsin municipalities (a reduction in over $600 million in Milwaukee tax receipts versus small change elsewhere). That is the point of the constitutional language, isn’t it, to mandate just such an analysis? The Court of Appeals grappled with these questions, as did the dissent in detail and so did (in a brief couple of paragraphs at least) Justice Rebecca Bradley. Of course, the point of interpreting away the Home Rule provision of the Constitution is to avoid having this discussion altogether.

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