Mayor Tom Barrett said the legal battle over Milwaukee's 75-year-old residency rule is a constitutional issue. Credit: Michael Sears

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Milwaukee County Circuit Judge Paul Van Grunsven on Monday declared Milwaukee's 75-year-old residency rule, which requires city workers to live within city limits, void and unenforceable.

Van Grunsven said a measure signed into law last summer by Gov. Scott Walker applied uniformly to all local government units in the state. That state law, he said, removes the issue of residency from the scope of home rule authority.

The state law, he added, "creates a constitutional liberty interest in being free from residency requirements as a condition of municipal employment."

Van Grunsven's decision marks a significant victory for the city's police and fire unions, which have fought to end residency rules for years.

But City Attorney Grant Langley and Mayor Tom Barrett, both of whom were in the courtroom when Van Grunsven read part of his 21-page decision, said the city would appeal to the state's Court of Appeals and, potentially, to the state Supreme Court.

In a news conference Monday afternoon at City Hall, Barrett said the legal battle is a constitutional issue.

"What is the role of local government if a legislature, with the support of a state court, can come in at the behest of a special interest and eviscerate 75 years of local decision making?" he said. "Where does that leave local control?"

Barrett said if the city is ultimately successful in court, "we will require people, as part of their condition of employment, which we have done since 1938, to be a resident of the city of Milwaukee."

Some city workers have already moved out of the city, though an exact number was not immediately available.

Jon Cermele, the attorney for the Milwaukee Police Association, which filed the suit, praised the decision.

"The judge said the state had the authority to prohibit residency from being a condition of employment," he said. "I think it's the right decision as a matter of law."

Langley said he was disappointed by the decision, adding that he knew it was going to be a close call.

Barrett said he believed both the police union and Local 215 of the Milwaukee Professional Firefighters Association, which joined the suit, and the city knew the case was headed for appeal.

"We continue to believe that this is a decision that has been made at the local level for 75 years," Barrett said.

He said the Republican legislation was ironic because the party has lobbied for local control for years.

"We've had local control on this issue for 75 years and they want to take it away, simply because of special interests. That's clearly what has happened here," said Barrett, who has said the legislation was political payback for the police union's support of Walker.

Tom Evenson, Walker's press spokesman, said in a statement that "the way to keep people in a city isn't by building a wall, and residency requirements violate an individual's freedom to live in the city of their choice."

The city's ordinance states:

"All employees of the city of Milwaukee are required to establish and maintain their actual bona-fide residences within the boundaries of the city."

For many police officers and firefighters, the rule was unpopular. For years, the police union and Local 215 attempted to end the rule through contract negotiations or through state legislation.

Last year they got the rule changed when Walker put a measure ending residency into his budget.

Rule not enforced

The city has not enforced the residency rule since Walker signed the change into law. That was agreed to in court after the police union filed suit.

The state law states that no local governmental unit may require, as a condition of employment, that any employee or prospective employee reside within any jurisdictional limit.

Local governments can 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 government unit.

In his summary of the police union's argument, Van Grunsven said the residency rule "constitutes an illegitimate exercise of its police powers."

"Once the Legislature enacted (the state law), the city was required to comply with the law until it was able to either convince the legislature to change it or obtain a judicial determination otherwise.

"Instead, the city presented all city employees with a 'Hobson's choice,' exercise their rights under (the state law) and face termination, or refrain from exercising those rights and remain employed. Placing city employees in this position resulted in an unconstitutional deprivation of liberty," Van Grunsven wrote in summarizing the police union's argument.

Van Grunsven said the city's argument was that, if residency really is a statewide concern, the new state law should apply to both public and private employers. The city also argued that a residency rule does not deprive city employees of any fundamental liberty interest.

Last year, Barrett submitted an affidavit in the case, citing the work of SB Friedman Development Advisors of Chicago. The study concluded that if the city lost its right to enforce a residency rule, an estimated 375 employees a year would move from city to suburb.

Jason Stein of the Journal Sentinel staff contributed to this report.