The battle has been joined.
Now that the Milwaukee Police Association, which represents rank and file police officers, has asked a judge to force the City of Milwaukee to obey a new law allowing public employees to move out of the city and stop enforcing the old rule, the city has a stage to make its case.
"That's what we were interested in," Mayor Tom Barrett said last week.
For months, as Gov. Scott Walker's provision to end residency requirements for all local units of government made its way through the Legislature and ultimately into law, Barrett and his top advisers have been plotting ways to stop it in Madison or be ready to go to court if Walker signed it.
Inside City Hall, Barrett met frequently with chief of staff Patrick Curley; City Attorney Grant Langley; at least two of his deputies plus city labor negotiator Deborah Ford; Maria Monteagudo, director of the city's Department of Employee Relations; Common Council President Willie Hines; and Ald. Michael Murphy, to determine how to save residency for all city employees.
Though Barrett said he would meet again with Langley to determine whether the city would file its own suit, two City Hall sources said the city would focus on the outcome of the MPA suit.
For Barrett, at stake is the future of the city's middle-income neighborhoods, many of which are populated with scores of police officers, firefighters and Department of Public Works employees.
In one west side neighborhood, a city employee already has accepted an offer on his home and moved to a suburb. His city home is empty, yet he remains on the payroll. He could not be reached for comment.
Murphy said he was aware of another city employee who was preparing to sell his home.
The Journal Sentinel contacted several city employees on the residency issue, but all declined to comment on the record for fear of reprisal at their workplace. Some said they planned to move as soon as possible; others said they were staying put in Milwaukee.
How many more will follow immediately, or wait for the case to be decided in court, is not yet known. Mike Ruzicka, the head of the Greater Milwaukee Association of Realtors, said his group wouldn't know if there is an uptick in homes for sale until early August.
Asked if he was aware of any employees who are in the process of moving out of the city, Barrett said he was not.
"I do believe that because of the legal action, for many people, that may give them pause to move before the resolution on the constitutional interpretation of the phrase 'home rule,'" Barrett said.
Milwaukee Public Schools employees already are free to move, according to a letter the city attorney's office sent to MPS Superintendent Gregory Thornton.
The police association lawsuit states that the four plaintiffs, including MPA president Michael Crivello, would like to move out of Milwaukee. One plaintiff, Officer Steven J. Van Erden, has already done so. As a result, the Milwaukee Police Department's Internal Affairs Division has already launched an investigation. That is standard practice for officers who move out of the city.
Van Erden, a veteran officer, declined to comment.
Barrett says the city can legally enforce its own residency ordinance because the 1938 ordinance -- added to the city charter -- is protected under a 1924 amendment to the Wisconsin Constitution.
"The residency rule continues to be the law from our perspective," Barrett said.
The amendment provided for local authority over city statutes and operations, subject only to changes to the state constitution and to legislative measures "of statewide concern" that uniformly "affect every city or every village."
The MPA suit contends the legislative action was a matter of statewide concern.
"The Legislature then made the provision applicable to all cities, towns, villages and counties throughout the state," the suit says.
Dan Thompson, executive director of the League of Wisconsin Municipalities, said his organization has been supportive of the city's efforts to maintain residency. Thompson said his board would meet soon on the matter to see if it might get involved legally.
His members, he said, "all take the home rule issue very seriously. We represent some 4,000 city and village officials. One thing that unites them more than anything else is a desire to see local communities empowered to make their own decisions rather than having the state step in and pre-empt home rule. One of the reasons this organization was founded 150 years ago was to promote home rule."
Robert Williams, a Rutgers Law School professor who studies state constitutional law and statutory interpretation, said it's often difficult to determine between issues deemed local matters vs. statewide matters.
"What happens in states like Wisconsin that use this dichotomy is that often it's the courts that end up deciding," Williams said. "I've called it judicial home rule."
Added Williams: "The trend has been actually to view local authority under these home rule amendments grudgingly. The local authorities lose a lot of these cases. When there's some sense that it's statewide or it could be statewide or there are laws on some of the same topics, the tide seems to go toward the state than to the local government."
James Gardner, a SUNY Buffalo Law School professor who specializes in constitutional law, said that if the state constitution grants to the City of Milwaukee the authority to enact ordinances like residency, "then legislation at the state level is not going to be effective to displace that authority."
While Gardner said there is precedent nationwide to allow big cities the authority to regulate the conditions of employment, as Milwaukee has, it's also possible to describe most anything as a matter of statewide concern "if you describe it somewhat abstractly."
Both sides are scheduled to make their case Thursday in the courtroom of Milwaukee County Circuit Judge Paul Van Grunsven. The MPA is hoping for a court order; the city hopes it will be allowed to enforce the law.
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