Anderer et al v. City of Milwaukee

Filing 21

ORDER signed by Judge J P Stadtmueller on 11/23/16 granting 11 Defendant's MOTION for Judgment on the Pleadings; and DISMISSING this action with prejudice. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH A. ANDERER,
MILWAUKEE POLICE ASSOCIATION,
and MICHAEL V. CRIVELLO,
Case No. 16-CV-1118-JPS
Plaintiffs,
v.
CITY OF MILWAUKEE,

ORDER

Defendant.
1.

INTRODUCTION
On September 30, 2016, defendant City of Milwaukee (the

“defendant” or “City”) filed a motion for judgment on the pleadings, seeking
dismissal of the entirety of the Complaint. (Docket #11). On October 20, 2016,
plaintiffs Joseph A. Anderer, Milwaukee Police Association, and Michael V.
Crivello (collectively the “plaintiffs” or “Officers”) responded to the motion.
(Docket #16). On November 2, 2016, the City submitted a reply in support of
its motion. (Docket #17). The motion is now fully briefed and, for the reasons
explained below, it will be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure (“FRCP”) 12(c) permits a party to seek

judgment once each side has filed its pleadings. Fed. R. Civ. P. 12(c). The
Court reviews such motions
by employing the same standard that applies when reviewing
a motion to dismiss for failure to state a claim under [FRCP]
12(b)(6)…. Thus, we view the facts in the complaint in the light
most favorable to the nonmoving party and will grant the
motion only if it appears beyond doubt that the plaintiff cannot
prove any facts that would support his claim for relief.

Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citations and quotations omitted). The Court must “draw all reasonable
inferences and facts in favor of the nonmovant, but need not accept as true
any legal assertions.” Wagner v. Teva Pharmaceuticals USA, Inc., No. 15-2294,
2016 WL 6081381 *1 (7th Cir. Oct. 18, 2016). The City concedes as much; it
admits all of the material factual allegations stated in the complaint,
disputing only the legal conclusions drawn therefrom. See (Docket #1-1 at
4-11; Docket #2; Docket #12 at 2).
The Court may take judicial notice of documents in the public record
without converting a FRCP 12(c) motion to one for summary judgment
under FRCP 56 (which would necessitate discovery). Scherr v. Marriott Intern.,
Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). The City requests that the Court take
judicial notice of the documents appended to its motion, which include a
Wisconsin state statute and various official documents of the City of
Milwaukee and its subdivisions. See (Docket #12-1). The Officers do not
oppose this request. The documents the City presents are the proper subjects
of judicial notice and the Court will, therefore, take notice of them. See Fed.
R. Evid. 201(b) and (c)(2); U.S. v. Hemphill, 447 F. App’x 733, 736 (7th Cir.
2011).
3.

RELEVANT FACTS
The following facts are gleaned from viewing the factual allegations

of the complaint in a light most favorable to the plaintiffs. The plaintiffs are
two individual police officers and the union that represents Milwaukee
Police Department (“MPD”) officers, the Milwaukee Police Association
(“MPA”). (Docket #1-1 at ¶¶ 3-5). Prior to 2013, a City charter ordinance

Page 2 of 17

required all City employees to reside within the municipality.1 Id. at ¶ 8. In
2013, Wisconsin statute Section 66.0502 was enacted, eliminating all such
“residency” requirements in cities throughout the state.2 Id. at ¶ 9. The statute
permitted an exception for law enforcement personnel such that a
municipality could require those employees to reside within fifteen miles of
the city limits (the “Zone”). Id. at ¶ 10. The statute became effective on July
2, 2013. Id. at ¶ 11.
That same day, instead of explicitly adopting a Zone requirement for
its law enforcement employees3, the City promulgated a resolution “directing
all City officials to continue enforcement of [the residency ordinance],” and
this resolution was signed into law by the mayor.4 Id. at ¶¶ 12-14. The MPA
sued the City to challenge continued enforcement of the residency
requirement. Id. at ¶ 15. On June 23, 2016, the Wisconsin Supreme Court
ruled in the MPA’s favor. Id. at ¶ 16; see Black v. City of Milwaukee, 882 N.W.2d
333 (Wis. 2016). The City made no attempt to impose a Zone requirement
throughout the pendency of that case. Id. at ¶ 17.
During the time between the passage of Section 66.0502 and the Black
ruling, some law enforcement officers moved outside the City and the area
which would be included in the City’s Zone. Id. at ¶¶ 18, 21. Further, the City

1

Section 5-02 of the Milwaukee City Charter. See (Docket #12-1 at 1-3).

2

(Docket #12-1 at 4).

3

The relevant ordinance applies to all “law enforcement, fire and emergency
employees[.]” (Docket #12-1 at 8-10). Because this action was brought solely by law
enforcement officers and their union, the Court will refer to them alone for
brevity’s sake.
4

(Docket #12-1 at 5-7).

Page 3 of 17

hired a number of new officers who lived outside the Zone. Id. at ¶¶ 19-20.
On July 26, 2016, the City finally imposed a Zone requirement on all law
enforcement personnel, including those who had moved out of the Zone in
the interim.5 Id. at ¶¶ 22-23. As with the previous residency ordinance, living
outside the Zone meant the employee would be terminated. Id. at ¶ 24. The
new ordinance softened the rule in three ways: 1) an employee could ask for
up to six months’ time to move into the Zone, 2) an employee could be
granted a “temporary exception” by the relevant City authorities based on
financial hardship, and 3) an employee could be granted a complete
exception if they were married to a person who was also subject to a
residency requirement for a different municipality.6 See (Docket #12-1 at
9-10). The City’s Zone requirement took effect on October 11, 2016. Id. at 10.
4.

ANALYSIS
The Officers allege two causes of action. First, they assert a “Violation

of Substantive Due Process (Property Right)[.]” (Docket #1-1 at 9). The
Officers claim that Section 66.0502 and Black granted them a right to be free
of the City’s residency requirement. Id. at ¶¶ 26-27. They do not contest the
City’s authority to impose a Zone requirement, but allege that it cannot do
so retroactively. Id. at ¶¶ 28-29. The Officers argue that this would interfere
with rights of those law enforcement employees who left the Zone before the
Zone requirement was created. Id. at ¶ 30. They claim that this denies those

5

(Docket #12-1 at 8-10).

6

These exceptions are embodied in the Rules of the Board of Fire and Police
Commissioners for the City. Those rules automatically grant the six-month
extension to any newly hired employees and set a procedure for hardship
applications. See (Docket #12-1 at 11-13).

Page 4 of 17

employees substantive due process in violation of the Fifth and Fourteenth
Amendments. Id. The second cause of action is also for substantive due
process, but brought pursuant to the Wisconsin Constitution. Id. at 10. The
Officers assert the same violation as detailed in the first cause of action. Id. at
¶¶ 31-32.
The City presents two arguments in favor of dismissal. First, it asserts
that the Zone requirement does not apply retroactively, and thus does not
affect the Officers’ claimed substantive rights.7 Second, the City argues that
even if the Zone requirement is viewed as having retroactive effect, it does
not violate a recognizable substantive due process right. While these two
considerations are closely linked, as discussed below, the first is dispositive.
The Court addresses each cause of action separately.
4.1

Federal Constitutional Claim

The City contends that the Zone requirement does not operate
retroactively, but instead only prospectively. (Docket #12 at 7-10). It relies
almost entirely on the Seventh Circuit’s decision in Andre v. Board of Trustees
of the Village of Maywood, 561 F.2d 48 (7th Cir. 1977). In Andre, the court
upheld an ordinance similar to the one at issue in the instant case. Id. at 51.
There, the Village of Maywood (“Maywood”) enacted an ordinance requiring
municipal employees to establish residence within the municipality within
a few years. Id. at 49. The plaintiffs, law enforcement and emergency services
personnel, challenged the ordinance on the grounds that, inter alia, it
operated retroactively to impair their pre-existing, vested right to live outside
7

The Officers have made plain that they do not contest the Zone
requirement as a prospective rule for all law enforcement and emergency
personnel, but only its application to those employees who moved outside the Zone
in the three-year “dead” period for City residency requirements. (Docket #16 at 18).

Page 5 of 17

Maywood. Id. The plaintiffs found support for this alleged right in a
previously enacted hiring preference ordinance, which permitted Maywood
employees to live outside the city boundaries but gave preference in hiring
to those within them. Id. at 50. The court explained that
[i]t is plaintiffs’ principal argument that the 1971 adoption of
[the hiring preference ordinance], together with the past
actions of Maywood in allowing its employees to reside
elsewhere, created in plaintiffs a vested contractual right to live
outside Maywood. The adoption of the 1975 residency
requirement ordinance acted to repeal [the hiring preference
ordinance’s] “express approval and authorization” to reside
outside Maywood and, their argument concludes, resulted in
an unconstitutional exercise of the municipality’s police power.
Id.
The court disagreed, finding that the hiring preference ordinance gave
no indication of “the creation of an absolute unconditional right in plaintiffs
to live outside Maywood.” Id. at 51. Further, “[e]ven if [it] did create some
interest in the plaintiffs, that interest would have been contingent upon the
anticipated continuance of the ordinance. Such an interest does not amount
to a vested right.” Id. The court also determined that the residency ordinance
was not retroactive. Id. It simply required current Maywood employees to
change their residence by a certain deadline. Id. No employee could be
charged with violating the ordinance because they lived outside Maywood
in the past. Id. “As such,” the court concluded, “the challenged ordinance can
not be said to penalize activity which was otherwise lawful in the past, and,
hence, cannot be considered retrospective in application.” Id.
The City argues that Andre’s holding is applicable here. Neither the
City’s old residency ordinance, nor the new Zone requirement, punished
employees for non-residency prior to gaining City employment. (Docket #12
Page 6 of 17

at 8). Instead, the Zone requirement seeks only future compliance. Id.
Further, unlike the Andre plaintiffs, who relied on Maywood’s hiring
preference ordinance, the Officers should never have expected that they
would be permitted to live outside the Zone. Id. at 8-9. The City had
vigorously litigated the validity of the residency ordinance and, a month
after losing its challenge to Section 66.0502, enacted the Zone requirement.
Id. at 9.
The Officers attempt to distinguish Andre. (Docket #16 at 5-7). They
assert that Section 66.0502 granted them “a substantive right to be free from
‘residency’ being used as a condition of municipal employment,” unless and
until the City imposed a Zone requirement as authorized by the statute. Id.
at 5. In their view, this is unlike Andre, where the Illinois legislature had
enacted a statewide residency requirement for municipalities (subject to
exception), rather than repealing all such requirements. Id. at 6; Andre,
561 F.2d at 50. The Officers further argue that Section 66.0502
“necessarily…authorized City employees to reside outside the City’s limits,”
while the Andre court found that the hiring preference ordinance did not
“grant express approval or authorization to Maywood employees to live
outside Maywood.” (Docket #16 at 6-7); Andre, 561 F.2d at 50. Finally, Andre’s
analysis of whether the Maywood plaintiffs had a “vested” right, and
whether the residency ordinance penalized past action, is inapposite under
Wisconsin case law, which “requires a more nuanced approach.” (Docket #16
at 7); see infra Part 4.2.

Page 7 of 17

As to the Officers’ federal claim, the Court finds that Andre controls
and its logic is extremely persuasive. The Zone requirement mandates
residency in the Zone in the future. (Docket #12-1 at 8). It does not “penalize
those employees living outside [the City] for having so resided in the past.
Under the terms of the ordinance, an employee will be charged with a
violation of the residency ordinance not because the employee resided
outside [the City] in the past, but rather, an employee will be charged with
a violation for failure to establish a [City] residency [in the future].” Andre,
561 F.2d at 51 (emphasis added). These holdings demonstrate that causation
is the key to retroactivity in analyzing residency requirements. The Officers
will not be punished, i.e. required to move into the Zone or face termination,
because they lived outside the Zone from 2013 to 2016. They will only be
punished if they failed to have City residency after October 11, 2016.8 Thus,
“the [Zone requirement] can not be said to penalize activity which was

8

The tense change is odd in this sentence, as at the time this lawsuit was
filed, and at the time the motion for judgment on the pleadings was submitted,
October 11, 2016 was a future date.

Page 8 of 17

otherwise lawful in the past, and, hence, cannot be considered retrospective
in application.” Id.9
4.2

Wisconsin Constitutional Claim

The Officers argue that Wisconsin Supreme Court precedent would
find the Zone requirement an invalid retroactive impairment on their
substantive rights. Id. at 8. Their primary support is found in Martin and
Neiman. Martin by Scoptur v. Richards, 531 N.W.2d 70 (Wis. 1995); Neiman v.
American Nat. Property and Cas. Co., 613 N.W.2d 160 (Wis. 2000). Martin, in
pertinent part, discussed the retroactive application of a damages cap.
Martin, 531 N.W.2d at 86-93. The court explained that “we must first address
[the defendants’] claim that [the cap] is a prospective statute, i.e., that it
applies prospectively to those who file claims on or after [its effective date].
If the statute is prospective it need not overcome the unique burdens placed
upon retroactive laws.” Id. at 87-88. The court found that the cap was

9

The Officers do not succeed in distinguishing Andre. Each of their
arguments noted are defeated by the Court’s subsequent analysis. See infra Part 4.2,
pg. 11-16. Further, the Andre court made its “retroactivity” holding separate from
its “substantive right” holding:
Further, we do not agree with plaintiffs’ contention that the
challenged residency ordinance is retrospective in nature. We have
already concluded that s I(B)(2) and Maywood’s past actions with
respect to employee residency did not create in plaintiffs an
antecedent vested right[.]…We note in addition that the residency
ordinance requires present Maywood employees to establish
residency within the Village by specified future dates. The
ordinance does not penalize those employees living outside
Maywood for having so resided in the past.…As such, the
challenged ordinance can not be said to penalize activity which was
otherwise lawful in the past, and, hence, cannot be considered
retrospective in application.
Andre, 561 F.2d at 51 (emphasis added).

Page 9 of 17

retroactive for two reasons: 1) it applied to causes of action which accrued
before its effective date10; and 2) the legislative history clearly showed an
intent to make it retroactive. Id. at 88. The court then analyzed the cap using
a balancing test, weighing “the public interest served by the retroactive
statute against the private interests that are overturned by it.” Id. at 88. After
carefully reviewing these considerations, the court determined that the cap
was unconstitutional as applied retroactively. Id. at 88-93. In Neiman, the
court again overturned the retroactive application of a damages cap. Neiman,
613 N.W.2d at 167. It found that the cap indisputably applied retroactively,
under the same considerations addressed in Martin. Id. at 163-64. Also like
10

The court viewed this as a matter of logical deduction:

The cap applies to actions “filed on or after June 14, 1986.”
This language must encompass actions which accrued at an earlier
date: in order for an action to be “filed” on June 14, 1986, it must
have accrued prior to that date.
Martin, 531 N.W.2d at 88. It further explained the cap’s application to the
Martin plaintiffs:
The cap became effective on June 14, 1986, and affects claims
filed after that date and before January 1, 1991. The Martins’ cause
of action accrued prior to the cap’s enactment, on July 10, 1985,
when Ms. Martin’s injuries from the initial accident were
aggravated by Dr. Richards’ negligence. “[A] cause of action for
negligence is said to accrue ... on the date of the plaintiff’s injury: ‘It
is the fact and date of injury that sets in force and operation the
factors that create and establish the basis for a claim of damages.’”
Hunter v. Sch. Dist. Gale–Ettrick–Trempealeau, 97 Wis.2d 435, 442, 293
N.W.2d 515 (1980). Since the cause of action accrued at a time when
no cap existed on the amount of noneconomic damages recoverable,
application of the cap to the Martins’ cause of action constitutes a
retroactive application. If we allowed the cap, it would act here to
limit the recovery of a cause of action which, when it accrued, was
unlimited.
Id.

Page 10 of 17

Martin, the Neiman cap failed the retroactive legislation balancing test. Id. at
163-67.
The Officers argue that Section 66.0502 “plainly created a substantive
right for all Wisconsin municipal employees to be free from residency
[requirements],” and that the Zone requirement “applies ‘retroactively’ to
plaintiffs . . . precisely because it upsets their right to reside where they desire
without regard to residency.” (Docket #16 at 9). In applying the Martin
balancing test, the Officers conclude that the Zone requirement must be
unconstitutional. Id. at 9-11.
The City prevails on this claim for reasons found within the Officers’
briefing, not its own. The Officers appear to believe that Martin and Neiman
circumvent the otherwise unavoidable command of Andre. However, a close
review of those cases demonstrates that they fail to actually support the
Officers’ key contentions.
In Martin and Neiman, the court found that a statute’s retroactivity
was an essential condition precedent to a constitutional challenge to its
retroactive application, because “[i]f the statute is prospective it need not
overcome the unique burdens placed upon retroactive laws.” Martin, 531
N.W.2d at 88; Neiman, 631 N.W.2d at 163-64. Martin further noted that “the
general rule in Wisconsin is that legislation is presumed to be prospective
unless the statutory language clearly reveals by express language or
necessary implication an intent that it apply retroactively.” Martin, 531
N.W.2d at 88 (quotation omitted). In assessing retroactivity, the Wisconsin
Supreme Court looked to the language of the statute and the legislature’s
intent. Id. at 88; Neiman, 613 N.W.2d at 163-64. As explained above, in each

Page 11 of 17

case, the Court found that the statutes at issue operated retroactively by force
of logic, and that the legislature intended as much. Id.
The Officers fail to overcome the presumption that the Zone
requirement is prospective, as it does not bear the hallmarks of retroactivity.
First, its language does not, by logical deduction, lead inescapably to
retroactive application. Rather, it states that “[e]very law enforcement…
employe [sic] shall establish…[their] actual residence within 15 miles of the
jurisdictional boundaries of the [City].” (Docket #12-1 at 8). This language
says nothing about the date of its application as was the case in Martin and
Neiman. Thus, the Zone requirement’s text shows that it was intended only
as a prospective measure. Second, assuming the recent history of the City
residency requirements can be utilized as a “legislative history,” there is
nothing within that history to suggest that the City intended the Zone
requirement to apply retroactively. Instead, they attempted, and failed, to
defend their existing residency requirement, and once it was finally put to
rest, they created a Zone new requirement consistent with Wisconsin law.11
Though the Officers do not directly address these holdings, it appears
that they would analogize their right to be free from residency requirements
to the accrual of a cause of action. They assert that this right “was fixed as [of]
the date of [Section 66.0502's] enactment (July 2, 2013).” (Docket #16 at 9). The
Zone requirement, imposed on October 11, 2016, affects that right by

11

It is not clear that the Court need even reach the “legislative history” of the
Zone requirement if its language does not indicate retroactivity. Neiman stated that
the plain language of the cap at issue showed the legislature’s intent. Neiman, 613
N.W.2d at 164. Namely, the cap used the same “filed on or after” language which
Martin found to require retroactive application. Id. It then stated, “[t]hus, in this
case we need not look further to conclude that the legislature intended § 895.04(4)
to apply retroactively[,]” and included no discussion of the legislative history. Id.

Page 12 of 17

destroying it entirely. This is akin to the damages caps at issue in Martin and
Neiman, which would have limited or expanded12 the amount recoverable for
causes of action which accrued before the caps’ inception.
The Court rejects this analogy based on the rule announced in Black.13
This is where the analyses of retroactivity and substantive rights, which
Martin and Neiman suggest should be separate, become somewhat muddled;
the parties discussed Black solely as part of their substantive rights
discussions. In Black, the court addressed whether the City’s actions in
defying Section 66.0502 deprived the plaintiffs (referenced therein as the
“Police Association”) of substantive due process rights. Black, 882 N.W.2d at
351-54. For plaintiffs advancing a constitutional claim under Section 1983,
like the Police Association in Black and the Officers here, they may show a
violation of substantive due process when the “state conduct complained of
… ‘shocks the conscience…or interferes with rights implicit in the concept of
ordered society.’” Id. at 352 (quoting State ex rel. Greer v. Wiedenhoeft, 845
N.W.3d 373, 386 (Wis. 2014)). The Police Association first argued that the
City’s action “shocked the conscience,” but that portion of Black is
unimportant for our purposes. Id. at 352-353.
The Police Association then asserted that the City had deprived it of
a liberty interest. Id. at 353. The court characterized the claim as follows:

12

The Neiman cap was already in existence, and was retroactively increased
by the Wisconsin legislature. Neiman, 613 N.W.2d at 162.
13

The Court applies the Black decision as controlling precedent, not for any
preclusive effect. Thus, the Officers’ arguments regarding preclusion are of no
moment. See (Docket #16 at 16-17).

Page 13 of 17

Here, the Police Association has not asserted a
fundamental right or liberty that is deeply rooted in this
Nation’s history and tradition. Rather, the Police Association
claims that Wis. Stat. § 66.0502—on the day it was
enacted—created a liberty interest in being free from residency
requirements as a condition of employment. To make this
argument, the Police Association pulls from procedural due
process cases.
Id. The Black court analyzed the Police Association’s procedural due process
citation, Hewitt, noting that it said nothing about substantive due process. Id.
The court went on to find:
We recognize that the Supreme Court, in cases like
Hewitt, has “repeatedly held that state statutes may create
liberty interests that are entitled to the procedural protections of
the Due Process Clause of the Fourteenth Amendment.” Vitek
v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)
(emphasis added). However, the “Supreme Court has never
held that such state-created interests constitute a fundamental
liberty interest protected under a substantive due process
theory. Rather, the Court has analyzed state-created liberties
under a procedural due process theory.” Kraushaar v. Flanigan,
45 F.3d 1040, 1047 (7th Cir. 1995) (emphasis added); see also
Robinson v. Howell, 902 F.Supp. 836, 843 (S.D. Ind. 1995) (“A
state cannot legislate or otherwise determine what constitutes
a fundamental principle of justice and liberty so as to be
worthy of protection under the federal constitution.”). The
Police Association has not pointed to any contrary authority.
Because “[t]he doctrine of judicial restraint requires [a court] to
exercise the utmost care” when determining whether a
substantive due process right exists, we decline to create a new
right or liberty interest in being free from residency
requirements as a condition of employment. See [Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 126 (1992)].
Id. The court concluded that the Police Association failed to show a violation
of a right protected by substantive due process. Id. at 354.

Page 14 of 17

Black is precisely on-point and, as the final say on Wisconsin law on
the issue, controlling. The Officers have characterized the “right” at issue
identically to the Police Association, namely as “a substantive right . . . to be
free from residency being used as a condition of employment.” (Docket #16
at 9). Black found that such a right could not be based in the very same
Section 66.0502 at issue here. The Court is not at liberty to disagree with Black
any more than it would be able disagree with Andre as to the Officers’ federal
constitutional claim.
The Officers’ attempts to distinguish Black are unavailing. First, they
claim that “the due process claims at issue in Black had nothing to do with
retroactive application of a law adversely affecting the substantive rights of
City police officers[.]” (Docket #16 at 15). The Officers’ entire argument on
the point is as follows:
[T]he due process issues in Black were: 1) whether
66.0502, Stats., created a constitutionally protected liberty
interest in being free from residency being used as a
condition of municipal employment, and; 2) whether the
City’s action in enacting an ordinance directing all City officials
to disregard the law, and enforce an ordinance the legislature
had deemed unlawful, sufficiently “shocked the conscience” so
as to violate due process. Supra, at 2, fn.1. Those issues simply
have nothing to do with the issues presented in this case.
Id. (emphasis added). The Court is at a loss to find a distinction between the
emphasized statement and the claim asserted here, and the Officers’
conclusory argument does nothing to alleviate the problem.
Second, the Officers state that “the claims in Black arose out of a
completely different transaction and occurrence than what is identified in the
present complaint.” Id. They point to the fact that Black was decided upon the
City’s actions in 2013 to continue to enforce the residency requirement,
Page 15 of 17

whereas the Officers now challenge the City’s Zone requirement, as applied
to them, in 2016. Id. at 15-16. While true, the statement is irrelevant. The rule
announced in Black was that Section 66.0502 conferred no liberty interest to
the Police Association in being free from a residency requirement. Black, 882
N.W.2d at 353-54. That rule, and not any identity between the underlying
transactions challenged, it what is important.
5.

CONCLUSION
In light of the foregoing, the Court concludes that the Officers cannot

prove any set of facts which would support their claims for relief. BuchananMoore, 570 F.3d at 827 (quotation omitted).14 Because the Court finds that the
Zone requirement is not retroactive, it need not conduct a Martin balancing
test analysis or otherwise address the competing policy considerations
underlying the Officers’ asserted “right.” Martin, 531 N.W.2d at 88. Again,
the Officers do not challenge the Zone requirement as prospectively applied.
See supra pg. 5 n.7. The Court must, therefore, grant the City’s motion and
dismiss this action with prejudice.
Accordingly,
IT IS ORDERED that the defendant City of Milwaukee’s motion for
judgment on the pleadings (Docket #11) be and the same is hereby
GRANTED; and

14

This conclusion is buttressed by the standard of review for assessing
retroactivity. Neiman states that “[w]hether or not a legislative act that applies
retroactively violates due process is a question of law, which this court reviews de
novo.” Neiman, 613 N.W.2d at 163.

Page 16 of 17

IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of November, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 17 of 17