incent gentlemen i'm going to state for everybody's benefit that we also have with us here this morning judge alon a roving or who is on the video screen you will see her at the podium and we can see her but the rest of you cannot but you will be able to hear her and she is participating in these arguments so our first case for this morning is milwaukee police association against the city of milwaukee  twelve see in motion the issues are to fall first whether the city is applying its residency zome retroactively the police officers who had moved outside of what would eventually become the city between two thousand and thirteen when the state was is when wisconsin legislature enacted a law that prohibited residency from being used for municipal and point purposes in two thousand and sixteen when the city eventual imposed itself the second issue would be if so the words if that is known as being applied retroactively whether that retroactive application violates the process so would you agree officer is done in the past in such a way that the officer cannot avoid the penalty it instead impulse isn't going forward requirement that the officer compain with and the wisconsin supreme court in martin niemann and matthews three cases look at retro see active or retrospective application of the law in the following manner number one new law adversely affects that right then there is a retroactive or retrospective application of the law now that is i still can't understand what right it is you're talking about because excuse me i'm go postulating that if under wisconsin law no legal violation occurred when somebody arranged for residents whether a purchase of a home whether a lease of an apartment doesn't matter and no one is punishing these people for choosing to live outside the fifteen miles own during that period it's just as in the andrzej case going forward they need to change their residency if they want to continue working for the city of milwaukee it's similar to andre but it's different in one significant respect andre specifically found that the ordinance at issue in that case the preexisting ordinance provided no right whatsoever that the plaintiffs in that case could rely upon to live or reside wherever they want and this ordinance doesn't either it just says unless or until milwaukee passes i mean let's put to one side by the way all of the litigation about home rule the whole business with the black case but it just says you have a contingent right that if the city decides to take advantage of what the for the city of milwaukee that the law does not say from now until the end of time anything happens with your physician is from now until the end of time if somebody moved to that further out area you think they can keep working f milwaukee until retirement my position is rather narrow we have a small number of individuals who acted on the right created by the legislature to reside wherever they want  this this statute legislature passed put the onus on a municipality if it desire to impose a zone on emergency personnel to do so to impose the legislature didn't say  legislature said as of july to two thousand and thirteen residency may no longer be used as a condition of municipal employment throughout the state that necessarily means that people could live where they wanted to but then it says a municipality can have a residency rule for emergency personnel requiring that they live within fifteen miles it doesn't say except people who already live further out it just says you can have this rule it and what it does say your honor is that municipality or a governmental unit may quote impose unquote a residency requirement so that the city to add everyone must with which everyone must comply the city had the right to impose that and they had it did not for three years doesn't matter it did and as of then people have to comply with it i think the wisconsin supreme court and the case law out of that court would would say that's not the way we analyze things i think you know and let's let's talk in terms of the equities for our police officers are always on notice that the city might adopt the fifteen mile rule that had been authorized by the state statute i mean on the day the statute took a fact the city adopted into martin's stating it intent to continue enforcing the residency rule and then it adopted the fifteen mile rule as soon as it lost the black litigation requirement i guess your honor that police officers might have been on notice as you say that the city quote might have unquote adopted the the fifteen mile requirement but the city never said one iota never never made it part of their resolution never told any police officer never publicly pronounced that they would impose a zone in the event that they were unsuccessful in the home and but by the way if we're wrong we're imposing this zone that would have taken any claim that my clients would have had a way the city didn't do that didn't do anything for three years i don't see why that changes the legal position of your client it's just some press release from the city well i didn't mean to interrupt you but i think what that goes to is it goes to the equities in the martin balancing test in other words once you do find retrospect about the patient the law then the question is well so what is it ok or does it violate to process can you think of any example of retrospective application of the law under which it i clear that the person has not violated anything during the earlier period and simply going forward six months hence nine months hence they've got to do something different because there was a period first of all there was a three month delay in the effective date of the new status of the new ordinance and then there was a six month period to come into compliance which takes us up to nine months and there was a hardship provision as well so the person is absolutely clean from a legal standpoint with respect to the past they haven't violated anything why is that retrospective application of the law but for the fact that they acted on the right legislature provided them they during those three years here we go again you know that they would not they are there and that they didn't violate any law when they did that they could buy fifteen houses outside of the you know forty five miles away from milwaukee if they wanted and they would have been completely in compliance with the law it's just that they had no long term expectation of being able to retain their position as emergency personnel and stay there well that might eventually be the decision of the district court court remands but i think on a twelve c motion we're getting a little bit far afield from what the legal standard should be but it's a legal question we have to look at the effect of first that wisconsin statute secondly the  and sixteen ordinance i don't know why you need absolutely zero court activity there which we have to look at that but the question on this appeal the primary one is whether the defendant proved beyond a doubt that there is no possible way that we can make a claim that's different than a summary judgment motion well that's a legal question about the effect of these two enactments right yes it is a legal  are affected by this interim period not very many your honor i actually made an inquiry recently and as it turns out the information i got indicated that there were only think nineteen that had applied for extensions or exceptions and then another three or so that we hadn't heard from yet and all the others ha  regular hearing scene agendas where this matter is on the agenda and as far as i know all of the ones that have been ruled on have been granted many of them deal with i  remember one for example the officer who was going to retire in september of this year he was living outside the zone they granted him the extension and there were similar situations like this there's also a provision in the rules of the fire and police commission that if you are married to a spouse that subject to a similar residency requirement from another jurisdiction they will adjust to fit that  usually and i don't have firsthand knowledge because i don't represent our fire and police commission but they've been pretty understanding with existent individual circumstances that's why we have the but in addition to that as pointed out by judge wood there was a provision in the rules that allowed for an automatic six month extension once this new residency rule took effect last  october by the way the reason for the court's edification for the three month delay is that that's how our charter amendment provision of procedure works and this was an amendment to the city charter wasn't simply an order it's a residency requirement previously which had been in effect for seventy five years until twenty thirteen was also in the city charter so that provision have to be amended and that accounts for how this evolved count you're just coming up on the six months after october next week right your honor and i know that there is a meeting of the fire and police commission this thursday and i think there is a small group of individual requests that are being heard during that meeting i looked at the agenda just recently but that's how these individual circumstances are adjusted but i think your honor is correct  only a very small number of officers that are affected there are also some firefighters that are affected and i think two non police and fire city employees who are emergency personnel  i got that based on an inquiry from our department of employee relations just last week i mean because it does strike me that it can be a significant hardship for someone who let's say purchased a home and suddenly be and thought they were ok and all of a sudden still no actually have to live within fifteen miles of the city of milwaukee and this have been two thousand and nine for example when no one was able to move any real property people but if law their jobs over th state they could have however this is a constitutional substantive due process case and you have to evaluate it according to whether there is a substantive right to say hey i don't have to bear this hardship the answer is clearly no and i case is no different than andre's although i did it was a much longer time it was a longer call two to four years people had it was a much longer time however it was a much smaller area you had to move within the confines of the village of may this case the zone that we're talking about is a huge land area you're cooked talking about the southern reaches a port washington all the way down to almost proceed and west past waukesha and that's a very liberal residency area within which police officers firefighters and other emergency personnel could have lawfully resided and that the public purpose behind this type of response statute is obvious  the of balancing tasks that the cases cited by my colleague indicated require a rational basis the rational basis for a fifteen was a rational basis for imposing a residency requirement on a golf course mechanic well obviously if there's a rational basis for that there's certainly a rational basis for this additionally all of these tests the rational basis test downswing test only apply if number one the statute or warden's in this case is retroactive and number two  think it's most of his eggs that when the state law was passed people thought oh we don't we're not going to be burdened with residency requirements anymore and ordinary people unlike lawyers who may not be ordinary people don't sit around watching court dockets all the time so even though the black cases filed pretty pretty promptly in the cities making announcements like we don't think this applies to us in fact there's a state law and  people relying on on state law well there is perhaps an expectation at that point but it's not a right it's not a settled expectation number one the city did put out notices saying that it intended to enforce its residency requirement immediately upon the inactive sixty six zero five zero to claim those notices go to all city employ it went to all police stations i know that i know it was circulated by the police department other city departments i'm not quite sure secondly it was in the papers constantly this was a very prominent case item at the time but  it in terms of the legal posture of this case it doesn't matter if the pro if the ordinance was prospect of the debate ends there and andrea stablish is that the ordinance was perspective beyond that it became clear in the black case that regardless of the policy considerations or the equities there's no constitutional substantive due process right that attaches here and that's all this before the court on the twelve c motion  finally even if those two barriers are surmounted then you get into the rational basis test balancing test and it's explained in my brief the city satisfies both tests and satisfies them rather easily so i just don't see where they are going with this argument i realize it must be frustrating for them they tried their best i just don't see how it succeeds and  certainly i believe that the district court got it right in all respects and it should be firm and i very much appreciate your time and consideration you can thank you any further questions mailing thank you of first as to the issue of notice what the city did was they put out no notice that they would impose or may impose a zone the only notice they put out is that they were not going to follow the state statute and they were going to continue to require residency within the city's jurisdictional limits does the record show whether some people notwithstanding that notice moved outside the fifteen miles down at that time the record does not show when people moved out of out of the city or or what would eventually have become the zone s to the issue of substantive right that mr markham all talked about was from the states and wisconsin has followed that the question as to whether or not black the black decision which was essentially limited to home rule thirty and then it had the the  other little issue about a liberty interest black never mention the term substantive right it's not in the decision it was never never mentioned what black did was decide did sixty six zero five zero two the same statute we're dealing with today did that give rise to a liberty interest and if so all then did the city violate substantive due process when the mayor said we're going to continue to enforce our residency rule regardless of what the last the wisconsin supreme court said it doesn't rise to a liberty interest and that executive action did not shock the conscience we're not talking about executive action in this case we're talking about legislative action and with all due respect to judge stad miller i believe you got that wrong that standard is not whether or not the action in this case shocks the conscience that's not the proper standard the standard is as mr markham all talked about when you're dealing with legislative action dealing with a non fundamental right a rational basis we posit that there would be there is no rational basis to apply the ordinance to people who have already acted on a right identified by the legislature but again that's something that's more appropriately addressed in a summary judgment motion as opposed to a twelve cmos feet the other thing is i am not asking this court to throw andre away or to overrule andrea andre was a case that made sense because there was no preexisting right the court went to lengths explaining that so given that there was no preexisting right what did this circuit do it looked at whether or not those plaintiffs were being punished for future action now what mr muck of all is done he's a smart guy i like him a lot he's going to turn that on his head and said the only thing you need to look at with regard to andre is future punishment and with all due respect that's not what this course circuit stated in in the nine hundred seventy eight finally i i believe that the plaintiffs in this case and other similarly situated absolutely had a right to reasonably rely on what the wisconsin legislature identifies as public policy throughout the state and to act on it and they did because they did now they're being told to move