Federal court rules against Milwaukee County deputy in radio spat with
After a Milwaukee County deputy criticized the sheriff on a radio talk
show, the sheriff told on-air radio listeners that the deputy held a
grudge against him for filing a disciplinary action. Even if considered
retaliatory speech, a federal appeals panel ruled, it was not actionable
under federal law.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
25, 2011 – A panel for the U.S. Court of Appeals for the Seventh
Circuit recently ruled that Milwaukee County Sheriff David Clarke did
not violate state or federal law when he told an on-air radio show host
that deputy David Hutchins held a grudge against him for filing a
Sheriff Clarke made those comments – and revealed the nature of
the disciplinary action – after Deputy Hutchins told the on-air
radio show host, Eric Von of WMCS AM 1290, that Clarke was not a good
fit for the Milwaukee County Sheriff position.
Hutchins filed a lawsuit, alleging Clark violated Wisconsin’s
Open Records Law and Wisconsin’s Right of Privacy statute in
making those comments. He also claimed that Clarke’s actions
violated Hutchins’ right to free speech under the First Amendment.
The district court granted Hutchins’ summary judgment motion.
But in Hutchins,
et. al. v. Clark Jr., et al., No. 10-2661 (Oct. 24, 2011), a
three-judge panel reversed, concluding that Wisconsin’s Open
Records Law did not apply, Hutchins’ right to privacy was not
violated, and the sheriff’s comments did not amount to violations
of federal law.
First, the panel ruled that Hutchins’ open records claim did not
“Nothing from this set of facts leads us to the conclusion that
Wisconsin’s Open Records Law should be invoked,” wrote Judge
William Bauer for the panel. “There was no request to inspect
Hutchins’ disciplinary record, no permission granted, and no
balancing test undertaken.”
The panel explained that more applicable theories of action exist,
including defamation, right of privacy, or unlawful retaliation, among
others, and refused to interpret Wisconsin’s open records law as
providing a cause of action when that law’s procedures are not
Second, the panel ruled that Clarke did not invade Hutchins’
right of privacy under Wis. Stat. 995.50. The disciplinary record is
considered a “public record,” the panel explained, under a
balancing test that weighs a public interest in protecting privacy
against the public interest in maintaining open records.
“After balancing the two interests in this case, we find that the
public interest in disclosure of this information is not outweighed by
the public interest in maintaining it as a closed record,” Judge
Bauer wrote. “Many of the factors that favor nondisclosure of
police officers’ personnel files are not present in
Finally, the panel rejected the claim that Clark unlawfully retaliated
against Hutchins when he disclosed Hutchins’ disciplinary history,
thereby depriving him of a First Amendment right to free speech in
violation of 42 U.S.C. section 1983.
The panel noted that the government, in general, cannot retaliate
against employees for engaging in constitutionally protected speech, but
a court can’t “afford one party his right to free speech
while discounting the rights of the other party.” A plaintiff must
show his or speech was a motivating factor in the alleged retaliatory
action and there’s a threat of future harm, the panel
Here, the retaliatory action was itself speech, the panel
“Sheriff Clark’s disclosure of Hutchins’ disciplinary
history did not constitute a threat, coercion or intimidation that
punishment, sanction, or adverse regulatory action would immediately
follow, and so were not actionable under § 1983,” Judge Bauer
wrote. “Even if some ‘harassment and ridicule’ might
be retaliatory speech under § 1983, Sheriff Clark’s
statements did not rise to that level.”
Judge Ann Claire Williams wrote a concurring opinion to clarify that
the majority’s opinion does not disturb the well-settled position
that retaliatory speech is actionable under section 1983.
“Given the facts of this case – I, like the majority
– do not believe that Sheriff Clarke’s statements rise to
the level of actionability,” Judge Williams wrote.