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  • WisBar News
    October 05, 2015

    State Appeals Court Adopts Incorporation-by-Reference Doctrine in Retaliation Case

    Joe Forward

    Author’s Note: This opinion was withdrawn on Oct. 20, 2015. See Notice.

    Oct. 5, 2015 – A state appeals court recently used the “incorporation-by-reference” doctrine to end, for now, a lawsuit by a former forensic scientist who alleged that a supervisor within the Wisconsin Department of Justice retaliated against him.

    Eric Soderlund worked in the fingerprint and footwear identification division of the state crime lab for 19 years before resigning in 2012. Before resigning, Soderlund filed repeated complaints with DOJ and accrediting agencies, alleging the crime lab was not meeting quality assurance standards, which caused him to fail a proficiency test.

    One letter, sent to four accreditation board assessors who were scheduled to assess the crime lab where he worked, reiterated Soderlund’s allegations that DOJ was not adhering to its own quality assurance standards in the area of footprint analysis.

    Shortly after, David Zibolski, deputy director of DOJ’s Division of Law Enforcement Services, sent Soderlund a letter alleging that Soderlund had violated DOJ work rules. The letter informed Soderlund of an upcoming hearing to address the violations.

    After receiving the letter, Soderlund believed he could be terminated and decided to retire rather than risk losing retirement benefits. He tried to rescind his resignation the following day, but his supervisor denied the request. Soderlund’s lawsuit followed.

    He attempted to file, pro se, a lawsuit in Marathon County Circuit Court. The filing included his letter to the board assessors and the letter from Zibolski. Nothing happened until a lawyer helped him properly file the lawsuit several months later. The lawsuit alleged that Zibolski retaliated against him in violation of his free speech rights.

    Zibolski moved for judgment on the pleadings, and the circuit court granted judgment, concluding that Soderlund’s speech was not protected, Soderlund did not suffer adverse action deterring free speech, and Zibolski had qualified immunity. In making the decision, the court relied on the letter that Soderlund had submitted to the court.

    On appeal, he argued that the court considered matters outside the pleadings, and therefore the motion for judgment on the pleadings should have been converted to a motion for summary judgment, which would have allowed him to submit other material.

    Under Wis. Stat. section 802.06(2), a party may move for judgment on the pleadings, and allege that the pleadings fail to state a claim upon which relief can be granted.

    However, if matters outside the pleadings are presented to and not excluded by the court, “the matter shall be treated as one for summary judgment ... and all parties shall be given reasonable opportunity to present all material made pertinent to the motion.”

    Specifically, Soderlund argued that the circuit court should not have considered the letter he filed to accreditation board assessors because it was not attached to the complaint. But a three-judge appeals court panel rejected this argument.

    In Soderlund v. Zibolski, 2014AP2479 (Sept. 22, 2015), the District III Appeals Court adopted the incorporation-by-reference doctrine as an exception to the rule that requires motions for judgment on the pleadings to be converted to summary judgment motions.

    That is, a document that is referenced in the complaint is incorporated into the pleadings, regardless of whether the document is attached to the complaint.

    The panel noted that the doctrine prevents plaintiffs from evading a case dismissal by failing to attach documents to the complaint that prove the case is meritless.

    “Soderlund does not dispute that the three prerequisites for applying the incorporation-by-reference doctrine are satisfied here,” wrote Reserve Judge Thomas Cane, rejecting Soderlund’s claim that he needed notice that the letter would be considered.

    The panel explained that Soderlund’s complaint referenced his letter to assessors, the letter is authentic, and it is central to his claim that Zibolski retaliated against him.

    “Moreover, while Wis. Stat. § 802.06(2)(b) and (3) require that the nonmoving party be given a reasonable opportunity to present any additional pertinent materials, Soderlund has not identified what additional material he would have produced,” Judge Cane wrote. “Thus, even if those subsections applied, any error would be harmless.”

    The panel also ruled that Zibolski did not violate Soderlund’s free speech rights by initialing a disciplinary proceeding against him. His speech, the panel noted, was not protected because he did not speak as a citizen upon a matter of public concern.

    “Soderlund’s various communications merely concerned a longstanding disagreement with his employer over interpretation of the rules and standards governing his work as a forensic scientist in the state crime lab,” wrote Judge Cane, citing U.S. Supreme Court cases that bar free speech claims rooted in personal and not public interest.

    “Soderlund’s communications were all made in his capacity as an employee and concerned matters of personal interest,” Judge Cane explained.

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