Federal court rules against Milwaukee County deputy in radio spat with sheriff

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 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 disciplinary action.

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.

No violations

First, the panel ruled that Hutchins’ open records claim did not apply.

“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 followed.

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 Hutchins’ case.”

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 explained.

Here, the retaliatory action was itself speech, the panel explained.

“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.