Rakovich v. Wade, Civ. A. No. 82-C-254

• Decision Date: 04 March 1985
• Docket Number: Civ. A. No. 82-C-254,83-C-528.
• Citation: 602 F. Supp. 1444
• Parties: George RAKOVICH, Plaintiff, v. Gregory WADE and Darryl Drake, Defendants. George RAKOVICH, Plaintiff, v. Chester KASS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

602 F. Supp. 1444

George RAKOVICH, Plaintiff, v. Gregory WADE and Darryl Drake, Defendants.

George RAKOVICH, Plaintiff, v. Chester KASS, Defendant.

Civ. A. Nos. 82-C-254, 83-C-528.

United States District Court, E.D. Wisconsin.

March 4, 1985.

COPYRIGHT MATERIAL OMITTED

Michael O. Bohren, Milwaukee, Wis., for plaintiff.

Ronald L. Piette, G. George Lawrence, and Allan R. Strauss, Milwaukee, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This action under 42 U.S.C. § 1983 was tried to a jury, which awarded the plaintiff compensatory damages of $50,000 and punitive damages of $25,000 against defendant Wade, $25,000 against defendant Drake, and $40,000 against defendant Kass. Defendants have moved for a judgment n.o.v. or a new trial, and for an order striking the awards of compensatory and punitive damages. Rakovich has moved for an award of attorney fees, and for monetary sanctions against the defendants with respect to a discovery incident involving one Vincent Sheehan, and with respect to the purported harassment of a witness. The motions will be denied, except for the motion for attorney's fees.

I. FACTS

At trial, the jury found that the defendant police officers Drake and Wade retaliated against plaintiff for his exercise of First Amendment rights by investigating him, photographing him, recording his conversations and releasing a statement to the press that he would be criminally prosecuted, and that these actions were undertaken at the direction of the officers' superior, defendant Kass. The evidence at trial indicated that Rakovich had actively expressed his political opposition to the mayor or of Greenfield and other local officials, that he opposed a commendation of a Greenfield police officer, one Mary Foley, made by the Greenfield Police Department in conjunction with a burglary at a local business enterprise called "Cars, Unlimited," and that he conducted a private investigation of the burglary to determine whether there was a basis for the commendation. Rakovich proved that the defendants photographed him, recorded his conversations, and requested that he be summoned before the Milwaukee County District Attorney to be charged with violations of the Wisconsin criminal code, even though they knew that there was no reasonable basis for the surveillance or the charges. He further proved that the defendants disclosed to the media that he was the subject of a criminal investigation and had been ordered to appear before the District Attorney. His theory of liability was that the defendants' acts were undertaken in retaliation for his political activity. The defendants sought to justify their investigation on the grounds that Rakovich was apparently harassing a state's witness, but the jury rejected this defense.

II. DISCUSSION

In their motions for a new trial or a judgment n.o.v., the defendants argue that damage to reputation alone does not support a claim under 42 U.S.C. § 1983. They base their argument on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), which involved the distribution by local police officers of an allegedly defamatory leaflet. That case held that reputation alone, apart from some more tangible interest, does not implicate any liberty or property interests sufficient to invoke the procedural protections of the Due Process clause, and therefore mere defamation by a state official does not give rise to a cause of action under § 1983.

The argument misses the mark in this case. Rakovich sustained damages to his reputation as the result of defendants' acts undertaken in retaliation for his exercise of First Amendment rights, that is, his active political opposition to Greenfield public officials. Thus, the acts were undertaken to punish Rakovich for engaging in protected activity. Rakovich's theory of relief in this action is wholly consistent with other cases holding that acts undertaken by persons acting under color of state law in retaliation for political activity protected by the First Amendment may give rise to a claim under § 1983. See e.g. Bart v. Telford, 677 F.2d 622 (7th Cir.1982); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). The fact that Rakovich's injury took the form of damage to his reputation does not shield the defendants from liability under § 1983. See Benson v. Allphin, 544 F.Supp. 464 (N.D.Ill. 1982). It is the implication of Rakovich's rights freely to associate with persons of his choosing and to express political dissent that gives rise to his right of action under § 1983. Paul v. Davis is thus distinct.

Defendants further argue that they are immune by virtue of a good faith qualified immunity defense. The jury was instructed on this point, and it disagreed. The evidence in this regard raised a question for the jury, and there was evidence to support their verdict. It will not be set aside on this ground.

Defendants also argue that they were performing a quasi-prosecutorial function after Assistant District Attorney Frank Crivello became involved, and are therefore absolutely immune. They base this argument on the evidence that defendants Wade and Drake, the two police officers, met with Crivello during their investigation of Rakovich and that Crivello advised them with respect to the investigation and with respect to whether they could release information to the press. They rely on Crivello's testimony that they were acting as his agents.

The defense of absolute immunity is not applicable to these defendants. By their reasoning, any investigator who confers with a prosecuting official would suddenly be shielded from civil liability with respect to a pending investigation. Crivello's testimony is by no means conclusive of the issue of defendants' authority to act as they did. The verdict will not be set aside on this basis.

Defendants have moved that the award of compensatory damages be stricken, on the ground that the amount was intended to compensate Rakovich for the injury to his reputation and was therefore speculative. However, emotional harm and injury to reputation are compensable in actions under the Civil Rights Act of 1866. See e.g., Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir.1974). Evidence of financial loss or medical evidence of mental impairment are not essential. Rakovich testified at some length that the incident caused him great humiliation and damaged his reputation. The jury, being instructed not to speculate, determined an amount that would fairly compensate him. The award of compensatory damages will not be stricken.

Defendants' motion to strike the punitive damages award will also be denied. Whether the defendants' acts were malicious, or in reckless or wanton disregard of Rakovich's rights, was a question for the jury, and the jury determined that an award of punitive damages was appropriate. There was sufficient evidence to raise a jury question in this respect, and sufficient evidence to support the award.

Defendants have also moved for a new trial on the grounds that the verdict was against the weight of the evidence. I disagree. There was evidence sufficient to show the defendants took action against Rakovich in vindictive retaliation for his political activity, that the defendants did not act in good faith, that their conduct was malicious or in reckless disregard of Rakovich's rights, and that Rakovich was injured thereby. The verdict is not against the weight of the evidence.

Defendants also have moved for a new trial on the grounds that the damage awards are excessive and that they were prejudiced by the Court's refusal to give their proffered absolute immunity instruction. The evidence was sufficient to support the compensatory and punitive damage awards, but insufficient to create any question that the defendants might have been absolutely immune.

The defendants also argue that they were unfairly prejudiced by the Court's comment, in the presence of the jury, that "you have a constitutional right in your good name." In the context of the entire proceeding, this remark did not prejudice the defendants. The jury was instructed at length on the plaintiff's burden of proof and the law applicable to his claims, but it was never instructed that a good reputation is a constitutional right. It was instructed that the rights to associate freely and to express dissent with respect to public officials' acts were constitutionally protected, and the jury determined that the defendants violated these rights. A new trial will not be ordered on this ground.

Defendants have moved for a new trial on the basis of their discovery that Nancy Allan, who is a reporter for the Greenfield Observer and was one of Rakovich's witnesses, gave materially false testimony. Apparently, the motion is made under Fed.R.Civ.P. 59. The Court did not receive this motion until October 30, 1984, but it was apparently omitted by oversight when defendants filed their other motions, and so the Court will consider it.

When a new trial is sought under Fed.R. Civ.P. 59 on the ground that a witness has committed perjury at trial on an issue central to the litigation, the court must inquire into the extent of the perjury to determine whether a new trial should be ordered. Phillips v. Crown Central Petroleum Corp., 556 F.2d 702 (3d Cir.1977).

In this case, there was a dispute over the date on which Ms. Allan was told that Rakovich had been ordered to appear before the Milwaukee County District Attorney. This dispute is not a proper basis for ordering a new trial for two reasons. First, Ms. Allan has sworn that she disagrees with the defendants' recitation of what her testimony should have been, and that she stands by her trial testimony. She does not concede she has given false testimony. If defendants thought her testimony was false at the time she gave it, they should have tried to impeach her testimony at trial. Second, even if her testimony...