Glass v. Dachel
| Decision Date | 11 August 1993 |
| Docket Number | No. 92-3133,92-3133 |
| Citation | 2 F.3d 733 |
| Parties | William R. GLASS, Plaintiff-Appellee, v. Alfred H. DACHEL and County of Chippewa, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lester A. Pines (argued), Richard Thal, Cheryl Rosen Weston, Cullen, Weston, Pines & Bach, Madison, WI, for plaintiff-appellee.
Eric J. Wahl, Wiley, Wahl, Colbert, Norseng, Cray & Harrell, Eau Claire, WI (argued), for defendants-appellants.
Before POSNER and MANION, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
A county sheriff reprimanded a deputy for complaining to a fellow officer about the possible theft of a lawn mower from the county's property room. The district court granted the plaintiff deputy summary judgment. The issues on appeal are whether the sheriff deprived the deputy of his First Amendment rights, 42 U.S.C. Sec. 1983, and whether the sheriff enjoys qualified immunity from any damages. We conclude that the deputy's speech did concern a public matter, but we reverse the district court because a material issue of fact is in dispute as to whether the sheriff's reasons for reprimanding the deputy involved promoting the efficient and effective operation of the sheriff's department.
William Glass began working for the Chippewa County Sheriff's Department in 1977. In 1990, he ran for sheriff against Alfred Dachel. Glass lost the election but continued as a deputy. On May 8, 1991, Robert Wanish, another deputy sheriff who worked as a jailer, informed Glass that Wanish would be meeting soon with the Wisconsin Department of Justice, Division of Criminal Investigations (DCI). DCI was investigating whether a deputy sheriff in Chippewa County had sold small quantities of marijuana prior to his employment. Later that day, while off-duty and at home, Glass telephoned Wanish (also off-duty and at home) regarding a possible thief in the department. He accused his supervisor, Captain Curtis Folska, of taking a lawn mower from the county's "found room" that houses lost or abandoned property. During their conversation, Glass also discussed possible tampering with a file concerning a ten-year old murder investigation and the county's switching his assigned squad car once he had purchased it. Unbeknownst to Glass, Wanish tape recorded much of the conversation. Pursuant to this conversation Wanish reported the lawn mower incident to DCI.
Wanish was not Glass' supervisor or otherwise in his "chain of command." Other than his anticipated meeting with DCI, Wanish had no official authority as an internal investigator or some similar designation. In addition to talking with Wanish, Glass contacted the Chippewa County district attorney about Folska and the lawn mower. Apparently through his past experiences in the department, Glass believed that Dachel would not adequately investigate his allegations. At some point the lawn mower incident hit the local newspapers (from an anonymous source). Although no criminal charges ever materialized, the district attorney ultimately found that Folska had violated a county ordinance and recommended a citation and fine be imposed.
A couple of months later, on July 3, 1991, Glass met with members of DCI and the Chippewa County Law Enforcement Committee (Enforcement Committee). By that time, Glass was of the opinion that Folska had not taken the lawn mower for personal use but possibly had fixed it for use on the police firing range. The investigation, however, was not over. Dachel had become aware of Glass' tape-recorded conversation with Wanish, and on July 8 the tape was played during another meeting of the Enforcement Committee. Before hearing the tape, Dachel was not aware that Glass was critical of any investigation. This case arose because on August 7, 1991, after discussions with the Enforcement Committee, Dachel issued Glass a private letter of reprimand. In pertinent part, the reprimand letter states Upon information and belief, the undersigned believes that you took no steps to communicate your concerns and suspicions to either a person in the supervisory chain of command within this Department or to a responsible law enforcement authority outside of this Department, for purposes of pursuing an investigation. Instead, you chose to proceed outside of channels to express your personal viewpoints and allegations, to the detriment of the Department.
* * * * * *
Your action in telephoning Deputy Wanish and informing him of your belief that Officer Folska had engaged in a crime and that said crime would be covered up by the undersigned constituted inappropriate conduct on your part, unbecoming an officer. Your failure to have proceeded to express your concerns and to share your evidence (if any) with supervisors in the chain of command and your act in communicating your suspicions to a fellow officer constitute grounds for disciplining you in this fashion.
* * * * * *
I need to be able to place my trust in deputies to fulfill the responsibilities of my office. It is imperative that a sheriff's department promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution. This department, subject to the leadership of the undersigned, has a substantial interest in developing discipline, esprit de corps and uniformity so as to insure the safety of persons and property.
* * * * * *
As you are aware, a procedure has been instituted under the direction of the undersigned for the performance of internal investigations through outside means, where necessary. In the future, should you have suspicions that Departmental employees or officers are engaging in illegal activities, you are urged to avail yourself of said policy and procedures.
The sheriff's department follows a system of progressive discipline; thus, it is feasible that the written reprimand could thereafter lead to suspension or discharge. The department did not have a written rule or regulation outlining a procedure for reporting internal misconduct until April, 1992, well after the issuance of the reprimand letter.
On February 26, 1992, Glass sued Dachel and the County of Chippewa for declaratory and injunctive relief, compensatory and punitive damages, and attorneys' fees. The defendants moved to dismiss the complaint because the reprimand letter was not so significant as to amount to a constitutional violation. They also moved for summary judgment claiming that Glass' speech did not involve matters of public concern, that the interests of the sheriff's department outweighed Glass' First Amendment rights, and that the defendants enjoyed qualified immunity. On May 29, 1992 the district court denied the motions, finding that the reprimand letter infringed Glass' right to speak on a matter of public concern. The court also refused qualified immunity, finding the law sufficiently clear that any reasonable officer would have known that the reprimand violated the constitution. 1
On June 29, the defendants filed a motion in the district court to extend time in which to appeal. On July 1, the district court denied the extension, finding among other things that no judgment had been entered and seeing no reason to certify the case under Rule 54(b). In fact, the district court even described the motion as an attempt to delay the case. That same day Glass moved for summary judgment, to which the defendants did not respond, and which the court granted for essentially the same reasons given earlier to deny the defendants' relief. The parties then stipulated to damages which the court ordered, thus finalizing the judgment for appeal.
In their notice of appeal, the defendants specifically appealed from the court's "granting summary judgment in favor of the plaintiff." In their opening brief to this court, however, the defendants attached only the district court's opinion denying their own motion for summary judgment and focused their arguments entirely on that ruling. Although the defendants included the short order granting summary judgment in favor of the plaintiff and against the defendants, they did not attach the August 3, 1992 opinion and order granting the plaintiff's motion for summary judgment. Glass moved to strike the defendants' brief because it did not include a copy of the court's entry granting summary judgment to Glass, and apparently because the brief focused on issues that he felt were not on appeal. The defendants responded by requesting this court to grant leave to consider the appeal from both of the district court's orders.
Initially we note that the defendants filed a proper notice of appeal pursuant to Fed.R.App.P. 3(c). 2 Glass assumes that because the district court finalized the case by granting summary judgment to the plaintiff, only that last order is before us on appeal. However, when the appellant appeals the final judgment, that judgment necessarily incorporates all earlier interlocutory decisions. Chaka v. Lane, 894 F.2d 923, 925 (7th Cir.1990). Because the defendants substantially complied with the rules of procedure, Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 2408-09, 101 L.Ed.2d 285 (1988), we will consider the appeal of both orders. In Chaka, the notice of appeal actually narrowed the issues by specifying an interlocutory order. Here, while the appellant's brief focused on an earlier order, the notice of appeal specifically and correctly appealed from the final judgment of August 25, 1992.
[N]aming an interlocutory order as the thing appealed from increases the information available to the court and the adverse parties. Instead of having to prepare for an attack on every decision taken in the case, the appellees may concentrate on the single order to which the notice of appeal points.
Id. By referring to the final order the...
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