Hutchins v. Clarke

• Decision Date: 24 October 2011
• Docket Number: No. 10–2661.,10–2661.
• Citation: 80 Fed.R.Serv.3d 1404,661 F.3d 947,32 IER Cases 1654
• Parties: David HUTCHINS, et al., Plaintiffs–Appellees, v. David A. CLARKE, Jr., et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

32 IER Cases 1654

661 F.3d 947

80 Fed.R.Serv.3d 1404

David HUTCHINS, et al., Plaintiffs–Appellees,

v.David A. CLARKE, Jr., et al., Defendants–Appellants.

No. 10–2661.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2011.Decided Oct. 24, 2011.

Christopher J. MacGillis (argued), Attorney, MacGillis Wiemer, LLC, Wauwatosa, WI, for Plaintiffs–Appellees.

James R. Scott, Oyvind Wistrom (argued), Attorneys, Lindner & Marsack, Milwaukee, WI, for Defendants–Appellants.

Before BAUER, FLAUM and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Milwaukee County Deputy Sheriff David Hutchins brought an action for comments made by Milwaukee County Sheriff David Clarke regarding Hutchins' disciplinary history with the sheriff's department. The district court granted the plaintiffs' motions for summary judgment, finding that Sheriff Clarke violated (1) Wisconsin's Open Records Law, Wis. Stat. §§ 19.31–19.39; (2) Wisconsin's Right of Privacy statute, Wis. Stat. § 995.50; and (3) 42 U.S.C. § 1983 for retaliation and depriving Hutchins of his First Amendment right to free speech. We reverse the district court on all three counts.

I. BACKGROUND

This case arises from a pair of on-air phone calls to a popular Milwaukee, Wisconsin radio show, one from Hutchins and the other from Sheriff Clarke. On May 17, 2007, a discussion regarding Sheriff Clarke's avoidance of certain African–American groups took place on the “Eric Von Show,” a listener-interactive radio show which is broadcasted on WMCS AM 1290. On that day, Hutchins, a routine listener and caller, called the show in response to the critical comments regarding Sheriff Clarke's involvement with an African–American community organization dedicated to reducing crime. Hutchins was likewise critical of Sheriff Clarke, stating words to the effect that Sheriff Clarke was not a good fit for the Milwaukee County Sheriff position. In response to Hutchins' comments, Sheriff Clarke called the Eric Von Show and retorted by calling Hutchins a “slacker” who did not deserve to be an employee of the sheriff's department. Sheriff Clarke expressed the view that Hutchins was bitter and carried a grudge against him because of a disciplinary action taken in 2004 by him against Hutchins. Sheriff Clarke identified this disciplinary action on-air as a step taken as a result of Hutchins' “sexual harassment” of another employee. In actuality, the disciplinary action was for Hutchins' violation of a department rule that prohibited offensive conduct or language toward the public or toward county officers or employees.

Hutchins and the Milwaukee Deputy Sheriff's Association filed a complaint alleging that the defendants violated Hutchins' First Amendment right to free speech and both plaintiffs' First Amendment right of free association by retaliating against the plaintiffs, in violation of 42 U.S.C. § 1983. The plaintiffs also alleged that the defendants violated the plaintiffs' rights under Wisconsin statutory law, specifically under (1) Wisconsin's Law Enforcement Officers' Bill of Rights, Wis. Stat. §§ 164.015, 164.03; (2) Wisconsin's Municipal Employment Relations Act, Wis. Stat. § 111.70(2), (3) Wisconsin's Open Records Law, Wis. Stat. §§ 19.31–19.39; and (4) Wisconsin's Right of Privacy statute, Wis. Stat. § 995.50(2)(c).

Both parties filed motions for summary judgment on all counts. The district court granted summary judgment in favor of the plaintiffs on (1) their claim under § 1983 for Sheriff Clarke's disclosure of Hutchins' disciplinary history, (2) their claim under Wisconsin's Open Records Law, and (3) their claim under Wisconsin's Right of Privacy statute. The court granted the defendants' motions for summary judgment on the remaining claims.

The defendants filed a motion for reconsideration and the district court issued an order denying the motion. The defendants have appealed the claims under Wisconsin's Open Records Law, Wisconsin's Right of Privacy statute, and § 1983 for retaliation in Sheriff Clarke's disclosure of Hutchins' disciplinary history.

II. DISCUSSION

A. Wisconsin's Open Records Law

The district court granted summary judgment in favor of Hutchins, finding that Sheriff Clarke violated Wisconsin's Open Records Law by failing to provide notice and failing to conduct a balancing test before orally discussing the contents of Hutchins' disciplinary file. The appellants argue that the district court erred when it applied Wisconsin's Open Records Law to Sheriff Clarke's oral reference to Hutchins' disciplinary record. We agree and can dispose of this issue without delving much into the district court's analysis or the parties' arguments; Wisconsin's Open Records Law simply does not apply to the facts of this particular case, and the plaintiffs have no claim under the statute.

Wisconsin's Open Records Law was enacted to provide the public with “the greatest possible information regarding the affairs of the government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The statute provides that “except as otherwise provided by law, any requester has a right to inspect any record.” Wis. Stat. § 19.35(1)(a). With regard to a record containing information about an employee's disciplinary history, as in this case, the statute provides that if the authority decides to permit access to the requested record, the authority shall serve written notice on the employee. Wis. Stat. § 19.356(2)(a). When deciding whether to open a record, the authority must conduct a balancing test to weigh the public interest in protecting its citizens' reputations and privacy against the strong public interest in maintaining open records. Woznicki v. Erickson, 202 Wis.2d 178, 549 N.W.2d 699, 703 (1996). Once the employee receives notice, the employee then has the option of seeking a court order to restrain the authority from permitting access to the record. Wis. Stat. § 19.356(4).

Here, the facts in the record show that Sheriff Clarke called into a radio show and, spontaneously or not, discussed details regarding Hutchins' disciplinary history. Nothing from this set of facts leads us to the conclusion that Wisconsin's Open Records Law should be invoked. There was no request to inspect Hutchins' disciplinary record, no permission granted, and no balancing test undertaken.¹ Perhaps the plaintiffs themselves said it best in their own motion for summary judgment: “Compounding the problem is the undisputed fact that nobody sought access to Hutchins' personnel file in the first place. As there was no ‘request,’ there was nothing to ‘balance,’ and the release of such information must be seen for what it was—an attempt to smear Hutchins in front of the audience of the Eric Von Show....” While the plaintiffs have since changed their tune, we find this initial argument much more persuasive than their current one.

While Wisconsin courts have not yet considered this issue, we believe our opinion is consistent with the trajectory of Wisconsin case law. Prior to the decision in Woznicki v. Erickson, the Open Records Law only authorized a requester to bring an action for mandamus compelling a custodian to release a record under Wis. Stat. § 19.37. Woznicki changed this, holding that an employee who wishes to keep the authority from disclosing the requested information may also bring an action under the statute. The Open Records Law was then amended to reflect the employee's right to sue under these circumstances. Hutchins would have us take this a step further and create a cause of action when the procedures in the Open Records Law were not followed, thus turning the statute into some kind of enforceable due process right. We must reject Hutchins' interpretation of the Open Records Law because it vastly expands the causes of actions under the statute.

Although Wisconsin's Open Records Law is not applicable here, we note that Hutchins could have (and in some cases did) brought his complaint under a number of more applicable theories, including but not limited to defamation, right of privacy, or retaliation, but Wisconsin's Open Records Law has no application here. While we find Sheriff Clarke's on-air comments regarding Hutchins' disciplinary history insensitive, not to mention inaccurate, we cannot say that his actions were in violation of Wisconsin's Open Records Act, and we reverse the decision of the district court on this issue.

B. Wisconsin's Right of Privacy Statute

The plaintiffs argue that the defendants invaded Hutchins' right of privacy in violation of Wisconsin's Right of Privacy statute, Wis. Stat. § 995.50, and the district court found in favor of the plaintiffs. The relevant section of the act defines “invasion of privacy” as,

[p]ublicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

Wis. Stat. § 995.50(2)(c).

There is most certainly a question of material fact as to the first four factors that create the invasion of privacy claim (which, we note, appear to weigh heavily in favor of the plaintiffs). However, we do not reach this analysis because the information communicated is available to the public as a matter of public record.

The appellants' argument with regard to the right of privacy claim is that Hutchins' disciplinary record is considered a public record because the record is the product of a closed investigation, and records of employee misconduct may be released under Wisconsin's Open Records Law once the investigation has concluded.² The district court addressed this argument and disagreed, stating that Hutchins' disciplinary file was not a public record, basing this...