Luce v. Town of Campbell

• Citation: 113 F.Supp.3d 1002
• Decision Date: 16 June 2015
• Docket Number: No. 14–cv–046–wmc.,14–cv–046–wmc.
• Parties: Gregory LUCE and Nicholas Newman, Plaintiffs, v. TOWN OF CAMPBELL, wisconsin and Tim Kelemen, Defendants, and Community Insurance Corporation, Intervening Defendant, v. Town of Campbell, Wisconsin and Tim Kelemen, Third–Party Defendants.
• Court: U.S. District Court — Western District of Wisconsin

113 F.Supp.3d 1002

Gregory LUCE and Nicholas Newman, Plaintiffs,

v.TOWN OF CAMPBELL, wisconsin and Tim Kelemen, Defendants,andCommunity Insurance Corporation, Intervening Defendant,

v.Town of Campbell, Wisconsin and Tim Kelemen, Third–Party Defendants.

No. 14–cv–046–wmc.

United States District Court, W.D. Wisconsin.

Signed June 16, 2015.

Bernardo Cueto, Wislawyer LLC, La Crosse, WI, Erin Kuenzig, Erin E. Mersino, Ann Arbor, MI, for Plaintiffs.

Justin Harold Lessner, Lori Marie Lubinsky, Justin Harold Lessner, Lori Marie Lubinsky, Axley Brynelson, LLP, Madison, WI, James George Birnbaum, Jessica Taylor Kirchner, Birnbaum, Seymour, Kirchner & Birnbaum, LLP, La Crosse, WI, Martin James De Vries, Sager, Colwin, Samuelsen & Associates, S.C., Fond Du Lac, WI, for Defendants.

Michele Mary Ford, Crivello, Carlson & Mentkowski, S.C., Milwaukee, WI, for Intervening Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

In this suit under 42 U.S.C. § 1983, plaintiffs Gregory Luce and Nicholas Newman challenge a Town of Campbell ordinance prohibiting signs, banners and other items from overpasses on Interstate 90 within the town limits. Plaintiffs contend that this new ordinance, which was adopted in October 2013, violates their First Amendment rights. In addition, Luce claims that defendant Tim Kelemen, then Chief of Police for the Town of Campbell, violated his right to petition without retaliation, invaded his privacy and committed civil identity theft. The Town's insurer, Community Insurance Corporation, subsequently intervened, seeking a declaratory judgment that it has no duty to defend or cover the claims asserted against defendant Kelemen alone.

Each party has moved for summary judgment. For the reasons explained more fully below, the court will grant the Town's and Kelemen's motions for summary judgment on plaintiffs' claims for violation of their rights to free speech and assemble under the First Amendment (dkt. # 60, 65), finding no genuine issue of material fact that the challenged ordinance constitutes a reasonable time, place and manner restriction. As explained more fully below, the court will also grant intervening defendant CIC's motion for summary judgment (dkt. # 70), finding that the claims asserted against Kelemen alone were all premised on his posting of internet comments about Luce and using Luce's personal identifying information to sign him up for unwanted websites. Because these actions plainly fall outside the scope of Kelemen's employment, CIC has no duty to defend or cover them.

Finally, the court is inclined to grant judgment on Luce's remaining retaliation claim under the First Amendment asserted against Kelemen on the grounds that Kelemen was not acting under color of state law when he retaliated against Luce. Because defendant did not directly assert this defense, however, the court will provide Luce with an opportunity to explain why judgment should not be entered in Kelemen's favor on this last federal claim.¹ Fed.R.Civ.P. 56(f).

UNDISPUTED FACTS²

I. The Parties

Plaintiff Gregory Luce is a resident of La Crosse County, Wisconsin. For some time, Luce has been involved with the La Crosse Tea Party—a group of individuals who share common political beliefs, including a desire for lower taxes and limited government. In keeping with his religious beliefs as a practicing Catholic, Luce also actively opposes abortion, including President Obama's position on abortion. Particularly relevant to this lawsuit, Luce participates in protests against abortion and President Obama's policies on the pedestrian overpass that spans Interstate 90 in the Town of Campbell. Plaintiff Nicholas Newman is also a resident of La Crosse County and involved with the La Crosse Tea Party. Like Luce, Newman protested with signs and banners on the pedestrian overpass, and wishes to do so in the future.

The Town of Campbell is located in western Wisconsin near the Mississippi River, just north of La Crosse. Defendant Tim Kelemen was the Chief of Police for the Town when it passed Ordinance 9.12 and during all times relevant to this action. Kelemen has since resigned from his position as Chief of Police and is no longer employed by the Town.

Intervenor defendant Community Insurance Corporation ("CIC") issued a public entity liability insurance policy to the Town of Campbell covering the time relevant to this lawsuit. The Town and Kelemen tendered their defense of the claims asserted in plaintiffs' complaint to CIC, seeking insurance coverage. CIC accepted the defense for both defendants, but now seeks a declaratory judgment that it has no duty to defend or cover Kelemen for any of the claims asserted against him.

II. Facts Relevant to Plaintiffs' First Amendment Claim

A. Interstate 90 and Overpasses in the Town of Campbell

Interstate 90 passes through the Town of Campbell just east of the Wisconsin–Minnesota state line. There are two vehicular overpasses and one pedestrian overpass above Interstate 90 within the town's limits. The pedestrian overpass connects Bainbridge Street and stretches over I–90, as illustrated below:

(Declaration of Scott Johnson, Ex. 1 (dkt. # 62–1) 1.) As reflected in the picture, this overpass is located near traffic lanes exiting and merging from Dawson Avenue, as shown by the third lane in both directions of traffic. The two vehicular overpasses are similarly located in areas where traffic is merging onto and/or off of Interstate 90.

A 2008 traffic study shows that between 23,100 and 29,500 vehicles travel on Interstate 90 running through Campbell on a daily basis. During his employment with the Town, Kelemen responded to numerous traffic accidents on this stretch of I–90, and classified it as a significant risk area given the volume of traffic and frequency of accidents. For their part, plaintiffs view this same traffic flow below the overpasses as a "unique opportunity to share their message to both a local audience and an out-of-state audience." (Pls.' Reply to Pls.' PFOFs (dkt. # 101) ¶ 24.) Plaintiffs also dispute the assertion that this stretch of interstate has a "high accident rate." (Pls.' Resp. to Campbell's PFOFs (dkt. # 89) ¶ 33.)

The Town of Campbell has never permitted advertisements to be displayed from an overpass, though plaintiffs point out that there is a Days Inn sign located 101.5 feet from the Bainbridge pedestrian overpass.³

B. Protest Activities

On August 6, August 17, September 11, and September 24, 2013, protests occurred on the pedestrian overpass.⁴ Defendants submitted photographs and a video of one of the protests. (Declaration of Justin H. Lessner, Exs. 1–5. (dkt. # 63–1 to 63–5).) These exhibits show people standing on the overpass holding or otherwise affixing large "IMPEACH OBAMA" signs, other small signs stating "HONK TO IMPEACH OBAMA," and American flags. In the video taken from the La Crosse Tea Party website, vehicles can be heard honking their horn as they pass under the signs and other displays. (Pls.' Resp. to Campbell's PFOFs (dkt. # 89) ¶¶ 130, 149.)

C. Justification for Sign Ordinance

As Chief of Police at that time, Kelemen personally witnessed these protests and observed traffic slowing and braking in response to the signs, banners, and other items displayed on the overpass. He also observed vehicles pulling over onto the shoulder of Interstate 90 to take photographs and observe the signs. In addition, Kelemen received several phone calls from residents and travelling motorists complaining about traffic safety issues caused by these protests.⁵ In particular, individuals complained that drivers had to slam on their brakes at or near the overpass.

At some point, Kelemen advised Scott Johnson, the Chairperson of the Town's Board, of the need to take action to prevent traffic accidents caused by the signs, as well as other items displayed during the protests on the pedestrian overpass. Kelemen believed the overpass sign ordinance was needed to protect traffic safety based on his training, experience, and his personal observations of the overpass protests. Kelemen also discussed traffic conditions on Interstate 90 in Campbell with several Wisconsin State Patrol officers, who informed him that it is a dangerous area. Kelemen further researched sign ordinances passed by other municipalities, including the City of Madison, Wisconsin's ordinance that was previously challenged in court.⁶

In addition, Kelemen learned of traffic incidents caused by similar overpass protests in other parts of the country. According to Plaintiffs, however, "[t]hese incidents occurred in significantly different traffic environments than what is present in the Town of Campbell." (Pls.' Resp. to Campbell's PFOFs (dkt. # 89) ¶ 89.) Still, there is no dispute that these other traffic incidents were caused by similar overpass protests.

In evaluating the need for an overpass sign ordinance, Chairperson Johnson relied on the history of the overpass, Kelemen's concern about safety issues created by overpass signs, the number of accidents that had occurred on Interstate 90 in Campbell, and personal experiences in driving Interstate 90. Johnson personally drives Interstate 90 on nearly a daily basis. Moreover, Johnson received traffic safety training through his employer, Waste Management, which included information on the risks of distracted driving. While plaintiffs dispute whether Johnson's training experience qualifies him as an "expert in traffic safety," (Pls.' Resp. to Campbell's PFOFs (dkt. # 89) ¶¶ 31, 90), it is not disputed that Johnson had training in traffic safety, nor that he relied on that and other personal experience in evaluating the necessity for an overpass sign ordinance.

D. Ordinance 9.12

On September 10, 2013, a proposed ordinance was read into the record at a Town of Campbell Board of Supervisors' meeting and opened for public comment. After the Board introduced the proposed ordinance, members of the public were allowed to speak at the September 10th meeting. Among others, Luce spoke...