Schertz v. Waupaca County

• Decision Date: 22 March 1988
• Docket Number: No. 86-C-739.,86-C-739.
• Citation: 683 F. Supp. 1551
• Parties: Michael SCHERTZ, Beverly Schertz and Michael E. Sias, Trustee in Bankruptcy, Plaintiffs, v. WAUPACA COUNTY, William Mork, Robert Andraschko, Dennis Kussmann, Larry Jensen, Donald Berglund, Louis Tomaselli, Carl Paetzke, and Unknown John Doe Insurance Cos., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

683 F. Supp. 1551

Michael SCHERTZ, Beverly Schertz and Michael E. Sias, Trustee in Bankruptcy, Plaintiffs, v. WAUPACA COUNTY, William Mork, Robert Andraschko, Dennis Kussmann, Larry Jensen, Donald Berglund, Louis Tomaselli, Carl Paetzke, and Unknown John Doe Insurance Cos., Defendants.

No. 86-C-739.

United States District Court, E.D. Wisconsin.

March 22, 1988.

COPYRIGHT MATERIAL OMITTED

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Alvin R. Ugent, Podell, Ugent & Cross, Milwaukee, Wis., for plaintiffs.

Robert Johnson, Cook & Franke, Milwaukee, Wis., for Waupaca County, William Mork, Robert Andraschko, Dennis Kussmann, Larry Jensen, and Donald Berglund.

David T. Flannagan, Asst. Atty. Gen., Madison, Wis., for Louis Tomaselli and Carl Paetzke.

DECISION AND ORDER

CURRAN, District Judge.

In the early morning hours of July 14, 1985, policeman Gerald Mork was found dead near Iola, Wisconsin. Iola's Police Chief Michael Schertz was subsequently arrested and tried for murdering Mork. However, a jury found Schertz not guilty of the murder and another jury found him not guilty of related charges of theft and misconduct in office. Shortly after the conclusion of this second trial, plaintiffs Michael Schertz and his wife Beverly filed the above-captioned lawsuit seeking compensatory and punitive damages and alleging that the defendants violated their federal civil rights and engaged in other tortious conduct which caused injury to them. The defendants¹ are: Waupaca County (Wisconsin); William Mork, Sheriff of Waupaca County and father of Gerald Mork; Robert Andraschko, Chief Deputy of the Waupaca County Sheriff's Department; Dennis Kussmann, Larry Jensen, and Donald Berglund, officers in the Waupaca County Sheriff's Department (the six, collectively called the "Waupaca County Defendants" throughout this opinion); and, Louis Tomaselli and Carl Paetzke, special agents for the Wisconsin Department of Justice (collectively called the "State Defendants" throughout this opinion). The court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 and the doctrine of pendent jurisdiction.

After the filing of the complaint on July 18, 1986, the defendants moved for summary judgment on the ground that they are immune from suit. The court granted their motions in part, but also gave the plaintiffs additional time to conduct discovery. See Decision and Order of March 24, 1987. All discovery in this case has now been completed and the defendants have again moved for summary judgment in their favor on the grounds that there are no material issues of disputed fact and that they are entitled to judgment as a matter of law. See Federal Rule of Civil Procedure 56. These motions are now fully briefed and ready for decision.

I. FACTS

In support of their motion for summary judgment and based on evidence in the record, the Waupaca County Defendants² have offered the following version of the circumstances surrounding this action:

In the early morning hours of July 14, 1985, Iola Police Officer Gerald Mork was found murdered in a Waupaca County cemetery. He had been shot twice in the back of the head.

Chief Deputy Robert Andraschko of the Waupaca County Sheriff's Department learned of the murder at approximately 5:30 a.m. He quickly decided to request the assistance of the Wisconsin Department of Justice in the investigation. Within hours of the discovery of the body, a thorough crime scene investigation was under way by members of the Waupaca County Sheriff's Department and the State Crime Lab.

This investigation was followed by the assignment of two Justice Department investigators, special agents Louis Tomaselli and Carl Paetzke, within days of the murder. Thereafter, and pursuant to Andraschko's request for state assistance, Tomaselli and Paetzke assisted in the murder investigation and in the prosecution of Schertz for murder, theft and misconduct in public office.

Waupaca County Sheriff William Mork was the father of Gerald Mork. He was out of the county, at Pelican Lake, Wisconsin, when his son's body was discovered. He was notified of the murder by a sergeant from the Oneida County Sheriff's Department. On the drive back to Waupaca, Sheriff Mork decided he should not participate in the investigation because the victim was his son. Consequently, on his arrival at the crime scene on July 14, Sheriff Mork removed himself from active participation in the investigation, and placed Chief Deputy Andraschko in charge on behalf of the Waupaca County Sheriff's Department. At no time did Sheriff Mork participate in any way in any investigation leading to the filing of charges against Schertz.

The investigation produced circumstantial evidence linking Schertz to the murder, as well as evidence he confiscated, and later sold, a private citizen's pistol.

On July 24, 1985, Special Agents Tomaselli and Paetzke, together with assistance from members of the Waupaca County Sheriff's Department (Andraschko, Berglund, Kussmann and Jensen), searched the Village of Iola Police Department office and the Schertz residence. These searches were conducted with Michael Schertz's express consent and in the presence of Schertz and his attorney, Thomas O. Schultz.

Schertz was originally taken into custody by Special Agent Tomaselli on July 24, 1985, following the search of his residence.

Several Waupaca County deputies were present, but did not actually take part in the arrest. Schertz was immediately transported to the Portage County Jail for incarceration. He was not jailed in Waupaca County. No use of force was necessary in making the July 24, 1985 arrest, nor was there ever any verbal or physical abuse of Schertz by any Waupaca defendant.

On July 25, 1985, a criminal complaint was issued charging Schertz with theft of a firearm and misconduct in public office. These charges were based upon certain statements against interest made by Schertz to Tomaselli, and statements of citizen witness Hayden, the owner of the firearm.

On August 3, 1985, after a hearing, Waupaca County Circuit Judge Philip M. Kirk determined there was probable cause to issue a warrant for the search of land and buildings owned by Schertz, including a liquid holding tank and septic system on the Schertz property. Waupaca County defendants Andraschko, Berglund and Kussmann participated in the search along with the state agents. This search, and the consent searches on July 24, 1985, were the only searches of Schertz or his property involving Waupaca defendants.

From August 3 to 22, 1985, a John Doe proceeding was conducted before Judge Kirk to investigate the murder. After hearing the testimony of eleven witnesses (including Schertz) over the course of five days, Judge Kirk determined there was probable cause to believe Schertz had murdered Officer Mork. Judge Kirk then ordered the issuance of a criminal complaint charging Schertz with first degree murder. On August 22, 1985, Judge Kirk issued a warrant for the arrest of Schertz on the murder charge.

On August 27 and 28, 1985, a preliminary hearing was conducted on the murder charge. Schertz was represented at the hearing by his attorney, Thomas O. Schultz. The testimony of 15 witnesses (resulting in 250 pages of transcript), and eight exhibits were produced. Schultz conducted extensive cross examination, which accounted for approximately three-fourths of the testimony. At the conclusion of the preliminary hearing, Judge Kirk determined there was probable cause to bind Schertz over for trial on the charge of first degree murder.

Also on August 28, 1985, a pretrial detention hearing was held following the preliminary hearing. Seven witnesses testified, and each was cross examined by Schultz. The court held, at the conclusion of the hearing, the State had proven by clear and convincing evidence Schertz had committed the murder.

On October 15, 1985 Schertz, through his attorney, once again challenged the sufficiency of the evidence to bind him over for trial for murder. This time, the motion was brought before Circuit Judge Robert Weisel. The judge independently reviewed the transcript of the preliminary hearing. Judge Weisel also determined there was sufficient cause for Schertz to stand trial for murder.

The preliminary hearing on the theft of weapon and misconduct in public office charges was scheduled before Circuit Judge John P. Hoffmann on August 23, 1986. Schertz waived his right to the preliminary, and the court found he had voluntarily and knowingly done so. The court denied defense motions to dismiss the complaint, and found there was probable cause to proceed.

On March 25, 1986, a preliminary hearing was held on the same charges. Judge Hoffmann, following the conclusion of the hearing, found there was probable cause to believe a felony had been committed and the defendant committed it. Subsequent motions to dismiss were denied on April 17, 1986, June 12, 1986, and twice during the July 1986 trial of the charges.

Brief in Support of Waupaca County Defendants' Second Motion for Summary Judgment at 2-7 (citations omitted). Ultimately, on December 12, 1985, a jury found Schertz not guilty of Mork's murder. And on July 11, 1986, another jury found Schertz not guilty of the crimes of theft and misconduct in public office.

The plaintiffs have not disputed any of these facts and the court finds that the defendants' version is supported by the record. However, the plaintiffs have also asked the court to consider their version of the Mork murder investigation:

Immediately following the discovery of the murder of Gerald Mork, the area of the murder in the cemetery was marked by plastic tape but the area was not sealed off, nor was it placed under 24 hour guard until the area had been examined for evidence. While it was clear that Mork was not alive, a rescue squad was called and allowed to enter the pit area, driving over tire tracks and otherwise disturbing the scene. The Sheriff's Department immediately

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