Sebring v. Milwaukee Pub. Sch.
| Decision Date | 01 November 2021 |
| Docket Number | Case No. 21-C-0959 |
| Parties | Daniel P. SEBRING, Plaintiff, v. MILWAUKEE PUBLIC SCHOOLS and Milwaukee Board of School Directors, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Anthony F. LoCoco, Lucas Vebber, Richard M. Esenberg, Wisconsin Institute for Law & Liberty Inc., Milwaukee, WI, for Plaintiff.
Miriam R. Horwitz, Zachary J. Flood, Crivello Carlson SC, Milwaukee, WI, for Defendants.
DECISION AND ORDER
Daniel P. Sebring commenced this action in Milwaukee County Circuit Court against the Milwaukee Public Schools ("MPS") and the Milwaukee Board of School Directors. He contends that MPS's policy of allowing its employees who are union representatives to take up to ten days of paid leave each year to engage in union activities violates the free-speech guarantee of the Wisconsin Constitution, Article I, § 3, and Wisconsin's public-purpose doctrine. The plaintiff is not personally affected by the leave policy, but he contends that because he pays state and local taxes, which in turn are used to fund MPS, he indirectly subsidizes the policy and therefore has standing to challenge it in state court. The defendants removed the action to this court, contending that the plaintiff's claim under the Wisconsin Constitution "aris[es] under" federal law. 28 U.S.C. § 1331. Before me now is the plaintiff's motion to remand the case to state court and for an award of costs and attorneys’ fees for wrongful removal. See 28 U.S.C. § 1447(c).
According to the allegations of the First Amended Complaint, which the plaintiff filed in state court, MPS has an "Employee Handbook" that contains its policies related to employee leave and absences. Compl. ¶ 9.1 The handbook includes a section entitled "Union Leaves/Releases." Id. ¶ 11. According to this section, "[e]ach designated collective bargaining unit" may designate certain MPS employees as "union representatives." Id. MPS employees designated as union representatives are entitled to "a maximum of ten days per fiscal year" of paid leave to conduct "union-related activities." Id. ¶¶ 12, 15. The handbook does not define "union-related activities," id. ¶ 16, but the plaintiff alleges that union representatives use paid leave to engage in "union committee meetings, union conferences, union trainings, union employee appreciation events, and ... other union business," id. ¶ 20. The handbook provides that union representatives may also take paid leave to attend grievance or complaint hearings and collective-bargaining negotiations, and that such leave does not count towards the ten-day maximum. Id. ¶ 14. The complaint alleges that, during the 2017, 2018, and 2019 school years, MPS spent "thousands of dollars paying employees for hundreds of hours working on behalf of labor unions for the labor unions’ private purposes." Id. ¶ 17.
The plaintiff is a resident of the City of Milwaukee. Id. ¶¶ 5, 28. He alleges that he pays "local property taxes on an annual basis, state income taxes, and sales taxes." Id. ¶ 5. He alleges that "MPS is funded, in large part, by taxes paid by state and local taxpayers," and that "MPS receives more than $800 million per year from state and local taxpayers." Id. ¶¶ 26–27. He alleges that, because of MPS's union leave policy, taxpayer money is used to subsidize "the speech and activities of labor unions." Id. ¶ 25. The plaintiff, however, "disagrees with the views expressed by, and much of the advocacy engaged in by various public sector labor unions, including MPS’ Labor Unions, and does not wish to subsidize their activities." Id. ¶ 31.
Because of his opposition to the union-leave policy, the plaintiff filed the present suit in state court against MPS and the Milwaukee Board of School Directors, seeking declaratory and injunctive relief against the policy. His complaint contains two counts. Count One alleges that the union-leave policy violates the Wisconsin Constitution's guarantee of freedom of speech, Wis. Const. Art. I, § 3, because it uses tax dollars to subsidize the private speech of labor unions. Compl. ¶¶ 33–52. In this count, the plaintiff cites to cases decided by the Supreme Court of the United States involving the Free Speech Clause of the First Amendment, such as Janus v. AFSCME, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). Id. ¶¶ 38–43. He also cites to a case decided by the Wisconsin Supreme Court noting that the Wisconsin Constitution guarantees "the same freedom of speech ... as do the First and Fourteenth Amendments of the United States Constitution." Id. ¶ 36 (citing Lawson v. Housing Auth. of City of Milwaukee , 270 Wis. 269, 70 N.W.2d 605 (1955) ). But the plaintiff also cites to a case noting that "it remains the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court under the Fourteenth Amendment." Id. ¶ 37 (citing State v. Doe , 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977) ).
Count Two of the complaint alleges that the union-leave policy violates the "public purpose doctrine" that the Wisconsin Supreme Court has developed as a state constitutional doctrine. Id. ¶¶ 53–62. According to the plaintiff, under this doctrine, public funds may be expended only for public purposes, and any expenditure of public funds for private purposes "would be abhorrent to the [C]onstitution of Wisconsin." Id. ¶ 55 (citing State ex rel. Warren v. Nusbaum , 59 Wis. 2d 391, 414, 208 N.W.2d 780 (1973) ). The plaintiff alleges that the union-leave policy "allows the expenditure of public funds solely to support and advance the mission and expressive advocacy goals of a labor union," which is not a public purpose. Id. ¶¶ 58–59.
After receiving service of the state-court summons and complaint, the defendants removed the action to this court under 28 U.S.C. § 1441. The notice of removal alleges that this action is within the original jurisdiction of a district court under 28 U.S.C. § 1331 because the plaintiff's right to relief "necessarily depends on the resolution of a substantial question of federal law." Not. of Removal ¶ 6. This is so, the defendants allege, because the Wisconsin Supreme Court interprets the free-speech guarantee of the Wisconsin Constitution consistently with the Free Speech Clause of the First Amendment to the United States Constitution. Id. ¶ 6.c. Thus, the defendants allege, the plaintiff's claim under the free-speech guarantee of the Wisconsin Constitution necessarily depends on whether the union-leave policy violates the Free Speech Clause of the First Amendment.
The plaintiff now moves to remand the case to state court and for an award of the costs and attorneys’ fees caused by the removal. See 28 U.S.C. § 1447(c). He contends that, for two reasons, his claims do not fall within the original jurisdiction of a United States district court. First, he insists that his claim under the free-speech guarantee of the Wisconsin Constitution does not arise under federal law. Second, he contends that, because he brings this suit solely as a taxpayer, he does not have Article III standing to challenge the union-leave policy in federal court.
Under 28 U.S.C. § 1441(a), a defendant may remove a "civil action brought in a State court of which the district courts of the United States have original jurisdiction." But a party who opposes the removal may file a motion to remand the case to state court. See 28 U.S.C. § 1447(c). "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Id.
In the present case, the defendants contend that this court has original jurisdiction over the plaintiff's state-court action under 28 U.S.C. § 1331, which grants district courts original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Whether a civil action arises under federal law is determined by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).
"The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. ; see also The Fair v. Kohler Die & Specialty Co. , 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) (). Further, because "[o]nly state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant," Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425, a complaint that satisfies the well-pleaded complaint rule may not be removed to federal court if the plaintiff lacks Article III standing to assert the claim. Collier v. SP Plus Corp. , 889 F.3d 894, 896–97 (7th Cir. 2018).
In the present case, the plaintiff contends that the case must be remanded because his state constitutional claims do not arise under federal law and he does not have Article III standing to assert any claim against the union-leave policy based on his status as a taxpayer.
As noted, the plaintiff brings two claims under the Wisconsin Constitution and does not assert a claim for relief under the Constitution of the United States or any other federal law. Although the plaintiff's factual allegations are perhaps consistent with a claim under the Free Speech Clause of the First Amendment, he has exercised his right, as master of the complaint, to rely exclusively on state law. Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425 ; The Fair , 228 U.S. at 25, 33 S.Ct. 410. Thus, federal law...
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