Soderbeck v. Burnett County, Wis.

• Decision Date: 16 June 1987
• Docket Number: No. 85-2146,85-2146
• Citation: 821 F.2d 446
• Parties: Arline M. SODERBECK, Plaintiff-Appellant, v. BURNETT COUNTY, WISCONSIN, and Robert Kellberg, Individually and as Sheriff of Burnett County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 446

821 F.2d 446

8 Fed.R.Serv.3d 241

Arline M. SODERBECK, Plaintiff-Appellant, v. BURNETT COUNTY, WISCONSIN, and Robert Kellberg, Individually and as Sheriff of Burnett County, Defendants-Appellees.

No. 85-2146.

United States Court of Appeals Seventh Circuit.

Argued May 7, 1986.

Decided June 15, 1987.

As Amended June 16, 1987.

Eric J. Magnuson, Rider, Bennett, Egan & Rrundel, Minneapolis, Minn., for plaintiff-appellant.

Lila Humble, Doar Drill & Skow, S.C., New Richmond, Wis., for defendants-appellees.

Before COFFEY, EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

COFFEY, Circuit Judge.

Plaintiff Arline Soderbeck brought suit against Burnett County, Wisconsin under 42 U.S.C. Sec. 1983 alleging that she was fired from her job in the Burnett County Sheriff's Office in violation of her rights under the First and Fourteenth Amendments. The initial trial resulted in a verdict in favor of Soderbeck against Burnett County. On appeal, this court reversed the judgment against Burnett County and remanded the case for retrial. See Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285 (7th Cir.1985) ("Soderbeck I "). Upon retrial the jury found for Burnett County, and Soderbeck appeals. We affirm.

I

Because the facts of this case have been set forth in our previous decision in Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285 (7th Cir.1985) ("Soderbeck I "), we need only elaborate on the facts relevant to this particular appeal. In 1975, the Burnett County Law Enforcement Committee, a subcommittee of the Burnett County Board of Supervisors, hired Mrs. Soderbeck as a bookkeeper for the Burnett County Sheriff's Department. Soderbeck's husband was the Burnett County Sheriff at that time, and the County's Law Enforcement Committee hired Arlene Soderbeck for the Sheriff as a subterfuge to avoid the appearance of a conflict of interest--that Sheriff Soderbeck hired his wife. Lowell Nelson, the chairman of the County's Law Enforcement Committee, testified at trial that the Committee only hired Mrs. Soderbeck after consulting with Sheriff Soderbeck. The record is devoid of any ordinance granting the Law Enforcement Committee the authority to hire or fire sheriff's department personnel, and the parties fail to cite any ordinance, policy, or law vesting such authority in the Law Enforcement Committee.

In 1979, Robert Kellberg defeated Soderbeck's husband in his re-election bid for sheriff of Burnett County. Upon taking office, Kellberg's first official act was to discharge Soderbeck. When Soderbeck learned that Kellberg intended to discharge her, she contacted Lowell Nelson, the chairman of the Burnett County Law Enforcement Committee, and asked him what course of action she should pursue to prevent her termination. Nelson told Soderbeck to continue working, but later on he informed Soderbeck that her employment would be terminated.

Shortly thereafter, Mrs. Soderbeck appeared at a subsequent meeting of the Law Enforcement Committee on January 4, 1979 to protest her firing, but the Committee refused to interfere with Kellberg's decision to discharge Soderbeck. Soderbeck brought a suit in the district court under 42 U.S.C. Sec. 1983 against Kellberg, the Burnett County Law Enforcement Committee, and Burnett County itself alleging that she was fired in violation of her rights under the First and Fourteenth Amendments of the United States Constitution.

Soderbeck's case went to trial and at the close of her case, the district judge directed a verdict for the Burnett County Law Enforcement Committee. The jury subsequently brought in a verdict against the remaining defendants, Kellberg and Burnett County. Burnett County appealed to this Court and we reversed the judgment against the county and remanded the case for further proceedings. Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285 (7th Cir.1985). We stated:

So her case against the county and the members of the Law Enforcement Committee is not moot, and we hold that the district judge erred in directing a verdict for the committee's members. And since the county's liability depends critically, as we have seen, on the liability of the members of the Law Enforcement Committee, and the directed verdict prevented the defendants from putting in evidence to rebut the plaintiff's case against the committee, there must be a new trial against all the defendants except, of course, Kellberg--unless Mrs. Soderbeck is able to collect her judgment in full against him.

If a new trial is held, it will be limited to liability.

752 F.2d at 294. When the case was retried the jury returned a verdict in favor of Burnett County and Soderbeck again appealed to this Court.

II

Relying on the Supreme Court's decision in Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985), decided two weeks after our decision in Soderbeck I, Soderbeck argues that Burnett County is liable for all acts of the Sheriff performed in his "official capacity." According to Soderbeck, Brandon overrules the portion of Soderbeck I holding that since under Wisconsin law the sheriff is not a policymaking official of the county, Burnett County was not liable for the acts of Sheriff Kellberg. Soderbeck interprets Brandon as imposing liability for the acts of a public official on the entity represented by that official when the official has acted in his official capacity. Since Sheriff Kellberg was acting in his official capacity as sheriff of Burnett County when he terminated Mrs. Soderbeck, the County is liable for any constitutional wrong done to Mrs. Soderbeck as a result of Sheriff Kellberg's termination of her. We reject Soderbeck's argument that Brandon overrules our decision in Soderbeck I. A careful reading of Brandon has persuaded us that Brandon merely stands for the proposition that the entity represented by a public official may be liable for acts of that official undertaken in his "official capacity" even though the entity represented by the public official was not named as a party in the suit.

In Brandon the issue decided by the Supreme Court was whether the City of Memphis was liable for a judgment entered against a city official even though the City had never been made a party to the suit. The Supreme Court held that as long as the City had notice of the claim against its official, "a judgment against a public servant 'in his official capacity' imposes liability on the entity that he represents...." 105 S.Ct. at 878. The Court explained that " 'official capacity suits generally represent only another way of pleading an action against an entity of which the officer is an agent.' " Id. at 878 n. 21 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). Here, Sheriff Kellberg represented Burnett County and was a party to Soderbeck's suit from the start, and thus the issue presented in Brandon --whether a municipality is liable for a judgment entered against its employee where the municipality is not made a party to the suit--is not before us. Accordingly, Brandon has no application to Soderbeck's claim and therefore does not effect our decision in Soderbeck I.

Soderbeck next argues that the district court erred in not allowing her to introduce evidence concerning the policymaking function of a county sheriff. The district court held that the question of whether Sheriff Kellberg was a policymaking official was foreclosed in Soderbeck I with our determination that he was not. In Soderbeck I we explained

"[t]he immunity provision [in the Wisconsin Constitution] is powerful evidence that the Sheriff of Burnett County was not a policymaking official of the county at the time he fired Mrs. Soderbeck, but instead was an autonomous official...."

752 F.2d 292.

"We have long held that 'matters decided on appeal become the law of the case to be followed ... on second appeal, in the appellate court unless there is plain error of law in the original decision'." Appleton Electric Company v. Graves Truck Line, Inc., 635 F.2d 603, 607 (7th Cir.1980) (quoting Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir.1954)). In White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967) the court summarized the doctrine of the law of the case:

"The 'law of the case' rule is based on the salutary and sound public policy that litigation should come to an end, it is predicated on the premise that 'there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate of chances from changes in its members,' and that it would be impossible for an appellate court to perform its duties satisfactorily and efficiently and expeditiously 'if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal' thereof."

However this court has stated that:

"The law of the case doctrine, however, is not an immutable concept, and should not be applied where the law as announced is clearly erroneous, and establishes a practice which is contrary to the best interests of society, and works a manifest injustice in the particular case."

Devines v. Maier, 728 F.2d 876, 880 (7th Cir.1984) (citations omitted).

In denying Soderbeck's motion for summary judgment, the district court relied on our decision in Soderbeck I, stating:

"Plaintiff has moved for summary judgment on the question of defendant Burnett County's liability for the acts of the county sheriff, defendant Kellberg. The contours of her motion are a little difficult to discern, but in essence she is asking the court to rule that the acts of defendant Kellberg taken in his official capacity and under color of state law were the acts of defendant Burnett County. That, however, is the ruling that I made at the time of the first trial of this case and the ruling that was rejected by the court of appeals.

Although plaintiff argues...