Terrien v. Metro. Milwaukee Crim. Justice Council
| Decision Date | 20 September 1978 |
| Docket Number | Civ. A. No. 75-C-75. |
| Citation | 455 F. Supp. 1375 |
| Parties | Ernest J. TERRIEN, Plaintiff, v. METROPOLITAN MILWAUKEE CRIMINAL JUSTICE COUNCIL, Honorable Patrick J. Madden, Cynthia Kukor, Francis X. McCormack, Frank Bannen, Chief Harold Breier, James A. Brennan, Daniel F. Casey, James Demitros, Richard W. Glaman, Honorable William Jennaro, John R. Kalwitz, Lawrence P. Kelly, Arlene Kennedy, Joan Kessler, Robert Kliesmet, Robert K. Maas, E. Michael McCann, Philip McCullough, Terrance Pitts, Ruby Snowden, Donald Sykes, and Michael S. Wolke, members of the Milwaukee Metropolitan Criminal Justice Council in their representative and individual capacity, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
L. C. Hammond, Jr., and Ross R. Kinney, Quarles & Brady, Milwaukee, Wis., for plaintiff.
Bronson C. LaFollette, Atty. Gen., and F. Joseph Sensenbrenner, Jr., Asst. Atty. Gen., Madison, Wis., for defendants.
DECISION AND ORDER
This is an action brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331(a) challenging the manner of plaintiff Ernest J. Terrien's termination from employment as Executive Director of the defendant Metropolitan Milwaukee Criminal Justice Council (the "Council") in November 1974. The other defendants are past and present members of the Council.
Presently before the court are defendants' motion to strike plaintiff's demand for a jury trial, which will be denied; plaintiff's motion for partial summary judgment; and defendants' renewed motion for summary judgment. The summary judgment motions will also be denied, primarily because the inadequacy of the evidentiary materials submitted by both parties precludes any grant of summary judgment or of partial summary judgment.
The plaintiff seeks summary judgment with regard to his claimed liberty interest in his employment. He alleges that his reputation was damaged in the course of his termination from employment, and that the procedural safeguards provided were an insufficient protection of his interests. Also he seeks summary judgment on the issue of his entitlement to reinstatement to his former position and to back pay based on his allegation that the composition of the defendant Council at the time of his termination was in violation of state and federal law, and, therefore, that the Council's action in firing him was ineffective. The defendants seek summary judgment with respect to the issue of whether or not plaintiff had a property interest in his employment at the time of his termination. They allege that the plaintiff served "at the pleasure of" the Council and was therefore subject to termination at will.
The Council was created by Executive Order 42 on June 30, 1972, and continued in existence by Executive Order 5 on January 28, 1975, pursuant to the Federal Omnibus Crime Control and Safe Streets Acts of 1968 and 1973, 42 U.S.C. § 3701 et seq. On November 27, 1972, Mr. Terrien was appointed the Executive Director of the Council by majority vote of the members of the Council. His employment with the Council was terminated, effective November 22, 1974, at an executive session of the Council on November 21, 1974.
Terrien claims that at the time of his termination, he was charged by members of the Council with racial bigotry and drunkenness; that he was not given adequate notice of the charges, permitted to cross examine witnesses, or given a hearing before an impartial tribunal prior to his termination; that the charges were part of the public records of the Council and were made available to any potential employer; and therefore that he had a liberty interest in his employment which was violated by the manner of his termination. See, e. g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The defendants argue that Terrien himself was responsible for making the charges against him public and, therefore, cannot claim deprivation by defendants of a liberty interest, see, e. g., Cato v. Collins, 539 F.2d 656 (8th Cir. 1976); Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 573-574 (7th Cir. 1975); that the charges made against Terrien were not stigmatizing within the meaning of the Fourteenth Amendment, see, e. g., Abeytan v. Taos, 499 F.2d 323 (10th Cir. 1974); Adams v. Walker, 492 F.2d 1003 (7th Cir. 1974); and that defendants offered Terrien a post-termination hearing to clear his name, which offer was sufficient to protect any liberty interest he might have had.
A person whose Fourteenth Amendment liberty interests are implicated by the manner of his termination from employment is entitled to a procedurally adequate pre-termination hearing. Velger v. Cawley, 525 F.2d 334 (2d Cir. 1975). Furthermore, the file does not support the defendants' assertion that after November 21, 1974, they offered the plaintiff an opportunity to clear his name. A hearing at this late date would clearly not remedy the damage which the plaintiff has suffered in the interim if all of his allegations are true.
Nevertheless, summary judgment for the plaintiff on the issue of deprivation of a liberty interest is not appropriate at this time. The Court has read the evaluations made of the plaintiff by certain of the defendants prior to plaintiff's termination (see exhibits attached to amended answer filed April 2, 1975) and does not believe that they contain the kind of damaging allegations which are within the protection of the Fourteenth Amendment. See cases cited at pages 20-22 of defendants' "Brief in Opposition to Partial Summary Judgment II," filed May 2, 1978; see also Larry v. Lawler (7th Cir. 1978), slip opinion No. 76-1747 (June 14, 1978). But the Court does not have before it the entire record of proceedings before the Council, nor can it know what other evidence the plaintiff may be able to produce with regard to the charges made against him. (See paragraph 11 of Terrien affidavit, filed June 9, 1975.) Also the present record before the court does not reveal how the charges against the plaintiff came to be made public, and therefore, the Court cannot determine at this time whether the charges became public or would inevitably have become so as a result of actions taken by the defendants, or whether they became public due solely to actions taken by the plaintiff.
The second issue presented to the court is plaintiff's request for reinstatement and back pay due to the allegedly unlawful composition of the Council at the time of plaintiff's termination. Section 203(a) of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Act"), 42 U.S.C. § 3723, provided:
(P.L. 90-351; 1968 U.S.Code Congressional and Administrative News at 238.)
In 1973 the Act was amended by P.L. 93-83, the Crime Control Act of 1973. Section 203(a) of the Act, 42 U.S.C. § 3723(a), was amended to provide in part that:
"(a)(2) * * * The regional planning units within the State shall be comprised of a majority of local elected officials. * * *"
By agreement dated June 6, 1972, the Governor of the State of Wisconsin, the Mayor of the City of Milwaukee, the County Executive of Milwaukee County, and a representative for the suburban municipalities of Milwaukee County agreed that a twenty-one member criminal justice council should be appointed by the Governor for the regional criminal justice planning area defined by the boundaries of Milwaukee County. (See "Memorandum of Agreement # 2," attached to defendants' motion for summary judgment filed April 28, 1975.) While the agreement provided for the appointment of nominees of various county and city officials, there was no requirement that any number of the appointees be locally elected officials. Subsequent to the 1973 amendments to the Act, however, a memorandum of agreement was entered into by the Governor of the State of Wisconsin, the Mayor of the City of Milwaukee, the County Executive of Milwaukee County, and the representative of the Inter-Governmental Cooperation Council of Milwaukee County. (See exhibits attached to defendants' motion for summary judgment, filed April 28, 1975.) The agreement dated November 1, 1974, provides in part:
It appears from the briefs filed by both parties that the Council members were appointed in July of 1972 in a manner which comported with the law in effect at that time and with the agreement of June 6, 1972; that after the 1973 amendment to the Omnibus Crime Control and Safe Streets Act, the Governor did not replace any members of the Council in order to include a majority of locally elected officials; and that from November 1, 1974 through November 21, 1974, the latter being the date of Terrien's termination, five of the six members appointed by nomination of the Mayor of Milwaukee were not locally elected officials as required by the November 1, 1974, agreement.
Terrien's attorney challenged the composition of the Council at the November 21, 1974, hearing, and Terrien has alleged by way of affidavit that it was public knowledge as of November 1974 that the Council was improperly constituted. Therefore, he argues, a number of the Council members who voted in favor of his termination were not at that time de facto...
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