Thompson v. County of Rock

• Decision Date: 24 November 1986
• Docket Number: No. 86-C-1-C.,86-C-1-C.
• Citation: 648 F. Supp. 861
• Parties: Robert G. THOMPSON, and others similarly situated, Plaintiffs, v. COUNTY OF ROCK, City of Janesville, and City of Beloit, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

648 F. Supp. 861

Robert G. THOMPSON, and others similarly situated, Plaintiffs, v. COUNTY OF ROCK, City of Janesville, and City of Beloit, Defendants.

No. 86-C-1-C.

United States District Court, W.D. Wisconsin.

November 24, 1986.

Jeff Scott Olson, Julian & Olson, Madison, Wis., for plaintiffs.

Daniel T. Kelley, City Atty., Beloit, Wis., Timothy J. Yanacheck, Straub & Schuch, Madison, Wis., for City of Beloit.

Charles H. Williams, Deputy Corp. Counsel, Janesville, Wis., for defendant Rock County.

Wald Klimczyk, Asst. City Atty., Janesville, Wis., Bradway A. Liddle, Jr., Madison, Wis., for City of Janesville.

ORDER

CRABB, Chief Judge.

This is a civil action for monetary damages. Plaintiff alleges that he was twice arrested and his residence searched once pursuant to warrants that were invalid because issued by court commissioners who had not been duly authorized to issue arrest and search warrants, in violation of the Fourth and Fourteenth Amendments. Jurisdiction is present under 28 U.S.C. § 1343(3).

Before the court are separate motions for summary judgment from each of the three defendants, and plaintiff's motion for class certification. Based on the proposed findings of fact and admissions submitted by the parties, I find no genuine dispute as to the following material facts.

FACTS

Plaintiff Robert G. Thompson is an adult resident of Rock County, Wisconsin. Defendants County of Rock, City of Janesville, and City of Beloit are municipal corporations located within the Western District of Wisconsin.

On March 2, 1981, the six circuit court judges for Rock County appointed James Van De Bogart and Charles Holznecht as court commissioners pursuant to Wis.Stat. § 757.68(2). Court commissioners may be empowered to perform any or all of the functions listed in Wis.Stat. § 757.69, which provides in relevant part:

(1) On authority delegated by a judge ... and with the approval of the chief judge of the judicial administrative district, a court commissioner appointed under s. 757.68 may:

. . . . .

(b) In criminal matters issue summonses, arrest warrants or search warrants. ...

. . . . .

(f) Issue warrants and capiases for those who do not appear as summoned.

The resolution of the Rock County judges appointing Van De Bogart and Holznecht, dated March 2, 1981, provided in relevant part that authority was delegated to the commissioners to "Issue warrants and capias for persons who do not appear as summoned." No specific mention was made in the resolution of authority to issue search warrants or arrest warrants for anyone other than those who do not appear as summoned. The resolution was never signed by the chief judge of the judicial administrative district.

Between March 2 and November 9, 1981, the court commissioners issued approximately 71 arrest and search warrants. The general procedure for obtaining these warrants began when law enforcement personnel, including Janesville and Beloit police officers and Rock County sheriff's deputies, would report their investigative findings to the Rock County district attorney's office. The district attorney's office would draft criminal complaints and warrants, which were then brought before a court commissioner for a determination of probable cause. Search and arrest warrants issued by the Rock County court commissioners were executed by various law enforcement agencies, including the Janesville and Beloit police departments and the Rock County sheriff's department.

Subsequent to the March 1981 resolution, commissioner Van De Bogart informed Assistant District Attorney William J. Hayes that Van De Bogart was authorized to perform all functions set forth in Wis.Stat. § 757.69, including the authority to issue warrants. On August 26, 1981, Hayes drafted a criminal complaint against plaintiff based on an investigation by Beloit police officers, and a proposed search warrant for 231 Roosevelt Avenue, Apartment 2, Beloit, Wisconsin, based on information supplied by the Janesville police department. That same day, court commissioner Van De Bogart issued both the arrest warrant for plaintiff and the search warrant for 231 Roosevelt Avenue, Apartment 2. On August 27, 1981, plaintiff was arrested by a Beloit police officer. Participating in the arrest were officers of the Janesville and Beloit police departments and the Rock County sheriff's department, as well as members of the Rock County district attorney's office and the Wisconsin Department of Justice.

Pursuant to reports and information of the officers who executed the search warrant, Hayes drafted a second criminal complaint and second arrest warrant for plaintiff. On August 28, 1981, court commissioner Van De Bogart issued this second arrest warrant for plaintiff.

On October 2, 1981, the criminal complaint against plaintiff in case No. 81-CR-736 was dismissed by Rock County circuit court judge Mark J. Farnum on the ground that the August 26 arrest warrant was issued in excess of the authority granted to the court commissioner. As plaintiff left the proceeding before Judge Farnum, he was arrested by a Janesville police officer pursuant to the August 28 warrant. On March 15, 1982, circuit court judge John H. Lussow ruled that commissioner Van De Bogart had not been authorized to issue the August 28 arrest warrant against plaintiff in case No. 81-CR-912 because the March 1981 resolution of the Rock County judges had not been approved by the chief judge as required by Wis.Stat. § 757.69(1).

Also on October 2, 1981, another arrest warrant was issued for plaintiff by circuit court judge Edwin Dahlberg.

On October 5, 1981, Judge Farnum sent a letter to all circuit court judges, court commissioners, and the district attorney for Rock County. In pertinent part that letter stated:

... I checked our Resolution adopted by the Board of Rock County judges on March 2, 1981, and felt that it did not include authority to issue warrants in the first instance but only where persons do not appear as summoned.

. . . . .

As you will note, the Order of Appointment proceeds under the authority of Sec. 757.68 Stats., which does no more than authorize the position. It then goes on to permit the exercise of all statutory duties. On the other hand the Resolution of the Board of Circuit Court Judges was specific in delegating only certain authority under Sec. 757.69 Stats., as set forth in the Resolution. Consequently, although the Order of Appointment is more broad in its language, it seems to me that we are probably bound by the Resolution from which the Order springs....

On November 9, 1981, the six circuit court judges of Rock County adopted a resolution delegating to the court commissioners all authority under Wis.Stat. § 757.69. Specifically, the resolution authorized the commissioners to "exercise all powers and perform all duties that are authorized for delegation by a judge under the provisions of Sec. 757.69(1)(a) through (h)." The authority to issue arrest and search warrants is contained in Wis.Stat. § 757.69(1)(b).

The circuit court judges for Rock County are paid by the State of Wisconsin, and receive various health, medical, and retirement benefits paid for by the state.

This action was commenced on January 2, 1986.

OPINION

The defendants have moved for summary judgment. Summary judgment is appropriate only if the pleadings, answers to interrogatories, admissions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must view the record and any reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Box v. A & P Tea Co., 772 F.2d 1372, 1375 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).

In this action plaintiff challenges both the issuance of search and arrest warrants by the Rock County court commissioners and the execution of those warrants by law enforcement agencies. Plaintiff predicates liability on 42 U.S.C. § 1983, bringing suit against three municipalities. The United States Supreme Court has held expressly that local governments are among the persons to whom § 1983 applies. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). In Monell, the Court explained the basis for municipal liability:

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.

Id. Plaintiff's claim is that the court commissioners in issuing the warrants, the district attorney's office in participating in their issuance, and the police and sheriff's departments in executing the warrants were all acting pursuant to the "custom" of the three defendant municipalities. Since, plaintiff alleges, those municipal customs deprived him of his constitutional rights, the county and cities should be held liable under § 1983.

All three defendants argue that no municipal custom existed of issuing or executing invalid search warrants, and that plaintiff has failed to show the "fault" necessary for municipal liability. Rock County further alleges that the court commissioners are not county employees, and that therefore it cannot be held liable for their...