Hoeppner v. Town of Stettin & Matthew Wasmundt

ROGER HOEPPNER, Plaintiff, v. TOWN OF STETTIN and MATTHEW WASMUNDT, Defendants.

14-cv-162-bbc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 12, 2015

OPINION AND ORDER

Plaintiff Roger Hoeppner is a resident of the town of Stettin who attended meetings of the town board and often made comments during the "open discussion" segments of the meetings. Defendant Matthew Wasmundt is the town board chairperson. In this lawsuit brought under 42 U.S.C. § 1983, plaintiff alleges that defendants silenced him at two meetings and then stopped allowing any public comments at town meetings, in violation of the First Amendment. Defendants have filed a motion for summary judgment, dkt. #9, which is ready for review.

I am denying defendants' motion with respect to the decision to stop plaintiff from talking at town board meetings on July 22, 2013 and August 12, 2013 because a reasonable jury could find that defendant Wasmundt silenced plaintiff because plaintiff was being critical rather than because Wasmundt believed that plaintiff was disruptive. With respect to plaintiff's claim that defendants violated his First Amendment rights by ending publiccomments at town board meetings, I am directing the parties to submit supplemental briefing on legislative immunity and the extent to which Grossbaum v. Indianapolis-Marion County Building Authority, 100 F.3d 1287 (7th Cir. 1996), forecloses that claim.

OPINION

A. July 22, 2013 and August 12, 2013 Meetings

The first question is whether a reasonable jury could find that defendants violated plaintiff's First Amendment rights by stopping him from continuing to talk during "open discussion" portions of town board meetings on July 22, 2013 and August 12, 2013. (Defendants discuss other meetings in their opening summary judgment brief and plaintiff discusses other meetings in his proposed findings of fact, but plaintiff states in his response brief that he is not challenging defendants' conduct at the other meetings, dkt. #16 at 1-2, so I do not need to consider those.) Both sides seem to assume that the town is a proper party on this claim because defendant Wasmundt, as the board chairperson, is the final policy maker for the town with respect to running town board meetings, Vodak v. City of Chicago, 639 F.3d 738, 748 (7th Cir. 2011), so I do not consider that question.

It is undisputed that plaintiff had a right to speak at the meetings. As defendant Wasmundt stated himself at the July 22 meeting, the purpose of the "open discussion" portion of the meeting was to allow discussion of "anything that is not on the agenda that anyone wants to talk about." Dkt. #11-8 at 0:04-0:09. It is also undisputed that defendant Wasmundt allowed plaintiff to talk for two to three minutes at both meetings before tellinghim to stop and ordering him to leave the meeting. The question raised by the parties is whether Wasmundt's decision was a reasonable restriction on the time, place and manner of speech at the meeting.

"Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (internal quotations and alterations omitted). See also Milestone v. City of Monroe, Wisconsin, 665 F.3d 774, 783 (7th Cir. 2011) ("If the [restriction] is a content-neutral 'time, place, or manner' regulation, it can survive as a reasonable exercise of governmental authority, regardless of which speech-forum category applies."). Defendants focus on the question whether their conduct was content-neutral, so I will do the same.

Defendants do not argue that plaintiff violated any rules about the amount of time he was allowed to talk or the subject matters he could address. Instead, defendants say that Wasmundt's conduct qualified as content-neutral because plaintiff's speech at the July 22 and August 12 meeting was "disruptive." Dfts.' Br., dkt. #12, at 12-13 (citing White v. City of Norwalk, 900 F.2d 1421, 1425-26 (9th Cir. 1990) (council could restrict citizen's speech at public meeting if "the Council is prevented from accomplishing its business in a reasonably efficient manner")). Plaintiff acknowledges that it is permissible to limit speech that is disruptive or repetitive, but he denies that he was either of those things and he arguesthat the real reason that Wasmundt tried to shut him up was that he was making statements that were critical of Wasmundt. Defendants do not contradict plaintiff's argument that Wasmundt was not entitled to censor plaintiff for making critical statements, even if Wasmundt believed that plaintiff's statements were false, so I need not consider the question.

In their opening brief and proposed findings of fact, defendants offer few specifics regarding the reasons they believe that plaintiff was being "belligerent and disruptive"at the July 22 meeting or "repetitive and disruptive" at the August 12 meeting. Certainly, one could argue that some of plaintiff's comments were petty and unproductive. For example, at the July 22 meeting, plaintiff complained that one board member was wearing a hat. Dkt. #11-8 at 0:45-1:02. At the August 12 meeting, plaintiff asked multiple board members when they had been "sworn in." Id. at 1:18-1:58. However, Wasmundt allowed plaintiff to continue speaking after he made those comments.

At the July 22 meeting, defendant Wasmundt told plaintiff to stop talking after plaintiff accused Wasmundt of approving a particular driveway project improperly. Id. at 2:12-2:57. At the August 12 meeting, Wasmundt told plaintiff to stop talking after plaintiff called one of the other board members Wasmundt's "yes man." Id. at 2:20-2:51. At those points in the discussion, plaintiff's interaction with Wasmundt had become more confrontational, if not rude and combative. However, both sides seem to assume that, even if plaintiff's comments could be viewed as disruptive objectively, defendants are not entitled to summary judgment if a reasonable jury could find that Wasmundt silenced plaintiffbecause of the content of his speech rather than because he was disrupting the meeting.

The case law seems to support the view that the test includes a subjective component. E.g., Surita v. Hyde, 665 F.3d 860, 871-73 (7th Cir. 2011) (considering defendant's motive when deciding whether decision to restrict plaintiff's speech at council meeting was content-neutral); Lowery v. Jefferson County Board of Education, 586 F.3d 427, 434-35 (6th Cir. 2009) (considering whether "impermissible viewpoint discrimination motivated the decision to bar the plaintiffs from speaking" at school board meeting); Jones v. Heyman, 888 F.2d 1328, 1332 (11th Cir. 1989) (considering defendant's motive when deciding whether decision to restrict plaintiff's speech at council meeting was content-neutral). Accordingly, I need not decide in the context of defendants' motion for summary judgment whether plaintiff's speech was so disruptive that a reasonable person in defendant Wasmundt's shoes could have restricted plaintiff's speech. Rather, the only question I need to decide is whether a reasonable jury could find that defendant Wasmundt censored plaintiff's speech because plaintiff's statements were critical of Wasmundt.

Although the evidence is not one-sided, I agree with plaintiff that a reasonable jury could find in his favor. With respect to the July 22 meeting, after plaintiff accused defendant Wasmundt of improperly approving a driveway project, Wasmundt stated, "that is a false statement" and "you just made a statement that is a lie." Dkt. #11-8 at 2:24-2:37. Wasmundt concluded by saying, "Mr. Hoeppner we are not going to sit here and go through the same thing that we always do where you lie to the board." Id. at 2:42-2:47. After plaintiff asked Wasmundt several times whether he was a liar, Wasmundt told plaintiff thathe would be removed from the meeting. With respect to the August 12 meeting, after plaintiff accused another board member of being defendant Wasmundt's "yes man," Wasmundt stated, "That's enough commentary from you." Id. at 2:39-2:42. When plaintiff objected, Wasmundt told plaintiff, "You can leave or I can call the sheriff's department to have you removed." Id. at 3:10-3:13. From those statements, a reasonable jury could find that Wasmundt objected to plaintiff's comments not because they were disruptive but because Wasmundt disagreed with what plaintiff was saying.

Defendants argue that focusing on defendant Wasmundt's statements at the end of the discussion leaves out the context of what led up to those statements. However, even if I accept defendants' argument that plaintiff was acting disrespectfully throughout his exchanges with Wasmundt, this does not necessarily strengthen defendants' position. The fact that Wasmundt tolerated plaintiff's statements until plaintiff criticized Wasmundt directly could be viewed as further evidence that Wasmundt was upset with plaintiff's criticism rather than his manner of speaking.

Defendants make an alternative argument that it was reasonable to stop plaintiff from talking because his statements were "repetitive," but they do not explain in their opening brief what they mean by this. In their reply brief, they argue for the first time that plaintiff's July 22 statement about the driveway project was repetitive because he had discussed the same project during a previous board meeting. Because defendants did not raise this issue in their opening brief, the argument is forfeited for the purpose of their motion for summary judgment. Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009). Further, althoughdefendants are correct that courts have stated that there is no First Amendment...