Nordstrom v. Town of Stettin, Matthew Wasmundt, & Allied World Specialty Ins. Co., 16-cv-616-jdp

ALLAN A. NORDSTROM, Plaintiff, v. TOWN OF STETTIN, MATTHEW WASMUNDT,and ALLIED WORLD SPECIALTY INSURANCE COMPANY, Defendants.

16-cv-616-jdp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 15, 2017

OPINION & ORDER

Big cities do not have a monopoly on hardball politics, as this case from the little Town of Stettin in north central Wisconsin demonstrates. Plaintiff Allan A. Nordstrom was appointed, and later elected, to serve as a town supervisor. During his short tenure on the town board, Nordstrom butted heads with the chairperson of the town board, defendant Matthew Wasmundt, and other members of the board. The tension between Nordstrom and Wasmundt led to Wasmundt recommending that criminal charges be filed against Nordstrom and culminated with Nordstrom's resignation. Nordstrom has filed suit against Wasmundt, the Town, and its insurance company, defendant Allied World Specialty Insurance Company, asserting claims under the First and Fourteenth Amendments of the Constitution. Dkt. 25. Nordstrom contends that he was not just the victim of hardball politics, but that he faced unlawful retaliation for exercising his right to free speech.

Defendants move to dismiss Nordstrom's amended complaint (Dkt. 7) under Federal Rule of Civil Procedure 12(b)(6), contending that Nordstrom fails to state a claim upon which relief can be granted. Dkt. 12 and Dkt. 18. Nordstrom has amended his complaint yet again. Dkt. 25. But those most recent amendments do not affect the court's analysis, so the court will rule on defendants' motions without asking for further input. Generally speaking, elected officials cannot use the First Amendment to shield themselves from the political consequences of their words. But accepting Nordstrom's allegations as true, he states First Amendment retaliation claims against defendants because they abused the political process in forcing Nordstrom out of office. The court will deny the motions to dismiss.

ALLEGATIONS OF FACT

The court draws the following facts from Nordstrom's first amended complaint, Dkt. 7, and documents referred to in it, and accepts them as true for the purpose of deciding defendants' motions. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1, 746 (7th Cir. 2012).

The Town of Stettin is governed by a town board comprised of a chairperson and two supervisors. Sometime before 2012, Wasmundt was elected to serve as chairperson of the board, and Jesse Graveen and Tom O'Brien (non-parties) were elected to serve as supervisors. In 2012, O'Brien stepped down, and Wasmundt and Graveen appointed Nordstrom to serve the remainder of O'Brien's term. In April 2013, Wasmundt, Graveen, and Nordstrom were all elected to serve full, two-year terms in their positions on the board.

Around the time of the election, the three board members began to disagree on several matters relating to town management. Wasmundt and Graveen, the senior members of the board, wished to maintain the traditional practices and policies used by the town, whereas Nordstrom, the new board member, advocated for reforms such as increased transparency measures, written job descriptions for town employees, and soliciting land donations by individual land owners. Nordstrom voiced his opinions on these subjects during town board meetings. Nordstrom felt that the meeting minutes did not accurately reflect what occurredduring the meetings. But Wasmundt and Graveen always approved the minutes over Nordstrom's objections. Eventually, the Town (presumably on Wasmundt's instruction) stopped providing Nordstrom with copies of the previous meeting's minutes to review before the vote to approve them at the next meeting.

Another source of tension among the board members was an eroding drainage culvert on Town resident Dave Seubert's property. Nordstrom instructed Town employees to haul rock from the Town rock pile to Seubert's property, at the Town's expense, so that Seubert could repair the erosion, despite Wasmundt objecting during several board meetings to this use of Town property on private land. Eventually, Wasmundt indicated during a board meeting that he would ask the sheriff to charge Nordstrom with the theft of Town materials. He followed through with this threat, and the Marathon County Sheriff's Department investigated Nordstrom's part in the use of Town rock on private property and eventually forwarded a report to the district attorney's office stating that "it is unknown if charges are warranted." Dkt. 7, ¶ 4058. The district attorney never filed charges.

Tension among the board members reached a breaking point when Town resident Roger Hoeppner sued the Town, challenging the legality of the Town board's actions. Hoeppner contended that the Town's elected officials had not taken their oaths of office within five days of their election in April, which "constitutes refusal to serve in office" under Wis. Stat. § 60.31(4), leaving their seats vacant, according to Wis. Stat. § 17.03(7). Hoeppner was correct as far as the facts were concerned: the board members had not taken their oaths within five days as required by Wisconsin law. The legal consequences of this failure, and the remedy for it, are not at all clear.

The board members were concerned about Hoeppner's suit, so the Town's attorney, Shane VanderWaal, came up with a solution: over a series of board meetings, the Town clerk, Dawn Krueger, would declare each Town official's position vacant, and the remaining members would immediately reappoint the official to fill the vacancy for the remainder of the term. The official would immediately take his or her oath. Once all board members were properly appointed, they could vote to ratify all of their acts taken since the April election. (Defendants do not address the obvious flaw in this process, which is that if the unsworn members were not authorized to serve on the board, they would not be authorized to reappoint the board members either.) The board began to implement VanderWall's plan in October, when Krueger declared Wasmundt's seat vacant, and Krueger and Graveen immediately voted to reappoint Wasmundt as chairperson. Nordstrom voted against reappointment. In a December board meeting, this process was repeated for Krueger and Graveen. Again, the officials were reappointed over Nordstrom's objections. (It's unclear why Krueger, who was not a board member, voted.)

In January 2014, the time came for Nordstrom's seat to be declared vacant and refilled. By this point, Nordstrom was represented by his own attorney, Peter Bear.¹ Bear believed that the failure to take a timely oath could be remedied simply by taking the oath at a later date, rather than the vacate-and-reappoint procedure that VanderWaal recommended. He asked VanderWaal and Wasmundt not to repeat the vacate-and-reappoint procedure for Nordstrom's seat "because, as they all knew, given the composition of the board, . . . there would not besufficient votes for . . . Nordstrom to be reappointed to his seat." Id. ¶ 4076. Despite Bear's request, Wasmundt moved forward with plans to declare Nordstrom's seat vacant during the January 8 board meeting. Nordstrom "believed that it was a foregone conclusion" that the other board members would appoint someone else to his seat once it was declared vacant. Id. ¶ 4083. Because he feared that this would cause "disorder and possibly violence" among the residents attending the meeting, he chose to submit a letter of resignation before the meeting. Id. At the January 8 meeting, Krueger declared Nordstrom's seat vacant. The other board members appointed Joe Gore to fill Nordstrom's seat for the remainder of the term.

Nordstrom filed suit against the Town and Wasmundt in September 2016, alleging that they retaliated against him by accusing him of criminal conduct and constructively removing him from office in violation of his rights under the First and Fourteenth Amendments.

The court has subject matter jurisdiction over Nordstrom's claims pursuant to 28 U.S.C. § 1331 because they arise under federal law.

ANALYSIS

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege facts sufficient to state a plausible claim for relief, that is, facts "that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court is not bound to accept alleged legal conclusions. Id. at 827.

A. First Amendment retaliation claims

To prevail on a First Amendment retaliation claim, Nordstrom "must ultimately show that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivationthat would likely deter First Amendment activity in the future; and (3) the First Amendment activity was 'at least a motivating factor' in the Defendants' decision to take the retaliatory action." Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)). Defendants contend that Nordstrom does not allege facts sufficient to satisfy the first or second prong of the analysis.

Defendants first contend that Nordstrom did not engage in First Amendment-protected activity, citing the Supreme Court's holding in Garcetti v. Ceballos that statements made by public employees pursuant to their official duties are not protected by the First Amendment. 547 U.S. 410, 421 (2006). Nordstrom concedes that his statements were made pursuant to his official duties as a town supervisor, but he argues that Garcetti does not apply to him because he is an elected official.² Neither the Supreme Court nor the Seventh Circuit has directly addressed whether Garcetti applies to elected officials' political speech, Siefert v. Alexander, 608 F.3d 974, 991 (7th Cir. 2001) (Rovner, J., dissenting in part), but most of the courts that have addressed the question have held that Garcetti does not apply.³ This court will...