Van De Yacht v. The City of Wausau

661 F.Supp.2d 1026

Christine VAN DE YACHT, Plaintiff, v. THE CITY OF WAUSAU and James Tipple, William Nagle, Michael Morrissey and Ann Werth, in their individual capacities, Defendants.

No. 08-cv-604-bbc.

United States District Court, W.D. Wisconsin.

October 13, 2009.

Jeff Scott Olson, Jeff Scott Olson Law Firm, Madison, WI, for Plaintiff.

Gregg T. Heidenreich, Samuel Hall, Law Offices of Thomas P. Stilp, Brookfield, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

In early 2006, plaintiff Christine Van De Yacht, then a member of the Wausau Common Council, was investigated by the city's ethics board at the request of the council after she purchased property that had been awarded money from a blight elimination fund on which plaintiff had voted as an alderperson. After a public hearing, the ethics board found that plaintiff's conduct had violated the code of ethics and recommended that she be censured. Less than two weeks later, plaintiff's term on the council ended without any action being taken by the council on the ethics board's recommendation.

In this civil rights action brought pursuant to § 1983, plaintiff contends that the ethics board's finding was the climax of an orchestrated, deceitful plot to silence her in retaliation for her outspoken criticism of the city's development department. Plaintiff has sued the city officials who she contends were the plot's masterminds, alleging that their actions violated her rights to free speech and equal protection, damaged her reputation and caused her monetary damages. (Although plaintiff also asserted state law claims of defamation, she has conceded that those claims are barred by the statute of limitations. In addition, plaintiff concedes that she is not alleging any wrongdoing on the part of the City of Wausau, but has named it as a defendant only as an indemnitor of the individual defendants if liability is found.)

Defendants have moved for summary judgment, contending that plaintiff cannot prevail on the merits of her First Amendment retaliation or equal protection claims because it is undisputed that she continued to speak and advocate for her constituents during the pendency of the ethics proceedings and because no reasonable finder of fact could conclude that the city's decision to launch an ethics investigation was motivated by plaintiff's protected expression. Further, defendants contend, even if plaintiff could prove that her claims had merit, defendants are shielded from liability by the doctrine of qualified immunity. Because I agree that the scope of First Amendment protection for elected policymaking officials like plaintiff was not clearly established at the time of the alleged retaliation in this case, defendants' motion will be granted on the ground of qualified immunity.

One preliminary matter deserves mention. Plaintiff has asked this court to disregard a number of arguments raised by defendants on the ground that they raised them for the first time in their reply brief. Ordinarily, I would agree. In this case, however, in the course of asking the court to disregard defendants' new arguments, plaintiff has addressed the cases cited by defendants in their reply brief, made arguments why they do not apply and cited additional cases supporting her position. Overall, plaintiff has had sufficient opportunity to address the qualified immunity defense. It is not unfair to grant summary judgment to defendants on that ground.

From the parties' proposed findings, I find the following facts to be material for the purpose of deciding the summary judgment motion.

UNDISPUTED FACTS

Plaintiff Christine Van De Yacht is a resident of the state of Wisconsin. She served as an elected member of the Wausau City Council from April 1998 to April 2006. The events at issue in this lawsuit occurred during the time period from 2004 to 2006. During this period, the individual named defendants held various posts for the City of Wausau. Defendant James Tipple was mayor; defendant William Nagle was city attorney; defendant Michael Morrissey was the director of the Community Development Department; and defendant Ann Werth was employed as a manager in the Community Development Department.

At all times material to this action, the City of Wausau received federal funding from the United States Department of Housing and Urban Development (HUD) in the form of Community Development Block Grants (CDBG). The city's Community Development Department, headed by Morrissey, was charged with the responsibility of determining which projects to fund using the block grant funding.

Morrissey and plaintiff had an acrimonious relationship during her tenure on the city council. Morrissey had heard rumors that plaintiff and another council member, Deb Hadley, had a "hit list" of city staff whom they wanted fired, and that his name was on the list. Morrissey shared his concerns with his friend, Nagle, who was also rumored to be on the list. Morrissey periodically spoke of plaintiff in angry terms after board meetings at which he and plaintiff were present.

On June 11, 2003, a local developer named Skip Ellenbecker purchased property and two buildings located at 117 and 121 South Second Avenue, known as the "Golden Guernsey property," in Wausau. During a chance encounter in early 2004, Ellenbecker and plaintiff discussed the Golden Guernsey property. Plaintiff told Ellenbecker that she and her husband, Dennis Van De Yacht, owned and operated a marketing firm and were interested in the buildings as a new location for their business.

On February 26, 2004, Ellenbecker met with Werth and Morrissey to ask about possible help from the city for improvements on the Golden Guernsey property. During the meeting, Ellenbecker told Werth and Morrissey that he wanted to raze some of the brick buildings on the property and gut the rest, and then sell them to a commercial developer. Morrissey indicated that the city might be able to offer Ellenbecker an unsecured, interest-free loan of $25,000 from community development block grant blight elimination funds, with Ellenbecker to pay back the loan upon the sale of the property. Ellenbecker said that although he had no agreements in place with anyone, plaintiff was one of the investors in a group that was interested in purchasing the property. Morrissey and Werth told Ellenbecker that an ethics problem might exist if plaintiff purchased the property and that they would consult with the city attorney.

After the meeting, Morrissey emailed Nagle, expressing his concerns about plaintiff's potential involvement in the Golden Guernsey deal. According to Morrissey, Ellenbecker had said during the meeting that plaintiff was one of the investors in the company that was interested in buying the property after it had been gutted and that plaintiff had asked him not to mention her interest to anyone in the Community Development Department. Morrissey wrote: "[T]he most obvious question is whether council member Vande Yacht [sic] voted on the CDBG program, knew about it, and then indicated to [Ellenbecker] that he should call us (not telling us that she was invovled [sic] in the deal) so that the deal could benefit from this CDBG fund."

In a second email to Nagle the same day, Morrissey noted that the previous month, plaintiff had asked Werth to drive by a property immediately to the south of plaintiff's advertising business to judge whether the property might be considered blighted and available for demolition funding from the city. Morrissey also mentioned that at a meeting of the Economic Development Committee the previous week, plaintiff had raised questions about how the Community Development Department advertised its commercial rehabilitation program. According to Morrissey, plaintiff was concerned that the program was not advertised widely and stated that she would like it advertised in the city's newsletter.

Whether and how Nagle responded to Morrissey's emails about plaintiff's potential conflict of interest is unclear from the record. (According to Morrissey, Nagle advised him after these emails that plaintiff had not committed an ethical violation unless she had entered into a contract with Ellenbecker. Nagle does not recall having provided this advice.) In any case, it is undisputed that after the initial meeting with Ellenbecker, none of the defendants told plaintiff or Ellenbecker that a conflict of interest would arise if plaintiff was to purchase Ellenbecker's property after it had been the recipient of city blight funds.

At a May 13, 2004 meeting of the Finance Committee, Morrissey informed the committee that the city had made a commitment to Ellenbecker to lend him $25,000 toward the development of the Golden Guernsey property. Plaintiff was not present at this meeting. On May 14, 2004, the Community Development Department used block grant funding to extend a $25,000 interest-free loan to Ellenbecker to be used for "blight elimination" at the Golden Guernsey property. Unlike other similar loans, the loan to Ellenbecker was not presented for discussion and review to the Economic Development Committee, on which plaintiff sat. At the time the loan was extended to Ellenbecker, plaintiff had not yet purchased the property and had not entered into any contracts with Ellenbecker with respect to any future plans to purchase the property.

On February 23, 2005, Morrissey wrote a letter to Tipple, complaining that at a meeting the night before, plaintiff had accused Morrissey of having a conflict of interest with respect to a proposed purchase of property using city grant money. In Morrissey's view, plaintiff's comments bordered on the slanderous and were "inexcusable." Morrissey asked Tipple to "correct this matter immediately with any and every resource available to the City." Morrissey reminded Tipple that approximately six months earlier, Morrissey had informed Tipple about the "hit list" rumors and had asked him to put an...