Hutchins v. Clarke
661 F.3d 947
| 7th Cir. | 2011Background
- Hutchins and the Milwaukee Deputy Sheriff's Association sued Sheriff Clarke for on-air remarks about Hutchins' disciplinary history and for disclosure of that history.
- The May 17, 2007 Eric Von Show exchange featured Hutchins criticizing Clarke; Clarke responded by calling Hutchins a 'slacker' and mentioning a 2004 disciplinary action for alleged misconduct.
- Disciplinary action in 2004 involved Hutchins' alleged violation of a rule prohibiting offensive conduct toward the public or other officers; Clarke described it as 'sexual harassment' on-air.
- Plaintiffs asserted claims under 42 U.S.C. § 1983 (First Amendment retaliation), Wisconsin Open Records Law, and Wisconsin Right of Privacy statute; defendants sought summary judgment on all counts.
- The district court granted summary judgment for Hutchins on the Open Records Law disclosure, the Right of Privacy, and § 1983 retaliation; it denied others, and the case proceeded on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Open Records Law applicability to on-air remarks | Hutchins argues Clarke violated the Open Records Law by discussing his disciplinary file without notice or balancing. | Clarke contends the Open Records Law does not apply to these on-air comments. | Open Records Law does not apply here. |
| Right of Privacy Act application to disciplinary history | Disciplinary history is private; disclosure infringes Hutchins' privacy under Wis. Stat. § 995.50. | Disclosures are public information; balancing favors disclosure. | Record not public; privacy claim fails after balancing. |
| § 1983 retaliation for First Amendment speech | Retaliation occurred when Clarke disclosed disciplinary history on-air, chilling Hutchins' speech. | Disclosures did not amount to adverse action; speech itself was not a threat or coercion. | Disclosures were not actionable retaliation under § 1983 in this context. |
| Pleadings constructive amendment | Open Records and privacy claims were raised in briefs and should be deemed pleaded. | Claims were not properly pleaded. | Courts allowed constructive amendment; pleadings deemed to include those claims. |
Key Cases Cited
- Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) (Open Records balancing framework; employee access to records)
- Milwaukee Journal Sentinel v. Wisconsin Dep't of Admin., 319 Wis. 2d 439, 768 N.W.2d 700 (2009) (public-record balancing and privacy/public-interest considerations)
- Linzmeyer v. Forcey, 254 Wis. 2d 306, 646 N.W.2d 811 (2002) (public-interest balancing in privacy cases; public-record law relevance)
- Zellner v. Cedarburg Sch. Dist., 300 Wis. 2d 290, 731 N.W.2d 240 (2007) (public-interest factors favoring disclosure; privacy considerations)
- State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 558 N.W.2d 670 (Wis. Ct. App. 1996) (public-records and privacy interplay in reporting)
- Ledford v. Turcotte, 195 Wis. 2d 244, 536 N.W.2d 130 (Wis. Ct. App. 1995) (privacy and public interest in personnel records)
- Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) (retaliation principle in First Amendment employment context)
- Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) (retaliation through harassment may be actionable even absent threats)
- DeGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th Cir. 1995) (minor retaliatory acts may be actionable if sufficiently adverse)