James March v Ronald Wolff, Jr.James March v Ronald Wolff, Jr.
While this investigation proceeded, the new faction fired Town Administrator James March, the highest-ranking unelected official in Grand Chute. March sued the supervisors who voted in favor of his termination for retaliating against him in violation of his First Amendment rights. In his view, he was fired for participating in the state investigation into Wolff. The supervisors insist they fired March for political disloyalty and poor job performance.
After March initiated his lawsuit, Wolff was indicted, tried, and ultimately acquitted on public corruption charges. Based on information revealed in his criminal case, Wolff filed a counterclaim, arguing that March deliberately withheld damaging information to set him up for prosecution.
The district court granted summary judgment to the defendants in both cases, and we affirm. Wolff‘s cross-appeal has little merit. And on March‘s First Amendment retaliation claim, we conclude that the supervisors are entitled to qualified immunity. Because our precedent on firing “policymaking officials” is not a model of clarity, a reasonable official could think firing March under these circumstances would not offend the Constitution.
I
The background for this fact-intensive case is presented in five chapters: the new supervisors’ rise to power; the start of the Wisconsin DOJ investigation; the fallout from the investigation; March‘s firing; and the new information raised in
A
The conflict in Grand Chute started as a dispute over tax policy. For decades, the town‘s Board of Supervisors imposed special assessments—targeted property taxes—to support certain public works projects. In 2019, the board imposed hefty special assessments on several citizens to repair dilapidated roads. One resident, Ronald Wolff, faced over $285,000 of these fees.
In response, Wolff organized a coalition to oppose the special assessment policies. His faction, self-identified as the “Doomed Dozen,” filed several lawsuits against the town in state court. Wolff was a lead plaintiff in one of these suits. He also paid a substantial portion of the attorney‘s fees for the other lawsuits.
The Doomed Dozen then turned to electoral politics. There are five elected members of the town board, consisting of one chairman and four supervisors.1 Wolff supported the candidacy of Jeffrey Ings for one of the supervisor roles during the 2020 election. Ings unseated an incumbent, an ally of longtime Chairman Dave Schowalter. In the 2021 election, Wolff himself ran, defeating another establishment candidate. Another ally of the Doomed Dozen, Jason Van Eperen, challenged and
After appointing another ally to a vacant seat, the faction controlled the town government. They held four of the five seats on the board by October 2021—a major change for a town that had only two people leave the board since 2007.
The two people most affected by this change were Supervisor Brad Gehring and Town Administrator James March. Gehring, the lone holdover from the old board, openly admitted he disagreed with the new faction‘s approach to governing the town. And as Town Administrator, March had worked closely with the old board since he took the job in 2008. Now, March had to direct the town‘s full-time staff to implement the new board‘s political agenda.
B
Controversy arose as soon as the new supervisors took office. For one, the Board had to settle the special assessment lawsuits. This was a contentious process, given that Wolff was now both a board member and a plaintiff suing the town. For another, Wolff told voters that he would fire many of Grand Chute‘s full-time staff, including Administrator March. A month before Wolff took office, March expressed concerns to the town‘s human resources department that he and others would lose their jobs.
The most important feud, though, had to do with Wolff‘s residency. During the new board‘s first few months in office, Supervisor Gehring became convinced that Wolff was not living in Grand Chute. Wolff owned a home in the town, but he
So, Gehring initiated a formal complaint about Wolff‘s standing as a supervisor. But his challenge proved unsuccessful. After a public hearing, the Town Clerk ruled against Gehring, finding the evidence insufficient to say that Wolff did not reside at his Grand Chute home.
Undeterred, Gehring turned to higher authorities. In early September 2021, he reached out to the county district attorney about Wolff‘s residency. The DA escalated the matter to the Wisconsin Department of Criminal Investigations, which assigned Special Agent Jay Yerges to open an investigation.
For six months, Yerges investigated Wolff in secret. He interviewed members of the town staff in their offices. He also surveilled Wolff‘s home, secured warrants to search Wolff‘s trash, and sought access to Wolff‘s personal email account.
The new board members did not know about this investigation when it began. That changed in March 2022, when state authorities executed surprise search warrants at both of Wolff‘s homes and his business. Investigators interviewed Wolff, his wife, his brother, and the members of his faction on the board the same day. Each was asked many questions about Wolff, most of which focused on his residency, his role in settling the special assessment lawsuits, and whether the new board members were meeting outside formal settings.
C
Stunned, the new board members spent several weeks trying to figure out what, or who, was motivating the investigation. Several of them shared their frustration with the lack of information surrounding the investigation in public. They did
Around this time, Ings filed a report with the local FBI office. His letter reveals how little he knew at the time about the investigation. Ings relayed that investigators had asked him about Wolff‘s residency, whether Wolff “had bullied anyone ... in order to gain a favorable outcome in his lawsuit mediation,” and whether Wolff “threatened to terminate any Grand Chute Town employees.” The report noted that “these three topics ... do not appear to merit the involvement of DOJ-level law enforcement officials.” Ings also noted that Wolff‘s warrant signaled “residency” and “misconduct in office” as the reasons for the search. His question: “How did the complaint grow from a concern about residency to also include misconduct in office?”
The supervisors received no answers. The record shows that they came to believe the investigation was merely a “political stunt” orchestrated by Supervisor Gehring to undermine their administration. After all, the DOJ had executed the search warrant two weeks before a hotly contested election, and local media reported on the supposedly secret raid on Wolff‘s properties almost as soon as it began. The new board suspected foul play.
D
Nearly two months after the search of Wolff‘s properties, the supervisors learned that Administrator March had been involved in the investigation. Ings emailed March to ask
All the board members aver they had no idea what March said to the investigators. And they did not learn what he said until after the investigation concluded in July 2023, nearly two years after it began.
Meanwhile, relations between March and the new faction soured even further. Wolff had threatened to fire March on a regular basis for years; in fall of 2022, the board obtained a copy of his employment contract and set new performance goals. The HR director discouraged the board from acting against March, citing threats of a retaliation lawsuit.
At a town meeting in April 2023, however, the board publicly broached terminating March‘s contract. Gehring vehemently opposed, insinuating that the reason his opponents wanted to fire March was that he was “interviewed and is cooperating” with the DOJ investigation. This devolved into political accusations. Van Eperen accused Gehring of having “motive” and implied that the investigation was meritless; Gehring responded that “obviously there is something there” because “the DOJ has not backed off from the investigation.”
Less than a month later, four members of the Board (including three members of the Doomed Dozen faction) voted to terminate March‘s employment. Gehring was the lone dissenter, saying “this has been the most disgusting thing” he had seen “in his 30 years of government” experience.
E
Within a few weeks of being fired, March sued several of his antagonists and the Town under
After discovery began in this civil case, the State filed a criminal complaint against Wolff. But it was not based on anything the Doomed Dozen had thought motivated the investigation. Rather, Wolff was charged with taking a private interest in a public contract while in office, a Class I felony. See
The charge related to an incident that occurred within the first six weeks of Wolff‘s tenure on the Town Board. Outside his board duties, Wolff ran Lake Shore Cleaners, Inc., a landscaping business which fulfilled many public works contracts for the town. In May 2021, the town‘s primary contractor reached out to Lake Shore and requested a quote for a project. After public deliberation, the board voted to approve payment of over $25,000 to Lake Shore to seed grass at the local community center. Wolff and Ings abstained from this vote.
At the time, the town‘s lawyers and the board discussed whether the project needed to be bid out. Both Gehring and March also expressed minor concern about this contract when they first met with Special Agent Yerges—months after the contract was approved, but several weeks before Lake Shore Cleaners completed work on the project and received
This was the only basis for the DOJ‘s charge against Wolff. In an off-the-record meeting between Yerges, Gehring, March, and the Grand Chute Chief of Police, Yerges explained prosecutors would not charge any of the other conduct that had motivated the investigation due to insufficient evidence. And after a jury trial Wolff was acquitted of the corruption charge.
The criminal case is relevant here for another reason: it revealed that March was far more involved in the investigation than he had admitted to the board. March was an active participant in the investigation, and he reached out to Yerges several times on his own when his supervisors expressed frustration with staff. March was also very critical of Wolff, Ings, and Van Eperen. During his initial meeting with Yerges, March noted they were “aligned ideologically” on the town‘s special assessment policy and described “rallies” with their “coalition of supporters.” March called Wolff “unhinged,” said he “often lacked sleep, appeared stressed[,] and has a temper,” and claimed he had detected the smell of alcohol on Wolff during board meetings. March told Yerges he was being bullied by Wolff, and he insisted Wolff did not understand how the town government actually worked. And March said Supervisor Ings was bitter over failed business ventures in the town, which gave him “a personal agenda for disapproving of how the township does business.”
Discovery in this civil case added to the evidence of March‘s involvement. March claims that he was not politically aligned with Brad Gehring or the old board, as the new faction believed. But his text messages tell a different story. For
In light of all this, the defendants now argued that March‘s firing did not violate the First Amendment because he was a “policymaker” who was aligned with their political enemies and spoke “in a manner that is critical of superiors or their stated policies.” Hagan v. Quinn, 867 F.3d 816, 819 (7th Cir. 2017). And Wolff brought a counterclaim, alleging that March retaliated against him in violation of the First Amendment by scheming to trick Wolff into committing a crime.
The defendants moved for summary judgment in March‘s lawsuit, as did March on Wolff‘s counterclaim. The district court granted these motions. Relevant here, the court held that March could not succeed on the merits and that qualified immunity shielded these defendants from liability. Both parties timely appealed. We review the district court‘s resolutions of these motions de novo. Gill, 962 F.3d at 363.
II
March contends the new board faction fired him because he spoke to law enforcement as part of the state‘s criminal investigation against Wolff, retaliating against him because he exercised his First Amendment rights. So, he asks us to treat his case as if he were any other employee of the government.
But March has made a critical concession: as the town‘s highest unelected official, March qualifies as a “policymaker.” That brings his case within the ambit of the Elrod–Branti line of political patronage cases, which permit public officials to fire policymaking employees for political reasons without offending the First Amendment. See Elrod v. Burns, 427 U.S. 347, 372–75 (1976), and Branti v. Finkel, 445 U.S. 507, 517–19 (1980).
This court‘s precedent applying the Elrod–Branti doctrine to cases involving employee speech has been less than clear. So, this case is best resolved by granting qualified immunity to the defendants. To show why, this section proceeds in three parts. First, we describe the Supreme Court‘s political patronage cases. Next, we discuss this court‘s caselaw extending that doctrine to speech cases involving policymaking officials. Finally, we explain why a reasonable official in the defendants’ shoes, looking at governing precedent in May 2023, would see no constitutional problem with firing March on these facts.
A
To establish a prima facie case of First Amendment retaliation, a plaintiff must satisfy three elements: (1) the Constitution protects his speech or conduct, (2) he suffered a deprivation likely to deter him from exercising his First Amendment rights, and (3) his speech “was a motivating factor in [his] employer‘s adverse action against” him. Sweet v. Town of Bargersville, 18 F.4th 273, 277–78 (7th Cir. 2021) (citation modified).
Courts normally apply the Pickering–Garcetti framework when deciding whether a fired employee engaged in protected speech. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527–28 (2022). A terminated employee must first show he spoke as a private citizen on a matter of public concern.
Some cases, though, do not require the ordinary Pickering–Garcetti inquiry. Chief among them are the “political patronage cases.” In Elrod v. Burns, a plurality of the Supreme Court concluded that employees “discharged or threatened with discharge solely because of their partisan political affiliation or nonaffiliation” can state a claim under the First Amendment. 427 U.S. at 349. A majority of the Court adopted and refined that rule in Branti v. Finkel, holding that political patronage firings—terminating employees because they belong to the “wrong” political party—offend the Constitution. 445 U.S. at 517. And in Rutan v. Republican Party of Illinois, 497 U.S. 62, 65 (1990), the Court extended the Elrod–Branti rule to all adverse employment actions, including “promotion, transfer, recall, and hiring.”
But these cases carve out an important exception. Employers can fire “policymaking” employees for political reasons without offending the First Amendment. See Elrod, 427 U.S. at 367 (plurality); id. at 375 (Stewart, J., concurring) (agreeing that the patronage rule applies only to “nonpolicymaking, nonconfidential government employee[s]“). This exception comes from a practical concern about making government work: certain positions require political alignment to implement the policies of officials elected by the people. Without such alignment, policymakers could obstruct their superiors, thwarting representative government. Hanson v. LeVan, 967 F.3d 584, 592 (7th Cir. 2020).
In short, an employer may not fire an employee because of his party affiliation unless that employee is a “policymaker.” The “ultimate inquiry” for identifying a policymaker is whether “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518. Most courts have construed this definition broadly, treating bureaucrats of many stripes as “policymakers.” See Bogart v. Vermilion County, 909 F.3d 210, 213–14 (7th Cir. 2018) (collecting cases).
B
The Supreme Court has not explained the relationship between the Pickering–Garcetti and Elrod–Branti lines of cases. It has hinted at some overlap, see Heffernan v. City of Paterson, 578 U.S. 266, 268, 270–71 (2016), but it has not said so outright. Over thirty years ago, though, this court made the leap, extending the logic of the Elrod–Branti policymaker exception to firings for political speech.
Our starting point was Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993). There, an elected deputy sheriff retaliated against an employee who chose to run against him in the upcoming election. Id. at 215. “[A]t first blush,” these facts “present a blatant case of retaliation for the exercise of the right of free speech.” Id. Still, the court held that the sheriff was not liable because this case came “within the scope of the concern that gave rise to the exceptions” in the Elrod–Branti cases. Id. at 217.
As the court explained, “[a]n elected official is entitled to insist on the loyalty of his policymaking subordinates,” and “experience and common sense” showed such “height[s] of disloyalty” need not be tolerated. Id. at 218–19. It found absurd the idea that the First Amendment “forc[ed] a public
For the next several decades, this court reaffirmed this doctrine but struggled to define its scope. The court bristled at the thought that employers might fire policymakers for “speech unrelated to political affiliation or viewpoint.” Bonds v. Milwaukee County, 207 F.3d 969, 977 (7th Cir. 2000). So, it eventually concluded that “[e]ven these policymaking employees ... possess a minimal level of First Amendment protection against retaliatory dismissal.” Embry v. City of Calumet City, 701 F.3d 231, 235 (7th Cir. 2012). And it imposed more rules to that effect. Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 973 (7th Cir. 2001); Kiddy–Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005).
This doctrinal development resulted in a two-step test for policymaker speech cases. As in all Elrod–Branti cases, the defendant must first show that the employee is a “policymaker.” Hagan, 867 F.3d at 826. Then, the defendant must show that the policymaker‘s speech was somehow connected to “political affiliation or policy views,” or else qualify as “speech on a matter of public concern in a manner that is critical of superiors or their stated policies.” Id. (citation modified). Though our doctrine has grown far beyond the original Elrod–Branti Supreme Court cases, it remains a “logical outgrowth of the Elrod–Branti line of cases,” even as it is a “corollary to the standard Pickering analysis.” Hagan, 867 F.3d at 819–20.
In sum, this court recognizes not one, but two “policymaker exceptions.” The first is the standard Elrod–Branti rule for policymakers, which covers employees fired for their political affiliations. The second is the “policymaker corollary,” which covers employees fired for their politically disloyal speech. Hagan, 867 F.3d at 820.
C
With this background, we turn to March‘s First Amendment retaliation theory. This case requires us to decide whether either of these two policymaker exceptions applies. As in Bonds v. County of Milwaukee, though, the “unique facts of this case” place difficult questions about the scope of this doctrine “in unusually sharp relief.” 207 F.3d at 977. The parties’ approach to this litigation has exposed three ambiguities in our doctrine impeding resolution of this case.
This uncertainty makes qualified immunity the best way to resolve this dispute. We will not be the first panel to rely on qualified immunity in a thorny Elrod–Branti case. See, e.g., Mitchell v. Thompson, 18 F.3d 425, 427 (7th Cir. 1994); Wallace v. Benware, 67 F.3d 655, 656 (7th Cir. 1995); Ryan v. Ill. Dep‘t of Children and Fam. Servs., 185 F.3d 751, 758–60 (7th Cir. 1999); Wernsing v. Thompson, 423 F.3d 732, 746–47 (7th Cir. 2005); Matrisciano v. Randle, 569 F.3d 723, 731–36 (7th Cir. 2009). Like those panels and the district court, we conclude that a reasonable official, looking at governing precedent, could think firing March in this situation would not offend the Constitution.
To explain why, this section outlines the qualified immunity test before highlighting the ambiguities in our caselaw about the policymaker corollary. It concludes by applying the governing law to this case.
1
“So long as [a public official‘s] conduct does not violate clearly established law, qualified immunity will shield him from civil liability.” Stewardson v. Titus, 126 F.4th 1264, 1275 (7th Cir. 2025). The doctrine provides “ample room for mistaken judgments and protects all but the plainly incompetent and those who knowingly violate the law.” Schimandle v. Dekalb Cnty. Sheriff‘s Off., 114 F.4th 648, 655 (7th Cir. 2024) (citation modified). A plaintiff seeking to defeat a qualified immunity defense must make two showings. Villalobos v. Picicco, 168 F.4th 1057, 1062 (7th Cir. 2026). First, he must establish that the official‘s actions violated the Constitution; second, he must show that the unlawfulness of the conduct was clearly established at the time of the violation. Id. at 1063–64. A court may consider these prongs in any order. Id.
A plaintiff shows that the law is clearly established by “pointing to specific cases, not general legal principles.” Id. at 1063. That is so because the Supreme Court requires the “contours” of a rule to be “so well defined that it is clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (citation modified). So, a plaintiff must show that both the general principle and the facts of an analogous case clearly establish the law to defeat qualified immunity.
But in some cases, the general principle is not clearly established. Cf. Matrisciano, 569 F.3d at 735. In such cases, the precedent on a doctrine has not been sufficiently developed “to give fair warning” to officials governed by the rule. Id. This entitles the defendants to qualified immunity. There are also some situations in which governing precedent obfuscates the principles governing a case precedent, rather than making
2
Keeping these principles in mind, we turn to this case. There are three primary concerns: the parties strongly dispute why March was terminated, how “partisan” or “political” speech must be to trigger this court‘s policymaker corollary, and whether it matters that the defendants did not know the contents of March‘s speech at the time they fired him. We address each in turn.
(i)
March insists he was terminated because he spoke to state authorities during the state‘s criminal investigation. The defendants have invoked both the standard Elrod–Branti policymaker exception and its corollary. That means they raised two theories of causation by implication: that March was fired for his political affiliations as well as his political speech.
Defendants should be cautious about asserting both. To raise the ordinary Elrod–Branti exception, the Supreme Court requires defendants to concede that they fired the employee “solely because of his political beliefs.” Branti, 445 U.S. at 508. This court‘s corollary cases follow suit: a defendant must
This means the corollary is not just a “shorthand for the Pickering balancing” test, as we have sometimes described it. Vargas-Harrison, 272 F.3d at 973. It is shorthand for the entire First Amendment retaliation analysis. That suggests defendants invoking Elrod–Branti should choose their theory of causation and hold fast. And defendants who wish to present these arguments in the alternative must proceed with care.
Conflating whether March was fired for his speech or his political affiliations has important implications. It could create a dispute of fact precluding summary judgment. And this court has not decided whether a case in which both speech and political affiliations are motivating factors for termination should proceed under the Supreme Court‘s Elrod–Branti test or under this court‘s corollary for policymaker speech. But see Heffernan, 578 U.S. at 268, 270–71 (hinting that these kinds of cases might merge into Elrod–Branti).
Defendants hoping to take advantage of these exceptions must be precise as to why they terminated the employee—political speech or political affiliations. If they do not, a failure to specify might require a jury to decide causation.
(ii)
This case also raises a thorny question our caselaw has expressly avoided: how “partisan” or “political” must the
Generally, “the policy-maker corollary does not apply ... when the speech at issue does not implicate the employee‘s politics or substantive policy viewpoints.” Vargas-Harrison, 272 F.3d at 973. But our court‘s law has not always been so consistent. Early on, this court explained that the speech needed to be connected to “partisan politics.” Marshall v. Porter Cnty. Plan Comm‘n, 32 F.3d 1215, 1221 (7th Cir. 1994). Later cases expressly disagreed, casting the exception in broader terms. See Matrisciano, 569 F.3d at 731 (“We have not limited this ‘policy-maker corollary’ to instances where the plaintiff‘s political views led to the adverse action.“).
The most recent precedent emphasizes whether the speech evinces political disloyalty or criticism for superiors. See, e.g., Hagan, 867 F.3d at 820; Kiddy–Brown, 408 F.3d at 358; cf. Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995). These opinions hint that speech critical of superiors but lacking a political valence could fall within the scope of the corollary. This rule does not necessarily follow from either Elrod–Branti themselves or our earlier corollary caselaw. Yet it has been repeated several times, adding to the confusion.
At the same time, this court has said in “dicta,” Warzon, 60 F.3d at 1239 n.1, that “speech critical of a superior‘s abuse of office does not come within the policy-maker analysis.” Vargas-Harrison, 272 F.3d at 973 n.4. That conclusion derives from this court‘s decision in Marshall v. Porter County Plan Commission, a case that (as explained below) stands on shaky ground. More importantly, though, this court has not applied this principle since Marshall, so its contours are not well defined.
The speech in this case lands somewhere in the middle. March‘s speech to Special Agent Yerges was not overtly partisan—it focused on the alleged misconduct of his superiors. But March was intensely critical of the new board faction, attacking them personally and questioning whether they had the judgment or ability to run the town effectively. Nor is there doubt that his speech was related “to the performance of [his] duties,” which this court has assumed matters for applying the corollary. Bonds, 207 F.3d at 979. In the end, our caselaw does not dictate an obvious answer.
(iii)
One final, critical difficulty is that the defendants did not know what March said when they fired him. They learned March spoke to investigators after state law enforcement searched Wolff‘s properties, but they insist they did not know the content of his speech.
The defendants believe this concession helps them, but it does not. In all this court‘s corollary cases, there has been no doubt the employers knew what the employee said before termination. If anything, this admission lends credence to March‘s argument. He contends that simply speaking to law enforcement, without knowing whether that speech is political or otherwise disloyal, cannot come within the scope of the doctrine.
Still, there are two reasons why this concession does not hurt the defendants. The first is that this court has not decided whether the policymaker corollary is a subjective or an objective inquiry. In other First Amendment contexts, we evaluate whether the speech is protected as an objective question of law. Jordan v. Jewel Food Stores, 743 F.3d 509, 515 (7th Cir. 2014).
In whistleblower cases, courts do not consider what defendants knew about the speech when deciding whether an employee spoke as a private citizen on a matter of public concern. E.g., Fehlman v. Mankowski, 74 F.4th 872, 874–75 (7th Cir. 2023), Metzger v. DaRosa, 367 F.3d 699, 701–02 (7th Cir. 2004). That matters for the causation inquiry; it does not bear on whether the speech is protected.
The second reason follows from the first: Supreme Court precedent provides that actual knowledge of the speech does not determine the outcome in First Amendment retaliation cases. In Heffernan v. City of Paterson, a police chief demoted an officer because he thought that the officer publicly opposed a mayoral candidate. 578 U.S. at 269. But it was a misunderstanding—the officer had not actually supported the candidate. Id. All the same, the Court held that this incorrect belief could not serve as a defense to First Amendment liability, even though the employee “had not in fact engaged in protected political activity.” Id. at 268.
In reaching that holding, the Court reinvigorated a line of cases concluding that “the government‘s reason for [the adverse employment action] is what counts.” Id. at 273 (citing Waters v. Churchill, 511 U.S. 661 (1994)). When an “employer wrongly, though reasonably, believed that the employee had spoken” in a manner unprotected by the First Amendment, the Court held in Waters that the employer would be protected from liability. Heffernan, 578 U.S. at 272. All that matters is the employer‘s reasonable belief that the employee‘s speech did not merit First Amendment protection and that he “had dismissed the employee because of that mistaken belief.” Id.
Heffernan expressly invoked the Elrod–Branti line of cases. 578 U.S. at 268, 270. Yet this court‘s policymaker cases have
3
Based on these uncertainties in the caselaw, the defendants are entitled to qualified immunity. A reasonable official in their positions would believe that in these circumstances governing law allowed them to fire March.
The operative question for all the Elrod–Branti policymaker cases is whether March is a policymaker. As the highest-ranking unelected official in the town, he is. The “test for whether a position involves policymaking is whether the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation.” Hagan, 867 F.3d at 824 (citation modified). The Town Administrator‘s core duty is to direct the town‘s departments to implement the board‘s policy decisions. He was also an active participant in board meetings, offering his input on how to solve problems and effectuate policies. It is no wonder, then, that March concedes he qualifies as a policymaker.
This case therefore begins in the “murky” ambit of Elrod–Branti. Hanson, 967 F.3d at 597 (citation modified). The only remaining issue is the reason for his firing—was he let go because of his speech or his political affiliations? And if fired because of his speech, was the speech “of the kind that falls within the scope of the corollary” under this court‘s caselaw? Hagan, 867 F.3d at 826.
In resolving this issue, we construe the facts in the light most favorable to March. So, we assume his speech was the sole factor motivating his termination, even though the record reveals the reasons for March‘s firing were more complex.4 Granting March this point, his claim still cannot proceed.
As described above, this court had not decided whether an official‘s “factual mistake” serves as a defense to liability in policymaker cases. Heffernan, 578 U.S. at 272. If the defendants “wrongly, though reasonably, believed” March “had not engaged in protected speech” when he spoke to law enforcement because it fell into the scope of the policymaker corollary, they might not face liability. Id. (citing Waters, 511 U.S. at 679–80) (emphasis omitted). Based on governing precedent, a reasonable officer could think he need not wait for smoking gun evidence of disloyalty before firing a policymaker.
As the district court explained, it was reasonable for the defendants to think March‘s speech to law enforcement fell within the scope of the corollary. Based on the questions they were asked by Special Agent Yerges—their only source of information about what March might have said—they knew the
Importantly, the defendants’ conversations with law enforcement did not focus on the contract that formed the basis for Wolff‘s criminal charge. The record reveals even March and Gehring did not place the contract at the top of their list of concerns. Supra at 8–9. A reasonable official could not predict that March was speaking about conduct that nobody then knew was alleged to be criminal.
It is true the defendants knew March was speaking as part of a criminal investigation. But on its own, this fact is not enough to change the outcome. The defendants did not know the purpose of the investigation and were prevented from investigating further. Van Eperen believed that the investigators “don‘t know what they are looking for” after they questioned him about myriad topics. Ings instructed his lawyer “to ask, ‘Was a crime committed? If yes, what is the crime? If no, why was an eight-month investigation conducted?‘” When town staff would not tell them what the investigation was about, they relied on the limited information they did have—none of which would lead a reasonable official to believe March‘s
Once the defendants discovered March had spoken to law enforcement, they could reasonably conclude he had criticized their policies. And both Supreme Court and this court‘s precedent did not clearly establish that employers need to know exactly what a policymaker says to fire him. Nor did it establish how “political” the speech must be to fall within the scope of the corollary. So, we must grant qualified immunity to the defendants, even assuming March‘s speech was the sole cause of his dismissal.
March insists the law on terminating government employees is clearly established by the Supreme Court‘s decision in Lane v. Franks, 573 U.S. 228 (2014), and this court‘s decision in Marshall v. Porter County Plan Commission. Neither suffices.
In Lane, a government employer fired an employee because he testified under subpoena in a trial against the employer. 573 U.S. at 235. March observes that the court did not consider whether the plaintiff qualified as a policymaker, instead deciding the case by applying the Pickering–Garcetti framework. Id. at 238. Because March thinks the plaintiff would be treated as a policymaker under this court‘s precedent, he insists Lane clearly establishes the law.
Even if March was correct about that plaintiff being a policymaker, Lane does not require a ruling for him on qualified immunity. The problem for March is that the Court has not decided whether the Elrod–Branti line of cases applies to cases involving the speech of policymakers. This court made the leap long ago. That the Supreme Court has not extended the
With no on-point Supreme Court precedent, we turn to this court‘s decision in Marshall. Like this case, there an executive secretary of a city board was fired after she criticized her employers for misconduct in office. 32 F.3d at 1217–18. Though the secretary qualified as a policymaker, the court decided she could not invoke the protection of Wilbur (which had been decided just one year earlier). Because the secretary‘s “politics” were not “implicated in the discharge,” and her speech did not “reflect[] ... her political associations,” the court concluded that Pickering governed. Id. at 1221.
There are factual distinctions between Marshall and this case. But more importantly, both this court and the Supreme Court have chipped away at Marshall‘s foundation as precedent. A year after Marshall was decided, the court in Warzon described its discussion of the policymaker question as “strictly speaking, ... dicta.” 60 F.3d at 1239 n.1. And, as outlined above, Warzon began a process of loosening Marshall‘s requirement that the speech at issue be overtly partisan. Because “what is ‘political’ or drives voters’ preferences can be interpreted very broadly and is difficult to assess,” the court thought it “wise to leave the decision of what type of speech by policymakers warrants dismissal to the elected official.” Id. Later cases followed suit, adding confusion by focusing more on whether the speech is “critical of superiors or their stated policies.” Hagan, 867 F.3d at 829 (emphasis added).5
We conclude that the individual defendants are entitled to qualified immunity.6
III
Wolff‘s counterclaim is simpler to resolve. After Wolff was charged in his criminal case, he sued March, alleging that March deliberately withheld the knowledge that the contract he signed may be illegal—setting him up for prosecution. In
Wolff‘s argument is best framed as a claim of retaliatory prosecution. See Hartman v. Moore, 547 U.S. 250, 259–66 (2006). To state this claim, Wolff must first establish that March engaged in “state action” and that there was no probable cause supporting the prosecution. Id.; see also Lindke v. Freed, 601 U.S. 187, 193 (2024). But March himself did not exercise the “power of the State” to file the criminal charges against Wolff. Lindke, 601 U.S. at 199. And no evidence shows that March colluded with prosecutors or somehow induced them into bringing charges. Hartman, 547 U.S. at 252. Wolff has made no effort to satisfy either of these crucial elements.
As for his class-of-one equal protection theory, Wolff has not alleged any of the required elements. He must show that March “intentionally treated [him] differently from others similarly situated” and that “there is no rational basis for the difference in treatment.” McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). To meet that standard, plaintiffs must point to a comparator who was “similarly situated” and treated differently. Id. at 1002. Wolff has not done so. He contends that this requirement does not apply to him because “March‘s actions were so uniquely illegitimate and unconstitutional.” But that is simply not how the law operates. All class-of-one-claimants must point to a comparator; Wolff has failed to do so, dooming his counterclaim.
IV
Grand Chute has been plagued by lawsuits since 2019. The district court properly concluded that this set of cases must
In another case, this court may need to confront the challenges posed by our policymaker precedent. But until then, defendants who invoke either version of the Elrod–Branti doctrine should avoid conflating the policymaker exception with this court‘s corollary for speech.
AFFIRMED