Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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HUTCHINS v. CLARKE (October 24, 2011)

On May 17, 2007, callers to a popular Milwaukee radio call-in show were discussing the performance of Milwaukee County Sheriff David Clarke, and particularly his relationship with African-Americans. Deputy Sheriff David Hutchins criticized Clarke during his call. In response, Sheriff Clarke called the show and was critical of Hutchins. Specifically, he suggested that Hutchins held a grudge because Clarke had disciplined Hutchins years earlier for sexual harassment. Hutchins brought suit pursuant to § 1983, alleging that Clarke violated his First Amendment rights by retaliating against him. He also brought claims under Wisconsin's Open Records Law and Right of Privacy statute. Magistrate Judge Callahan (E.D. Wis.) granted summary judgment to Hutchins. Clarke appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Williams (concurring) reversed. The Court first summarily disposed of the state Open Records Law claim. That law deals with access to government records and limits access to government employees' disciplinary records. Although this case is about a disciplinary record, there was no request for access to that record -- the law simply does not apply. The Court turned to the Right of Privacy statute. The statute creates a right of action for "invasion of privacy." But it explicitly excludes from its definition the communication of any information that is a matter of public record. The Court disagreed with the magistrate's conclusion that Hutchins’ disciplinary record was not a matter of public record. The district court never engaged in the balancing test required by the Open Records Law to determine whether the record is a public record. Since the balancing test is a matter of law, the Court engaged in its own analysis. Although it found factors in favor of both privacy and disclosure, it concluded that the public interest in disclosure was not outweighed by the interest in keeping it private. Thus, Hutchins’ disciplinary record should be considered a matter of public record and his Right of Privacy claim fails. Finally, the Court turned to the only federal claim, the First Amendment retaliation claim. One of the elements of the claim is that there be some retaliatory action, although it need not rise to the level of an adverse employment action. It must be enough of an action, however, to chill further speech. Here, the retaliatory action is itself speech, which also must be afforded some protection. The Court looked to other circuits and district courts within its circuit and agreed that for such speech to be retaliatory, it must be threatening, harassing, or intimidating. Concluding that Sheriff Clarke's speech was not, the Court reversed the First Amendment retaliation claim.

Judge Williams wrote separately, concurring in the opinion and expressing her views on the panel's disposition of the First Amendment retaliation claim. Judge Williams emphasized the Court's precedent that retaliatory speech that is likely to deter a person for exercising First Amendment rights may be actionable, even if not threatening, harassing, or intimidating.