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Clarke v. Abele

United States District Court, E.D. Wisconsin

April 21, 2016

DAVID A. CLARKE, JR., Plaintiff,
CHRIS ABELE, Defendant.


J.P. Stadtmueller U.S. District Judge.

Political disputes are as old as government itself. See, e.g., Marbury v. Madison, 5 U.S. 137, 143, 2 L.Ed. 60 (1803). This matter presents an exemplar case.

On January 28, 2016, Milwaukee County Sheriff David Clarke (“Clarke”) filed this suit under 18 U.S.C. § 1983 against Milwaukee County Executive Chris Abele (“Abele”) in Milwaukee County Circuit Court claiming that Abele committed unlawful retaliation under the First Amendment during the county’s 2016 budget process. (Docket #1). Clarke sought “a judgment enjoining Executive Abele from using the County annual budget process to retaliate against County elected officials for speaking out on matters of public concern in violation of their First Amendment rights.” (Docket #1 at 7).

Pursuant to 28 U.S.C. § § 1331, 1441(a) & (b), and 1446, Abele removed the action to federal court. (Docket #1). Abele has likewise filed a motion to dismiss Clarke’s claim for injunctive relief pursuant to Federal Rule of Civil Procedure 12(b). (Docket #2). That motion is now fully briefed and ripe for adjudication. (Docket #3, #9, #10).

For the reasons described herein, the Court will grant Abele’s motion to dismiss this case. (Docket #2). Judgment will be entered accordingly.


Clarke’s complaint arises out of certain events that occurred during Milwaukee County’s 2016 budget approval process. (See generally Docket #1). In relevant part, Clarke had initially requested $109, 221, 269.00 for the Office of Sheriff for the 2016 fiscal year. (Docket #1 ¶ 9). Abele, however, submitted his recommended annual budget to the County Board of Supervisors (“the Board”), which included an allocation of $81, 709, 092.00 for Clarke’s office. (Docket #1 ¶ 10). When the Board received Abele’s proposal, it instead adopted an amendment which provided an additional $4, 000, 000.00 to the Office of the Sheriff. (Docket #1 ¶ 11).

On November 17, 2015, Abele exercised his statutory prerogative under Wis.Stat. § 59.17(5)-(6) and vetoed the Board’s $4, 000, 000.00 amendment. (Docket #1 ¶ 12). When Abele issued his decision, however, he explained the reason for his veto to the Board in the form of a memorandum. (Docket #1 ¶ 15). As quoted in relevant part in Clarke’s complaint, Abele stated that he was “vetoing this amendment because” he did not want to “raise property taxes by 1.4 percent to validate [Clarke] for his repeated incendiary comments and his out of touch views on criminal justice and our society.” (Docket #1 ¶ 15). Abele expressed his view that “[p]ublic insults and accusations don't make us safer. As public servants, our responsibility is not to make headlines, our responsibility is to make a difference.” (Docket #1 ¶ 15). He also went on to identify specific examples of Clarke’s “incendiary” comments, including Clarke calling “Black Lives Matter” protesters “sub-human creeps” and accusing African Americans of being uneducated, lazy, and morally bankrupt. (Docket #1 ¶ 15).

Thereafter, on November 18, 2015, the Board overrode Abele’s veto. (Docket #1 ¶ 13). Clarke’s office was allocated and received the additional $4, 000, 000.00 in its 2016 budget. (Docket #1 ¶ 13).


“A motion to dismiss pursuant to [Rule] 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). “To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must state enough facts that, when accepted as true, ‘state a claim for relief that is plausible on its face.’” Spierer v. Rossman, 798 F.3d 502, 510 (7th Cir. 2015) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” McCauley v. City of Chicago, 671 F.3d 611, 615 (7th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The Court must “tak[e] all factual allegations as true and draw[] all reasonable inferences in favor of the plaintiffs.” Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008).

Similarly, “[m]otions to dismiss under Rule 12(b)(1) are meant to test the sufficiency of the complaint, not to decide the merits of the case.” Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588-89 (7th Cir. 2014) (citing Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n.1 (7th Cir. 1996)); see also Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (applying the same principle to motions under Rule 12(b)(6)). As when deciding a Rule 12(b)(6) motion, “[i]n the context of a motion to dismiss for lack of subject matter jurisdiction, [the Court must] accept as true the well pleaded factual allegations, drawing all reasonable inferences in favor of the plaintiff.” Iddir v. INS, 301 F.3d 492, 496 (7th Cir. 2002). However, “a plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of establishing that the jurisdictional requirements have been met.” See Burwell, 770 F.3d at 588-89 (citing Kontos v. U.S. Dep't Labor, 826 F.2d 573, 576 (7th Cir. 1987)).


Clarke filed this action pursuant to 42 U.S.C. § 1983 to enjoin Abele from using the Milwaukee County’s annual budget process to retaliate against elected officials. (Docket #1 ¶ 7). Clarke asserts that he-and presumably other elected officials-will file proposed budgets in the future and will be deterred ...

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