United States District Court, W.D. Wisconsin
ALLAN A. NORDSTROM, Plaintiff,
TOWN OF STETTIN, MATTHEW WASMUNDT, and ALLIED WORLD SPECIALTY INSURANCE COMPANY, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
cities do not have a monopoly on hardball politics, as this
case from the little Town of Stettin in north central
Wisconsin demonstrates. Plaintiff Allan A. Nordstrom was
appointed, and later elected, to serve as a town supervisor.
During his short tenure on the town board, Nordstrom butted
heads with the chairperson of the town board, defendant
Matthew Wasmundt, and other members of the board. The tension
between Nordstrom and Wasmundt led to Wasmundt recommending
that criminal charges be filed against Nordstrom and
culminated with Nordstrom's resignation. Nordstrom has
filed suit against Wasmundt, the Town, and its insurance
company, defendant Allied World Specialty Insurance Company,
asserting claims under the First and Fourteenth Amendments of
the Constitution. Dkt. 25. Nordstrom contends that he was not
just the victim of hardball politics, but that he faced
unlawful retaliation for exercising his right to free speech.
move to dismiss Nordstrom's amended complaint (Dkt. 7)
under Federal Rule of Civil Procedure 12(b)(6), contending
that Nordstrom fails to state a claim upon which relief can
be granted. Dkt. 12 and Dkt. 18. Nordstrom has amended his
complaint yet again. Dkt. 25. But those most recent
amendments do not affect the court's analysis, so the
court will rule on defendants' motions without asking for
further input. Generally speaking, elected officials cannot
use the First Amendment to shield themselves from the
political consequences of their words. But accepting
Nordstrom's allegations as true, he states First
Amendment retaliation claims against defendants because they
abused the political process in forcing Nordstrom out of
office. The court will deny the motions to dismiss.
court draws the following facts from Nordstrom's first
amended complaint, Dkt. 7, and documents referred to in it,
and accepts them as true for the purpose of deciding
defendants' motions. Geinosky v. City of
Chicago, 675 F.3d 743, 745 n.1, 746 (7th Cir. 2012).
Town of Stettin is governed by a town board comprised of a
chairperson and two supervisors. Sometime before 2012,
Wasmundt was elected to serve as chairperson of the board,
and Jesse Graveen and Tom O'Brien (non-parties) were
elected to serve as supervisors. In 2012, O'Brien stepped
down, and Wasmundt and Graveen appointed Nordstrom to serve
the remainder of O'Brien's term. In April 2013,
Wasmundt, Graveen, and Nordstrom were all elected to serve
full, two-year terms in their positions on the board.
the time of the election, the three board members began to
disagree on several matters relating to town management.
Wasmundt and Graveen, the senior members of the board, wished
to maintain the traditional practices and policies used by
the town, whereas Nordstrom, the new board member, advocated
for reforms such as increased transparency measures, written
job descriptions for town employees, and soliciting land
donations by individual land owners. Nordstrom voiced his
opinions on these subjects during town board meetings.
Nordstrom felt that the meeting minutes did not accurately
reflect what occurred during the meetings. But Wasmundt and
Graveen always approved the minutes over Nordstrom's
objections. Eventually, the Town (presumably on
Wasmundt's instruction) stopped providing Nordstrom with
copies of the previous meeting's minutes to review before
the vote to approve them at the next meeting.
source of tension among the board members was an eroding
drainage culvert on Town resident Dave Seubert's
property. Nordstrom instructed Town employees to haul rock
from the Town rock pile to Seubert's property, at the
Town's expense, so that Seubert could repair the erosion,
despite Wasmundt objecting during several board meetings to
this use of Town property on private land. Eventually,
Wasmundt indicated during a board meeting that he would ask
the sheriff to charge Nordstrom with the theft of Town
materials. He followed through with this threat, and the
Marathon County Sheriff's Department investigated
Nordstrom's part in the use of Town rock on private
property and eventually forwarded a report to the district
attorney's office stating that “it is unknown if
charges are warranted.” Dkt. 7, ¶ 4058. The
district attorney never filed charges.
among the board members reached a breaking point when Town
resident Roger Hoeppner sued the Town, challenging the
legality of the Town board's actions. Hoeppner contended
that the Town's elected officials had not taken their
oaths of office within five days of their election in April,
which “constitutes refusal to serve in office”
under Wis.Stat. § 60.31(4), leaving their seats vacant,
according to Wis.Stat. § 17.03(7). Hoeppner was correct
as far as the facts were concerned: the board members had not
taken their oaths within five days as required by Wisconsin
law. The legal consequences of this failure, and the remedy
for it, are not at all clear.
board members were concerned about Hoeppner's suit, so
the Town's attorney, Shane VanderWaal, came up with a
solution: over a series of board meetings, the Town clerk,
Dawn Krueger, would declare each Town official's position
vacant, and the remaining members would immediately reappoint
the official to fill the vacancy for the remainder of the
term. The official would immediately take his or her oath.
Once all board members were properly appointed, they could
vote to ratify all of their acts taken since the April
election. (Defendants do not address the obvious flaw in this
process, which is that if the unsworn members were not
authorized to serve on the board, they would not be
authorized to reappoint the board members either.) The board
began to implement VanderWall's plan in October, when
Krueger declared Wasmundt's seat vacant, and Krueger and
Graveen immediately voted to reappoint Wasmundt as
chairperson. Nordstrom voted against reappointment. In a
December board meeting, this process was repeated for Krueger
and Graveen. Again, the officials were reappointed over
Nordstrom's objections. (It's unclear why Krueger,
who was not a board member, voted.)
January 2014, the time came for Nordstrom's seat to be
declared vacant and refilled. By this point, Nordstrom was
represented by his own attorney, Peter Bear. Bear believed
that the failure to take a timely oath could be remedied
simply by taking the oath at a later date, rather than the
vacate-and-reappoint procedure that VanderWaal recommended.
He asked VanderWaal and Wasmundt not to repeat the
vacate-and-reappoint procedure for Nordstrom's seat
“because, as they all knew, given the composition of
the board, . . . there would not be sufficient votes for . .
. Nordstrom to be reappointed to his seat.”
Id. ¶ 4076. Despite Bear's request,
Wasmundt moved forward with plans to declare Nordstrom's
seat vacant during the January 8 board meeting. Nordstrom
“believed that it was a foregone conclusion” that
the other board members would appoint someone else to his
seat once it was declared vacant. Id. ¶ 4083.
Because he feared that this would cause “disorder and
possibly violence” among the residents attending the
meeting, he chose to submit a letter of resignation before
the meeting. Id. At the January 8 meeting, Krueger
declared Nordstrom's seat vacant. The other board members
appointed Joe Gore to fill Nordstrom's seat for the
remainder of the term.
filed suit against the Town and Wasmundt in September 2016,
alleging that they retaliated against him by accusing him of
criminal conduct and constructively removing him from office
in violation of his rights under the First and Fourteenth
court has subject matter jurisdiction over Nordstrom's
claims pursuant to 28 U.S.C. § 1331 ...