United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
Gary Cleven, a former stagehand, sued the City of Madison and
two of its employees in their official capacity, claiming
that the City's failure to report his back hours and
wages to the Wisconsin Retirement System amounted to a
constitutional taking and violation of due process. Before
the court are the parties' cross-motions for summary
judgment. (Dkt. ##20, 24.) Because of its lengthy
factual and procedural history, this case presents a variety
of constitutional issues, not least being this court's
exercise of jurisdiction in light of ongoing state
proceedings. For the reasons discussed below, the court will
grant summary judgment in part to defendants and dismiss the
remainder of this case for a lack of ripeness.
Gary Cleven worked as a stagehand at various venues operated
by defendant City of Madison between 1980 and December 31,
2016. As a municipal corporation, the City is a Wisconsin
Retirement System (“WRS”) participating employer.
Defendant Paul Soglin is the Mayor of Madison, and defendant
David Schmiedicke is the city employee responsible for
determining and reporting WRS eligibility.
the course of Cleven's employment, he was originally
categorized as an independent contractor and then later as an
employee of the City. As of January 1, 1983, Cleven would
have worked enough hours to be eligible for enrollment in the
WRS, but for the City considering him and other stagehands to
be independent contractors at the time, making him ineligible
to participate. This not only meant that during this period
Cleven was unable to set aside his own earnings (his employee
contribution) in what has proved to be a very successful
retirement fund, but did not receive the contributions by the
City (the employer contribution).
a petition by Local 251 for an election whether stagehands
wanted to be represented by the union for collective
bargaining purposes, the Wisconsin Employment Relations
Commission (“WERC”) in 2004 determined that
stagehands working at Madison venues were City employees, not
independent contractors. After WERC reiterated this
determination in January 2007,  Local 251 began negotiating with
Madison as the stagehands' certified collective
bargaining representative in 2007. Those negotiations
included whether the stagehands were eligible to participate
in the WRS.
the City agreed to report Cleven for enrollment in the WRS on
December 27, 2009, designating him as a participant starting
on January 1, 2010. However, the hours he worked between 1983
and 2009 were not reported at that time. Between January 1,
1983 and December 31, 2009, Cleven worked 46, 286.49 hours
and earned $830, 112.24.
appealed to the Department of Employee Trust Funds
(“ETF”) on July 26, 2010, seeking an earlier
enrollment date in the WRS. The presiding administrative law
judge's proposed decision required that Cleven be
enrolled as a participant as of January 1, 1983. This
decision appears to have been reviewed by the ETF Board,
which issued a March 11, 2013, decision that: (1) stagehands,
including Cleven, were employees who should have been
reported to WRS; (2) Cleven qualified as a City employee as
of January 1, 1983, and should be enrolled as of that date;
and (3) it did not have the equitable power to force the City
to pay into the fund the past due WRS employee contributions.
Board's decision was challenged by stagehands on April 9,
2013, through a certiorari action to the Dane County Circuit
Court. The parties dispute the extent of Cleven's
personal involvement in that lawsuit before it was dismissed
for failure to comply with statutory requirements in March
2014. This dismissal was appealed to the
Wisconsin Court of Appeals and then to the Wisconsin Supreme
Court. The Wisconsin Supreme Court denied the petition for
review on May 15, 2015.
then brought a mandamus action in the Dane County Circuit
Court on June 9, 2015, seeking an order requiring the City
and Schmiedieke to report his hours and wages from 1983
through 2009. In April 2016, the circuit court required the
City and Schmiedicke to “immediately (with all
reasonable dispatch) report Plaintiff Gary Cleven's
hours of work and wages to the WRS so Cleven can be enrolled
as a participating employee as of January 1, 1983.”
(Defs.' Resp. to Pl.'s PFOFs (dkt. #43) ¶ 32.)
After that court denied the City's request for a stay,
the City backdated Cleven's enrollment to January 1,
1983, and reported his hours and earnings to ETF on June 6,
2016. On July 15, 2016, the City was invoiced $377, 438.17
for the employer and employee contributions for plaintiff,
including nearly $300, 000 in accrued interest charges.
(Id. at ¶ 36.)
August 2016, the City sought to add Cleven and the ETF as
third-party defendants in Gersbach et al. v. City of
Madison et al., No. 16-cv-1269 (Dane Cty. Cir. Ct.).
Cross motions for summary judgment regarding liability for
the employee contribution and interest to the WRS remain
pending in that case. (See Gersbach Docket (dkt.
retired on December 31, 2016, and received his first annuity
payment in February 2017, the calculation of which included
hours and wages from January 1, 1983. However, he now claims
that he would have retired from City employment on December
31, 2011, when the City ceased operations at the Overture
Center, but was unable to do so because the City had only
enrolled him in the WRS on December 27, 2009. As a result,
Cleven then had only 1.94 years of recognized service to the
City, making him ineligible for monthly retirement benefits.
According to the WRS, had the City reported his hours and
wages back to January 1, 1983, Cleven would have been
entitled to a $1, 678.90 monthly annuity payment under the
180-month guaranteed option if he had retired effective
January 1, 2012. Cleven further alleges that if he had been
eligible to start receiving retirement benefits at the start
of 2012, his wife would have been able to max out allowable
contributions to her own deferred compensation plan from 2012
through 2016. The parties dispute whether this latter action
would have resulted in at least a $250, 000 gain for the
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (“By its very terms, [the summary
judgment] standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”).
Consistent with the parties having cross moved for summary
judgment, the court has identified no genuine material
factual dispute, and will, therefore, proceed to rule on the
legal issues before it. See Id. at 249-50.
Takings Clause of the Fifth Amendment prohibits
“private property [from] be[ing] taken for public use,
without just compensation, ” U.S. Const. Amend. v, and
applies equally to personal and real property. Horne v.
Dept. of Agric., 135 S.Ct. 2419, 2425
(2015). To establish a takings claim, therefore, a
plaintiff “must show that the government, by some
specific action, took a private property interest for a
public use without just compensation.” Adams v.
United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004)
(citing Hodel v. Va. Surface Mining & Reclamation
Ass'n, 452 U.S. 264, 294 (1981)). Importantly, not
every state-caused deprivation constitutes an
unconstitutional taking. Compare U.S. Const. Amend.
v (“nor shall private property be taken for public use,
without just compensation”) with Id.
(“nor be deprived of life, liberty, or property,
without due process of law”); see Porter v.
DiBlasio, 93 F.3d 301 (7th Cir. 1996) (no takings claim
because seizure of neglected horses fell within the police
power of the state, which was a deprivation not warranting
compensation under the Takings Clause).
for purposes of summary judgment that plaintiff Cleven's
retirement account in the WRS constitutes a vested property
right, plaintiff's takings claim fails for a lack of
ripeness. Even if his claim were ripe, plaintiff will face
significant hurdles on any renewed takings claim, which are
also briefly alluded to here, should he wish to pursue such a
claim after all state proceedings conclude.
the Takings Clause proscribes takings without just
compensation, a claim will not typically accrue until
the government refuses to pay. Kolton v. Frerichs,
869 F.3d 532, 533, 535 (7th Cir. 2017) (citing Williamson
Cty. Reg'l Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 186 (1985)). A plaintiff must generally seek out
compensation under state law before bringing a federal
takings suit, but as clarified by the Supreme Court
“Williamson County ‘is not, strictly
speaking, jurisdictional.'” Id. at 533-34
(quoting Horne v. Dept. of Agric., 133 S.Ct. 2053,
2062 (2013)). As such, it “does not diminish federal
courts' adjudicatory competence.” Id. ...