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Jambois v. Ozanne

United States District Court, W.D. Wisconsin

January 24, 2018

BOB JAMBOIS, Plaintiff,
v.
ISMAEL OZANNE, COREY STEPHAN, MATT MOESER and MARY ELLEN KARST, each in his or her own individual capacity, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY, DISTRICT JUDGE.

         In this lawsuit, plaintiff Bob Jambois alleges that defendants Dane County District Attorney Ismael Ozanne and several of his assistants violated Jambois' rights to expressive conduct under the United States Constitution by driving him from his position as an assistant district attorney in retaliation for his unsuccessful electoral challenge to Ozanne. Before the court are the defendants' motions to dismiss count V of plaintiff's first amended complaint (dkt. #21) and for judgment on all counts on the basis of “absolute prosecutorial immunity” (dkt. #28). Despite the close interrelation of plaintiff's First Amendment claims and his cause of action for constructive discharge, this court finds that the standard for dismissal is not satisfied and will deny defendants' motion to dismiss count V. Defendants' motion for judgment on the pleadings will also be denied as Jambois has alleged facts sufficient to overcome the defense of absolute immunity at the pleading stage of this litigation.

         ALLEGATIONS OF FACTS [1]

         A. The Parties

         Plaintiff Bob Jambois is a Wisconsin attorney. From 1989 to 2005, Jambois served as Kenosha County District Attorney. Jambois secured a conviction in the murder trial of Mark Jensen as a “special prosecutor” in Kenosha County Circuit Court. At the time of the events at issue in this case, Jensen was awaiting retrial in Kenosha County. Jambois joined the Dane County District Attorney's office in May 2015 as an assistant district attorney. Jambois alleges that he brought significant trial experience to the office, and he successfully prosecuted a number of cases during his tenure with that office.

         Defendant Ismael Ozanne has been the Dane County District Attorney at all times relevant to this litigation, and was previously an assistant in that office as well. Defendants Corey Stephan, Matt Moeser and Mary Ellen Karst were also each assistant district attorneys in that office during the relevant period.

         B. 2016 Dane County District Attorney Election

         In May of 2016, Jambois secured enough signatures to challenge Ozanne in the Democratic primary election for the position of Dane County District Attorney. Among other things, Jambois alleges that his candidacy was motivated by increasing discontent with Ozanne's leadership, and he made critical statements about Ozanne and the District Attorney's Office during the campaign. On August 9, 2016, Ozanne nevertheless defeated Jambois in the primary election, and he was eventually reelected.

         C. Alleged Retaliatory Conduct and Constructive Discharge

         Shortly after his victory, District Attorney Ozanne allegedly directed the other defendants to begin a campaign of retaliation and harassment against then Assistant District Attorney Jambois. On August 6, 2016, defendant Stephan met with Jambois, ostensibly to discuss Jambois' trial schedule, but quickly volunteered that he would accept Jambois' resignation. While Jambois was surprised by this, he did not resign.

         After the meeting, Stephan handed Jambois a “notice of investigatory review, ” written on Ozanne's letterhead and signed by Stephan. The notice identified three areas of concern: (1) Jambois' procedure for drafting complaint, (2) Jambois' witness scheduling practices, and (3) Jambois' continued involvement with the Kenosha County District Attorney's office in the retrial of Mark Jensen. After receipt of this notice, Jambois met with Stephan and Moeser for an investigatory interview on August 29, 2016. According to the complaint in this lawsuit, Jambois demonstrated during this interview that each of these three concerns lacked foundation.

         On September 8, 2016, Jambois received a “Letter of Expectation, ” which was also written on Ozanne's letterhead and outlined nearly identical concerns as the notice of investigatory review. The letter also allegedly imposed constraints upon Jambois required of no one else in the District Attorney's Office. Specifically, the letter barred Jambois from using paralegals to draft certain documents and imposed special requirements on the scheduling of witnesses. Jambois maintains that none of these procedures outlined were required of other assistant district attorneys. The Letter of Expectation further required Jambois to withdraw from the Mark Jensen murder trial, which he allegedly did.

         Jambois next alleges the “management team” of the Dane County District Attorney's Office began efforts to guarantee Jambois would be unable to comply with the procedures required by the Letter of Expectation. (Am. Compl. (dkt. #19) ¶ 41.) For example, Jambois alleges that defendant Karst, acting for Ozanne, ensured that a young assistant district attorney's twenty most difficult cases were reassigned to Jambois. After the transfer of the cases, Jambois was required to act as counsel in thirty-one jury trials in a span of less than two months. To compound matters, the scheduled trials were complicated and time-intensive.

         This caseload, Jambois alleges, was “without parallel” during Ozanne's management of the Dane County District Attorney's Office. (Am. Compl. (dkt. #19) ¶ 49.) Given the combination of the caseload and procedures imposed on him alone, Jambois alleges his work suffered, and he was forced to retire ...


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