Hoeppner, Roger v. Town Of Stettin et al

Filing 28

ORDER granting IT IS ORDERED that the motion for summary judgment filed by defendants Matthew Wasmundt and Town of Stettin, dkt. # 9 , is GRANTED with respect to plaintiff Roger Hoeppner's claim that defendants ended "open discussion&quo t; at town meetings in violation of the First Amendment. The case will proceed to trial on plaintiff's claim that defendants violated his First Amendment rights by prohibiting him from speaking at the July 22, 2013 and August 12, 2013 town meetings. Signed by District Judge Barbara B. Crabb on 6/12/2015. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ROGER HOEPPNER,
OPINION AND ORDER
Plaintiff,
14-cv-162-bbc
v.
TOWN OF STETTIN and
MATTHEW WASMUNDT,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Roger Hoeppner is a resident of the town of Stettin who attended meetings
of the town board and often made comments during the “open discussion” segments of the
meetings. Defendant Matthew Wasmundt is the town board chairperson. In this lawsuit
brought under 42 U.S.C. § 1983, plaintiff contended that defendants’ actions silencing him
at two meetings and then ending the practice allowing public comments at town meetings
violated of the First Amendment.
In an order dated May 12, 2015, I denied defendants’ motion for summary judgment
with respect to plaintiff’s claim that defendants violated his rights by silencing him at two
meetings, but I stayed a decision with respect to the other claim to allow the parties to
submit supplemental briefing on legislative immunity and the extent to which Grossbaum
v. Indianapolis-Marion County Building Authority, 100 F.3d 1287 (7th Cir. 1996),
forecloses plaintiff’s second claim. Having reviewed the parties’ supplemental briefs, I
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conclude that Grossbaum requires dismissal of the claim, so it is not necessary to discuss
legislative immunity.
As discussed in the May 12 order, in Grossbaum, the Court of Appeals for the
Seventh Circuit rejected a First Amendment challenge to a decision to ban all private parties
from placing displays in the lobby of the city-county building, despite evidence that the
government had changed its policy in order to prevent the plaintiff from displaying a
menorah there, as he had done in previous years. In the May 12 order, I read Grossbaum
as standing for the proposition “that a showing of discriminatory intent is not enough on its
own [to prove a First Amendment violation]; the plaintiff must show a discriminatory effect
as well.”

Dkt. #25 at 8 (quoting Grossbaum, 100 F.3d at 1299 ("[I]t is th[e]

unconstitutional effect that ultimately matters.")).

My tentative conclusion was that

Grossbaum required dismissal of plaintiff’s claim that defendants violated the First
Amendment by removing “open discussion” segments from town meetings: “In this case, as
in Grossbaum, there is no discriminatory effect because defendants' decision to eliminate
public discussion applies equally to all members of the public.” Id. at 9. However, because
the parties had not addressed this issue in their briefs, I gave both sides an opportunity to
file a supplement.
In his supplemental brief, plaintiff argues that Grossbaum is not controlling for two
reasons, but neither of these is persuasive. First, he quotes a footnote in Grossbaum in
which the court stated that a regulation could be challenged as discriminatory if it is
“facial[ly] neutral[]” but not “general[ly] applicabl[e]. Grossbaum, 100 F.3d at 1298 n.10.

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As an example, the court cite a hypothetical “regulation that prohibited all private groups
from displaying nine-pronged candelabra.” Id. In that situation “[t]he lack of general
applicability is obvious . . . from the narrowness of the regulation's design and its hugely
disproportionate effect on Jewish speech.” Id.
Plaintiff says that defendants’ decision to end public comment at town meetings is
similar to the hypothetical example in Grossbaum because defendants’ decision had a
“hugely disproportionate effect” on the few individuals like him who spoke often during
public comment sessions. This argument cannot carry the day. Eliminating a forum will
always affect some people more than others. For example, the government’s decision in
Grossbaum to ban lobby displays in the city-county building had a disproportionate effect
on the few individuals who wanted to put up a display. That was not enough to prove a
constitutional violation in Grossbaum because the decision applied to everyone in the same
way, even if some people were more upset than others by the decision. It is the same in this
case.
The difference between this case and the hypothetical regulation discussed in
Grossbaum is that the hypothetical targeted a narrow type of speech (menorah displays) for
disfavored treatment. In this case, no members of the public are permitted to speak at town
meetings on any topic. In other words, all speech by the public is treated the same, so, under
the logic of Grossbaum, there is no discriminatory effect.
Plaintiff’s second argument is that Grossbaum “must be narrowly construed” because
Palmer v. Thompson, 403 U.S. 217 (1971), a case cited in Grossbaum, was undermined by

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later cases such as Hunter v. Underwood, 471 U.S. 222 (1985) and Washington v. Davis,
426 U.S. 229, 244 n.11 (1976). However, with the exception of the argument that I have
rejected above, plaintiff does not explain how Grossbaum could be “narrowly construed” to
preserve plaintiff’s claim without contradicting that case’s holding. In any event, the cases
plaintiff cites were decided before Grossbaum, so the court of appeals could have taken those
cases into consideration if it wished. To the extent plaintiff believes that Grossbaum is
inconsistent with any Supreme Court precedent, that is an issue he will have to take up with
the court of appeals.

ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants
Matthew Wasmundt and Town of Stettin, dkt. #9, is GRANTED with respect to plaintiff
Roger Hoeppner’s claim that defendants ended “open discussion” at town meetings in
violation of the First Amendment. The case will proceed to trial on plaintiff’s claim that
defendants violated his First Amendment rights by prohibiting him from speaking at the July
22, 2013 and August 12, 2013 town meetings.
Entered this 12th day of June, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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