Cleven, Gary v. Soglin, Paul et al

Filing 64

Transmission of Notice of Appeal, Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 62 Notice of Appeal, (Attachments: # 1 Opinion and Order, # 2 Judgment, # 3 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GARY CLEVEN,

v.

Plaintiff,

OPINION AND ORDER

PAUL SOGLIN, CITY OF MADISON,
and DAVID SCHMIEDICKE,

16-cv-421-wmc

Defendants.
Plaintiff 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. 1 (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.

BACKGROUND 2
Plaintiff 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

Plaintiff did not oppose dismissing his claims against the individual defendants. (See Pl.’s Opp’n
(dkt. #44) 18). Additionally, plaintiff did not oppose defendants’ arguments for summary
judgment on his substantive due process claim. (See id. at 14; Defs.’ Reply (dkt. #49) 2.) As such,
the court will grant summary judgment to defendants on these claims.
1

The following facts are material and undisputed for purposes of summary judgment except as
noted below.
2

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.
During 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).
Following 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, 3 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.
Eventually, 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

Defendants do not dispute these facts, but assert that the legal impact of the WERC decisions are
limited to the stagehands’ rights to collective bargaining only.

3

2

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.
Cleven 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.
The 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. 4 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.
Cleven 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

From review of the docket in that case, the “additional text” for the decision and order reads “on
respondent’s motion to dismiss; motion to enlarge time to serve writ is denied, and respondent’s
motion to dismiss is granted.” (Furrillo Docket (dkt. #12-2) 2.) To avoid confusion, as before,
citations to “dkt.” are citations to documents appearing on this court’s docket.
4

3

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.)
In 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. #54-14) 4-5.)
Cleven 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 Clevens.

4

OPINION
Summary 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.

I. Takings Claim
The 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). 5 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

The Takings Clause has been incorporated against the states by the Fourteenth Amendment.
CEnergy-Glenmore Wind Farm #1 v. Town of Glenmore, 769 F.3d 485, 487 (7th Cir. 2014).
5

5

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).
Assuming 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.

A. Ripeness
Because 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.

However, where it is not predetermined what a state court would do if confronted with the
plaintiff’s claim, the plaintiff should proceed first in the state court. Id. at 535.
Here, plaintiff is proceeding in state court presently in Gersbach v. City of Madison, albeit
as a third-party defendant, where the parties dispute liability for the employee contribution for
Madison stagehands. On May 11, 2016, four stagehands sued the City and Schmiedicke
seeking a writ of mandamus requiring the defendants “to immediately report them to the WRS

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as a participating employee” as of specified dates. 6 (Gersbach Docket (dkt. #54-14) 10;
Gersbach Pls.’ June Mot. Summ. J. (dkt. #54-2) 1.) The City asserted a counterclaim against
the plaintiffs on May 31, 2016, seeking a judgment “for the amount of the employee
contribution together with all applicable interest (including BAC).” (Gersbach Docket (dkt.
#54-14) 9; Gersbach Defs.’ July Opp’n (dkt. #54-3) 2.) On September 30, 2016, the court
added Cleven as a third-party defendant. 7 (Gersbach Docket (dkt. #54-14) 7.)
Because Cleven was added after the parties had filed their original motions for summary
judgment, new motions were filed. (See generally id. at 8-9.) The pending summary judgment
motions center on the responsibility for paying the employee contributions to the WRS, with
both sides pointing fingers at each other. Specifically, the City argues that the stagehands must
pay the employee contribution and interest, while the stagehands argue that they should not
have to pay and that the City cannot collect. (See generally, City’s Apr. Summ. J. Br. (dkt. #544) 17-35; Pls.’ & Cleven’s Resp. (dkt. #54-10) 15-26; City’s Reply (dkt. #54-11) 10-20; Pls.’
Apr. Mot. Summ. J. & Supp. Mem. (dkt. #54-6) 21-23, 29-40; City’s Resp. (dkt. #54-9) 4961; Pls.’ & Cleven’s Reply (dkt. #54-12) 1-10.)
In a footnote, the City notes that “[t]he takings case involves different legal claims and
defendants and the City’s lawyer in this case is not the lawyer making arguments in the takings
case.” (City’s Reply (dkt. #54-11) 11 n.2.) While technically true, the resolution of the state

Technically, three stagehands and the estate of a former stagehand brought suit. (See Gersbach
Docket (dkt. #54-14) 1.)
7
In the state court filings, the parties refer to themselves and each other inconsistently. For
instance, the City and Schmiedicke are referred to as both “defendants” and “counter-plaintiffs,”
while the stagehands are referred to as “plaintiffs,” “counter-defendants,” and “defendants.” For
the sake of simplicity, the City and Schmiedicke will be referred to as only the “defendants,” the
plaintiffs will be referred to only as the “plaintiffs,” and Cleven as either “Cleven” or “third-party
defendant,” even though as a practical matter, the only remaining claim is the City’s counterclaim
and third-party claim against the stagehands and Cleven, as set forth above.
6

7

court proceedings would impact the claims here. Specifically, the state court can decide who
is liable for the employee contributions and interest. Likewise, it may remedy his takings claim.
It may also moot his requests to be held harmless regarding the interest and for an injunction
preventing the City from trying to collect from him. Moreover, it does not appear that Cleven
will have to wait interminably, since the Dane County Circuit Court announced last week that
it would issue an “[o]ral ruling on October 26, 2017 at 01:30 pm.” Gersbach v. City of Madison,
No. 2016CV1269, available at https://wcca.wicourts.gov/caseDetails (last visited October 12,
2017).
There is no indication how the state court will rule and Cleven has likewise pointed to
nothing suggesting that relief through the state court process would be unavailable to him.
Even if otherwise ripe, therefore, the court is inclined to defer to that court as a matter of
comity before considering plaintiff’s takings claim here.

B. Apparent Flaws in Plaintiff’s Takings Claim
Even if the court could permissibly take up plaintiff’s takings claim without further state
court action, it at least bears pointing out that plaintiff still has a number of formidable hurdles
to overcome, particularly should he ultimately seek relief in federal court.
Takings claims “will not lie where the government, as a party to a contract, acts in its
proprietary, as opposed to its sovereign capacity.” Comsys Inc. v. City of Kenosha, No. 16-cv655-JPS, 2017 U.S. Dist. LEXIS 70518, at *48-*49 (E.D. Wis. May 9, 2017). In particular,
where the government acts within its rights under a contract -- and does not rely on
administrative or legislative action to repudiate a contract obligation or to impair the
counterparty’s ability to enforce its rights, the government is acting within its propriety

8

capacity. Cannon v. Forest Preserve District of Cook County, Ill., No. 14 C 5611, 2016 WL
2620515, at *5 (N.D. Ill. May 9, 2016) (rejecting takings claim where state actor “was acting
as a private party and not in its sovereign capacity” where it had acquired property through
mortgage purchase and foreclosure), appeal docketed and argued, Case No. 16-3131 (7th Cir.);
Janicki Logging Co. v. United States, 36 Fed. Cl. 338, 346 (Fed. Cl. 1996) (“[R]ather than acting
as a sovereign and taking plaintiff’s property for public use, the Forest Service acted in a
proprietary capacity as a party to a contract and purported to exercise its rights for which it
bargained in the contract.”), aff’d 124 F.3d 226 (Fed. Cir. 1997) (unpublished table decision).
Additionally, an alleged delay in the receipt of benefits does not give rise to a takings
claim. See Clifton v. Schafer, 969 F.2d 278, 283 (7th Cir. 1992) (finding no takings claim where
plaintiff’s receipt of benefits was temporarily delayed and the state provided an adequate postdeprivation remedy); Schroeder v. City of Chic., 927 F.2d 957, 959 (7th Cir. 1991) (finding no
takings claim where approval for benefits was delayed but plaintiff received full benefit
thereafter). Similarly, a plaintiff cannot seek just compensation for loss of an opportunity. See
PVM Redwood Co. v. United States, 686 F.2d 1327 (9th Cir. 1982) (frustration of effort to
exploit business opportunity is not compensable under the Fifth Amendment); see also
Guggenheim v. City of Goleta, 638 F.3d 1111, 1121 (9th Cir. 2010) (“The idea, after all, of the
constitutional protection we enjoy in the security of our property against confiscation is to
protect the property we have, not the property we dream of getting.”).
The Takings Clause also requires that the government pay “just compensation” for
taking property “for public use.” U.S. Const. Amend. v. In a traditional takings case, the court
relies on the “rational relationship” test to ensure that “a state’s exercise of eminent domain
power is ‘rationally related to a conceivable public purpose.’” Daniels v. Area Plan Comm’n, 306

9

F.3d 445, 460 (7th Cir. 2002) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984)).
The Supreme Court has held that “the ‘public use’ requirement is thus coterminous with the
scope of a sovereign’s police powers.” Id. (quoting Midkiff, 467 U.S. at 241). “Regulations
enacted pursuant to the police power must be substantially related to the advancement of the
public health, safety, morals, or general welfare.” Id. at 464 (citing Vill. of Euclid v. Ambler Realty
Co., 272 U.S. 365, 395 (1926)). Moreover, courts narrowly review legislative determinations
of public use, only rejecting them if “‘palpably without reasonable foundation.’” Id. at 461
(quoting Midkiff, 467 U.S. at 241). The Seventh Circuit declined to provide such deference to
non-legislative decisions. Id. Implicit in this analysis is the requirement of intent -- the state
must tie the alleged taking to the accomplishment of some public purpose. See Sun Oil Co. v.
United States, 572 F.2d 786, 818 (Cl. Ct. 1978).

C. Disturbing the Dane County Circuit Court
Finally, assuming that plaintiff’s takings claim were ripe, he would only be “entitled to
be put in as good a position pecuniarily as if his property had not been taken” -- to “be made
whole” -- but would “not be entitled to more.” Olson v. United States, 292 U.S. 246, 255 (1934).
The typical compensation for a government taking is monetary; equitable relief is only available
when either the government took property for private use or when it is possible to mount a
facial challenge to legislative action permitting the taking. Sorrentino v. Godinez, 777 F.3d 410,
414 (7th Cir. 2015) (citing Peters v. Vill. of Clifton, 498 F.3d 727, 732 (7th Cir. 2007))
(affirming dismissal of prisoners’ takings claims). While plaintiff is seeking some monetary
compensation (see Pl.’s Opening Br. (dkt. #25) 22-23), he is also seeking equitable relief, the
requests for which invite this court to review the Dane County Circuit Court’s actions in Cleven

10

v. City of Madison, No. 2015-CV-001520 or to preempt that court’s action in Gersbach v. City
of Madison, No. 2016-CV-1269. In either case, doing so would be inappropriate. See Tyrer v.
City of S. Beloit, 456 F.3d 744 (7th Cir. 2006) (affirming district court’s abstention under
Colorado River deference); SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir. 2010) (affirming
district court’s dismissal on the grounds of “equity, comity, and federalism” that underlie
Younger abstention).
Plaintiff asks the court to “find that the City is responsible for paying th[e] costs [related
to Cleven’s mandamus action].” (Pl.’s Opening Br. (dkt. #25) 23.) However, the issue of costs
and fees was already addressed by the Dane County Circuit Court in that same action. (See
Cleven Docket (dkt. #54-13) 3 (“The court orders that the attorney fees are awarded in the
stat[utory] amount of $500 and costs of $251.90 are awarded as well. . . . The motion for
atty’s fees under Wis Stat[.]802.05 is denied.”).) For this court to grant such relief would in
effect be to review and (possibly) revise that court’s conclusion.

The only federal court

permitted to review state court judgments is the Supreme Court. See Lennon v. City of Carmel,
Ind., 865 F.3d 503, 506 (7th Cir. 2017) (“One situation raising a red flag occurs when a section
1983 complainant appears to be seeking review of a state-court judgment. That is a power that
has not, in general, been conferred on the lower federal courts; only the Supreme Court has it,
and its review is limited to questions of federal law.”).
Plaintiff also encourages this court to “to enter an order requiring the City to pay the
interest and enjoin it from taking any further action to collect the interest from Cleven.” (Pl.’s
Opening Br. (dkt. #25) 22.) However, doing so would also inappropriately preempt the
pending state court action in Gersbach, where the entire dispute is about who is responsible for
paying the employee contribution and accumulated interest, as well as the amount due. If this

11

court were to determine that the City had to pay the interest, or even just required the City to
not attempt to collect from plaintiff, this would similarly pluck the issue out of the capable
hands of the Dane County Circuit Court in the first instance. The analysis is the same with
regards to: his request for an order requiring the City to compensate plaintiff “for the fees and
costs he has incurred defending the actions commenced by the City to collect the interest”;
and his request that if he is ordered to pay the employee contribution he should only have to
pay that amount lessened by the amount of taxes he paid on his income. (See id. at 22, 3132.) For all these reasons, the court declines plaintiff’s invitation to review or mold the Dane
County Circuit Court’s actions.

II. Procedural Due Process Claim
Unlike plaintiff’s takings claim, his procedural due process claim is ripe. In addressing
a procedural due process claim, a court must engage in a two-step analysis: (1) determine if the
plaintiff was deprived of a protected interest; and if so, (2) determine the process due. Doherty
v. City of Chic., 75 F.3d 318, 322 (7th Cir. 1996); Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.
1996). Likewise, it is not enough “to have and lose an entitlement” -- that “establishes only
that a deprivation of property has taken place.” Ellis v. Sheahan, 412 F.3d 754, 756 (7th Cir.
2005).
Protected interests can include vested property rights. Porter, 93 F.3d at 305. Property
rights are not defined by the Constitution, rather they are defined by state or federal law. See
Hussey v. Milwaukee County, 740 F.3d 1139, 1142-43 (7th Cir. 2014). Notably, “[v]iewed
functionally, property is what is securely and durably yours under . . . law, as distinct from

12

what you hold subject to so many conditions as to make your interest meager, transitory, or
uncertain.” Id. at 1142 (quoting Reed v. Vill. of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983)).
While the touchstone of due process is “the opportunity to be heard at a meaningful
time and in a meaningful manner,” due process is flexible depending on the circumstances.
Doherty, 75 F.3d at 323 (internal citations omitted). Due process does not always require a
pre-deprivation hearing, such as where “as a practical matter, [post-deprivation remedies] are
the only remedies that the state can be expected to provide.” Id. (internal citations omitted).
For example, “‘[a]n unauthorized intentional deprivation of property by a state employee does
not constitute a violation of the Due Process Clause if a meaningful postdeprivation remedy
for the loss is available.’” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)). This
requires a plaintiff to either use the state remedies or show that the state remedies are
inadequate. Johnson v. Thompson-Smith, 203 F. Supp. 3d 895, 306 (N.D. Ill. 2016) appeal
docketed, case Nos. 16-2495, 16-3255, 16-3559, 16-3876 (7th Cir.); Doherty, 75 F.3d at 323
(citations omitted); see also Estate of Himelstein v. City of Fort Wayne, 898 F.2d 573, 577 (7th
Cir. 1990) (dismissing due process claim because plaintiffs failed to pursue state compensation
procedures).
Assuming that plaintiff had a protected interest in his participation in the WRS, his
procedural due process rights were not violated. While plaintiff asserts that he was entitled to
a pre-deprivation hearing (Pl.’s Opening Br. (dkt. #25) 23-26), that simply is not the case
because he has access to adequate post-deprivation procedures. See Ellis, 412 F.3d at 758.
Specifically, plaintiff received -- and is receiving -- adequate process in the state court. See id.
at 756 (“[Plaintiff] had and indeed still has adequate procedural routes by which to obtain
such a hearing.”); Schroeder v. City of Chic., 927 F.2d 957, 960-61 (7th Cir. 1991) (no procedural

13

due process violation because plaintiff had a right to a hearing and to obtain a mandamus if
the hearing was delayed; noting that plaintiff could have sought hearing sooner). Plaintiff sued
the City and Defendant Schmiedicke in June 2015, resulting in an order requiring the City and
Defendant Schmiedicke “immediately report” Cleven’s hours and wages to the WRS. (Cleven
Docket (dkt. #54-13) 1, 7; Defs.’ Resp. to Pl.’s Proposed Findings of Fact (dkt. #43) ¶ 32.)
In that action, defendants asserted a counterclaim against plaintiff, which was then dismissed
without prejudice. (See Cleven Docket (dkt. #54-13) 9, 5). The City brought its claim against
plaintiff in Gersbach v. City of Madison. (See Gersbach Docket (dkt. #54-14) 7.) As explained
above, the Gersbach plaintiffs, defendants, and third-party defendant (Cleven) dispute liability
for the employee contributions to the WRS and the associated interest and there currently are
cross motions for summary judgment pending in the Dane County Circuit Court on that very
issue. There is no reason to believe that the state court will not address who is responsible for
the employee contribution and interest, thus the state process adequately protects Cleven’s due
process rights.

III. Plaintiff’s Claim Raises Comity Concerns Militating towards Abstention
Even if plaintiff’s remaining takings claim were ripe, there is an independent basis for
the court to dismiss, or at least to stay, this action. While abstention is the exception, not the
rule, under extraordinary circumstances, a district court may decline or postpone its exercise of
jurisdiction. Tyrer v. City of S. Beloit, 456 F.3d 744, 751 (7th Cir. 2006) (quoting Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)). A court deciding whether
to stay under the Colorado River doctrine must first determine if the federal and state
proceedings are parallel. Id. In examining the state and federal proceedings, a court should

14

look at “whether the suits involve the same parties, arise out of the same facts and raise similar
factual and legal issues,” id. at 752 (citing Clark v. Lacy, 376 F.3d 682, 685 (7th Cir. 2004)),
so that “a ‘suit is parallel when substantially the same parties are contemporaneously litigating
substantially the same issues,’” id. (quoting Interstate Material Corp. v. City of Chic., 847 F.2d
1285, 1288 (7th Cir. 1988)). “‘[F]ormal symmetry between the two actions’” is not required.
Id. (quoting Clark, 376 F.3d at 686).
If the suits are parallel, then the court must consider the following factors to determine
if “exceptional circumstances” are present:
1) whether the state has assumed jurisdiction over property;
2) the inconvenience of the federal forum; 3) the desirability of
avoiding piecemeal litigation; 4) the order in which jurisdiction
was obtained by the concurrent forums; 5) the source of governing
law, state or federal; 6) the adequacy of state-court action to
protect the federal plaintiff’s rights; 7) the relative progress of
state and federal proceedings; 8) the presence or absence of
concurrent jurisdiction; 9) the availability of removal; and 10) the
vexatious or contrived nature of the federal claim.
Id. at 751, 754.

None of these factors is determinative, although there is a “‘general

presumption against abstention,’” id. (quoting AXA Corporate Solutions v. Underwriters Reins.
Corp., 347 F.3d 272, 278 (7th Cir. 2003)), and “the existence of federal question typically
weighs heavily against abstention,” Harper v. Vill. of Sauget, CIVIL NO. 05-397-WDS, 2007
U.S. Dist. LEXIS 20482, at *8 (S.D. Ill. Mar. 21, 2007). Even so, where several factors strongly
support abstention, it is within the district court’s discretion to do so. See Tyrer, 456 F.3d at
755.
As previously discussed, the ongoing proceedings in Gersbach are, in fact, parallel with
our proceedings here. The dispute in Gersbach, centering on the disputed responsibility for the
employee contribution and interest, arises from the same facts, raises similar factual and legal

15

issues, and involves the same parties (plaintiff, the City and one of its officers). While plaintiff
brings federal constitutional claims here, those claims partially derive from and encompass
arguments set forth in Gersbach.
Several other factors weigh in favor of abstention as well. For instance, the danger of
piecemeal litigation hangs heavily over this case. See id. at 756 (“[T]he danger of piecemeal
litigation does not turn on formal identity of issues but on concerns about the efficient use of
judicial resources and the public’s perception of the legitimacy of judicial authority. . . .
[A]llowing the two suits to proceed concurrently would waste the parties’ resources, risk
duplicative rulings and reward a strategic gamesmanship that has no place in a dual system of
federal and state courts.”).

Both courts have been invited to rule on who must pay the

employee contribution and interest into the WRS; contradictory rulings would undermine our
judicial system and cause confusion. Similarly, the determination of financial responsibility
will turn on state law, with which the state court has more experience and familiarity.
Additionally, while plaintiff was added as a third-party defendant to Gersbach after this suit was
filed in the district court, the state court proceedings began before this suit was filed. (Compare
Cleven Docket (dkt. #54-13) 1 (filed June 9, 2015) and Gersbach Docket (dkt. #54-14) at 1
(filed May 11, 2016) with Complaint (dkt. #1) (filed June 16, 2016).) Finally, even though
plaintiff does not allege his constitutional claims in the state court, the state-court action is
likely to inform and impact his rights.
On the other hand, there is no argument that the federal forum is inconvenient. The
federal and state courts are separated by a few blocks in the City of Madison. The proceedings
are procedurally similarly situated, with both courts considering motions for summary
judgment.

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Even if the requirement of exceptional circumstances under Colorado River were not
present, abstention would be appropriate here in light of Younger v. Harris, 401 U.S. 37 (1971),
which is based on “principles of equity, comity, and federalism” and has been applied in civil
suits. SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 676, 678 (7th Cir. 2010) (requiring district
court to abstain, leaving dispute to be resolved by state courts). “The Younger doctrine requires
federal courts to abstain from taking jurisdiction over federal constitutional claims that seek to
interfere with or interrupt ongoing state proceedings.” Id. at 677 (citing FreeEats.com, Inc. v.
Indiana, 502 F.3d 590, 595 (7th Cir. 2007)). As to civil cases, Younger “extends only to a
federal suit filed by a party that is the target of state court or administrative proceedings in
which the state’s interests are so important that exercise of federal judicial power over those
proceedings would disregard the comity between the states and federal government.” Id. at
679 (internal citations omitted). Thus, a stay may be appropriate when a state judicial or
administrative action is pending against the federal plaintiff where the state trying to “enforce
the contested law in that proceeding.” Id. (quoting Forty One News, Inc. v. County of Lake, 491
F.3d 662, 665 (7th Cir. 2007)).
Since plaintiff has already been added as a third-party defendant in Gersbach, and the
City is seeking to compel payment from him, a state judicial proceeding is already pending.
The State of Wisconsin has an important state interest in the functioning, health and solvency
of the WRS. Moreover, determining responsibility for the disputed employee contribution and
interest will turn on state law, making federal court intrusion inappropriate in light of the
important state interest at issue and comity. While it does not appear that plaintiff asserted
his federal constitutional claims before the Dane County Circuit Court in Gersbach, this court
should assume that the state court will provide an adequate remedy in absence of

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“‘unambiguous authority to the contrary.’” Id. at 680 (quoting Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 15 (1987)). Thus, the state court will provide plaintiff an adequate forum to raise his
federal claims.
While the “Supreme Court has treated the distinction between stay and dismissal as
one without a difference,” Triumvera Homeowners’ Ass’n v. Continental Cablevision, No. 93 C
3117, 1994 U.S. Dist. LEXIS 488, at *26 (N.D. Ill. Jan. 21, 1994) (citing Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28 (1983)), the Seventh Circuit
differentiates between abstention methods: dismissal is appropriate under Younger, while
issuing a stay is appropriate under Colorado River, id. at *25 (internal citations omitted). As
such, even if plaintiff had a ripe takings claim, this court would stay proceedings until the statecourt proceedings conclude.

ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment (dkt. #20) is GRANTED IN PART as to
plaintiff’s claims against the individual defendants and as to plaintiff’s due process
claims.
2. Plaintiff’s motion for partial summary judgment (dkt. #24) is DENIED.
3. The remaining claim is DISMISSED on ripeness grounds.
4. The court clerk is DIRECTED to close this case.
Entered this 13th day of October, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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