Federal appeals court reinstates tow-truck operators’ retaliation lawsuit

Friday, February 25, 2000

The First Amendment lawsuit filed by a Michigan tow-truck operator who was removed from the Monroe County stand-by tow call list in retaliation for criticizing the sheriff has been reinstated by a federal appeals court.

James Sottile, owner of a wrecker service in Monroe County, sued the county, former Sheriff Carl Van Wert and other county officials in state court in 1996, alleging a violation of his civil rights.

Sottile also alleged that Van Wert had removed him from the county’s stand-by tow call list and refused to place him on the permanent tow call list because he criticized Van Wert’s handling of the list and because he had not contributed to Van Wert’s political campaign.

Sottile was joined in his lawsuit by Larry Lucas, operater of another wrecker service, who claimed that Van Wert had also removed him from the permanent tow call list because he had publicly criticized Van Wert.

Placement on the list is economically valuable to wrecker-service operators, the plaintiffs said. The list exists to assist law enforcement personnel in moving stranded vehicles countywide. When an officer needs a tow truck, he calls a dispatcher who then contacts a wrecker service that operates in the designated area.

In 1998, U.S. District Judge Paul D. Borman granted the defendants’ motion for summary judgment as to Sottile’s retaliation claim. Borman determined that the First Amendment did not protect Sottile, because he was neither a public employee nor an independent contractor nor a regular provider of services to the county.

Because Lucas had been on the permanent tow call list for 30 years, Borman refused to grant summary judgment on his retaliation claim. But Borman did grant the defendants’ motion for summary judgment as to both plaintiffs’ political patronage claims.

While Lucas settled his case in the fall of 1998, Sottile appealed his to the 6th U.S. Circuit Court of Appeals.

In Lucas v. Monroe County, the 6th Circuit rejected the notion that the First Amendment protects only government employees, independent contractors or other regular providers of service from retaliation for First Amendment protected-conduct. The First Amendment protects all people from retaliation by the government for First Amendment-protected activity, the court wrote in its Feb. 18 opinion.

The 6th Circuit cited a similar 1995 decision by the 5th Circuit in Blackburn v. City of Marshall. In Blackburn, the 5th Circuit wrote: “Every citizen enjoys the First Amendment’s protections against governmental interference with free speech, but the First Amendment rights of public employees are restricted by the nature of the employer-employee relationship.”

The 6th Circuit noted that a plaintiff in a First Amendment retaliation case must prove three things:

  • He was engaged in constitutionally protected conduct.
  • He suffered an adverse action, which would likely chill an ordinary person from exercising their constitutional rights.

  • The adverse action was motivated in part in response to the exercise of constitutional rights.

  • The 6th Circuit determined that Sottile had met each of these elements. “The First Amendment protects Sottile’s right to voice concerns and criticize the Sheriff and his policies,” the court wrote.

    Sottile had to show that his speech was related to a matter of public concern. The court determined that Sottile had easily cleared this burden. “Indeed, Sottile made his comments at various public forums, and his comments were widely reported in prominently featured newspaper articles, clearly demonstrating that the community deemed the issues to be of public concern.”

    The appeals court also noted that Sottile had shown that the adverse action taken against him by the former sheriff would deter others from public criticism. “There is no doubt that such conduct would deter the average wrecker service operator from voicing similar criticisms of the Sheriff,” the court wrote.

    Finally, the 6th Circuit said that Sottile had “presented overwhelming evidence” that the actions of Van Wert were in direct response to the public criticism.

    The 6th Circuit also determined that the lower court erred in dismissing Sottile’s political patronage claim. The court said that the plaintiff had presented evidence showing that the former sheriff rewarded his political supporters and punished his detractors.

    “The Sheriff’s conduct in removing Plaintiffs and Lucas from the tow call list in response to their public criticisms of his office constitutes particularly striking evidence of political patronage in his administration of the list,” the court wrote.

    Matthew Krichbaum, attorney for Sottile, praised the appeals court’s decision. “The court’s decision reaffirms that the First Amendment protects all people from unlawful government retaliation. It reaffirms the basic rule that the government cannot retaliate against First Amendment-protected conduct as to any governmental benefit.”

    Krichbaum also said that the court’s opinion with respect to the political patronage claim was significant. “The court’s opinion stands for the principle that political patronage, even in the form of support for political allies and not others, violates the First Amendment.”

    Calls placed to the attorney representing the defendants were not returned. The case will now be sent back to the district court for further proceedings.