Lucas v. Monroe County

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0063P (6th Cir.)

File Name: 00a0063p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



LARRY LUCAS, d/b/a LUCAS

Plaintiff, 

TOWING,





No. 98-1876



SOTTILE’S INC., d/b/a >

S.T.A.R. TOWING; JAMES 



Plaintiffs-Appellants, 

SOTTILE,







v.





VAN WERT, Sheriff; RONALD 

MONROE COUNTY; CARL

COLE, Undersheriff; DARWIN 





PAZ, Captain; TOM



HOFFMAN, Captain,

Defendants-Appellees. 1

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 96-72332—Paul D. Borman, District Judge.

Argued: September 22, 1999

Decided and Filed: February 18, 2000

1

2 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 27

Before: MERRITT and CLAY, Circuit Judges; ALDRICH, wrongful conduct take the form of inducing a third party not

District Judge.* to enter a contract with the plaintiff; indeed, the Restatement

Second of Torts § 766B expressly states that a defendant is

_________________ liable for intentional interference with prospective contractual

relations “whether the interference consists of (a) inducing or

COUNSEL otherwise causing a third person not to enter into or continue

the prospective relation, or (b) preventing the [plaintiff] from

ARGUED: Matthew E. Krichbaum, SOBLE & ROWE, Ann acquiring or continuing the prospective relation.”

Arbor, Michigan, for Appellants. Linda E. Taylor, RESTATEMENT SECOND OF TORTS § 766B. Plaintiffs have

JOHNSON, ROSATI, LABARGE, ASELTYNE & FIELD, presented evidence that the Sheriff’s wrongful conduct in

Farmington Hills, Michigan, for Appellees. ON BRIEF: excluding him from the regular tow rotation prevented him

Matthew E. Krichbaum, Richard A. Soble, SOBLE & ROWE, from entering into a business relationship with stranded

Ann Arbor, Michigan, for Appellants. Marcia L. Howe, motorists who request tow services via central dispatch.

JOHNSON, ROSATI, LABARGE, ASELTYNE & FIELD, Accordingly, we conclude that Plaintiffs have adduced

Farmington Hills, Michigan, for Appellees. sufficient evidence from which a rational trier of fact could

find that the individual Defendants are liable for tortious

_________________ interference with Plaintiffs’ economic relations.

OPINION For the reasons set forth above, we REVERSE the

_________________ judgment of the district court as to Plaintiffs’ claims of

CLAY, Circuit Judge. Plaintiffs-Appellants, James Sottile retaliation for public criticism, political patronage, and

and Sottile’s Inc., d/b/a S.T.A.R. Towing, appeal from the tortious interference with economic relations claims; we

order entered by the United States District Court for the AFFIRM the judgment of the district court as to Plaintiffs’

Eastern District of Michigan, granting summary judgment on due process claim.

behalf of Defendants-Appellees, Monroe County and related

parties, in this action alleging that Defendants violated

Plaintiffs’ rights under both the United States and Michigan

constitutions, and are liable for tortious interference with

Plaintiffs’ economic relations. For the reasons set forth

below, we REVERSE in part and AFFIRM in part the

judgment of the district court.

*

Honorable Ann Aldrich, United States District Judge for the

Northern District of Ohio, sitting by designation.

26 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 3

existence of a valid business relationship or expectancy; (ii) BACKGROUND

knowledge of the relationship or expectancy on the part of the

defendant; (iii) intentional interference causing or inducing Procedural History

a termination of the relationship or expectancy; and (iv)

resultant actual damage. See Wilkerson v. Carlo, 300 N.W.2d On March 19, 1996, James Sottile and Larry Lucas, two

658, 659 (Mich. 1980). The district court dismissed separate wrecker service operators in Monroe County,

Plaintiffs’ claim on grounds that Plaintiffs’ “business Michigan, filed suit in state court, in their own behalf and in

relationship or expectancy of a relationship with a third party the names of their separate wrecker service companies,

is too attenuated in this case.” against Defendants alleging violation of 42 U.S.C. § 1983 and

various state law claims. Plaintiffs and Lucas alleged

“The [business relationship or expectancy of a relationship] improper and retaliatory conduct arising out of the Monroe

must be a reasonable likelihood or a probability, not mere County Sheriff’s Department’s (“Sheriff’s Department”)

wishful thinking.” Trepel v. Pontiac Osteopathic Hosp., 354 administration of the County’s list of wrecker companies to

N.W.2d 341, 348 (Mich. Ct. App. 1984). To demonstrate be called for towing services. Specifically, the complaint

such a realistic expectation, Plaintiffs must prove an charged that Plaintiffs and Lucas were removed from this tow

anticipated business relationship with an identifiable class of call list in retaliation for making public criticisms of the

third parties. See Schipani v. Ford Motor Co., 302 N.W.2d Sheriff’s Department, in violation of their First Amendment

307, 314 (Mich. Ct. App. 1981). Plaintiffs have presented rights under the United States Constitution and Article I of the

evidence of a reasonable expectancy of an economic Michigan Constitution; that the Sheriff’s Department

relationship with stranded motorists who arranged for towing exercised political patronage in its administration of the tow

services via the call list maintained by the Sheriff’s call list, also in violation of the First Amendment and the

Department. Plaintiffs have presented evidence (i) that but Michigan Constitution; that Plaintiffs and Lucas were

for the Sheriff’s unlawful and improper conduct — removed from the tow call list without due process of law, in

specifically, his patronage practices — Plaintiffs would have violation of their constitutional due process rights guaranteed

been placed on the regular rotation upon satisfying the by the Fourteenth Amendment of the United States

requirements of the Sheriff’s Department; and (ii) that Constitution; and that the Sheriff’s Department’s conduct

placement on the list entitles a tow company to calls and constituted tortious interference with Plaintiffs’ and Lucas’

contracts within its geographic area that the company would economic relations. Defendants removed the action to federal

not otherwise receive. While the amount of towing business court on May 20, 1996. On February 27, 1998, following

Plaintiffs would have received if placed on the call list cannot discovery, Defendants moved for summary judgment.

be specifically determined, this issue goes only to damages.

On July 1, 1998, the district court entered an order granting

In dismissing Plaintiffs’ claim, the district court, quoting in part and denying in part Defendants’ motion for summary

from Baker Driveaway Co., Inc. v. Bankhead Enterprises, 478 judgment. Defendants’ motion for summary judgment was

F. Supp. 857, 860 (E.D. Mich. 1979), asserted that in the denied on Lucas’ retaliation claim, but granted on Plaintiffs’

typical tortious interference case, the defendant “induces a retaliation claim, on grounds that Plaintiffs were not regular

private third party not to enter into a contract with the plaintiff service providers to Monroe County (“County”); summary

in some improper fashion.” The court concluded that “[t]he

facts of this case are simply inapposite to such a claim.” (J.A.

at 44.) However, there is no requirement that the tortfeasor’s

4 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 25

judgment was also1 granted on all of Plaintiffs’ and Lucas’ that “several references to and procedures for removal or

remaining claims. This timely appeal followed. suspension from the list to compel compliance with the

regulations reflect the mutual nature of the relationship

Facts established by inclusion on the list.” Id. at 853. In this case,

there are no such established “procedures” for suspension or

The County Sheriff’s Department maintains a towing removal. The written policies of the Sheriff’s Department —

company rotation list. The call list is maintained to allocate however unfair they may be — explicitly provide that a

towing services to assist police officers in moving stranded wrecker company may be immediately removed from the list

vehicles throughout the County. When an officer needs upon making a complaint to an unauthorized person. As a

towing services, the police dispatcher calls a company listed result, these policies did not create a legitimate claim of

as approved to tow in the “service area” where the tow is entitlement to remaining on the tow call list even after making

needed. If the first towing company called is unavailable, the such complaints. Accordingly, Plaintiffs’ due process claim

dispatcher calls the next company listed for that area, and so was properly dismissed on grounds that they have not

on until the job is accepted. If towing services are again established the existence of a constitutionally protected

required, the dispatcher begins with the next company listed property interest.

for the area involved, in rotation.

IV. Tortious Interference with Economic Relations

A towing company may not be placed on the call list unless

the Sheriff’s Department authorizes the company’s eligibility. Plaintiffs allege that by excluding them from the regular

Eligibility is based on a number of factors: (i) where the tow rotation, the individual Defendants prevented them from

company is located; (ii) whether the location is an area entering into business with stranded motorists who obtain

saturated with other companies on the list; (iii) whether the towing service through the call list.8 The elements of a claim

company is properly insured; (iv) whether the company has for tortious interference with economic relations are: (i) the

certain kinds of towing vehicles; (v) whether the company

passes a safety and equipment inspection; and (vi) whether

the company maintains twenty-four hour service in the service 8

area. However, if a motorist whose vehicle requires towing Notably, the County is immune from tort liability here under

requests a particular towing company, the dispatcher contacts Michigan’s Governmental Tort Liability Act (“GTLA”), Michigan

Compiled Laws Annotated § 691.1407, which provides that “all

that company for the job regardless of whether the company government agencies shall be immune from tort liability in all cases

requested is on the Sheriff’s Department’s call list. There are wherein the government agency is engaged in the exercise or discharge of

no contracts, either written or oral, between the towing a governmental function.” Mich. COMP. LAWS ANN. § 691.1407(1)

(1987). However, because Plaintiffs allege an intentional tort for which

the individual Defendants would have been liable before July 7, 1986,

1 these Defendants are not immune from suit under the GTLA. See MICH.

Notably, the district court, quoting Pembaur v. City of Cincinnati, COMP. LAWS ANN. § 691.1407(1) (1987) (stating that “subsection (2)

475 U.S. 469, 480 (1986), held that the County may be held liable under [which covers immunity for individuals] shall not be construed as altering

§ 1983 for the Sheriff’s decisions regarding operation of the tow list, the law of intentional torts as it existed before July 7, 1986”). “Michigan

noting that municipal liability may be imposed where a “deliberate choice does not immunize its governmental employees, including police officers,

to follow a course of action is made from among various alternatives by from their intentional torts.” Koehler v. Smith, 1997 WL 595085 (6th Cir.

the official or officials responsible for establishing final policy with Sept. 25, 1997) (unpublished disposition); see also Sudul v. City of

respect to the subject matter in question.” (J.A. at 43.) The district court Hamtramck, 562 N.W.2d 478, 479 (Mich. Ct. App. 1997) (holding that

also held that the County may be held liable for any violations of the “an individual employee’s intentional torts are not shielded by our

Michigan Constitution. (J.A. at 43.) governmental immunity statute”).

24 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 5

III. Due Process companies and the Sheriff or the County regarding towing

services. Payment for towing services is made by the motorist

Plaintiffs allege that their removal from the stand-by tow directly to the towing company; the County is not responsible

call list without notice and an opportunity to be heard violated for payments to the towing company.

their due process rights. The district court dismissed

Plaintiffs’ claim on the ground that they lacked any protected In 1991, the Sheriff’s Department announced that towing

property interest in remaining on the stand-by list. We agree companies were required to bring grievances they had

with the district court. regarding the list directly to the Sheriff’s Department

personnel prior to airing such grievances publicly. Towing

“The Fourteenth Amendment’s procedural protection of companies who failed to comply with this requirement risked

property is a safeguard of the security of interest that a person removal from the call list. The Sheriff’s May 9, 1991, letter

has already acquired in specific benefits.” Board of Regents to all towing companies then on the list, stated in part:

of State Colleges v. Roth, 408 U.S. 564, 576 (1972). The

mere unilateral expectation of continuing to receive a benefit This is to remind you that, consistent with the present

is not enough to create a protected property interest; instead procedure, any complaints/questions you may have

a “legitimate claim of entitlement” must exist. Id. at 577. regarding tow calls are to be directed to Undersheriff

“[A] property interest exists and its boundaries are defined by Cole in writing. Do not address these issues with the

‘rules and understandings that stem from an independent dispatchers, deputies, or supervisors.

source such as state law -- rules or understandings that secure In the future, failure to abide by these procedures will

certain benefits and that support claims of entitlement to those necessitate the removal of your name from the call list at

benefits.’” Bailey v. Floyd County Bd. of Educ., 106 F.3d the time you contact an unauthorized person until the

135, 141 (6th Cir. 1997) (quoting Roth, 408 U.S. at 577). time of your complaint is received in writing and

throughly investigated.

In the instant case, however, Plaintiffs can point to no

ordinance, contract or other “rules of mutually explicit (J.A. at 114.)

understandings” that support their claim of entitlement to

remain on the stand-by list. See Perry v. Sinderman, 408 U.S. By the mid-1990’s, Sheriff Van Wert (“Sheriff”) was

593, 601 (1972). The only relevant policy on record, in place subjected to increasing public criticism regarding his

since 1991, expressly states that a wrecker service will be administration of the tow call list. Accusations were rampant

removed from the call list upon filing a complaint with an that the Sheriff’s Department gave preferential treatment to

unauthorized person. Plaintiffs’ reliance on Gregg v. Lawson, tow companies owned by “higher end” contributors to the

732 F. Supp. 849 (E.D. Tenn. 1989), is misplaced. In Gregg, Sheriff’s political campaigns. In fact, the Sheriff admitted at

the court held that the plaintiff had a “legitimate claim of his deposition that Dorothy Galina, owner of Monroe Towing,

entitlement” in remaining on the wrecker tow list, on grounds was a “higher end” campaign contributor. Plaintiffs adduced

evidence at their deposition indicating that Monroe Towing

received preferential treatment compared to other tow

companies on the call list: (i) Monroe Towing was the only

consider this question below because it dismissed Plaintiffs’ constitutional tow truck company in two areas, and received the greatest

claims on other grounds, and the parties’ briefing of this issue on appeal number of calls; (ii) Monroe Towing’s service area was

is sparse and deficient. This issue is best left for the district court to

address in the first instance, should Defendants choose to raise it on increased in size to the detriment of another tow truck

remand below. operator, Larry Lucas; and (iii) Monroe Towing received

6 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 23

increased territory when another tow company, McClain’s, because it had refused the new mayor’s request for a

went out of business. Plaintiffs also adduced evidence that campaign contribution and had instead supported his

another tow company, Owens Towing, received preferential opponent. O’Hare, 518 U.S. at 720. The Court stated:

treatment in exchange for political favors.

We cannot accept the proposition . . . that those who

Sottile, the sole owner of Sottile’s, Inc., d/b/a S.T.A.R. perform the government’s work outside the formal

Towing (“S.T.A.R.”), applied to be placed on the call list in employment relationship are subject to what we conclude

December 1993. Sottile stated that he had four tow trucks is the direct and specific abridgement of First

that could perform light and heavy duty towing. Plaintiffs’ Amendment rights alleged in this complaint. As

equipment was inspected, but deficiencies were found in respondents offer no justifications for their actions, save

Plaintiffs’ equipment. Plaintiffs immediately cured the for insisting on their right to condition a continuing

deficiencies to the County’s satisfaction; nonetheless, their relationship on political fealty, we hold that the

application was rejected, as Defendants claimed that the complaint states an actionable First Amendment claim.

County already had sufficient towing services available in

Plaintiffs’ geographic service area, Area 8. The Sheriff’s Id. at 720. The same holds true here. Plaintiffs have

February 24, 1994, letter to Plaintiffs stated: “[a]t the present presented evidence that both Plaintiffs and Lucas were

time their [sic] are no intentions to add to our towing services. removed from the tow call list because they voiced their

In April we will be reviewing the services and if we decide to opposition to the Sheriff and his policies in a public forum;

add you will be considered.” (J.A. at 254.) However, not only may this conduct itself constitute a violation of the

Plaintiffs noted that in January of 1994, Interstate Towing First Amendment, but it provides strong evidence that, as a

went out of business in Area 8, thereby leaving only Monroe general rule, a wrecker service’s political support for the

Towing to service that area.2 Sottile maintained that S.T.A.R. Sheriff (or lack thereof) factors heavily into the Sheriff’s

could have merely taken Interstate Towing’s place. administration of the tow call list. Indeed, by promptly

removing his most vociferous critics from the tow call list, the

On April 2, 1994, Plaintiffs again reapplied to be placed on Sheriff inevitably sent a clear message to the County’s other

the call list for Areas 4 and 8. After three weeks with no wrecker services about the importance of maintaining a

response, Plaintiffs contacted Captain Tom Hoffman of the positive relationship with the Sheriff’s Department.

Sheriff’s Department. Hoffman reportedly told Plaintiffs that Accordingly, we find that Plaintiffs have presented sufficient

the County had no intention of adding any additional towing evidence to create a genuine issue of material fact on their

services because it did not want to place a financial burden on political patronage7claim, and, therefore, summary judgment

other tow services and put a good towing company out of was inappropriate.

business. Hoffman then named three towing companies on

the call list that supposedly served the areas for which

Plaintiffs had applied. However, Sottile replied that two of 7

Defendants on appeal also briefly argue that they are entitled to

those companies were out of business and the third never qualified immunity on Plaintiffs’ First Amendment claims on the basis

served those areas. Notably, Hoffman did not name the only that, at the time in question, “there was no law establishing Plaintiffs’

rights to be added to the [tow call] list.” (D. Br. at 43-45.) Plaintiffs

respond that Defendants are not immune because the First Amendment

2 law on retaliation and political patronage was clearly established at the

Police records that track the tow companies used by the County time of Defendants’ misconduct, so that Defendants knew or should have

confirm that Monroe Towing did the vast majority of the towing in known that they were violating Plaintiffs’ rights. See, e.g., Chappel, 131

Area 8. F.3d at 580; Barrett, 130 F.3d at 262-64. The district court did not

22 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 7

from tow companies. Second, Sottile quoted Dorothy active towing company that was actually serving Area 8 at

Gallina, owner of Monroe Towing, as saying that she had to that time: Monroe Towing. Hoffman assured Plaintiffs he

“wine and dine [members of the Sheriff’s Department] and would look into the situation. Over the next several months,

buy them tickets to here and there to keep them happy.” (J.A. Sottile tried again to contact Hoffman. After his efforts were

at 196.) Third, Sottile quoted the owner of another towing unsuccessful, Sottile spoke to Undersheriff Ronald Cole, who

company as telling him that “[i]f you want to get on the list, repeated what Hoffman had said.

you have got to spread some money around with the sheriff’s

campaign.” (J.A. at 267.) Fourth, Sottile testified that On January 5, 1995, Sottile wrote a letter to a member of

officers in the Sheriff’s Department had “jokingly” told him the Monroe County Board of Commissioners (“Board”)

if he wanted to be added to the tow6 call list, he would have to setting forth his frustrations with the Sheriff and the tow list;

donate to the Sheriff’s campaign. this letter recounted in detail Sottile’s efforts to be placed on

the list and his futile communications with the Sheriff’s

The Sheriff’s conduct in removing Plaintiffs and Lucas Department. On January 30, 1995, Sottile’s attorney

from the tow call list in response to their public criticisms of requested that Plaintiffs be placed on the list.

his office constitutes particularly striking evidence of political

patronage in his administration of the list. This conduct is At this juncture, the facts central to Plaintiffs’ claims occur

akin to a government official firing a public employee who in the public eye and must be viewed from the perspective of

spoke out in opposition to the official or his policies - the public controversy. Allegations of impropriety reached their

classic political patronage First Amendment violation. See, peak in the winter and spring of 1995. These allegations were

e.g., Branti v. Finkel, 445 U.S. 507, 515 (1980) (stating that particularly salient because they came at a time when the

the First Amendment prohibits officials from terminating Board was contemplating the merger of central police

public employees on the basis of their political beliefs). In dispatch, which administered the call list, with the County’s

O’Hare Truck Service, the Court held that the plaintiff towing Emergency Management Division. The Sheriff opposed the

company had stated a claim of political patronage in violation merger on grounds that it would encroach the independence

of the First Amendment, where the plaintiff alleged that it had and authority of the Sheriff’s Department.

been removed from the defendant city’s towing rotation list

Allegations concerning the Sheriff’s administration of the

call list first became front page news in February of 1995

when Dale Zorn, a member of the Board, and County

6

The district court found that this evidence carried no weight since Administrator/Auditor Charles Londo were denied access to

Sottile himself characterized the officers as making their statements a meeting the Sheriff held with tow truck operators on the call

“jokingly” and said that he did not take it seriously at the time. However, list. Sottile was also excluded from this meeting. Zorn said

the weight to be attributed the officer’s statements is for the jury to that he had been invited to the meeting in his capacity as a

decide. As Plaintiffs point out, the mere fact that the statement was made

in a “joking” manner does not render it devoid of truth. A jury viewing commissioner to discuss the potential merger of central

this exchange in the light most favorable to Plaintiffs could reasonably dispatch and emergency services. After being refused

construe it as evidence in support of Plaintiffs’ political patronage claim, admittance, Zorn wrote a public letter severely criticizing the

particularly in light of the aggregate evidence that Plaintiffs have adduced. Sheriff.

See, e.g., NLRB v. Homemaker Shops, Inc., 724 F.2d 535, 550 (6th Cir.

1984) (“threatening or manipulative statements can . . . be couched in On February 27, 1995, the Sheriff appeared before the

ostensibly friendly, or even humourous, terms [but] [t]he threat or

manipulation remains nonetheless”) (citing Seligman & Assocs., Inc. v. Board to respond to Zorn’s charges. The Sheriff’s comments

NLRB, 639 F.2d 307, 309 (6th Cir. 1981)). and the dispute in general were thoroughly covered in a

8 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 21

lengthy front-page article in the February 28, 1995, Monroe (Areas 4 and 8). Monroe Towing’s area was increased after

Evening News, entitled, “Sheriff rips Zorn, Londo over tow another wrecker service went out of business.

meeting.” According to the article, the Sheriff told the Board

that Zorn had no reason to attend the meeting with call list Moreover, Plaintiffs have set forth additional evidence that

participants, which, he said, addressed only issues of interest these companies benefitted at the expense of non-contributing

to companies on the list - including rumors “that tow truck tow companies, including Plaintiffs and Lucas. For example,

company owners must contribute to his campaign to get on the Sheriff reduced Lucas’ towing area by one-third, with the

the list.” The article reported: lost territory going to Owens Towing. Monroe Towing

received calls for towing service in Lucas’ area, even though

Sheriff Van Wert said the meeting was to inform drivers Monroe was not formally assigned that service area. When

of new salvage vehicle forms, introduce them to acting Plaintiffs applied to be placed on the regular rotation list,

Capt. Paz and address rumors among tow truck Plaintiffs were told that the County did not require additional

operators. One such rumor, according to the sheriff, was towing services in that area — even though Monroe Towing

that he intends to eventually have only two tow truck was the only service operating there at that time. When

companies on the rotating list. Plaintiffs were finally placed on the stand-by list, they were

again excluded from Area 8 and instead assigned to Area 4 —

*** which already had three other wrecker services. Thus, while

the Sheriff’s Department claimed that it limited the number of

The other rumor, Sheriff Van Wert told the board, was companies on the call list in order to avoid saturating an area

that tow truck company operators must contribute to his and to avoid driving a good service out of business, the

campaign to get on the list. ‘If they want to donate to my circumstantial evidence detailed above would allow the jury

campaign, sure, I’ll take a donation,’ said the sheriff, who to infer a less proper motive; specifically, that the Sheriff

said he spends about $80,000 for each election. ‘But it’s sought to reward political supporters at the expense of those

surely not a requirement. That would be illegal and I who did not contribute to his campaigns. See Acosta-Orozco,

wouldn’t participate in that.’ 132 F.3d at 103 n.6 (noting that rewarding political supporters

is a forbidden form of political patronage because it

Campaign statements show that the sheriff’s campaign necessarily comes at the expense of “those who are not

received donations of $2,050 since 1992 from Dorothy followers and who see their upward mobility . . . thwarted in

Galina, owner of Monroe Towing . . . which is on the very concrete ways”).

tow list.

Indeed, the Sheriff’s statements and reported comments of

(J.A. at 248.) The article further reported that Sottile spoke other tow companies in the County further suggest a

at the Board meeting and complained about his exclusion connection between campaign contributions and favorable

from the Sheriff’s prior meeting with tow truck operators: treatment from the Sheriff’s Department. First, the Sheriff

publicly stated that it cost $80,000 to run for office and, while

The sheriff’s statement came on the heels of remarks denying that campaign contributions were a requirement for

earlier in the meeting by Jim Sottile, owner of Star placement on the tow call list, said that “if they want to

Towing in LaSalle, who said he also was removed from donate, sure I’ll take donations.” (J.A. at 306.) Sottile

last week’s meeting after initially being allowed in. Mr. testified that, despite the Sheriff’s professed denial, he took

Sottile said he’s been trying to get in the tow list for more this very statement as an indirect solicitation of contributions

than a year now. He said no one at the Sheriff’s

20 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 9

establish a prima facie case of politically discriminatory department will respond to his letters or phone calls. . . .

[employment action].” The court noted that it had long held Sheriff Van Wert said he planned to meet with Mr.

that direct evidence was not required to prove political Sottile today to discuss his concerns.

favoritism; instead, circumstantial evidence can suffice:

“[v]ictims of heavy-handed uses of the spoils system are not (J.A. at 248.)

limited to redress in only those (relatively rare) instances in

which a ‘smoking gun’ can be produced. To the contrary, we After the February 28, 1995, Board meeting, the Sheriff did

have held, time and again, that circumstantial evidence alone in fact arrange to meet with Sottile. Sottile arrived with his

can support a finding of political discrimination.” Id. at 102 attorney, and the Sheriff, himself an attorney, told Sottile to

(quoting Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. return on another day, without his lawyer. According to

1991)). Sottile, when the meeting finally took place, the Sheriff

promised to place S.T.A.R. on the regular rotation. However,

Here, Plaintiffs adduced sufficient evidence from which a on April 6, 1995, Sottile was notified that S.T.A.R. was

rational trier of fact could conclude that the Sheriff’s placed on the stand-by list in Area 4. Plaintiffs claim that

Department improperly engaged in political patronage their placement in Area 4 was another act of favoritism to

practices in its administration of the tow call list. Most Monroe Towing, in that they were excluded from Area 8,

notably, Plaintiffs have provided evidence that campaign where Monroe Towing had a monopoly. In contrast, Area 4

contributors and political supporters received disproportionate was already being served by three wrecker services.

tow calls off the list and increased service areas, at the

expense of non-contributors. Moreover, Plaintiffs have Meanwhile, public complaints about the Sheriff’s

shown that Plaintiffs and Lucas were removed from the list administration of the call list continued to mount. On March

because of their public opposition to the Sheriff. 14, 1995, a stranded driver told the Board that he was forced

to wait an extraordinarily long time because the Sheriff’s

Furthermore, Plaintiffs presented evidence suggesting that Department refused to call the tow service of his choice and

the Sheriff rewarded his political supporters, Monroe Towing instead called Owens Towing - owned by one of the Sheriff’s

and Owens Towing, with favorable treatment at the expense political supporters - which was some distance away.

of wrecker services who did not contribute to his campaigns.

The Sheriff stated at his deposition that he knew who his On April 11, 1995, wrecker service owner Larry Lucas,

“higher-end” contributors were, and went as far as to identify who had been on the regular rotation since 1968, spoke at the

Monroe Towing as one of them. Owens Towing was also Board meeting to voice his complaints about favoritism and

known to be one of the Sheriff’s political supporters. There corruption in the Sheriff’s administration of the tow list.

is ample evidence that both companies, particularly Monroe, Among other things, he alleged that Monroe Towing had been

benefitted from a disproportionate number of calls and given calls in what had been Lucas’ area for almost thirty

increased service areas. For example, in 1995, Owens years. Lucas then explained that he tried to get maps from the

Towing received over 600 calls from the Sheriff - first on the Sheriff’s Department that showed the areas, but to no avail.

list. That year, Monroe Towing received over 300 calls, Lucas finally received a copy of the map, and discovered that

which was second on the list. Monroe Towing was the only his area was decreased by one-third, and that his former

company on the tow call list for Area 8. Monroe Towing was territory was given to Owens Towing. Additionally, at the

the only wrecker service operating in two different areas Board meeting, Lucas reported an incident wherein

Commissioner Richard Petticrew, one of the Sheriff’s allies,

delivered a message to Lucas, from the Sheriff that if he did

10 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 19

not “back off,” he would be removed from the tow call list. claim of retaliation in violation of their rights under the First

Lucas concluded: Amendment.

If this is going to take place, where [the Sheriff] can II. Political Patronage

dictate . . . then I say central dispatch should be taken out

of the Sheriff’s Department and give it to the citizens and The First Amendment prohibits government officials from

let the citizens run it. . . . I think you’re going to gave a making employment decisions, such as hiring or firing, based

bigger problem later on down the road than you realize. on the employee’s political beliefs, affiliation, or support.

See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 77-

(J.A. at 316.) 79 (1990) (holding that the First Amendment extends to

protect against the politically motivated failure to promote);

The events at this Board meeting were reported in the lead Elrod v. Burns, 427 U.S. 347, 373 (1976) (“the practice of

story in the next day’s Monroe Evening News: patronage dismissals is unconstitutional under the First and

Fourteenth Amendments.”). In O’Hare Truck Serv. Inc. v.

A Petersburg wrecker service owner Tuesday night City of Northlake, 518 U.S. 712, 726 (1996), the Supreme

accused Sheriff Carl Van Wert of threatening his Court held that private companies that provide services to the

business if he doesn’t quit challenging tow truck policy. government — expressly including wrecker services on

Larry Lucas, in a heated speech to the Monroe County municipal tow truck rotation lists — are entitled to the same

Board of Commissioners, named Commissioner Richard “First Amendment safeguards of political association afforded

Petticrew as the messenger who told him two weeks ago to employees.”

his business would be dropped from the sheriff’s tow list

if he ‘didn’t back off.’ . . . ‘I can’t accept this kind of In the instant case, Plaintiffs’ allege that the Sheriff

threat,’ [Mr. Lucas] continued ‘is there a monopoly or a excluded them from the regular rotation list, and limited them

conspiracy here? You tell me.’ to Area 4 on the stand-by list because Plaintiffs did not

politically support the Sheriff and did not contribute to the

(J.A. at 250.) The article reported Lucas’ comments to the Sheriff’s campaign. Plaintiffs further allege that the Sheriff

Board in some detail; the article further reported that after took these actions in part to promote the interests of Monroe

making his complaints public, Lucas was immediately Towing as well as Owens Towing inasmuch as those entities

dropped from the call list “because he failed to comply3 with provided the Sheriff with political support and campaign

procedures requiring complaints to be made in writing.” The contributions. The district court held that Plaintiffs had not

article also included a sub-story entitled, “How the sheriff’s adduced sufficient evidence to survive summary judgment on

system works.” This story, relying on the Sheriff as its their political patronage claim.

primary source, explained that the Sheriff’s Department

sought to keep the tow list limited, and relayed the Sheriff’s The district court placed undue emphasis on Plaintiffs’

failure to present evidence that the Sheriff had formally

solicited them for a campaign contribution or that they had

3 been vocal opponents of the Sheriff before 1995. In Acosta-

In a subsequent June 5, 1995, letter confirming Lucas’ removal from Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101-02 (1st Cir.

the tow call list, the Sheriff’s Department made clear that he was being 1997), the United States Court of Appeals for the First Circuit

penalized for “the accusatory remarks about the Sheriff and his wrecker

policy [he] made before a Board of Commissioner’s meeting on April 11, explained that “a plaintiff need not produce direct evidence of

1995.” (J.A. at 153.) discriminatory treatment (a so-called ‘smoking gun’) to

18 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 11

Second, we find that Plaintiffs have presented sufficient description of how the call list is administered. The story also

evidence to indicate that, after voicing their final comments included Plaintiffs’ allegations, echoing those of Lucas, that

at the April 25, 1995, Board meeting, they were subjected to the Sheriff was guilty of favoritism.

an adverse action that would deter a person of ordinary

firmness from continuing to engage in publicly criticizing the Nearly two weeks later, on April 25, 1995, Sottile again

Sheriff. Plaintiffs were removed from the stand-by tow call addressed the Board regarding (i) the Sheriff’s unfulfilled

list, thus ending any opportunity to receive business via promise to place him on the regular call list rotation; (ii) the

central dispatch or to be added to the regular tow rotation so Sheriff’s suppression of competition among wrecker services;

long as the Sheriff remained in office. There is no doubt that and (iii) the lack of fair play and justice in the Sheriff’s

such conduct would deter the average wrecker service Department.

operator from voicing similar criticisms of the Sheriff.

Two days later, on April 27, 1995, the Monroe Evening

Third, we find that Plaintiffs have presented overwhelming News ran yet another story on the call list controversy; this

evidence that their removal from the stand-by tow call list was story also featured Sottile’s latest remarks to the Board and

motivated by their constitutionally protected public criticism the ensuing reaction. Entitled “McKart enters fray over tow

of the Sheriff’s Department. The May 4, 1995, letter trucks,” the article reported that at the Board meeting, County

informing them of their removal expressly states that the Commissioner Jerry McKart joined in the criticism of the

action was being taken because Sottile voiced his complaints Sheriff’s Department and called for changes in policy

publicly before the Board rather than in private: following Sottile’s remarks. McKart opined that there was

something wrong with the Sheriff’s policy and expressed

Since a dialogue had already been opened in regard to concern that the County might be subjected to lawsuits. The

your grievance with our office, your appearance before article directly attributed both McKart’s comments and the

the County Board can only be viewed as an attempt to Board’s decision to have its attorney examine the call list

discredit the Office of the Sheriff. The Office of the policy to Sottile’s statements at the Board meeting. The

Sheriff will therefore no longer be requiring your services article then reported Ray Copi’s comments siding with

as a standby Wrecker Company. Sottile, and included the response of the Sheriff’s

Department. The Sheriff’s Department alleged that Sottile’s

(J.A. at 259.) In his deposition, the Sheriff stated that comments were orchestrated by Commissioner Zorn, who, as

Plaintiffs were removed from the stand-by list for the same already noted, was head of the County’s Committee

reasons that Lucas was removed from the regular rotation. examining the possibility of combining central dispatch with

The Sheriff’s Department, of course, informed Lucas that he the County’s Emergency Management Division – a move the

was being removed because of “the accusatory remarks about Sheriff opposed because it would wrest central dispatch from

the Sheriff and his wrecker policy [he] made before a Board his control.

of Commissioner’s meeting on April 11, 1995.” (J.A. at 153.)

Therefore, we find that the district court erred in granting In a letter dated May 4, 1995, the Sheriff informed Sottile

Defendants’ motion for summary judgment on Plaintiffs’ that Plaintiffs had been removed from the stand-by call list

due to his public criticisms of the Sheriff’s Department. The

letter read, in pertinent part:

Rather than follow up on the matter with Sheriff Van

of the County, is a matter of political concern. Wert, or his representative, you appeared before the

12 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 17

County Board of Commissioners with your complaint. We may quite readily concede that Chappel hoped to

Since a dialogue had already been opened in regard to gain from his speech. Indeed, this may be a fair

your grievance with our office, your appearance before assumption to make about most speech addressing

the County Board can only be viewed as an attempt to matters of public concern. Our aim, however, is to

discredit the Office of the Sheriff. The Office of the determine whether Chappel’s speech may be “fairly

Sheriff will therefore no longer be requiring your services characterize[d] . . . as relating to any matter of political,

as a standby Wrecker Company. social, or other concern to the community.” Even if we

were to assume that Chappel’s predominant motivation

(J.A. at 259.) Plaintiffs were not placed on the tow call list was securing a job for himself, we would not conclude

until the Sheriff left office in January 1997; the newly elected that this motivation so dominated the substance of

sheriff promptly allowed Plaintiffs to join the regular tow Chappel’s speech that the “point” or “communicative

rotation. purpose” of his speech was rendered merely a matter of

personal concern. Chappel directly addressed matters

Standard of Review that are rightly “near [the] zenith” of public concern --

matters of public safety, and the gross mismanagement

We review a district court’s grant of summary judgment de and misappropriation of public monies.

novo. See Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir.

1999). Summary judgment is appropriate where “the 131 F.3d at 578 (alterations in original). We find that the

pleadings, depositions, answers to interrogatories, and same holds true here. Plaintiffs need only show that their

admissions on file, together with the affidavits, if any, show speech somehow related to a matter of community concern.

that there is no genuine issue as to any material fact and that As set forth above, with respect to the subject of favoritism

the moving party is entitled to a judgment as a matter of law.” and unfairness in the disbursement of government benefits,

FED. R. CIV. P. 56(c). The facts and inferences drawn tow calls are a classic issue of community concern. Indeed,

therefrom are to be viewed in the light most favorable to Sottile made his comments at various public forums, and his

plaintiff. See Jackson, 168 F.3d at 909. Ultimately, this comments were widely reported in prominently featured

Court must decide “whether the evidence presents sufficient newspaper articles, clearly demonstrating that the community

disagreement to require submission to a jury or whether it is deemed the issues raised to be of public concern. See id.

so one-sided that one party must prevail as a matter of law.” (holding that the Plaintiff’s speech was a matter of public

Terry Barr Sales Agency, Inc v. All-Lock Co., 96 F.3d 174, concern where, among other things, it was made 5in public

178 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., forums and covered extensively in the local press).

477 U.S. 242, 251 (1986)).

DISCUSSION 5

We look to the comments of Commissioner McKart and Ray Copi

in response to Sottile’s speech as further evidence that Sottile’s April 25,

I. Retaliation for Public Criticism 1995, speech was a matter of community concern. In the letter removing

Plaintiffs from the stand-by list, the Sheriff’s Department described

Plaintiffs allege that Defendants removed them from the Sottile’s speech as an “attempt to discredit the Office of the Sheriff.”

stand-by call list as retaliation for Sottile’s public criticism of This is clearly a matter of public concern. See Chappel, 131 F.3d at 573

the Sheriff, in violation of Plaintiffs’ First Amendment (stating that speech addresses a matter of public concern when such

expression is related to, among other things, any matter of political

concern). Certainly speech which questions the credibility of the

Sheriff’s Department, a Department that provides services to the people

16 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 13

In the instant case, Sottile repeatedly accused the Sheriff of rights.4 The district court dismissed this claim on grounds

favoritism, lack of competition and unfairness in his that Plaintiffs were not protected under the First Amendment

administration of the tow call list, alleging that the Sheriff because Plaintiffs were not government employees or

used his authority to reward political supporters and campaign contractors, nor were Plaintiffs a regular provider of services

contributors at the expense of other tow companies. This to the County.

Court has expressly stated that: “Freedom to criticize public

officials and expose their wrongdoing is at the core of First In dismissing Plaintiffs’ First Amendment retaliation claim,

Amendment values, even if the conduct is motivated by the district court adopted Defendants’ position that First

personal pique or resentment.” Barrett, 130 F.3d at 263. Amendment protections extend only to independent

Moreover, the First Amendment protects Sottile’s right to contractors or other regular-service providers subject to

voice concerns and criticize the Sheriff and his policies. See termination of pre-existing commercial relationships with the

Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir. government. The Supreme Court has consistently held that

1975) (“The right of an American citizen to criticize public the “government ‘may not deny a benefit to a person on a

officials and policies and to advocate peacefully ideas for basis that infringes his constitutionally protected . . . freedom

change is the central meaning of the First Amendment”) of speech’ even if he has no entitlement to that benefit.”

(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 273 Board of County Comm’rs v. Umbehr, 518 U.S. 668, 674

(1964)). (1996) (quoting Perry v. Sinderman, 408 U.S. 593, 597

(1972)). The Court explained as follows:

Notably, Sottile made his comments at the same time that

the Board was contemplating the merger of central dispatch [E]ven though a person has no “right” to a valuable

with emergency services. Sottile himself placed his government benefit and even though the government may

comments in the context of this larger issue, by making deny him the benefit for any number of reasons, there are

comments such as, “That’s all I want to say to the Board so some reasons upon which the government may not rely.

you can take it into consideration with Central Dispatch cause It may not deny a benefit to a person on a basis that

as far as I’m concerned there’s no justice or fair play or infringes his constitutionally protected interests --

anything in the Sheriff’s Department right now.” (J.A. at especially, his interest in freedom of speech.

318-19.) In addition, Sottile’s comments at the April 25,

1995, Board meeting followed Larry Lucas’ speech at the Perry, 408 U.S. at 597. As set forth more fully in Umbehr’s

same forum two weeks earlier, where Lucas voiced similar companion case of O’Hare Truck Serv., Inc. v. City of

complaints about the Sheriff’s administration of the tow call Northlake, 518 U.S. 712, 717 (1996), placement on a

list. Lucas’ speech, as noted, was the subject of the lead story

in the next day’s local paper — a story that also quoted Sottile

as joining in Lucas’ criticisms. 4

Because Plaintiffs’ rights under the Michigan Constitution

essentially track those guaranteed by the United States Constitution, the

In Chappel, this Court expressly rejected the defendants’ same analysis that governs their federal constitutional claims applies to

argument that the Plaintiff’s speech did not address a matter their corresponding state claims. See Woodland v. Michigan Citizens

of public concern because it was predominantly motivated by Lobby, 378 N.W.2d 337, 343 (Mich. 1985) (noting that the rights to free

speech and association under the Michigan Constitution are coterminous

his own self-interest: with those under the First Amendment); Roy v. Rau Tavern, Inc., 423

N.W.2d 54, 56 (Mich. Ct. App. 1988) (stating that the “Michigan

Constitution secures the same right of equal protection and due process

as does the United States Constitution”).

14 Lucas, et al. v. Monroe County, et al. No. 98-1876 No. 98-1876 Lucas, et al. v. Monroe County, et al. 15

municipal tow rotation list is one such benefit that may not be interference with free speech, but the First Amendment

denied a person because of his constitutionally protected rights of public employees are restricted by the nature of

speech. the employer-employee relationship.

In this case, Defendants have admitted that Plaintiffs were Id. Likewise, in the case at hand, we conclude that the district

placed on the stand-by tow call list for Area 4. Even though court erred in dismissing Plaintiffs’ retaliation claim on

Plaintiffs did not receive any calls during their four-week stint grounds that they were not entitled to First Amendment

on the stand-by list, their inclusion on the list undeniably protection against the retaliatory conduct of the Sheriff’s

constitutes a governmental benefit. The Sheriff himself Department.

admitted that “it was important to be on the tow list because

it gives [tow truck operators] community recognition.” (J.A. Since the district court held that Plaintiffs were not entitled

at 292.) Moreover, the Sheriff stated that placement on the to any First Amendment protections, the court did not

stand-by list was “done so that a record with our office can be consider whether Plaintiffs presented sufficient evidence on

established,” thus allowing a wrecker service to eventually their retaliation claim to survive Defendants’ motion for

receive tow calls off the regular rotation. (J.A. at 259.) summary judgment. We believe that they have. To prevail on

Finally, as Plaintiffs note, their inclusion on the list could their retaliation claim, Plaintiffs must establish (i) that they

have been used in advertising or as a credential when were engaged in constitutionally protected conduct; (ii) that

applying for other tow lists — which are particularly Defendants’ adverse action caused them to suffer an injury

important to a new company. that would likely chill a person of ordinary firmness from

continuing to engage in that conduct; and (iii) that the adverse

The instant case is reminiscent of Blackburn v. City of action was motivated at least in part as a response to the

Marshall, 42 F.3d 925, 929 (5th Cir. 1995), in which the exercise of their constitutional rights. See Thaddeus-X v.

plaintiff wrecking service was removed from the city’s Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); see

rotating on-call towing list after making various complaints generally Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

to city officials. The plaintiff brought a § 1983 action against 429 U.S. 274 (1977); Ratliff v. Wellington Exempted Village

the city alleging, among other things, that the city wrongly Schs. Bd. of Educ., 820 F.2d 792 (6th Cir. 1987); Barrett v.

retaliated against him for the exercise of his First Amendment Harrington, 130 F.3d 246 (6th Cir. 1977). We believe that

rights. Id. at 930. The district court dismissed the Plaintiff’s Plaintiffs have adduced substantial evidence in support of

retaliation claim on the basis that he was not a public each element.

employee, or equivalent to a public employee, and thus was

not entitled to First Amendment protection against the city’s First, Plaintiffs have clearly established that they were

retaliatory conduct. Id. at 931. On appeal, the United States engaged in constitutionally protected conduct. The First

Court of Appeals for the Fifth Circuit expressly rejected this Amendment protects speech that may be “fairly characterized

notion: as constituting speech on a matter of public concern.”

Chappel v. Montgomery County Fire Protection Dist. No. 1,

At the outset, we reject the district court’s apparent 131 F.3d 564, 573 (6th Cir. 1997). “In order to conclude that

assumption that only public employees enjoy the speech addresses a matter of public concern, ‘this court must

protections of the First Amendment. The district court’s be able to fairly characterize the expression as relating to any

reasoning is inverted. Every citizen enjoys the First matter of political, social, or other concern to the

Amendment’s protections against governmental community.’” Id. at 574 (citation omitted).