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Brockert v. Skornicka

decided: July 1, 1983.


Appeal from the United States District Court for the Western District of Wisconsin. No. 81 C 489 -- Barbara B. Crabb, Judge.

Bauer and Coffey, Circuit Judges, and Celebrezze, Senior Circuit Judge.*fn*

Author: Bauer

BAUER, Circuit Judge.

Plaintiff-appellant, Dwight Brockert, brought this action seeking declaratory and injunctive relief on the basis that his constitutional rights were violated when he was dismissed from employment by the City of Madison, Wisconsin. The district court granted summary judgment for the defendants and Brockert appealed; we have jurisdiction under 28 U.S.C. § 1291.

The district judge analyzed each of plaintiff's claims thoughtfully and correctly. Accordingly, we affirm the district court judgment and adopt its opinion, which is reprinted below.





JOEL SKORNICKA, Mayor, and THE CITY OF MADISON, WISCONSIN, a Municipal Corporation, Defendants.



This is a civil action for declaratory and injunctive relief based on plaintiff's claims that his employer, the City of Madison, violated his constitutional rights when he was dismissed. Plaintiff has moved for partial summary judgment on the issue of the constitutionality of § 3.27, Madison General Ordinances. Defendants have moved to dismiss the action for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment declaring the same section to be valid as written and as applied to plaintiff. Because matters outside the pleadings have been presented to the court and not excluded by it, and because all parties have had a fair opportunity to present materials to be considered on the motion for summary judgment, defendants' motion to dismiss will be treated as a motion for summary judgment. Rule 12(b), Federal Rules of Civil Procedure. The cross motions for summary judgment are presently before the court.

I find there is no genuine issue with respect to any of the following material facts.


Plaintiff was a permanent employee of the defendant City of Madison and worked for the defendant City from 1966 to February 8, 1980; since 1974, he was employed as a Construction Inspector. Plaintiff was a member of City Employees Local No. 236, Laborers International Union of North America, AFL-CIO. In 1975, plaintiff made a request to Mayor Paul Soglin for an exemption from § 3.35(6)(f)*fn1 (now § 3.35(10)(a)) of the Madison General Ordinances which required him to reside in the City of Madison. The exemption was granted for one year. In 1977, at plaintiff's request, Mayor Soglin renewed the exemption for three years.

On December 3, 1979, plaintiff requested a continuation of permission to reside outside the city from the defendant, Mayor Joel Skornicka. Two weeks later, defendant Skornicka advised the plaintiff that he could not extend plaintiff's exemption without "medical information sufficient to show that there exists a compelling reason" for residing outside the city. On December 21, 1979, Dr. Jay P. Keepman wrote to defendant Skornicka stating that, in his opinion, plaintiff's wife "must live in preferably a rural setting" and that he could not allow her to reside in an urban area like Madison.

On January 3, 1980, defendant Skornicka informed the plaintiff that Dr. Keepman's letter contained insufficient information, but that he would consider further information directed to the specific medical difficulties involved and how they were exacerbated by an urban environment. Plaintiff's exemption expired on January 15, 1980, and on January 16, 1980, defendant Skornicka directed plaintiff's supervisor to take the action mandated by § 3.27, Madison General Ordinances, which, in language similar to § 3.35(6)(f), required automatic vacation of an employee's position for residence outside the city.

Plaintiff's supervisor notified plaintiff that he had scheduled a hearing for January 17, 1980, to determine whether plaintiff had failed to meet the residency requirements of § 3.27. After the hearing, defendant Skornicka temporarily extended plaintiff's exemption to provide plaintiff with an opportunity to submit either a proposal or further information in support of his request for an exemption. Subsequently, plaintiff's attorney proposed that plaintiff's wife's doctor discuss her condition with a doctor of defendant Skornicka's choosing, after which the doctor chosen by defendant Skornicka would make an oral report to the Mayor.

On January 30, 1980, defendant Skornicka rejected the proposal and demanded that plaintiff's wife sign a complete medical release. The defendant pledged his confidence and that of his staff and promised to return all medical information after the decision was made. The defendant also temporarily extended plaintiff's exemption to February 8 to allow plaintiff time to respond. On February 6, plaintiff's lawyer made a counter proposal offering to release all of the plaintiff's wife's medical information to a doctor chosen by the City. The doctor would then determine what information was relevant to the residence issue and report that information to defendant Skornicka. In a letter of February 8, defendant Skornicka rejected the ...

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