Friday, November 23, 2012

The District Attorney, Sexual Harassment and the Civil Rights Suit

The U.S. District Court for the Eastern District of Wisconsin recently issued an opinion addressing an issue that arose in a civil rights suit against a former prosecutor.  The case is S.V. v. Kratz, 2012 WL 5833185 (2012), and this is how it arose:

S.V. lived in an abusive relationship with S. K., the father of her child, for years. . . . In 2009, she reported to police that S.K. had beaten and strangled her, and on August 12, 2009, S.K. was charged in the Circuit Court for Calumet County with felony strangulation and suffocation under circumstances that constituted domestic abuse. . . .

At the time, Kratz was the District Attorney of Calumet County. Kratz met with [S.V.] three times in October 2009 in connection with the case against S.K. During the first two meetings, the office's victim-witness coordinator was present. At the third meeting, which occurred on October 20, 2009, Kratz met alone with [S.V.] in a conference room at his office. . . . Kratz confirmed that he would be in charge of the prosecution, which [S.V.] understood to mean she would be relying upon him directly for assistance regarding her participation in the process as . . . the complaining witness in the prosecution.

At 3:45 p.m. on October 20, . . . [S.V.] received the first of some thirty text messages Kratz sent to her over the next 48 hours. The messages . . . will not be repeated here. Suffice it to say that during the course of his text messaging, Kratz solicited a sexual relationship with [S.V.]. After [she] stopped responding to his messages, Kratz sent a final message at 3:25 p.m., on October 22, 2009, just short of forty-eight hours after his first. It read: `When the case is over, if you change your mind and want to meet for a drink, please tell me. Otherwise I will respect your desire to be left alone.’

S.V. v. Kratz, supra.

When Kratz was sending his final message to S.V., she was at a police department in

an adjoining county with her mother, where she had gone to file a complaint. Even though she had not communicated the fact to Kratz, [S.V.]. found his messages and solicitation unwelcome and offensive. She claims she was upset and felt uncomfortable, injured and humiliated by his behavior. She also felt frightened, threatened, and intimidated by the pressure Kratz was placing on her.

[S.V.] feared that if she confronted Kratz directly it would have an adverse effect on the prosecution of S.K. or would cause Kratz to retaliate against her in some other way. . . . Fearing that Kratz's position as District Attorney of Calumet County gave him authority over other law enforcement agencies within the County, she had decided to report his conduct to a law enforcement agency outside of the County. She also refused thereafter to have any further involvement with the prosecution of S.K.

S.V. v. Kratz, supra.

S.V. eventually filed a lawsuit “against Kratz seeking damages for violation of her civil rights under 42 U.S. Code § 1983.” S.V. v. Kratz, supra.  The issue the judge is dealing with in this opinion has nothing to do with the merits of the suit, i.e., with whether Kratz violated S.V.’s civil rights.  It involves another issue:

The State of Wisconsin and its political subdivisions are required to indemnify public officers and employees for any judgment against them . . . because of acts committed by them while carrying out their duties as an officer or employee if they are found to have been acting within the scope of their employment. Wisconsin Statutes §895.46(1)(a). The State intervened in this action seeking a determination that it had no duty to indemnify Kratz for any liability he may have to [S.V.] under this section because Kratz was acting outside the scope of his employment as the District Attorney of Calumet County when he engaged in the activities on which [S.V.]’s claim is based.

S.V. v. Kratz, supra.

The State of Wisconsin filed a motion for summary judgment, asking the judge to rule – without having the issued decided by a jury at trial – that it was not required to indemnify Kratz.  S.V. v. Kratz, supra.  As I have noted in earlier posts, a judge can grant summary judgment on an issue for a party to a civil suit is there are no “material facts”, i.e., facts the resolution of which would affect the outcome of the suit, in dispute. 

Here, the State of Wisconsin claimed it was entitled to summary judgment on the indemnification issue because Kratz was acting outside the scope of his employment

when he engaged in the alleged conduct. Under the indemnity statute, the government employer of a public officer or employee sued . . . for acts committed while carrying out duties as an officer or employee must pay any judgment entered against such defendant officer or employee if `the jury or the court finds the defendant was acting within the scope of employment. . . .’ Wisconsin Statutes § 895.46(1)(a). . . .The question presented here is whether Kratz is entitled to the benefit of this statute.

S.V. v. Kratz, supra.

The judge explained that an employee acts within the scope of his/her employment

when `doing that which is warranted within the terms of his or her express or implied authority, considering the nature of the services required, the instructions he or she has received, and the circumstances under which his or her work is being done or the services are being rendered.’ Estate of Murray v. Travelers Ins. Co., 229 Wis.2d 819, 601 N.W.2d 661 (Wisconsin Court of Appeals 1999) (quoting Restatement(Second) Of Agency § 228(2) (1957)). The inquiry thus involves looking objectively at the employee's actions in light of their employment position, authority, and duties, and also considering the employee's subjective intent.

S.V. v. Kratz, supra.

He also noted that when “an employee knowingly violates express employer policies, civil or criminal laws, licensing regulations, or disciplinary codes in engaging in the conduct at issue, such evidence may be a powerful indication that the employee was acting outside the scope of employment.” S.V. v. Kratz, supra.  But he also noted that

as a rule, employee conduct that is prohibited or even criminal does not necessarily fall outside the scope of employment. For example, other courts have examined whether a police officer's use of force or use of a weapon fell outside the scope of employment, and concluded it is a question of fact that a jury must decide. 

S.V. v. Kratz, supra. 

The judge found that the cases involving an officer’s use of force highlight a fact that

is not present in cases such as this where the defendant officer or employee is sued for actions that are sexually motivated. The need to use force is an inherent part of a police officer's duties. . . . This is especially true when a law enforcement officer is required to immediately respond to a violent or potentially violent situation. . . . The need to use force under such circumstances is an essential part of a law enforcement officer's job, and frequently it will not be clear whether an officer's use of force was a result of over-zealous policing or whether he or she had actually `fully stepped aside’ from their duties as an officer.

The same uncertainty does not exist where an employee engages in sexual misconduct. In such situations it is often easier to draw bright lines because there is no spectrum of acceptable behavior. For a prosecutor in Kratz's position, for example, soliciting a sexual relationship with a victim of a crime he is in the process of prosecuting is never a part of the job description. Thus, courts have often found as a matter of law that sexually motivated acts fall outside the scope of employment. 

S.V. v. Kratz, supra. 

He also noted, though, that this does not mean that the “mere fact” that a government

officer or employee is accused of sexual misconduct removes him from the protection of the indemnification statute as a matter of law. If the acts alleged are unclear or can be reasonably viewed as furthering a purpose other than the employee's own sexual desires, summary judgment would be inappropriate.

S.V. v. Kratz, supra. 

The judge found that in this case, “there is no reasonable view of the facts that supports the assertion that Kratz's text message sexual solicitation of [S.V.] was `at least partially actuated by a purpose to serve [his] employer.’”  S.V. v. Kratz, supra.  He noted that Kratz had stated in a declaration filed with the court that one of his job duties as

Calumet County District Attorney was to communicate personally with crime victims, including `maintaining continuing contact with [victims] regarding the prosecution.’ . . . Based on this statement, [S.V.] contends Kratz's text messages were simply an improper method of carrying out an otherwise authorized incident of his job. . . .

But Kratz has not been sued for sending text messages to [S.V.]; it is his sexual solicitation of her that forms the basis of [her] action against him. While Kratz may have regularly communicated with crime victims regarding the prosecution of cases they were involved in, that was not the activity he undertook here. No reasonable jury could find Kratz believed his continuous stream of text messages to Plaintiff culminating in his appeal -- `I'm serious! I'm the atty. I have the $350,000 house. I have the 6–figure career. You may be the tall, young, hot nimph, but I am the prize! Start convincing’ -- was in service to the county he was elected to serve. 

S.V. v. Kratz, supra. 

The judge also pointed out that the “plain language of the text messages document Kratz’s awareness that his actions were improper.”  S.V. v. Kratz, supra. 

He stated: `Its [sic] maybe not the wisest thing I can do, but you are awfully sweet. Just don't tell anyone, ok?’ and `I know this is wrong.’ He also asked [S.V.]: `Are you the kind of girl that likes secret contact with an older married elected DA . . .  the riskier the better? Or do you want to stop right know [sic] before any issues?’

Other messages stated: `[y]es you are a risk taker and can keep your mouth shut and you think this is fun . . . or you think a man twice your age is creepy so stop’ and `[r]emember it would have to be special enough to risk all.’

These messages contradict Kratz's self-serving declaration that he was intending to serve his employer's interest and to `enhance the plaintiff's confidence in me as a competent prosecutor’ despite the fact that some of the text messages were `not an appropriate way to compliment the plaintiff or build her self-esteem.’ . . . Rather, the messages transparently seek a sexual relationship with [S.V.], and do not relate to any conceivable prosecution function. 

S.V. v. Kratz, supra. 

Kratz also argued that the text messages where within the scope of his employment (i) because he used “contact information properly obtained from” S.V. and (ii) they “were all sent within normal working hours”.  S.V. v. Kratz, supra.  The judge found, as to the first  issue, that “[e]ven if Kratz obtained [S.V.]’s contact information and began the conversation with work-related purposes in mind, the offending messages can only be viewed as actions Kratz took after he had `stepped aside’ from any employment purpose.” S.V. v. Kratz, supra.  The judge also found that the fact the messages were “sent during business hours does little to tie the conduct to work.”  S.V. v. Kratz, supra. 

Since, for these and other reasons, the judge found that “no rational trier of fact could conclude that Kratz was acting within the scope of his employment,” there was no genuine issue of fact to be determined at trial, he granted the State summary judgment on the indemnification issue.  S.V. v. Kratz, supra. 

If you are interested in Kratz’s explanation for why all this happened, and for some other problems it caused for him, check out the story you can find here

No comments: