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.
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