Date: 01-20-2012

Case Style: Martha "Molly" Otis v. City of Hayward

Case Number: 10-CV-447

Judge: Stephen L. Crocker

Court: United States District Court for the Western District of Wisconsin

Plaintiff's Attorney: Glenn Stoddard

Defendant's Attorney: Thomas J. Misfeldt

Description: Molly Otis, a musician and owner of the Pavilion wine bar and restaurant, sued the City of Hayward, Wisconsin and the current and former mayors and City Council members, under 42 U.S. § 1983, for violating her rights under the First and Fourteenth Amendments of the U.S. Constitution, claiming the City of Hayward illegally adopted and enforced an illegal “Music Ordinance” against her in September 2007. Shortly after she opposed adoption of the Music Ordinance at a City Council meeting the City Council adopted the ordinance. Then, two days after the ordinance became effective her business was raided by the Hayward Police for playing music outdoors after 10:00 p.m. without an outdoor music permit from the City Council under the ordinance. Ms. Otis claimed this harmed her business and caused her to lose wine bar profits, building rents and forced her to make investments in her building to move all music indoors, costing her space which had been used for retail sales. She also claimed defendants’ actions caused her loss of reputation, stigma, emotional distress and other personal injuries. When Ms. Otis began to rebuild her business she applied to the City Council for an outdoor music permit in July 2010, but her permit application was summarily denied by the current mayor and City Council, even though her attorney informed them that the Music Ordinance was unconstitutional because music is considered protected speech under the First Amendment. The City Council had previously approved nine other outdoor music permits submitted by other applicants, and plaintiff’s permit application was the only one to be denied. The case was then commenced in August 2010. In April 2011, the defendants conceded that the Music Ordinance was unconstitutional in response to plaintiff’s initial motion for summary judgment. In a follow-up motion for partial summary, the Court granted summary judgment for plaintiff holding the current mayor, Bill Swintkowski, and the six City Council members who voted to deny plaintiff’s the outdoor music permit in July 2010 (Gary Gillis, Harold Johnson, Joe Kreyer, Pat Parker, Al Voight, and Verna Worman), individually and personally liable and, thus, potentially subject to punitive damages. A jury trial on damages was held at the Federal Courthouse in Eau Claire, Wisconsin, from January 9-11, 2012. After deliberating for approximately two hours the jury awarded plaintiff $400,000 in compensatory damages, and assessed each of the seven individual defendants $200 in punitive damages. The jury also wrote on the special verdict form that each of the individual defendants should offer Ms. Otis a “sincere apology.” However, the Court ruled the jury did not have authority to require the apology and struck that from the verdict. The verdict was otherwise accepted by the Court, and judgment was entered in favor of plaintiff for a total of $400,1400 on January 13, 2012. During the trial defendants asserted that plaintiff was not damaged and should receive nothing.

Outcome: Plaintiff's verdict for $401,400.

Plaintiff's Experts: None

Defendant's Experts: None

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