JOHN C. SCHUMACHER, JR.,
Cindy Daly; James Mcgriff; Charles Wood; and Larry O'laughlin, Individually;
the Common Council of the City of Box Elder, SD; and the City of Box Elder, SD,
[2002 DSD 16]
Jeffrey P. Maks, Finch, Bettman & Maks, PC, Rapid City, SD
Attorneys for Plaintiff
Donald P. Knudsen, Gunderson, Palmer, Goodsell & Nelson
LLP, Rapid City, SD
Attorney for Defendants
Filed June 10, 2002
Hon. Karen E. Schreier, U. S. District Judge
[¶1] Plaintiff, John C. Schumacher, Jr., filed a complaint alleging that defendants violated 42 USC § 1983 by denying him his due process rights and that defendants retaliated against him for exercising his First Amendment right to free speech. Schumacher also alleges that defendants committed the torts of wrongful discharge, defamation and slander, intentional infliction of emotional distress, and tortious interference with contractual relations and expectancies during the course of his employment relationship and resignation with the City. Defendants move for summary judgment claiming both qualified and legislative immunity.
[¶2] Schumacher was hired in May of 1998, as Planning and Zoning Director (P&Z Director) for the City of Box Elder on a part-time basis. In July of 1998, the city council of the City of Box Elder, comprised of Dixie Tomek, Cindy Daly, James McGriff, Charles Wood, and Larry O'Laughlin, voted to hire Schumacher on a full-time basis.
[¶3] As part of his duties, Schumacher was required to inspect and enforce the Uniform Building Code and all other city ordinances regulating planning and zoning. Defendants claim that they began to receive complaints from citizens regarding Schumacher's behavior in the performance of his duties. Schumacher contends that the complainants were friends of several of the council members who were cited for violations. Among the many areas of contention between the city council and Schumacher was the authorization by the city council for the placement of mobile homes in a flood plain in violation of FEMA regulations. Schumacher contends that the city council requested that he conceal the violation in order for the City to continue to receive assistance from FEMA.
[¶4] On February 2, 1999, the city council decided to review the viability of the P&Z Director position. On February 16, the city council addressed the issue of whether the position should be reduced from full-time to part-time. The recording of the meeting shows that the council went into executive session to discuss personnel matters. Upon adjourning the executive session and resuming the open meeting, Tomek made a motion to reduce the P&Z Director position to a part-time position. The motion was then opened for public comment. Council members, along with members of the public, spoke regarding Schumacher's performance. Hostilities were frequently exchanged between people on both sides. A brief discussion of potential financial benefits was held toward the end of the public comment period. The motion to reduce the position to part-time passed. The city council then offered the part-time position to Schumacher and he accepted the position. Schumacher continued in the part-time position until he resigned in April of 1999.
[¶5] After his resignation, Schumacher began his own business as an independent code consultant and inspector. The city council refused to add his name to the list of approved building inspectors. Schumacher also applied for a business permit with the city council. Schumacher claims that the city council intentionally delayed the application and approval of his license. Schumacher further contends that the members of the city council, namely McGriff, Daly, and Tomek, began to approach his clients to persuade them to refrain from doing business with him. Schumacher alleges that Daly contacted the manager of a Habitat for Humanity project, on which Schumacher was consulting, and informed him that the construction of the home was illegal because Schumacher erred regarding the setback requirements. Relying on the information given by Daly, the project was needlessly relocated and the City was required to reimburse the expense of relocation. Schumacher eventually left the area and relocated to Colorado.
[¶6] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if it can show that "there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999). In determining whether summary judgment should issue, the court must view the evidence and inferences reasonably drawn therefrom "in the light most favorable to the nonmoving party." Id. (citing Enterprise Bank v. Magna Bank of Missouri, 92 F3d 743, 747 (8th Cir. 1996); Adkison v. G.D. Searle & Co., 971 F2d 132, 134 (8th Cir. 1992)). The burden is on the moving party to establish the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Enterprise Bank, 92 F3d at 747; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 L. Ed. 2d 538 (1986). "As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510, 91 L. Ed. 2d 202 (1986). Once this burden has been met, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts that create a genuine issue for trial. See id. at 256, 106 SCt at 2514.
[¶7] I. Federal-law Claims
[¶8] A. Individual Defendants
[¶9] The individual defendants contend that they have absolute legislative immunity from the federal-law claims. The United States Supreme Court has stated that "when a local legislator exercises discretionary powers, he 'is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed.'" Bogan v. Scott-Harris, 523 US 44, 50, 118 SCt 966, 970, 140 L. Ed. 2d 79 (1998). The act, however, must be a legislative act. "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Id. at 973, 118 SCt at 54. The court, therefore, must look only at the acts of the individual defendants and not at their intentions.
[¶10] On February 16, 1999, the city council passed a motion to make the P&Z Director a part-time position rather than a full-time position. In Brown v. Griesenauer, 970 F2d 431 (8th Cir. 1992), the Eighth Circuit held that "[the act of voting] alone does not necessarily determine that [a person] was acting in a legislative capacity." Id. at 437. "Normally, a legislative act is a formulation of policy governing future conduct for all or a class of the citizenry." O'Brien v. City of Greers Ferry, 873 F2d 1115, 1119 (8th Cir. 1989). Legislative acts are not limited to the passage of city ordinances, but rather include acts such as letters written to prison officials by a state legislator questioning a prisoner's privileges, see, e.g., Mitchell v. Kirk, 20 F3d 936, 938 (8th Cir. 1994), and actions taken by agency officials when promulgating administrative regulations. See Redwood Village P'ship v. Graham, 26 F3d 839 (8th Cir.), cert. denied, 115 SCt 923 (1994).
[¶11] When the city of Fall River, Massachusetts, eliminated an employee's position, the United States Supreme Court found that the mayor and city councilmen had absolute legislative immunity because "[t]he ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents." Bogan, 118 SCt at 973. The Court further recognized that the ordinance "involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed 'in a field where legislators traditionally have power to act.'" Id. (quoting Tenney v. Brandhove, 341 US 367, 71 SCt 783, 789, 95 L. Ed. 2d 1019 (1951).
[¶12] In the present case, although an ordinance was not passed, the city council took official action on a motion to reduce the P&Z Director's position to part-time. This action has prospective implications that reach beyond the particular occupant of the office and reflect a consensus decision on the part of the city of Box Elder to reduce services to its citizens in the area of planning and zoning. The motion to reduce the P&Z Director position to part-time bore all the hallmarks of traditional legislation and thus, the individual defendants are entitled to absolute legislative immunity and summary judgment on the federal-law claims.
[¶13] B. City of Box Elder
[¶14] Defendant City of Box Elder contends that because the individually named defendants are not liable for the federal-law claims, then neither can the City be liable. City relies on Sinclair v. City of Des Moines, 268 F3d 594, 596 (8th Cir. 2001), Veneklase v. City of Fargo, 248 F3d 738, 748 (8th Cir. 2001), and Olinger v. Larson, 134 F3d 1362, 1367 (8th Cir. 1998) as support for its position. All three of these cases, however, involve an attempt to hold a municipality liable for the acts of police officers under a failure-to-train theory or a municipal policy or custom theory. City has not identified any cases which extend this holding to instances where a city is being sued for the actions of its city council in passing an ordinance.
[¶15] Every circuit that has considered whether a municipality enjoys legislative immunity with respect to the acts of its legislative bodies has concluded or presumed that a municipality is not entitled to absolute legislative immunity for suits brought under § 1983. See, e.g., Langford v. City of Atlantic City, 235 F3d 845, 850 (3d Cir. 2000) (A municipality does not enjoy legislative immunity for its unconstitutional acts in formulating and passing its annual budget.); Berkley v. Common Council of City of Charleston, 63 F3d 295, 301 (4th Cir. 1995) ("A municipality is not entitled to an absolute immunity for the actions of its legislature in suits brought under 42 USC § 1983."); Goldberg v. Town of Rocky Hill, 973 F2d 70, 72, 74 (2d Cir. 1992) ("There is no immunity defense, either qualified or absolute, available to a municipality sought to be held liable under 42 USC § 1983."); Aitchison v. Raffiani, 708 F2d 96, 100 (3d Cir. 1983) (citing Reed v. Village of Shorewood, 704 F2d 943, 953 (7th Cir. 1983) ("[L]iability against the municipality is not precluded simply because the [local legislators] were found immune in their individual capacities.")); Kuzinich v. Santa Clara County, 689 F2d 1345, 1350 (9th Cir. 1982) (County is not immunized because of complete immunity of county legislators.); Hernandez v. City of Lafayette, 643 F2d 1188, 1196 (5th Cir. 1981) (City is not entitled to legislative immunity from damages under § 1983 based on the Supreme Court's decision in Owen v. City of Independence, 445 US 622, 100 SCt 1398, 63 L. Ed. 2d 673 (1980) and its caveat in Lake County Estates, Inc. v. Tahoe Reg. Planning Agency, 440 US 391, 99 SCt 1171, 59 L. Ed. 2d 401 (1979), cert. denied, 455 US 907, 102 SCt 1251, 71 L. Ed. 2d 44 (1982)); Gorman Towers, Inc. v. Bogoslavsky, 626 F2d 607, 613 n.8 (8th Cir. 1980) (Knowledge that municipality will be liable for injurious conduct of council should create incentive for officials to err on the side of protecting citizens' constitutional rights).
[¶16] Furthermore, the United States Supreme Court specifically recognized in Bogan, after finding absolute immunity for local legislators, that "certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity." Bogan, 118 SCt at 971. This implies that municipal liability is not precluded when local council members are found immune in their individual capacities. Because defendant City does not have absolute legislative immunity, the court will address the merits of Schumacher's federal-law claims.
[¶17] 1. First Amendment Violations
[¶18] Schumacher alleges that his resignation as P&Z Director was a constructive discharge in retaliation for exercising his First Amendment rights. The Eighth Circuit has held "that a resignation is actionable under § 1983 only if it qualifies as a constructive discharge for a prohibited reason ... ." Jones v. Fitzgerald, 285 F3d 705, 715 (8th Cir. 2002). To prove that he was constructively discharged, Schumacher must show that "the defendants deliberately made or allowed [his] working conditions 'to become so intolerable that the employee had no other choice but to quit.'" Id. (quoting Irving v. Dubuque Packing Co., 689 F2d 170, 172 (10th Cir. 1982)) (emphasis in original). In this case, Schumacher has alleged that City reduced his position from full-time to part-time in retaliation for his refusal to commit unlawful acts. He has also alleged that he was stripped of many of his responsibilities and forced to work in a hostile environment wherein he was criticized and harassed for doing his job. Viewing the evidence in the light most favorable to the nonmoving party, sufficient evidence exists to support a finding that Schumacher was constructively discharged.
[¶19] "In order to establish a 42 USC § 1983 cause of action alleging violation of his first amendment rights, the plaintiff must show that he engaged in constitutionally protected speech and that the protected speech was a substantial or motivating factor in the decision to terminate him." Cox v. Miller County R-I Sch. Dist., 951 F2d 927, 931 (8th Cir. 1991). The court must first determine whether Schumacher's speech merits First Amendment protection. A two-part test applies. Under the first prong of this test, it must be determined whether Schumacher was speaking on a matter of public concern. See Kincade v. City of Blue Springs, Mo., 64 F3d 389, 395 (8th Cir. 1995); Buzek v. County of Saunders, 972 F2d 992, 995 (8th Cir. 1992). "An employee's speech touches upon a matter of public concern when it is a 'matter of political, social, or other concern to the community' at large." Kincade, 64 F3d at 396 (quoting Connick v. Myers, 461 US 138, 146, 103 SCt 1684, 1689, 75 L. Ed. 2d 708 (1983)). City admits for purposes of this motion that Schumacher engaged in speech that touched on public concerns while employed with the City.
[¶20] The second prong of the test "balance[s] the employee's right as a citizen to comment on matters of public concern and the public employer's interest 'in promoting the efficiency of the public services it performs through its employees.'" Buzek, 972 F2d at 997 (quoting Pickering v. Board of Ed. of Township High Sch. Dist. 205, Will County, Ill., 391 US 563, 568, 88 SCt 1731, 1735, 20 L. Ed. 2d 811 (1968)). "Factors relevant in conducting this test are whether the speech creates disharmony in the workplace, impedes the speaker's ability to perform his duties, or impairs working relationships with other employees." Kincade, 64 F3d at 397. City bears the burden under this second prong to show that the constructive discharge of Schumacher was permissible. See id.
[¶21] City claims that Schumacher's speech undermined the effective functioning of City's enterprise. City contends that Schumacher's speech generated a great number of complaints that distracted city council members from their duties. There is some evidence in the record of general complaints from citizens regarding Schumacher's job performance. City, however, has not provided any specific evidence that these alleged grievances adversely affected the work environment, Schumacher's ability to perform his job, or his relationship with other employees. See Kincade, 64 F3d at 398-99; Buzek, 972 F2d at 995.
[¶22] The only remaining issue is whether the protected speech was a substantial or motivating factor in the constructive discharge of Schumacher. In Cox, the Eighth Circuit held that "[w]hether protected conduct was a substantial or motivating factor in an employment decision is a question of fact. However, the sufficiency of the evidence to create an issue of fact for the jury is solely a question of law." Cox, 951 F2d at 931. Based on the evidence in the record, specifically the recordings of the city council meeting of February 16, 1999, the court finds that there is sufficient evidence to support a finding that the protected conduct was a substantial or motivating factor in the constructive discharge of Schumacher. As a result, City is not entitled to summary judgment on this claim.
[¶23] 2. Due Process
[¶24] Schumacher has also alleged that City violated his right to due process. "A government employee has a right to procedural due process when termination will deprive [him] of a constitutionally protected liberty or property interest." Buchholz v. Aldaya, 210 F3d 862, 865 (8th Cir. 2000) (citing Board of Regents v. Roth, 408 US 564, 569-72, 92 SCt 2701, 33 LEd2d 548 (1972)). Schumacher has not claimed to have a liberty interest, but has claimed that he had a property interest in his continued employment with the City. "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law... [.]'" Cleveland Bd. of Educ. v. Loudermill, 470 US 532, 538, 105 SCt 1487, 1492, 84 L. Ed. 2d 494 (1985) (quoting Roth, 408 US at 577, 92 SCt at 2709). Furthermore, "[a] property interest in continued employment cannot arise from a unilateral expectation; rather, an individual must have a legitimate claim of entitlement to it." Geddes v. Northwest Missouri State Univ., 49 F3d 426, 429 (8th Cir. 1995) (quoting Roth, 408 US at 577, 92 SCt at 2709).
[¶25] "Employees may be terminated at will in South Dakota except for (1) terminations that contravene public policy, (2) employees with express 'for cause only' agreements or implied 'for cause only' cases where an employee handbook contains a detailed list of exclusive grounds for discharge and a mandatory specific procedure that the employer agrees to follow, or (3) an employee who accepted employment after being promised future promotion to a certain position." Bass v. Happy Rest, Inc., 507 NW2d 317, 321 (SD 1993) (footnote omitted). Schumacher does not contend that his property interest is found in a contract or employee handbook. Rather, Schumacher contends that he is entitled to continued employment due to the existence of Ordinance No. 279 which "delineates the role, duties and functions " of the P&Z Director for the City. The creation of a position by ordinance, however, does not create a property interest in continued employment. "To establish a protected property interest in his employment, he must show that he could have been fired only for good cause." Spitzmiller v. Hawkins, 183 F3d 912, 916 (8th Cir. 1999). The court must look at the statutes or ordinances that define the terms of conditions of Schumacher's employment. See Buchholz, 210 F3d at 867. Nothing in Ordinance No. 279 sets forth the conditions or terms of employment. Thus, Ordinance No. 279 does not entitle Schumacher to continued employment.
[¶26] In the alternative, Schumacher argues that he was terminated because he refused to commit an unlawful act at the request of the city council and that this provides an exception to the employment at-will doctrine, thus granting him a property interest in his continued employment. The South Dakota Supreme Court has recognized public policy exceptions to the employment at-will doctrine. See Johnson v. Kreiser's, Inc., 433 NW2d 225, 227 (SD 1988). In Johnson, the court specifically recognized that an employer cannot discharge an employee for the employee's refusal to commit a criminal or unlawful act. See id. This exception to the employment at-will doctrine, however, creates a cause of action for wrongful discharge, not a property interest in continued employment. See id.
[¶27] Schumacher also argues that City's Employment Handbook requires that City provide an employee due process before termination. Paragraph 1.4 of the manual specifically states that it is not a contract and that the employment at-will doctrine still applies. This paragraph, however, states that the "due process procedures as specified in policy 9 will be followed." Policy 9 specifies the procedure to file a grievance regarding the conditions of employment, personnel practices and procedures or other conditions which were unable to be resolved by the head of the department. Schumacher argues that this procedure grants the right to due process. Schumacher, however, must show a property interest in order to show that he has a right to due process. See Buchholz, 210 F3d at 865. The United States Supreme Court has held that "'[p]roperty cannot be defined by the procedures provided for its deprivation... ." Loudermill, 470 US at 541, 105 SCt at 1493. The Eighth Circuit has held that an entity's "alleged failure to follow its own procedural rules and regulations [does] not, without more, give rise to a protected liberty or property interest." Batra v. Board of Regents, 79 F3d 717, 720 (8th Cir. 1996); Stow v. Cochran, 819 F2d 864, 867-68 (8th Cir. 1987)). Schumacher has failed to show that he had a property interest in continued employment. As a result, City is entitled to summary judgment on the due process cause of action.
[¶28] II. State-law Claims
[¶29] A. Wrongful Discharge
[¶30] Schumacher alleges that defendants constructively discharged him from his position as P&Z Director in retaliation for his refusal to commit an illegal or unlawful act. Schumacher alleges that defendants wanted him to ignore, conceal, or violate relevant municipal, state, and federal law. As was discussed in Section IA infra, the individual defendants are entitled to absolute legislative immunity for their actions in reducing the P&Z Director position from full-time to part-time. Thus, the individual defendants are entitled to summary judgment on the wrongful discharge cause of action. As was discussed in Section IB infra, City is not entitled to absolute legislative immunity. The court, therefore, will address the merits of this cause of action against City.
[¶31] The South Dakota Supreme Court has held that "[a]n employee has a cause of action for wrongful discharge when the employer discharges him in retaliation for his refusal to commit a criminal or unlawful act." Johnson, 433 NW2d at 227. City contends that Schumacher's claim of wrongful discharge cannot proceed because Schumacher was not terminated. The court has previously held that evidence exists which would support a finding of constructive discharge. Whether Schumacher was constructively discharged is a question of fact to be determined by the factfinder. Furthermore, viewing the facts in a light most favorable to the nonmoving party, the court finds that a question of fact exists as to whether Schumacher was asked to conceal violations of regulations and whether he was constructively terminated in response to his refusal to cooperate with such requests. As a result, summary judgment on this claim is denied to City.
[¶32] B. Defamation
[¶33] Defendants move for summary judgment on Schumacher's claim of defamation. Defendants argue that Schumacher is a public figure, and as such must prove that any statement alleged to be defamatory were made with actual malice. In this case, Schumacher has alleged defamation by slander. "Slander is a false and unprivileged publication other than libel, which: ... (3) Tends to directly injure [plaintiff] in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit." Tibke v. McDougall, 479 NW2d 898 (SD 1992) (quoting SDCL 20-11-4).
[¶34] Schumacher has alleged without specificity that numerous defamatory statements were made by each of the defendants throughout his employment with City and after his resignation. Schumacher cites to several depositions that have not been filed with the court or made a part of the record as evidence of the publication of false statements. Defendants wish the court to believe that all the statements were made during city council meetings. Both parties, in essence, are asking the court to divine what the statements were, as well as when and in what context the statements were made. The court, however, is unable to do so.
[¶35] Defendants do not deny that untruthful statements were made. Rather, defendants contend that the statements were privileged because the statements by council members occurred during public meetings. A communication is privileged if it is made "in the proper discharge of an official duty" or "in any legislative ... proceeding," or "in a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information." SDCL 20-11-5. Those statements which were made during the meeting may or may not qualify as privileged. The court cannot determine the circumstances under which the statements were made and therefore, cannot determine on this record whether the communications were privileged.
[¶36] Defendants also contend they are entitled to summary judgment because Schumacher is a public figure and as a result must prove that the statements were made with actual malice. Defendants bear the burden of proving that Schumacher was a public figure. See Michaelis v. CBS, Inc., 119 F3d 697, 702 (8th Cir. 1997). The United States Supreme Court has held that "public official status cannot extend to all public employees." Id. Defendants must show that Schumacher became a limited public figure for the purposes of this action because he "voluntarily inject[ed] himself or [was] drawn into a particular public controversy" or was "'among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.'" Nelson v. WEB Water Dev. Ass'n, 507 NW2d 691, 697 (SD 1993); Michaelis, 119 F3d at 702 (quoting Rosenblatt v. Baer, 383 US 75, 85, 86 SCt 669, 675, 15 L. Ed. 2d 597 (1966)). Defendants have failed to meet this burden. As a result, summary judgment to all defendants is denied.
[¶37] C. Intentional Infliction of Emotional Distress
[¶38] Defendants also move for summary judgment on Schumacher's claim of intentional infliction of emotional distress. To prove a claim of intentional infliction of emotional distress, Schumacher must show "(1) an act by defendants amounting to extreme and outrageous conduct; (2) intent on the part of the defendants to cause plaintiff severe emotional distress; (3) the defendants' conduct was the cause in fact of plaintiff's injuries; and (4) the plaintiff suffered an extreme disabling emotional response to defendants' conduct." Hayes v. Northern Hills Gen. Hosp., 1999 SD 28, ¶ 36, 590 NW2d 243, 251.
[¶39] Defendants contend that Schumacher cannot prove that their conduct was extreme and outrageous. "Whether [the defendants'] conduct was extreme and outrageous is initially an issue for the court." Id. The court must determine if there is sufficient evidence that would allow reasonable minds to differ as to whether defendants' conduct was extreme and outrageous. "Where reasonable men may differ, it is for the jury ... to determine whether ... the conduct has been sufficiently extreme and outrageous to result in liability." Richardson v. East River Elec., 531 NW2d 23, 27 (SD 1995). "'For conduct to be "outrageous," it must be so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. (quoting Tibke, 479 NW2d at 907).
[¶40] Viewing the evidence in a light most favorable to Schumacher, the making of allegedly false statements which impugned his stature in the community, the alleged public criticism and beratement by city council members, coupled with the demotion to part-time status and the removal of the majority of his official duties, could be considered extreme or outrageous. As a result, this issue presents a question of fact to be decided by a jury.
[¶41] D. Tortious Interference
[¶42] Schumacher has also alleged tortious interference with business relationships or expectance. To prove such a claim, Schumacher must show "(1) the existence of a valid business relationship or expectance; (2) knowledge by the interferer of the relationship or expectancy; (3) an intentional and unjustified act of interference on the part of the interferer; (4) proof that the interference caused the harm sustained; and (5) damage to the party whose relationship or expectancy was disrupted." Tibke, 479 NW2d at 908. Schumacher has alleged that defendants delayed his business permit and approached his clients and encouraged them to refrain from doing business with Schumacher. Defendants claim that they are entitled to summary judgment because any statements that they may have made is "privileged speech and debate." Defendants have failed to show how such actions are privileged. Schumacher has made allegations of defendants seeking out his clients at times other than during city council meetings. A question of fact exists as to whether these actions were intentional and unjustified and whether they did result in harm to Schumacher. Summary judgment on this claim is, therefore, denied.
[¶43] Based on the foregoing discussion, it is hereby
[¶44] ORDERED that defendant City of Box Elder's motion for summary judgment (Docket 30) is granted in part regarding plaintiff's due process claim, and denied in all other respects.
[¶45] IT IS FURTHER ORDERED that the motion for summary judgment (Docket 30) of defendants Dixie Tomek, Cindy Daly, James McGriff, Charles Wood, Larry O'Laughlin, and the Common Council of the City of Box Elder, South Dakota, is denied in part regarding the defamation, intentional infliction of emotional distress, and tortious interference causes of action and is granted in part in all other respects.