Larry Lucas, d/b/a LUCAS TOWING v. Monroe County

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0063P (6th Cir.)
File Name: 00a0063p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LARRY LUCAS, d/b/a LUCAS
TOWING ,
Plaintiff,
S OTTILE ’S INC., d/b/a
S.T.A.R. TOWING ; J AMES
S OTTILE ,
Plaintiffs-Appellants,
v.
M ONROE C OUNTY ; C ARL
VAN W ERT , Sheriff; R ONALD
C OLE , Undersheriff; DARWIN
P AZ, Captain; TOM
HOFFMAN , Captain,
Defendants-Appellees.
;>

1
No. 98-1876
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 96-72332—Paul D. Borman, District Judge.
Argued: September 22, 1999
Decided and Filed: February 18, 2000

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2 Lucas, et al. v. Monroe County, et al. No. 98-1876
*Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
Before: MERRITT and CLAY, Circuit Judges; ALDRICH,
District Judge.*
_________________
COUNSEL
ARGUED: Matthew E. Krichbaum, SOBLE & ROWE, Ann
Arbor, Michigan, for Appellants. Linda E. Taylor,
JOHNSON, ROSATI, LABARGE, ASELTYNE & FIELD,
Farmington Hills, Michigan, for Appellees. ON BRIEF:
Matthew E. Krichbaum, Richard A. Soble, SOBLE & ROWE,
Ann Arbor, Michigan, for Appellants. Marcia L. Howe,
JOHNSON, ROSATI, LABARGE, ASELTYNE & FIELD,
Farmington Hills, Michigan, for Appellees.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiffs-Appellants, James Sottile
and Sottile’s Inc., d/b/a S.T.A.R. Towing, appeal from the
order entered by the United States District Court for the
Eastern District of Michigan, granting summary judgment on
behalf of Defendants-Appellees, Monroe County and related
parties, in this action alleging that Defendants violated
Plaintiffs’ rights under both the United States and Michigan
constitutions, and are liable for tortious interference with
Plaintiffs’ economic relations. For the reasons set forth
below, we REVERSE in part and AFFIRM in part the
judgment of the district court.
No. 98-1876 Lucas, et al. v. Monroe County, et al. 27
wrongful conduct take the form of inducing a third party not
to enter a contract with the plaintiff; indeed, the Restatement
Second of Torts § 766B expressly states that a defendant is
liable for intentional interference with prospective contractual
relations “whether the interference consists of (a) inducing or
otherwise causing a third person not to enter into or continue
the prospective relation, or (b) preventing the [plaintiff] from
acquiring or continuing the prospective relation.”
R ESTATEMENT S ECOND OF TORTS § 766B. Plaintiffs have
presented evidence that the Sheriff’s wrongful conduct in
excluding him from the regular tow rotation prevented him
from entering into a business relationship with stranded
motorists who request tow services via central dispatch.
Accordingly, we conclude that Plaintiffs have adduced
sufficient evidence from which a rational trier of fact could
find that the individual Defendants are liable for tortious
interference with Plaintiffs’ economic relations.
For the reasons set forth above, we REVERSE the
judgment of the district court as to Plaintiffs’ claims of
retaliation for public criticism, political patronage, and
tortious interference with economic relations claims; we
AFFIRM the judgment of the district court as to Plaintiffs’
due process claim.

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26 Lucas, et al. v. Monroe County, et al. No. 98-1876
existence of a valid business relationship or expectancy; (ii)
knowledge of the relationship or expectancy on the part of the
defendant; (iii) intentional interference causing or inducing
a termination of the relationship or expectancy; and (iv)
resultant actual damage. See Wilkerson v. Carlo, 300 N.W.2d
658, 659 (Mich. 1980). The district court dismissed
Plaintiffs’ claim on grounds that Plaintiffs’ “business
relationship or expectancy of a relationship with a third party
is too attenuated in this case.”
“The [business relationship or expectancy of a relationship]
must be a reasonable likelihood or a probability, not mere
wishful thinking.” Trepel v. Pontiac Osteopathic Hosp., 354
N.W.2d 341, 348 (Mich. Ct. App. 1984). To demonstrate
such a realistic expectation, Plaintiffs must prove an
anticipated business relationship with an identifiable class of
third parties. See Schipani v. Ford Motor Co., 302 N.W.2d
307, 314 (Mich. Ct. App. 1981). Plaintiffs have presented
evidence of a reasonable expectancy of an economic
relationship with stranded motorists who arranged for towing
services via the call list maintained by the Sheriff’s
Department. Plaintiffs have presented evidence (i) that but
for the Sheriff’s unlawful and improper conduct —
specifically, his patronage practices — Plaintiffs would have
been placed on the regular rotation upon satisfying the
requirements of the Sheriff’s Department; and (ii) that
placement on the list entitles a tow company to calls and
contracts within its geographic area that the company would
not otherwise receive. While the amount of towing business
Plaintiffs would have received if placed on the call list cannot
be specifically determined, this issue goes only to damages.
In dismissing Plaintiffs’ claim, the district court, quoting
from Baker Driveaway Co., Inc. v. Bankhead Enterprises, 478
F. Supp. 857, 860 (E.D. Mich. 1979), asserted that in the
typical tortious interference case, the defendant “induces a
private third party not to enter into a contract with the plaintiff
in some improper fashion.” The court concluded that “[t]he
facts of this case are simply inapposite to such a claim.” (J.A.
at 44.) However, there is no requirement that the tortfeasor’s
No. 98-1876 Lucas, et al. v. Monroe County, et al. 3
BACKGROUND
Procedural History
On March 19, 1996, James Sottile and Larry Lucas, two
separate wrecker service operators in Monroe County,
Michigan, filed suit in state court, in their own behalf and in
the names of their separate wrecker service companies,
against Defendants alleging violation of 42 U.S.C. § 1983 and
various state law claims. Plaintiffs and Lucas alleged
improper and retaliatory conduct arising out of the Monroe
County Sheriff’s Department’s (“Sheriff’s Department”)
administration of the County’s list of wrecker companies to
be called for towing services. Specifically, the complaint
charged that Plaintiffs and Lucas were removed from this tow
call list in retaliation for making public criticisms of the
Sheriff’s Department, in violation of their First Amendment
rights under the United States Constitution and Article I of the
Michigan Constitution; that the Sheriff’s Department
exercised political patronage in its administration of the tow
call list, also in violation of the First Amendment and the
Michigan Constitution; that Plaintiffs and Lucas were
removed from the tow call list without due process of law, in
violation of their constitutional due process rights guaranteed
by the Fourteenth Amendment of the United States
Constitution; and that the Sheriff’s Department’s conduct
constituted tortious interference with Plaintiffs’ and Lucas’
economic relations. Defendants removed the action to federal
court on May 20, 1996. On February 27, 1998, following
discovery, Defendants moved for summary judgment.
On July 1, 1998, the district court entered an order granting
in part and denying in part Defendants’ motion for summary
judgment. Defendants’ motion for summary judgment was
denied on Lucas’ retaliation claim, but granted on Plaintiffs’
retaliation claim, on grounds that Plaintiffs were not regular
service providers to Monroe County (“County”); summary

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4 Lucas, et al. v. Monroe County, et al. No. 98-1876
1Notably, the district court, quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986), held that the County may be held liable under
§ 1983 for the Sheriff’s decisions regarding operation of the tow list,
noting that municipal liability may be imposed where a “deliberate choice
to follow a course of action is made from among various alternatives by
the official or officials responsible for establishing final policy with
respect to the subject matter in question.” (J.A. at 43.) The district court
also held that the County may be held liable for any violations of the
Michigan Constitution. (J.A. at 43.)
judgment was also granted on all of Plaintiffs’ and Lucas’
remaining claims.1 This timely appeal followed.
Facts
The County Sheriff’s Department maintains a towing
company rotation list. The call list is maintained to allocate
towing services to assist police officers in moving stranded
vehicles throughout the County. When an officer needs
towing services, the police dispatcher calls a company listed
as approved to tow in the “service area” where the tow is
needed. If the first towing company called is unavailable, the
dispatcher calls the next company listed for that area, and so
on until the job is accepted. If towing services are again
required, the dispatcher begins with the next company listed
for the area involved, in rotation.
A towing company may not be placed on the call list unless
the Sheriff’s Department authorizes the company’s eligibility.
Eligibility is based on a number of factors: (i) where the
company is located; (ii) whether the location is an area
saturated with other companies on the list; (iii) whether the
company is properly insured; (iv) whether the company has
certain kinds of towing vehicles; (v) whether the company
passes a safety and equipment inspection; and (vi) whether
the company maintains twenty-four hour service in the service
area. However, if a motorist whose vehicle requires towing
requests a particular towing company, the dispatcher contacts
that company for the job regardless of whether the company
requested is on the Sheriff’s Department’s call list. There are
no contracts, either written or oral, between the towing
No. 98-1876 Lucas, et al. v. Monroe County, et al. 25
8Notably, the County is immune from tort liability here under
Michigan’s Governmental Tort Liability Act (“GTLA”), Michigan
Compiled Laws Annotated § 691.1407, which provides that “all
government agencies shall be immune from tort liability in all cases
wherein the government agency is engaged in the exercise or discharge of
a governmental function.” Mich. COMP. LAWS A NN. § 691.1407(1)
(1987). However, because Plaintiffs allege an intentional tort for which
the individual Defendants would have been liable before July 7, 1986,
these Defendants are not immune from suit under the GTLA. See M ICH.
COMP. LAWS A NN. § 691.1407(1) (1987) (stating that “subsection (2)
[which covers immunity for individuals] shall not be construed as altering
the law of intentional torts as it existed before July 7, 1986”). “Michigan
does not immunize its governmental employees, including police officers,
from their intentional torts.” Koehler v. Smith, 1997 WL 595085 (6th Cir.
Sept. 25, 1997) (unpublished disposition); see also Sudul v. City of
Hamtramck, 562 N.W.2d 478, 479 (Mich. Ct. App. 1997) (holding that
“an individual employee’s intentional torts are not shielded by our
governmental immunity statute”).
that “several references to and procedures for removal or
suspension from the list to compel compliance with the
regulations reflect the mutual nature of the relationship
established by inclusion on the list.” Id. at 853. In this case,
there are no such established “procedures” for suspension or
removal. The written policies of the Sheriff’s Department —
however unfair they may be — explicitly provide that a
wrecker company may be immediately removed from the list
upon making a complaint to an unauthorized person. As a
result, these policies did not create a legitimate claim of
entitlement to remaining on the tow call list even after making
such complaints. Accordingly, Plaintiffs’ due process claim
was properly dismissed on grounds that they have not
established the existence of a constitutionally protected
property interest.
IV. Tortious Interference with Economic Relations
Plaintiffs allege that by excluding them from the regular
tow rotation, the individual Defendants prevented them from
entering into business with stranded motorists who obtain
towing service through the call list.8 The elements of a claim
for tortious interference with economic relations are: (i) the

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24 Lucas, et al. v. Monroe County, et al. No. 98-1876
consider this question below because it dismissed Plaintiffs’ constitutional
claims on other grounds, and the parties’ briefing of this issue on appeal
is sparse and deficient. This issue is best left for the district court to
address in the first instance, should Defendants choose to raise it on
remand below.
III. Due Process
Plaintiffs allege that their removal from the stand-by tow
call list without notice and an opportunity to be heard violated
their due process rights. The district court dismissed
Plaintiffs’ claim on the ground that they lacked any protected
property interest in remaining on the stand-by list. We agree
with the district court.
“The Fourteenth Amendment’s procedural protection of
property is a safeguard of the security of interest that a person
has already acquired in specific benefits.” Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 576 (1972). The
mere unilateral expectation of continuing to receive a benefit
is not enough to create a protected property interest; instead
a “legitimate claim of entitlement” must exist. Id. at 577.
“[A] property interest exists and its boundaries are defined by
‘rules and understandings that stem from an independent
source such as state law -- rules or understandings that secure
certain benefits and that support claims of entitlement to those
benefits.’” Bailey v. Floyd County Bd. of Educ., 106 F.3d
135, 141 (6th Cir. 1997) (quoting Roth, 408 U.S. at 577).
In the instant case, however, Plaintiffs can point to no
ordinance, contract or other “rules of mutually explicit
understandings” that support their claim of entitlement to
remain on the stand-by list. See Perry v. Sinderman, 408 U.S.
593, 601 (1972). The only relevant policy on record, in place
since 1991, expressly states that a wrecker service will be
removed from the call list upon filing a complaint with an
unauthorized person. Plaintiffs’ reliance on Gregg v. Lawson,
732 F. Supp. 849 (E.D. Tenn. 1989), is misplaced. In Gregg,
the court held that the plaintiff had a “legitimate claim of
entitlement” in remaining on the wrecker tow list, on grounds
No. 98-1876 Lucas, et al. v. Monroe County, et al. 5
companies and the Sheriff or the County regarding towing
services. Payment for towing services is made by the motorist
directly to the towing company; the County is not responsible
for payments to the towing company.
In 1991, the Sheriff’s Department announced that towing
companies were required to bring grievances they had
regarding the list directly to the Sheriff’s Department
personnel prior to airing such grievances publicly. Towing
companies who failed to comply with this requirement risked
removal from the call list. The Sheriff’s May 9, 1991, letter
to all towing companies then on the list, stated in part:
This is to remind you that, consistent with the present
procedure, any complaints/questions you may have
regarding tow calls are to be directed to Undersheriff
Cole in writing. Do not address these issues with the
dispatchers, deputies, or supervisors.
In the future, failure to abide by these procedures will
necessitate the removal of your name from the call list at
the time you contact an unauthorized person until the
time of your complaint is received in writing and
throughly investigated.
(J.A. at 114.)
By the mid-1990’s, Sheriff Van Wert (“Sheriff”) was
subjected to increasing public criticism regarding his
administration of the tow call list. Accusations were rampant
that the Sheriff’s Department gave preferential treatment to
tow companies owned by “higher end” contributors to the
Sheriff’s political campaigns. In fact, the Sheriff admitted at
his deposition that Dorothy Galina, owner of Monroe Towing,
was a “higher end” campaign contributor. Plaintiffs adduced
evidence at their deposition indicating that Monroe Towing
received preferential treatment compared to other tow
companies on the call list: (i) Monroe Towing was the only
tow truck company in two areas, and received the greatest
number of calls; (ii) Monroe Towing’s service area was
increased in size to the detriment of another tow truck
operator, Larry Lucas; and (iii) Monroe Towing received

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6 Lucas, et al. v. Monroe County, et al. No. 98-1876
2Police records that track the tow companies used by the County
confirm that Monroe Towing did the vast majority of the towing in
Area 8.
increased territory when another tow company, McClain’s,
went out of business. Plaintiffs also adduced evidence that
another tow company, Owens Towing, received preferential
treatment in exchange for political favors.
Sottile, the sole owner of Sottile’s, Inc., d/b/a S.T.A.R.
Towing (“S.T.A.R.”), applied to be placed on the call list in
December 1993. Sottile stated that he had four tow trucks
that could perform light and heavy duty towing. Plaintiffs’
equipment was inspected, but deficiencies were found in
Plaintiffs’ equipment. Plaintiffs immediately cured the
deficiencies to the County’s satisfaction; nonetheless, their
application was rejected, as Defendants claimed that the
County already had sufficient towing services available in
Plaintiffs’ geographic service area, Area 8. The Sheriff’s
February 24, 1994, letter to Plaintiffs stated: “[a]t the present
time their [sic] are no intentions to add to our towing services.
In April we will be reviewing the services and if we decide to
add you will be considered.” (J.A. at 254.) However,
Plaintiffs noted that in January of 1994, Interstate Towing
went out of business in Area 8, thereby leaving only Monroe
Towing to service that area.2 Sottile maintained that S.T.A.R.
could have merely taken Interstate Towing’s place.
On April 2, 1994, Plaintiffs again reapplied to be placed on
the call list for Areas 4 and 8. After three weeks with no
response, Plaintiffs contacted Captain Tom Hoffman of the
Sheriff’s Department. Hoffman reportedly told Plaintiffs that
the County had no intention of adding any additional towing
services because it did not want to place a financial burden on
other tow services and put a good towing company out of
business. Hoffman then named three towing companies on
the call list that supposedly served the areas for which
Plaintiffs had applied. However, Sottile replied that two of
those companies were out of business and the third never
served those areas. Notably, Hoffman did not name the only
No. 98-1876 Lucas, et al. v. Monroe County, et al. 23
7Defendants on appeal also briefly argue that they are entitled to
qualified immunity on Plaintiffs’ First Amendment claims on the basis
that, at the time in question, “there was no law establishing Plaintiffs’
rights to be added to the [tow call] list.” (D. Br. at 43-45.) Plaintiffs
respond that Defendants are not immune because the First Amendment
law on retaliation and political patronage was clearly established at the
time of Defendants’ misconduct, so that Defendants knew or should have
known that they were violating Plaintiffs’ rights. See, e.g., Chappel, 131
F.3d at 580; Barrett, 130 F.3d at 262-64. The district court did not
because it had refused the new mayor’s request for a
campaign contribution and had instead supported his
opponent. O’Hare, 518 U.S. at 720. The Court stated:
We cannot accept the proposition . . . that those who
perform the government’s work outside the formal
employment relationship are subject to what we conclude
is the direct and specific abridgement of First
Amendment rights alleged in this complaint. As
respondents offer no justifications for their actions, save
for insisting on their right to condition a continuing
relationship on political fealty, we hold that the
complaint states an actionable First Amendment claim.
Id. at 720. The same holds true here. Plaintiffs have
presented evidence that both Plaintiffs and Lucas were
removed from the tow call list because they voiced their
opposition to the Sheriff and his policies in a public forum;
not only may this conduct itself constitute a violation of the
First Amendment, but it provides strong evidence that, as a
general rule, a wrecker service’s political support for the
Sheriff (or lack thereof) factors heavily into the Sheriff’s
administration of the tow call list. Indeed, by promptly
removing his most vociferous critics from the tow call list, the
Sheriff inevitably sent a clear message to the County’s other
wrecker services about the importance of maintaining a
positive relationship with the Sheriff’s Department.
Accordingly, we find that Plaintiffs have presented sufficient
evidence to create a genuine issue of material fact on their
political patronage claim, and, therefore, summary judgment
was inappropriate.7

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22 Lucas, et al. v. Monroe County, et al. No. 98-1876
6The district court found that this evidence carried no weight since
Sottile himself characterized the officers as making their statements
“jokingly” and said that he did not take it seriously at the time. However,
the weight to be attributed the officer’s statements is for the jury to
decide. As Plaintiffs point out, the mere fact that the statement was made
in a “joking” manner does not render it devoid of truth. A jury viewing
this exchange in the light most favorable to Plaintiffs could reasonably
construe it as evidence in support of Plaintiffs’ political patronage claim,
particularly in light of the aggregate evidence that Plaintiffs have adduced.
See, e.g., NLRB v. Homemaker Shops, Inc., 724 F.2d 535, 550 (6th Cir.
1984) (“threatening or manipulative statements can . . . be couched in
ostensibly friendly, or even humourous, terms [but] [t]he threat or
manipulation remains nonetheless”) (citing Seligman & Assocs., Inc. v.
NLRB, 639 F.2d 307, 309 (6th Cir. 1981)).
from tow companies. Second, Sottile quoted Dorothy
Gallina, owner of Monroe Towing, as saying that she had to
“wine and dine [members of the Sheriff’s Department] and
buy them tickets to here and there to keep them happy.” (J.A.
at 196.) Third, Sottile quoted the owner of another towing
company as telling him that “[i]f you want to get on the list,
you have got to spread some money around with the sheriff’s
campaign.” (J.A. at 267.) Fourth, Sottile testified that
officers in the Sheriff’s Department had “jokingly” told him
if he wanted to be added to the tow call list, he would have to
donate to the Sheriff’s campaign.6
The Sheriff’s conduct in removing Plaintiffs and Lucas
from the tow call list in response to their public criticisms of
his office constitutes particularly striking evidence of political
patronage in his administration of the list. This conduct is
akin to a government official firing a public employee who
spoke out in opposition to the official or his policies - the
classic political patronage First Amendment violation. See,
e.g., Branti v. Finkel, 445 U.S. 507, 515 (1980) (stating that
the First Amendment prohibits officials from terminating
public employees on the basis of their political beliefs). In
O’Hare Truck Service, the Court held that the plaintiff towing
company had stated a claim of political patronage in violation
of the First Amendment, where the plaintiff alleged that it had
been removed from the defendant city’s towing rotation list
No. 98-1876 Lucas, et al. v. Monroe County, et al. 7
active towing company that was actually serving Area 8 at
that time: Monroe Towing. Hoffman assured Plaintiffs he
would look into the situation. Over the next several months,
Sottile tried again to contact Hoffman. After his efforts were
unsuccessful, Sottile spoke to Undersheriff Ronald Cole, who
repeated what Hoffman had said.
On January 5, 1995, Sottile wrote a letter to a member of
the Monroe County Board of Commissioners (“Board”)
setting forth his frustrations with the Sheriff and the tow list;
this letter recounted in detail Sottile’s efforts to be placed on
the list and his futile communications with the Sheriff’s
Department. On January 30, 1995, Sottile’s attorney
requested that Plaintiffs be placed on the list.
At this juncture, the facts central to Plaintiffs’ claims occur
in the public eye and must be viewed from the perspective of
public controversy. Allegations of impropriety reached their
peak in the winter and spring of 1995. These allegations were
particularly salient because they came at a time when the
Board was contemplating the merger of central police
dispatch, which administered the call list, with the County’s
Emergency Management Division. The Sheriff opposed the
merger on grounds that it would encroach the independence
and authority of the Sheriff’s Department.
Allegations concerning the Sheriff’s administration of the
call list first became front page news in February of 1995
when Dale Zorn, a member of the Board, and County
Administrator/Auditor Charles Londo were denied access to
a meeting the Sheriff held with tow truck operators on the call
list. Sottile was also excluded from this meeting. Zorn said
that he had been invited to the meeting in his capacity as a
commissioner to discuss the potential merger of central
dispatch and emergency services. After being refused
admittance, Zorn wrote a public letter severely criticizing the
Sheriff.
On February 27, 1995, the Sheriff appeared before the
Board to respond to Zorn’s charges. The Sheriff’s comments
and the dispute in general were thoroughly covered in a

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8 Lucas, et al. v. Monroe County, et al. No. 98-1876
lengthy front-page article in the February 28, 1995, Monroe
Evening News, entitled, “Sheriff rips Zorn, Londo over tow
meeting.” According to the article, the Sheriff told the Board
that Zorn had no reason to attend the meeting with call list
participants, which, he said, addressed only issues of interest
to companies on the list - including rumors “that tow truck
company owners must contribute to his campaign to get on
the list.” The article reported:
Sheriff Van Wert said the meeting was to inform drivers
of new salvage vehicle forms, introduce them to acting
Capt. Paz and address rumors among tow truck
operators. One such rumor, according to the sheriff, was
that he intends to eventually have only two tow truck
companies on the rotating list.
* * *
The other rumor, Sheriff Van Wert told the board, was
that tow truck company operators must contribute to his
campaign to get on the list. ‘If they want to donate to my
campaign, sure, I’ll take a donation,’ said the sheriff, who
said he spends about $80,000 for each election. ‘But it’s
surely not a requirement. That would be illegal and I
wouldn’t participate in that.’
Campaign statements show that the sheriff’s campaign
received donations of $2,050 since 1992 from Dorothy
Galina, owner of Monroe Towing . . . which is on the
tow list.
(J.A. at 248.) The article further reported that Sottile spoke
at the Board meeting and complained about his exclusion
from the Sheriff’s prior meeting with tow truck operators:
The sheriff’s statement came on the heels of remarks
earlier in the meeting by Jim Sottile, owner of Star
Towing in LaSalle, who said he also was removed from
last week’s meeting after initially being allowed in. Mr.
Sottile said he’s been trying to get in the tow list for more
than a year now. He said no one at the Sheriff’s
No. 98-1876 Lucas, et al. v. Monroe County, et al. 21
(Areas 4 and 8). Monroe Towing’s area was increased after
another wrecker service went out of business.
Moreover, Plaintiffs have set forth additional evidence that
these companies benefitted at the expense of non-contributing
tow companies, including Plaintiffs and Lucas. For example,
the Sheriff reduced Lucas’ towing area by one-third, with the
lost territory going to Owens Towing. Monroe Towing
received calls for towing service in Lucas’ area, even though
Monroe was not formally assigned that service area. When
Plaintiffs applied to be placed on the regular rotation list,
Plaintiffs were told that the County did not require additional
towing services in that area — even though Monroe Towing
was the only service operating there at that time. When
Plaintiffs were finally placed on the stand-by list, they were
again excluded from Area 8 and instead assigned to Area 4 —
which already had three other wrecker services. Thus, while
the Sheriff’s Department claimed that it limited the number of
companies on the call list in order to avoid saturating an area
and to avoid driving a good service out of business, the
circumstantial evidence detailed above would allow the jury
to infer a less proper motive; specifically, that the Sheriff
sought to reward political supporters at the expense of those
who did not contribute to his campaigns. See Acosta-Orozco,
132 F.3d at 103 n.6 (noting that rewarding political supporters
is a forbidden form of political patronage because it
necessarily comes at the expense of “those who are not
followers and who see their upward mobility . . . thwarted in
very concrete ways”).
Indeed, the Sheriff’s statements and reported comments of
other tow companies in the County further suggest a
connection between campaign contributions and favorable
treatment from the Sheriff’s Department. First, the Sheriff
publicly stated that it cost $80,000 to run for office and, while
denying that campaign contributions were a requirement for
placement on the tow call list, said that “if they want to
donate, sure I’ll take donations.” (J.A. at 306.) Sottile
testified that, despite the Sheriff’s professed denial, he took
this very statement as an indirect solicitation of contributions

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20 Lucas, et al. v. Monroe County, et al. No. 98-1876
establish a prima facie case of politically discriminatory
[employment action].” The court noted that it had long held
that direct evidence was not required to prove political
favoritism; instead, circumstantial evidence can suffice:
“[v]ictims of heavy-handed uses of the spoils system are not
limited to redress in only those (relatively rare) instances in
which a ‘smoking gun’ can be produced. To the contrary, we
have held, time and again, that circumstantial evidence alone
can support a finding of political discrimination.” Id. at 102
(quoting Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir.
1991)).
Here, Plaintiffs adduced sufficient evidence from which a
rational trier of fact could conclude that the Sheriff’s
Department improperly engaged in political patronage
practices in its administration of the tow call list. Most
notably, Plaintiffs have provided evidence that campaign
contributors and political supporters received disproportionate
tow calls off the list and increased service areas, at the
expense of non-contributors. Moreover, Plaintiffs have
shown that Plaintiffs and Lucas were removed from the list
because of their public opposition to the Sheriff.
Furthermore, Plaintiffs presented evidence suggesting that
the Sheriff rewarded his political supporters, Monroe Towing
and Owens Towing, with favorable treatment at the expense
of wrecker services who did not contribute to his campaigns.
The Sheriff stated at his deposition that he knew who his
“higher-end” contributors were, and went as far as to identify
Monroe Towing as one of them. Owens Towing was also
known to be one of the Sheriff’s political supporters. There
is ample evidence that both companies, particularly Monroe,
benefitted from a disproportionate number of calls and
increased service areas. For example, in 1995, Owens
Towing received over 600 calls from the Sheriff - first on the
list. That year, Monroe Towing received over 300 calls,
which was second on the list. Monroe Towing was the only
company on the tow call list for Area 8. Monroe Towing was
the only wrecker service operating in two different areas
No. 98-1876 Lucas, et al. v. Monroe County, et al. 9
department will respond to his letters or phone calls. . . .
Sheriff Van Wert said he planned to meet with Mr.
Sottile today to discuss his concerns.
(J.A. at 248.)
After the February 28, 1995, Board meeting, the Sheriff did
in fact arrange to meet with Sottile. Sottile arrived with his
attorney, and the Sheriff, himself an attorney, told Sottile to
return on another day, without his lawyer. According to
Sottile, when the meeting finally took place, the Sheriff
promised to place S.T.A.R. on the regular rotation. However,
on April 6, 1995, Sottile was notified that S.T.A.R. was
placed on the stand-by list in Area 4. Plaintiffs claim that
their placement in Area 4 was another act of favoritism to
Monroe Towing, in that they were excluded from Area 8,
where Monroe Towing had a monopoly. In contrast, Area 4
was already being served by three wrecker services.
Meanwhile, public complaints about the Sheriff’s
administration of the call list continued to mount. On March
14, 1995, a stranded driver told the Board that he was forced
to wait an extraordinarily long time because the Sheriff’s
Department refused to call the tow service of his choice and
instead called Owens Towing - owned by one of the Sheriff’s
political supporters - which was some distance away.
On April 11, 1995, wrecker service owner Larry Lucas,
who had been on the regular rotation since 1968, spoke at the
Board meeting to voice his complaints about favoritism and
corruption in the Sheriff’s administration of the tow list.
Among other things, he alleged that Monroe Towing had been
given calls in what had been Lucas’ area for almost thirty
years. Lucas then explained that he tried to get maps from the
Sheriff’s Department that showed the areas, but to no avail.
Lucas finally received a copy of the map, and discovered that
his area was decreased by one-third, and that his former
territory was given to Owens Towing. Additionally, at the
Board meeting, Lucas reported an incident wherein
Commissioner Richard Petticrew, one of the Sheriff’s allies,
delivered a message to Lucas, from the Sheriff that if he did

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10 Lucas, et al. v. Monroe County, et al. No. 98-1876
3In a subsequent June 5, 1995, letter confirming Lucas’ removal from
the tow call list, the Sheriff’s Department made clear that he was being
penalized for “the accusatory remarks about the Sheriff and his wrecker
policy [he] made before a Board of Commissioner’s meeting on April 11,
1995.” (J.A. at 153.)
not “back off,” he would be removed from the tow call list.
Lucas concluded:
If this is going to take place, where [the Sheriff] can
dictate . . . then I say central dispatch should be taken out
of the Sheriff’s Department and give it to the citizens and
let the citizens run it. . . . I think you’re going to gave a
bigger problem later on down the road than you realize.
(J.A. at 316.)
The events at this Board meeting were reported in the lead
story in the next day’s Monroe Evening News:
A Petersburg wrecker service owner Tuesday night
accused Sheriff Carl Van Wert of threatening his
business if he doesn’t quit challenging tow truck policy.
Larry Lucas, in a heated speech to the Monroe County
Board of Commissioners, named Commissioner Richard
Petticrew as the messenger who told him two weeks ago
his business would be dropped from the sheriff’s tow list
if he ‘didn’t back off.’ . . . ‘I can’t accept this kind of
threat,’ [Mr. Lucas] continued ‘is there a monopoly or a
conspiracy here? You tell me.’
(J.A. at 250.) The article reported Lucas’ comments to the
Board in some detail; the article further reported that after
making his complaints public, Lucas was immediately
dropped from the call list “because he failed to comply with
procedures requiring complaints to be made in writing.”3 The
article also included a sub-story entitled, “How the sheriff’s
system works.” This story, relying on the Sheriff as its
primary source, explained that the Sheriff’s Department
sought to keep the tow list limited, and relayed the Sheriff’s
No. 98-1876 Lucas, et al. v. Monroe County, et al. 19
claim of retaliation in violation of their rights under the First
Amendment.
II. Political Patronage
The First Amendment prohibits government officials from
making employment decisions, such as hiring or firing, based
on the employee’s political beliefs, affiliation, or support.
See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 77-
79 (1990) (holding that the First Amendment extends to
protect against the politically motivated failure to promote);
Elrod v. Burns, 427 U.S. 347, 373 (1976) (“the practice of
patronage dismissals is unconstitutional under the First and
Fourteenth Amendments.”). In O’Hare Truck Serv. Inc. v.
City of Northlake, 518 U.S. 712, 726 (1996), the Supreme
Court held that private companies that provide services to the
government — expressly including wrecker services on
municipal tow truck rotation lists — are entitled to the same
“First Amendment safeguards of political association afforded
to employees.”
In the instant case, Plaintiffs’ allege that the Sheriff
excluded them from the regular rotation list, and limited them
to Area 4 on the stand-by list because Plaintiffs did not
politically support the Sheriff and did not contribute to the
Sheriff’s campaign. Plaintiffs further allege that the Sheriff
took these actions in part to promote the interests of Monroe
Towing as well as Owens Towing inasmuch as those entities
provided the Sheriff with political support and campaign
contributions. The district court held that Plaintiffs had not
adduced sufficient evidence to survive summary judgment on
their political patronage claim.
The district court placed undue emphasis on Plaintiffs’
failure to present evidence that the Sheriff had formally
solicited them for a campaign contribution or that they had
been vocal opponents of the Sheriff before 1995. In Acosta-
Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101-02 (1st Cir.
1997), the United States Court of Appeals for the First Circuit
explained that “a plaintiff need not produce direct evidence of
discriminatory treatment (a so-called ‘smoking gun’) to

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18 Lucas, et al. v. Monroe County, et al. No. 98-1876
of the County, is a matter of political concern.
Second, we find that Plaintiffs have presented sufficient
evidence to indicate that, after voicing their final comments
at the April 25, 1995, Board meeting, they were subjected to
an adverse action that would deter a person of ordinary
firmness from continuing to engage in publicly criticizing the
Sheriff. Plaintiffs were removed from the stand-by tow call
list, thus ending any opportunity to receive business via
central dispatch or to be added to the regular tow rotation so
long as the Sheriff remained in office. There is no doubt that
such conduct would deter the average wrecker service
operator from voicing similar criticisms of the Sheriff.
Third, we find that Plaintiffs have presented overwhelming
evidence that their removal from the stand-by tow call list was
motivated by their constitutionally protected public criticism
of the Sheriff’s Department. The May 4, 1995, letter
informing them of their removal expressly states that the
action was being taken because Sottile voiced his complaints
publicly before the Board rather than in private:
Since a dialogue had already been opened in regard to
your grievance with our office, your appearance before
the County Board can only be viewed as an attempt to
discredit the Office of the Sheriff. The Office of the
Sheriff will therefore no longer be requiring your services
as a standby Wrecker Company.
(J.A. at 259.) In his deposition, the Sheriff stated that
Plaintiffs were removed from the stand-by list for the same
reasons that Lucas was removed from the regular rotation.
The Sheriff’s Department, of course, informed Lucas that he
was being removed because of “the accusatory remarks about
the Sheriff and his wrecker policy [he] made before a Board
of Commissioner’s meeting on April 11, 1995.” (J.A. at 153.)
Therefore, we find that the district court erred in granting
Defendants’ motion for summary judgment on Plaintiffs’
No. 98-1876 Lucas, et al. v. Monroe County, et al. 11
description of how the call list is administered. The story also
included Plaintiffs’ allegations, echoing those of Lucas, that
the Sheriff was guilty of favoritism.
Nearly two weeks later, on April 25, 1995, Sottile again
addressed the Board regarding (i) the Sheriff’s unfulfilled
promise to place him on the regular call list rotation; (ii) the
Sheriff’s suppression of competition among wrecker services;
and (iii) the lack of fair play and justice in the Sheriff’s
Department.
Two days later, on April 27, 1995, the Monroe Evening
News ran yet another story on the call list controversy; this
story also featured Sottile’s latest remarks to the Board and
the ensuing reaction. Entitled “McKart enters fray over tow
trucks,” the article reported that at the Board meeting, County
Commissioner Jerry McKart joined in the criticism of the
Sheriff’s Department and called for changes in policy
following Sottile’s remarks. McKart opined that there was
something wrong with the Sheriff’s policy and expressed
concern that the County might be subjected to lawsuits. The
article directly attributed both McKart’s comments and the
Board’s decision to have its attorney examine the call list
policy to Sottile’s statements at the Board meeting. The
article then reported Ray Copi’s comments siding with
Sottile, and included the response of the Sheriff’s
Department. The Sheriff’s Department alleged that Sottile’s
comments were orchestrated by Commissioner Zorn, who, as
already noted, was head of the County’s Committee
examining the possibility of combining central dispatch with
the County’s Emergency Management Division – a move the
Sheriff opposed because it would wrest central dispatch from
his control.
In a letter dated May 4, 1995, the Sheriff informed Sottile
that Plaintiffs had been removed from the stand-by call list
due to his public criticisms of the Sheriff’s Department. The
letter read, in pertinent part:
Rather than follow up on the matter with Sheriff Van
Wert, or his representative, you appeared before the

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12 Lucas, et al. v. Monroe County, et al. No. 98-1876
County Board of Commissioners with your complaint.
Since a dialogue had already been opened in regard to
your grievance with our office, your appearance before
the County Board can only be viewed as an attempt to
discredit the Office of the Sheriff. The Office of the
Sheriff will therefore no longer be requiring your services
as a standby Wrecker Company.
(J.A. at 259.) Plaintiffs were not placed on the tow call list
until the Sheriff left office in January 1997; the newly elected
sheriff promptly allowed Plaintiffs to join the regular tow
rotation.
Standard of Review
We review a district court’s grant of summary judgment de
novo. See Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir.
1999). Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED . R. C IV . P. 56(c). The facts and inferences drawn
therefrom are to be viewed in the light most favorable to
plaintiff. See Jackson, 168 F.3d at 909. Ultimately, this
Court must decide “whether the evidence presents sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.”
Terry Barr Sales Agency, Inc v. All-Lock Co., 96 F.3d 174,
178 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1986)).
DISCUSSION
I. Retaliation for Public Criticism
Plaintiffs allege that Defendants removed them from the
stand-by call list as retaliation for Sottile’s public criticism of
the Sheriff, in violation of Plaintiffs’ First Amendment
No. 98-1876 Lucas, et al. v. Monroe County, et al. 17
5We look to the comments of Commissioner McKart and Ray Copi
in response to Sottile’s speech as further evidence that Sottile’s April 25,
1995, speech was a matter of community concern. In the letter removing
Plaintiffs from the stand-by list, the Sheriff’s Department described
Sottile’s speech as an “attempt to discredit the Office of the Sheriff.”
This is clearly a matter of public concern. See Chappel, 131 F.3d at 573
(stating that speech addresses a matter of public concern when such
expression is related to, among other things, any matter of political
concern). Certainly speech which questions the credibility of the
Sheriff’s Department, a Department that provides services to the people
We may quite readily concede that Chappel hoped to
gain from his speech. Indeed, this may be a fair
assumption to make about most speech addressing
matters of public concern. Our aim, however, is to
determine whether Chappel’s speech may be “fairly
characterize[d] . . . as relating to any matter of political,
social, or other concern to the community.” Even if we
were to assume that Chappel’s predominant motivation
was securing a job for himself, we would not conclude
that this motivation so dominated the substance of
Chappel’s speech that the “point” or “communicative
purpose” of his speech was rendered merely a matter of
personal concern. Chappel directly addressed matters
that are rightly “near [the] zenith” of public concern --
matters of public safety, and the gross mismanagement
and misappropriation of public monies.
131 F.3d at 578 (alterations in original). We find that the
same holds true here. Plaintiffs need only show that their
speech somehow related to a matter of community concern.
As set forth above, with respect to the subject of favoritism
and unfairness in the disbursement of government benefits,
tow calls are a classic issue of community concern. Indeed,
Sottile made his comments at various public forums, and his
comments were widely reported in prominently featured
newspaper articles, clearly demonstrating that the community
deemed the issues raised to be of public concern. See id.
(holding that the Plaintiff’s speech was a matter of public
concern where, among other things, it was made in public
forums and covered extensively in the local press).5

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16 Lucas, et al. v. Monroe County, et al. No. 98-1876
In the instant case, Sottile repeatedly accused the Sheriff of
favoritism, lack of competition and unfairness in his
administration of the tow call list, alleging that the Sheriff
used his authority to reward political supporters and campaign
contributors at the expense of other tow companies. This
Court has expressly stated that: “Freedom to criticize public
officials and expose their wrongdoing is at the core of First
Amendment values, even if the conduct is motivated by
personal pique or resentment.” Barrett, 130 F.3d at 263.
Moreover, the First Amendment protects Sottile’s right to
voice concerns and criticize the Sheriff and his policies. See
Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir.
1975) (“The right of an American citizen to criticize public
officials and policies and to advocate peacefully ideas for
change is the central meaning of the First Amendment”)
(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 273
(1964)).
Notably, Sottile made his comments at the same time that
the Board was contemplating the merger of central dispatch
with emergency services. Sottile himself placed his
comments in the context of this larger issue, by making
comments such as, “That’s all I want to say to the Board so
you can take it into consideration with Central Dispatch cause
as far as I’m concerned there’s no justice or fair play or
anything in the Sheriff’s Department right now.” (J.A. at
318-19.) In addition, Sottile’s comments at the April 25,
1995, Board meeting followed Larry Lucas’ speech at the
same forum two weeks earlier, where Lucas voiced similar
complaints about the Sheriff’s administration of the tow call
list. Lucas’ speech, as noted, was the subject of the lead story
in the next day’s local paper — a story that also quoted Sottile
as joining in Lucas’ criticisms.
In Chappel, this Court expressly rejected the defendants’
argument that the Plaintiff’s speech did not address a matter
of public concern because it was predominantly motivated by
his own self-interest:
No. 98-1876 Lucas, et al. v. Monroe County, et al. 13
4Because Plaintiffs’ rights under the Michigan Constitution
essentially track those guaranteed by the United States Constitution, the
same analysis that governs their federal constitutional claims applies to
their corresponding state claims. See Woodland v. Michigan Citizens
Lobby, 378 N.W.2d 337, 343 (Mich. 1985) (noting that the rights to free
speech and association under the Michigan Constitution are coterminous
with those under the First Amendment); Roy v. Rau Tavern, Inc., 423
N.W.2d 54, 56 (Mich. Ct. App. 1988) (stating that the “Michigan
Constitution secures the same right of equal protection and due process
as does the United States Constitution”).
rights.4 The district court dismissed this claim on grounds
that Plaintiffs were not protected under the First Amendment
because Plaintiffs were not government employees or
contractors, nor were Plaintiffs a regular provider of services
to the County.
In dismissing Plaintiffs’ First Amendment retaliation claim,
the district court adopted Defendants’ position that First
Amendment protections extend only to independent
contractors or other regular-service providers subject to
termination of pre-existing commercial relationships with the
government. The Supreme Court has consistently held that
the “government ‘may not deny a benefit to a person on a
basis that infringes his constitutionally protected . . . freedom
of speech’ even if he has no entitlement to that benefit.”
Board of County Comm’rs v. Umbehr, 518 U.S. 668, 674
(1996) (quoting Perry v. Sinderman, 408 U.S. 593, 597
(1972)). The Court explained as follows:
[E]ven though a person has no “right” to a valuable
government benefit and even though the government may
deny him the benefit for any number of reasons, there are
some reasons upon which the government may not rely.
It may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests --
especially, his interest in freedom of speech.
Perry, 408 U.S. at 597. As set forth more fully in Umbehr’s
companion case of O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 717 (1996), placement on a

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14 Lucas, et al. v. Monroe County, et al. No. 98-1876
municipal tow rotation list is one such benefit that may not be
denied a person because of his constitutionally protected
speech.
In this case, Defendants have admitted that Plaintiffs were
placed on the stand-by tow call list for Area 4. Even though
Plaintiffs did not receive any calls during their four-week stint
on the stand-by list, their inclusion on the list undeniably
constitutes a governmental benefit. The Sheriff himself
admitted that “it was important to be on the tow list because
it gives [tow truck operators] community recognition.” (J.A.
at 292.) Moreover, the Sheriff stated that placement on the
stand-by list was “done so that a record with our office can be
established,” thus allowing a wrecker service to eventually
receive tow calls off the regular rotation. (J.A. at 259.)
Finally, as Plaintiffs note, their inclusion on the list could
have been used in advertising or as a credential when
applying for other tow lists — which are particularly
important to a new company.
The instant case is reminiscent of Blackburn v. City of
Marshall, 42 F.3d 925, 929 (5th Cir. 1995), in which the
plaintiff wrecking service was removed from the city’s
rotating on-call towing list after making various complaints
to city officials. The plaintiff brought a § 1983 action against
the city alleging, among other things, that the city wrongly
retaliated against him for the exercise of his First Amendment
rights. Id. at 930. The district court dismissed the Plaintiff’s
retaliation claim on the basis that he was not a public
employee, or equivalent to a public employee, and thus was
not entitled to First Amendment protection against the city’s
retaliatory conduct. Id. at 931. On appeal, the United States
Court of Appeals for the Fifth Circuit expressly rejected this
notion:
At the outset, we reject the district court’s apparent
assumption that only public employees enjoy the
protections of the First Amendment. The district court’s
reasoning is inverted. Every citizen enjoys the First
Amendment’s protections against governmental
No. 98-1876 Lucas, et al. v. Monroe County, et al. 15
interference with free speech, but the First Amendment
rights of public employees are restricted by the nature of
the employer-employee relationship.
Id. Likewise, in the case at hand, we conclude that the district
court erred in dismissing Plaintiffs’ retaliation claim on
grounds that they were not entitled to First Amendment
protection against the retaliatory conduct of the Sheriff’s
Department.
Since the district court held that Plaintiffs were not entitled
to any First Amendment protections, the court did not
consider whether Plaintiffs presented sufficient evidence on
their retaliation claim to survive Defendants’ motion for
summary judgment. We believe that they have. To prevail on
their retaliation claim, Plaintiffs must establish (i) that they
were engaged in constitutionally protected conduct; (ii) that
Defendants’ adverse action caused them to suffer an injury
that would likely chill a person of ordinary firmness from
continuing to engage in that conduct; and (iii) that the adverse
action was motivated at least in part as a response to the
exercise of their constitutional rights. See Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); see
generally Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977); Ratliff v. Wellington Exempted Village
Schs. Bd. of Educ., 820 F.2d 792 (6th Cir. 1987); Barrett v.
Harrington, 130 F.3d 246 (6th Cir. 1977). We believe that
Plaintiffs have adduced substantial evidence in support of
each element.
First, Plaintiffs have clearly established that they were
engaged in constitutionally protected conduct. The First
Amendment protects speech that may be “fairly characterized
as constituting speech on a matter of public concern.”
Chappel v. Montgomery County Fire Protection Dist. No. 1,
131 F.3d 564, 573 (6th Cir. 1997). “In order to conclude that
speech addresses a matter of public concern, ‘this court must
be able to fairly characterize the expression as relating to any
matter of political, social, or other concern to the
community.’” Id. at 574 (citation omitted).

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