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Archer v. Chisholm

United States District Court, E.D. Wisconsin

May 26, 2016

JOHN CHISHOLM, et al., Defendants.


          LYNN ADELMAN District Judge

         The plaintiff Cynthia Archer, who was an aide to Scott Walker when he was Milwaukee County executive and, briefly, second in command at the Department of Administration when Walker was elected governor of Wisconsin, brings this § 1983 action against Milwaukee County District Attorney John Chisholm and several of his assistants and investigators. Before me now are several motions brought by the defendants including motions to dismiss based on immunity and a motion regarding the custody of records potentially relevant to the case. The case arises out of two highly publicized criminal investigations. To fully understand the issues presented, it is helpful to have some understanding of the case’s context. Thus, before analyzing the pending motions, I will briefly summarize the background of the case.

         I. Background

         The investigations in question were John Doe investigations (hereinafter “John Doe I” and “John Doe II”). A John Doe investigation is a secret investigation conducted by a prosecutor somewhat like a grand jury investigation. Wisconsin courts have conducted John Doe-type investigations since before Wisconsin became a state. State v. Washington, 83 Wis.2d 808, 819 (1978) (noting that John Doe proceedings were first developed in 1839). A John Doe investigation must be authorized by a judge, and it is supervised by a judge. See Wis. Stat. §§ 968.02-04. Like a grand jury investigation, a John Doe’s principal advantage as an investigative tool is that it enables prosecutors to compel testimony from citizens who might decline to provide it voluntarily. Washington, 83 Wis.2d at 822-23.

         John Doe I began in 2010, when Walker was Milwaukee County executive. Chisholm and his assistants conducted the investigation. The investigation began with an inquiry into the misappropriation of funds from a veterans’ charity and subsequently uncovered evidence of an unlawful campaign fundraising operation being run out of Walker’s office. Chisholm’s office convicted six people of crimes, including three of Walker’s staff members all charged with doing campaign work on government time.

         Tim Russell, a former deputy chief of Walker’s staff, pleaded guilty to stealing from the veterans’ charity and was sentenced to two years in prison and 5 years of extended supervision. See State v. Russell, No. 12-CF-053 (Milwaukee Cty., Wis. filed Jan. 5, 2012). Kelly Rindfleisch, another Walker aide, was sentenced to six months in jail after pleading guilty to felony misconduct in office for doing fundraising work on county time. See State v. Rindfleisch, No. 12-CF-438 (Milwaukee Cty., Wis. filed Jan. 26, 2012). Darlene Wink, who was in charge of constituent services, pleaded guilty to two misdemeanor counts of political solicitation by a public employee for doing campaign work while being paid by county taxpayers. See State v. Wink, No. 12-CM-579 (Milwaukee Cty., Wis. filed Jan. 26, 2012). Other individuals were also convicted. Kevin Kavanaugh, the treasurer of the veterans’ charity, was found guilty of felony theft and sentenced to 2 years in prison and 2 years of extended supervision. See State v. Kavanaugh, No. 12-CF-052 (Milwaukee Cty., Wis. filed Jan. 5, 2012). William Gardner, owner of the Wisconsin & Southern Railroad Co., pleaded guilty to making excessive political contributions and intentionally unlawful political contributions after the investigation discovered that he was contributing to Walker’s gubernatorial campaign through other people. See State v. Gardner. No. 11-CF-137 (Washington Cty., Wis. filed Apr. 11, 2011). Finally, Brian Pierick, Russell’s boyfriend, was found guilty of intentionally contributing to the delinquency of a child. See State v. Pierick, No. 12-CF-022 (Waukesha Cty., Wis. filed Jan. 5, 2012).

         John Doe I also involved an investigation into the bidding process for county projects. After being notified of impropriety in the process, the defendants investigated whether county officials were giving companies associated with John Hiller, the treasurer of Walker’s gubernatorial campaign committee, special advantages. In the course of the investigation, the defendants learned that the plaintiff had communicated with Hiller about bid proposals. See Answer Ex. 11 (ECF No. 19-11) (search warrant and affidavit for the plaintiff’s office); Ex. 18 (ECF No. 19-18) (search warrant and affidavit for the plaintiff’s home). Pursuant to search warrants, the defendant investigators searched her office in the Milwaukee County courthouse and subsequently her home in Madison. After the search of her home, the plaintiff cooperated with the investigation, received immunity, and was not charged with any offense. See Am. Compl. ¶ 165 (ECF No. 17).

         In November 2010, Walker was elected governor, and in 2011, the legislature enacted his controversial proposal regarding public employee unions known as Act 10. This legislation sparked a number of recall elections in which Democrats attempted to unseat Walker and several state senators. John Doe I unearthed evidence indicating unlawful coordination between Walker’s campaign committee and supposedly independent groups such as the Wisconsin Club for Growth (“WiCFG”) and Wisconsin Manufacturers and Commerce (“WMC”) during the 2012 recall election campaign. Long-standing Wisconsin law provided that if a candidate’s committee coordinated campaign activities with a supposedly independent group, spending by the independent group had to be treated as a campaign contribution subject to reporting laws. Wis. Coal. for Voter Participation, Inc. v. State Elections Bd., 231 Wis.2d 670, 681 (Ct. App. 1999). Federal law is to the same effect. O’Keefe v. Chisholm, 769 F.3d 936, 941 (7th Cir. 2014). In the context of Walker’s campaign, this meant that the applicable contribution limit would have been greatly exceeded.

         In the fall of 2012, the evidence of unlawful coordination led a judge to authorize John Doe II.[1] John Doe II commenced in Milwaukee County, and its purpose was to explore the matter of the unlawful coordination. It soon became clear that individuals residing outside Milwaukee County were potential subjects of the investigation. Thus, in January 2013, because of the scope of the investigation, Chisholm, a Democrat, asked J.B. Van Hollen, the Republican attorney general of Wisconsin, to take over the investigation. Citing possible conflicts, Van Hollen declined. Compl. Ex. B, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014) (letter from J.B. Van Hollen declining involvement in the John Doe II investigation).[2] Van Hollen did, however, recommend that the Government Accountability Board (“GAB”), a six-member board consisting of retired non-partisan judges which was responsible for regulating Wisconsin elections, get involved. Id. In June 2013, after reviewing the evidence, the GAB voted to join the investigation. The Board’s chair, a former Republican legislator, noted that the Board had been presented with “credible, hard evidence that the law had been violated.” Letter from Hon. Gerald C. Nichol, Chair, Government Accountability Board, to Hon. Robin Vos, Wisconsin state representative (Jan. 22, 2015).[3] Because the individuals being investigated in John Doe II lived in at least five counties, five district attorneys became involved, including Republicans and Democrats. At the request of these district attorneys, the supervising judge appointed a special prosecutor, Francis Schmitz, to run the investigation. Schmitz was a long time federal prosecutor and a Republican who in one filing disclosed that he had voted for Walker in the recall election. See Def. Schmitz’s Suppl. Opp’n to Pls.’ Mot. for Prelim. Inj. at 15, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Apr. 15, 2014).

         Documents inadvertently unsealed by the court provide an indication of the kind of evidence that had been uncovered regarding unlawful coordination. The evidence had led Schmitz to conclude that Walker and several Republican operatives were involved in an expansive “criminal scheme” to evade campaign finance disclosure laws by coordinating with WiCFG and other organizations. Compl. Ex. C at 12-18, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014) (state’s consolidated response to motions to quash a subpoena in John Doe II).[4] The evidence included:

- emails from Walker’s staff advising him to “[s]tress that donations to WiCFG are not disclosed” and to tell donors “that you can accept corporate donations and it is not reported;”
- a $1 million deposit into WiCFG from Stephen Cohen, founder of SAC Capital Advisers, shortly after Walker was scheduled to meet with an SAC representative;
- a March 2012 email from Walker to his fundraiser stating that “Bruce and Susie Kovner said that they want to give more” and 10 days later a $50, 000 check from Bruce Kovner arrived in WiCFG’s account. The check’s memo line read “501c4-Walker;” and
- a 2012 email from Walker’s fundraiser to Walker regarding “meetings to make happen while in Sea Island . . . Paul Singer: Grab him.” A few months later, $250, 000 was deposited into WiCFG’s account from Singer.

Def. Schmitz’s Suppl. Opp’n to Pls.’ Mot. for Prelim. Inj. at 4-6, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Apr. 15, 2014).[5]

         The evidence uncovered also indicated that some of the secret contributors to WiCFG appear to have subsequently benefited from state action. Pet. for a Writ of Cert. at 8, Chisholm v. Two Unnamed Petitioners, 15-1416 (U.S. Supreme Ct. May 23, 2016). For example, John Menard, who runs a chain of big box stores in Wisconsin, contributed $1.5 million to WiCFG. Id. at 9. Subsequently Menard’s company was awarded up to $1.8 million in tax credits from a state economic development corporation chaired by Walker. Id. Another contributor to WiCFG was a mining company, Gogebic Taconite LLC, which wanted to open a large open-pit iron mine and secretly gave $700, 000 to WiCFG. Id. at 8-9. Soon after the 2012 recall and general elections, the legislature passed the bill easing environmental regulations that Gogebic sought, id., and Walker signed it.

         Regarding unlawful coordination, the special prosecutor also uncovered evidence indicating that the same individual, R.J. Johnson, was running both Walker’s campaign committee and a supposedly independent outside group. Compl. Ex. C at 7-9, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014).[6]

         The opponents of the John Doe investigations launched a full blown campaign against the investigations and against the defendants. Led by WiCFG director, Eric O’Keefe, the John Doe opponents brought four separate lawsuits, including the present action, challenging the defendants’ conduct. Represented by David Rivkin of the Washington D.C. office of Baker and Hostetler, who also represents the plaintiff in the present case, O’Keefe sued the prosecutors, Schmitz and Chisholm, in federal court[7] and also brought an original action challenging John Doe II in the state supreme court.[8]In addition, O’Keefe sued the GAB in circuit court in Waukesha County.[9]

         In their court filings, the opponents of John Doe II did not deny that Walker and WiCFG had coordinated. Rather, they asserted that the First Amendment barred applying anti-coordination laws to groups like WiCFG that only presented “issue ads, ” ads that stopped short of expressly telling viewers how to vote. See, e.g., Compl. ¶ 197, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014). This legal position directly contradicted Wisconsin case law which held that expenditures for issue advocacy “that are ‘coordinated’ with, or made ‘in cooperation with or with the consent of a candidate . . . or an authorized committee’ [are treated] as campaign contributions.” Wis. Coal. for Voter Participation, Inc., 231 Wis.2d at 681 (quoting Buckley v. Valeo, 424 U.S. 1, 46-47 (1976)); Wis. El. Bd. Op. 00-02 (reaffirmed Mar. 26, 2008). See also McConnell v. Fed. Election Comm’n, 540 U.S. 93, 202-03 (2003) (rejecting the idea that federal campaign finance statutes are limited “such that coordinated expenditures for communications that avoid express advocacy cannot be counted as contributions”).

         In his suit in federal court, O’Keefe sought to enjoin John Doe II, alleging that the prosecutors initiated it to retaliate against Walker’s opponents in violation of the First Amendment. The Seventh Circuit, however, rejected O’Keefe’s claim, stating that neither the Supreme Court nor any court of appeals had ever held that the First Amendment forbids regulation of coordination between campaign committees and issue advocacy groups, let alone an inquiry into that topic. O’Keefe, 769 F.3d at 942.

         O’Keefe and the other John Doe II opponents fared better in the original action that they brought in the state supreme court. In a 4-2 decision that broke along ideological lines, the Wisconsin supreme court shut the investigation down. The court adopted the theory put forward by the opponents of the investigation, that the First Amendment barred the John Doe II prosecutors from applying Wisconsin’s anti-coordination law to entities like WiCFG which only spent money on issue ads. State ex rel. Two Unnamed Petitioners v. Peterson, 363 Wis.2d 1 (2015). The decision overturned years of precedent and practice in Wisconsin. Justices Abrahamson and Crooks separately dissented. The prosecutors filed a petition for a writ of certiorari in the United States Supreme Court, which is presently pending.

         The plaintiff now brings this lawsuit against the defendants alleging violations of her civil rights, including First Amendment retaliation claims and numerous Fourth Amendment claims.

         II. Immunity

         The prosecutor and investigator defendants filed motions to dismiss based on immunity from liability for damages. I turn now to these motions. Where, as here, immunity is raised as an affirmative defense in a motion to dismiss, I consider only the facts alleged in the complaint, which I accept as true. Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997). While I have cited other public documents in outlining the background of the case, in addressing the pending motions, I consider only the plaintiff’s allegations.

         State actors who are defendants in § 1983 cases may be entitled to absolute or qualified immunity. The purpose of the immunity doctrine is to shield public officials from retaliatory litigation and the threat of such litigation so that they are not inhibited or otherwise precluded from doing their jobs properly. See Imbler v. Pachtman, 424 U.S. 409, 422-23, 428 (1976) (noting that the purposes underlying absolute immunity “include concern [about] harassment by unfounded litigation” and “the possibility that [a public official] would shade his decisions instead of exercising the independence of judgment required”); Davis v. Scherer, 468 U.S. 183, 195 (1984) (stating that the purpose of qualified immunity is to allow officials to “act without fear of harassing litigation”).

         Prosecutors are entitled to absolute immunity “for conduct that is functionally prosecutorial.” Bianchi v. McQueen, No. 14-1635, 2016 WL 1213270, at *4 (7th Cir. 2016). “This immunity is understood to broadly cover all conduct associated with the judicial phase of the criminal process.” Id. Prosecutors are also absolutely immune for administrative and investigatory conduct that “relate[s] to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

         Judicial proceedings are not limited to trials but rather include “‘any hearing before a tribunal which perform[s] a judicial function.’” Burns v. Reed, 500 U.S. 478, 489-90 (1991) (quoting W. Prosser, Law of Torts § 94, at 826-27 (1941)). Thus, prosecutors have absolute immunity for “initiating a prosecution and in presenting the State’s case, ” Imbler, 424 U.S. at 431; appearing at a probable cause hearing for a search warrant, Burns, 500 U.S. at 487; evaluating evidence assembled by police, Buckley, 509 U.S. at 273; preparing for trial or a grand jury appearance, id.; and applying for an arrest warrant, Thomas v. City of Peoria, 580 F.3d 633, 639 (7th Cir. 2009) (citing Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997)). In determining whether a particular action is entitled to absolute immunity, I consider its function and whether such function is “intimately associated” with the judicial rather than investigation phase of criminal proceedings. Buckley, 509 U.S. at 269-70 (citations omitted).

         If a state actor is not entitled to absolute immunity, she may still be entitled to qualified immunity. She is entitled to qualified immunity unless (1) the plaintiff plausibly pleads that she violated a constitutional right, and (2) the constitutional right was clearly established at the time of the alleged violation. Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012). In determining whether a plaintiff has plausibly pled a claim, I assume that all of the factual allegations in the complaint are true, and I draw all reasonable inferences in the plaintiff’s favor. Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014). Because qualified immunity is meant to spare public officials from the burdens of litigation, it “should be resolved at the earliest possible stage of litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). If a defendant asserts that she is entitled to qualified immunity, the plaintiff bears the burden of defeating the immunity claim. Betker, 692 F.3d at 860. I turn now to the immunity issue insofar as it relates to each of the plaintiff’s claims.

         A. Fourth Amendment Search Claims

         The plaintiff alleges that the searches of her office in the Milwaukee County courthouse and of her home violated the Fourth Amendment. The defendants obtained search warrants for both of the searches. The plaintiff’s response to the existence of the warrants is to challenge their validity. In order to prevail on her challenge, the plaintiff had to have a legitimate expectation of privacy in the space covered by the warrant. Rakas v. Illinois, 439 U.S. 128, 143 (1978). This depends on 1) whether the plaintiff exhibited an actual expectation of privacy, and 2) whether her expectation was reasonable. United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007).

         With respect to the search of her county office, both the plaintiff’s allegations and the office warrant[10] establish that at the time the warrant was obtained and executed the plaintiff was no longer employed by Milwaukee County. The plaintiff alleges that in November 2010, she left county employment and joined Walker’s gubernatorial transition team. Am. Compl. ¶ 23 (ECF No. 17). She further alleges that the defendants did not obtain the warrant until December. Id. ¶ 104. The affidavit supporting the warrant indicates that the plaintiff officially left county employment on December 10, and the warrant was issued on December 17. Answer Ex. 11 at 7 (ECF No. 19-11). Because the plaintiff was no longer employed by the county when the warrant was executed, she abandoned the county office and computer previously issued to her and no longer had a legitimate expectation of privacy in them. See United States v. Procknow, 784 F.3d 421, 426-27 (7th Cir. 2015) (concluding that a person who checks out of a hotel no longer has a privacy interest in his hotel room). Thus, the plaintiff fails to plausibly plead a Fourth Amendment claim relating to the search of her office.

         1. Absolute immunity

         With respect to the search of her home, I first note that most, if not all, of the plaintiff’s allegations against the prosecutor defendants can be resolved quickly. As discussed, to the extent that the plaintiff’s allegations involve the prosecutors’ representations to the John Doe judge to obtain the search warrants, the prosecutors are entitled to absolute immunity, Burns, 500 U.S. at 487, even if they acted maliciously or misrepresented facts, id. at 485. The rest of the plaintiff’s allegations concern the execution of the warrant, and she does not allege that the prosecutor defendants took part in this process. Under § 1983, the prosecutor defendants may be held liable only for personal conduct. Gossmeyer, 128 F.3d at 495 (7th Cir. 1997). Thus, they have no liability for the search of the plaintiff’s home.

         2. Qualified immunity - validity of warrant

         Turning to qualified immunity, again, to overcome qualified immunity the plaintiff must plausibly allege that the defendants violated a constitutional right, and that the right was clearly established at the time of the violation. The plaintiff does not meet this burden because she fails to plausibly allege that the defendants violated her Fourth Amendment rights in any respect.

         The plaintiff first attacks the validity of the search warrant for her home. In order for a search warrant to be valid, it must (1) be issued by a neutral, disinterested magistrate; (2) establish probable cause that the evidence sought will aid in obtaining a conviction of a particular offense; and (3) particularly describe the things to be seized and the place to be searched. Dalia v. United States, 441 U.S. 238, 255 (1979). Even where a warrant is invalid for one of these reasons, an officer ordinarily acts reasonably, and is therefore entitled to qualified immunity, if the warrant is judicially-authorized. Malley v. Briggs, 475 U.S. 335, 344-45 (1993); United States v. Leon, 468 U.S. 897, 920-21 (1984); Junkert v. Massey, 610 F.3d 364, 369 (7th Cir. 2010). An officer is not expected to question a judicial determination. Leon, 468 U.S. at 920-21. Only where it is objectively unreasonable for an officer to rely on a judicially-approved warrant will qualified immunity be withheld. These situations include: (1) where the judge was misled by false or reckless information, (2) where the magistrate wholly abandoned his judicial role, (3) where the warrant totally lacked the indicia of probable cause, and (4) where the warrant was facially deficient as for example being insufficiently particularized. Id. at 923.

         a. Neutral magistrate

         The plaintiff first contends that the John Doe I judge, Neal Nettesheim, a long time Wisconsin circuit and appellate court judge, was not a neutral magistrate but acted as a “‘rubber stamp’ for the Defendants’ agenda and made no effort to scrutinize the legal or factual basis for the requested warrants and subpoenas.” Am. Compl. ¶ 78. Of course, a John Doe judge “must conduct himself as a neutral and detached magistrate.” Washington, 83 Wis.2d at 824 (internal quotations and citation omitted). This “require[s] severance and disengagement from activities of law enforcement.” Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). However, a judge is presumed to be neutral and detached. See Aleman v. Honorable Judges of Circuit Court of Cook Cty., 138 F.3d 302, 307 (7th Cir. 1998). The plaintiff’s “rubber stamp” allegations concerning Judge Nettesheim are conclusory and merely appropriate language from the Leon case. See Leon, 468 U.S. at 914. The plaintiff provides no allegations of fact in support of her assertion that Judge Nettesheim was biased or not neutral. See Shadwick, 407 U.S. at 350-51 (concluding that plaintiff failed to impeach a magistrate’s neutrality because he made “no showing whatsoever . . . of partiality, or affiliation of [the magistrate] with prosecutors or police”). Thus, her claim that Judge Nettesheim was not a neutral magistrate fails. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that conclusory allegations in a complaint may be disregarded).

         b. ...

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