United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge
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.
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.
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.
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.
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).
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.
fall of 2012, the evidence of unlawful coordination led a
judge to authorize John Doe II. 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). 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). 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).
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). The evidence
- 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).
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.
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).
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 and also brought an original action
challenging John Doe II in the state supreme
court.In addition, O’Keefe sued the GAB in
circuit court in Waukesha County.
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
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.
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.
plaintiff now brings this lawsuit against the defendants
alleging violations of her civil rights, including First
Amendment retaliation claims and numerous Fourth Amendment
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
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
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).
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
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
Fourth Amendment Search Claims
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).
respect to the search of her county office, both the
plaintiff’s allegations and the office
warrant 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.
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
Qualified immunity - validity of warrant
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.
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.
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).