United States District Court, W.D. Wisconsin
THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., Plaintiff,
FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, ROBERT STELTER, in their official and individual capacities, KEVIN KENNEDY, SHANE FALK, and JONATHAN BECKER, in their individual capacities, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
civil action, The John K. MacIver Institute for Public
Policy, Inc., purports to assert class claims against various
state actors, alleging that they violated the Stored
Communications Act (“SCA”), 18 U.S.C. §
2701, et seq., by seizing electronic information
pursuant to search warrants issued by a County Circuit Court
Judge during the course of a Wisconsin John Doe proceeding.
Before the court are defendants' motions to dismiss this
case in its entirety, on grounds of absolute and qualified
immunity, as well as statutory defenses under the SCA. (Dkt.
##65, 68.) For the reasons explained below, those motions
will be granted. For the same reasons, the court will also
deny plaintiff's motion for a preliminary injunction and
the return of its property (dkt. #88), and this case will be
is The John K. MacIver Institute for Public Policy, Inc.
(“MacIver”), a Wisconsin 501(c)(3) non-profit
with its principal office in Dane County, Wisconsin. (Am.
Compl. (dkt. #10) ¶ 4.) During the time period relevant
to this lawsuit, defendant Francis Schmitz was a special
investigator for the Wisconsin Government Accountability
Board (“GAB”) and was later appointed as a
special prosecutor in the John Doe investigation.
(Id. at ¶ 5.) As such, Schmitz was allegedly
responsible for the daily operations of the investigation,
including obtaining search warrants and subpoenas.
John Chisholm is the Milwaukee County District Attorney, who
allegedly played a supervisory role in directing the
investigation. (Id. at ¶ 6.) Both defendants
Bruce Landgraf and David Robles are Milwaukee County
Assistant District Attorneys, who allegedly played a role in
the John Doe investigation, including signing and notarizing
at least one of the search warrant applications involved in
this case. (Id. at ¶ 7.) In addition, defendant
Robert Stelter is an investigator for the Milwaukee County
District Attorney's Office, who allegedly signed multiple
affidavits supporting requests for warrants and subpoenas
from the John Doe court. (Id. at ¶ 8.)
Plaintiff brings claims against defendants Schmitz, Chisholm,
Landgraf, Robles and Stelter in both their official and
individual capacities, Finally, defendant Kevin Kennedy was
the Director and General Counsel of GAB. (Id. at
¶ 9.) Along with District Attorney Chisholm, plaintiff
alleges that he directed the John Doe investigation.
(Id.) Defendant Jonathan Becker was the
Administrator of the Ethics and Accountability Division of
the GAB and allegedly a principal member of the investigative
team. (Id. at ¶ 10.) Shane Falk, a GAB staff
attorney, allegedly was another core member of the
investigative team who reviewed drafts of subpoena and search
warrant applications. (Id. at ¶ 11.) Plaintiff
brings claims against defendants Kennedy, Falk and Becker in
their individual capacities only.
John Doe Proceedings
Wisconsin, a John Doe proceeding is “intended as an
independent, investigatory tool used to ascertain whether a
crime has been committed and if so, by whom.” In re
John Doe Proceeding, 2003 WI 30, ¶ 22, 260 Wis.2d
653, 660 N.W.2d 260 (2003). If the John Doe judge determines
that probable cause exists, he or she “may order that a
criminal complaint be reduced to writing.” In re
John Doe, 2009 WI 46, ¶ 17, 317 Wis.2d 364, 766
N.W.2d 542. In presiding over a John Doe proceeding, the
judge “serves essentially a judicial function”
and has the responsibility “to utilize his or her
training in constitutional and criminal law and in courtroom
procedure in determining the need to subpoena witnesses
requested by the district attorney, in presiding at the
examination of witnesses, and in determining probable
cause.” State v. Washington, 83 Wis.2d 808,
823, 266 N.W.2d 597 (1978) (footnote omitted). Therefore, a
John Doe judge “must act as a neutral and detached
magistrate.” State ex rel. Reimann v. Circuit Court
for Dane Cty., 214 Wis.2d 605, 625, 571 N.W.2d 385 (Wis.
Doe proceedings in Wisconsin originally arose out of state
common law, dating back to at least 1889, but they have since
been codified in the “John Doe statute, ”
Wis.Stat. § 968.26. Reimann, 214 Wis.2d at 620
n.9, 571 N.W.2d at 390 n.9. By statute, a John Doe proceeding
is presided over by a “judge, ” not including a
“permanent reserve judge” or a “temporary
reserve judge.” Wis.Stat. § 968.26(b); see
also State ex rel. Newspapers, Inc. v. Circuit Court for
Milwaukee Cty., 65 Wis.2d 66, 70-71, 221 N.W.2d 894
(1974) (“The John Doe statute was amended in 1969 to
require that the proceedings be conducted by a judge, meaning
a judge of a court of record, rather than a
magistrate.”). A John Doe judge has the express
authority to issue search warrants, including for electronic
information. See Wis. Stat. § 967.02(2m)
(defining “judge” as a “judge of a court of
record”); Wis.Stat. § 968.12 (defining a search
warrant as “an order signed by a judge”);
Wis.Stat. § 968.375(3)(a) (providing that a
“judge” can issue a search warrant for electronic
information upon a showing of probable cause); see
also Wis. Stat. § 967.02(1t) (defining
“court” as “the circuit court unless
otherwise indicated”). Less clear under Wisconsin law,
however, is whether a John Doe judge acts as a
“tribunal, ” as opposed to a “court,
” and therefore whether “an order issued by a
John Doe judge is not an order of a ‘circuit court'
or a ‘court of record.'” In re John Doe
Proceeding, 2003 WI 30 at ¶ 23.
Wisconsin Supreme Court recently provided a descriptive
overview of the function and value of a John Doe proceeding:
[F]rom the earliest stages of the proceeding, to the
conclusion of the investigation, “[t]he proceedings of
the John Doe are constantly under the scrutiny of a
judge.” Doe, 78 Wis.2d at 165, 254 N.W.2d 210.
The John Doe judge does not act as “chief
investigator” or as a mere arm of the prosecutor.
Washington, 83 Wis.2d at 823, 266 N.W.2d 597.
Rather, the John Doe judge serves as a check on the
prosecutor and on the complainant to ensure that the
subject(s) of the investigation receive(s) due process of
law. See Doe, 78 Wis.2d at 164-65, 254 N.W.2d 210.
In this way, Wisconsin's John Doe proceeding is very
different than a grand jury, and when conducted
appropriately, provides much greater protections to the
target of an investigation. Id. at 165, 254 N.W.2d
210. This is due in no small part to the role played by the
John Doe judge, which is to ensure that the investigation
stays focused on the conduct alleged in the petition to
commence the John Doe proceeding. Washington, 83
Wis.2d at 841-42, 266 N.W.2d 597. . . .
. . . .
. . . . Thus, “[a] John Doe proceeding . . . serves
both as an inquest into the discovery of crime and as a
screen to prevent ‘reckless and ill-advised'
prosecutions.” Reimann, 214 Wis.2d at 621, 571
N.W.2d 385 (citation omitted).
State ex rel. Two Unnamed Petitioners v. Peterson,
2015 WI 85, ¶¶ 363 Wis.2d 1, 866 N.W.2d 165');">866 N.W.2d 165.
Stored Communications Act
federal law, the SCA permits “a governmental
entity” to require the disclosure of certain
information from a provider of an electronic communication
service or remote computing service depending on the facts
and procedures. 18 U.S.C. § 2703. At the same time, a
“person aggrieved” by a violation of the SCA may
bring a civil action seeking damages and other equitable or
declaratory relief. 18 U.S.C. § 2707. Plaintiff alleges
that defendants violated 18 U.S.C. §§ 2703(a), (b)
and (c) by seizing contents of its electronic communications
under search warrants issued by a John Doe judge, without
providing plaintiff notice of those seizures. The differences