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The John K. MacIver Institute for Public Policy, Inc. v. Schmitz

United States District Court, W.D. Wisconsin

March 15, 2017

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.


          WILLIAM M. CONLEY, District Judge

         In this 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 dismissed.


         A. The Parties

         Plaintiff 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. (Id.)

         Defendant 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.

         B. John Doe Proceedings

         In 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. 1997).

         John 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.

         The 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.

         C. Stored Communications Act

         Under 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 ...

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