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Archer v. Chisholm

United States Court of Appeals, Seventh Circuit

August 29, 2017

Cynthia Archer, Plaintiff-Appellant,
v.
John T. Chisholm, et al, Defendants-Appellees.

          Argued January 6, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:15-cv-00922-LA - Lynn Adelman, Judge.

          Before Wood, Chief Judge, and Bauer and Rovner, Circuit Judges.

          WOOD, Chief Judge.

         While Governor Scott Walker was leading the charge for controversial changes to Wisconsin's public union laws, plaintiff-appellant Cynthia Archer was at his side, drafting the law and advocating for its passage. At the same time, the Milwaukee County State's Attorney's Office was investigating allegations of misconduct against Archer and several of the governor's close associates, using Wisconsin's unique "John Doe" procedure. Archer sees a connection between the legislative campaign and the John Doe investigation. She alleges that she was targeted because of her work on the union bill and her affiliation with Governor Walker. Although Archer was never charged with wrongdoing, she filed this section 1983 action against three prosecutors and three members of the investigative team. The district court dismissed the case on the basis of immunity. We affirm.

         I

         As Archer tells it (and that is the perspective we adopt at this stage), this case is about a top Republican policy staffer who was dragged unfairly into a criminal investigation by members of a rabidly political prosecutor's office. The story begins in 2006, when Archer joined Milwaukee County Executive Scott Walker's administration as the budget director for the Department of Administrative Services. Archer was no government neophyte; she had served before, usually in Republican administrations. Two years later, Walker promoted Archer to Director of Administrative Services. There she played a key role in developing and implementing Walker's policies. She was well suited for the work, thanks to her master's degree in public policy and administration and her policy experience. Walker, a Republican, launched his bid for governor in April 2009.

         In May 2010, with the gubernatorial campaign underway, Milwaukee County District Attorney John Chisholm's office began investigating activities in Walker's Milwaukee County Executive's office. The impetus for the investigation was a report from Thomas Nardelli, Walker's chief of staff, concerning some money that the county had given to a non-profit and that had since vanished. Nardelli had reported the missing money to David Budde, an investigator in the Milwaukee D.A.'s office (and a defendant-appellee here), back in April 2009. His report stated that the county had asked the recipient charity to document how the money was spent, but it failed to submit a satisfactory accounting. Nardelli identified the charity's treasurer, Kevin Kavanaugh, as the likely thief.

         To get the investigation started, Assistant D.A. Bruce Landgraf asked a state judge to open a "John Doe" investigation into the missing charity funds, although the purpose of his investigation was not limited to that topic. A "John Doe" is a unique Wisconsin device that permits the prosecutor, under the supervision and direction of a judge, to conduct a secret investigation. Wis.Stat. § 968.26; State ex rel. Two Unnamed Petitioners v. Peterson, 866 N.W.2d 165, 197-99 (Wis. 2015). After the proceeding is opened, the John Doe judge may issue subpoenas and examine witnesses. State v. Doe, 254 N.W.2d 210, 211 n.l (Wis. 1977). The Wisconsin Supreme Court believes that, if conducted appropriately, the John Doe process "provides much greater protections to the target of an investigation" than other types of investigations, because the supervising judge acts as a check on the prosecutor. Two Unnamed Petitioners, 866 N.W.2d at 198. In this case, the petition for the John Doe investigation said that it was "reasonable to expect" that county officials, including those from the county executive's office, would be witnesses.

         The John Doe investigation expanded several times as it uncovered evidence of wrongdoing, including illegal campaign fundraising and anomalies in the bidding process for two county projects (a 2009 housekeeping contract and a 2010 lease for agency space at a building known as Reuss Plaza).

         The bidding investigation was exploring whether county officials were giving companies associated with Walker's campaign treasurer, John Hiller, an improper advantage. Along the way, D.A. Chisholm's office learned that Archer had communicated with members of Walker's inner circle, including Hiller, about bid proposals. In December 2010, after Walker was elected governor but before he had taken office, the defendants searched Archer's county office pursuant to a search warrant.

         By that point, Archer had left her position with the county. Walker had invited her to join his transition team and had appointed her Deputy Secretary of Administration. The deputy secretary job was a high-ranking political position; its head drafted policy and oversaw state departments. Walker hired Archer because of her experience working on his policies in the county office.

         Soon after Walker became governor, he began advocating for legislation that would significantly weaken bargaining rights for public sector unions. He announced a legislative proposal in February 2010. Public protests and national headlines followed. At the same time, Archer was playing a lead role crafting legislation. This sort of policy work was not inherent in her position as deputy secretary, but she took the initiative to participate in the drafting and implementation process of what became known as Act 10. She advised the governor and other members of the staff about the bill and became a self-described point person for fielding questions from lawmakers and other officials. The law passed in early March. Recall campaigns targeting some lawmakers and Governor Walker followed.

         While the State Capitol was focused on the public union legislation, the John Doe investigation rolled on. By this time, Archer says, the Milwaukee County D.A.'s Office had "bec[o]me a hotbed of pro-union, anti-Act 10, and anti-Walker activity." D.A. Chisholm had been a vigorous opponent of Walker for years, ever since Walker's stint as county executive. (The Milwaukee District Attorney is an elected office, and Chisholm had run as a Democrat.) Archer asserted that Chisholm had promoted Landgraf and David Robles, assistant district attorneys, "at least in part" because they shared Chisholm's political views; she makes the same claim for the three detective defendants-David Budde, Robert Stelter, and Aaron Weiss.

         The John Doe investigation, Archer alleges, was a veiled attempt by the defendants to stop Walker and harass his allies. (Although she claims that D.A. Chisholm's office had conducted "a continuous campaign of harassment and intimidation" against Walker's allies since at least May 2010, she alleges facts concerning only the defendants' opposition to Act 10.) All six defendants worked on the John Doe investigation in some capacity. And although the John Doe proceeding was being conducted under the judge's secrecy order, word of it seeped out to the news media. Archer believes that this, too, was the work of the defendants, who leaked information in order to sully Archer's reputation.

         The efforts to stop Act 10 failed, and it became law on March 11, 2011. Six months later, the defendants sought and received from the John Doe judge a search warrant for Archer's home in Madison. The application was supported by a 33-page affidavit from investigator Stelter. As relevant here, the affidavit described the investigation and the facts Stelter believed gave rise to probable cause that Archer and others had violated a handful of laws, including the state's statute addressing misconduct in public office, an ethics code, and the prohibition against solicitation. It also listed the Wisconsin statute under which aiders, abetters, and co-conspirators are treated as principals. Stelter added that Archer had sent notes regarding a contract from her personal e-mail account and had communicated with other Walker allies about the projects. The affidavit identified, as materials to be seized, "all documents, e-mails, records, correspondence, and information" relating to the Reuss Plaza and housekeeping contracts, as well as "any computer or electronic communication device of Archer related to the above including a search of the documents within said computer or device."

         The John Doe judge authorized the search warrant on September 13, 2011, and the D.A.'s office executed it early the next day. It was so early, in fact, that Archer was sleeping when officers arrived. Their tactics were rough; they "thunderous[ly] hammered on her front door" and shouted that she had to open it or they would break it down. Archer saw a battering ram on her lawn. Panicked, she ran downstairs and quickly got dressed in the officers' line of sight. When she opened the door, the officers entered with their guns drawn and proceeded to search every nook and cranny. Just after the search began, Archer noticed a reporter standing on the sidewalk outside her home; other reporters showed up later. The search was widely reported.

         The search lasted several hours. During this time, the officers prohibited Archer and her partner from leaving the house, even though her partner needed to get to work. Detective Weiss attended and supervised the operation. He allegedly told Archer that the investigation was "politically charged" and "touched a lot of people." Officers seized Archer's computer and cell phone; when Archer asked to copy her brother's phone number from her cell phone contacts list, the officers refused.

         After the search, Archer was interviewed several times, including by Stelter and Budde, as part of the John Doe investigation. She was granted immunity, however, and she never was charged with any crimes. But at least four people were convicted as a result of the investigation, including some members of Walker's staff who had violated state campaign finance and fundraising laws. Walker's former deputy chief of staff, Tim Russell, pleaded guilty to stealing from the charity, and Kavanaugh, the charity's treasurer, was convicted of felony theft.

         Those convictions did not exhaust the investigation. Along the way, the D.A.'s office unearthed evidence suggesting unlawful coordination during the recall effort between Walker's gubernatorial campaign committee and "independent" political groups, including the Wisconsin Club for Growth. Based on this evidence, Chisholm's office sought from a Wisconsin judge, and was granted, the authority to begin a second John Doe investigation ("John Doe II"). The second investigation did not concern Archer, but it is relevant to a document preservation issue in this case.

         John Doe II led to people outside Milwaukee County; they were beyond the reach of the John Doe II judge. D.A. Chisholm therefore asked Wisconsin's Attorney General, J.B. Van Hollen, to take over the entire matter. Van Hollen (a Republican) declined to do so because of possible conflicts, but he recommended that the state Government Accountability Board-the nonpartisan body in charge of state elections-take charge. It did so. A former Republican legislator on the Board later observed that the Board had been presented with "credible, hard evidence" of a violation of the law. In addition, the district attorneys for the other counties in which targets of the investigation resided also became involved. Eventually the John Doe II judge appointed a special prosecutor to run the operation.

         Targets of John Doe II, including the director of the Wisconsin Club for Growth, brought various lawsuits to try to shut it down. The one that matters for our purposes resulted in the Wisconsin Supreme Court's decision in Two Unnamed Petitioners, 866 N.W.2d 165 (Wis. 2015). There, the court held that the First Amendment prohibited the enforcement of Wisconsin's anti-coordination laws against entities such as the Wisconsin Club for Growth. The decision expressly ended John Doe II for the reason that "the special prosecutor's legal theory is unsupported in either reason or law." Id. at 179. It ordered the return of all seized items, and the destruction of "all copies of information and other materials" obtained. Id. But on December 2, 2015, the court modified its "destroy" directive, ordering instead that all records from John Doe II-including records from the first investigation that were used in the second investigation-be filed with the supreme court clerk; all other copies were to be destroyed. State ex rel. Three Unnamed Petitioners v. Peterson, 875 N.W.2d 49, 59-60 (Wis. 2015). The court reasoned that this was necessary to "ensure that the prosecution team would comply with the court's order" to stop the John Doe II investigation. Id. at 58. This meant that the records would be available in the event the investigation ever was allowed to proceed, and that they "could also potentially be available for use in related civil proceedings/' if the request and use was "proper under the circumstances." Id. at 61. It did not elaborate further.

         On July 1, 2015, while the John Doe cases were still before the Wisconsin Supreme Court, Archer filed the present suit against three prosecutors (Chisholm, Robles, and Landgraf, whom we call the Prosecutors), and three investigators (Stelter, Budde, and Weiss, whom we call the Investigators), in their personal capacities, under 42 U.S.C. § 1983. She alleged five constitutional violations: (1) retaliatory investigation, in violation of the First Amendment; (2) unreasonable search and seizure, in violation of the Fourth Amendment;(3)retaliatory arrest, in violation of the First Amendment; (4)false arrest in violation of the Fourth Amendment; and(5)conspiracy to violate civil rights. These actions, Archer argued, caused her great emotional distress, ranging from posttraumatic stress disorder to depression and ...


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