United States District Court, W.D. Wisconsin
BRETT LIEBERMAN, individually and on behalf of all others similarly situated, Plaintiff,
PORTAGE COUNTY, PORTAGE COUNTY SHERIFF'S OFFICE, PORTAGE COUNTY DISTRICT ATTORNEY'S OFFICE, MIKE LUKAS in his individual capacity, CORY NELSON in his individual capacity, DALE BOETTCHER in his individual capacity, JOHN DOE PORTAGE COUNTY SHERIFF'S OFFICE PERSONNEL in their individual capacities, and JOHN DOE PORTAGE COUNTY DISTRICT ATTORNEY'S OFFICE PERSONNEL in their individual capacities, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
a proposed class action in which plaintiff Brett Lieberman
alleges that staff at the Portage County jail recorded
confidential telephone conversations that he had with his
lawyers and then shared those recordings with the district
attorney's office, without obtaining his consent to do
either of those things. I screened Lieberman's complaint
in accordance with 28 U.S.C. § 1915A and allowed him to
proceed on claims under the Fourth Amendment, Sixth
Amendment, and the Wisconsin Electronic Surveillance Act,
Wis.Stat. § 968.31. But I directed him to show cause why
his claims under the Due Process Clause and the Wisconsin
Constitution and his claims against the Portage County
Sheriff's Office and the Portage County District
Attorney's Office should not be dismissed. Dkt. 7.
response, Lieberman concedes that his claims against the
Portage County Sheriff's Office and Portage County
District Attorney's Office should be dismissed and that
he cannot obtain damages for violations of the Wisconsin
Constitution. But he says that he should be allowed to
proceed on a claim under the Due Process Clause and on a
claims under the Wisconsin Constitution for declaratory and
injunctive relief. I agree and will allow him to proceed on
both types claims.
Substantive due process
directed Lieberman to show cause why his claim under the Due
Process Clause should not be dismissed under the principle
articulated in Childress v. Walker:
“plaintiffs should resort to the substantive guarantees
of the Due Process Clause for relief only when there is not a
particular Amendment that provides an explicit textual source
of constitutional protection against a particular sort of
government behavior.” 787 F.3d 433, 438-39 (7th Cir.
2015) (internal quotations and alterations omitted). It
appeared that Lieberman's substantive due process claim
was challenging the same conduct as his claims under the
Fourth Amendment and Sixth Amendment.
response, Lieberman says that his claims under the Fourth
Amendment and Sixth Amendment may cover recording of, storage
of, and listening to his attorney conversations, but not to
transmission of those conversations or their use in court.
Accordingly, I will allow Lieberman to proceed on this claim.
At summary judgment or trial, he will have to show both that
the Due Process Clause covers this claim and that
defendants' conduct “shocks the conscience.”
Cairel v. Alderden, 821 F.3d 823, 833-34 (7th Cir.
2016). Alternatively, he could show that defendants violated
his constitutional right of information privacy, which arises
under the Due Process Clause. Wolfe v. Schaefer, 619
F.3d 782, 784-86 (7th Cir. 2010)
faces an uphill battle under either theory. Palka v.
Shelton, 623 F.3d 447, 453-54 (7th Cir. 2010)
(“The threshold for this kind of due process claim is
high; many forms of governmental misconduct are
excluded.”); Wolfe, 619 F.3d at 784
(“The [Supreme] Court has never held that the
disclosure of private information denies due
process.”). But it would be premature to dismiss the
claim now without allowing the parties to develop their facts
and legal arguments.
directed Lieberman to show cause why his claims for
injunctive relief should not be dismissed in light of the
fact that he is no longer housed at Portage County jail. In
response, Lieberman says that defendants are still in
possession of recordings of his conversations, so he has
standing to seek the return or the destruction of those
recordings. Although it seems unlikely that jail staff are
continuing to store recordings from several years ago,
Lieberman is entitled to an opportunity to prove that
allegation. So I will allow him to proceed on his claims
under the Wisconsin Constitution for injunctive relief.
Plaintiff Brett Lieberman is GRANTED leave to proceed on a
claims that defendants: (1) violated the Due Process Clause
by transmitting and using privileged communication that
Lieberman had with his lawyer; and (2) violated Article 1,
§§ 7 and 11 of the Wisconsin Constitution by
recording and disclosing privileged communication that
Lieberman had with his lawyer.
Defendants Portage County Sheriff's Office and the
Portage County District Attorney's ...