Wiesmueller v. Nettesheim

Filing 14

ORDER signed by Judge Rudolph T. Randa on 6/23/2015. 7 Defendant's Motion to Dismiss GRANTED-IN-PART and DENIED-IN-PART. Further briefing directed by the Court (see Order for details); Plaintiff's brief due in 30 days; briefing to proceed in accordance with Civil L.R. 7. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER L. WIESMUELLER,
Plaintiff,
-vs-

Case No. 14-C-1384

NEAL P. NETTESHEIM, in his official
and unofficial capacity as State of Wisconsin
Circuit Court Reserve Judge,
Defendant.
DECISION AND ORDER
The pro se plaintiff, Christopher L. Wiesmueller, is a lawyer. The
defendant, the Honorable Neal P. Nettesheim, is a former Wisconsin Court
of Appeals judge. Post-retirement, Judge Nettesheim was the presiding
judge in John Doe investigation Case No. 10JD000007 (Milwaukee County
Circuit Court), commonly known as “John Doe I.” On December 4, 2011,
Judge Nettesheim issued a search warrant for Wiesmueller’s law office.
The search warrant included a gag order that prohibited Wiesmueller from
discussing the warrant with anyone but his own legal counsel. John Doe I
is now closed. Wiesmueller was not charged with a crime.
In this action, Wiesmueller brings First and Fourth Amendment
claims under 42 U.S.C. § 1983 against Judge Nettesheim in his individual

and official capacities. Judge Nettesheim moves to dismiss for failure to
state a claim. Fed. R. Civ. P. 12(b)(6). Judge Nettesheim also invokes
judicial immunity, Eleventh Amendment immunity, the Rooker-Feldman
doctrine, abstention, and lack of standing. Some of these grounds invoke
Rule 12(b)(6). On such grounds, the complaint must contain “sufficient
factual matter, accepted as true, to state a claim for relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the extent that
this motion implicates the Court’s subject matter jurisdiction, Fed. R. Civ.
P. 12(b)(1), the Court may “look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue.”
Ezekiel v. Michel, 66 F.3d 894, 895 (7th Cir. 1995). Under either rule, the
Court must accept all well-pled allegations as true and draw reasonable
inferences in the plaintiff’s favor. Id.; see also Agnew v. Nat’l Collegiate
Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012).
Wiesmueller’s first claim is that Judge Nettesheim violated the
Fourth Amendment’s requirement that a search warrant be issued by a
detached and neutral magistrate. Wiesmueller asserts that Judge
Nettesheim was not detached and neutral because he was acting as a
reserve judge, not a salaried judge, and therefore had a financial interest in
the perpetuation and extension of the John Doe investigation. Wiesmueller
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seeks compensatory damages in addition to declaratory and injunctive
relief. As to the latter, Wiesmueller requests a declaratory judgment that a
Wisconsin John Doe judge is attached to the investigation and therefore
violates the Fourth Amendment when authorizing search warrants related
to that investigation. He also requests an order enjoining Judge
Nettesheim from issuing any further search warrants.
On the

damages

claim,

Judge

Nettesheim invokes

judicial

immunity. This immunity finds its premise in the “general principle of the
highest importance to the proper administration of justice that a judicial
officer, in exercising the authority vested in him, [should] be free to act
upon his own convictions, without apprehension of personal consequences
to himself.” Stump v. Sparkman, 435 U.S. 349, 356 (1978). Accordingly,
judges “are not liable to civil actions for their judicial acts, even when such
acts are in excess of their jurisdiction, and are alleged to have been done
maliciously or corruptly.” Id. at 356. The “necessary inquiry in determining
whether a defendant judge is immune from suit is whether at the time he
took the challenged action he had jurisdiction over the subject matter
before him.” Id. A judge can be liable “only when he has acted in the ‘clear
absence of all jurisdiction.’” Id. at 356-57 (quoting Bradley v. Fisher, 13
Wall. 335, 351 (1872)).
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By issuing a search warrant, Judge Nettesheim did not act in the
clear absence of jurisdiction because, as the Wisconsin Supreme Court has
held, “a John Doe judge may issue and seal a search warrant under
appropriate circumstances …” State v. Cummings, 546 N.W.2d 406, 409
(Wis. 1996). Where “jurisdiction over the subject-matter is vested by law in
the judge, or in the court which he holds, the manner and extent in which
the jurisdiction shall be exercised are generally as much questions for his
determination as any other questions involved in the case, although upon
the correctness of his determination in these particulars the validity of his
judgments may depend.” Stump, 435 U.S. at 356 n.6 (quoting Bradley, 13
Wall. at 351-52).
In fact, the primary thrust of Wiesmueller’s argument is not that
Judge Nettesheim acted without jurisdiction. Instead, Wiesmueller argues
that Judge Nettesheim was acting in an investigatory capacity. However,
the Wisconsin Supreme Court has rejected this characterization of the
John Doe judge as “inevitably the ‘chief investigator’ or as an arm or tool of
the prosecutor’s office. We do not view the judge as orchestrating the
investigation. The John Doe judge is a judicial officer who serves an
essentially judicial function …” State v. Washington, 266 N.W.2d 597, 605
(Wis. 1978) (emphasis added). More to the point, the “relevant cases
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demonstrate that the factors determining whether an act by a judge is a
‘judicial’ one relate to the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the expectations of the
parties, i.e., whether they dealt with the judge in his judicial capacity.”
Stump at 362. Issuing a search warrant at the request of a prosecutor is a
function typically performed by a judicial officer. See, e.g., Curry v. City of
Dayton, 915 F. Supp. 2d 901, 903 (S.D. Ohio 2012) (“the issuance of a
search warrant is unquestionably a judicial act”) (quoting Burns v. Reed,
500 U.S. 478, 492 (1991)).
Wiesmueller’s claims for injunctive and declaratory relief are not
barred by judicial immunity, Pulliam v. Allen, 466 U.S. 522, 541-42 (1984),
nor are they barred by the Eleventh Amendment. See Kroll v. Bd. of
Trustees of Univ. of Ill., 934 F.2d 904, 908 (7th Cir. 1991) (“official-capacity
actions may not be barred by the eleventh amendment insofar as they
request prospective relief — i.e., an injunction or a declaratory judgment
and monetary damages that are ‘ancillary’ to either”). However,
Wiesmueller is not entitled to such relief because John Doe I is now closed.
This means, of course, that Judge Nettesheim will not be issuing any more
search warrants. As a result, there is no longer a live “case or controversy”
on the Fourth Amendment issue. City of Los Angeles v. Lyons, 461 U.S. 95,
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102 (1983) (“past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief … if unaccompanied
by any continuing, present adverse effects”). Wiesmueller lacks standing to
enjoin the issuance of further warrants, and he also lacks standing to
pursue a judgment declaring that a John Doe judge violates the Fourth
Amendment when issuing a search warrant. Ashcroft v. Mattis, 431 U.S.
171, 172 (1977) (“For a declaratory judgment to issue, there must be a
dispute which calls, not for an advisory opinion upon a hypothetical basis,
but for an adjudication of present right upon established facts”).
As to the First Amendment claim, Wiesmueller seeks declaratory
relief that Judge Nettesheim cannot maintain a secrecy order on an
ongoing basis, and in the alternative, an injunction against the continuing
effect of the secrecy order. Unlike the Fourth Amendment claim, this claim
presents a live controversy because Wiesmueller is forever barred from
speaking about the matter.
On this claim, Judge Nettesheim invokes the Rooker-Feldman
doctrine. Rooker-Feldman derives its name from two decisions of the
Supreme Court, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
Taken together, these rulings “preclude[] lower federal court jurisdiction
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over claims seeking review of state court judgments … [because] no matter
how erroneous or unconstitutional the state court judgment may be, the
Supreme Court of the United States is the only federal court that could
have jurisdiction to review a state court judgment.” Remer v. Burlington
Area Sch. Dist., 205 F.3d 990, 996 (7th Cir. 2000). Rooker-Feldman was
given an expansive application by lower courts, but the Supreme Court put
a stop to that in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005). Now, Rooker-Feldman is a “narrow doctrine, ‘confined to
cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before district court proceedings commenced and
inviting district court review and rejection of those judgments.’” Lance v.
Dennis, 546 U.S. 459, 464 (2006) (quoting Exxon Mobil, 544 U.S. at 284).
Put another way, “if the plaintiff has a claim that is in any way
independent of the state-court judgment, the Rooker-Feldman doctrine will
not bar a federal court from exercising jurisdiction.” Abbott v. Michigan,
474 F.3d 324, 330 (6th Cir. 2007).
The only way Wiesmueller could have challenged the secrecy order
was to bring a separate action in the form of a supervisory writ with the
Wisconsin Court of Appeals. See State ex rel. Reimann v. Circuit Court for
Daney Cnty., 571 N.W.2d 385 (Wis. 1997). Accordingly, Wiesmueller is not
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a “loser” with respect to the secrecy order; the issue was never litigated,
and Wiesmueller was never a party to a proceeding in which it could have
been litigated. See, e.g., Whiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 1998)
(“where a state action does not reach the merits of a plaintiff’s claims, then
Rooker-Feldman does not deprive the federal court of jurisdiction”); Simes
v. Huckabee, 354 F.3d 823, 828 (8th Cir. 2004) (collecting cases); Wright &
Miller, Fed. Practice and Procedure § 4469.1 (2002) (“A decision not on the
merits also does not oust federal jurisdiction on the merits”). Therefore,
Rooker-Feldman does not bar Wiesmueller’s First Amendment claim.
Judge Nettesheim argues further that the Court should defer to the
state courts (i.e., to him) regarding what documents should or should not
be disclosed in connection with John Doe I. O’Keefe v. Chisholm, 769 F.3d
936, 943 (7th Cir. 2014) (“Wisconsin, not the federal judiciary, should
determine whether, and to what extent, documents gathered in a John Doe
proceeding are disclosed to the public”). This argument misses the mark
because Wiesmueller isn’t trying to secure the release of documents
gathered in the course of the John Doe investigation. Instead, Wiesmueller
wants the secrecy order to be lifted so he can speak about his own
experiences with the investigation. The Seventh Circuit sidestepped this
issue in O’Keefe, 769 F.3d at 943 (“no one has challenged [the gag] order,
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and we do not address its propriety”), but the Court will take it up here to
the extent that it will require further briefing from the parties on the issue.
The briefing should consider the following. While the Seventh Circuit in
O’Keefe was presented with an active John Doe investigation, there is no
active John Doe before this Court. It is no more; the investigation has
closed. Are not any orders issued in connection with that investigation now
without force and effect? Given the pleaded facts of this case, is it even
necessary for Wiesmueller to seek relief from a secrecy order which expired
upon the conclusion of the John Doe? In other words, given the overriding
constitutional protections of the First Amendment, can a secrecy order,
which is only allowed to impinge upon Wiesmueller’s fundamental First
Amendment rights on the grounds that it promotes the effectiveness of a
John Doe investigation, see State v. O’Connor, 252 N.W.2d 671, 678 (Wis.
1977), remain in force when the purpose for the infringement no longer
exists? Hasn’t the limited justification for infringing Wiesmueller’s First
Amendment rights evaporated with the conclusion of the John Doe, and
aren’t Wiesmueller’s First Amendment rights restored to the extent that
any prior restraint is without current effect?
Therefore, as indicated the Court asks the parties to brief why,
given the pleaded facts of this case, the Court should not declare that
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Wiesmueller is entitled to relief from an order that is now without legal
effect and constitutionally proscribed.
In connection, Judge Nettesheim argues that injunctive relief is
precluded by the “judicial capacity” amendment to 42 U.S.C. § 1983, which
provides that in “any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or declaratory relief
was unavailable.” This language was added to Section 1983 in response to
Pulliam, supra, which held that judicial immunity did not insulate judicial
officers from injunctive relief. SKS Assocs., Inc. v. Dart, 650 F. Supp. 2d
835, 837 (N.D. Ill. 2009). Judge Nettesheim was not acting in derogation of
a declaratory decree at the time the secrecy order was issued, so the
availability of injunctive relief and whether it is necessary would appear to
turn on the availability of the declaratory relief discussed above.
Wiesmueller pleaded such claims in the alternative, so the judicial capacity
amendment is no basis for dismissal at this time. Brandon E. ex rel.
Listenbee v. Reynolds, 201 F.3d 194, 197-98 (3d Cir. 2000) (“The foregoing
amendatory language to §1983 does not expressly authorize suits for
declaratory relief against judges. Instead it implicitly recognizes that
declaratory relief is available in some circumstances, and then limits the
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availability of injunctive relief to circumstances in which declaratory relief
is unavailable or inadequate”).
Wiesmueller’s last claim seeks an order requiring Judge Nettesheim
to disclose whether search warrants were issued upon email and internet
service providers for Wiesmueller and other targets involved in the John
Doe investigation. In this manner, Wiesmueller hopes to uncover potential
Fourth Amendment violations because he has a reasonable expectation of
privacy in his email account. Wiesmueller also seeks to vindicate the
Fourth Amendment rights of others who have been similarly targeted.
Finally, Wiesmueller asserts that the Sixth Amendment rights of his
clients may have been violated as a result of the possible invasion of
privacy.
This is a strange claim for a variety of reasons. Wiesmueller could
have alleged, on information or belief, that his Fourth Amendment rights
were violated as described above. Then, if the case made it past the
pleading stage, Wiesmueller could have sought discovery to prove his
claim. Here, the remedy sought by Wiesmueller is discovery in aid of a
claim that may or may not exist. Thus, Wiesmueller’s final claim does not
state a claim upon which relief can be granted. Moreover, even if
Wiesmueller had properly alleged a Fourth Amendment violation, such a
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claim would be barred by judicial immunity for the reasons already stated.
Therefore, the Court will not grant leave to amend on this claim.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.

Judge Nettesheim’s motion to dismiss [ECF No. 7] is

GRANTED-IN-PART and DENIED-IN-PART; and
2. Wiesmueller’s First Amendment claim will be addressed after
further briefing of the parties as directed by the Court. Wiesmueller will
file the opening brief, which is due within thirty (30) days of the date of
this Order. Briefing will proceed in accordance with Civil L.R. 7.
Dated at Milwaukee, Wisconsin, this 23rd day of June, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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