Archer v. Chisholm et al
DECISION AND ORDER signed by Judge Lynn Adelman on 5/26/16 that prosecutor defendants motion to dismiss 20 is GRANTED. The Clerk shall enter judgment accordingly. Further ordering that investigator defendants motion for judgment on the pleadings [3 6] is GRANTED. The Clerk shall enter judgment accordingly. Further ordering that defendants motions for order preserving evidence 49 , 50 are GRANTED in part. Defendants may, in addition to complying with the Wisconsin Supreme Courts order regardi ng the John Doe 2 records, file a copy of all materials filed with the Wisconsin Supreme Court with the Clerk of Court for the Eastern District of Wisconsin. The Clerk shall not docket any of these materials and shall maintain the materials under sea l until further order of this court. Further ordering that the parties motions to seal ECF Nos. 51 , 53 , 57 are GRANTED. Further ordering that the parties motions to cite supplemental authority 68 , 75 are GRANTED. Further ordering that investigator defendants motion to supplement response to the State of Wisconsins amicus curiae brief 70 is GRANTED. Further ordering that plaintiffs motion to amend/correct her opposition 72 is GRANTED. (cc: all counsel) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 15-cv-0922
JOHN CHISHOLM, et al.,
DECISION AND ORDER
The plaintiff Cynthia Archer, who was an aide to Scott Walker when he was
Milwaukee County executive and, briefly, second in command at the Department of
Administration when Walker was elected governor of Wisconsin, brings this § 1983
action against Milwaukee County District Attorney John Chisholm and several of his
assistants and investigators. Before me now are several motions brought by the
defendants including motions to dismiss based on immunity and a motion regarding the
custody of records potentially relevant to the case. The case arises out of two highly
publicized criminal investigations. To fully understand the issues presented, it is helpful
to have some understanding of the case’s context. Thus, before analyzing the pending
motions, I will briefly summarize the background of the case.
The investigations in question were John Doe investigations (hereinafter “John
Doe I” and “John Doe II”). A John Doe investigation is a secret investigation conducted
by a prosecutor somewhat like a grand jury investigation. Wisconsin courts have
conducted John Doe-type investigations since before Wisconsin became a state. State
v. Washington, 83 Wis. 2d 808, 819 (1978) (noting that John Doe proceedings were first
developed in 1839). A John Doe investigation must be authorized by a judge, and it is
supervised by a judge. See Wis. Stat. §§ 968.02–04. Like a grand jury investigation, a
John Doe’s principal advantage as an investigative tool is that it enables prosecutors to
compel testimony from citizens who might decline to provide it voluntarily. Washington,
83 Wis. 2d at 822–23.
John Doe I began in 2010, when Walker was Milwaukee County executive.
Chisholm and his assistants conducted the investigation. The investigation began with
an inquiry into the misappropriation of funds from a veterans’ charity and subsequently
uncovered evidence of an unlawful campaign fundraising operation being run out of
Walker’s office. Chisholm’s office convicted six people of crimes, including three of
Walker’s staff members all charged with doing campaign work on government time.
Tim Russell, a former deputy chief of Walker’s staff, pleaded guilty to stealing
from the veterans’ charity and was sentenced to two years in prison and 5 years of
extended supervision. See State v. Russell, No. 12-CF-053 (Milwaukee Cty., Wis. filed
Jan. 5, 2012). Kelly Rindfleisch, another Walker aide, was sentenced to six months in
jail after pleading guilty to felony misconduct in office for doing fundraising work on
county time. See State v. Rindfleisch, No. 12-CF-438 (Milwaukee Cty., Wis. filed Jan.
26, 2012). Darlene Wink, who was in charge of constituent services, pleaded guilty to
two misdemeanor counts of political solicitation by a public employee for doing
campaign work while being paid by county taxpayers. See State v. Wink, No.
12-CM-579 (Milwaukee Cty., Wis. filed Jan. 26, 2012). Other individuals were also
convicted. Kevin Kavanaugh, the treasurer of the veterans’ charity, was found guilty of
felony theft and sentenced to 2 years in prison and 2 years of extended supervision.
See State v. Kavanaugh, No. 12-CF-052 (Milwaukee Cty., Wis. filed Jan. 5, 2012).
William Gardner, owner of the Wisconsin & Southern Railroad Co., pleaded guilty to
making excessive political contributions and intentionally unlawful political contributions
after the investigation discovered that he was contributing to Walker’s gubernatorial
campaign through other people. See State v. Gardner. No. 11-CF-137 (Washington
Cty., Wis. filed Apr. 11, 2011). Finally, Brian Pierick, Russell’s boyfriend, was found
guilty of intentionally contributing to the delinquency of a child. See State v. Pierick, No.
12-CF-022 (Waukesha Cty., Wis. filed Jan. 5, 2012).
John Doe I also involved an investigation into the bidding process for county
projects. After being notified of impropriety in the process, the defendants investigated
whether county officials were giving companies associated with John Hiller, the
treasurer of Walker’s gubernatorial campaign committee, special advantages. In the
course of the investigation, the defendants learned that the plaintiff had communicated
with Hiller about bid proposals. See Answer Ex. 11 (ECF No. 19-11) (search warrant
and affidavit for the plaintiff’s office); Ex. 18 (ECF No. 19-18) (search warrant and
affidavit for the plaintiff’s home). Pursuant to search warrants, the defendant
investigators searched her office in the Milwaukee County courthouse and subsequently
her home in Madison. After the search of her home, the plaintiff cooperated with the
investigation, received immunity, and was not charged with any offense. See Am.
Compl. ¶ 165 (ECF No. 17).
In November 2010, Walker was elected governor, and in 2011, the legislature
enacted his controversial proposal regarding public employee unions known as Act 10.
This legislation sparked a number of recall elections in which Democrats attempted to
unseat Walker and several state senators. John Doe I unearthed evidence indicating
unlawful coordination between Walker’s campaign committee and supposedly
independent groups such as the Wisconsin Club for Growth (“WiCFG”) and Wisconsin
Manufacturers and Commerce (“WMC”) during the 2012 recall election campaign.
Long-standing Wisconsin law provided that if a candidate’s committee coordinated
campaign activities with a supposedly independent group, spending by the independent
group had to be treated as a campaign contribution subject to reporting laws. Wis. Coal.
for Voter Participation, Inc. v. State Elections Bd., 231 Wis. 2d 670, 681 (Ct. App. 1999).
Federal law is to the same effect. O’Keefe v. Chisholm, 769 F.3d 936, 941 (7th Cir.
2014). In the context of Walker’s campaign, this meant that the applicable contribution
limit would have been greatly exceeded.
In the fall of 2012, the evidence of unlawful coordination led a judge to authorize
John Doe II. 1 John Doe II commenced in Milwaukee County, and its purpose was to
explore the matter of the unlawful coordination. It soon became clear that individuals
residing outside Milwaukee County were potential subjects of the investigation. Thus, in
January 2013, because of the scope of the investigation, Chisholm, a Democrat, asked
J.B. Van Hollen, the Republican attorney general of Wisconsin, to take over the
investigation. Citing possible conflicts, Van Hollen declined. Compl. Ex. B, O’Keefe v.
Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014) (letter from J.B. Van Hollen declining
The plaintiff was not a subject of John Doe II. Her amended complaint, however,
contains many allegations concerning it. According to the plaintiff, this is so because
John Doe II supports her allegation that John Doe I was retaliatory.
involvement in the John Doe II investigation). 2 Van Hollen did, however, recommend
that the Government Accountability Board (“GAB”), a six-member board consisting of
retired non-partisan judges which was responsible for regulating Wisconsin elections,
get involved. Id. In June 2013, after reviewing the evidence, the GAB voted to join the
investigation. The Board’s chair, a former Republican legislator, noted that the Board
had been presented with “credible, hard evidence that the law had been violated.” Letter
from Hon. Gerald C. Nichol, Chair, Government Accountability Board, to Hon. Robin
Vos, Wisconsin state representative (Jan. 22, 2015). 3 Because the individuals being
investigated in John Doe II lived in at least five counties, five district attorneys became
involved, including Republicans and Democrats. At the request of these district
attorneys, the supervising judge appointed a special prosecutor, Francis Schmitz, to run
the investigation. Schmitz was a long time federal prosecutor and a Republican who in
one filing disclosed that he had voted for Walker in the recall election. See Def.
Schmitz’s Suppl. Opp’n to Pls.’ Mot. for Prelim. Inj. at 15, O’Keefe v. Schmitz, No.
14-cv-139 (E.D. Wis. Apr. 15, 2014).
Documents inadvertently unsealed by the court provide an indication of the kind
of evidence that had been uncovered regarding unlawful coordination. The evidence
had led Schmitz to conclude that Walker and several Republican operatives were
involved in an expansive “criminal scheme” to evade campaign finance disclosure laws
Unredacted version available at http://www.jsonline.com/news/statepolitics/
Available at gab.wi.gov/sites/default/files/news/70/ltr_nichol_to_vos_01_22_2015_
by coordinating with WiCFG and other organizations. Compl. Ex. C at 12–18, O’Keefe v.
Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014) (state’s consolidated response to
motions to quash a subpoena in John Doe II). 4 The evidence included:
– emails from Walker’s staff advising him to “[s]tress that
donations to WiCFG are not disclosed” and to tell donors
“that you can accept corporate donations and it is not
– a $1 million deposit into WiCFG from Stephen Cohen,
founder of SAC Capital Advisers, shortly after Walker was
scheduled to meet with an SAC representative;
– a March 2012 email from Walker to his fundraiser stating
that “Bruce and Susie Kovner said that they want to give
more” and 10 days later a $50,000 check from Bruce Kovner
arrived in WiCFG’s account. The check’s memo line read
– a 2012 email from Walker’s fundraiser to Walker regarding
“meetings to make happen while in Sea Island . . . Paul
Singer: Grab him.” A few months later, $250,000 was
deposited into WiCFG’s account from Singer.
Def. Schmitz’s Suppl. Opp’n to Pls.’ Mot. for Prelim. Inj. at 4–6, O’Keefe v. Schmitz, No.
14-cv-139 (E.D. Wis. Apr. 15, 2014). 5
The evidence uncovered also indicated that some of the secret contributors to
WiCFG appear to have subsequently benefited from state action. Pet. for a Writ of Cert.
Unredacted version available at http://www.jsonline.com/news/statepolitics/
Unredacted version available at http://www.jsonline.com/news/statepolitics/
at 8, Chisholm v. Two Unnamed Petitioners, 15-1416 (U.S. Supreme Ct. May 23, 2016).
For example, John Menard, who runs a chain of big box stores in Wisconsin,
contributed $1.5 million to WiCFG. Id. at 9. Subsequently Menard’s company was
awarded up to $1.8 million in tax credits from a state economic development corporation
chaired by Walker. Id. Another contributor to WiCFG was a mining company, Gogebic
Taconite LLC, which wanted to open a large open-pit iron mine and secretly gave
$700,000 to WiCFG. Id. at 8–9. Soon after the 2012 recall and general elections, the
legislature passed the bill easing environmental regulations that Gogebic sought, id.,
and Walker signed it.
Regarding unlawful coordination, the special prosecutor also uncovered evidence
indicating that the same individual, R.J. Johnson, was running both Walker’s campaign
committee and a supposedly independent outside group. Compl. Ex. C at 7–9, O’Keefe
v. Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014). 6
The opponents of the John Doe investigations launched a full blown campaign
against the investigations and against the defendants. Led by WiCFG director, Eric
O’Keefe, the John Doe opponents brought four separate lawsuits, including the present
action, challenging the defendants’ conduct. Represented by David Rivkin of the
Washington D.C. office of Baker and Hostetler, who also represents the plaintiff in the
present case, O’Keefe sued the prosecutors, Schmitz and Chisholm, in federal court 7
Unredacted version available at http://www.jsonline.com/news/statepolitics/
O’Keefe v. Schmitz, No. 14-0139 (E.D. Wis. filed Feb. 10, 2014).
and also brought an original action challenging John Doe II in the state supreme court. 8
In addition, O’Keefe sued the GAB in circuit court in Waukesha County. 9
In their court filings, the opponents of John Doe II did not deny that Walker and
WiCFG had coordinated. Rather, they asserted that the First Amendment barred
applying anti-coordination laws to groups like WiCFG that only presented “issue ads,”
ads that stopped short of expressly telling viewers how to vote. See, e.g., Compl. ¶ 197,
O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Feb. 10, 2014). This legal position directly
contradicted Wisconsin case law which held that expenditures for issue advocacy “that
are ‘coordinated’ with, or made ‘in cooperation with or with the consent of a candidate
. . . or an authorized committee’ [are treated] as campaign contributions.” Wis. Coal. for
Voter Participation, Inc., 231 Wis. 2d at 681 (quoting Buckley v. Valeo, 424 U.S.
1,46–47 (1976)); Wis. El. Bd. Op. 00-02 (reaffirmed Mar. 26, 2008). See also McConnell
v. Fed. Election Comm’n, 540 U.S. 93, 202–03 (2003) (rejecting the idea that federal
campaign finance statutes are limited “such that coordinated expenditures for
communications that avoid express advocacy cannot be counted as contributions”).
In his suit in federal court, O’Keefe sought to enjoin John Doe II, alleging that the
prosecutors initiated it to retaliate against Walker’s opponents in violation of the First
Amendment. The Seventh Circuit, however, rejected O’Keefe’s claim, stating that
neither the Supreme Court nor any court of appeals had ever held that the First
State ex rel. Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA (Wis.
Supreme Ct. filed Feb. 7, 2014).
O’Keefe v. Wis. Gov’t Accountability Bd., No. 14CV01139 (Waukesha Cty., Wis. filed
May 30, 2014).
Amendment forbids regulation of coordination between campaign committees and issue
advocacy groups, let alone an inquiry into that topic. O’Keefe, 769 F.3d at 942.
O’Keefe and the other John Doe II opponents fared better in the original action
that they brought in the state supreme court. In a 4-2 decision that broke along
ideological lines, the Wisconsin supreme court shut the investigation down. The court
adopted the theory put forward by the opponents of the investigation, that the First
Amendment barred the John Doe II prosecutors from applying Wisconsin’s
anti-coordination law to entities like WiCFG which only spent money on issue ads. State
ex rel. Two Unnamed Petitioners v. Peterson, 363 Wis. 2d 1 (2015). The decision
overturned years of precedent and practice in Wisconsin. Justices Abrahamson and
Crooks separately dissented. The prosecutors filed a petition for a writ of certiorari in the
United States Supreme Court, which is presently pending.
The plaintiff now brings this lawsuit against the defendants alleging violations of
her civil rights, including First Amendment retaliation claims and numerous Fourth
The prosecutor and investigator defendants filed motions to dismiss based on
immunity from liability for damages. I turn now to these motions. Where, as here,
immunity is raised as an affirmative defense in a motion to dismiss, I consider only the
facts alleged in the complaint, which I accept as true. Gossmeyer v. McDonald, 128
F.3d 481, 495 (7th Cir. 1997). While I have cited other public documents in outlining the
background of the case, in addressing the pending motions, I consider only the
State actors who are defendants in § 1983 cases may be entitled to absolute or
qualified immunity. The purpose of the immunity doctrine is to shield public officials
from retaliatory litigation and the threat of such litigation so that they are not inhibited or
otherwise precluded from doing their jobs properly. See Imbler v. Pachtman, 424 U.S.
409, 422–23, 428 (1976) (noting that the purposes underlying absolute immunity
“include concern [about] harassment by unfounded litigation” and “the possibility that [a
public official] would shade his decisions instead of exercising the independence of
judgment required”); Davis v. Scherer, 468 U.S. 183, 195 (1984) (stating that the
purpose of qualified immunity is to allow officials to “act without fear of harassing
Prosecutors are entitled to absolute immunity “for conduct that is functionally
prosecutorial.” Bianchi v. McQueen, No. 14-1635, 2016 WL 1213270, at *4 (7th Cir.
2016). “This immunity is understood to broadly cover all conduct associated with the
judicial phase of the criminal process.” Id. Prosecutors are also absolutely immune for
administrative and investigatory conduct that “relate[s] to an advocate’s preparation for
the initiation of a prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993).
Judicial proceedings are not limited to trials but rather include “‘any hearing
before a tribunal which perform[s] a judicial function.’” Burns v. Reed, 500 U.S. 478,
489–90 (1991) (quoting W. Prosser, Law of Torts § 94, at 826–27 (1941)). Thus,
prosecutors have absolute immunity for “initiating a prosecution and in presenting the
State’s case,” Imbler, 424 U.S. at 431; appearing at a probable cause hearing for a
search warrant, Burns, 500 U.S. at 487; evaluating evidence assembled by police,
Buckley, 509 U.S. at 273; preparing for trial or a grand jury appearance, id.; and
applying for an arrest warrant, Thomas v. City of Peoria, 580 F.3d 633, 639 (7th Cir.
2009) (citing Kalina v. Fletcher, 522 U.S. 118, 129–31 (1997)). In determining whether a
particular action is entitled to absolute immunity, I consider its function and whether
such function is “intimately associated” with the judicial rather than investigation phase
of criminal proceedings. Buckley, 509 U.S. at 269–70 (citations omitted).
If a state actor is not entitled to absolute immunity, she may still be entitled to
qualified immunity. She is entitled to qualified immunity unless (1) the plaintiff plausibly
pleads that she violated a constitutional right, and (2) the constitutional right was clearly
established at the time of the alleged violation. Betker v. Gomez, 692 F.3d 854, 860 (7th
Cir. 2012). In determining whether a plaintiff has plausibly pled a claim, I assume that all
of the factual allegations in the complaint are true, and I draw all reasonable inferences
in the plaintiff’s favor. Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014).
Because qualified immunity is meant to spare public officials from the burdens of
litigation, it “should be resolved at the earliest possible stage of litigation.” Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). If a defendant asserts that she is entitled to
qualified immunity, the plaintiff bears the burden of defeating the immunity claim.
Betker, 692 F.3d at 860. I turn now to the immunity issue insofar as it relates to each of
the plaintiff’s claims.
A. Fourth Amendment Search Claims
The plaintiff alleges that the searches of her office in the Milwaukee County
courthouse and of her home violated the Fourth Amendment. The defendants obtained
search warrants for both of the searches. The plaintiff’s response to the existence of the
warrants is to challenge their validity. In order to prevail on her challenge, the plaintiff
had to have a legitimate expectation of privacy in the space covered by the warrant.
Rakas v. Illinois, 439 U.S. 128, 143 (1978). This depends on 1) whether the plaintiff
exhibited an actual expectation of privacy, and 2) whether her expectation was
reasonable. United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007).
With respect to the search of her county office, both the plaintiff’s allegations and
the office warrant 10 establish that at the time the warrant was obtained and executed
In evaluating the plaintiff’s claim, I may consider the office and home warrants
because the complaint refers to them and because they are central to her Fourth
Amendment claims. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d
429, 431 (7th Cir. 1993) (stating that “a defendant may introduce certain pertinent
documents if the plaintiff failed to do so” and that such documents “are considered part
of the pleadings if they are referred to in the plaintiff’s complaint and are central to her
claim”). The plaintiff argues that I may not consider the warrants because they are not
“concededly authentic.” See Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (stating
in dicta that such documents must be “concededly authentic”). The purpose of the
“concededly authentic” requirement is to prevent consideration on a motion to dismiss of
a document that “require[s] discovery to authenticate or disambiguate.” Id. at 739. Here,
the plaintiff does not argue that the copies of the warrants submitted by the defendants
are inauthentic. Further, they contain a file stamp from state court, evidence that the
copies the defendants provided are the authentic court-issued warrants. Therefore, I will
consider the warrants. See ABN AMRO, Inc. v. Capital Int’l, Ltd., No. 04 C 3123, 2007
WL 845046, at *11 (N.D. Ill. Mar. 16, 2007) (considering documents central to plaintiff’s
claims where plaintiff argued that documents were unauthenticated but did not assert
that they were inauthentic). Further, I may take judicial notice of the warrants, which are
publicly available court records. Sherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1073 (7th
Cir. 2013) (stating that a court may take judicial notice of court records); see also
Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (stating that a court my take
judicial notice of a public record on a motion to dismiss).
I may also consider the affidavits supporting the warrants, which the warrants
reference and which were file-stamped with the warrants. The plaintiff argues that the
warrants did not incorporate the affidavits because when served the affidavits were not
physically appended. See United States v. Jones, 54 F.3d 1285, 1290–91 (7th Cir.
1995). However, the plaintiff did not allege this in her complaint. Further, the language
of the warrants explicitly incorporate the affidavits, and the affidavits were file-stamped
the plaintiff was no longer employed by Milwaukee County. The plaintiff alleges that in
November 2010, she left county employment and joined Walker’s gubernatorial
transition team. Am. Compl. ¶ 23 (ECF No. 17). She further alleges that the defendants
did not obtain the warrant until December. Id. ¶ 104. The affidavit supporting the warrant
indicates that the plaintiff officially left county employment on December 10, and the
warrant was issued on December 17. Answer Ex. 11 at 7 (ECF No. 19-11). Because the
plaintiff was no longer employed by the county when the warrant was executed, she
abandoned the county office and computer previously issued to her and no longer had a
legitimate expectation of privacy in them. See United States v. Procknow, 784 F.3d 421,
426–27 (7th Cir. 2015) (concluding that a person who checks out of a hotel no longer
has a privacy interest in his hotel room). Thus, the plaintiff fails to plausibly plead a
Fourth Amendment claim relating to the search of her office.
1. Absolute immunity
With respect to the search of her home, I first note that most, if not all, of the
plaintiff’s allegations against the prosecutor defendants can be resolved quickly. As
discussed, to the extent that the plaintiff’s allegations involve the prosecutors’
representations to the John Doe judge to obtain the search warrants, the prosecutors
are entitled to absolute immunity, Burns, 500 U.S. at 487, even if they acted maliciously
or misrepresented facts, id. at 485. The rest of the plaintiff’s allegations concern the
execution of the warrant, and she does not allege that the prosecutor defendants took
part in this process. Under § 1983, the prosecutor defendants may be held liable only
on the same date as the warrants. Answer Ex. 11 (ECF No. 19-11) (office warrant and
affidavit); Ex. 18 (ECF No. 19-18) (home warrant and affidavit).
for personal conduct. Gossmeyer, 128 F.3d at 495 (7th Cir. 1997). Thus, they have no
liability for the search of the plaintiff’s home.
2. Qualified immunity – validity of warrant
Turning to qualified immunity, again, to overcome qualified immunity the plaintiff
must plausibly allege that the defendants violated a constitutional right, and that the
right was clearly established at the time of the violation. The plaintiff does not meet this
burden because she fails to plausibly allege that the defendants violated her Fourth
Amendment rights in any respect.
The plaintiff first attacks the validity of the search warrant for her home. In order
for a search warrant to be valid, it must (1) be issued by a neutral, disinterested
magistrate; (2) establish probable cause that the evidence sought will aid in obtaining a
conviction of a particular offense; and (3) particularly describe the things to be seized
and the place to be searched. Dalia v. United States, 441 U.S. 238, 255 (1979). Even
where a warrant is invalid for one of these reasons, an officer ordinarily acts reasonably,
and is therefore entitled to qualified immunity, if the warrant is judicially-authorized.
Malley v. Briggs, 475 U.S. 335, 344–45 (1993); United States v. Leon, 468 U.S. 897,
920–21 (1984); Junkert v. Massey, 610 F.3d 364, 369 (7th Cir. 2010). An officer is not
expected to question a judicial determination. Leon, 468 U.S. at 920–21. Only where it
is objectively unreasonable for an officer to rely on a judicially-approved warrant will
qualified immunity be withheld. These situations include: (1) where the judge was
misled by false or reckless information, (2) where the magistrate wholly abandoned his
judicial role, (3) where the warrant totally lacked the indicia of probable cause, and (4)
where the warrant was facially deficient as for example being insufficiently
particularized. Id. at 923.
a. Neutral magistrate
The plaintiff first contends that the John Doe I judge, Neal Nettesheim, a long
time Wisconsin circuit and appellate court judge, was not a neutral magistrate but acted
as a “‘rubber stamp’ for the Defendants’ agenda and made no effort to scrutinize the
legal or factual basis for the requested warrants and subpoenas.” Am. Compl. ¶ 78. Of
course, a John Doe judge “must conduct himself as a neutral and detached magistrate.”
Washington, 83 Wis. 2d at 824 (internal quotations and citation omitted). This “require[s]
severance and disengagement from activities of law enforcement.” Shadwick v. City of
Tampa, 407 U.S. 345, 350 (1972). However, a judge is presumed to be neutral and
detached. See Aleman v. Honorable Judges of Circuit Court of Cook Cty., 138 F.3d
302, 307 (7th Cir. 1998). The plaintiff’s “rubber stamp” allegations concerning Judge
Nettesheim are conclusory and merely appropriate language from the Leon case. See
Leon, 468 U.S. at 914. The plaintiff provides no allegations of fact in support of her
assertion that Judge Nettesheim was biased or not neutral. See Shadwick, 407 U.S. at
350–51 (concluding that plaintiff failed to impeach a magistrate’s neutrality because he
made “no showing whatsoever . . . of partiality, or affiliation of [the magistrate] with
prosecutors or police”). Thus, her claim that Judge Nettesheim was not a neutral
magistrate fails. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that conclusory
allegations in a complaint may be disregarded).
b. Probable cause
The plaintiff next alleges that the warrant was not based on probable cause.
“Probable cause is a fluid concept [which] turn[s] on the assessment of probabilities in
particular factual contexts.” Illinois v. Gates, 462 U.S. 213, 232 (1983). Probable cause
exists for a search warrant where “there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Id. at 238. In examining whether there was
probable cause for the warrant, I “give great deference to the conclusion of the judge
who initially issued” it. United States v. Searcy, 664 F.3d 1119, 1122 (7th Cir. 2011)
(internal quotations and citations omitted).
The plaintiff’s allegation of a lack of probable cause for the search of her home is
contradicted by the warrant. The warrant was based on the defendant Stelter’s affidavit,
which Judge Nettesheim concluded established probable cause. The warrant indicates
that the defendants had reason to believe that the plaintiff had violated Wis. Stat. §
946.12, Wis. Stat. § 11.36, and Milwaukee County Ordinance § 9.06, all of which in
various ways prohibit public employees from using their position to inappropriately
benefit themselves or others. Answer Ex. 18 at 2–3, 6, 16–18 (ECF No. 19-8) (home
warrant and affidavit). The affidavit describes two separate incidents on which the
defendants’ belief was based.
The first, referred to as the Reuss Plaza lease, involved bidding on a county
lease, then held by The Boerke Company. The defendants had been notified of
impropriety in the bidding process and believed that county officials were working to
favor a particular bidder. See Am. Compl. ¶¶ 146–47. The affidavit indicates that several
county officials including the plaintiff had ties to John Hiller, the treasurer of Walker’s
gubernatorial campaign committee who had an interest in The Boerke Company, which
was bidding for renewal of the lease. Id. at 18–24. Large Walker donors also had an
interest in The Boerke Company. The affidavit contains facts which support probable
cause that county officials worked with Hiller to give the Boerke Company an unfair
advantage in the bidding process in violation of state law. For example, the affidavit
outlines several instances of suspicious timing between events related to the lease
negotiations and donations to Walker’s gubernatorial campaign, states that county
officials failed to follow normal bidding procedures, and cites emails between county
officials and Hiller discussing the Reuss Plaza bid. Id. Further, the affidavit also
establishes probable cause to believe that the plaintiff was involved in this scheme. She
sent a series of emails from her personal email account concerning the bidding process,
including emails that proposed that Hiller take certain actions relating to the bidding
process and that discussed the process with him. Id. at 22–24. She sent some of these
emails to Hiller directly and some through other county officials. Based on the
information in the affidavit, Judge Nettesheim reasonably concluded that county officials
attempted to provide Walker associates and funders with an unfair advantage in the
Reuss Plaza bidding process. The judge also reasonably concluded that the plaintiff
was a party to this.
The second incident outlined in Stelter’s affidavit involving the plaintiff concerned
the bidding process for county housekeeping services. Defendants suspected Hiller of
being a middleman between county officials and a bidder for the housekeeping contract,
Mid American Building Services, and they believed that county officials had, at Hiller’s
request and to advantage Mid American, leaked information about the bidding process
that was supposed to be confidential. This belief too was supported by probable cause.
The affidavit states that Hiller exchanged emails with county officials regarding Mid
American, states that the county corporation counsel advised the county executive’s
office that the disclosure of certain information related to the bidding process was
prohibited, cites emails in which such confidential information was sent to a
conservative blogger who then published the information online, and details several
payments from Mid American to Hiller during this time. Id. at 29–31. And again, the
affidavit also establishes probable cause to believe that plaintiff was involved. It
discusses emails sent by the plaintiff from her personal account regarding the bidding to
Walker aide, Tim Russell, who forwarded it to a private individual who posted it on a
blog owned by Russell. Id. at 30–31. Based on this information, Judge Nettesheim
reasonably concluded that there was probable cause to believe that county officials had
unlawfully disclosed procurement information related to the housekeeping bidding
contract with the intent to advantage Mid American in violation of state law, and that the
plaintiff was a party to the matter.
c. Particularized warrant
The plaintiff also alleges that the warrant was invalid because it was not
particularized. “The Fourth Amendment requires that a warrant particularly describe the
place to be searched and the . . . things to be seized.” United States v. Spilotro, 800
F.2d 959, 963 (9th Cir. 1986). The specificity required depends on the circumstances of
the case. Id. Generic descriptions of items to be seized are sufficient if “the warrant
more specifically identifie[s] the alleged criminal activities in connection with which the
items [are] sought.” Id. at 964; see also United States v. Henson, 848 F.2d 1374,
1382–83 (6th Cir. 1988) (stating that “a description is valid if it is as specific as the
circumstances and nature of the activity . . . permit”). As noted, in determining whether a
warrant is sufficiently particularized, I may consider both the warrant and Stelter’s
affidavit because the warrant incorporated the affidavit by reference. Spilotro, 800 F.2d
Again, the warrant contradicts the plaintiff’s allegations. The warrant describes
the place to be searched, the plaintiff’s residence, and specifies the items to be seized,
namely “records and information relating to” the Reuss Plaza lease and the Mid
American housekeeping contract. Answer Ex. 18. Contrary to the plaintiff’s assertion,
this case is not similar to Spilotro in that the warrant here was far more specific.
Although it employed descriptive terms such as “records,” “documents,” and
“information,” it also referenced both of the statutes allegedly violated and the specific
incidents allegedly constituting the violations. Thus, the warrant here differed from the
warrant in Spilotro, which was “of exceptional scope.” Spilotro, 800 F.2d at 964. Further,
Stelter’s affidavit described the Reuss Plaza and Mid American situations in detail,
further limiting the scope and eliminating possible confusion about what items were
authorized to be seized.
Because the plaintiff fails to sufficiently allege that Judge Nettesheim was not a
neutral and detached magistrate or that the warrant was unsupported by probable
cause or insufficiently particularized, I conclude that the warrant was valid. Thus, the
plaintiff fails to plausibly plead a Fourth Amendment violation and, accordingly,
defendants are entitled to qualified immunity.
3. Qualified immunity – justifiable reliance on judicial approval
However, even if the warrant were invalid, the defendants would still be entitled
to qualified immunity if it was reasonable for them to rely on it. Leon, 468 U.S. at
920–21. As stated, reliance is objectively unreasonable only (1) where the judge was
misled by false or reckless information, (2) where the judge wholly abandoned his
judicial role, (3) where the warrant was so lacking in the indicia of probable cause, or (4)
where the warrant was facially deficient, e.g. being insufficiently particularized. Id. at
a. False, misleading, or reckless information
The plaintiff alleges that the defendants provided Judge Nettesheim with false or
misleading information in the Stelter affidavit. “A warrant request violates the Fourth
Amendment if the requesting officer knowingly, intentionally, or with reckless disregard
for the truth, makes false statements in requesting the warrant and the false statements
were necessary to the determination that a warrant should issue.” Betker, 692 F.3d at
860 (internal quotations and citation omitted). Reckless disregard for the truth includes
situations in which the officer had serious doubts about the truth of information, had
obvious reason to doubt the information, or failed to disclose facts that he knew would
negate probable cause. Id. at 860. “There is, of course, a presumption of validity with
respect to the affidavit supporting the search warrant,” and an attack must be more than
conclusory. Franks v. Delaware, 438 U.S. 154, 171 (1978); Suarez v, Town of Ogden
Dunes, 581 F.3d 591, 596 (7th Cir. 2009).
The plaintiff alleges that the defendants omitted information from the affidavit that
would have negated probable cause such as the fact that the County didn’t accept any
of the Reuss Plaza bids, that the letter informing defendants of impropriety in the
bidding process stated that it did not affect the County’s consideration of bids, and that
the plaintiff’s undisclosed emails reveal that she opposed awarding the lease to Hiller’s
company. However, the documents presented to Judge Nettesheim contradict many of
the plaintiff’s allegations. For example, Stelter’s affidavit stated that the bidding process
had been canceled, and all emails to and from the plaintiff referenced in the affidavit
were attached to it. Investigator Defs.’ Br. in Supp. Ex. E at 21 (ECF No. 43-5);
Prosecutor Defs.’ Br. in Supp. Ex. C at 48, 58–59, 60–64 (ECF No. 21-4) (attachments
to home warrant affidavit).
Even if the plaintiff’s allegations regarding omissions by defendants were true,
however, such omissions would not negate probable cause. As to the alleged omission
that none of the Reuss Plaza bids were accepted and that the impropriety in the bidding
process did not affect the outcome, Wis. Stat. § 946.12(2) does not require that a
dishonest advantage actually be obtained, only that a public employee act “with intent to
obtain a dishonest advantage.” Thus, the fact that the alleged plan to favor one vendor
did not come to fruition does not negate probable cause that Wisconsin law was
The fact that the plaintiff opposed awarding the lease to the favored bidder also
does not negate probable cause with respect to her. According to the warrant and
affidavit, defendants’ theory with respect to the plaintiff was that she aided and abetted
others or was part of a broad conspiracy. Under Wisconsin law, a person aids and abets
when she “(1) undertakes conduct (either verbal or overt action) which as a matter of
objective fact aids another person in the execution of a crime; and (2) consciously
desires or intends that the conduct will yield such assistance.” State v. Simplot, 180
Wis. 2d 383, 401–02 (Ct. App. 1993). “The same intent required for conviction as a
direct perpetrator of a crime is not required for conviction as an aider and abettor.” State
v. Williquette, 125 Wis. 2d 86, 90 n.1 (Ct. App. 1985); see also State. v. Stanton, 106
Wis. 2d 172, 177 (Ct. App. 1982) (“[A] person may be a party to a crime, as aider and
abettor or as conspirator, even though the crime committed was not the crime which the
defendant intended.”). Thus, probable cause with respect to the plaintiff as an aider and
abettor does not require evidence that she intended the favored bidder to receive a
dishonest advantage. Rather, it requires only a showing that her conduct helped others
violate Wis. Stat. § 942.16 and that she intended her conduct to do so. The warrant and
affidavit meet this standard insofar as they discuss various pieces of improper
information that the plaintiff provided on request to other county officials and in turn to
Hiller via her private email.
b. Abandoned judicial role
With respect to the plaintiff’s allegations that Judge Nettesheim was not neutral,
even assuming that they are true, the plaintiff must allege more to defeat qualified
immunity. Only where a judge has “wholly abandoned his judicial role” can an officer or
prosecutor be said to have acted unreasonably in relying on a judicially-authorized
warrant. Leon, 468 U.S. at 923. An example of such abandonment is the behavior of the
judge in Lo-Ji Sales, Inc. v. New York, who “yielded to the State Police . . . the
completion of the . . . warrant;” was present at and “conducted a generalized search;”
“allowed himself to become a member, if not the leader, of the search party;” and
instructed officers on what to seize. 442 U.S. 319, 327 (1979); see also Leon, 468 U.S.
at 923 (citing Lo-Ji as an example of “wholly abandon[ing the] judicial role”). Nothing in
the plaintiff’s complaint indicates that Judge Nettesheim’s conduct was even remotely
comparable. At worst, her allegations, including those made at oral argument, support
the inference that Judge Nettesheim’s review of the warrants was not thorough. A lack
of thoroughness does not rise to the level of wholly abandoning the judicial role such
that it was objectively unreasonable for executive branch employees to rely on his
approval of the warrant.
c. Lacking in indicia of probable cause or particularity
Further, I have already concluded that the warrant was supported by probable
cause and that it was sufficiently particularized. The analysis that supports those
conclusions also supports the conclusion that, even if probable cause was absent or the
warrant was insufficiently particularized, it was not so deficient that reliance on it was
objectively unreasonable. For these reasons, even if the warrant was invalid, all
defendants are entitled to qualified immunity on the plaintiff’s Fourth Amendment claims
related to the warrant because they reasonably relied on the judicial approval of it.
4. Qualified immunity – scope of search
The plaintiff also alleges that defendants exceeded the scope of the warrant in
violation of the Fourth Amendment because they searched unauthorized places and
seized unauthorized documents. With respect to the places searched, “a lawful search
of fixed premises generally extends to the entire area in which the object of the search
may be found and is not limited by the possibility that separate acts of entry or opening
may be required to complete the search.” United States v. Ross, 456 U.S. 798, 820–21
(1982). The warrant authorized a search of the plaintiff’s entire residence. Answer Ex.
18. Further, the warrant authorized the seizure of small items such as paper documents
and electronic storage media like thumb drives and CD-ROMs, giving defendants the
leeway to search small spaces within the home where these items may have been
located. Thus, the plaintiff’s allegation that the investigators should not have searched
her bathroom, kitchen cabinets, dresser drawers, and closets is without merit.
As to the plaintiff’s objection to the seizure of her computer, phone, and private
emails, a search is not unreasonable in scope because of the inadvertent seizure of
items not covered by the warrant. Henson, 848 F.2d at 1383; see also Guest v. Leis,
255 F.3d 325, 334–35 (6th Cir. 2001) (applying Henson in the context of § 1983 claims).
“This is especially true when the extra-warrant items were not received into evidence
against the defendant.” Henson, 848 F.2d at 1383. Here, the warrant authorized an
extensive seizure, and it would be unreasonable to require officers to “sift through the
large mass of documents and computer files.” Id. Further, the warrant here, in fact,
authorized the seizure of the plaintiff’s computer, phone, and private emails. Moreover,
the seizure of the computer and phone, which contained her private emails, was
reasonable under the circumstances. “Unlike a physical object that can be immediately
identified as responsive to the warrant or not, computer files may be manipulated to
hide their true contents.” United States v. Mann, 592 F.3d 779, 782 (7th Cir. 2010).
Thus, it was reasonable for the defendants to seize the plaintiff’s computer and phone,
and all of the files contained on them, in order to conduct a forensic examination and
take time to search for files authorized by the search.
With respect to the plaintiff’s contention that the search was unreasonable
because defendants failed to return items unauthorized by the warrant, she does not
allege this in her complaint. 11 Thus, even if failing to return the unauthorized items
amounted to a Fourth Amendment violation, the plaintiff does not allege such a claim. 12
Further, she cannot use her brief in opposition to the defendants’ motions to add the
allegation. See Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989).
unreasonably in other respects during the search. See, e.g., Am. Compl. ¶ 116 (alleging
that the defendants “thunderous[ly] hammer[ed] on her front door,” yelled at her, and
brought a battering ram with them), ¶ 118 (alleging that the defendants tipped off
reporters about the search beforehand), ¶ 119 (alleging that officers entered with guns
drawn), ¶ 123 (alleging that an officer advised her not to smoke in her home). 13 While
the Fourth Amendment does protect against unreasonable behavior during a search
and seizure, officer conduct must rise to the level of an unreasonable use or show of
The plaintiff argues that she alleged that the defendants failed to return items to her in
paragraph 143 of her amended complaint, but I disagree. Paragraph 143 alleges that
“[t]he Milwaukee District Attorney’s office took possession of . . . every email Archer
wrote or received on her personal email account,” that “these emails were released to
the public,” and that the defendants seized them “to embarrass, intimidate, harass, and
retaliate against Archer.” Nowhere in this paragraph does the plaintiff allege that the
defendants failed to return the documents.
Moreover, the plaintiff does not argue or point to any case law supporting the
proposition that a failure to return unauthorized items, in and of itself, amounts to a
Fourth Amendment violation.
In her original complaint, the plaintiff alleged additional unreasonable conduct. See,
e.g., Original Compl. ¶ 90 (ECF No. 1-1) (alleging that officers “screamed at her and
forbade her from leaving the residence, even for a brief period to smoke a cigarette”); id.
¶ 87 (alleging that officers “flooded in, throwing the warrant at her without giving her an
opportunity to read it”), ¶ 91 (alleging that “[n]o one informed her that she had a
constitutional right to remain silent and the right to an attorney”). However, the plaintiff
removed these allegations from her amended complaint because they were directly
refuted by materials the investigator defendants submitted with their original answer.
force to constitute a violation. See Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir.
2009). The question of reasonableness is an objective standard judged from the
perspective of a reasonable officer on the scene. Id. Here, the allegations do not rise to
the level of conduct that the Seventh Circuit has found to be so excessive as to be
unreasonable. See, e.g., id. (concluding that the use of a submachine gun to round up
and detain residents during a search was objectively unreasonable); Jacobs v. City of
Chi., 215 F.3d 758, 773–74 (7th Cir. 2000) (concluding that pointing a gun at an elderly
man’s head for ten minutes after realizing he was not the desired suspect was
objectively unreasonable); Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996)
(concluding that “officers do not have the right to shove, push, or otherwise assault
innocent citizens without any provocation”); McDonald v. Haskins, 966 F.2d 292,
294–95 (7th Cir. 1992) (concluding that pointing a gun at a nine-year-old child during a
search and threatening to pull the trigger was objectively unreasonable). The plaintiff
does not allege that she was held at gunpoint or that the officers used or threatened to
use force against her in any way. Thus, I conclude that the conduct alleged in the
complaint was not objectively unreasonable and thus the plaintiff has not sufficiently
pled a claim based on the defendants’ conduct during the search. See McNair v. Coffey,
279 F.3d 463, 467 (7th Cir. 2002) (concluding that “an excessive number of squad cars
or drawn guns [does not] violate the fourth amendment by giving fright or offense, if the
seizure is supported by probable cause and otherwise reasonable”).
The plaintiff also alleges that the defendants leaked other information regarding
the John Doe proceeding to the press. See, e.g., Am. Compl. ¶¶ 90–91 (alleging that
the defendants leaked information about the John Doe proceeding by filing “overbroad
criminal complaints” and disclosing irrelevant information during sentencing hearings), ¶
110 (alleging the defendants leaked to the media that the plaintiff was a target of the
John Doe investigation), ¶ 172 (alleging that the defendants leaked information to the
press, including that they had “bombshell” evidence likely to lead to criminal
complaints). Leaking information does not constitute a search, and the plaintiff does not
allege that the defendants leaked information obtained during the search of her home or
her detention, 14 and thus the leak allegations are not actionable under the Fourth
Amendment. See Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992); United States
v. Kaczynski, 923 F. Supp. 161, 163 (D. Mont. 1996). Because the plaintiff has failed to
adequately plead a Fourth Amendment violation related to the scope of the search, the
defendants are entitled to qualified immunity on this claim as well.
B. First Amendment Retaliation Claim
The plaintiff also claims that the defendants violated the First Amendment by
investigating her as part of John Doe I in retaliation for her work on and advocacy for
Act 10. She alleges that many of the defendants’ actions were retaliatory, including
initiating John Doe I, applying for search warrants as part of John Doe I,
misrepresenting information to the John Doe I judge, and making strategic decisions
about the direction and scope of John Doe I.
The plaintiff alleges that documents obtained during the search “were released to the
public” but does not allege that the defendants released them. Am. Compl. ¶ 143.
Further, it appears that it was the John Doe judge and not the defendants who made the
documents publicly available when he ordered, based on a motion by the Milwaukee
Journal Sentinel, that documents seized from Milwaukee County and its current and
former officials, including the plaintiff, be returned and made subject to Wisconsin’s
public records law. See Order on Mots. for Limited Intervention and Access to Public
Records, In the Matter of a John Doe Proceeding, No. 10JD000007 (Milwaukee Cty.,
1. Absolute immunity
As discussed, a John Doe proceeding is a judicial proceeding, see Washington,
83 Wis. 2d 808 (stating that John Doe proceedings are judicial and not executive in
nature). And, as stated, prosecutors have absolute immunity for all conduct associated
with the judicial phase of a criminal proceeding. Thus, the prosecutor defendants are
entitled to absolute immunity for any actions associated with John Doe I. See Harris v.
Harvey, 605 F.2d 330, 336 (7th Cir. 1979) (holding that prosecutors have immunity for
conduct during a John Doe proceeding); see also Buckley, 509 U.S. at 273 (stating that
absolute prosecutorial immunity applies to preparation and presentation at grand jury
proceedings). This includes initiating John Doe I, Imbler, 424 U.S. at 431; applying for
search warrants, Burns, 500 U.S. at 487; misrepresenting information to the judge, id. at
485, and making strategic decisions related to the John Doe proceedings, Buckley, 509
U.S. at 273.
2. Qualified immunity – constitutionally protected speech
In addition, both the prosecutor and investigator defendants are entitled to
qualified immunity with respect to the plaintiff’s First Amendment retaliation claim. To
state such a claim, the plaintiff must allege that (1) her speech was constitutionally
protected, (2) she suffered a deprivation likely to deter protected speech, and (3)
retaliating against the protected speech was a motivating factor in defendants’ actions.
Swearnigen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 861–62 (7th Cir. 2010). The
defendants are entitled to qualified immunity on this claim because it was not clearly
Wis. June 9, 2014).
established at the time of the violation that the plaintiff’s advocacy of Act 10 was
constitutionally protected speech. 15
In Garcetti v. Ceballos, the Supreme Court held that a government employee’s
speech is protected by the First Amendment only when “the employee [speaks] as a
citizen on a matter of public concern” and when the speech is not “made pursuant to the
employee’s official duties.” 547 U.S. 410, 418, 420–21 (2006). Speech “made pursuant
to [an employee’s] duties” is not protected. Id. at 421. In determining whether speech is
pursuant to an employee’s duties, I look beyond the tasks officially assigned to the
employee. Fairley v. Andrews, 578 F.3d 518, 523 (7th Cir. 2009). Rather, speech which
is related to “daily professional job duties” is made pursuant to official duties.
Chrzanowski v. Bianchi, 725 F.3d 734, 739 (7th Cir. 2013).
The plaintiff’s allegations indicate that her work on Act 10 was done pursuant to
her official duties as Walker’s Deputy Secretary of Administration. The plaintiff alleges
that “in [her] role [in the Walker administration], . . . she played a lead role in crafting
policy,” Am. Compl. ¶ 23; that she was “one of the top government officers in
Wisconsin” and “over[saw] most departments” id. ¶ 24; that Walker appointed her
because of her previous policy experience, id. ¶ 25; that she “took a lead role in
The plaintiff argues that she also alleges retaliation based generally on her political
affiliation with Scott Walker, which she argues is also constitutionally protected.
However, her allegations regarding retaliation based on political affiliation are
conclusory and unsupported by factual allegations. The factual allegations in the
complaint support only her assertion that the defendants’ retaliatory motive was based
on Act 10, not a more general political motive. For example, the complaint alleges that
Chisholm and his wife were angry about Act 10, Am. Compl. ¶¶ 51, 58, 61, and that the
defendants did not begin their so-called “campaign of harassment” until after Act 10’s
proposal despite longstanding political differences, id. ¶ 1, 41, 67, 70. These allegations
cut against an inference that the defendants retaliated based on a general political
overseeing the drafting of the legislation” including engaging in review and analysis and
advising Walker and other staff, id. ¶ 28; and that she “became the point person for
responding to Act 10-related inquiries,” id. ¶ 29. Contrary to the plaintiff’s conclusory
disclaimer that her role in drafting and implementing Act 10 “was not inherent to her
position,” id. ¶ 27, the overwhelming majority of her allegations indicate that the
important role that she played in drafting and implementing Act 10 was precisely
because it was inherent in the high-ranking policy-making position that Walker hired her
to fill. Thus, the plaintiff’s work on Act 10 was done pursuant to her official duties and, if
Garcetti applies, was unprotected.
It is unclear whether Garcetti’s holding that speech made pursuant to a public
employee’s official duties is unprotected applies in this context. Garcetti dealt with
government employee speech in the context of alleged retaliation by a government
employer. Neither the Supreme Court nor the Seventh Circuit has decided whether
advocacy of the type the plaintiff engaged in is protected in the context of retaliation by
a non-employer government official. See Fairley, 578 F.3d at 524. Other courts have
reached varying conclusions. Compare Trant v. Oklahoma, 754 F.3d 1158, 1169 (10th
Cir. 2014) (concluding Garcetti does not apply when defendant is not plaintiff’s
employer); Leavey v. City of Detroit, 719 F. Supp. 2d 804, 812 (E.D. Mich. 2010)
(same); Stokes v. City of Mount Vernon, No. 11 CV 7675(VB), 2012 WL 3536461, at *7
(S.D.N.Y. Aug. 14, 2012) (same); Price v. Roberts, No. 10-1574, 2011 WL 1877823, at
*16 (W.D. Pa. May 16, 2011) (same), with Rowe v. Benjamin, No. 3:12-cv-01201-JFA,
2012 WL 5306159, at *4 (D.S.C. Oct. 26, 2012) (discussing cases in which courts have
applied Garcetti to in non-employment contexts and concluding that “the law is at best
unsettled”). I need not resolve the issue. Even assuming that Garcetti does not apply
and plaintiff’s speech was protected, the proposition was not clearly established at the
time of the alleged violation.
3. Qualified immunity – retaliatory investigation
Defendants are also entitled to qualified immunity on the First Amendment
retaliation claim for another reason: it is unclear whether a retaliatory investigation as
opposed to a retaliatory prosecution rises to the level of a constitutional violation, and
even if it does this was not clearly established at the time of the alleged violation.
Neither the Supreme Court nor the Seventh Circuit has addressed the issue. See
Hartman v. Moore, 547 U.S. 250, at 262 n.9 (“Whether the expense or other adverse
consequences of a retaliatory investigation would ever justify recognizing such an
investigation as a distinct constitutional violation is not before us.”); Rakovich v. Wade,
850 F.2d 1180, 1189 (7th Cir. 1988) (stating in dictum that a retaliatory investigation
could be actionable under § 1983 but not analyzing the issue because “[t]he officers
[did] not argue that the amendment [was] inapplicable”).
Other circuits have come to varying conclusions. Compare Lacey v. Maricopa
Cty., 649 F.3d 1118, 1132 (9th Cir. 2011) (stating that “an extremely intrusive
investigation that did not culminate in an arrest—even when conduct pursuant to a valid
mandate—could chill the exercise of First Amendment rights”); Izen v. Catalina, 382
F.3d 566, 571–72 (5th Cir. 2004) (recognizing a First Amendment retaliation claim
whether defendants “undertook an investigation with the substantial motivation of
retaliating against” plaintiff for protected speech); Worrell v. Henry, 219 F.3d 1197, 1212
(10th Cir. 2000) (“Any form of official retaliation for exercising one’s freedom of speech,
including . . . bad faith investigation . . . , constitutes an infringement of [First
Amendment] freedom.”); Pendleton v. St. Louis Cty., 178 F.3d 1007, 1010–11 (8th Cir.
1999) (concluding that “[d]efendants could not have reasonably believed that their
actions comported with clearly established law” when they allegedly conducted a
retaliatory criminal investigation), with Rehberg v. Paulk, 611 F.3d 828, 850 n.24 (11th
Cir. 2010) (“No § 1983 liability can attach merely because the government initiated a
criminal investigation.”); Colson v. Grohman, 174 F.3d 498, 512–13 (5th Cir. 1999)
(concluding that an investigation is a harm that is “not actionable under our First
Amendment retaliation jurisprudence”). Thus, it was not clearly established at the time
of the alleged violation that a retaliatory investigation alone violated the First
4. Qualified immunity – judicial supervision
While it is unclear whether a retaliatory investigation violates the Constitution, it is
even less clear whether a judicially supervised investigation, even if retaliatory in nature,
does so. This is significant here because the investigation at issue was initiated and
conducted in the context of a John Doe proceeding and was therefore judicially
authorized and supervised. While no court has directly addressed the issue, it is likely
that judicial approval defeats the plaintiff’s retaliation claim. This is so because, as
noted, it is generally reasonable for an officer to rely on judicial approval, and thus
officers are generally entitled to qualified immunity when they do so. Malley, 475 U.S. at
344–45; Leon, 468 U.S. at 920–21. Here, every stage of the investigation was
authorized by a judge—the initiation of John Doe I, each expansion of it ,and each
search conducted as part of it. Additionally, as I have already concluded, the plaintiff
has failed to allege any facts to support the inference that the defendants unreasonably
relied on Judge Nettesheim’s authorization.
Qualified Immunity – existence of probable cause
Further, it is likely that the existence of probable cause for the John Doe
investigation defeats the plaintiff’s retaliatory investigation claim because the existence
of probable cause “will suggest that prosecution would have occurred even without a
retaliatory motive.” Hartman, 547 U.S. at 261, 265–66. The plaintiff’s own complaint
alleges sufficient probable cause for initiating and expanding John Doe I. The plaintiff
alleges that Walker’s chief of staff Tom Nardelli discovered that money donated by
Walker’s office to a charity had been stolen and that subsequently, further irregularities
were discovered. Am. Compl. ¶ 70, 74. The expansion, which was based on concerns
about preferential treatment in the county bidding process and which led to the search
warrants involving the plaintiff, clearly resulted from information that the defendants had
received. Id. ¶¶ 146–47 (discussing a letter notifying the defendants of potential
impropriety in the bidding process). Further, as discussed, probable cause supported
defendants’ conduct within John Doe I including the search of the plaintiff’s home.
Because the defendants reasonably relied on a finding of probable cause in conducting
John Doe I, they are entitled to qualified immunity on the plaintiff’s First Amendment
C. False Arrest Claim
The plaintiff also alleges that defendants unlawfully detained her while searching
her home in violation of the Fourth Amendment. However, officers may detain
occupants of a home while they execute a search warrant supported by probable cause.
Michigan v. Summers, 452 U.S. 692, 704–05 (1981). Thus, the plaintiff fails to state a
claim for false arrest, and defendants are entitled to qualified immunity on this claim as
well. Further, even if the warrant were invalid, it was judicially-authorized and the
investigators reasonably relied on it. For the same reasons, their detention of the
plaintiff was reasonable. See Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012)
(an officer is entitled to qualified immunity in a false arrest case when, even if the arrest
was not permissible under the Fourth Amendment, a reasonable officer could have
mistakenly believed that it was). 16
D. Retaliatory Arrest Claim
The plaintiff also claims that her detention during the search of her home was
retaliatory in violation of the First Amendment. Neither the Supreme Court nor the
Seventh Circuit has resolved the issue of whether a valid arrest can give rise to a
retaliation claim under the First Amendment, and other circuits are split on the issue.
See id. at 253 (discussing other circuits but not resolving the issue). Thus, even if the
plaintiff’s retaliatory detention claim was viable, this was not clearly established at the
time of the alleged violation. See id. (concluding that the right was not clearly
established); see also Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (same). Thus,
the investigators are entitled to qualified immunity with respect to this claim.
The plaintiff does not allege that the prosecutor defendants played any direct role in
her detention. Thus, like her claims based on the execution of the search warrants, the
plaintiff has failed allege that the prosecutors defendants are personally liable for her
E. Civil Conspiracy Claim
Finally, the plaintiff brings a civil conspiracy claim. “Section 1983 does not,
however, punish conspiracy; an actual denial of a civil right is necessary before a cause
of action arises.” Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982). Inasmuch
as the plaintiff’s other claims fail, the plaintiff does not allege the denial of a civil right to
justify her civil conspiracy claim. Thus, all the defendants are entitled to qualified
immunity on this claim as well.
F. Conclusion with Respect to Immunity
I previously noted that the purpose of the immunity doctrine is to shield public
officials from retaliatory and unfounded litigation and the threat of such litigation so that
they are not impaired in doing their jobs. Imbler, 424 U.S. at 422–23. The concern
underlying the doctrine is that if public officials are subjected to unwarranted litigation,
they may shade their decisions and refrain from exercising independent judgment and
taking action when they believe it is justified. Id. Considering the present case in light of
this underlying concern leads to the conclusion that this case provides a textbook
example of when immunity should be granted.
As previously discussed, the defendants in the present case pursued a public
corruption investigation (John Doe I) and obtained six convictions. Evidence uncovered
during the investigation led them to pursue a second public corruption investigation
(John Doe II). The subjects of the investigation, however, had significant resources and
were willing to bring numerous lawsuits in an attempt to shut the investigation down. It is
not an overstatement to say that the opponents of the investigation made it very difficult
for the defendants to proceed.
Besieging public officials with lawsuits is precisely the kind of activity that can
inhibit if not intimidate an official and cause her to refrain from taking action which,
however justified, might engender more lawsuits. As discussed above, based on the
law, all of the defendants are entitled to either absolute or qualified immunity on all of
the plaintiff’s claims. I add only that the reason for the immunity doctrine, to enable
public officials to do their job free from fear of being subjected to unwarranted litigation,
has particular salience in the present case.
III. Custody of Records
This case also presents a unique question regarding the materials the
defendants collected during John Doe II. The state supreme court ordered the
defendants to turn over all such materials (and the materials collected during John Doe I
which were incorporated into John Doe II), to its clerk. State ex rel. Three Unnamed
Petitioners v. Peterson, 365 Wis. 2d 351, 373–74 (2015). Initially, the court stated that it
would to destroy the materials, but it has since indicated that it will retain them and that
the parties may request access to them. Id. at 377.
In her dissent, Justice Abrahamson noted that the court’s handling of this issue
leaves many questions unanswered, including how the court will address the interests
of parties in the present case, how the parties should seek access, how long the court
will maintain the materials, and even which court (the supreme court or the original John
Doe court) may authorize use and dissemination of the materials. Id. at 417–18. Since
the court issued its most recent order, the investigator defendants who were not parties
to the state court proceeding have sought to intervene in that proceeding in order to
ensure that they will have access to the materials for use in the present litigation.
Similarly, the prosecutor defendants have sought to intervene; Chisholm in his personal
capacity and his assistants who, like the investigators, are not parties to the state court
proceeding. In each instance, the state supreme court denied their request without
discussion. Dec. 21, 2015 Leib Decl. Ex. 4 (ECF No. 53-5) (December 2, 2015 order
denying the investigators’ motion to intervene); Feb. 15, 2016 Leib Decl. Ex. 1 (ECF No.
59-1) (January 12, 2016 order denying the prosecutors’ motion to intervene).
The defendants, therefore, ask me to permit them to retain custody of the John
Doe II and related John Doe I materials until the present case is resolved so that they
may use them in defending themselves. 17 The plaintiff opposes the request. Although I
am dismissing the present case, my decision no doubt will be appealed, and while the
appeal is pending the defendants will have to turn the materials over to the state
supreme court unless I grant them some sort of relief. Thus, I must resolve the issue
because if I do not and am reversed, the defendants will need the materials that they
may no longer have access to.
The situation presents a conflict between the defendants’ right to have access to
evidence that they may need to defend themselves and the doctrine of comity, which
cautions against undue interference with state court proceedings. I have tried to fashion
a solution to the problem which ensures that the defendants will have access to the
In my view, the materials at issue are unlikely to be relevant to the present case. They
deal with materials from John Doe II, in which the plaintiff was not involved, and
documents from John Doe I collected after August 10, 2012, a year after the events in
the present case occurred. See Three Unnamed Petitioners, 365 Wis. 2d at 372–73.
However, the plaintiff includes allegations about John Doe II in her amended complaint
and insists that John Doe II supports her theory of an ongoing, continued conspiracy
against Walker and his associates, and that these materials may, therefore, be relevant.
Thus, I cannot avoid addressing the issue of custody of the records.
evidence that they need but also shows respect for the state courts. Thus I will adopt
the plan that I suggested to the parties on several occasions. I will not interfere with the
state supreme court’s order that the defendants turn over all John Doe II and relevant
John Doe I documents to its clerk. I will, however, allow the defendants, if they wish, to
file copies of such documents with the clerk of this court. The clerk will not docket the
materials and will maintain them under seal. When this litigation is concluded, the
materials will be destroyed. I will not presently address how a party seeking to access or
use the materials should go about doing so, as this question need not be answered
unless my dismissal of the present case is reversed and one of the parties wants to
access the materials.
This solution addresses the defendants’ concerns about forever losing access to
the documents by ceding control of them to the state supreme court. It also respects
“the dignity” of the state supreme court and the doctrine of comity by keeping within the
spirit of the court’s order. See Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2042
(internal quotations and citations omitted). My goal is to respect the state supreme
court’s interest in divesting the defendants of control of the materials while seeking to
protect their rights in a way “that [does] not unduly interfere with the legitimate activities
of the” state court. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10 (1987). I am not
upsetting the state court’s order but rather adding to it.
The plaintiff argues that I should not address the issue until after the defendants
have sought and been denied access to the materials in state court. I disagree for two
reasons. First, although I agree that I “should assume that state procedures will afford
[defendants] an adequate remedy,” id. at 15, the state supreme court’s handling of the
access to John Doe II documents issue raises questions about whether it would grant
the defendants access to relevant materials for use in the present litigation. The court
has determined that all of the evidence that the prosecutors gathered has to remain
secret, and it has been inflexible about that order. Thus, when a law firm with
experience in Supreme Court litigation offered to represent the prosecutors pro bono in
seeking certiorari review of the state supreme court’s decision shutting down John Doe
II, the court prevented it from doing so by refusing the prosecutors’ request to allow the
firm’s lawyers to review the evidence. Order on Mot. to Amend John Doe Secrecy
Orders, State ex rel. Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA (Wis.
Supreme Ct. Feb. 5, 2016). The court’s ruling meant that the prosecutors had to file
their petition pro se. Further, as discussed, the defendants have twice asked the court
for permission to intervene in the state court proceeding so that they could request
access to the documents, and the court summarily denied their requests. Additionally,
the court has not actually agreed to allow the parties in the present case access to the
materials, stating only that the documents might “potentially” be released, and the court
has not set forth any procedure by which the parties could seek access to the materials.
Based on the court’s unwillingness to address the issue of access to documents in any
meaningful way, it is entirely possible that once the defendants turn over the materials,
they could permanently lose the chance to access them for use in this litigation. That
said, my solution is narrowly tailored and designed to be as deferential to the court as
possible, while still assuring that defendants will be able to defend themselves in the
In arguing that I should not address the issue, the plaintiff relies on Lucas v.
Turner, which dealt with whether a federal court could order state grand jury
proceedings to be disclosed for use in federal civil rights litigation. 725 F.2d 1095, 1099
(7th Cir. 1984). The court stated that, in that situation, “comity dictates that the federal
courts defer action on any disclosure requests until the party seeking disclosure shows
that the state supervisory court has considered his request and has ruled on the
continuing need for secrecy.” Id. (internal quotations and citations omitted). “Otherwise,”
the court stated, “the potential threat of disclosure orders in subsequent civil litigation
would seriously weaken the state court’s control over the secrecy of this essential
component of its criminal justice system.” Id. (internal quotations and citations omitted).
The plaintiff’s argument, however, ignores the distinction between an order relating to
control of materials and an order relating to their use and dissemination. My order does
no more than permit the defendants to provide copies of the relevant materials to the
clerk of this court. It does not address the issue of access to the materials or whether
the state supreme court or this court should decide that issue. Thus, the order does not
in any way weaken the state court’s determination that the records should remain
Contrary to the plaintiff’s assertion, my resolution of this issue does not violate
the Anti-Injunction Act, which prohibits federal courts from “grant[ing] an injunction to
If my dismissal of the plaintiff’s suit is reversed and some John II materials are
relevant to this litigation, the plaintiff may well be correct that the defendants will first
have to seek permission to use the materials from the state court. Assuming that the
plaintiff is correct, and the state court denies that request, the plaintiff agrees that under
Lucas, the defendants may then ask me for an order allowing them to use the materials.
The present order ensures that a copy of those materials will be available if I enter such
stay proceedings in a State court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28
U.S.C. § 2283. The purpose of the Anti-Injunction Act is to allow state court proceedings
“to continue unimpaired by intervention of the lower federal courts.” Atl. Coast Line R.
Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287 (1970). My resolution does not
impair state court proceedings in any way. To the contrary, it leaves the state court
order intact. The existence of a copy of the materials filed under seal with the clerk of
this court does not impair the state proceedings. And even if it did, it is within an
exception to the Anti-Injunction Act because it is “necessary in aid of [my] jurisdiction.”
The necessary-in-aid-of-jurisdiction exception authorizes “some federal injunctive relief
[when it is] necessary to prevent a state court from so interfering with a federal court’s
consideration or disposition of a case as to seriously impair the court’s flexibility and
authority to decide that case.” Id. at 295. This exception is applicable to the present
case, where the state court seeks to divest the defendants of evidence that may well be
relevant to this litigation. See Adkins v. Nestle Purina PetCare Co., 779 F.3d 481, 485
(7th Cir. 2015) (opining that the necessary-in-aid-of-jurisdiction exception may apply if,
for example, “a state court were to bar a necessary witness from attending a federal trial
Further, my resolution of the issue does not violate the Rooker-Feldman doctrine,
which prohibits federal district courts from hearing cases that directly challenge state
court judgments. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005).
The Rooker-Feldman doctrine is narrow and applies only to “cases brought by
an order in the future.
state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Id. at 283–84. This is not such a case. The defendants do
not ask me to review a state court decision, the situation which the Rooker-Feldman
doctrine aims to avoid, and as noted, my order does not call into question any decision
issued by the state court.
IV. Motions to Seal
The parties have also filed several motions to seal in conjunction with the
defendants’ preservation motion. There is a presumption of public access to documents
filed in federal court, and filings may only remain sealed if the parties show good cause
to do so. See City of Greenville v. Syngenta Crop Prot., LLC, 764 F.3d 695, 697 (7th
Cir. 2014). Specifically, the parties have filed as exhibits documents which they
originally filed with the state supreme court in John Doe II. That court sealed sua sponte
all submissions. While I do not believe that the documents filed contain any confidential
information, the Seventh Circuit has instructed that, in relation to John Doe proceedings,
“Wisconsin’s judiciary must decide whether particular documents . . . should be
disclosed” and that “district court[s] should ensure that sealed documents in the federal
record stay sealed, as long as documents containing the same information remain
sealed in the state-court record.” O’Keefe, 769 F.3d at 943. Therefore, I will grant the
motions to seal.
THEREFORE, IT IS ORDERED that prosecutor defendants’ motion to dismiss
(ECF No. 20) is GRANTED. The Clerk shall enter judgment accordingly.
IT IS FURTHER ORDERED that investigator defendants’ motion for judgment on
the pleadings (ECF No. 36) is GRANTED. The Clerk shall enter judgment accordingly.
IT IS FURTHER ORDERED that defendants’ motions for order preserving
evidence (ECF Nos. 49, 50) are GRANTED in part. Defendants may, in addition to
complying with the Wisconsin Supreme Court’s order regarding the John Doe 2 records,
file a copy of all materials filed with the Wisconsin Supreme Court with the Clerk of
Court for the Eastern District of Wisconsin. The Clerk shall not docket any of these
materials and shall maintain the materials under seal until further order of this court.
IT IS FURTHER ORDERED that the parties’ motions to seal (ECF Nos. 51, 53,
57) are GRANTED.
IT IS FURTHER ORDERED that the parties’ motions to cite supplemental
authority (ECF Nos. 68, 75) are GRANTED.
IT IS FURTHER ORDERED that investigator defendants’ motion to supplement
response to the State of Wisconsin’s amicus curiae brief (ECF No. 70) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to amend/correct her
opposition (ECF No. 72) is GRANTED.
Dated at Milwaukee, Wisconsin, this 26th day of May, 2016.
s/ Lynn Adelman
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