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

Filing 98

Transmission of Notice of Appeal, Docketing Statement, Amended Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 96 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Amended Opinion and Order, # 3 Judgment, # 4 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THE JOHN K. MACIVER INSTITUTE FOR
PUBLIC POLICY, INC.,
Plaintiff,

OPINION and ORDER

v.

16-cv-539-wmc

FRANCIS SCHMITZ, JOHN CHISHOLM,
BRUCE LANDGRAF, DAVID ROBLES,
ROBERT STELTER, in their official and
individual capacities, KEVIN KENNEDY,
SHANE FALK, and JONATHAN BECKER, in
their individual capacities,
Defendants.
In this civil action, The John K. MacIver Institute for Public Policy, Inc., purports
to assert class claims against various state actors, alleging that they violated the Stored
Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., by seizing electronic
information pursuant to search warrants issued by a County Circuit Court Judge during
the course of a Wisconsin John Doe proceeding.

Before the court are defendants’

motions to dismiss this case in its entirety, on grounds of absolute and qualified
immunity, as well as statutory defenses under the SCA.

(Dkt. ##65, 68.)

For the

reasons explained below, those motions will be granted. For the same reasons, the court
will also deny plaintiff’s motion for a preliminary injunction and the return of its
property (dkt. #88), and this case will be dismissed.

BACKGROUND 1
A.

The Parties

Plaintiff is The John K. MacIver Institute for Public Policy, Inc. (“MacIver”), a
Wisconsin 501(c)(3) non-profit with its principal office in Dane County, Wisconsin.
(Am. Compl. (dkt. #10) ¶ 4.) During the time period relevant to this lawsuit, defendant
Francis Schmitz was a special investigator for the Wisconsin Government Accountability
Board (“GAB”) and was later appointed as a special prosecutor in the John Doe
investigation.

(Id. at ¶ 5.)

As such, Schmitz was allegedly responsible for the daily

operations of the investigation, including obtaining search warrants and subpoenas. (Id.)
Defendant John Chisholm is the Milwaukee County District Attorney, who
allegedly played a supervisory role in directing the investigation.

(Id. at ¶ 6.)

Both

defendants Bruce Landgraf and David Robles are Milwaukee County Assistant District
Attorneys, who allegedly played a role in the John Doe investigation, including signing
and notarizing at least one of the search warrant applications involved in this case. (Id.
at ¶ 7.)

In addition, defendant Robert Stelter is an investigator for the Milwaukee

County District Attorney’s Office, who allegedly signed multiple affidavits supporting
requests for warrants and subpoenas from the John Doe court. (Id. at ¶ 8.) Plaintiff
brings claims against defendants Schmitz, Chisholm, Landgraf, Robles and Stelter in
both their official and individual capacities,

Fundamental, additional background about the John Doe proceedings giving rise to this lawsuit
can be found in the Wisconsin Supreme Court decision in State ex rel. Two Unnamed Petitioners v.
Peterson, 2015 WI 85, 363 Wis. 2d 1, 866 N.W.2d 165.
1

2

Finally, defendant Kevin Kennedy was the Director and General Counsel of GAB.
(Id. at ¶ 9.) Along with District Attorney Chisholm, plaintiff alleges that he directed the
John Doe investigation. (Id.) Defendant Jonathan Becker was the Administrator of the
Ethics and Accountability Division of the GAB and allegedly a principal member of the
investigative team. (Id. at ¶ 10.) Shane Falk, a GAB staff attorney, allegedly was another
core member of the investigative team who reviewed drafts of subpoena and search
warrant applications. (Id. at ¶ 11.) Plaintiff brings claims against defendants Kennedy,
Falk and Becker in their individual capacities only.
B.

John Doe Proceedings

In Wisconsin, a John Doe proceeding is “intended as an independent,
investigatory tool used to ascertain whether a crime has been committed and if so, by
whom.” In re John Doe Proceeding, 2003 WI 30, ¶ 22, 260 Wis. 2d 653, 660 N.W.2d 260
(2003). If the John Doe judge determines that probable cause exists, he or she “may
order that a criminal complaint be reduced to writing.” In re John Doe, 2009 WI 46, ¶ 17,
317 Wis. 2d 364, 766 N.W.2d 542. In presiding over a John Doe proceeding, the judge
“serves essentially a judicial function” and has the responsibility “to utilize his or her
training in constitutional and criminal law and in courtroom procedure in determining
the need to subpoena witnesses requested by the district attorney, in presiding at the
examination of witnesses, and in determining probable cause.” State v. Washington, 83
Wis. 2d 808, 823, 266 N.W.2d 597 (1978) (footnote omitted). Therefore, a John Doe
judge “must act as a neutral and detached magistrate.” State ex rel. Reimann v. Circuit
Court for Dane Cty., 214 Wis. 2d 605, 625, 571 N.W.2d 385 (Wis. 1997).
3

John Doe proceedings in Wisconsin originally arose out of state common law,
dating back to at least 1889, but they have since been codified in the “John Doe statute,”
Wis. Stat. § 968.26. Reimann, 214 Wis. 2d at 620 n.9, 571 N.W.2d at 390 n.9. By
statute, a John Doe proceeding is presided over by a “judge,” not including a “permanent
reserve judge” or a “temporary reserve judge.” Wis. Stat. § 968.26(b); see also State ex rel.
Newspapers, Inc. v. Circuit Court for Milwaukee Cty., 65 Wis. 2d 66, 70-71, 221 N.W.2d
894 (1974) (“The John Doe statute was amended in 1969 to require that the proceedings
be conducted by a judge, meaning a judge of a court of record, rather than a
magistrate.”).

A John Doe judge has the express authority to issue search warrants,

including for electronic information. See Wis. Stat. § 967.02(2m) (defining “judge” as a
“judge of a court of record”); Wis. Stat. § 968.12 (defining a search warrant as “an order
signed by a judge”); Wis. Stat. § 968.375(3)(a) (providing that a “judge” can issue a
search warrant for electronic information upon a showing of probable cause); see also Wis.
Stat. § 967.02(1t) (defining “court” as “the circuit court unless otherwise indicated”).
Less clear under Wisconsin law, however, is whether a John Doe judge acts as a
“tribunal,” as opposed to a “court,” and therefore whether “an order issued by a John
Doe judge is not an order of a ‘circuit court’ or a ‘court of record.’” In re John Doe
Proceeding, 2003 WI 30 at ¶ 23.
The Wisconsin Supreme Court recently provided a descriptive overview of the
function and value of a John Doe proceeding:
[F]rom the earliest stages of the proceeding, to the conclusion
of the investigation, “[t]he proceedings of the John Doe are
constantly under the scrutiny of a judge.” Doe, 78 Wis. 2d at
165, 254 N.W.2d 210. The John Doe judge does not act as
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“chief investigator” or as a mere arm of the prosecutor.
Washington, 83 Wis. 2d at 823, 266 N.W.2d 597. Rather,
the John Doe judge serves as a check on the prosecutor and
on the complainant to ensure that the subject(s) of the
investigation receive(s) due process of law. See Doe, 78 Wis.
2d at 164–65, 254 N.W.2d 210.
In this way, Wisconsin's John Doe proceeding is very
different than a grand jury, and when conducted
appropriately, provides much greater protections to the target
of an investigation. Id. at 165, 254 N.W.2d 210. This is due
in no small part to the role played by the John Doe judge,
which is to ensure that the investigation stays focused on the
conduct alleged in the petition to commence the John Doe
proceeding. Washington, 83 Wis. 2d at 841–42, 266 N.W.2d
597. . . .
....
. . . . Thus, “[a] John Doe proceeding . . . serves both as an
inquest into the discovery of crime and as a screen to prevent
‘reckless and ill-advised’ prosecutions.” Reimann, 214 Wis. 2d
at 621, 571 N.W.2d 385 (citation omitted).
State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶¶ 363 Wis. 2d 1, 866
N.W.2d 165.
C.

Stored Communications Act

Under federal law, the SCA permits “a governmental entity” to require the
disclosure of certain information from a provider of an electronic communication service
or remote computing service depending on the facts and procedures. 18 U.S.C. § 2703.
At the same time, a “person aggrieved” by a violation of the SCA may bring a civil action
seeking damages and other equitable or declaratory relief. 18 U.S.C. § 2707. Plaintiff
alleges that defendants violated 18 U.S.C. §§ 2703(a), (b) and (c) by seizing contents of
its electronic communications under search warrants issued by a John Doe judge, without
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providing plaintiff notice of those seizures. The differences between those subsections
are largely immaterial for the purposes of deciding defendants’ motions to dismiss under
certain SCA “safe harbor” defenses and common law immunities.

OPINION
The defendants’ motions turn on resolving discrete questions of law: (1) whether
a search warrant issued by a John Doe judge qualifies as “a warrant issued . . . by a court
of competent jurisdiction,” pursuant to which the SCA permits disclosure of information
without notice, see 18 U.S.C. §§ 2703(a), (b) & (c); (2) whether defendants are entitled
to the statutory good faith defense under 18 U.S.C. § 2707(e); (3) whether absolute or
qualified immunity applies; and/or (4) whether plaintiff is entitled to declaratory or
injunctive relief. The court addresses these questions in order.
I.

Defenses Under the SCA
A.

Warrant Issued by a Court of Competent Jurisdiction

There is no violation of the SCA if electronic information is obtained “pursuant to
a warrant issued using the procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued using State warrant procedures) by a
court of competent jurisdiction.” See 18 U.S.C. § 2703(a), (b) & (c). As defined in the
SCA:
(3) the term “court of competent jurisdiction” includes -(A) any district court of the United States (including a
magistrate judge of such a court) or any United States
court of appeals that -6

(i) has jurisdiction over the offense being
investigated;
(ii) is in or for a district in which the provider of
a wire or electronic communication service is
located or in which the wire or electronic
communications, records, or other information
are stored; or
(iii) is acting on a request for foreign assistance
pursuant to section 3512 of this title; or
(B) a court of general criminal jurisdiction of a State
authorized by the law of that State to issue search
warrants[.]
18 U.S.C. § 2711 (emphasis added).
Given this definition, the parties appropriately focus on whether a Wisconsin
circuit court judge (the state equivalent of a district judge of this court) who issues a
search warrant while presiding over a John Doe proceeding acts as “a court of general
criminal jurisdiction . . . authorized . . . to issue search warrants.”
2711(3)(B).

18 U.S.C. §

In concentrating on “judge,” plaintiff makes a formalistic argument,

reasoning that Wisconsin’s Constitution provides that “the circuit court shall have
original jurisdiction in all matters civil and criminal.” Wis. Const. art. VII, § 8. In
contrast, a circuit court judge presiding over a John Doe proceeding is not a “court” at all,
much less a “court of competent jurisdiction,” meaning a state “court of general criminal
jurisdiction,” since in the John Doe proceeding all the judge can do is authorize and
supervise a criminal investigation. Curiously, plaintiff makes that same argument even if
the John Doe judge is a circuit court judge empowered by the state constitution to
exercise general jurisdiction over other criminal matters.
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In response, defendants present what is essentially a functional argument: since
Wisconsin law permits a John Doe judge to issue search warrants, and since a John Doe
judge is a circuit court judge, then a search warrant issued by her is issued by “a court of
competent jurisdiction” under Wisconsin state law principles, regardless of whether she is
presiding over a John Doe or circuit court proceeding at any particular time.
Plaintiff cites a number of Wisconsin cases for the basic proposition that for
various purposes under Wisconsin law, a John Doe judge is not equivalent to a “court,”
nor a “court of general criminal jurisdiction.” (Pl.’s Opp’n Br. (dkt. #78) at 7-14.)
However, the relevant question for SCA purposes is not necessarily how Wisconsin
courts interpret different aspects of a John Doe proceeding. The question is whether in
issuing a warrant, a John Doe judge is acting as a “court of competent jurisdiction” under
the meaning ascribed to that phrase in the SCA.
In answering this latter question, plaintiff argues that in amending 18 U.S.C. §
2703 in 2009 to require that a warrant be issued by a “court of competent jurisdiction,”
Congress “clearly established . . . that only ‘a court of general criminal jurisdiction of a
State authorized by the law of that state to issue search warrants’ could issue an
SCA-compliant warrant that would permit a governmental agency to seize stored
electronic communications without first providing notice.”

(Id. at 40.)

Contrary to

plaintiff’s interpretation, however, the 2009 amendments to the SCA’s definition of “a
court of competent jurisdiction” give rise to the opposite inference: the language defining
that term was amended to “include[]” a “court[] of general criminal jurisdiction”
authorized by state law to issue search warrants, while it was previously defined in the
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SCA (by reference to 18 U.S.C. § 3127) as “mean[ing]” such state courts.

See PL

111-79, 123 Stat. 2086. In other words, the amendments reflect Congress’s intent to
expand, rather than restrict, what qualifies as a “court of competent jurisdiction” by
adopting the non-exclusive word “includes” instead of “means.”
Plaintiff also argues that Congress’s use of the phrase “court of competent
jurisdiction” in the SCA, rather than “judge of competent jurisdiction” as it appears in
the wiretap statute, 18 U.S.C. § 2518, demonstrates its intent to adopt a narrower range
of sources from which a government entity can obtain a valid warrant, but this is further
refuted by Congress defining a “court of competent jurisdiction” to include a magistrate
judge of a federal court. See 18 U.S.C. § 2510(9); 18 U.S.C. § 2711(3); see also In re
United States, 10 F.3d 931, 938 (2d Cir. 1993) (“[W]e are unwilling, in the absence of
explicit statutory direction, to expansively interpret Title III’s definition of a ‘judge of
competent jurisdiction,’ 18 U.S.C. § 2510(9), to include magistrate judges.”).
Accordingly, plaintiff’s argument that a state judge who sits on a court of general criminal
jurisdiction is somehow not a “court of competent jurisdiction” under the SCA simply
because she is presiding over a John Doe proceeding puts form over substance,
particularly when not supported by the plain language of the statute, nor by any
expression of a contrary intent, either explicit or implicit, from Congress.
A finding that the SCA recognizes a John Doe judge as a “court of competent
jurisdiction” at least where the same judge sits on a court of general criminal jurisdiction
is further supported by the types of procedural safeguards with which Congress was
concerned in enacting and amending the SCA. Cf. Hubbard v. Myspace, Inc., 788 F. Supp.
9

2d 319, 324 (S.D.N.Y. 2011) (finding the phrase “jurisdiction over the offense under
investigation” in the pre-2009 amendment version of the SCA to be “ambiguous
inasmuch as it could refer to jurisdiction to preside over trials or to issue warrants,” and
resolving that dispute by examining “the context of the statutory scheme”). As an initial
matter, the language of § 2703 focuses on the procedures by which electronic information
can be obtained. For example, a prerequisite for a valid warrant under the SCA is that it
be “issued using the procedures described in the Federal Rules of Criminal Procedure (or,
in the case of a State court, issued using State warrant procedures).” See 18 U.S.C. §
2703(a), (b) & (c). Here, plaintiff does not dispute that defendants followed proper
Wisconsin procedures in obtaining the search warrants at issue.
That the SCA specifically makes valid warrants issued by federal magistrate judges
further suggests that Congress did not intend to exclusively limit those powers to judges
who can enter felony judgments. Indeed, John Doe judges are remarkably similar to
federal magistrate judges in that they are authorized to issue and supervise the execution
of search warrants for felony crimes even though they cannot preside over a felony trial.
Cf. Hubbard, 788 F. Supp. 2d at 324 (holding that a search warrant issued by Georgia
state magistrate was valid under the SCA before the 2009 amendments; “[i]f a federal
warrant would have sufficed under Section 2703(a) despite having been issued by a
magistrate judge who could not have presided over a trial of the investigated offense, the
same no doubt can be said of an ‘equivalent State warrant’”) (emphasis in original). One
might, of course, argue that federal magistrate judges are specifically identified as an
example of a federal court of competent jurisdiction, while state judges with similar
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powers are not, suggesting Congress might have intended to exclude them, but an equally
strong inference is that Congress decided against surveying the various, non-uniform
state laws and procedures to offer additional examples.

The difficulty of such an

endeavor is highlighted by the number of Wisconsin cases that plaintiff cites, which
address a number of different aspects of John Doe proceedings, in an ongoing effort to
divine seemingly arbitrary lines between a “judge” and a “court.”
Contrary to plaintiff’s assertion, therefore, the SCA’s protections against access to
electronic information appear centered around traditional due process principles, not
overly severe demarcations between types of state courts, laws and procedures that may
constitute a “court of competent jurisdiction.” This is evident not only by the 2009
amendments to the statute, which replace exclusive language with non-exclusive
language, but also by the statute’s “pyramidal structure governing conditions under
which service providers must disclose stored communications to the government,” which
requires a warrant obtained after a showing of probable cause for disclosure of certain
information without notice and a lesser showing under other circumstances. See In re
Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 829
F.3d 197, 207-08 (2d Cir. 2016). For these reasons, search warrants issued by the John
Doe judge here -- as a neutral, independent judicial officer authorized by Wisconsin law
to issue warrants for electronic information only upon a showing of probable cause, and
who, by statute, is a judge of a court with general criminal investigation and, therefore,
has experience regarding the constitutional principles underlying search warrants and

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criminal investigations -- is a warrant issued by a “court of competent jurisdiction” under
the SCA.
B.

Good Faith

Even if the search warrants issued by the John Doe judge were not valid warrants
issued by a court of competent jurisdiction under the SCA, defendants cannot be held
liable. Rather, because as the closeness of the question as discussed above demonstrates,
they are entitled to protection under the SCA’s good faith defense.
Under the SCA, a “good faith reliance on . . . a court warrant or order, a grand
jury subpoena, a legislative authorization, or statutory authorization . . . is a complete
defense to any civil or criminal action brought under this chapter or any other law.” 18
U.S.C. § 2707(e)(1).

As plaintiff frames the issue of the § 2707(e) defense, “[t]he

relevant inquiry is Defendants’ good faith with respect to whether a John Doe judge can
issue a valid warrant.” (Pl.’s Opp’n Br. (dkt. #78) at 44.)
As an initial matter, the court can consider the statutory good faith defense as a
basis for defendants’ Rule 12(b)(6) motions to dismiss because plaintiff pleaded the
absence of good faith in its amended complaint. See Muhammad v. Oliver, 547 F.3d 874,
878 (7th Cir. 2008) (“[W]hen an affirmative defense is disclosed in the complaint, it
provides a proper basis for a Rule 12(b)(6) motion.”). The parties disagree whether the
evaluation of the SCA’s good faith defense in this circuit involves only an objective
analysis or both an objective and subjective analysis. Compare Sams v. Yahoo! Inc., 713
F.3d 1175, 1181 (9th Cir. 2013), with McCready v. eBay, Inc., 453 F.3d 882, 892 (7th

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Cir. 2006). Defendants are entitled to the good faith defense under either formulation of
the test.
Defendants’ objective good faith is established for the reasons already explained -namely, the procedures for and due process protections attendant to obtaining a search
warrant for electronic information from a John Doe judge are consistent with obtaining a
warrant issued by a “court of competent jurisdiction” under the meaning of the SCA.
Given the absence of any case law even suggesting that a state search warrant issued
under similar circumstances may be invalid under the SCA, plaintiff’s conclusory
allegation of a lack of good faith is also wholly insufficient to support a claim that
defendants “actually knew that the [warrant] was invalid [under the SCA].” Sams, 713
F.3d at 1181. Finally, plaintiff concedes that it “does not challenge the evidentiary basis
for the warrants issued in this case,” and so there are no other grounds under which it
can prove that any of the defendants lacked good faith in obtaining and executing the
search warrants. Accordingly, each defendant is entitled to judgment as a matter of law
on plaintiff’s individual capacity SCA claims on the basis of the good faith defense under
§ 2707(e), whether objective or subjective.
II.

Immunity
Assuming plaintiffs could prove that defendants violated the SCA and lacked good

faith in doing so, there is still the question of their right to absolute or qualified
immunity.

As for Milwaukee County District Attorney Chisholm and his assistants

Landgraf and Robles, plaintiff cites Buckley v. Fitzsimmons, 509 U.S. 259 (1993), for the
proposition that “[p]rosecutors may not claim absolute immunity from liability for their
13

investigatory actions.” (Pl.’s Opp’n Br. (dkt. #78) at 32).) Certainly, “[a] prosecutor’s
administrative duties and those investigatory functions that do not relate to an
advocate’s preparation for the initiation of a prosecution or for judicial proceedings are
not entitled to absolute immunity,” but plaintiff ignores that the U.S. Supreme Court
also emphasized in Buckley that it “ha[s] not retreated . . . from the principle that acts
undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for
trial, and which occur in the course of his role as an advocate of the State, are entitled to
the protections of absolute immunity.” 509 U.S. at 273. Thus, contrary to plaintiff’s
assertion, the District Attorney and his assistants’ participation in the John Doe
investigation into plaintiff’s activities in no way forecloses their entitlement to absolute
immunity, and despite plaintiff’s argument that the John Doe proceeding had taken place
for multiple years without a criminal complaint, there is nothing in its pleading to infer
that the ongoing investigation was not in view of a criminal prosecution.

To the

contrary, all indications are that a search for criminal activity and prosecution was the
reason the John Doe judge authorized and the DA pursued the investigation.
Accordingly, it appears that the prosecutor defendants would be entitled to absolute
immunity although the court need not decide this issue here for the reasons already
explained.
Similarly, the arguments raised by these defendants as well as the other remaining
defendants, including the DA’s investigator Stelter and GAB special prosecutor Schmitz,
suggest that they would be entitled to qualified immunity for obtaining and executing
search warrants for at least two reasons. First, in response to plaintiff’s argument that
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qualified immunity does not apply to claims asserting violations of statutory rights,
defendant Stelter cites several circuit court cases, including some from the Seventh
Circuit, applying qualified immunity to claims asserting violations of the Federal Wiretap
Act, 18 U.S.C. § 2510, et seq., which is similar to the SCA in a number of material
respects. See, e.g., Narducci v. Moore, 572 F.3d 313, 323 (7th Cir. 2009) (“This circuit,
like a few others, recognizes qualified immunity as a defense to a lawsuit under Title
III.”); Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998) (framing qualified immunity
issue regarding a claim for a violation of the Federal Wiretap Act as “whether
[defendant’s] actions violated a clearly established statutory or constitutional right”)
(emphasis added).
Second, even if plaintiff has a statutory right under the SCA not to have its
electronic information seized pursuant to a warrant issued by a John Doe judge, that
right was not clearly established in light of the dearth of case law interpreting the SCA’s
“court of competent jurisdiction” language at all, much less to include John Doe warrants
issued by a duly authorized, fully competent state trial court judge. Although the court
also need not decide this issue, all defendants would appear entitled to qualified
immunity against plaintiff’s claims for damages under the SCA.
III.

Injunctive Relief
Finally, the defendants also sued in their official capacities move to dismiss

plaintiff’s remaining claim for declaratory and injunctive relief under 18 U.S.C. §
2707(b)(1) of the SCA or the Ex Parte Young exception to the Eleventh Amendment.
Based on an alleged, ongoing violation of the SCA, plaintiff seeks injunctive relief : (1)
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requiring defendants to “provide a confidential, true, and accurate copy of . . . electronic
communications and data that were seized;” and (2) prohibiting defendants from
disclosing any information seized or further seizing any additional information pursuant
to warrants issued by a John Doe judge. (Am. Compl. (dkt. #10) at 27-28.) Plaintiff has
not demonstrated that it is entitled to any declaratory or injunctive relief for the reasons
already explained, but also because it cannot show any likelihood of future use of the
information seized for at least three reasons. First, plaintiff can show no likelihood that
defendants will obtain any similar search warrants from a John Doe judge, as both John
Doe proceedings relevant to this lawsuit have been closed, and the Wisconsin Supreme
Court has held that the legal theory underlying the John Doe proceedings cannot support
a criminal investigation. See Peterson, 2005 WI 85.
Second, to the extent that plaintiff seeks to preclude defendants from initiating
future criminal prosecutions based on information learned from any electronic records
that have already been seized, an injunction limiting future criminal prosecutions would
not comport with well-established notions of comity. See Younger v. Harris, 401 U.S. 37,
44 (1971) (“This underlying reason for restraining courts of equity from interfering with
criminal prosecutions is reinforced by an even more vital consideration, the notion of
‘comity,’ that is, a proper respect for state functions[.]”); cf. O’Shea v. Littleton, 414 U.S.
488, 500 (describing as untenable “an injunction aimed at controlling or preventing the
occurrence of specific events that might take place in the course of future state criminal
trials,” as it essentially called for “an ongoing federal audit of state criminal proceedings,

16

which would indirectly accomplish the kind of interference that Younger v. Harris and
related cases sought to prevent”) (citation omitted).
Third, in light of the Wisconsin Supreme Court’s orders governing defendants’
retention and use of information gathered as part of the two John Doe proceedings
relevant to this case, see State ex rel. Three Unnamed Petitioners v. Peterson, 2015 WI 103,
365 Wis. 2d 351, 875 N.W.2d 49, plaintiff cannot show any likelihood that defendants
will use information obtained as part of the investigations. Accordingly, plaintiff’s claim
for declaratory or injunctive relief under the SCA must also be dismissed.

ORDER
IT IS ORDERED THAT:
1. Defendants’ motions to dismiss (dkt. ##65, 68) are GRANTED.
2. Plaintiff’s motion for an injunction and for the return of its property (dkt. #88) is
DENIED.
3. The clerk of court is directed to enter judgment in favor of defendants and close
this case.
Entered this 15th day of March, 2017.
BY THE COURT:
/s/
_________________________________
WILLIAM M. CONLEY
District Judge

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