The John K. MacIver Institute for Public Policy, Inc., Plaintiff-Appellant,
Francis D. Schmitz, et al., Defendants-Appellees.
November 8, 2017
from the United States District Court for the Western
District of Wisconsin. No. 3:16-cv-539 - William M. Conley,
Wood, Chief Judge, and Flaum and Hamilton, Circuit Judges.
appeal requires us once again to delve into the intricacies
of the Wisconsin "John Doe proceeding, " a unique
creature of Wisconsin law with some similarities to a grand
jury investigation. A putative class of individuals and
entities assert that they were swept up in a John Doe
investigation that ran roughshod over their federal rights.
They sued the members of Wisconsin's (former) Government
Accountability Board and the Milwaukee County District
Attorney's Office, complaining about actions the
defendants took between 2012 and 2014 in connection with a
multicounty John Doe proceeding. The investigation had
focused on suspected illegal campaign coordination between
certain issue-advocacy groups and a candidate for elected
office. Plaintiff, the John K. MacIver Institute for Public
Policy ("MacIver"), is one of those advocacy
groups. The defendants obtained search warrants from the
state judge presiding over the John Doe proceeding for
MacIver's electronic records; they then executed those
warrants through internet service providers without giving
notice to MacIver.
filed suit in the federal district court for the Western
District of Wisconsin, alleging that the defendants'
conduct violated the Stored Communications Act
("SCA"), 18 U.S.C. §§ 2703(a)-(c),
2711(3). MacIver seeks damages, a preliminary injunction, and
the return of its seized property. The district court
dismissed the complaint and MacIver has appealed. Although
the parties have briefed a wide variety of issues relating to
the SCA and the John Doe process, we conclude that we need
reach only one of them: the SCA's goodfaith defense. We
conclude that the defendants are entitled to this defense and
thus affirm the judgment of the district court.
Doe proceedings "have been in use in Wisconsin since its
days as a territory." State ex rel. Two Unnamed
Petitioners v. Peterson, 363 Wis.2d 1, 67 (2015),
decision clarified on denial of reconsideration sub nom.
State ex rel. Three Unnamed Petitioners v. Peterson, 365
Wis.2d 351 (2015). Noting that it is a unique device now
codified under Wisconsin Statute § 968.26, this court
"ha[s] likened John Doe proceedings to grand jury
investigations, " except that they are conducted under
the supervision of a judge, not the grand jury. See
Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir.
2017). A John Doe proceeding "serves two important
purposes." Peterson, 363 Wis.2d at 67. It is
both "an investigatory tool used to ascertain whether a
crime has been committed" and a special procedure
"designed to protect innocent citizens from frivolous
and groundless prosecutions." Id. (quoting
State ex rel. Reimann v. Cir. Ct. for Dane Cnty.,
214 Wis.2d 605, 621 (1997)).
Doe proceedings are conducted through the authority of the
presiding judge, " In re Doe Petition, 310
Wis.2d 342, 359 (2008), opinion modified on denial of
reconsideration sub nom. In re Doe, 314 Wis.2d 67
(2008), whose duty it is to determine, upon consideration of
evidence collected during the proceeding, whether probable
cause exists to issue a criminal complaint. See State v.
Washington, 83 Wis.2d 808, 821 (1978). A John Doe judge
"serves an essentially judicial function."
Id. at 823. Importantly, "[t]he John Doe judge
does not act as 'chief investigator' or as a
mere arm of the prosecutor. 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." Peterson, 363 Wis.2d at 69
(citation omitted). At the conclusion of the proceeding, the
judge determines whether probable cause exists; if it does,
the judge may order a written criminal complaint.
Id. at 68.
the rules have since changed significantly, at the time
relevant to this case a judge overseeing a John Doe
proceeding could subpoena witnesses, take testimony under
oath, and, most relevant here, issue search warrants.
Wis.Stat. § 968.26(2)(c) (2009), amended by
2015 Wis. Act 64 (eff. Oct. 25, 2015) (granting authority to
subpoena witnesses and take testimony); State v.
Cummings, 199 Wis.2d 721, 733-35 (1996) (discussing
authority to issue search warrants). Additionally, some or
all of the proceeding could be conducted in secret, so that
the subjects of the investigation would be unaware of it.
Wis.Stat. § 968.26(3) (2009), amended by 2015
Wis. Act 64 (eff. Oct. 25, 2015).
is a Wisconsin-based conservative non-profit organization. As
noted above, the defendants all worked either for the
Wisconsin Government Accountability Board ("the
Board"), an entity that now has been disbanded, or the
Milwaukee County District Attorney. Francis Schmitz was a
special investigator for the Board. Kevin Kennedy was the
Board's Director and General Counsel, and Jonathan Becker
served as Administrator of its Ethics and Accountability
Division. Shane Falk was a Staff Attorney with the Board.
John Chisholm was the Milwaukee County District Attorney.
Bruce Landgraf and David Robles were Milwaukee County
Assistant District Attorneys. Finally, Robert Stelter was an
investigator for the Milwaukee County District Attorney's
August 10, 2012, Robles petitioned the Milwaukee County
Circuit Court to commence a John Doe proceeding to
investigate alleged campaign-finance violations. The
petition, anticipating that sensitive documents would be
sought and collected, requested a secrecy order. On August
23, the chief judge of the circuit court assigned and
forwarded the John Doe petition to Reserve Circuit Court
Judge Barbara Kluka. On September 5, Judge Kluka was
appointed by the Chief Justice of Wisconsin to preside over
the John Doe proceeding in Milwaukee County, a step that was
necessary because she was a reserve judge. Judge Kluka
authorized the commencement of the proceeding and entered the
requested secrecy order. In July and August of 2013, the
investigation expanded into Columbia, Iowa, Dodge, and Dane
counties, leading to the Chief Justice's appointment of
Schmitz as special prosecutor for the entire investigation.
presiding over the John Doe proceedings, Judge Kluka issued
search warrants for electronic records of MacIver and other
advocacy groups. MacIver alleges that in the end the
investigators seized nearly five years' worth of its
stored electronic communications. The secrecy orders had
their intended effect: MacIver was not notified when the
warrants were executed.
recipients of the subpoenas, however, obviously knew that
something was afoot. Some of them filed motions to quash
their subpoenas in October 2013. Because of a conflict of
interest (unspecified), Judge Kluka recused herself from the
proceedings, which were reassigned to Judge Gregory Peterson.
On January 10, 2014, Judge Peterson granted the motions to
quash. He concluded that the targets had done nothing wrong,
as Wisconsin law did not prohibit coordination between
campaign committees and outside groups when the purpose of
such coordination was to finance issue advocacy. Eventually
this issue reached the Wisconsin Supreme Court, which upheld
Judge Peterson's decision on July 16, 2015. The court
ordered that the John Doe proceedings be closed and that the
defendants "return all property seized in the
investigation … and permanently destroy all copies of
information and other materials obtained through the
December 2, 2015, the Wisconsin Supreme Court reformulated
the portion of its ruling pertaining to the disposition of
the seized materials. The modified order required Schmitz to
retrieve all original documents relating to the John Doe
proceeding and file them with the Clerk of the Wisconsin
Supreme Court. All other copies had to be destroyed, but the
copies on file with the Clerk would remain "in the event
that the investigation would be allowed to proceed at some
future date" or "for use in ...