Archer v. Chisholm

• Decision Date: 26 May 2016
• Docket Number: Case No. 15-cv-0922
• Citation: 188 F.Supp.3d 866
• Parties: Cynthia Archer, Plaintiff, v. John Chisholm, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

188 F.Supp.3d 866

Cynthia Archer, Plaintiff,

v.John Chisholm, et al., Defendants.

Case No. 15-cv-0922

United States District Court, E.D. Wisconsin.

Signed May 26, 2016

James B. Barton, Krista K. Baisch, Hansen Reynolds Dickinson Crueger LLC, Milwaukee, WI, David B. Rivkin, Jr., Mark W. Delaquil, Richard B. Raile, Baker Hostetler LLP, Washington, DC, for Plaintiff.

Michael P. Russart, Tomislav Z. Kuzmanovic, Jeffrey S. Fertl, Hinshaw & Culbertson LLP, Brent A. Simerson, Douglas S. Knott, Samuel J. Leib, Leib Knott Gaynor LLC, Milwaukee, WI, Steven M. Puiszis, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant.

DECISION AND ORDER

LYNN ADELMAN, District Judge

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.

I. Background

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, 266 N.W.2d 597 (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, 266 N.W.2d 597.

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, 605 N.W.2d 654 (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 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 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 reported;"

– 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 "501c4-Walker;" and

– 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...