John K. Maciver Inst. for Pub. Policy, Inc. v. Schmitz
Decision Date | 15 March 2017 |
Docket Number | 16–cv–539–wmc |
Citation | 243 F.Supp.3d 1028 |
Parties | The JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., Plaintiff, v. 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. |
Court | U.S. District Court — Western District of Wisconsin |
Edward Dean Greim, Dane Martin, John Benton Hurst, Todd Graves, Graves Garrett, LLC, Kansas City, MO, for Plaintiff.
Michael P. Russart, Jeffrey S. Fertl, Tomislav Z. Kuzmanovic, Hinshaw & Culbertson, LLP, Douglas S. Knott, Samuel J. Leib, Brent Adam Simerson, Leib Knott Gaynor, LLC, Milwaukee, WI, Joel David Bertocchi, Hinshaw & Culbertson, Chicago, IL, for 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.
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.
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).
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) (). A John Doe judge has the express authority to issue search warrants, including for electronic information. See Wis. Stat. § 967.02(2m) ( ); Wis. Stat. § 968.12 ( ); Wis. Stat. § 968.375(3)(a) ( ); see also Wis. Stat. § 967.02(1t) ( ). 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, 260 Wis.2d 653, 660 N.W.2d 260.
The Wisconsin Supreme Court recently provided a descriptive overview of the function and value of a John Doe proceeding:
State ex rel. Two Unnamed Petitioners v. Peterson , 2015 WI 85, ¶¶, 363 Wis. 2d 1, 866 N.W.2d 165.
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 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.
OPINIONThe 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.
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 ( ) by a court of competent jurisdiction." See 18 U.S.C. § 2703(a), (b) & (c). As defined in the SCA:
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