Fault Lines
17 April 2017

Wisconsin Prosecutor John Chisholm Sued For Retaliatory Investigation 

January 13, 2017 (Fault Lines)Before dawn, you hear a banging on your door. Your dogs are barking wildly, flood lights are shining bright into the house, and you hurry to the front door without pausing to dress. Outside are police officers yelling and holding a battering ram. While you are startled and confused, some officers yell to get dressed; others yell to open the door. Eventually, you compromise by opening the door and then dressing. Meanwhile, you are pleading with the officers not to shoot your dogs.

Although you manage to get the dogs out of the house, the officers barge in and interrupt your partner in the shower. It’s your house and you’re not under arrest, but you’re ordered to sit on the couch and forbidden from moving. You cannot call your lawyer, and you see a reporter outside. After several hours, your house is tossed, and the police only leave with a laptop and a cell phone.

You might wonder what crime could have possibly lead to the decision to execute the warrant in para-military style. The subject of this investigation was Cindy Archer. She had helped Wisconsin Governor Scott Walker draft and pass legislation that severely curtailed the labor rights of state employees. This was a highly partisan issue with broad political fallout.

She, among others, was then apparently targeted for their support of and association with Governor Walker. The Milwaukee District Attorney, John Chisholm, launched an investigation into whether these Walker supporters violated campaign finance laws. He, along with other prosecutors, issued subpoenas and search warrants regarding 29 people and organizations, seeking millions of documents. Although the initial investigation resulted in convictions for somewhat similar violations, mission creep set in.

Eventually this dispute made its way to the Wisconsin Supreme Court, which found the following:

Accordingly, we invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants.

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

On the issue of the search warrants, the Court stated:

The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys.

The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.

That is a pretty stern rebuke of the prosecutor.

Archer decided to turn the tables and filed a civil rights suit against Chisholm and others. Her primary claim was that her First Amendment rights were violated by the retaliatory investigation into her and others. On the surface, that seems about right. Her problem was that the defendants raised immunity because they acted in their official capacities when they launched the investigation and searched her house.

The primary idea of immunity is to prevent government actors from being sued for undertaking legitimate functions. Unfortunately, its broad scope can insulate bad actors from being responsible for their bad conduct, which has led to criticism of the doctrine. Generally speaking, prosecutors are entitled to absolute immunity for their conduct beginning with the charging decision continuing through trial. So, the defendants made that argument and the trial judge agreed, dismissing the complaint (citations omitted):

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.* * *

Thus, the prosecutor defendants are entitled to absolute immunity for any actions associated with John Doe I. 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.

Archer’s case is now on appeal before the Seventh Circuit. She argues that the actions taken by prosecutors were investigatory in nature, rather than strictly prosecutorial. This distinction matters because the Supreme Court has narrowed a prosecutor’s immunity, when prosecutors participate in investigations:

We further decided, however, that prosecutors are not entitled to absolute immunity for their actions in giving legal advice to the police. * * * In sum, we held that providing legal advice to the police was not a function “closely associated with the judicial process.” * * *

When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is “neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” * * * After Burns, it would be anomalous, to say the least, to grant prosecutors only qualified immunity when offering legal advice to police about an unarrested suspect, but then to endow them with absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested.

When Chisholm was leading the John Doe investigations, he was acting in a manner similar to detectives and other officers, rather than as a litigator. So, Archer’s theory goes, he does not enjoy absolute immunity. This rule makes sense as police officers do not enjoy absolute immunity. So, it would be incongruent to hold police officers to one standard and prosecutors to another for doing the same work. It would essentially be a distinction based on formal roles, rather than actual conduct. Thus, Archer maintains that at a minimum, she be allowed to proceed further and establish her allegations factually.

Further, she argues that the defendants are not entitled to qualified immunity either. She claims that the Seventh Circuit clearly established a First Amendment right to be free from a retaliatory investigation. The district court and defendants disagreed with this, but it was primarily a factual issue, i.e. whether Archer’s conduct was actually protected by the First Amendment.

This particular dispute is largely due to the fact it was connected to her official duties. Previously, the Supreme Court has held such speech unprotected, but it was in a different context. There it was an employee trying to reverse a discharge. Here, Archer is alleging a government actor harmed her due to actions she took as a government employee.

The curious thing about qualified immunity is the first violation is essentially free. If the court were to decide that the prosecutor was not entitled to absolute immunity and that a First Amendment retaliatory claim is generally viable, it may still not be enough. The unusual fact here is that at the time of the misconduct both parties were government officials—usually the plaintiff is a private person. It might not be clearly established that a public official also has a right against retaliation.

In this case, Archer certainly seems to have been wronged and deserves justice. But the broader problem is allowing political officers to sue each other in federal court, based on both parties’ official actions. The slippery slope here has the potential to interfere with legitimate public corruption investigations. For example, Gov. McDonnell could have tried to thwart or slow down the investigation into him claiming that a Democratic appointee was prosecuting a Republican for political reasons. While the retaliation aspect is not readily apparent, McDonnell likely could have found some reason to at least plead it.

At this stage, it does not seem that Archer should lose on absolute or qualified immunity, although there are a number of ways that she could. If the Seventh Circuit permits the case to go forward, then it should consider making a narrow rule of retaliation for public official plaintiffs.

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  • Jaf
    14 January 2017 at 9:26 pm - Reply

    Laymen here who has been slapped around one or twice by your gracious editor. But from my standpoint this was one of the most egregious over reaches of state power I have seen