No. 14-1822 ___________________________________ UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ___________________________________ ERIC O’KEEFE and WISCONSIN CLUB FOR GROWTH, INC. Consolidated with Appeal Nos. 14-1888; 14-1899; 14-2006; 14-2012; Plaintiffs-Appellees, 14-2023 v. JOHN CHISHOLM, et al., Defendants-Appellants. ___________________________________ Appeal from The United States District Court for the Eastern District of Wisconsin Case No. CV-139-RTR Rudolph T. Randa, District Court Judge ___________________________________ DEFENDANTS-APPELLANTS’ JOINT REPLY BRIEF ON APPEAL OF MOTIONS TO DISMISS AND PRELIMINARY INJUNCTION _______________________________________ von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122 Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816 Case: 14-1822 Document: 146 Filed: 09/08/2014 Pages: 67
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No. 14-1822 ___________________________________
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT ___________________________________
ERIC O’KEEFE and WISCONSIN CLUB FOR GROWTH, INC. Consolidated with Appeal Nos.
Appeal from The United States District Court for the Eastern District of Wisconsin
Case No. CV-139-RTR Rudolph T. Randa, District Court Judge ___________________________________
DEFENDANTS-APPELLANTS’ JOINT REPLY BRIEF ON APPEAL OF MOTIONS TO DISMISS AND PRELIMINARY INJUNCTION
_______________________________________
von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816
Axley Brynelson, LLP Timothy M. Barber Patrick J. Fiedler Justin H. Lessner Attorneys for Defendant-Appellant Dean Nickel 2 E. Mifflin Street, Suite 200 Madison, WI 53703 (608) 257-5661
I. The Preliminary Injunction Must Be Reversed. ..................................... 3
A. Plaintiffs’ Brief Relies on Misleading “Factual” State-ments and Unreasonable Inferences of Bad Faith ...................... 3
B. Plaintiffs Mischaracterize the District Court’s Prelimi-nary Injunction Order and Abandon the Claims within the their Complaint in attempt to Legitimize the Injunc-tion ................................................................................................... 11
C Plaintiffs Concede the Type of Conduct Being Investi-gated by the John Doe Proceedings—Coordinated Ex-penditures – Can be Regulated under the First Amend-ment ................................................................................................. 16
1 Plaintiffs Mischaracterize the Type of Illegal Coordi-nated Conduct the John Doe Proceedings Were Com-menced to Investigate ............................................................ 18
2 Hard Evidence of Coordinated Expenditures ....................... 21
II. Defendants Are Entitled to Qualified Immunity ................................. 23
A. Defendants Did Not “Forfeit” Their Qualified Immunity Defense ............................................................................................ 23
B. The Court Has Jurisdiction to Address The Qualified Immunity Defense Under The Collateral Order Doctrine ...... 28
C Broad Allegations of Bad Faith Targeting Cannot Defeat a Claim For Qualified Immunity When There Was An Objectively Reasonable Basis For The John Doe ....................... 32
1 Neither Plaintiff Was Required to Produce Documents ....... 32
2 Defendants Did Not Petition For The John Doe Pro-ceedings Against Plaintiffs ................................................... 33
III. Defendants Are Entitled to Prosecutorial Immunity .......................... 38
A. Actions Furthering a John Doe Proceeding are Cloaked in Absolute Prosecutorial Immunity .......................................... 38
B. Absolute Immunity Attaches to John Doe Proceedings, as Ab-solute Immunity Attaches to Grand Jury Proceedings ...................... 39
C Plaintiffs’ Allegations Do Not Preclude Prosecutorial Immunity ........................................................................................ 41
IV. Younger Abstention Requires Dismissal of the Preliminary Injunction and Stay of The Damages Action If It Is Not Dismissed ................................................................................................... 42
A. John Doe Proceedings Fall Within The Sprint Category of Proceedings “Akin to” a Criminal Prosecution ................... 41
B. Younger Abstention Does Not Require an Active Crimi-nal Prosecution .............................................................................. 46
C The Bad Faith Exception Does Not Apply Because Plaintiffs Have Not Proved They Were Targeted With-out Any Valid Hope of Obtaining A Conviction ...................... 48
V. Pullman Abstention is Proper. ................................................................ 54
A. This Court Has Jurisdiction to Consider Pullman absten-tion. .................................................................................................. 54
B. Plaintiffs Use The Wrong Standard of Review ......................... 54
C Pullman Abstention is Warranted ............................................... 55
American Fed’n. Of Labor v. Watson, 327 U.S. 582 (1948) ....................................................................................................... 54
Anderson v. Creighton, 483 U.S. 635 (1987) ....................................................................................................... 29
Branzburg v. Hayes, 408 U.S. 665 (1972) ....................................................................................................... 38
Brusseau v. Haugen, 543 U.S. 194 (2004) ....................................................................................................... 32
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ....................................................................................................... 14
Collins v. County of Kendall, 807 F.2d 95 (7th Cir. 1986) ................................................................................ 6, 51, 52
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ....................................................................................................... 28
Crawford-El v. Britton, 523 U.S. 574 (1998) ................................................................................................. 29, 31
Custodian of Records for the Legislative Tech. Serv. Bureau v. State (In re John Doe), 689 N.W.2d 908 (Wis. 2004) ................................................................................ passim
Dombrowski v. Pfister, 380 U.S. 479 (1965) ................................................................................................. 49, 50
Fund v. City of New York, No. 14 Civ. 2958, 2014 U.S. Dist. LEXIS 68509 (S.D.N.Y. May 19, 2014) ............. 43
Garofalo v. Village of Hazel Crest, 754 F.3d 428 (7th Cir. 2014) .................................................................................. 26, 27
Gonzalez v. Waterfront Comm'n of the N.Y. Harbor, 755 F.3d 176 (3d Cir. N.J. 2014) ................................................................................ 43
Kelly v. Illinois Bell Telephone Co., 325 F.2d 148 (7th Cir. 1963) ....................................................................................... 15
McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) ......................................................................................................... 14
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) ................................................................................................ 43, 45
Mir v. Shah, Case No. 13-55, 2014 WL 2722767 (2d Cir. N.Y. June 17, 2014) ............................ 45
Mitchell v. Forsyth, 47 U.S. 511 (1985) ......................................................................................................... 28
Mulholland v. Marion County Election Board, 746 F.3d 811 (7th Cir. 2,014) ................................................................................ passim
Reichle v. Howards, 132 S.Ct. 2088 (2012) .............................................................................................. 36, 37
Sprint Commc’ns., Inc. v. Jacobs, 134 S.Ct. 584 (2013) .............................................................................................. passim
State ex rel. Unnamed Person No. 1 v. State (In re Doe), 2003 WI 30, 660 N.W.2d 260 ...................................................................................... 45
State v. Washington, 266 N.W.2d 597 (Wis. 1978) ........................................................................... 39, 44, 45
United States v. Bloom, 149 F.3d 649 (7th Cir. 1998) ....................................................................................... 15
United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) ................................................................................................. 37, 38
White v. Stanley, 745 F.3d 237 (7th Cir. 2014) .................................................................................. 26, 27
Wis. Coal. for Voter Participation, Inc. v. State Elections Bd., 605 N.W.2d 654 (Wis. Ct. App. 1999) .................................................................. 4, 14
Wis. Right to Life State PAC (WRTL) v. Barland, 664 F.3d 139 (7th Cir. 2011) .................................................................................. 20, 22
federal case law that also supports the legal theory underlying the John Doe Pro-
ceedings, Plaintiffs’ bad-faith narrative must be rejected.
When Plaintiff’s pretext theory is laid bare and reduced to what it is—a gross
mischaracterization of the facts underlying lawfully commenced state criminal
proceedings—the district court’s preliminary injunction must be vacated and all
of Plaintiffs’ claims dismissed.
ARGUMENT
I. The Preliminary Injunction Must Be Reversed.
A. Plaintiffs’ Brief Relies on Misleading “Factual” Statements and Un-reasonable Inferences of Bad Faith.
Plaintiffs’ “factual” discussions1 consist of imaginative speculation as to De-
fendants’ ulterior motives, notwithstanding a record that demonstrates Defend-
ants’ objectively lawful conduct. In order to manufacture partisan motive in sup-
port of their bad faith-retaliation claim, Plaintiffs either misrepresent the factual
record or willfully ignore it. For instance, despite the fact that Plaintiffs were on-
ly served a single subpoena, which they successfully quashed, Plaintiffs now re-
1 Plaintiffs’ brief repeatedly cites to its own allegations and dubious internet postings as evi-dence. Indeed, many of their “facts” – especially the most scandalous - rely exclusively on “R.1”—their unverified complaint. See e.g., Resp. Br. at 99 (allegation, without any reference to a specific defendant, that “some of this information [regarding the John Doe proceedings] reached the public through direct or indirect selective leaks from the DA’s Office”); id. at 101 (citing internet postings that allegedly show “coordination” with a candidate – although no candidate is mentioned in some of those postings – as evidence of Defendants’ disparate treat-ment of conservative groups).
quest that this Court “take judicial notice of the fact that is not Soviet Russia.”
Resp. Br. at 59.
Plaintiffs resort to such rhetorical gimmicks because the relief they seek is so
extraordinary and the objective legal reasonableness of Defendants’ conduct is so
clear. The evidence demonstrates that the John Doe criminal proceedings at issue
were:
(1) Commenced in direct consultation with the non-partisan GAB upon that agency’s review of the evidence for the sole purpose of enforcing state campaign finance law, R.104 ¶13;
(2) Supported by a unanimous vote by the nonpartisan GAB, R.110 Ex. A;
(3) Supported by published state case law and formal agency opin-ions, specifically Wis. Coal. for Voter Participation, Inc. v. State Elec-tions Bd. (WCVP v. SEB), 605 N.W.2d 654 (Wis. Ct. App. 1999) and Op.El.Bd. 00-2, at 8-13 (2000) (reaffirmed by GAB March 26, 2008), R.110, Ex. A;
(4) Petitioned for by both Republican and Democrat district attor-neys, R.53, Ex. B-E, J, W, X;
(5) Petitioned for by district attorneys with the specific request to have judicially-supervised proceedings under the State’s criminal John Doe Proceeding statute See R.53, Ex. B-E, J;
(6) Prosecuted by a judge-appointed, independent special prosecu-tor, who has no current political affiliation but who had voted for Governor Scott Walker, at the request of district attorneys from both political parties2, R.53, Ex. S, R.117 ¶10, R.110 Ex. M;
(7) Commenced by order of a state judge who found, based on her review of the evidence and law, “reason to believe that a crime
2 As another example of Plaintiffs’ mischaracterization of the evidence to fit their partisan narra-tive, Plaintiffs describe a jointly-signed letter from a bipartisan group of district attorneys as on-ly authored by District Attorney Chisholm. Resp. Br. at 18-19. The letter was actually signed by five district attorneys. R.53, Ex. S, R.117 ¶10, R.110 Ex. M
ha[d] been committed,” in five different Wisconsin counties R.53, Ex. K-O;
(8) Carried out through the issuance of subpoenas and search war-rants, all approved and issued upon a finding of probable cause by a John Doe Judge, who is not a party to this case and is not al-leged to have any animus toward Plaintiffs, R.1 Ex. F at 1-2; and
(9) Supervised by a state judge as part of a proceeding where Plain-tiffs were allowed to raise, and successfully did raise, constitu-tional arguments before the judge, Resp. Br. 24-25, R.1 Ex. D.
Far from showing bad faith and retaliation, the conduct of the GAB and bipar-
tisan prosecutors here demonstrates careful adherence to the law and respect for
all prosecutorial protocols. Nonetheless, Plaintiffs’ brief resorts to factual misrep-
resentations and unreasonable inferences regarding nearly every aspect of the
Defendants’ conduct. The sections below detail some of the more egregious “fac-
tual” narratives Plaintiffs proffer.
Prior John Doe Proceedings. Plaintiffs fault the Milwaukee District Attor-
ney’s office for successfully obtaining six convictions, including felony embezzle-
ment, against several persons who engaged in criminal conduct while associated
with the Milwaukee County Executive’s Office. Resp. Br. at 14. Plaintiffs do not
point to a single prosecution as part of those other John Doe Proceedings that
was not successfully prosecuted, either through dismissal, directed verdict, or re-
versal of any conviction. See id. Indeed, the State Attorney General, a Republican,
has since acknowledged that his office “supported [these convictions] in the ap-
pellate courts.” R.1 Ex. B at 3 (Sep. App. 70). No court has ever drawn an infer-
ence of bad faith based on uniformly successful prosecutions. Nevertheless, that
is precisely the inference of bad faith that Plaintiffs urge this Court to make,
which is directly contrary to this Court’s case law. See Collins v. Cnty. of Kendall,
807 F.2d 95, 101 (7th Cir. 1986) (discussing cases of bad faith and noting that an
inference of bad faith based on a plaintiff’s complaint of multiple prosecutions is
limited to “uniformly unsuccessful” prosecutions (emphasis in original)).
Plaintiffs’ brief concedes, moreover, that those prior proceedings did not in
any way concern the Plaintiffs. Nor do those proceedings concern the campaign
finance violations at issue here. See Resp. Br. 10-14. Yet Plaintiffs still highlight
those prior successful prosecutions as a basis for inferring bad faith of the De-
fendants here, including Schmitz and Nickel, who were in no way involved in
those prosecutions.3
Attorney General and GAB Involvement. Similarly, Plaintiffs attempt to col-
or the plainly reasonable conduct of the prosecutors as evidence of a partisan
agenda. For instance, District Attorney John Chisholm, a Democrat, sought early
on in the John Doe Proceedings to involve the State Attorney General, a Republi-
can. Resp. Br. at 16-17. Clearly, a politically-motivated and retaliatory prosecutor
would not surrender a proceeding to another office, much less one which is led
3 Plaintiffs consistently fail to refer to the Defendants individually or which alleged evidence is specific to each of them. Instead, they merge Defendants into one prosecutorial entity with re-spect to virtually every argument.
¶ 49. The district court refused Defendants an opportunity to cross-examine
O’Keefe on his claim, but it is clear that these unidentified “raided” homes did
not include his own. It is also clear that none of the Defendants here are those un-
identified “sheriff deputies” who arrived at unidentified “homes across the
state.”
B. Plaintiffs Mischaracterize the District Court’s Preliminary Injunction Order and Abandon Claims within their Complaint to Legitimize the Injunction.
Although Defendants stand by their opening brief as to the factors supporting
the vacation of the district court’s preliminary injunction, Defendants offer here a
few reply points in demonstrating that the district court incorrectly determined
that the Plaintiffs had any likelihood of success on their claims.
As a matter of law, bad faith cannot be found where the undisputed evidence
shows: (1) the prosecutors sought judicially-supervised John Doe Proceedings;
(2) the prosecutors at the inception of those John Doe Proceedings consulted with
the non-partisan state agency (the GAB) responsible for interpreting and enforc-
ing the state’s campaign finance law regarding those proceedings; (3) the prose-
cutors sought to turn over the proceeding to the Republican State Attorney Gen-
eral for prosecution; (4) the prosecutors involved other district attorneys of both
political parties in the proceedings; and (5) the five district attorneys involved
requested that the proceedings be led by an independent special prosecutor who
ited to “exceptional circumstances” where the legal theory has been previously
and explicitly held invalid. Perhaps more telling, Plaintiffs concede in their brief
that the most relevant case, WCVP v. SEB, 605 N.W.2d 654, 659 (Wis. Ct. App.
1999)—the only Wisconsin state case that directly concerns coordinated issue ad-
vocacy4 – supports Defendants’ legal theory. Resp. Br. at 81-82. That concession
directly contradicts other portions of their brief where Plaintiffs argue that De-
fendants’ legal theory is “not even arguably supported by Wisconsin law.” Resp.
Br. at 96. Considering the undisputed fact that Defendants’ coordination theory
is likewise supported by the state agency responsible for interpreting Wiscon-
sin’s campaign finance laws, there is simply no basis for disparaging Defendants
here for bad faith conduct.5
4 Although not relevant to Plaintiffs’ claims of bad faith against Defendants, Plaintiffs’ criticism of Wisconsin Coalition is misplaced. Plaintiffs fault that court for not focusing on “the distinction between issue and express advocacy” and, rather, making an “intent and circumstance-based inquiry.”Resp. Br. at 82. However, the court did not make an intent-based inquiry. The focus was on the level of coordination between a candidate and the so-called independent organiza-tion regarding the expenditure at issue. That focus is indeed consistent with Supreme Court precedent and, therefore, exactly what the court of appeals should have focused on. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 190 (2003) (rejecting plaintiff’s argument that the Supreme Court “drew a constitutionally mandated line between express advocacy and so-called issue advocacy” and explaining that the “the express advocacy restriction [is] an endpoint of statutory interpretation, not a first principle of constitutional law.”) Indeed, the McConnell Court clarified that its precedent has never held “that a statute that was neither vague nor over-broad would be required to toe the same express advocacy line.” Id. at 192. The Supreme Court in Citizens United has since clarified that disclosure requirements could sweep more broadly than speech “that is the functional equivalent of express advocacy.” 558 U.S. 310, 368‐69 (2010). In the end, the Supreme Court has rejected Plaintiffs’ argument that there is some type of consti-tutional command for a court to focus on “the distinction between issue and express advocacy.” 5 Remarkably, Plaintiffs’ brief fails to discuss the Defendants and the GAB’s reliance on the fed-eral case directly on-point regarding the constitutionality of their “coordination theory.” See FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C. 1999) (“Contrary to the characterization of the
C. Plaintiffs Concede the Type of Conduct Being Investigated by the John Doe Proceedings—Coordinated Expenditures—Can be Regulated Under the First Amendment.
Plaintiffs repeatedly concede—albeit in circumspect, oblique and contradicto-
ry phrasing—the simple truth that coordinated expenditures, which are the focus of
the John Doe Proceedings, can be regulated under the First Amendment. See, e.g.,
Dkt. 130 at 74 (“Expenditures for political communications . . . may rarely if ever
be limited.”); id. (“the [Buckley] Court recognized that certain expenditures coor-
dinated with a candidate may also be restricted, to prevent circumvention of con-
tribution limits”); id. at 80-81 (quoting Colorado II as “holding that government
may regulate parties’ coordinated campaign-related expenditures because they
are ‘the functional equivalent of contributions’”); id. at 82 (quoting Buckley for the
proposition that “[c]ontribution limits (if that is how restrictions on coordinated
issue advocacy are to be viewed) may be upheld where the government demon-
strates that they are ‘closely drawn’ to match the government’s interest in pre-
venting quid-pro-quo corruption and its appearance and “to avoid unnecessary
abridgment of associational freedoms”); id. at 86 (citing Buckley for the proposi-
tion that “[r]estriction of coordinated expenditures is another prophylaxis, to
prevent circumvention of contribution limits”); id. at 93 (“a coordinated expendi-
ture may be treated as an in-kind contribution to a candidate only if, at the abso-
lute least, it is undertaken for the purpose of influencing votes in that candidate’s
outside organizations—even by appearing at a Super PAC fundraising event—as
long as the candidate does not ask for money beyond the federal source and
amount limitations.6 See, e.g., Op. FEC 2011-12 (June 30, 2011); see also 11 C.F.R. §
300.64(b) (restrictions on fundraising by candidates). Second, Plaintiffs claim that
the John Doe Proceedings are simply “based on an advocacy group’s communi-
cation with a candidate.” Id. This too is false, as the John Doe Proceedings were
not focused on an advocacy groups’ mere contact with a candidate or his cam-
paign committee.
Specifically, the John Doe Proceedings were commenced to focus on coordinat-
ed expenditures—in the form of coordinated issue advocacy7—that were secretly
coordinated between a candidate, the candidate’s campaign committee and the
candidate’s agents and various outside groups, including 501(c)(4) organizations,
in order to circumvent state contribution limits and reporting requirements. With
respect to Plaintiff O’Keefe, the Iowa County District Attorney petitioned for a
John Doe Proceeding in his county because “O’Keefe is believed to have coordi-
nated political campaign advertising [i.e., expenditures] between the Friends of
6 Unlike 501(c)(4) organizations, Super PACs need to disclose their donors. 7 Plaintiffs do not contest that issue advocacy is an “expenditure” in this regard. See Dkt. 130 at 80 (“Speech on the issues is an ‘expenditure’ in every respect that Buckley regarded as rele-vant.”). That said, Plaintiffs’ argument that Defendants cannot identify any issue advocacy ad-vertisements produced by WCFG for a candidate’s campaign is meritless. The evidence indi-cates that a candidate or his campaign committee diverted money into WCFG so that the money could secretly be spent on campaign-related advocacy. The manner in which that money was spent is at the core of what the John Doe Proceedings were commenced to investigate.
Scott Walker, a campaign committee, and . . . Club for Growth—Wisconsin.” R.53
Ex. C Aff. ¶¶ 3, 5. Unlike independent expenditures, coordinated expenditures related
to political campaign advertising can be regulated, which this Court acknowl-
edged as recently as three years ago. See Wis. Right to Life State PAC (WRTL) v.
Barland, 664 F.3d 139, 155 (7th Cir. 2011) (“the First Amendment permits the gov-
ernment to regulate coordinated expenditures”) (emphasis in original) (citing Col-
orado II, 533 U.S. at 465).
Moreover, there are no “overbreadth” or “vagueness” issues here insofar as
Plaintiffs attempt to mischaracterize Defendants’ conduct as criminalizing any
unreported communication between an outside group and a candidate or his
campaign committee. Rather, the coordination standard set forth by the GAB,
and which has been in force in Wisconsin since 2001, specifically describes the
type of coordination that is subject to state regulation:
The communication is made at the request or suggestion of the cam-paign (i.e., the candidate or agents of the candidate); or, in the ab-sence of a request or suggestion from the campaign, if the coopera-tion, consultation or coordination between the two is such that the candidate or his/her agents can exercise control over, or where there has been substantial discussion or negotiation between the cam-paign and the spender over, a communication’s: (1) contents; (2) tim-ing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio advertisement); or (4) “volume” (e.g., number of copies of printed materials or frequency of media spots). Substantial discussion or negotiation is such that the candidate and the spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners.
El.Bd.00-2 at 12. This “Christian Coalition standard” has likewise been imported
into the FEC’s definition of “coordinated communications.” See 11 C.F.R. §
109.21(d). In short, the John Doe Proceedings are supported by a valid and con-
stitutional legal theory; accordingly, there is a reasonable expectation of obtain-
ing a valid conviction if those proceedings establish probable cause that secret
coordinated issue advocacy actually occurred.
2. Hard Evidence of Coordinated Expenditures
Contrary to Plaintiffs’ assertion that “Defendants declined multiple opportu-
nities to introduce any evidence contravening Plaintiffs’ [allegations],” (Dkt. 130
at 20-21), the record itself shows that it was the Plaintiffs that shied away and ob-
jected to the evidentiary hearing Defendants requested the district court to hold
in order to contravene Plaintiffs’ allegations:
Plaintiffs’ position is that the May 7 hearing should be an oral argu-ment on the Parties’ submissions. The Parties have submitted exten-sive declarations and documentary evidence. . . .
Defendants’ position is that Plaintiffs cannot sustain their burden of proof in the absence of live witnesses as Plaintiffs allege that the conduct of the Defendants is motivated by partisanship, animus, po-litical purposes and bad faith. Defendants dispute these allegations and intend to put Plaintiffs to their proof. Defendants will call wit-nesses to rebut Plaintiffs’ allegations and to defend against Plaintiffs’ attacks on Defendants’ declarations and credibility. . . .
R.136 at 2 (“Joint Civil L.R.7(h) Expedited Non-Dispositive Motion for a Pretrial
Conference”). Such an evidentiary hearing would have provided the opportunity
O’Keefe in October of 2013.8 That brief, as Defendant Schmitz argued, detailed
the “validity and constitutionality” of the primary basis upon which Plaintiffs
allege a constitutional injury—the subpoena Judge Barbara Kluka issued to
Plaintiff O’Keefe9—and “demonstrate[d] that the constitutional right at issue was
not clearly established at the time of the alleged violation.” R.43 at 10. This brief
outlined in detail the “legal predicate for the John Doe investigation” and, in par-
ticular, why coordinated expenditures are treated as contributions under Wis-
consin law and subject to the same limits and disclosure requirements. R.1 Ex. C
at 4-5 (Sep. App. 76-77).10 Similarly, Defendant Nickel argued that he was enti-
tled to qualified immunity because his actions did not “violate a clearly estab-
lished statutory or constitutional right of which a reasonable person would have
known.” R.54. at 25. Specifically, he argued there was no basis to find that he
knowingly violated Plaintiffs rights simply by virtue of the fact that he partici-
pated in the John Doe investigation because “[a]s Judge Peterson himself noted,
8 Plaintiffs attached this brief to their Complaint to support their characterization of the “theo-ry” underlying the John Doe Proceedings: “Defendants argue that R.J. Johnson’s ties with FOSW and with other social welfare organizations during the recall campaign, including WCFG, were sufficient to render the activities of these organizations ‘coordinated with FOSW. Under Defendants’ theory, by operation of law, these organizations either (1) became subcom-mittees of FOSW, and so were subject to the same limitations applicable to FOSW, or (2) their expenditures became ‘contributions’ to FOSW.” R.1 ¶97. 9 Plaintiffs do not appear to allege that WCFG was served a subpoena or was subject to a search warrant. 10 Plaintiffs fail to respond to Defendants’ argument that, because it was attached to the com-plaint, this exhibit represents a “built-in-defense” that the law was not “clearly established” at the time Plaintiff O’Keefe was issued the complained-of subpoena. Br. at 41 n.8. (citing Hamilton v. O’Leary, 976 F.2d 341 (7th Cir. 1992).
defendants’ assertion in their opening brief of a qualified immunity defense was
unambiguous” and because “it is absolutely clear that the defendants’ underde-
veloped opening brief argument supplied adequate notice to the plaintiffs and
caused them no prejudice”); Findlay v. Lendermon, 722 F.3d 895, 899 n.3 (7th Cir.
2013) (same).11
For these reasons, Plaintiffs’ waiver argument is without merit.
11 The two cases Plaintiffs cite in support of their waiver arguments – Pole v. Randolf, 570 F.3d 922 (7th Cir. 2009) and Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008) – are inapposite. In Pole, this Court held that a criminal defendant forfeited an ineffective-counsel argument because he did not argue it in his habeas petition or his brief in district court. 570 F.3d at 937. In Kunz, this Court affirmed the district court’s judgment that an argument was not properly preserved because the argument was not “articulated” until the party’s reply brief. 538 F.3d at 682.
determination can be made: (1) whether the Milwaukee Defendants acted in re-
taliation for Plaintiffs’ political speech; (2) whether the Milwaukee Defendants
had any reason to believe Plaintiffs may have engaged in conduct violating Wis-
consin law; (3) whether Wisconsin law may be interpreted, consisted with the
First Amendment, to reach coordinated issue advocacy; or (4) whether Plaintiffs’
advocacy actually violated Wisconsin law. Id. at 62. However, in claiming that
the district court must answer these four questions, Plaintiffs reveal a fundamen-
tal misunderstanding as to what questions need to be asked for this Court to de-
termine whether Defendants are entitled to qualified immunity.12
First, it is irrelevant to the qualified immunity analysis whether the Milwau-
kee Defendants “acted in retaliation for Plaintiffs’ political speech.” Anderson v.
Creighton, 483 U.S. 635, 641 (1987) (holding that police officer’s “subjective beliefs
. . . are irrelevant” in qualified immunity analysis); Crawford-El v. Britton, 523 U.S.
574, 589, 590-91 (1998) (“[E]vidence of improper motive is irrelevant on the issue
of qualified immunity . . . .” even “when the official conduct is motivated, in part,
by hostility to the plaintiff”).
Second, this Court can easily determine that there was “a reason to believe”
Plaintiffs may have engaged in conduct violating Wisconsin law; indeed, that is
12 At minimum, Plaintiffs now appear to concede, with regard to the first two questions they pose which only address “the Milwaukee Defendants,” that Schmitz and Nickel did not retali-ate against Plaintiffs for their political speech and that their qualified immunity claims can now be resolved by this Court.
C. Broad Allegations of Bad Faith Targeting Cannot Defeat a Claim For Qualified Immunity When There Was An Objectively Reasonable Basis For The John Doe.
Plaintiffs argue that “the [qualified immunity] ‘inquiry must be undertaken in
light of the specific context of the case,” . . . or, in other words, that ‘it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Dkt. 60 (quoting Brusseau v. Haugen, 543 U.S. 194, 198 (2004)). De-
fendants agree. Accordingly, and because Plaintiffs cannot set forth constitution-
al claims on behalf of other individuals or organizations,13 the Court must focus
on the specific constitutional injury allegedly suffered by Plaintiffs.
1. Neither Plaintiff Was Required to Produce Documents.
Here, Plaintiffs allege that O’Keefe “first learned of the [John Doe Proceed-
ings] on October 3, 2013, when he was served a subpoena.” R.1 ¶122.14 That sub-
poena was issued by Judge Kluka on September 28, 2013, and required O’Keefe
to appear at the Dane County Courthouse, in Madison, Wisconsin, on October
29, 2013, and to bring with him documents that were defined in “Attachment A.”
13 In Ray v. Maher, 662 F.3d 770, 773-74 (7th Cir. 2011), this Court observed that a “bedrock prin-ciple of § 1983 law” is the personal nature of a § 1983 claim; see, e.g., Russ v. Watts, 414 F.3d 783, 790 (7th Cir. 2005) (holding that parents may sue only for constitutional injury to themselves, not for constitutional injuries to their son); see also Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999) (“a litigant must assert his own legal rights and cannot assert the legal rights of a third party.”); Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) (“[r]ights personal to their hold-ers may not be enforced by third parties”). Thus, Plaintiffs lack standing to assert the constitu-tional rights of other individuals or entities involved in the John Doe Proceedings. 14 Plaintiffs attached this subpoena to their Complaint. R.1 Ex. F. The subpoena indicates that the subpoena was not served on O’Keefe but to a law firm. Id. at 1. Plaintiffs have not alleged that WCFG was served a subpoena or other legal process and have not alleged which of the five John Doe Proceedings directly “targets” WCFG.
R.1 Ex. F. In lieu of appearing himself, the subpoena authorized O’Keefe to pro-
duce the requested documents to Defendant Schmitz. Id. at 2. The subpoena also
notified O’Keefe that he could “file challenge papers” with Judge Kluka if he
“elect[ed] to challenge this Subpoena for any reason.” Id. That is exactly what
Plaintiffs did, resulting in the quashing of the subpoena. R.1 Ex. D. Thus, neither
Plaintiff has produced documents in relation to the John Doe Proceedings. Id.
2. Defendants Did Not Petition For The John Doe Proceedings Against Plaintiffs.
None of the Defendants petitioned for the commencement of the John Doe
Proceedings in the counties in which Plaintiffs are located. Specifically, with re-
gard to Plaintiff O’Keefe, it was the Iowa County District Attorney, Larry Nelson,
who petitioned for its commencement. R.1 Ex. C. Mr. Nelson filed his petition af-
ter having “had occasion to review information involving a person named Eric S.
O’Keefe . . . a resident of the County of Iowa” and after coming to the independ-
ent “belie[f] that further information concerning possible crimes occurring under
Chapter 11 of the Wisconsin Statutes can be revealed utilizing a John Doe Pro-
ceeding.” Id. at 1. Mr. Nelson’s petition also requested the John Doe Proceeding
be secret. Id. at 1-3. In support of his petition, Mr. Nelson attached an affidavit in
which he averred the following:
I make this Affidavit in support of a request for commencement of a John Doe investigation concerning alleged Campaign Finance viola-tions committed by Eric S. O’Keefe . . . By operation of law at Wis-
consin Statutes §§ 11.61(2), 971.19(12) and 978.05(1), the prosecutors and the courts of the defendant’s county of residence [Iowa County] have the responsibility to handle violations of Chapter 11 of the Wisconsin Statutes.
… . . . Mr. O’Keefe is believed to have coordinated political campaign advertising between the Friends of Scott Walker, a campaign com-mittee, and a 501(c)(4) organization known as Club for Growth—Wisconsin. For these reasons, I respectfully submit there is reason to suspect that a criminal violation of the Wisconsin Statutes has occurred and there is likewise reason to suspect that such violations have taken place involving a person who is a resident of Iowa County, making him subject to the jurisdiction of the Iowa County Courts and the Iowa County District Attorney’s Office.
Id. at 4.
On August 27, 2013, Judge Kluka granted Mr. Nelson’s petition and com-
menced the John Doe Proceeding in Iowa County:
Based upon the Petition of District Attorney Larry E. Nelson and his supporting Affidavit, I hereby find reason to believe that viola-tions of Wisconsin Statutes §§ 11.26, 11.27, 11.38 and 11.61(1)(b), per-taining to Limits on Campaign Contributions, False Campaign Re-ports, and Contributions by Corporations, may have occurred and that the crimes have been committed within the jurisdiction of Iowa County and the jurisdiction of this court. NOW THEREFORE I hereby authorize the commencement of a John Doe Proceeding, pursuant to Wis. Stats., Section 968.26.
R.53 Ex. L. Judge Kluka also granted Mr. Nelson’s request that the John Doe Pro-
ceeding be “secret” and, accordingly, issued a secrecy order that governed the
Iowa County John Doe Proceeding.15 R.1 Ex. E. It was only after the Iowa County
John Doe Proceeding was commenced that Defendant Schmitz was appointed its
special prosecutor. R.53 Ex. S.
Thus, despite Plaintiffs’ broad allegations that Defendants attempted to “tar-
get” Plaintiffs by commencing John Doe Proceedings against them and initiating
other legal process (e.g., subpoenas), the specific context of Plaintiffs’ injury, for
purposes of the qualified immunity analysis,16 shows that (1) none of the De-
fendants petitioned for the John Doe Proceedings in the counties in which Plain-
tiffs are located; (2) none of the Defendants provided affidavits in support of
such petitions; (3) none of the Defendants petitioned or issued the secrecy orders
to which Plaintiffs were subject; and (4) none of the Defendants issued the sub-
poena served on Plaintiffs. But even if Plaintiffs could allege that Defendants
were behind the issuance or service of Judge Kluka’s complained-of subpoenas,
Defendants would still be entitled to qualified immunity because each Defendant
“acted reasonably in the particular circumstances that he or she faced.” Plumhoff,
15 A month after receiving his subpoena, which referred to the secrecy order and ordered O’Keefe not to disclose its contents or the fact that he received it, O’Keefe was in contact with The Wall Street Journal and publicly identified himself as a subpoenaed party in the John Doe Proceedings: “[O]ne target who did confirm receiving a subpoena is Eric O’Keefe, who realizes the personal risk but wants the public to know what is going on. Mr. O’Keefe is the director of the Wisconsin Club for Growth. . . . Mr. O’Keefe says he received his subpoena in early Octo-ber.” R.7 Ex. 33. 16 See Forsyth, 472 U.S. at 528 (“To be sure, the resolution of these legal issues [regarding quali-fied immunity] will entail consideration of the factual allegations that make up the plaintiff's claim for relief.”).
cause because the very purpose of requesting the information is to ascertain
whether probable cause exists”); Branzburg v. Hayes, 408 U.S. 665, 682, 688 (1972)
(concluding that “(c)itizens generally are not constitutionally immune from
grand jury subpoenas . . . ” and acknowledging that “the longstanding principle
that ‘the public . . . has a right to every man's evidence’ . . . is particularly appli-
cable to grand jury proceedings”) (omitting citation). 17
III. Defendants Are Entitled to Prosecutorial Immunity.
A. Actions Furthering a John Doe Proceeding are Cloaked in Absolute Prosecutorial Immunity.
Plaintiffs fail to respond to Defendants’ argument (Br. at 52-53) that absolute
immunity has attached to activities undertaken to further John Doe Proceedings
since Wisconsin’s territorial days—long before 42 U.S.C. § 1983 was enacted.
Failing to address this historical fact, Plaintiffs waver between refusing to
acknowledge that absolute immunity can attach to any activity within a John
Doe Proceeding (Resp. Br. at 66) and conceding that immunity can apply in a
John Doe Proceeding insofar as it constitutes a probable cause hearing, like a 17 Contrary to Plaintiffs’ claim, the Tenth Circuit case Bennett v. Hendrix is not “analogous” to this case. In Bennett, “the alleged retaliatory acts complained of . . . include[d] a prolonged and organized campaign of harassment by local police officers . . . with instances where the defend-ants followed, pulled over, cited, intimidated, or otherwise harassed plaintiffs . . . [and] at-tempted to obtain arrest warrants against the plaintiffs without probable cause, and produced and mailed to [county] residents depicting the plaintiffs as criminals terrorizing the county.” 423 F.3d 1247, 1255. Here, the retaliatory act Plaintiffs allegedly suffered was the service of a subpoena, which was issued in a John Doe Proceeding commenced by a non-Defendant district attorney and which was issued by the John Doe judge upon a finding of probable cause. See, e.g., In re John Doe, 689 N.W.2d at 909. Plaintiffs fail to cite any “other closely analogous case establishing that the conduct [of Defendants] is unconstitutional.” See Estate of Escobedo v. Bend-er, 600 F.3d 770, 779 (7th Cir. 2010).
Abstention was initially characterized as an equitable concept, since it is invoked in actions seeking an injunction against the enforce-ment of a state statute or a declaration that a statute is void. See Rail-road Commission v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L. Ed. 971 (1941). Although abstention’s origins in equity might sug-gest that decisions to abstain are reversible only if an abuse of dis-cretion, appellate courts from Pullman to the present have used a more searching standard of review, and have reversed abstention orders whenever convinced the decision was improper or wrong. 1A Moore’s Federal Practice P 0.203(1) at 2105-06 (2d ed. 1980).
For these reasons, this Court should: 1) vacate the preliminary injunction; 2)
reverse the district court’s decision denying Defendants’ motion to dismiss the
personal capacity claims; or 3) hold that the district court should have abstained
from ruling on the preliminary injunction and stay the damages claims under the
underlying state court proceedings are resolved.
Date: September 8, 2014
s/ Joseph M. Russell von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122
/s Douglas S. Knott Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816
/s Timothy M. Barber Axley Brynelson, LLP Timothy M. Barber Patrick J. Fiedler Justin H. Lessner Attorneys for Defendant-Appellant Dean Nickel 2 E. Mifflin Street, Suite 200 Madison, WI 53703 (608) 257-5661
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
this brief contains 13,892 words, excluding the parts of the brief ex-empted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
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Dated: August 1, 2014
s/ Joseph M. Russell von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122
/s Douglas S. Knott Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816
/s Timothy M. Barber Axley Brynelson, LLP Timothy M. Barber Patrick J. Fiedler Justin H. Lessner Attorneys for Defendant-Appellant Dean Nickel 2 E. Mifflin Street, Suite 200 Madison, WI 53703 (608) 257-5661
I hereby certify that on September 8, 2014, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Seventh Cir-
cuit by using the CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the CM/ECF
system.
Date: September 8, 2014
s/ Joseph M. Russell von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122