Why Federal Court Rejected Archer Suit

The opponents of Milwaukee County District Attorney John Chisholm and his John Doe probes have relied on Section 1983 of the federal code to initiate legal action against him. Section 1983 was passed by Congress shortly after the end of the Civil War mainly to protect newly freed slaves in the South from the ravages of local officials. It states:

Every person who, under color of any statute … of any State, … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 lawsuits are attractive because liability is on the official personally rather than the agency that employs that official. Thus when Milwaukee County Sheriff David Clarke was unhappy that County Executive Chris Abele vetoed part of the sheriff department’s budget, he sued Abele for violating his rights under Section 1983. In April federal Judge Joseph Stadtmueller dismissed Clarke’s suit, admonishing Clarke that “Political disputes are as old as government itself. … This matter presents an exemplar case.”

Chisholm has helped lead two investigations related to Scott Walker administrations, commonly called “Doe I” and “Doe II.”  Doe I resulted in the conviction of six people associated in some way with the Walker’s Milwaukee County Executive office.

Doe II was triggered by evidence turned up as part of Doe I of coordination between the Walker gubernatorial campaign and various “independent” groups. Under then-existing state law—and present federal law—the value of such coordinated help must be reported as a campaign contribution. This investigation was put on hold when the Wisconsin Supreme Court ruled that any such restrictions on such coordination violated the First Amendment’s protection of free speech.

So far, opponents of the investigations, under the leadership of Eric O’Keefe, his conservative Wisconsin Club for Growth and their attorney have brought two Section 1983 suits against the investigations. The first, against Doe II, failed when it was rejected by the 7th Circuit Court of Appeals.

The second suit was brought against actions in Doe I by Cindy Archer who held an administrative position in the Walker County Executive Office and was slated for a similar position in the Walker state administration before being demoted. This suit was heard by federal Judge Lynn Adelman, who ruled last week against it.

In Archer’s original complaint, she made two main charges: (1) the search of her home was abusive; and (2) the Doe I investigation was politically motivated.

The first was supported by a host of claims that, if true, would have justified her suit. Here are the three Judge Adelman mentions in a footnote:

• that officers “screamed at her and forbade her from leaving the residence, even for a brief period to smoke a cigarette”
• that officers “flooded in, throwing the warrant at her without giving her an opportunity to read it”
• that “[n]o one informed her that she had a constitutional right to remain silent and the right to an attorney”.

These and other accusations were omitted from Archer’s amended complaint when an audio tape from the search showed they were untrue.

Having lost the most compelling of their claims, Archer’s attorneys fell back on the second main charge—that the investigations were politically motivated and allegedly grew out of Chisholm’s unhappiness with Act 10 which made life more difficult for public employee unions. However, the evidence cited was, at best, circumstantial—that Chisholm was elected as a Democrat, that his wife was active in her union, and that he was friendly with Milwaukee Mayor Tom Barrett, Walker’s opponent.

Apparently recognizing the weakness of their argument, Archer’s lawyers decided to add a section discussing the second John Doe investigation, including quotes from the Wisconsin Supreme Court’s decision shutting it down. Judge Adelman seems puzzled by this addition, commenting in another footnote:

The plaintiff was not a subject of John Doe II. Her amended complaint, however, contains many allegations concerning it. According to the plaintiff, this is so because John Doe II supports her allegation that John Doe I was retaliatory.

Bringing in Doe II is odd because the “Rooker-Feldman doctrine,” named for two cases, says that any appeal from a state court decision must be made directly to the US Supreme Court through a “writ of certiori.” Bringing up Doe II opens a back door to the federal courts, which may not be helpful to O’Keefe and company. For example, Archer’s attorneys argue that the defendants have no right to evidence from Doe II because it was collected under a legal theory that was rejected by the state Supreme Court. Yet Judge Adelman is aware that the state Supreme Court rejected both existing state law and decisions by the US Supreme Court. Without the addition of Doe II to the claims there would be no reason for the judge to include language such as the following:

In their court filings, the opponents of John Doe II did not deny that Walker and [Club for Growth] had coordinated. … This legal position directly contradicted Wisconsin case law which held that expenditures for issue advocacy “that are ‘coordinated’ with, or made ‘in cooperation with or with the consent of a candidate . . or an authorized committee’ [are treated] as campaign contributions.”

The decision by Archer’s attorneys to expand her claims to Doe II also led to Judge Adelman’s order allowing the investigators to copy the evidence from Doe II and put the copies under the control of the federal court. He discusses the state court’s confusing and contradictory statements on whether it would preserve the evidence and whether it would make it available if needed in this case and concludes that “the state supreme court’s handling of the access to John Doe II documents issue raises questions about whether it would grant the defendants access to relevant materials for use in the present litigation.”

To back up the decision to protect evidence, he mentions several examples of the Wisconsin Supreme Court’s appearing to sabotage the appeal to the US Supreme Court: “when a law firm with experience in Supreme Court litigation offered to represent the prosecutors pro bono in seeking certiorari review of the state supreme court’s decision shutting down John Doe II, the [Wisconsin supreme] court prevented it from doing so by refusing the prosecutors’ request to allow the firm’s lawyers to review the evidence. … The court’s ruling meant that the prosecutors had to file their petition pro se.”

Saying that “my decision no doubt will be appealed,” Adelman grants the defendants the right to make copies of the evidence and place it under the care of the federal court. He makes it clear that this is necessary only because of the decision to bring in Doe II:

In my view, the materials at issue are unlikely to be relevant to the present case. They deal with materials from John Doe II, in which the plaintiff was not involved, and documents from John Doe I collected after August 10, 2012, a year after the events in the present case occurred… However, the plaintiff includes allegations about John Doe II in her amended complaint and insists that John Doe II supports her theory of an ongoing, continued conspiracy against Walker and his associates, and that these materials may, therefore, be relevant.

Finally there is the question of whether the US Supreme Court will accept the petition for a Writ of certiori (to appeal the decision shutting down Doe II). The court recently granted a ”motion for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record” and announced that a response is due June 22. However, the statistics on such writs are daunting: the federal courts’ own calculations estimate that less than 2 percent are accepted. Having lower court judges point out contradictions between decisions coming from the US and Wisconsin Supreme Courts would seem to increase the chances this appeal will attract the justices’ attention. So the decision by O’Keefe’s attorneys to include the Doe II material in this suit may backfire, as it could lead to the U.S. Supreme Court reviewing the state high court decison to shut down the Doe II probe.

Adelman points out that the campaign against the John Doe investigations illustrates the need to insulate public officials against such suits:

Besieging public officials with lawsuits is precisely the kind of activity that can inhibit if not intimidate an official and cause her to refrain from taking action which, however justified, might engender more lawsuits. … the reason for the immunity doctrine, to enable public officials to do their job free from fear of being subjected to unwarranted litigation, has particular salience in the present case.

The campaign of disinformation against the investigations has done enormous damage to the integrity of Wisconsin elections. We shall see if the federal courts limit that damage.