By M.D. Kittle | Wisconsin Watchdog
MILWAUKEE — The liberal federal judge who last month screamed in frustration, “I don’t care about the law,” on Thursday dismissed a civil rights lawsuit against the prosecutors of an unconstitutional John Doe investigation.
U.S. District Court Judge Lynn Adelman, who has made a judicial career of checking sweeping police searches, couldn’t go there this time. In his 43-page ruling, Adelman ruled that Milwaukee County District Attorney John Chisholm, a partisan Democrat, deserved the protection from lawsuits that prosecutorial immunity brings.
David Rivkin, attorney representing Cindy Archer, the plaintiff in the lawsuit, said Archer will appeal to the 7th Circuit U.S. Court of Appeals.
“The district court’s decision is wrong on the facts and the law, and we are confident that it will be reversed on appeal,” Rivkin told Wisconsin Watchdog. “Cindy Archer deserves justice, and we will continue to fight against government officials who abuse their power for political ends. ”
Adelman made it clear he holds no affection for lawsuits like the one filed last July by the law firm representing Archer, a former aide to Gov. Scott Walker who had her life turned upside down by prosecutors who ordered an early morning raid on her home, interrogated her multiple times, but never charged her with any wrongdoing.
Baker Hostetler, the Washington, D.C. firm that helped Archer bring the litigation against Chisholm and his assistants, “made it very difficult” for the prosecutors to pursue their investigation, Alelman explained. The law firm also represented the Wisconsin Club for Growth, a limited-government group, in its civil rights lawsuit against Chisholm, two of his assistant DAs, and John Doe special prosecutor Francis Schmitz. The Club was among 29 conservative groups prosecutors targeted for years in the politically driven “John Doe II” investigation that was shut down last year and ruled unconstitutional by the Wisconsin Supreme Court.
“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,” Adelman wrote.
So the judge’s argument effectively is, it doesn’t matter whether Chisholm and crew violated Archer’s constitutional rights. The immunity doctrine should keep them “free from fear of being subjected” to lawsuits, litigation Adelman finds to be “unwarranted.”
Many of the targets of what have been billed as “John Doe I” and “John Doe II” know about fear. Several conservatives had their homes raided before dawn by armed law enforcement officers. They were held captive in their family rooms while investigators rooted through their possessions. Some were told they could not even contact an attorney while the hours-long raids were going on. And they were each ordered to keep their mouths shut. If they said anything publicly, they could go to jail and face hefty fines.
All for a partisan investigation based on a widely rejected theory of illegal coordination between Walker and the conservative groups. The judge in the John Doe II investigation quashed the subpoenas used in the confiscation of thousands upon thousands of records, including personal information. The judge said the prosecutor had failed to show probable cause that a campaign finance crime had been committed.
The state Supreme Court, in a 4-2 decision, said the prosecutors’ legal theory that issue advocacy, which is mostly unregulated political speech, can merge into regulated express advocacy, didn’t meet constitutional muster. The court ordered the probe shut down and that the illegally seized property be returned to its rightful owners.
Chisholm and two other Democratic district attorneys involved in the probe have asked the U.S. Supreme Court to overturn the state court’s ruling. They say two of the conservative state Supreme Court justices should have stepped aside from the case because their campaigns benefited from outside issue ads (not tied to their election campaigns) paid for by some of the groups targeted in the John Doe probe. Legal observers say the U.S. high court doesn’t like to intervene in state court business on claims of “error correction.”
Adelman, it would seem, has changed his tune about qualified immunity.
In a 2007 article the judge wrote with a law clerk, Adelman lamented decisions by a conservative majority U.S. Supreme Court that impede the “development of constitutional law.” He took particular aim at the tightening up of qualified immunity, further protecting prosecutors from lawsuits like Archer’s.
“If courts regularly decided the question of immunity before determining whether the defendant had violated a constitutional right, they would establish few such rights,” the judge wrote.
Adelman also took aim at the state Supreme Court’s ruling, insisting that it “overturned years of precedent and practice in Wisconsin” of barring political groups and candidates from working together.
A legal expert who has studied the Supreme Court case said the decision “overturned nothing,” it merely “failed to adopt the prosecutors’ made-up theory.”
“The big lie I keep seeing over and over and over again is that the court overturned anything,” he said.
The law prohibits coordination for express advocacy, not issue advocacy, the legal expert said.
“This will be a case that would be a textbook example. This is ripe for appellate review at the 7th Circuit,” the source said. “It’s very unfortunate that Judge Adelman put the financial burden on the citizens ignoring the unlimited resources of the government.
“Anyone that is concerned about free speech and free thought in this country ought to be hopeful the plaintiffs will appeal.”
Archer’s lawsuit deals in great part with John Doe I, Chisholm’s first sweeping political probe into Walker aides and associates when Walker was Milwaukee County executive. Prosecutors like to boast that the probe ended with six convictions, but four of those convictions had nothing to do with the original intent of the investigation – a theft from a county veterans fund.
It was Walker’s staff that originally reported the discrepancy in the account. It was Walker’s staff that begged Chisholm to investigate. He did – more than a year later, as Republican Walker was in the thick of his first gubernatorial campaign.
Archer’s attorneys argue John Doe I was merely a pretext to the more expensive political dragnet, which Chisholm launched in 2012. Court documents show prosecutors rolled their investigation of Archer into the second John Doe, continuing to dog her long after the first probe faded.
Adelman also ruled that prosecutors could provide him with a copy of the John Doe records that are supposed to be in the custody of the state Supreme Court. Archer’s attorney had fought that course, arguing the prosecutors had no right to unfettered access to documents they illegally seized.
What to do with the “evidence” created some heated exchanges last month during oral arguments before Adelman, who raised his voice and declared, “I don’t care about the law!”
What the judge meant was that he wasn’t as interested in the legal intricacies and court cases as he was with resolving the “unique” problem of determining who should have custody of the 6 million-plus documents grabbed in two separate but integrally connected and politically driven probes. It seemed clear at the time he wanted the prosecutors to be able to freely access the records.