By M.D. Kittle | Wisconsin Watchdog
MADISON, Wis. — As expected, Cindy Archer is appealing a liberal federal court judge’s ruling tossing out a civil rights lawsuit against partisan prosecutors who made Archer’s life a living hell.
The 79-page brief filed Tuesday in the 7th District U.S. Court of Appeals includes all of the arguments — and then some — laid out in the lawsuit federal Judge Lynn Adelman dismissed in May.
But this is what the appeal ultimately asserts:
Archer, a former aide to Gov. Scott Walker during Walker’s tenure as Milwaukee County executive, was harassed and intimidated by Milwaukee County prosecutors in retaliation for her political advocacy and her affiliation with Walker.
More than that, the appeal takes aim at Adelman’s premise of qualified immunity, a position that says it’s OK if prosecutors eviscerated Archer’s civil rights because, as a government employee tied to Walker, Archer had no right to First Amendment protections.
“The district court’s decision dismissing Ms. Archer’s claims on the pleadings is riddled with errors,” the court filing states. “It disregarded Ms. Archer’s well-pleaded allegations in favor of over 300 pages of extra-complaint documents, nearly all of which were secret before this case and many of which contain purposefully false, incomplete, and misleading information.”
“It blessed retaliatory criminal investigations, so long as the targets are public servants. And it unmoored the concept of prosecutorial immunity from historical precedent and from reason, holding that the existence of probable cause to investigate people other than Ms. Archer for crimes having no relation to her immunized the prosecutors’ investigative conduct pertaining to Ms. Archer,” the appeal continues.
The question that arises for one source close to the legal proceedings is this: Would Adelman, a former Democratic lawmaker, have ruled the same way had the civil rights complaint been one of racial discrimination or the target had been some favorite Democratic Party official?
Do conservatives have civil rights before Adelman?
Attorneys for the defendants — Milwaukee County District Attorney John Chisholm, two of his assistant DAs and two of his investigators — claim their investigation into Walker’s former aides and associates in the “John Doe I” investigation, was founded on established probable cause, therefore fastening immunity and eliminating liability on the part of the prosecutors and investigators.
That probe netted Chisholm six convictions, but his defense attorneys were forced to acknowledge it was Walker’s top aide who took the original complaints of discrepancies in a county veterans fund that sparked the probe to the Milwaukee County DA’s office. Only two of the convictions had anything to do with the original scope of a probe that kept widening as Chisholm, a Democrat, and his assistants saw greater opportunity to go after the Republican county executive.
The investigation rolled out in May 2010, just as Walker was firing up his campaign for governor. The Republican would eventually face off against Milwaukee Democrat Mayor Tom Barrett.
Archer was dragged into the first John Doe even though, like Walker, she was never charged with any wrongdoing.
That didn’t stop John Doe investigators from hounding her, harassing her and interrogating her on multiple occasions over the course of many months, according to Archer’s lawsuit.
In September 2011, law enforcement officers showed up at her Madison home and conducted an early morning armed raid — a very public raid.
“(Chisholm and his assistants) orchestrated a predawn raid on Ms. Archer’s home by armed officers with a battering ram, relying on a warrant that they obtained by concealing and misrepresenting evidence, that had never been meaningfully reviewed by any magistrate, and that may not even have been signed by any magistrate,” Archer’s appeal states. “They tipped off the press to embarrass Ms. Archer, ransacked her home, unlawfully detained her, and subsequently subjected her to a series of interrogations revealing their true purpose: taking down Governor Walker.”
“I was told to shut up and sit down. The officers rummaged through drawers, cabinets and closets. Their aggressive assault on my home seemed more appropriate for a dangerous criminal, not a longtime public servant with no criminal history,” Archer wrote in a June 30, 2015, Wall Street Journal op-ed. The column was published a day before she filed her civil rights lawsuit.
Chisholm — again — did not return Wisconsin Watchdog’s request for comment.
In trial proceedings, Archer’s attorneys told Adelman that pay records reveal former John Doe Judge Neal Nettesheim “did not review the materials before him.”
“These are serious allegations, and we expect to prove them,” Mark W. DeLaquil of Washington, D.C.-based Baker Hostetler LLP, told Adelman during oral arguments in Milwaukee in April.
“(Nettesheim) did not work a single minute (on the warrant). In fact, he was working on another case … at that time, according to the pay records we have obtained,” DeLaquil said.
Contacted by Wisconsin Watchdog, Nettesheim denied the allegations.
“I have no idea what these people are talking about,” the judge said. “Certainly any materials presented to me in support of search warrants were reviewed by me.”
A review of court documents obtained by Wisconsin Watchdog, however, suggests the judge was working on another case in another judicial district on the day he purportedly reviewed the extensive affidavit and accompanying documents and signed off on the warrant.
Archer’s attorneys say Adelman’s pass to abusive prosecutors would “blow a hole through the constitutional rights of public servants like Ms. Archer, ratify egregious misconduct by public officials in their exercise of extraordinary law-enforcement power, and all but close the door on claims vindicating the right to be free from official retaliation carried out through abusive investigation.”
The Milwaukee County District Attorney’s office faces another federal lawsuit.
Chisholm, some of his assistants, and senior staff at the now-defunct Government Accountability Board were sued this week by John K. MacIver Institute for Public Policy, a Madison-based free-market think tank.
MacIver alleges “John Doe ringleaders” illegally seized the organization’s digital records during the so-called John Doe II probe into dozens of right-of-center groups and many more conservative individuals.