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  • WisBar News
    August 29, 2017

    Former Walker Aide, Target in John Doe Probe, Loses Seventh Circuit Appeal

    Joe Forward

    Seventh Circuit

    Aug. 29, 2017 – The U.S. Court of Appeals for the Seventh Circuit has ruled that Cynthia Archer, a former aide to Gov. Scott Walker, cannot pursue claims against six Milwaukee prosecutors and investigators who targeted her in a John Doe probe.

    The three-judge panel in Archer v. Chisholm, No. 16-2417 (Aug. 29, 2017), ruled that the case “presents troubling accusations of a politically motivated investigation” but “Archer has not met her burden in overcoming” a defense of qualified immunity.

    Archer alleged that defendants, including Milwaukee County District Attorney John Chisholm, engaged in a “continuous campaign of harassment and intimidation” against her and others who supported Act 10, which curtailed the bargaining rights of unions.

    John Doe Probe

    Archer worked as Walker’s budget director and director of administrative services when he was the Milwaukee County executive, starting in 2006. Archer continued through May 2010, when Walker launched his gubernatorial campaign.

    Archer became a target in an investigation, initiated by Milwaukee County District Attorney John Chisolm, into activities within Walker’s Milwaukee County Executive Office. The investigation concerned missing money the county provided to a nonprofit.

    The investigation, supervised by a judge, proceeded in secret as a “John Doe” probe. The panel noted that the “John Doe investigation expanded several times as it uncovered evidence of wrongdoing, including illegal campaign fundraising and anomalies in the bidding process for two county projects. …” Prosecutors learned that Archer had communicated with Walker’s campaign treasurer about bid proposals.

    Before Walker took office as governor, investigators obtained a search warrant to search Archer’s county office. By then, Walker had asked her to join his transition team and appointed her as deputy secretary of administration. Then came Act 10.

    While Gov. Walker was pushing to weaken collective bargaining rights applied to public sector unions, the panel noted, Archer was helping to craft the Act 10 legislation and became a key advisor. While this was happening, the John Doe probe continued.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Archer alleged that defendants leaked information on the John Doe probe to news media in order to tarnish her reputation. After Act 10 was enacted, the defendants obtained a search warrant for Archer’s home, alleging probable cause to believe a search would uncover evidence of various crimes, including misconduct in public office.

    The search warrant was executed in the early morning hours. Archer said law enforcement used rough tactics, hammered on her door, and entered her residence with guns drawn. A reporter was on the sidewalk. They seized her computer and cell phone.

    Archer obtained immunity and was not criminally charged. But the investigation resulted in the convictions of four people, the panel noted, “including some members of Walker’s staff who had violated state campaign finance and fundraising laws.”

    The John Doe probe continued, the panel explained, and Chisholm’s office found evidence suggesting unlawful coordination between Walker’s recall campaign and independent political groups. One was the Wisconsin Club for Growth.

    Based on the evidence, a judge granted Chisholm’s request to open a second John Doe investigation, which required investigation outside of Milwaukee County. Ultimately, the John Doe judge appointed a special prosecutor to run the ongoing investigation.

    Supreme Court Ends Probe

    Investigation targets, including the president of Wisconsin Club for Growth, brought lawsuits. Ultimately, the Wisconsin Supreme Court ruled that the investigation could not continue because the alleged conduct involved coordination not regulated in Wisconsin.

    The supreme court ordered the return of seized property and the destruction of information and materials obtained in the investigation. The court later modified the destruction order, directing investigation records to be held by the supreme court clerk.

    Before the supreme court decision, Archer filed her lawsuit, alleging defendants violated her constitutional rights, including retaliatory investigation and arrest, false arrest, conspiracy to violate civil rights, and a violation of her Fourth Amendment right against unreasonable search and seizure. She sought damages under 42 U.S.C. section 1983.

    Immunity Applies

    Archer said the investigation caused great emotional distress, prompted her resignation, negatively impacted her reputation, and made her a target of public harassment.

    Defendants filed a motion to dismiss, invoking absolute and qualified immunity. The U.S. Court of Appeals for the Eastern District of Wisconsin, Judge Lynn Adelman, granted the motion to dismiss. Judge Adelman ruled that prosecutors were entitled to absolute and qualified immunity, and investigators were entitled to qualified immunity.

    The three judge panel for the Seventh Circuit Court of Appeals, in an opinion by Chief Judge Diane Wood, affirmed the district court’s decision to dismiss the case.

    Archer argued that absolute immunity did not apply to the prosecutors because they were acting as investigators.

    The panel noted that “[p]rosecutors are absolutely immune for actions they undertake in their capacities as prosecutors, even including malicious prosecution unsupported by probable cause.” But it does not apply to non-prosecutorial actions.

    Instead of wading into the absolute immunity analysis, the panel discharged the lawsuit based on qualified immunity.

    “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct,” noted Judge Wood, citing a U.S. Supreme Court decision.

    The plaintiff has the burden to defeat a defense of qualified immunity, the panel noted, and Archer failed to overcome the burden.

    For instance, the panel rejected her claim that defendants violated her Fourth Amendment rights with the home search because the search warrant was deficient. That is, she argued that it was not signed by a “neutral and detached” judge.

    “Proving that a judge was not ‘neutral and detached’ is difficult to do; such arguments rarely succeed because they demand exceptional circumstances,” Judge Wood wrote.

    “Wisconsin has a presumption of regularity that attaches to the actions of state judicial officers. Archer has offered nothing in her complaint that would rebut that presumption.”

    The panel also rejected Archer’s claim that defendants procured the search warrant through misleading and unfair statements to the judge.

    The panel noted that qualified immunity still applies to warrant applications containing falsehoods or omitting factual information “if they show an objectively reasonable basis for believing that the affidavit still demonstrated probable cause.”

    “The facts that were allegedly withheld from the issuing judge do not negate probable cause,” concluded the chief judge, noting the affidavit “described a range of suspicious and troubling activity between bidders and Walker’s inner circle, including Archer.”

    The panel discharged the remainder of Archer’s claims, concluding that her allegations did not overcome her burden with respect to qualified immunity.

    With regard to the manner of the search, the panel noted: “Unpleasant as the events undoubtedly were, we see nothing objectively unreasonable in what occurred.”

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