The John K. Maciver Institute For Public Policy, Inc. v. Schmitz, Francis et alBrief in OppositionW.D. Wis.December 22, 2016IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN PLAINTIFF JOHN K. MACIVER INSTITUTE’S CONSOLIDATED BRIEF IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS Plaintiff The John K. MacIver Institute for Public Policy (“MacIver”), on behalf of itself and members of the class it seeks to represent, hereby submits its consolidated brief in opposition to Defendants’ Motions to Dismiss (Dkt. Nos. 65, 68). THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., on behalf of the class it seeks to represent, Plaintiff, v. FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, and ROBERT STELTER, in their official and individual capacities, and KEVIN KENNEDY, SHANE FALK, and JONATHAN BECKER, in their individual capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Case No. 16-cv-539 Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 1 of 50 2 Introduction ................................................................................................................................................... 3 The Legal Standard ....................................................................................................................................... 4 Argument and Authorities ............................................................................................................................. 4 I. Defendants Seized MacIver’s Records in Violation of the Stored Communications Act .................. 5 A. The John Doe judge and proceeding cannot issue warrants that comply with the SCA. .......... 6 1. A John Doe judge is not a “court.” ..................................................................................... 7 2. A John Doe proceeding is not a “court.” .......................................................................... 10 3. A John Doe proceeding is not “of general criminal jurisdiction.” .................................... 11 4. A John Doe judge is not a “court of general criminal jurisdiction” even if she is a judge of a court of general criminal jurisdiction. ............................................................................ 15 B. Defendants violated the SCA when they seized and catalogued MacIver’s SCA-protected materials without a valid warrant or prior or delayed notice. .................................................. 17 C. Defendants knowingly or intentionally engaged in conduct that violated the SCA. ............... 21 D. MacIver is a subscriber or customer of Google and is “aggrieved” by Defendants’ violations. ................................................................................................................................ 23 II. The Court should decline to dismiss MacIver’s suit for damages on the grounds of Defendants’ affirmative defenses. ...................................................................................................................... 24 A. Affirmative defenses do not justify dismissal under Rule 12(b)(6). ....................................... 25 B. Defendants have not established that Congress intended to incorporate common-law absolute and qualified immunity defenses into § 2707. ......................................................................... 28 C. The Defendants have not established their entitlement to affirmative defenses. .................... 30 1. The Prosecutor Defendants have not demonstrated that they entitled to absolute immunity for their investigatory conduct that violates the SCA. ...................................................... 30 2. Wisconsin law clearly established that a John Doe judge is not a “court” at the time Defendants sought, obtained, and executed John Doe warrants in violation of the SCA, and thus Defendants are not entitled to qualified immunity. ............................................ 38 3. The Defendants did not operate in good faith reliance on a court warrant when seizing MacIver’s confidential records. ........................................................................................ 43 III. Sovereign Immunity does not bar MacIver’s claim for prospective injunctive relief. .................. 46 Conclusion .................................................................................................................................................. 49 Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 2 of 50 3 The judge and the court are not identical. The judge is a man. The court is an institution. -- Rubin v. Wisconsin, 211 N.W. 926 (Wis. 1927) While a John Doe judge must be a judge of a court of record, a John Doe investigation is not a court proceeding and a John Doe judge is not authorized to exercise all the powers of a court. -- In re John Doe Proceeding, 660 N.W.2d 260 (Wis. 2003) Introduction The Stored Communications Act authorizes a state court of general criminal jurisdiction to issue a warrant to seize stored electronic communications. Only courts may issue such warrants. Judges may not. A John Doe judge is a judge. She is not a court, and she does not exercise general criminal jurisdiction-even though she is a part of a court of general criminal jurisdiction when she acts outside of the Doe. She may not exercise the statutory powers of a court, including those conferred by the SCA. She may not issue warrants to seize stored electronic communications. This has been clearly established since the SCA was amended in 2009. Defendants intentionally seized MacIver’s stored electronic communications using a warrant issued by a John Doe judge during a John Doe investigation. They now claim that they seized and reviewed these materials in good faith reliance on a court warrant, even though they knew when they seized the materials that the warrant was not issued by a court. They claim they could not have reasonably known that a John Doe judge cannot issue a warrant to seize stored electronic materials, even though the SCA permits only a court to issue such a warrant and the Wisconsin Supreme Court has consistently held for more than fifty years that a John Doe judge cannot exercise the statutory powers of a court. Not for the first time, Defendants employ “theories of law that do not exist.” The Court should deny their motions. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 3 of 50 4 The Legal Standard The federal pleading rules require no more than “a short and plain statement of the claim” showing that the pleader is entitled to relief. Fed R. Civ. P. 8(a). When considering a motion to dismiss, the Court must “accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Doe v. Village of Arlington Heights, 782 F.3d 911, 914-15 (7th Cir. 2015). MacIver receives the benefit of all reasonable inferences. Nieta v. City of Chicago, 830 F.3d 494, 499 (7th Cir. 2016). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Argument and Authorities MacIver addresses Defendants’ Motions to Dismiss in three parts. In Part I, MacIver addresses Defendants’ arguments that it has failed to state a claim. MacIver explains that (A) a John Doe judge is not a “court of competent jurisdiction,” does not exercise the statutory powers of a court, and therefore may not issue warrants that comply with the SCA; (B) Defendants are primarily liable under the SCA for seizing, retaining, reviewing, and cataloguing MacIver’s SCA-protected materials without notice or a valid warrant; (C) Defendants knowingly and intentionally engaged in conduct that violated the SCA; and (D) MacIver is a subscriber and also and “other person aggrieved” by Defendants’ violations. In Part II, MacIver addresses the affirmative defenses that Defendants have raised. It explains that (A) it is inappropriate to dismiss under Rule 12(b)(6) on the basis of an affirmative Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 4 of 50 5 defense; (B) the § 1983 defenses of absolute and qualified immunity do not apply to the Stored Communications Act; (C) the Prosecutor Defendants acted as investigators and are not entitled to absolute immunity; (D) long-standing Wisconsin law clearly established that a John Doe judge is not a “court” when Defendants seized MacIver’s SCA-protected materials using a John Doe warrant such that no Defendant is entitled to qualified immunity; and (E) the well-pleaded facts establish that Defendants have not acted in good faith under § 2707(e). In Part III, MacIver addresses Defendants’ invocation of sovereign immunity from declaratory and injunctive relief, and explains that sovereign immunity does not bar its claims because MacIver seeks prospective injunctive relief under Ex parte Young to remedy two distinct ongoing violations of federal law. I. Defendants Seized MacIver’s Records in Violation of the Stored Communications Act The Stored Communications Act (“SCA”) protects the privacy of stored electronic communications. See In re Zynga Privacy Litig., 750 F.3d 1098, 1103 (9th Cir. 2014). It prescribes the lawful means by which governmental entities may seize the contents of electronic communications and other records held in storage by providers of electronic communications services (“ECS”) or remote computing services (“RCS”). 18 U.S.C. § 2703. For example, a governmental entity may seize SCA-protected materials using either a warrant from a state court of general criminal jurisdiction or, if it gives the target prior or delayed notice, using other means. Defendants knowingly and intentionally avoided the lawful means prescribed in § 2703. They sought, obtained, and executed warrants from a secret “John Doe proceeding” to seize millions of protected materials that belonged to MacIver and other similarly situated individuals Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 5 of 50 6 and groups. FAC ¶¶ 3, 15-17, 20, 22-24, 28-30, 34-36, 44-47, 50-51, 55-59, 80-87. They never provided prior or delayed notice. Id. ¶ 62. As Defendants knew at the time, a John Doe judge proceeding is not a court. Wisconsin v. Washington, 266 N.W.2d 597, 607 & nn.15,17, 614 (Wis. 1978); FAC ¶ 41, Ex. I at 4 n.2, citing Washington, 266 N.W.2d at 607. Because a John Doe judge is not a court and does not exercise general criminal jurisdiction, she may not issue warrants for stored electronic records. 18 U.S.C. §§ 2703, 2707. MacIver has sufficiently alleged that Defendants violated the SCA. A. The John Doe judge and proceeding cannot issue warrants that comply with the SCA. In this Section, MacIver explains that (1) a John Doe judge is not a “court”; (2) a John Doe proceeding is not a “court”; (3) a John Doe proceeding is not “of general criminal jurisdiction”; and (4) contrary to Defendants’ contention, a judge of a circuit court is not acting as a “court” when she sits as a John Doe judge. Only a “court of competent jurisdiction” may issue a warrant that complies with the SCA. 18 U.S.C. § 2703(a)-(c). A “court of competent jurisdiction” includes a federal court under certain conditions and “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” 18 U.S.C. § 2711(3). In Wisconsin, a “court” means a “circuit court.” Wis. Stat. § 967.02(7). The circuit court is the court of general criminal jurisdiction in Wisconsin. WIS. CONST. art. VII, § 8. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 6 of 50 7 1. A John Doe judge is not a “court.” “[A] John Doe judge is not the equivalent of a court.”1 Wisconsin v. Washington, 266 N.W.2d at 607 & nn.15, 17, 614; see Wisconsin v. Koopman, 148 N.W.2d 671, 673 (Wis. 1967); Wis. ex rel. Jackson v. Coffey, 118 N.W.2d 939, 943-44 (Wis. 1963) (rejecting contention that a John Doe judge is a “court”-even when the John Doe judge is a judge of a circuit court); Wis. ex rel. White v. Dist. Ct. of Milwaukee Cnty., 54 N.W.2d 189, 192 (Wis. 1952); Wisconsin v. Friedl, 47 N.W.2d 306, 308 (Wis. 1951); Wisconsin v. Schober, 481 N.W.2d 689, 692-93 (Wis. App. 1992) (“[T]he John Doe tribunal is not acting as a ‘court,’ but as a ‘judge.’ . . . There is an express distinction between a judge and a court.” (citations omitted)); Gavcus v. Maroney, 377 N.W.2d 200, 200 (Wis. App. 1985); Wis. Family Counseling Servs., Inc. v. Wisconsin, 291 N.W.2d 631, 635 & n.7 (Wis. App. 1980) (“To initiate a John Doe proceeding, a complaint is made to a judge, not the circuit court.”); see also Wis. ex rel. Newspapers, Inc. v. Circuit Ct. for Milwaukee Cnty., 370 N.W.2d 209, 213 (Wis. 1985) (Newspapers II) (“[T]here is an express distinction between a judge and a court.”); Wisconsin v. Dickson, 193 N.W.2d 17, 23 (Wis. 1972) (noting that a judge was not presiding over a court because he was not acting “for the purpose of adjudicating the rights of the parties” and was not acting in a courtroom). As the Wisconsin Supreme Court explained at length almost 100 years ago: The judge and the court are not identical. The judge is a man. The court is an institution. It requires something more than a judge sitting on the bench to constitute a court. It requires, in addition, the existence of conditions authorizing the exercise of the powers of a court. It requires the presence of that upon or over which the powers of a court may be exerted, namely, a controversy involving legal or human rights. It requires the presence 1 It is this fact that distinguishes this case from United States v. Orisakwe, cited by Defendants (other than Stelter). Dkt. No. 66 at 12, citing United States v. Orisakwe, 624 Fed App’x 149, 155 (5th Cir. 2015). Orisakwe challenged the ability of a state court to issue an SCA-compliant warrant outside the boundaries of the state. Orisakwe, 624 Fed. App’x at 154. The Fifth Circuit notes in its opinion that appellant contended that these were “court orders” issued by a “court.” Id. at 154-55. Unlike here, there seemed to be no question that the issuing body was a court. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 7 of 50 8 of litigants, generally attorneys, usually officers, such as bailiff, clerk, etc., and frequently jurors. To constitute a court, some of these elements must concur with the presence of a presiding judge. It is this institution, as distinguished from the judge, that merits and enjoys the respect of society. Rubin v. Wisconsin, 211 N.W. 926, 928-29 (Wis. 1927); see also Coffey, 118 N.W.2d at 943 (noting the “procedural formalities” that distinguish a judge from a court). The John Doe judge does not issue orders as a circuit court. “[A]n order issued by a judge in a John Doe proceeding is not a judgment or order of a circuit court.” In re John Doe Proceeding, 660 N.W.2d at 268-69; Schober, 481 N.W.2d at 692; Gavcus, 377 N.W.2d at 200. As the Wisconsin Supreme Court held in 2003, it is “well settled that a John Doe judge’s actions are not directly appealable to the court of appeals because an order issued by a John Doe judge is not an order of a ‘circuit court’ or a ‘court of record.’” In re John Doe Proceeding, 660 N.W.2d at 268-69 (emphasis supplied); id. at 273 (holding that John Doe judges are subject to supervisory jurisdiction of Wisconsin appellate courts because although they are not “courts,” they fall under the definition of “other person or body” (citing Wis. Stat. § 809.51(1))). The John Doe judge cannot exercise the statutory authority of a “court”-even if she is the judge of a circuit court. See In re John Doe Proceeding, 660 N.W.2d at 276 n.15, 282 (“A John Doe judge does not, however, enjoy the statutory powers of a court.”); Cummings, 546 N.W.2d at 412 (“Distinguishing between a court and a judge, this court held that a John Doe judge does not have the statutory powers of a court. This conclusion is indubitably correct.” (citing Coffey, 118 N.W.2d 939)); Coffey, 118 N.W.2d at 942-43 (holding that a John Doe judge does not have authority to compel testimony because statute gives that authority to a “court”- even if the John Doe judge is a judge of the circuit court); White, 54 N.W.2d at 192. For example, consider Coffey. Under Wisconsin law, only a court may compel a witness to testify. Wis. Stat. § 972.08. In Coffey, the Wisconsin Supreme Court held that a John Doe judge did not Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 8 of 50 9 have the authority of a court to compel a witness to testify-even though the John Doe judge in that case was also a judge of the circuit court. 118 N.W.2d at 942-43. The John Doe statute itself distinguishes between “judge” and “court.” On the one hand, the statute prescribes that a “judge” shall convene a proceeding on the motion of the district attorney and shall subpoena and examine witnesses. Wis. Stat. § 968.26(1). The extent and manner of examination is within the discretion of the “judge,” including whether it will be adjourned and whether it will be secret. Id. § 968.26(3). On the other hand, only a “court” may compel a witness to testify. Id.; see Coffey, 118 N.W.2d at 943-44 (holding that a John Doe judge lacked that power-even if the John Doe judge was a judge of the circuit court) (Wis. 1963). In order to compel a witness to testify, the district attorney must ask a circuit court; the statute does not permit the John Doe judge as such to perform that function-even if she is a judge of the circuit court. See Wis. ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee Cnty., 221 N.W.2d 894, 897-98 (Wis. 1974) (Newspapers I); Coffey, 118 N.W.2d at 943-44. Defendants were well aware of this distinction. In fact, they explicitly acknowledged it when they asked the John Doe judge to appoint a special prosecutor on August 21, 2013. As the Defendants wrote at the time, “John Doe judges are not courts of record.” FAC Ex. I at 4 n.2, citing Washington, 266 N.W.2d at 607. They further stated in that letter that a John Doe judge does not have the authority to appoint a Special Prosecutor because she is not a “court of record.” Id., citing Wis. Stat. § 978.045(1r). Defendants acknowledged, however, that a John Doe judge may be a “‘judge’ (rather than a ‘judge of a court of record.’)” Id. Under the SCA, only a “court” may issue warrants to seize stored electronic communications. The pleadings and applicable law establish that Judge Kluka did not act as a Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 9 of 50 10 “court” when she served as the John Doe judge. When Defendants obtained and catalogued MacIver’s SCA-protected records based on a warrant issued not by a court, but by a John Doe judge, they violated the SCA. 2. A John Doe proceeding is not a “court.” As discussed above, a judge is not acting as a “court” when presiding over a John Doe proceeding. Nor is a John Doe proceeding itself a “court.” “[A] John Doe proceeding is not a proceeding in a court of record.” Washington, 266 N.W.2d at 607 & nn.15,17, 614; see Newspapers I, 221 N.W.2d at 897. “[A]n order issued by a judge in a John Doe proceeding is not a judgment or order of a circuit court.” In re John Doe Proceeding, 660 N.W.2d at 268, citing Washington, 266 N.W.2d 577; Wis. Stat. §§ 967.02(6) (defining “judge”), 967.02(7) (defining “court”). Rather, a John Doe proceeding is “primarily an investigative device” and an “inquest.” Id. at 604. It is an “independent, investigatory tool used to ascertain whether a crime has been committed and if so, by whom.” In re John Doe Proceeding, 660 N.W.2d at 268. “Typically, when a circuit judge renders a decision in a court of record, that decision may be appealed directly to the court of appeals . . . . By contrast, a John Doe proceeding is commenced by a judge, who acts as a tribunal.” Id. A “court” includes “procedural formalities” that distinguish it from a John Doe proceeding, including attendance by the parties, their counsel, and court officials while court is in session, minutes kept by a clerk, and final orders that are recorded. Coffey, 118 N.W.2d at 943. The Court held that these “procedural formalities”-which do not exist in a John Doe Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 10 of 50 11 proceeding-“tend to insure considered and responsible exercise of an important power” even if, in the particular case, the proceedings are not public. Id. The circuit court, unlike the John Doe judge presiding over a John Doe proceeding, enjoys the “statutory powers of a court,” including the power to decide questions of immunity and contempt. See In re John Doe Proceeding, 660 N.W.2d at 276 n.15. It is the circuit court, not the John Doe judge, that fits the statutory definition of a “court of competent jurisdiction” and that may issue warrants that comply with the SCA. 3. A John Doe proceeding is not “of general criminal jurisdiction.” The SCA also requires that the court issuing the warrant be one of “general criminal jurisdiction.” A John Doe proceeding is not a court, as shown above, and is also not of “general criminal jurisdiction.” A John Doe proceeding is limited in its jurisdiction. “The statutory jurisdiction of a John Doe judge has been defined as the authority of the judge to conduct a John Doe investigation.” Cummings, 546 N.W.2d at 411. The John Doe statute established the “proceeding to determine whether a crime has been committed in the court’s jurisdiction.” Wis. Stat. § 968.26. “[T]he function of the John Doe proceeding has almost always been to ‘ascertain whether [a] crime has been committed and by whom.’” Cummings, 546 N.W.2d at 411, quoting Wolke v. Fleming, 129 N.W.2d 841 (Wis. 1964); Friedl, 47 N.W.2d at 308 (noting that “a proceeding before an examining magistrate is not a judicial trial” but instead a “mere judicial inquiry” and that the doctrine of res judicata does not apply). “The John Doe judge’s adjudicative role is limited to determining probable cause.” In re John Doe Proceeding, 660 N.W.2d at 282 (Sykes, J., dissenting), citing Washington, 266 N.W.2d 597. “The John Doe judge should act with a view Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 11 of 50 12 toward issuing a complaint or determining that no crime has occurred.” Washington, 266 N.W.2d at 605. “The document which may finally be issued as a result of a John Doe proceeding is a complaint.” Wisconsin v. Doe, 254 N.W.2d 210, 212 (Wis. 1977); see Schober, 481 N.W.2d at 693 (noting that a complaint that issues out of a John Doe proceeding will later be tested “in open court”). To do more than issue a complaint is an abuse of discretion. Washington, 266 N.W.2d at 605. The John Doe proceeding does not exist to determine guilt or innocence, as a court of general criminal jurisdiction does. “When used in the context of a John Doe proceeding, however, the word ‘jurisdiction’ can only be meant to identify the authority of the judge to investigate” pursuant to Wis. Stat. § 968.26, “as distinguished from the authority to try, convict and penalize assumed by a court with proper personal and subject matter jurisdiction over which a judge presides.” Wis. Family Counseling Servs., 291 N.W.2d at 635 n.7; see Schober, 481 N.W.2d at 693 (“[T]he purpose of the John Doe is in no way designed to decide whether to take the case to its ultimate conclusion before a trier of fact. . . . [T]he magistrate conducting the John Doe is not concerned about the ultimate trial, but only whether there is probable cause to issue the complaint.” (citations omitted)). Consistent with its limited jurisdiction, a John Doe proceeding has limited powers. A John Doe judge enjoys the statutory authority given under the John Doe statute to convene a John Doe proceeding, order secrecy, and issue a complaint at the conclusion of the investigation.2 In re John Doe Proceeding, 660 N.W.2d at 275; Wis. Stat. § 968.26. Relying on statutory judicial authority, she may also “issue subpoenas, examine witnesses, adjourn the 2 In this case, the John Doe judge actually exercised even fewer powers, as the authority to issue charges was vested in the special prosecutor. FAC Ex. I at 3. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 12 of 50 13 proceedings, take possession of subpoenaed records, adjudicate probable cause, and issue and seal warrants.” In re John Doe Proceeding, 660 N.W.2d at 275. “A John Doe judge does not, however, enjoy the statutory powers of a court.” In re John Id. n.15. Under Wisconsin law, a John Doe judge may not preside over trial by jury or determine guilty or innocence after trial by judge, may not accept guilty pleas, and does not sentence those who are convicted. Cf. Wis. ex rel. Kowaleski v. Dist. Ct. of Milwaukee Cnty., 36 N.W.2d 419, 423 (Wis. 1949) (“At no time . . . in the investigational proceedings can the district court make any final disposition or determination which in any way will create an extreme emergency or exigency affecting the liberty or constitutional rights of the plaintiff, Kowaleski.”); Wis. ex rel. White v. Dist. Ct. of Milwaukee Cnty., 54 N.W.2d 189, 192 (Wis. 1952) (noting that magistrate does not have power to sentence an offender or place him on probation). Because a John Doe proceeding is not a “felony criminal proceeding,” the John Doe judge may not issue a material witness warrant. Wisconsin v. Brady, 345 N.W.2d 533, 535 (Wis. App. 1984). “While a John Doe judge must be a judge of a court of record, a John Doe investigation is not a court proceeding and a John Doe judge is not authorized to exercise all the powers of a court.” In re John Doe Proceeding, 660 N.W.2d at 282 (Sykes, J., dissenting), citing Washington, 266 N.W.2d 597, Newspapers I, 221 N.W.2d 894, Wis. Stat. §§ 968.26, 967.02(6). Defendant Stelter argues that a John Doe proceeding is “of general criminal jurisdiction” because its jurisdiction is “broad and general” and could, at the time, investigate many alleged crimes. 3 Dkt. No. 69 at 14. This is not the law. “Criminal subject matter jurisdiction is the power 3 In 2009, Congress amended the SCA to add the words “court of competent jurisdiction” to § 2703. Pub .L. No. 111-79, 123 Stat. 2086 (2009). In the same legislation, Congress amended § 2511 of the Wiretap Act to state that persons who intercept certain communications are “subject to suit by the Federal Government in a court of competent jurisdiction.” 18 U.S.C. § 2511(5)(a)(i). According to Defendants’ interpretation of the phrase, § 2511 Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 13 of 50 14 of the court to inquire into a charged crime, to apply applicable law, and to declare punishment.” Wisconsin v. West, 571 N.W.2d 196, 201 (Wis. App. 1997), review denied, 579 N.W.2d 44 (Wis. 1998). A John Doe proceeding does not have the authority to “declare punishment”; its jurisdiction ends when the judge makes a probable cause determination. Cummings, 546 N.W.2d at 411; Washington, 266 N.W.2d at 605; Doe, 254 N.W.2d at 212; see Schober, 481 N.W.2d at 693. A circuit court exercises general criminal jurisdiction with its attendant powers: a circuit court has “original jurisdiction in all matters civil and criminal” and “may issue all writs necessary in aid of its jurisdiction.” WIS. CONST. art. VII, § 8. Even though the John Doe judge may issue a complaint, that complaint is subject to testing before the open circuit court as a prerequisite to the filing of an information, arraignment, and trial. Doe, 254 N.W.2d at 215; Schober, 481 N.W.2d at 693. It is the circuit court, and not the John Doe judge presiding over a John Doe proceeding, that exercises the “general criminal jurisdiction” necessary to issue warrants that comply with the SCA. 18 U.S.C. §§ 2703; 2711. Congress declared that only state courts of general criminal jurisdiction may issue SCA- compliant warrants. While presiding over the John Doe proceeding, Judge Kluka was neither a “court” nor of “general criminal jurisdiction.” Instead, she oversaw a proceeding with limited jurisdiction that could not lawfully issue a warrant for SCA-protected materials. would permit the Federal Government to bring suit in a Wisconsin John Doe proceeding. In light of long-established Wisconsin law regarding the limited jurisdiction of the John Doe, Defendants’ interpretation is untenable. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 14 of 50 15 4. A John Doe judge is not a “court of general criminal jurisdiction” even if she is a judge of a court of general criminal jurisdiction. Defendants argue Judge Kluka had the authority to issue an SCA-compliant warrant because she was a judge of a circuit court.4 See Dkt. No. 66 at 2-3, 9-10, 11-13; Dkt. No. 69 at 6, 13-16. 5 This is incorrect. A John Doe judge is not a circuit court and does not act as a circuit court, even if she is otherwise considered a judge of a circuit court. A John Doe judge does not act as a circuit court even if the judge herself is a judge of a circuit court. This question was explicitly addressed by the Wisconsin Supreme Court in 2003: “While a John Doe judge must be a judge of a court of record, a John Doe investigation is not a court proceeding and a John Doe judge is not authorized to exercise all the powers of a court.” In re John Doe Proceeding, 660 N.W.2d at 282. “The law ordinarily makes a clear distinction between a magistrate and a court. The distinction exists even where the person who acts in the capacity of a magistrate is also the judge of a court of record.” Koopman, 148 N.W.2d at 673; Washington, 266 N.W.2d at 607 n.15; Perry, 237 N.W.2d at 680 (“[A] judge even of a court of record is not a court.”); White, 54 N.W.2d at 192; Friedl, 47 N.W.2d at 308; see Washington, 266 N.W.2d at 607 n.15; Newspapers I, 221 N.W.2d at 896 (noting the “generally recognized 4 Defendant Stelter goes as far as to say that “Judge Kluka and the John Doe proceedings over which she presided bear all the hallmarks of a circuit court.” Dkt. No. 69 at 13. Defendant Stelter then cites cases that directly refute this assertion. E.g., id. at 4, citing Cummings, 546 N.W.2d at 410-11; id. at 5, citing Washington, 266 N.W.2d at 605; see Cummings, 546 N.W.2d at 412 (“Distinguishing between a court and a judge, this court held that a John Doe judge does not have the statutory powers of a court. This conclusion is indubitably correct.” (citing Coffey, 118 N.W.2d 939)); Washington, 266 N.W.2d at 607 (“A John Doe judge is not the equivalent of a court, and a John Doe proceeding is not a proceeding in a court of record.”); id. at 607 n.15 (“There is a distinction between the judge and the court.”); id. at 607 n.17 (“[I]mmunity must be granted by ‘order of the court’ meaning a court of record sitting as such and not the judge or other magistrate conducting a John Doe proceeding.”). 5 MacIver agrees that Wisconsin law grants judges the authority to issue search warrants generally, Wis. Stat. § 968.12, and permits them to exercise this authority during a John Doe proceeding, Cummings, 546 N.W.2d at 410- 11. That state law permits judges to issue warrants is necessary, but not sufficient, to satisfy the SCA. In order to satisfy the SCA, the entity that issues the warrant must be a “court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” 18 U.S.C. §§ 2703, 2711(3). It is not enough that state law authorizes the John Doe judge to issue warrants; to comply with the SCA, the John Doe judge must also act as a “court” that possesses “general criminal jurisdiction.” It is neither. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 15 of 50 16 fact that a judge is only part of a court”); Gavcus, 377 N.W.2d at 201 (“[A] circuit judge’s order . . . is not appealable because it is not the judgment or order of a court.”). Congress drew a distinction between a “court of competent jurisdiction” and a “judge of a court of competent jurisdiction.” On the one hand, as discussed above, the SCA permits governmental entities to require disclosure pursuant to a warrant issued by a “court of competent jurisdiction.” 18 U.S.C. § 2703. A “court of competent jurisdiction” includes “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” 18 U.S.C. § 2711(3)(B). On the other hand, the Federal Wiretap Act (“FWA”), the SCA’s sister statute under ECPA, permits a “State court judge of competent jurisdiction” to grant an order permitting the interception and disclosure of wire or oral communications. 18 U.S.C. §§ 2510(9); 2516(2); 2517(5); 2518(1), (8)(b). A “judge of competent jurisdiction” is a “judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing the interceptions of wire, oral, or electronic communications.” Id. § 2510(9) (emphasis supplied). Judges have the authority to order wiretaps under the FWA, 18 U.S.C. §§ 2510(9); 2516(2); 2517(5); 2518(1), (8)(b), but only courts have the authority to issue warrants under the SCA, id. §§ 2703, 2711. Congress has foreclosed Defendants’ argument that because the John Doe judge was a judge of a circuit court, she had the authority to issue warrants for SCA-protected materials. Dkt. No. 66 at 12; Dkt. No. 69 at 13-14. To be a judge of a circuit court is to be a “judge of a[] court of general criminal jurisdiction of a State”; in other words, to be a “judge of competent jurisdiction.” 18 U.S.C. § 2510(9) (emphasis supplied). Although it could have, Congress did not choose to grant the authority to issue SCA-compliant warrants to a “judge of competent Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 16 of 50 17 jurisdiction,” cf. id. §§ 2510(9); 2516(2); 2517(5); 2518(1), (8)(b); it granted that authority only to a “court of competent jurisdiction,” id. §§ 2707, 2711. In their Motions, Defendants ask this Court to ignore this distinction and permit judges to issue warrants to seize stored electronic communications. The Court should reject this invitation to render Congress’s distinctions within the Electronic Communications Privacy Act “meaningless, redundant, or superfluous.” Commodity Futures Trading Comm’n v. Worth Bullion Grp., 717 F.3d 545, 550 (7th Cir. 2013); see Marx v. Gen. Rev. Corp., __ U.S. __, 133 S. Ct. 1166, 1178 (2013) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”). The term “court” does not mean “judge.” 6 B. Defendants violated the SCA when they seized and catalogued MacIver’s SCA-protected materials without a warrant from a court of competent jurisdiction or prior or delayed notice. In their briefs, Defendants (other than Defendant Stelter) argue that because Judge Kluka signed the electronic search warrants that violated the SCA, they cannot be liable for requesting them, obtaining them, executing them, and then receiving and cataloguing the materials that were 6 Defendant Stelter argues that by using the term “including” in 18 U.S.C. § 2711(3), Congress impliedly extended the authority to issue SCA-compliant warrants to John Doe judges when it explicitly gave that authority to federal district courts and state courts of general criminal jurisdiction. Dkt. No. 69 at 15. Defendant Stelter is incorrect. First, Defendant Stelter misapplies Gaffney v. Riverboat Servs. of Ind., Inc., which considered the phrase “any appropriate relief, including” equitable remedies such as reinstatement and back pay. 451 F.3d 424, 458 (7th Cir. 2006). The Court held that “equitable remedies, including an injunction and reinstatement, are listed in a demonstrative fashion.” Id. The Court’s holding was limited to that statute, which bears little resemblance to § 2711, and did not hold, as Defendant Stelter represents, that “‘including’ is a word of illustrative application when used in statutes.” Dkt. No. 69 at 15. Second, “including” will not bear the weight that Defendant Stelter places on it. Both federal district courts and state courts of general criminal jurisdiction are courts, not judges. If Congress had intended to extend the definition of “court of competent jurisdiction” to John Doe judges, it would have done so explicitly, see 18 U.S.C. § § 2510(9), rather than by implication. Congress has indicated that it believes there is a meaningful distinction between judges and courts. Compare 18 U.S.C. §§ 2510(9); 2516(2); 2517(5); 2518(1), (8)(b) (permitting judges to issue FWA- compliant interception and disclosure orders), with 18 U.S.C. §§ § 2703, 2711(3) (permitting courts to issue SCA- compliant warrants). Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 17 of 50 18 returned. Dkt. No. 66 at 13-14. This is incorrect. The Court should reject Defendants’ novel application of the words “secondary liability.” Section 2703 states the conditions under which a governmental entity may force an ECS or RCS provider to disclose private stored electronic communications. 18 U.S.C. § 2703. When a governmental entity seizes and accumulates protected records by means other than those prescribed, it is liable under § 2707 as “the person or entity . . . which engaged in that violation.” 18 U.S.C. § 2707; see Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432, 443 (W.D. Tex. 1993), aff'd, 36 F.3d 457 (5th Cir. 1994); Freedman v. America Online, Inc., 303 F. Supp. 2d 121, 127 (D. Conn. 2004) (imposing liability on government agents for requesting information from a service provider without following “specific legal processes” required by SCA). The conduct that creates liability is not, as Defendants contend, the issuance of the warrant. The statute does not prohibit the issuance of a warrant by itself. The conduct that creates liability is forcing the service provider to disclose the materials without following the prescriptions of the SCA. 18 U.S.C. § 2703(a)-(c); Steve Jackson Games, 816 F. Supp. at 443; see Freedman, 303 F. Supp. 2d at 127. The SCA exists to protect the privacy of stored electronic communications, Freedman, 303 F. Supp. 2d at 127; government agents who accumulate materials they have seized in violation of the SCA’s prescriptions are liable under the Act, Steve Jackson Games, 816 F. Supp. at 443. In Steve Jackson Games, Secret Service agents seized private electronic communications from an electronic messaging board pursuant to a warrant supported by one of the agent’s affidavits. Id. at 437, 439. The agent’s application and affidavit for the warrant were sealed, a procedure that “virtually eliminated the safeguards contained in [the SCA].” Id. at 443. The agents accumulated and held this information for months even though, as the court noted, the Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 18 of 50 19 seized documents contained no criminal information and no arrests or criminal charges were ever filed against anyone. Id. The Court found that the warrant issued did not authorize the agents’ seizure of the private communications, and held the agents liable. Id. The court also declined to permit the agents to escape liability under the “good faith” exception. Id. It was Defendants-not Judge Kluka-who sought, obtained, and executed warrants to seize the SCA-protected records of MacIver and scores of other similarly situated individuals and groups. FAC ¶¶ 3, 15-17, 20, 22-24, 28-30, 34-36, 44-47, 50-51, 55-59, 80-87. Like the agents in Steve Jackson Games, Defendants seized the materials pursuant to warrants supported by their own affidavits. FAC ¶¶ 7-8, 56, 65. Like the agents in Steve Jackson Games, Defendants kept their affidavits secret, FAC ¶¶ 44, 50-51, 67-70, “virtually eliminate[ing] the safeguards contained in [the SCA].” Steve Jackson Games, 816 F. Supp. at 443. Like the agents in Steve Jackson Games, Defendants retained possession of private, confidential electronic communications that they had unlawfully seized-only instead of months, they held the records for more than three years, refusing even to notify those whose records they had seized until ordered to do so by the Wisconsin Supreme Court.7 FAC ¶¶ 47-49, 70-71.This Court should not permit Defendants to assume Judge Kluka’s mantle of judicial immunity and absolve their requests, seizures, and accumulations of records in violation of the SCA. Defendants cite various authorities for the proposition that there is no secondary liability under the SCA. None of these cases involved a claim that persons and entities who requested, obtained, seized, and accumulated SCA-protected materials directly violated the SCA. In Doe v. GTE Corp., for instance, the Seventh Circuit refused to impose liability on those who offered 7 Defendants, unwilling to relinquish control of the illegally seized materials more than three years after first seizing them, filed “emergency” motions to “preserve” their custody of the ill-gotten records in this Court. Dkt. No. 32; Dkt. No. 41. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 19 of 50 20 web hosting services to those who were selling unlawful videos. 347 F.3d 655, 658 (7th Cir. 2003). Unlike Defendants here, the web hosting services in Doe did not “directly perpetrate” the acts that violated the statute (there, the FWA). Id. Here, it was Defendants, and not Judge Kluka, who obtained the warrants, sent them to the service providers, and accumulated the confidential records that returned. FAC ¶¶ 3, 15-17, 20, 22-24, 28-30, 34-36, 44-47, 50-51, 55-59, 80-87. In Freeman v. DirecTV, the court refused to impose secondary liability under § 2702 against two entities that were not ECS providers because the statute only permits liability against ECS providers. 457 F.3d 1001, 1004; 18 U.S.C. 2702(a)(1). Here, the sections § 2707 and § 2703 embrace MacIver’s allegations against Defendants on a primary basis; no secondary liability theory is required. Similarly, in Council on American-Islamic Relations Action Network, Inc. v. Gaubatz, the Court permitted the claim against the defendant who was alleged to have directly accessed the electronic storage. 891 F. Supp. 2d 13, 26 (D.D.C. 2012). It denied the claims against other defendants that were expressly based on a theory of conspiracy or aiding and abetting. Id. MacIver has not alleged that Defendants conspired with or aided Judge Kluka in issuing a warrant; MacIver has alleged that Defendants themselves sought and obtained a warrant, executed the warrant on the service providers, and accumulated the returned documents in their possession. FAC ¶¶ 3, 15, 22-24, 28, 36, 45-47, 55, 70-71. Defendants attempt to restate MacIver’s complaint as a claim against Judge Kluka for issuing a warrant. On the contrary, MacIver claims that Defendants secretly sought, obtained, and executed a warrant to seize records and accumulated those records. MacIver alleges that the warrant itself did not meet the requirements to force disclosure under the SCA. The issuance of an invalid warrant did not violate the SCA; rather, seeking, obtaining, and executing hundreds of invalid warrants in order to amass a database of private and confidential communications Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 20 of 50 21 violated the SCA.8 Defendants are primarily, not secondarily, responsible for the violations alleged. C. Defendants knowingly or intentionally engaged in conduct that violated the SCA. Defendants argue that the Court should dismiss MacIver’s claim for failure to allege a knowing or intentional violation of the SCA. Dkt. No. 66 at 13; Dkt. No. 69 at 17-18. This is a crude elision of the statutory text and misstatement of MacIver’s allegations. The statute does not require knowledge or intent with regard to the violation. Section 2707 states that a person aggrieved by a violation “in which the conduct constitution constituting the violation is engaged in with a knowing or intentional state of mind” may recover from the person or entity which engaged in the violation. 18 U.S.C. § 2707(a). MacIver is not required to plead a knowing or intentional violation; it is required to plead knowing or intentional conduct. Long v. Insight Comm’ns of Cent. Ohio, LLC, 804 F.3d 791, 797 (6th Cir. 2015). Interpreting the knowledge or intent requirement of § 2707, one court has stated that “legislative history and authority interpreting Title I of the ECPA offer significant guidance in this regard and make clear that an ISP acts intentionally provided its acts are not inadvertent.” Freedman, 325 F. Supp. 2d at 645-47 (“Authority construing this language and pertinent legislative history makes clear that an ISP acts knowingly if it has knowledge of the factual circumstances that constitute the alleged offense. Section 2702(a)(3)’s knowledge requirement does not, however, require that AOL understand the legal significance of these factual circumstances or that AOL have the specific 8 Defendants referred to the returns from the electronic search warrants as “our upcoming deluge of email.” FAC Ex. M at 1. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 21 of 50 22 intent to violate the statute.” (footnotes omitted)); see also Thayer Corp. v. Reed, 2011 WL 2682723, *4-5 (D. Me. July 11, 2011). MacIver has adequately pled that Defendants knowingly or intentionally performed the conduct that violated the SCA: that is, that Defendants knowingly or intentionally sought, obtained, and executed secret John Doe warrants to seize stored electronic communications protected by the SCA and then retained and reviewed those materials. See FAC ¶¶ 3, 15-17, 20, 28-30, 34-36, 44-46, 49, 50-51, 55-60, 62-64, 69, 80-84, 86. Defendants acted with the purpose and intent to secretly seize voluminous materials from individuals throughout the country. FAC ¶¶ 44-46. Defendants intentionally took measures to keep their seizures secret despite established federal law to the contrary. FAC ¶ 50 & Exs. B at 3, N. Although not required by the SCA, MacIver has also alleged that Defendants knew about and intended to violate the SCA. Defendants were well aware of the requirements of 18 U.S.C. § 2703, FAC ¶ 65, and also knew that “John Doe judges are not courts of record,” FAC ¶ 41, Ex. I. at 4 n.2. Defendants nonetheless used the John Doe to obtain and execute warrants in violation of the SCA so that they could gather as many electronically stored records as quickly as possible before any target could bring their process before a reviewing court. FAC ¶¶ 3, 50-51. The GAB Defendants specifically joined the John Doe to avoid issuing SCA-compliant process under the GAB’s Enabling Statute because they did not want to notify witnesses or targets. FAC ¶¶ 30, 50. Defendants gloated that they could review materials seized in violation of the SCA even while targets challenged their legal theory and their physical search warrants and subpoenas. FAC ¶ 67 & Ex. M (“From the correspondence I’m reading from the various attorney’s [sic] they don’t seem to have a clue that we have and will be getting all their clients [sic] emails.”). Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 22 of 50 23 MacIver has adequately alleged that Defendants knowingly or intentionally engaged in conduct that violated the SCA. Although not required by the SCA, MacIver has also alleged that Defendants knowingly or intentionally violated the SCA. The Court should decline to dismiss MacIver’s claim for failure to allege knowledge or intent. D. MacIver is a subscriber or customer of Google and is “aggrieved” by Defendants’ violations. Defendant Stelter argues that MacIver has not alleged that it is “aggrieved” by the Defendants’ secret seizure of its SCA-protected records without a warrant from a court of competent jurisdiction. Dkt. No. 69 at 16-17. This misstates the statute and the pleadings.9 Section 2707 permits “any provider of electronic communication service, subscriber, or other person aggrieved by any violation” to recover from the person or entity which engaged in the violation. 18 U.S.C. § 2707(a) (emphasis supplied). Defendants seized SCA-protected records of the maciverinstitute.com domain, a domain owned by MacIver Institute, from Google. FAC ¶ 55. Among other web services, Google provided MacIver with email hosting, including the ability to send, receive, and store emails and other documents. Id. Google held materials on behalf of, or received by means of electronic transmission from, MacIver, its subscriber or customer. FAC ¶ 57. MacIver need not allege that it was an “other person aggrieved” because it has alleged that it was a “customer” of the RCS and ECS from which Defendants unlawfully seized its confidential records. 9 MacIver notes that other than a citation to 18 U.S.C. § 2707, Defendant Stelter has cited no authorities in this section of his brief. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 23 of 50 24 Although it does not need to establish that it is an “other person aggrieved” because it has established that it is a “subscriber,” MacIver has alleged that it is an “other person aggrieved” by Defendants unlawful seizures. “‘Aggrieved’ is a term of art encompassing ‘any plaintiff with an interest arguably [sought] to be protected by the statute[.]’” Brooks Grp. & Assocs. v. LeVigne, 2014 WL 1490529, *9 n.58 (E.D. Pa. April 15, 2014), quoting Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 177-78 (2011). An employer is “aggrieved” when a person accesses an employee’s email from the employer’s server. Bloomington-Normal Seating Co. v. Albritton, 2009 WL 1329123, *4 (C.D. Ill. May 13, 2009). Defendants secretly seized emails, contact lists, and calendar entries from an account owned by MacIver. FAC ¶ 55. MacIver has an interest in the privacy of the emails that Google maintained on its behalf. Furthermore, although Defendants seized the emails of a Senior Fellow of MacIver (Mr. Fraley), MacIver retains an interest in the privacy of those emails and is aggrieved by Defendants’ unlawful seizures. Albritton, 2009 WL 1329123, at *4. MacIver has adequately alleged that it is a “subscriber” and also that it is an “other person aggrieved” by Defendants’ seizures. II. The Court should decline to dismiss MacIver’s suit for damages on the grounds of Defendants’ affirmative defenses. Defendants have raised various affirmative defenses in their motions under Fed. R. Civ. P. 12(b)(6), including absolute immunity, qualified immunity, and a defense under 18 U.S.C. § 2707(e). The Court should decline to dismiss MacIver’s claims based on these affirmative defenses for three reasons: first, (A) it is inappropriate to dismiss under Rule 12(b)(6) based on an affirmative defense; second, (B) Defendants have not established that Congress intended to incorporate the common-law defenses of absolute and qualified immunity into § 2707; and third, Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 24 of 50 25 (C) Defendants have not identified facts in the complaint that establish all the requirements of the defenses they assert. A. Defendants’ Affirmative defenses do not justify dismissal. The Court should decline Defendants’ request to dismiss this action under Rule 12(b)(6) based on their affirmative defenses. “Affirmative defenses do not justify dismissal under Rule 12(b)(6); litigants need not try to plead around defenses.” Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003), citing Gomez v. Toledo, 446 U.S. 635 (1980); see Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (“Orders under Rule 12(b)(6) are not appropriate responses to the invocation of defenses, for plaintiffs need not anticipate and attempt to plead around all potential defenses. Complaints need not contain any information about defenses and may not be dismissed for that omission.”); United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (“Resolving defenses comes after the complaint stage.”). If Defendants wish to raise affirmative defenses, they should move for judgment on the pleadings under Rule 12(c). Carr v. Tillery, 591 F. 3d 909, 913 (7th Cir. 2010), citing Forty One News, Inc. v. Cnty. of Lake, 491 F.3d 662, 664 (7th Cir. 2007), McCready v. eBay, 453 F.3d 882, 892 n.2 (7th Cir. 2006). Such a motion would be inappropriate here, though, where no answer has been filed. Fed R. Civ. P. 12(c) (providing that a party may move for judgment on the pleadings “[a]fter the pleadings are closed”); Supreme Laundry Serv., L.L.C., 521 F.3d 743, 746 (7th Cir. 2008) (“Under Federal Rule of Civil Procedure 12(c), a party can move for judgment on the pleadings after the filing of the complaint and answer.” (emphasis supplied)); accord Moss v. Martin, 473 F.3d 694, 698 (7th Cir. 2007); Brunt v. Serv. Emp. Int’l Union, 284 F.3d 715, 718 (7th Cir. 2002); 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1367 (3d Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 25 of 50 26 ed.) (“Similarly, the defendant may not move under rule 12(c) prior to filing an answer.”). Where no answer has been filed, a motion for judgment on the pleadings under Rule 12(c) should be treated as a motion for summary judgment. Am. Fed. of State, Cnty., & Municipal Employees v. City of Benton, Ark., 513 F.3d 874, 878 (8th Cir. 2008), citing Season-All Indus., Inc. v. Turkeye Sise Ve Cam Fabrikalari, A.S., 425 F.2d 34, 36 (3d Cir. 1970). The Court should not dismiss the suit based on an affirmative defense unless Defendants have established every ingredient of an “impenetrable defense” using facts alleged in the FAC. “Only when the plaintiff pleads himself out of court-that is, admits all the ingredients of an impenetrable defense-may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6).” Xechem, 372 F.3d at 901 (emphasis supplied); see Ind. Trust Corp. v. Stewart Information Servs. Corp., 665 F.3d 990, 935 (7th Cir. 2012); Edgenet, Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 665 (7th Cir. 2011); Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009). Only if the complaint establishes “everything needed to show that the defendant must prevail on an affirmative defense” may the court resolve the suit on the pleadings under Rule 12(c). Edgenet, 658 F.3d 662, 665 (7th Cir. 2011). MacIver is “not required to anticipate and plead around the affirmative defense of prosecutorial immunity,” a defense that “involves a necessarily fact-specific line-drawing exercise” between prosecutorial and investigatory actions where the boundary is “not sharply defined.” Marten v. Swain, 601 Fed. App’x 446, 449-50 (7th Cir. 2015), citing U.S. Gypsum Co. v. Ind. Gas. Co., 350 F.3d 623, 636 (7th Cir. 2003), Alexander v. Shan, 161 Fed. App’x 571, 575 (7th Cir. 2005). As further discussed below, those Defendants who claim absolute immunity acted as investigators, and not prosecutors, when they seized the materials of MacIver and other similarly situated individuals and groups in violation of the SCA. See, e.g., FAC ¶¶ 5, 42 & Exs. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 26 of 50 27 B. at 5, E. at 11, J at 1 (Schmitz); ¶ 6-9, 24, 36, Exs. C. at 2, D. at 1, F. at 3 (Chisholm); ¶¶ 7, 36, 65, Exs. C at 2-3, D. at 1, E. at 2, F. at 3 (Landgraf); ¶¶ 7, 36, 65, Exs. C at 2, D. at 1-2, E. at 2-4, 6, 11, F. at 3, 5 (Robles). Similarly, MacIver need not plead facts that anticipate and overcome a defense of qualified immunity to survive a motion to dismiss. Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001) (“Because an immunity defense usually depends on the facts of the case, dismissal at the pleading stage is inappropriate: ‘[T]he plaintiff is not required initially to plead factual allegations that anticipate and overcome a defense of qualified immunity.’”) (quoting Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000))); cf. Tamayo v. Balgojevich, 526 F.3d 1074, 1090 (7th Cir. 2008) (“[W]e have cautioned that the rule that qualified immunity must be resolved at the earliest possible stage must be tempered by the notice pleading requirements of Rule 8.” (citations omitted)). “[M]ost claims for qualified immunity are too fact- intensive to be decided on a motion to dismiss . . . .” Schneider v. Cnty. of Will, 366 Fed. App’x 683, 686 (7th Cir. 2010), citing Tamayo, 526 F.3d at 1090, Alvarado, 267 F.3d at 651, Jacobs, 215 F.3d at 775. “Rule 12(b)(6) is a mismatch for immunity and almost always a bad ground for dismissal.” Alvarado, 267 F.3d at 652, quoting Jacobs, 215 F.3d at 775 (Easterbrook, J., concurring). The § 2707(e) defense is also an affirmative defense. See McCready v. eBay, Inc., 453 F.3d 882, 892 n.2 (7th Cir. 2006). The plaintiff in McCready sued under the SCA; the Defendant moved to dismiss. The Court held: “[I]t is incorrect to grant a motion to dismiss under Rule 12(b)(6) on the basis of an affirmative defense.” Id. The Court instead treated the motion to dismiss as a motion for judgment on the pleadings under Rule 12(c). Id. As noted above, a motion for dismissal under Rule 12(c) is inappropriate in this case because here, unlike in Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 27 of 50 28 McCready, Defendants have not filed an answer. Fed R. Civ. P. 12(c); Supreme Laundry Serv., L.L.C., 521 F.3d 743at 746; accord Moss, 473 F.3d at 698; Brunt, 284 F.3d at 718. Where no answer has been filed, a motion for judgment on the pleadings under Rule 12(c) should be treated as a motion for summary judgment. Am. Fed. of State, Cnty., & Municipal Employees sv. City of Benton, Ark., 513 F.3d at 878. Because Defendants have not answered MacIver’s allegations in this suit, the Court should decline to dismiss it based on the § 2707 affirmative defense. B. Defendants have not established that Congress intended to incorporate common-law absolute and qualified immunity defenses into § 2707. Defendants Schmitz, Chisholm, Robles, and Landgraf claim absolute immunity from damages.10 Dkt. No. 66 at 15-17. Defendants claim qualified immunity from damages. Id. at 17- 19; Dkt. No. 69 at 18-21. No Defendant has explained why the Court should apply the statutory defenses of 42 U.S.C. § 1983 to a suit brought under 18 U.S.C. § 2707, nor have they cited another court that has done so.11 This Court should decline the invitation. The Supreme Court has interpreted § 1983 to include common-law immunities that existed when Congress enacted the civil rights statute in 1871. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (“Certain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” (quoting Pierson v. Ray, 386 U.S. 547, 554-55 (1967))); Owen v. City of 10 Defendant Stelter, also sued in his official capacity for declaratory and injunctive relief, FAC ¶ 8, does not assert a sovereign immunity defense. 11 On the other hand, courts have addressed suits that allege both constitutional and SCA violations by applying qualified immunity to the former and the § § 2707(e) defense to the latter. See, e.g., Davis v. Gracey, 111 F.3d 1472, 1484-85 (10th Cir. 1997) (resolving Fourth Amendment claim on qualified immunity and SCA claim on good-faith defense of § 2707(e)). Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 28 of 50 29 Independence, Mo., 445 U.S. 622, 637 (1980); see also Tenney v. Brandhove, 341 U.S. 367, 376 (1951); cf. Heck v. Humphrey, 512 U.S. 477, 492 (1994) (Souter, J., concurring in judgment) (noting that Court has relied on common law “when those principles were so fundamental and widely understood at the time § 1983 was enacted that the 42d Congress could not be presumed to have abrogated them silently”). The immunities are tied to a specific statute-not omnipresent judicial creations. The Supreme Court has recognized that “[w]e do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy. It is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate.” Tower v. Glover, 467 U.S. 914, 922-23 (1984). Defendants cite many cases involving the application of statutory immunity defenses to claims made under § 1983. But MacIver has not made a claim under 42 U.S.C. § 1983, which was enacted in 1871. MacIver has made a claim under 18 U.S.C. § 2707, which was enacted in 1986. Defendants have not cited any authority holding that Congress intended to include defenses available at common law in 1871-that is, the defenses discussed in the § 1983 cases it cites-to a statute that it enacted in 1986 and that has nothing to do with the Civil Rights Act of 1871. Nor have Defendants articulated a reason why the Court should interpret § 2707, which permits suits against any “person or entity” who commits a violation of the SCA, with immunities that are intended to apply only to § 1983, which permits suits only against those who violate rights while acting “under color of” state law. Furthermore, unlike when it enacted § 1983 in 1871, Congress was not silent about defenses in § 2707; it expressly enacted a defense in § 2707(e). Defendants, however, ask the Court to graft immunity defenses that do not appear in the statute onto the good-faith defense Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 29 of 50 30 that does. This is unwarranted. “When Congress itself provides for a defense to its own cause of action, it is hardly open to the federal court to graft common law defenses on top of those Congress creates.” Berry v. Funk, 146 F.3d 1003, 1013 (D.C. Cir. 1998), citing City of Milwaukee v. Illinois, 451 U.S. 304, 314 (1981); cf. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 1007 (N.D. Cal. 2006) (noting that no immunity existed for telecommunications providers at common law, and that apply whatever immunity might have existed would “undermine the various statutory schemes created by Congress”).12 The Court should decline to graft the common-law defenses of 1871 onto a statute enacted in 1986, especially when Congress has explicitly provided a statutory defense in the statute itself. C. Defendants have not established their entitlement to affirmative defenses. 1. The Prosecutor Defendants have not demonstrated that they entitled to absolute immunity for their investigatory conduct that violates the SCA. The Prosecutor Defendants13 claim absolute immunity from damages.14 Dkt. No. 66 at 15-17. There are three reasons to decline to dismiss MacIver’s claim based on absolute immunity. First, as discussed above, absolute immunity is an affirmative defense that requires a fact-intensive inquiry into the distinction between advocative and investigative conduct, and is 12 The Seventh Circuit has applied the qualified immunity defense to claims under the FWA. Narducci v. Moore, 572 F.3d 313, 323-24 (7th Cir. 2009); Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998). To the extent the Court finds that these cases control its decision to apply qualified immunity to its claim under the SCA, MacIver believes these cases to be wrongly decided. See Mitchell v. Forsyth, 472 U.S. 511, 557 (1985) (“The Court's argument seems to be that the trial court should have decided the legality of the wiretap under Title III before going on to the qualified immunity question, since that question arises only when considering the legality of the wiretap under the Constitution.” (emphasis supplied)). 13 For convenience, MacIver refers to the defendants asserting absolute immunity for prosecutorial functions, Schmitz, Chisholm, Robles, and Landgraf, as the “Prosecutor Defendants.” 14 Prosecutors enjoy no immunity from claims for injunctive relief. Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 737 (1980). Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 30 of 50 31 therefore an inappropriate basis to dismiss at this stage. Marten, 601 Fed. App’x at 449-50; Alexander, 161 Fed. App’x at 575. Second, absolute immunity is a defense to actions under § 1983; Congress has expressly included a defense in § 2707, and there is no need for the court to imply one. Third, as discussed below, the Prosecutor Defendants have failed to demonstrate that the complaint alleges they performed advocative functions that merit absolute immunity. “In determining whether particular actions of government officials fit within a common- law tradition of absolute immunity, or only the more general standard of qualified immunity, we have applied a ‘functional approach’ which looks to the ‘nature of the function performed, not the identity of the actor who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citations omitted). “The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486- 87 (1990). “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Id. at 486. Absolute immunity protects prosecutors when they perform certain advocative functions, such as the decision to initiate a prosecution and the conduct of a case in court, Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976), the presentation of the state’s position in court at a probable cause hearing, Burns, 500 U.S. at 487, and the filing of an information and motion for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129 (1997). On the other hand, non- advocative functions, such as providing legal advice to the police, Burns, 500 U.S. at 493, fabricating evidence “during the preliminary investigation of an unsolved crime” and making defamatory statements to the press, Buckley, 509 U.S. at 274-77, falsely swearing to facts in an affidavit supporting a warrant, Kalina, 522 U.S. at 130-31, and authorizing a warrantless wiretap Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 31 of 50 32 to protect national security, Mitchell v. Forsyth, 472 U.S. 511, 523-24 (1985), do not support absolute immunity. Prosecutors may not claim absolute immunity from liability for their investigatory actions. “When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’” Buckley, 509 U.S. at 273. Although a prosecutor enjoys absolute immunity for his “professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made,” he cannot claim absolute immunity for actions he takes “before he has probable cause to have anyone arrested.” Id. at 273-74; Whitlock v. Brueggemann, 682 F.3d 567, 578-79 (7th Cir. 2012) (“[A] prosecutor does not enjoy absolute immunity before he has probable cause.”); Fields v. Wharrie, 672 F.3d 505, 512 (7th Cir. 2012) (same); see Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (“Evidence gleaned prior to the filing [of a complaint] is deemed investigative.”); cf. Schrob v. Catterson, 948 F.2d 1402, 1415 (“Several courts have drawn a distinction between a prosecutor’s actions in obtaining a search warrant prior to the filing of a complaint or indictment and subsequent to such a filing.”). There is no absolute immunity for actions taken “during the preliminary investigation of an unsolved crime.” Buckley, 509 U.S. at 275. Thus, a prosecutor enjoys no absolute immunity for his role in planning and executing investigative searches. Id., citing Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied 415 U.S. 917 (1974); Hampton v. Hanrahan, 600 F.2d 600, 632 (7th Cir. 1979), cert. granted in part & judgment rev’d in part, 446 U.S. 754; accord Hoog-Watson v. Guadalupe Cnty., Tex., 591 F.3d 431, 438-39 (5th Cir. 2009); Gabbert v. Conn, 131 F.3d 793, 800 (9th Cir. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 32 of 50 33 1997), rev’d on other grounds, 526 U.S. 286 (1999); Mullinax v. McElhenney, 817 F.2d 711, 715 (11th Cir. 1987); Joseph v. Patterson, 795 F.2d 549, 556 (6th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); McSurley v. McClellan, 697 F.2d 309, 319-320 (D.C. Cir. 1982), cert. denied, 474 U.S. 1005 (1985); Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir. 1980). The “supervision and interaction with law enforcement agencies in acquiring evidence which might be used in prosecution” are “of a police nature and not entitled to absolute immunity.” Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987); see Genzler v. Longanbach, 410 F.3d 630, 640-43 (9th Cir. 2005) (no absolute immunity for prosecutor who actively directed another prosecutor during a police-type investigation). Nor does a prosecutor enjoy absolute immunity for reviewing and approving a search warrant application. Mink v. Suthers, 482 F.3d 1244, 1262-63 (10th Cir. 2007), citing Burns, 500 U.S. at 494, cert. denied sub. nom. Knox v. Mink, 552 U.S. 1165; McSurley, 697 F.2d at 319-20; cf. KRL v. Moore, 384 F.3d 1105, 1112 (9th Cir. 2004) (prosecutor enjoys absolute immunity for review of search warrant after indictment had issued). Nor does he enjoy absolute immunity when he “engages in or authorizes and directs illegal wiretaps” where the purposes of the wiretaps is to “catch” the plaintiff. Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984). Nor does a prosecutor enjoy absolute immunity for gathering and cataloguing seized materials. See McSurely, 697 F.2d at 320; cf. Reitz v. Cnty. of Bucks, 125 F.3d 139, 146-47 (3d Cir. 1997) (“[A] prosecutor is only entitled to qualified immunity for his conduct with respect to the management and retention of the property after the seizure, hearing, and trial.”). The Prosecutor Defendants here claim that the decision to “petition the court to open a John Doe proceeding, or expand a John Doe proceeding or to seek a search warrant from the John Doe judge supervising the proceeding, like the decision to commence a criminal Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 33 of 50 34 prosecution via a grand jury” is protected by absolute immunity. Dkt. No. 66 at 16. They further argue that MacIver has alleged only that they obtained a search warrant, and that this act is protected by absolute immunity. Id. at 17. These assertions are incorrect for five reasons. The Prosecutor Defendants fail to meet their burden of establishing a defense of absolute immunity. First, the Prosecutor Defendants misstate the allegations in the Complaint, ignoring the ample facts alleged describing their investigatory conduct. Defendants violated the SCA through their numerous actions in seeking, obtaining, and executing search warrants that did not satisfy the SCA’s requirement that such warrants be issued by a court of competent jurisdiction. FAC ¶¶ 5, 6, 7, 8, 14-17, 22, 28-29, 34, 45-46, 55. All Prosecutor Defendants were “Investigation Assets” for John Doe II. FAC Ex. D at 1. Defendants Chisholm, Robles, and Landgraf were “dedicated resources” to the investigation. FAC Ex. F at 3. Defendant Chisholm assigned and supervised a team of “trusted investigators,” including Defendant Stelter. FAC ¶¶ 6, 8, Ex. F at 3. Defendant Chisholm stated that Defendant Robles would be the “natural selection to head the investigation in his office and be the central point of contact.” FAC Ex. F. at 5. Defendant Schmitz, meanwhile, ran the investigation for the GAB. FAC ¶ 5, Ex. H. at 2 (“The GAB thereafter directed me to investigate the conduct of various persons and organizations . . . .”). Defendant Schmitz was the GAB’s “principal investigator.” FAC Ex. B. at 5. Defendant Schmitz served also provided legal advice concerning execution of search warrants. FAC ¶ 42, Exs. E at 4, J. The Prosecutor Defendants participated in the investigation planning, including determining the targets of the electronic search warrants and, in the case of Defendants Landgraf and Robles, signing an affidavit themselves. Defendants Schmitz, Robles, and Landgraf attended meetings to plan the investigation. FAC Exs. D, E, G. Defendant Chisholm opened the John Doe Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 34 of 50 35 investigation. FAC ¶ 22. Defendants, including the Prosecutor Defendants, worked together to plan the investigation, including the targets of warrants and subpoenas. FAC Ex. D at 3, 5-7, Ex. F. at 5. Defendants, including the Prosecutor Defendants, worked together to draft the search warrants and subpoenas. FAC ¶ 29. Defendant Robles communicated with other Defendants about possible targets and drafted the December 2012 affidavit in support of a warrant to seized stored electronic communications. FAC ¶ 34. Defendant Robles corresponded with Google concerning the drafting and execution of the search warrant to seize the emails of MacIver and other similarly situated individuals and groups. FAC ¶ 65. Defendant Landgraf coordinated with the e-discovery vendor to get suggestions “for how to conduct this investigation.” Ex. G. at 5. The Prosecutor Defendants also assisted with evidence review and retention. They received and retained materials seized in violation of the SCA. FAC Ex. C at 2 (“Milwaukee County DA’s Office will retain evidence already obtained on their secure server setup.”); Defendant Robles, in particular, concerned himself with security and access to the unlawfully seized records. FAC Ex. G at 4. Defendant Robles also worked to summarize the warrants and subpoenas served and to determine what additional warrants were needed. FAC Ex. C. at 3, Ex. D. at 2, Ex. F at 5, Ex. G. at 5. Under Defendant Chisholm’s close supervision, Defendant Robles reviewed emails seized in violation of the SCA. FAC Ex. F at 5. The Prosecutor Defendants reviewed material that they seized in violation of the SCA. FAC ¶ 35, Ex. F. at 5, Ex. G. at 4-5. Second, the Prosecutor Defendants ignore that these acts took place before they filed any complaint, indictment, or other charging document or indictment, and were thus investigative and not protected by absolute immunity. As discussed above, “[a] John Doe is intended as an independent, investigatory tool used to ascertain whether a crime has been committed and if so, Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 35 of 50 36 by whom.” In re John Doe Proceeding, 660 N.W.2d at 268. A John Doe proceeding must end once a defendant has been charged; it cannot be used “as an aid to the district attorney in preparing the prosecution.” Cummings, 546 N.W.2d at 415, quoting Washington, 266 N.W.2d at 605. The John Doe proceeding was an investigatory tool that the Prosecutor Defendants used to determine whether a crime had been committed and if so, by whom; their acts in convening it, expanding it, and using it to gather and catalogue information by warrant and subpoena took place before there was probable cause to issue a warrant and were therefore investigatory. See Buckley, 509 U.S. at 274 (“A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.”); Whitlock, 682 F.3d at 578-79. There is no absolute immunity for acts taken during the “preliminary investigation of an unsolved crime.”15 Buckley, 509 U.S. at 275. Defendants did not believe they had probable cause of any crime in June of 2013, almost a year after they began their investigation. FAC Ex. F. at 2. As late as August 2013, Defendants were still assigning Defendant Schmitz to conduct research on grand jury jurisdiction. FAC Ex. E at 3. Third, there is no absolute immunity for planning and executing investigative searches. The Prosecutor Defendants engaged in extensive planning: they decided who they would target, when the warrants would be executed, and what would happen to the materials that were returned-all before they had decided to arrest or indict anyone. These are investigative, not adjudicative, functions. Buckley, 509 U.S. at 275., citing Hampton v. Chicago, 484 F.2d at 608; Hampton v. Hanrahan, 600 F.2d at 632; accord Hoog-Watson, 591 F.3d at 438-39; Gabbert, 131 15 Although Defendants’ legal theory for conducting their investigation is not at issue in this suit, the Wisconsin Supreme Court held that “It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.” Wis. ex rel. Two Unnamed Petitioners v. Peterson, 866 N.W.2d 165, 211-12 (Wis. 2015). Furthermore, the Court found his legal theory to be “unsupported in either reason or law.” Id.at 179. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 36 of 50 37 F.3d at 800; Mullinax, 817 F.2d at 715; Joseph, 795 F.2d at 556; McSurley, 697 F.2d at 319-320; Marrero, 625 F.2d at 505. Thomas v. City of Peoria and Srivastava v. Newman are not to the contrary: both involve the prosecutor’s interaction with complaints that initiated criminal proceedings, not search warrants issued as part of an investigation. In Thomas, the Seventh Circuit held that absolute immunity protected a prosecutor who submitted a motion for an arrest warrant to a court. 580 F.3d 633, 638 (7th Cir. 2009). Similarly, in Srivastava, the plaintiff challenged the prosecutor’s role in interviewing the complaining witness and assisting in preparation of the probable cause statement. 12 Fed. App’x 369, 371 (7th Cir. 2001). Both cases concerned the prosecutor’s role in filing a complaint: a clear sign that the prosecutor is functioning as an advocate preparing for a trial rather than as an investigator gathering evidence before reaching a charging decision. See Buckley, 509 U.S. at 274-75; compare Whitlock, 682 F.3d at 578-79 (“[A] prosecutor does not enjoy absolute immunity before he has probable cause.”), Fields, 672 F.3d at 512 (prosecutor receives only qualified immunity “before someone is arrested”), and Kulwicki, 969 F.2d at 1465 (“Evidence gleaned prior to the filing [of a complaint] is deemed investigative.”), with KRL v. Moore, 384 F.3d at 1112 (prosecutor enjoys absolute immunity for review of search warrant after indictment had issued). Fourth, the Prosecutor Defendants have failed to address the allegations that they not only requested the search warrants, but also retained and reviewed the seized materials. These, too, are investigative rather than advocative functions. See McSurely, 697 F.2d at 320. Fifth, conspicuous for its absence from the Prosecutor Defendants’ brief is any mention of Kalina. In that case, the Supreme Court held that a prosecutor who acts as a complaining witness by signing a warrant affidavit does not enjoy absolute immunity. 522 U.S. at 129-31. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 37 of 50 38 Defendants Robles and Landgraf signed and notarized at least one of the affidavits supporting search warrants at issue in this lawsuit. FAC ¶¶ 7, 65. For these five reasons, the Prosecutor Defendants have failed to establish that MacIver has alleged that they performed advocative, rather than investigatory functions, and the Court should decline to apply absolute immunity. 2. Wisconsin law clearly established that a John Doe judge is not a “court” at the time Defendants sought, obtained, and executed John Doe warrants in violation of the SCA, and thus Defendants are not entitled to qualified immunity. All Defendants argue that qualified immunity protects them from liability for damages. Dkt. No. 66 at 17-19; Dkt. No. 69 at 18-21. There are three reasons to decline to dismiss MacIver’s claim based on qualified immunity. First, as discussed above, qualified immunity is a fact-intensive affirmative defense that usually cannot be resolved at this stage. Alvarado, 267 F.3d at 651-52 (“Rule 12(b)(6) is a mismatch for immunity and almost always a bad ground for dismissal . . . .” (quoting Jacobs, 215 F.3d at 775 (Easterbrook, J., concurring))). Second, unlike actions under § 1983, qualified immunity is not a defense to actions under § 2707. Congress has expressly included a statutory defense-there is no need for the Court to imply a judicial one. Third, as discussed below, it was clearly established at the time Defendants used John Doe warrants to secretly seize, catalogue, and retain the confidential records of MacIver and other similarly situated groups and individuals that a John Doe judge was not a court of general criminal jurisdiction and that therefore a John Doe warrant would not comply with the SCA. “To overcome a defense of qualified immunity at the pleading stage, the complaint must contain sufficient factual allegations to show that the defendant’s conduct violated a constitutional right and that the right was clearly established at the time of the alleged violation.” Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 38 of 50 39 Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013), citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). In considering a qualified immunity defense at this stage, the only facts before the Court are those alleged in the complaint, which the Court is obliged to accept as true. Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994). “Courts use a two-part test to determine whether officers are entitled to qualified immunity: ‘(1) whether the facts, viewed in a light most favorable to the injured party, demonstrate that the conduct of the officers violated a constitutional right, and (2) whether that right was clearly established at the time the conduct occurred.’” Doe v. Village of Arlington Heights, 782 F.3d 911, 915 (7th Cir. 2015), quoting Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). A right is “clearly established” if it would be “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id., quoting Saucier v. Katz, 533 U.S. 194, 202 (2001). “Because there is an almost infinite variety of factual scenarios that may be brought into a courtroom, a plaintiff need not point to cases that are identical to the presently alleged constitutional violation.” Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000). If the violation is “patently obvious, the plaintiff may not be required to present the court any analogous cases, as widespread compliance with a clearly apparent law may have presented the issue from previously being litigated.” Id.; see Steidl v. Fermon, 494 F.3d 623, 632 (7th Cir. 2007) (noting that the scenario envisioned by Denius would not “normally be closed”); accord Baird v. Renbarger, 576 F.3d 340, 345 (7th Cir. 2009). “The absence of a reported case with similar facts may demonstrate nothing more than widespread compliance with well-recognized constitutional principles.” Vodak v. City of Chicago, 639 F.3d 738, 747 (7th Cir. 2011). The Court should consider all relevant case law in order to “preclude[] an official from escaping liability for unlawful conduct due to the fortuity that a court in a particular jurisdiction has not yet had the Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 39 of 50 40 opportunity to address the issue.” Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989). “It would create perverse incentives indeed if a qualified immunity defense could succeed against those types of claims that have not previously arisen because the behavior alleged is so egregious that no case like it is on the books.” McDonald by McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992). As discussed above,16 Defendants violated the privacy rights of MacIver and other similarly situated individuals and groups by seeking and obtaining warrants to seize stored electronic communications that were not issued by a “court of competent jurisdiction,” executing the warrants, and then retaining, reviewing, and cataloguing the materials. As discussed at length above, the SCA requires warrants issued by a “court” and Defendants sought, obtained, and executed warrants issued by a “judge.” Since 2009, the SCA has required that a warrant to seize stored communications be issued by a “court of competent jurisdiction.” See Pub. L. No. 111-79, 123 Stat. 2086 (2009). At the same time, it defined “court of competent jurisdiction” as a federal court under certain circumstances and “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” Id. These statutes have not been amended since. Thus, it has been clearly established since October 19, 2009, that only “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants” could issue an SCA-compliant warrant that would permit a governmental entity to seize stored electronic communications without first providing notice. 18 U.S.C. § 2703. 16 See Part I. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 40 of 50 41 But when did it become clearly established that a Wisconsin John Doe proceeding is not a “court of general criminal jurisdiction”? In 1927, the Supreme Court of Wisconsin described in detail how to distinguish a “court” from a “judge.” The judge and the court are not identical. The judge is a man. The court is an institution. It requires something more than a judge sitting on the bench to constitute a court. It requires, in addition, the existence of conditions authorizing the exercise of the powers of a court. It requires the presence of that upon or over which the powers of a court may be exerted, namely, a controversy involving legal or human rights. It requires the presence of litigants, generally attorneys, usually officers, such as bailiff, clerk, etc., and frequently jurors. To constitute a court, some of these elements must concur with the presence of a presiding judge. It is this institution, as distinguished from the judge, that merits and enjoys the respect of society. Rubin, 211 N.W. at 928-29. For almost a century, Wisconsin has recognized that a “judge” is not a “court. In 1951, the Wisconsin Supreme Court applied this teaching to the John Doe proceeding, holding that a John Doe judge is not sitting as a court-even if she is also the judge of a circuit court. Friedl, 47 N.W.2d at 308. In 1963, the Wisconsin Supreme Court held that a circuit judge presiding over a John Doe proceeding cannot invoke the statutory authority of a court-precisely the defense that Defendants have raised here. Coffey, 118 N.W.2d at 942-43. It had been established that a John Doe judge does not exercise the statutory authority of a court for almost half a century before Defendants attempted to use a John Doe judge to exercise the authority given to a court under the SCA. The Court reiterated this holding in 1996 and again in 2003. In re John Doe Proceeding, 660 N.W.2d at 276 n.15 (“A John Doe judge does not, however, enjoy the statutory powers of a court.”); Cummings, 546 N.W.2d at 412 (“Distinguishing between a court and a judge, this court held that a John Doe judge does not have the statutory powers of a court. This conclusion is indubitably correct.”) (citing Coffey, 118 N.W.2d 939). Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 41 of 50 42 Every case cited above for the proposition that a Wisconsin John Doe judge and proceeding are neither “courts” nor “of general jurisdiction” was decided before the seizures alleged in the complaint. As further evidence that the proposition was well-established before these seizures, even Defendant Chisholm stated in a pleading to the John Doe judge that “John Doe judges are not courts of record.” FAC Ex. I at 4 n.2, citing Washington, 266 N.W.2d at 607. Defendants may reply that they are entitled to immunity from suit unless MacIver can identify a Supreme Court or Seventh Circuit opinion holding that warrants issued by Wisconsin John Doe judges do not comport with the requirements of the SCA. See Dkt. No. 66 at 19; Dkt. No. 69 at 21. This is not the law. The absence of an analogous case may only demonstrate behavior “so egregious that no case like it is on the books,” McDonald 966 F.2d at 295, “widespread compliance with well-recognized constitutional principles,” Vodak, 639 F.3d at 747, or “the fortuity that a court in a particular jurisdiction has not yet had the opportunity to address the issue.” Cleveland-Perdue, 881 F.2d at 431. This last is particularly likely where qualified immunity is applied to a statute, like the SCA, that is plain in its meaning, but not litigated as frequently as the Fourth or Eighth Amendments. Defendants urge the Court to apply a one-free- bite rule for qualified immunity, but that is not the standard. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.”). It was well-established in 2009 that in order to comply with the SCA, a governmental entity wishing to seize stored electronic communications without notice must seek a warrant from a court of competent jurisdiction, and that a court of competent jurisdiction included a “court of general criminal jurisdiction of a State.” The Wisconsin Supreme Court, undeniably the authority on the interpretation of the authority of Wisconsin judges, has held for almost a century Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 42 of 50 43 that a judge is not a court and for more than half a century that a John Doe judge is not a court- even when that John Doe judge may otherwise sit on the circuit court. Furthermore, the Wisconsin Supreme Court addressed Defendants’ primary defense in this case almost half a century ago: the SCA grants statutory powers to a court, and the John Doe judge does not exercise the statutory powers of a court. Defendants cannot force MacIver to find a case on “all fours” factually in order to avoid a defense of qualified immunity, McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004), and it is hard to imagine what authority short of a case on “all fours” could more clearly establish the right in question. Defendants were on fair warning that a warrant from a John Doe judge would not satisfy the SCA. The Court should decline to dismiss MacIver’s claim. 3. The Defendants did not operate in good faith reliance on a court warrant when seizing MacIver’s confidential records. Defendants claim immunity from damages under the statutory defense of § 2707(e).17 Dkt. No. 66 at 15; Dkt. No. 69 at 18. First, as discussed above, the § 2707(e) defense is an affirmative defense that should not be resolved on a motion to dismiss under Rule 12(b)(6). See McCready, 453 F.3d 882 at 892 n.2. Second, the defense is only available for reliance on a “court warrant,” and every warrant Defendants sought, obtained, and executed was a John Doe warrant, see FAC ¶¶ 55-60, not a “court warrant.” As discussed at length above, a John Doe judge is not a “court” and cannot issue a “court warrant.” 17 The Defendants (other than Stelter) suggest in the introduction to their brief that the § 2707(e) defense also protects them from equitable relief. Dkt. No. 66 at 3. They cite no authority for this proposition, and it is not difficult to see why. If the Court rules that Defendants violated the SCA by using a John Doe judge to issue warrants to seize MacIver’s stored electronic communications, the Defendants can hardly claim “good faith” reliance on any such warrant in the future, and thus the defense is no bar to MacIver’s request for prospective injunctive relief. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 43 of 50 44 Third, Defendants did not act in “good faith.” Most courts have interpreted “good faith” to have both a subjective and objective component. Sams v. Yahoo! Inc., 713 F.3d 1175, 1180-81 (9th Cir. 2013); Freedman v. Am. Online, Inc., 325 F. Supp. 2d 638, 647-48 (E.D. Va. 2004); Long v. Insight Commc'ns of Cent. Ohio LLC, No. 1:14-CV-1096, 2014 WL 4425738, at *3 (N.D. Ohio Sept. 8, 2014), aff'd, 804 F.3d 791 (6th Cir. 2015); Fox v. CoxCom Inc., No. CV-11- 594, 2012 WL 6019016, at *3 (D. Ariz. Dec. 3, 2012). The relevant inquiry is Defendants’ good faith with respect to whether a John Doe judge can issue a valid warrant. MacIver does not challenge the evidentiary basis for the warrants issued in this case. The Seventh Circuit addressed the § 2707(e) defense in McCready, holding that a service provider acted in good faith when it responded to a facially valid subpoena. 453 F.3d at 891-92 & n.2. Although other courts (and some of Defendants, Dkt. No. 66 at 6) have characterized McCready as establishing an objective test, the Court’s opinion does not support that characterization. Although the Court initially focused on the face of the subpoena, the Court also held that “there is no indication that eBay acted in any fashion other than good faith,” demonstrating that the defendant’s state of mind was legally relevant. Id. at 892. The Court did not ignore eBay’s state of mind; on the contrary, it inquired into eBay’s state of mind and found no evidence to suggest subjective bad faith. Unlike McCready, this is not a suit against an ISP and custodian of records, where only the face of the subpoena was relevant because there was no other evidence of subjective good faith. Had MacIver sued Google, McCready would be more squarely on point. Instead, this is a suit against those who drafted, procured, and executed the warrants, where there are ample allegations concerning Defendants’ subjective good faith. MacIver submits that when the Seventh Circuit addresses § 2707(e) in this context, it will articulate its position more clearly as Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 44 of 50 45 being in line with Sams, Freedman, and the other cases that have considered subjective good faith. Defendants did not act with subjective good faith. They knew that they SCA regulated their seizures of MacIver’s stored electronic records. Defendant Robles even personally revised the warrant to seize MacIver’s stored electronic records to include a reference to 18 U.S.C. § 2703 at the request of a Google attorney. FAC ¶ 65. They knew at the time they sought warrants from the John Doe judge that the John Doe judge was not a court of general criminal jurisdiction. FAC Ex. I at 4 n.2, citing Washington, 266 N.W.2d at 607. Nonetheless, they intentionally used the John Doe judge to issue the warrants to avoid giving the notice required under the GAB Enabling Statute. FAC ¶¶ 30, 36, 44, 50, 51, Ex. B at 3. Defendants did not operate with objective good faith, either. Given the well-established law described and cited at length in this brief,18 no reasonable officer could have believed that a John Doe judge was a Wisconsin court of general criminal jurisdiction; thus, no reasonable official could have believed that seizing the confidential stored electronic records of MacIver and other similarly situated groups and organizations using a John Doe warrant was lawful under the circumstances. Because Defendants did not operate with subjective or objective good faith, the Court should decline to dismiss MacIver’s claim under 18 U.S.C. § 2707(e). 18 See Section II.B. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 45 of 50 46 III. Sovereign Immunity does not bar MacIver’s claim for prospective injunctive relief. Defendants Schmitz, Chisholm, Robles, and Landgraf19 claim that sovereign immunity defeats MacIver’s claim for declaratory and injunctive relief.20 Dkt. No. 66 at 20-24. Sovereign immunity does not apply in this case. MacIver’s claim falls within the Ex parte Young exception to the Eleventh Amendment. Ex parte Young, 290 U.S. 123 (1908), permits a plaintiff to maintain an official capacity lawsuit for prospective injunctive relief for an ongoing violation of federal law. MCI Telecommunications Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 345 (7th Cir. 2000). “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002), quoting Idaho v. Coeur d’Alene Tribe of Id., 521 U.S. 261, 296 (1997) (O’Connor, J., concurring in part and concurring in the judgment). Plaintiffs may rely on Ex parte Young to enforce federal statutes. Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010) (en banc) (IPAS). Defendants (other than Stelter) claim that there is no “ongoing violation of federal law.” Dkt. No. 23. This is incorrect for two reasons. 19 Defendant Stelter, also sued in his official capacity for declaratory and injunctive relief, FAC ¶ 8, does not assert a sovereign immunity defense. 20 MacIver’s individual capacity claims for damages against Defendants Schmitz, Chisholm, Landgraf, Robles, and Stelter are not suits against Wisconsin. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Luder v. Endicott, 253 F.3d 1020, 1022 (7th Cir. 2001); Sterling v. United States, 85 F.3d 1225, 1228-29 (7th Cir. 1996); Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). Those claims are not barred by sovereign immunity. Alden v. Maine, 527 U.S. 706, 757 (1999). Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 46 of 50 47 First, the Seventh Circuit has permitted the use of Ex parte Young to require state defendants to provide reasonable access to records to remedy a violation of a federal statute. IPAS, 603 F.3d at 371; see Housecalls Home Healthcare, Inc. v. U.S. Dep’t of Health and Human Servs., 515 F. Supp. 2d 616, 630 (M.D.N.C. 2007) (“Like injunctions for prospective relief, injunctions for the return of seized property, as opposed to money or withheld payments, are also not barred by the Eleventh Amendment”); cf. Fl. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982) (finding no Eleventh Amendment bar to a district court ordering the state to disgorge property to which it had no right); Ross v. Meese, 818 F.2d 1132, 1133-34 (4th Cir. 1987) (finding district court had jurisdiction to enjoin law enforcement from further disseminating notes that it made during an illegal search). Unlike the Plaintiffs in IPAS, MacIver does not seek access to the documents of others- just notification of which of its own records Defendants unlawfully seized. MacIver seeks an injunction requiring the Prosecutor Defendants and Defendant Stelter to “contact MacIver and each class member and provide a confidential, true, and accurate copy21 of the class member’s electronic communications and data that were seized.” FAC at 27. Defendants unlawfully and secretly seized millions of confidential emails, calendar entries, contact lists, and attached documents from MacIver and scores of other individuals and groups. FAC ¶¶ 44-51, 55-58.22 MacIver, unaware of which of its confidential communications, calendar entries, and contact 21 Defendants (other than Stelter) argue in their Motion to Dismiss that this will violate the order of the Wisconsin Supreme Court. This is incorrect. MacIver merely seeks a copy of its own records. Nothing in the Wisconsin Supreme Court’s orders prevents the Court from ordering Defendants to provide to MacIver a copy of its own records. Certainly MacIver’s claim to a copy of those records is greater than Defendants’ claim to keep the originals. See Dkt. No. 32; Dkt. No. 41. 22 After the Wisconsin Supreme Court declared that “the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing,” Two Unnamed Petitioners, 866 N.W.2d at 97-98, it ordered him to notify those individuals and groups whose records he seized and to describe for them the “nature and scope” of the records seized, Wis. ex rel. Three Unnamed Petitioners v. Peterson, 875 N.W.2d 49, 61-62 (Wis. 2015). This he has not done. FAC ¶ 48. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 47 of 50 48 information have been compromised by Defendants’ seizure and subsequent retention, review, and manipulation, carries on under the constant threat that its confidential communications will be used or disclosed to its detriment, whether privately or publicly. See ¶¶ 45, 47-48, 67, Ex. M. at 3 (“From the correspondence I’m reading from the various attorney’s [sic] they don’t seem to have a clue that we have and will be getting all their clients [sic] emails.”). By withholding this information, Defendants continue to violate MacIver’s (and other similarly situated groups’ and individuals’) privacy rights under the SCA. This is an ongoing violation of federal law. Second, the Seventh Circuit has permitted the use of Ex parte Young to prevent state officials from continuing to violate federal law. MacIver has asked the Court to enjoin Defendants from disclosing its records or those of class members that they seized in violation of the SCA and from seizing its records or those of the class in violation of the SCA in the future. FAC at 27. In Vickery v. Jones, the Court rejected a claim that there was no “ongoing violation” and permitted suit under Ex parte Young because the state officials “had not clearly stated their intention to permanently cease using political affiliation as a criterion in hiring temporary workers” in violation of federal law. 100 F.3d 1334, 1346-47 (7th Cir. 1996); see Denius, 330 F.3d at 928-29 (district court concluded that there was a “real danger” that defendants would violate plaintiff’s constitutional rights in the future); Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1338-39 (11th Cir. 1999) (refusing to require “imminence” of a threatened violation in order to permit injunctive relief under Ex parte Young). The Vickery Court distinguished Green v. Mansour, 474 U.S. 64 (1985), and Watkins v. Blinzinger, 789 F.2d 474 (1986): in Green, Congress amended the federal statute on which the claim was based so that the offending conduct no longer violated it; in Watkins, state officials changed the offending practice while the suit was pending so that it no longer offended. Vickery, 100 F.3d at 1347. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 48 of 50 49 Unlike in Green, Congress has not changed the SCA to permit John Doe judges to issue SCA-compliant warrants. Unlike in Watkins, Defendants have not changed their policy to comply with the SCA in the future. Instead, these Defendants have acted like the state officials in Vickery, and have not clearly stated their intention to comply with the SCA in the future by seeking electronic search warrants from a Wisconsin circuit court-a court of general criminal jurisdiction. Defendant Chisholm, who directed the investigation of MacIver Institute and similarly situated individuals and groups and exercised supervisory control over Defendants Robles, Landgraf, Stelter during that investigation, stated on learning of this suit that he would do nothing differently if he had to do John Doe I and John Doe II all over again. FAC ¶ 6. Even after certain targets challenged their legal theory, Defendants continued their review of unlawfully seized and confidential stored electronic communications, see FAC ¶¶ 67-71, even though they remained well aware of the requirements of 18 U.S.C. § 2703, FAC ¶ 65, and that “John Doe judges are not courts of record,” FAC ¶ 41, Ex. I. at 4 n.2. Because Defendants have not clearly stated an intention not to violate the SCA in the future, MacIver seeks relief from an ongoing violation of federal law and Ex parte Young permits this lawsuit despite the Eleventh Amendment. Conclusion For the foregoing reasons, Plaintiff MacIver respectfully requests that the Court deny Defendants’ Motions. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 49 of 50 50 Dated: December 22, 2016 Respectfully submitted, GRAVES GARRETT, LLC /s Edward D. Greim________________ Todd P. Graves Edward D. Greim Dane C. Martin J. Benton Hurst 1100 Main Street, Suite 2700 Kansas City, Missouri 64105 Tel: 816-256-3181 Fax: 816-817-0863 tgraves@gravesgarrett.com edgreim@gravesgarrett.com dmartin@gravesgarrett.com bhurst@gravesgarrett.com Counsel for The John K. MacIver Institute for Public Policy, Inc. Case: 3:16-cv-00539-wmc Document #: 78 Filed: 12/22/16 Page 50 of 50
