The John K. Maciver Institute For Public Policy, Inc. v. Schmitz, Francis et al

Brief in Reply

W.D. Wis.January 13, 2017

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., Plaintiff, Case No. 16-cv-539 v. FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, ROBERT STELTER, KEVIN KENNEDY, SHANE FALK, and JONATHON BECKER, Defendants. ______________________________________________________________________________ REPLY MEMORANDUM IN SUPPORT OF DEFENDANT ROBERT STELTER’S MOTION TO DISMISS ______________________________________________________________________________ NOW COMES defendant Robert Stelter, by and through his attorneys of record, Leib Knott Gaynor LLC, and hereby submits this reply memorandum in support of his motion to dismiss. ARGUMENT The arguments on which the plaintiff relies in its response memorandum fail to demonstrate that it has stated a claim under the Stored Communications Act (“SCA”). Nor do they, at the very least, either undermine the defendants’ good-faith reliance on John Doe Judge Kluka’s issuance of the search warrant or reveal any clearly-established right which should subject the defendants to liability under the SCA. These shortcomings require dismissal. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 1 of 25 2 Lost amidst the plaintiff’s legal arguments is any recognition that Investigator Stelter is a state law-enforcement officer. His duty to the public is to enforce the laws according to their common meaning. Arcane conceptual distinctions—such as the ones the plaintiff asks the Court to draw between “judges” and “courts,” or between “general” and “limited” jurisdiction—should not be foisted on law-enforcement officers after the fact, even if it is said that the SCA intends them at all. Investigator Stelter did what any officer is expected to do: he pursued evidence of a crime where he suspected such evidence to be, and he relied on a judicial officer’s determination that the manner in which he pursued the evidence was appropriate under applicable laws. The plaintiff’s attacks on this process, couched in retrospection and hyper-technical analysis, are contrary to the language of the SCA, the available case law, and the public’s interest in the administration of criminal justice. I. THE PLAINTIFF’S RESPONSE MEMORANDUM DOES NOT ESTABLISH THAT IT STATED A CLAIM UNDER THE SCA. The plaintiff insists that it has stated a claim under the SCA. First, it argues that Judge Kluka did not issue the search warrant as part of a state court of general criminal jurisdiction. (Pl.’s Resp. Memo. at pp. 6-17, dkt doc. no. 78.) Second, the plaintiff contends that the defendants may be held liable under the SCA notwithstanding Judge Kluka’s issuance of the warrant. (Id. at pp. 17-21, 43-45.) Third, the plaintiff asserts that its allegations show knowing or intentional violations of the SCA by the defendants. (Id. at pp. 21-23.) Lastly, the plaintiff argues that it was an aggrieved subscriber, customer, or Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 2 of 25 3 person under the SCA. (Id. at pp. 23-24.) Each of these arguments is addressed in the remainder of this section below. A. Within the Meaning of the SCA, Judge Kluka Issued the Search Warrant as a State Court of General Criminal Jurisdiction. The plaintiff, by undertaking an exceedingly disjunctive analysis, cannot see the forest for the trees. The question is straightforward: when Judge Kluka, a reserve judge appointed to oversee John Doe II, issued a valid search warrant under Wis. Stat. § 968.12, did it constitute a warrant obtained from “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants” within the meaning of the SCA? The answer to this question is a product of all the circumstances, including the relationship among the SCA, Wisconsin law, and the allegations. Rather than contemplate all the circumstances, the plaintiff separately considers in vacuo the John Doe judge, the John Doe proceeding, and the John Doe jurisdiction, assigning to each a mishmash of phrases cherrypicked from more than 100 years of Wisconsin case law. The plaintiff’s reasoning is unpersuasive for three reasons. First, the plaintiff misstates the way in which Wisconsin law characterizes John Doe proceedings. Second, the plaintiff does not explain why its interpretation of Wisconsin law should lead the Court to conclude that the defendants did not obtain the search warrant from “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants” for purposes of the SCA. Third, under the plaintiff’s unreasonably narrow definition, Wisconsin judges would never constitute “a court of general criminal Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 3 of 25 4 jurisdiction” when issuing search warrants prior to the commencement of a prosecution. These issues will be addressed in turn. 1. The plaintiff misstates the way in which Wisconsin law characterizes John Doe proceedings. The plaintiff simultaneously overstates, misconstrues, and neglects Wisconsin law. The language from Wisconsin cases to which the plaintiff refers comes in two flavors: (1) statements that Wisconsin law does not interpret a John Doe judge or a John Doe proceeding to be the same as a court, and (2) statements that exact certain limitations on the powers of John Doe judges or John Doe proceedings under Wisconsin law. Based on these statements, the plaintiff insists that, even when the John Doe proceeding is overseen by a judge of the circuit court or court of record, a search warrant issued therefrom is not issued by a “court of general criminal jurisdiction” under the SCA. Despite devoting ten pages to its analysis of Wisconsin case law, the authority which actually supports the plaintiff’s position is thin. Of the 22 Wisconsin cases cited by the plaintiff, only four Wisconsin cases arguably stand for the proposition that a John Doe judge or a John Doe proceeding is not the same as a court.1 The remaining citations are irrelevant or are employed in a misleading manner. For example, the plaintiff claims that the following cases support the contention that “[a] John Doe judge is not the equivalent of a court” at page 7 of its memorandum:  State v. Koopman, 148 N.W.2d 671 (Wis. 1967): This case addressed whether “an order of a magistrate denying a motion for transfer of the case to juvenile court 1 State ex rel. Unnamed Person No. 1 v. State (In re Doe), 660 N.W.2d 260, 268-69 (Wis. 2003); State v. Cummings, 546 N.W.2d 406, 412 (Wis. 1996); State v. Washington, 266 N.W.2d 597, 607 & n.15, 17, 614 (Wis. 1978); State v. Schober, 481 N.W.2d 689, 692-93 (Wis. Ct. App. 1992). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 4 of 25 5 [was] an appealable order subject to review by [the appellate] court.” Id. at 672. The case involved neither a John Doe judge nor a John Doe proceeding, nor even mentioned one or the other.  State ex rel. White v. District Court, 54 N.W.2d 189 (Wis. 1952): This case addressed “whether a criminal court had jurisdiction over relator by reason of the issuance of a warrant and the setting of a date for preliminary hearing at the time the juvenile court assumed jurisdiction and entered its judgment of December 6, 1951.” Id. at 191. The case involved neither a John Doe judge nor a John Doe proceeding, nor even mentioned one or the other.  State v. Friedl, 47 N.W.2d 306 (Wis. 1951): This case addressed whether a judge presiding over an initial appearance of an arrestee was acting as a court or a magistrate. Id. at 307. The case involved neither a John Doe judge nor a John Doe proceeding, nor even mentioned one or the other.  Gavcus v. Maroney, 377 N.W.2d 200 (Wis. Ct. App. 1985) (per curiam):2 This case addressed whether a judge’s order refusing to issue a private citizen’s criminal complaint under Wis. Stat. § 968.02(3) is appealable. The case involved neither a John Doe judge nor a John Doe proceeding, nor even mentioned one or the other.  State ex rel. Newspapers, Inc. v. Circuit Ct. for Milwaukee Cnty., 370 N.W.2d 209 (Wis. 1985): This case addressed whether, at the behest of interested media outlets, the court of appeals should issue a supervisory writ compelling the circuit-court judge to conduct the hearing on whether to issue a private citizen’s criminal complaint under Wis. Stat. § 968.02(3) in open court. Id. at 210-11. The case involved neither a John Doe judge nor a John Doe proceeding, nor even mentioned one or the other.  State v. Dickson, 193 N.W.2d 17 (Wis. 1972): This case addressed whether a judge had the power to hold an attorney who disobeyed an order executed by a clerk of court in contempt. Id. at 21-22. The case involved neither a John Doe judge nor a John Doe proceeding, nor even mentioned one or the other. 2 Gavcus was a per curiam opinion. Depending on the legal database one uses to review this case, it may be helpful to use Gavcus’ alternative citation: In re ISSUANCE & FILING, 127 Wis. 2d 69 (Ct. App. 1985) (per curiam). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 5 of 25 6 Even the Wisconsin cases that could conceivably support the plaintiff’s position contain important caveats. For example, while Cummings notes that “a John Doe judge does not have the statutory powers of a court,” 546 N.W.2d at 412, it also speaks of those powers which emanate from the judiciary generally, including the power to issue search warrants: [S]ince the authority to issue a search warrant is conferred upon all judges independently by Wis. Stat. § 968.12, the John Doe statute need not specifically mention the issuance of search warrants for a John Doe judge to have such power. John Doe statute need not specifically mention the issuance of search warrants for a John Doe judge to have such power. Id. at 410-11; see also id. at 412 (“[A] John Doe judge still enjoys those powers that are conferred to all judges by statute.”). The underlying purpose of the John Doe proceeding, the Cummings court explained, would be thwarted if John Doe judges lacked this authority: [S]tatutes should be interpreted in a manner which support their underlying purpose. See State v. Swatek, 178 Wis. 2d 1, 6-7, 502 N.W.2d 909 (Ct. App. 1993). This court has repeatedly held that the John Doe proceeding was designed as an investigatory tool to be used as an “inquest for the discovery of crime.” Washington, 83 Wis. 2d at 822. Denying John Doe judges the ability to issue search warrants would seriously reduce the investigatory power of the John Doe proceeding. Id. at 411; see also id. (“[A] John Doe judge has been granted jurisdiction, the legal right to exercise its authority, pursuant to Wis. Stat. § 968.27. A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate.”). Similarly, while Washington notes that “[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,” 266 N.W.2d Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 6 of 25 7 at 607, it also explains that a John Doe judge has the authority to exercise the authority of a “court” by simply deciding to do so, see id. at 607-08. Specifically, the John Doe judge in Washington, believing that he could not institute civil contempt proceedings for a witness who disobeyed a subpoena within the John Doe proceeding itself,3 instead issued an order declaring that the proceedings were now in “open court.” Id. And, just like that, the Wisconsin Supreme Court considered the John Doe judge to be a court, accepting it as a proper exercise of the John Doe judge’s authority. Id. The plaintiff also argues that Wisconsin case law has strictly curbed the powers of John Doe judges, even if they are simultaneously circuit-court judges. As mentioned above, this is plainly untrue: “[A] John Doe judge still enjoys those powers that are conferred to all judges by statute.” Cummings, 546 N.W.2d at 412. Only three cases cited by the plaintiff could conceivably support its argument, and each are easily distinguishable.4 Both State ex rel. Newspapers, Inc. v. Circuit Ct. for Milwaukee Cnty. and State ex rel. v. Coffey stand for the proposition that, because of the secret nature of John Doe proceedings, a John Doe judge cannot compel self-incriminating testimony of a witness for reasons of public policy. 221 N.W.2d at 895-97; 118 N.W.2d at 942-43. However, like in Washington, the Wisconsin Supreme Court held in State ex rel. Newspapers, Inc. that the John Doe judge may simply exercise his or her powers as a court 3 The Wisconsin Supreme Court did not address this question as it was not presented on appeal. 266 N.W.2d at 607. 4 State ex rel. Newspapers, Inc. v. Circuit Ct. for Milwaukee Cnty., 221 N.W.2d 894, 895 (1974); State ex rel. v. Coffey, 118 N.W.2d 939, 942-43 (1963); In re Wisconsin Family Counseling Services, Inc., 291 N.W.2d 631, 635 n.7 (Wis. Ct. App. 1980). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 7 of 25 8 anyway by opening the courtroom. 221 N.W.2d at 897-98. This limitation of power, in other words, is illusory and exists in form only. The other case on which the plaintiff relies is In re Wisconsin Family Counseling Services, Inc. There, the Wisconsin Court of Appeals made the unsurprising observation that John Doe judges have the authority to conduct criminal investigations but do not have the authority to try, convict, or sentence a criminal suspect. 291 N.W.2d at 635 n.7. However, circuit-court judges have the personal and subject-matter jurisdiction to both try, convict, and sentence criminal defendants and conduct criminal John Doe investigations. Wis. Stat. § 968.26 does not limit the circuit-court judge’s jurisdiction; rather, it affects the competency of his or her powers. The Wisconsin Supreme Court has recognized the importance of this distinction: We have recognized . . . that a circuit court’s ability to exercise the subject matter jurisdiction vested in it by the constitution may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction in individual cases. Because the circuit court’s subject matter jurisdiction is plenary and constitutionally-based, however, noncompliance with such statutory mandates is not “jurisdictional” in that it does not negate the court’s subject matter jurisdiction. Rather, a failure to comply with a statutory mandate pertaining to the exercise of subject matter jurisdiction may result in a loss of the circuit court’s competency to adjudicate the particular case before the court. [A] defect of competency . . . is not jurisdictional. Vill. of Trempealeau v. Mikrut, 681 N.W.2d 190, 195 (Wis. 2004) (citations and quotation marks omitted, emphasis added). Finally, the plaintiff fails to adequately address several sources of Wisconsin authority favorable to the defendants’ position. For instance, as noted in this defendant’s Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 8 of 25 9 moving memorandum, the Wisconsin Constitution states that “[t]he judicial power of this state shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts of general uniform statewide jurisdiction as the legislature may create by law, and a municipal court if authorized by the legislature under section 14.” Art. VII, § 2. Logically, a John Doe proceeding must be either “a circuit court” or a “trial court[] of general uniform statewide jurisdiction as the legislature may create by law.” Either way, the John Doe proceeding would meet the SCA’s definition of “a court of general criminal jurisdiction” (or, as will be explained further below, “a court of competent jurisdiction”).5 2. The plaintiff does not explain why its interpretation of Wisconsin law should lead the Court to conclude that the defendants did not obtain their search warrant from “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants” for purposes of the SCA. Even if one was to accept the plaintiff’s interpretation of Wisconsin law arguendo, the plaintiff errs in assuming that the distinction drawn by a few Wisconsin cases between a “judge” and “court” compels the conclusion that the SCA barred Judge Kluka from issuing a search warrant for Brian Fraley’s electronically-stored information during John Doe II. Nothing in either the SCA or the case law interpreting the SCA requires this to be so. In fact, the limited case law touching on this point, as well as the legislative history underlying the SCA, suggests that the plaintiff is incorrect to rely on this assumption. 5 The plaintiff failed to address other supportive authority as well, such as the circuit-court powers vested in Judge Kluka by statute as a reserve judge and the codification of John Doe proceedings alongside the core processes of the Wisconsin criminal justice system in Wis. Stat. Chapt. 968. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 9 of 25 10 In United States v. Gardner, the District Court for the Eastern District of North Carolina analyzed whether a search warrant issued by a North Carolina state magistrate judge complied with the SCA. 2016 U.S. Dist. LEXIS 58670 (E.D.N.C. Apr. 1, 2016). Rather than analyze whether the magistrate judge constituted a “court,” the district court focused on the character of the magistrate judge as a judicial officer: “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). In North Carolina, “[g]eneral jurisdiction for the trial of criminal actions is vested in the superior court and the district court divisions of the General Court of Justice.” N.C. Gen. Stat. § 7A-270. “A magistrate is an officer of the district court,” N.C. Gen. Stat. § 7A-170, and is empowered to “issue search warrants valid throughout the county,” N.C. Gen. Stat. § 7A-273. Id. at *17 (emphasis added). Like the magistrate judge in Gardner, Judge Kluka was an officer of a court of general jurisdiction, namely the circuit court. The plaintiff does not dispute this characterization in its response memorandum, (see Pl.’s Resp. Memo. at p. 15), and Wisconsin law compels this conclusion, (see Stelter’s Moving Memo. at pp. 6-7, dkt. doc. no. 69). The plaintiff also concedes that Wisconsin law authorized Judge Kluka to issue search warrants, (see Pl.’s Resp. Memo. at p. 15 n.5). See Cummings, 546 N.W.2d at 410-11. Thus, under Gardner’s interpretation of the SCA, Judge Kluka met the definition of “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” The legislative history of the SCA would also seem to support a broader interpretation. The SCA was substantially amended as part of The Patriot Act in 2001. A Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 10 of 25 11 report created by the House Committee on the Judiciary dated October 11, 2001 states that the provisions of the SCA found in 18 U.S.C. § 2703 were intended “to authorize the court with jurisdiction over the investigation to issue the warrant directly, without requiring the intervention of its counterpart in the district where the ISP is located.” H.R. Rep. 107-236 (Title 1), at 57 (2001). Over time, various courts, including the Seventh Circuit, have cited this language when discussing why the SCA does not prevent but indeed authorizes judges to issue search warrants for electronically-stored information located beyond the judge’s territorial reach. See United States v. Berkos, 543 F.3d 392, 397 n.4 (7th Cir. 2008); United States v. Scully, 108 F. Supp. 3d 59, 77 (E.D.N.Y. 2015); United States v. Noyes, 2010 U.S. Dist. LEXIS 130041, 2010 WL 5139859, *9 n.8 (W.D. Pa. Dec. 8, 2010); United States v. Freeman, 2010 U.S. Dist. LEXIS 115074, 2010 WL 4386897, *12 n.6 (D. Minn. May 13, 2010). While this portion of the legislative history also uses the term “court,” it would seem anomalous to conclude that an entire category of “investigations” in Wisconsin, over which the John Doe judge has unquestionable jurisdiction, lies beyond the protections intended by the SCA. Congress sought to promote efficiency in the investigative process and was certainly not considering what fine lines a few state courts might draw between “judge” and “court” in an obscure state proceeding like a John Doe. It would be more reasonable to interpret the SCA’s use of the word “court” broadly so as to cover state judges who possess both jurisdiction over criminal investigations and the authority to issue search warrants. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 11 of 25 12 3. Under the plaintiff’s unreasonably narrow definition, Wisconsin judges would never constitute “a court of general criminal jurisdiction” when issuing search warrants prior to the commencement of a prosecution. Search warrants are ordinarily issued prior to the commencement of a prosecution or issuance of a criminal complaint. In other words, they arise without any formal criminal proceeding. They are used as investigatory devices to collect the evidence from which a prosecution might later commence. Similar to the John Doe statute, the Wisconsin statute which authorizes search warrants requires a “judge,” not a “court,” to issue the warrants if probable cause is shown. Wis. Stat. § 968.12. Under the plaintiff’s narrow interpretation of the SCA, Wisconsin judges who issue search warrants prior to the commencement of a prosecution would not be acting as “a court of general criminal jurisdiction.”6 This interpretation of the SCA is unreasonable and would lead to absurd results. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”). It is inconceivable that the SCA would not consider the judges who issue most all of the search warrants in Wisconsin to be courts of general criminal jurisdiction. The Congressional drafters of the SCA would likely find the idea repugnant. Rather than expose a large number of 6 Specifically, the plaintiff argues that, to constitute a court, a judge must be acting “for the purpose of adjudicating the rights of the parties” and that “[i]t requires the presence of litigants, generally attorneys, usually officers, such as bailiff, clerk, etc., and frequently jurors.” (Pl.’s Resp. Memo. at pp. 7-8.) A unilateral application for a search warrant to a judge prior to the commencement of a prosecution would not meet this narrow definition. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 12 of 25 13 Wisconsin judges, prosecutors, and law-enforcement officers to civil liability under the SCA, the Court should reject the narrow interpretation proposed by the plaintiff and adopt a broader, more reasonable construction of the SCA’s language. B. Even if Judge Kluka Did Not Issue the Search Warrant as a State Court of General Criminal Jurisdiction, She Issued It as a Court of Competent Jurisdiction Within the Meaning of the SCA. As this defendant argued in his moving memorandum, the SCA uses the word “includes” when defining the phrase “court of competent jurisdiction,” indicating that Congress did not intend to limit its definition to the items specifically referenced in 18 U.S.C. § 2711(3). Somewhat surprisingly, the plaintiff disagrees with this basic tenet of statutory construction. (Pl.’s Resp. Memo. at p. 17 n.6.) The plaintiff argues that, in Gaffney v. Riverboat Servs., the Seventh Circuit “did not hold, as Defendant Stelter represents, that ‘including’ is a word of illustrative application when used in statutes.” (Id.) To the contrary, it did: “‘Including’ within a statute is interpreted as a word of . . . illustrative application.” 451 F.3d 424, 459 (7th Cir. 2006) (quoting Black’s Law Dictionary 687 (5th ed. 1979)). However, it does not much matter; the case law is replete with references to this principle. See, e.g., Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 99-100 (1941); Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 943 (7th Cir. 2015); United States v. Vargas-Garnica, 332 F.3d 471, 473-74 (7th Cir. 2003); Ty, Inc. v. Publ’Ns Int’l, 292 F.3d 512, 522 (7th Cir. 2002); Richardson v. National City Bank, 141 F.3d 1228, 1231-32 (7th Cir. 1998). The plaintiff also argues that, “[i]f 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.” (Pl.’s Resp. Memo. at p. 17 n.6.) This Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 13 of 25 14 is unlikely. Wisconsin is the only state in the union that has John Doe proceedings. Congressional drafters were not combing the annals of state law to discover how some state court might distinguish “judges” from “courts” in the context of a little-known investigatory proceeding. For this reason, one could reasonably conclude that Congress inserted the word “includes” so as not to unduly limit the definition of “a court of competent jurisdiction” and to accommodate unforeseen circumstances. Such a conclusion would also foreclose the need to divine why Congress used the word “judge” in the Wiretap Statute, 18 U.S.C. §§ 2510 to 2522, and “court” in the SCA. Nevertheless, even if one considers this distinction, it does not support the plaintiff’s position. Federal case law demonstrates that, under comparable circumstances, Congress employed the phrase “court of competent jurisdiction” in the Privacy Act, 18 U.S.C. §§ 3121 to 3127, rather than the phrase “judge of competent jurisdiction” in the Wiretap Statute, to confer authority under the Privacy Act on federal magistrates: Finally, in 1986, Congress passed the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended at 18 U.S.C. §§ 3121-3127) (the Privacy Act). This Act amended Title III by requiring law enforcement officers wishing to employ “pen register” or “trap and trace” monitoring devices to seek permission from a “court of competent jurisdiction.” See 18 U.S.C. § 3122 (a). Unlike the definition of “judge of competent jurisdiction” in the wiretapping provisions of Title III, the definition of “court of competent jurisdiction” in the Privacy Act specifically includes federal magistrates. See 18 U.S.C. § 3127(2)(A). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 14 of 25 15 In re United States, 10 F.3d 931, 935 (2d Cir. 1993).7 The SCA, too, employs the phrase “court of competent jurisdiction” and confers authority on federal magistrates. 18 U.S.C. § 2711(3)(A) (stating that “the term ‘court of competent jurisdiction’ includes . . . any district court of the United States (including a magistrate judge of such a court)”). Accordingly, Congress uses the phrase “court of competent jurisdiction,” as opposed to “judge of competent jurisdiction,” in order to broaden, not restrict, the scope of the statutory provision. C. Even If Judge Kluka Did Not Act as a Court of Competent Jurisdiction, the Defendants Relied in Good Faith on Her Issuance of the Search Warrant. At the outset, the plaintiff avers that the Court cannot consider the defendants’ statutory defenses under Fed. R. Civ. P. 12(b)(6). (Pl.’s Resp. Memo. at p. 43.) This is incorrect. “[A] complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face.” Jones v. Bock, 549 U.S. 199, 215 (2007) (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)); see also Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008) (citing Jones). As stated in Muhammad, the principle underlying this rule is “that a plaintiff can plead himself out of court.” Id. (citing, e.g., Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) & American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 724 (7th Cir. 1986)). Importantly, both Jones and Muhammad were issued after the sole opinion to which the plaintiff cites, McCready v. eBay, Inc., 453 F.3d 882 (7th Cir. 2006). 7 It would appear that this nuance was advisable to avoid any confusion between federal magistrates and Article III judges. See generally United States v. Raddatz, 447 U.S. 667 (1980) (discussing generally the statutory functions of magistrates in relation to Article III judges). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 15 of 25 16 Consequently, the Court may properly reach the question of whether the defendants’ good-faith defense requires dismissal. Although McCready no longer supports the plaintiff’s interpretation of Rule 12(b)(6), it does explain why the defendants’ good-faith defense requires dismissal under Rule 12(b)(6). The Seventh Circuit stated in that case that a defendant’s good faith “may be shown with a facially valid subpoena.” Id. at 892 n.2. The court further explained that one need only “look at the subpoena” to defeat the plaintiff’s allegations that the defendant did not act in good faith. Id. at 892. In the present case, the plaintiff does not contend that the search warrant for Brian Fraley’s electronically-stored information was facially invalid in any way. As a consequence, the good-faith defense applies. Despite seemingly clear language endorsing an objective interpretation of good faith under the SCA, the plaintiff contends that the test McCready adopted contains both an objective and subject component. (Pl.’s Resp. Memo. at p. 44.) The federal judiciary disagrees with the plaintiff’s interpretation of McCready. See Sams v. Yahoo! Inc., 713 F.3d 1175, 1181 (9th Cir. 2013) (construing McCready to adopt an objective test); Alexander v. Verizon Wireless Servs. LLC, 2016 U.S. Dist. LEXIS 158176, *9 (W.D. La. Oct. 3, 2016) (same); In re the Application of United States, 441 F. Supp. 2d 816, 835 n.40 (S.D. Tex. 2006) (interpreting McCready to hold that good faith turns on the existence of irregularities on the face of the subpoena). Additionally, the plaintiff argues that McCready is distinguishable because it involved a lawsuit against only an ISP and custodian of records, whereas the present lawsuit is against the individuals who “drafted, procured, and executed the warrants.” Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 16 of 25 17 (Pl.’s Resp. Memo. at pp. 44-45.) The plaintiff is mistaken in its recollection of McCready. McCready involved SCA claims against both the ISP, eBay, Inc., and the individuals who drafted, procured, and executed the subpoena, Kamminga and his attorney, McDuffee. 453 F.3d at 887-88. The Seventh Circuit had no problem concluding that, based on an objective standard, Kamminga and McDuffee were entitled to dismissal under the good- faith defense: “It is apparent, as well, that McDuffee and Kamminga acted in good faith. The subpoena was issued by a federal district court on behalf of a defendant in a pending lawsuit, seeking information about a party opponent which related to the case.” Id. at 892. Finally, the plaintiff argues that the good-faith defense is unavailable to the defendants because the search warrant did not constitute a “court order” for purposes of 18 U.S.C. § 2707(e)(1). (Pl.’s Resp. Memo. at p. 43.) Specifically, that subsection states that “[a] good faith reliance on . . . a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703(f) of this title) . . . is a complete defense to any civil or criminal action brought under this chapter or any other law.” For all of the reasons stated in Section I.A and I.B, as well as the ones raised in the moving memorandum, the search warrant issued by Judge Kluka constituted a “court order.”8 However, even if the search warrant did not constitute a “court order,” the good- faith defense still applies. A defendant is entitled to rely in good faith upon “a statutory authorization” under § 2707(e)(1). In drafting, procuring, and executing the search 8 Also, § 2707(e)(1)’s inclusion of “a grand jury subpoena” indicates that the SCA intended to confer a good-faith defense on defendants who rely on orders in a probable-cause proceeding. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 17 of 25 18 warrant, the defendants relied upon the authority granted to Judge Kluka to issue search warrants by the John Doe statute, Wis. Stat. § 968.26, and the search-warrant statute, Wis. Stat. § 968.12. The plaintiff concedes that Judge Kluka had the statutory authority to issue search warrants during John Doe II. Therefore, the plaintiff fails to state a claim against the defendants based on the good-faith defense. D. The Plaintiff Has Not Established that It Was a Subscriber to Google or a Person Aggrieved for Purposes of Stating a Civil Claim Under the SCA. The plaintiff was neither a “subscriber” to Google nor a “person aggrieved” under the SCA, thereby precluding a civil action against the defendants. The SCA authorizes “any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter” to maintain a civil action. 18 U.S.C. § 2707(a). The plaintiff does not argue that it was a “provider of electronic communication service.” Google holds that distinction. Instead, the plaintiff contends that it was a “subscriber,” a “customer,” or an “other person aggrieved.” (Pl.’s Resp. Memo. at pp. 23-24.) As an initial matter, a “customer” is not expressly authorized to maintain a civil action under § 2707(a). Nevertheless, the distinction between “subscribers” and “customers” in the SCA is important because the terms are almost always paired together. See 18 U.S.C. §§ 2702, 2703. Congress defined neither term.9 Although there is 9 To be certain, however, the terms are distinct. In re Application of the United States, 830 F. Supp. 2d 114, 118 n.2 (E.D. Va. 2011) (“The terms ‘user,’ ‘customer,’ and ‘subscriber’ are technically distinct under the Stored Communications Act.”); see also KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 729 (2013) (“Interpretations that render words of a statute superfluous are disfavored as a general matter . . . .”). The lack of definitional clarity in the SCA and legislative history is explored in greater length in Comment: Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web, 118 Yale L.J. 1945, 1950-52 (June 2009). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 18 of 25 19 very little case law on their definitions, one district court defined “subscriber” as “a user of the service.” Cornerstone Consultants, Inc. v. Prod. Input Solutions, L.L.C., 789 F. Supp. 2d 1029, 1049-50 (N.D. Iowa 2011). Some insight into the plain meaning of “subscriber” and “customer” can be gleaned from their dictionary definitions at the time of the SCA’s creation in 1986. See, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) (referencing this canon of statutory construction). The most applicable definition of “subscriber” is “one that subscribes,” and the most applicable definition of “subscribe” is “to enter one’s name for a publication (as a book or magazine) or service – usu. used with for and sometimes with to.”10 The most applicable definition of “customer” is “one that purchases some commodity or service . . . ; esp: one that purchases systematically or frequently.”11 In addition to the difference between the definitions of “subscribers” and “customers,” the difference in the way the SCA uses the terms is important. The phrase “subscriber to or customer of such [electronic communication] service” appears on five occasions in 18 U.S.C. §§ 2702 and 2703. § 2702(a)(3), (c); § 2703(c)(1), (2), (3). Given the different definitions, and given the different prepositions associated with each (“to” and “of”), one could reasonably conclude that a “subscriber” would be an individual who has and uses an account (e.g., an email account) to exchange electronic information (e.g., 10 Webster’s Third International Dictionary 2278 (1986). 11 Webster’s Third International Dictionary 559 (1986). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 19 of 25 20 emails) using the electronic communication service, and that a “customer” would be an individual who purchases the “electronic communication service.” Under the plaintiff’s allegations, the MacIver Institute was a customer of Google’s email hosting services, not a subscriber to it. The MacIver Institute paid money for the domain maciverinstitute.com, and it paid money for Google’s email hosting services. It did not, however, “subscribe” to the email service under any common understanding of the word. Brian Fraley was the subscriber. It was Mr. Fraley who had an email account, not the MacIver Institute. It was Mr. Fraley who had emails, contact lists, and calendar entries, not the MacIver Institute. The MacIver Institute is attempting in this lawsuit to substitute itself for Mr. Fraley and raise his privacy interests under the SCA. It cannot do so by claiming to be a “subscriber.” Nor is the MacIver Institute an “other person aggrieved” under 18 U.S.C. § 2707(a). Both the plaintiff and the case to which it cites, Brooks Grp. & Assocs. V. LeVigne, define the word “aggrieved” in the SCA in accordance with how it is defined in Title VII of the Civil Rights Act of 1964. (Pl.’s Resp. Memo. at p. 24.) This makes little sense. The SCA itself defines an “aggrieved person” as “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11) (incorporated into the SCA by 18 U.S.C. § 2711(1)). Most courts addressing this issue have used this definition. Sun West Mortg. Co. v. Flores, 2016 U.S. Dist. LEXIS 31149, *11, 2016 WL 1030074 (D. P.R. Mar. 10, 2016); Padmanabhan v. Healey, 159 F. Supp. 3d 220, 224 (2016) (D. Mass. 2016); Cornerstone Consultants, Inc., 789 Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 20 of 25 21 F. Supp. 2d at 1049; Bloomington-Normal Seating Co., Inc. v. Albritton, 2009 U.S. Dist. LEXIS 40302, *9, 2009 WL 1329123 (C.D. Ill. May 13, 2009). The plaintiff argues that, as Mr. Fraley’s employer, it is an “other person aggrieved” under the SCA, citing Albritton supra. The allegations in that case are easily distinguishable from the ones present in this lawsuit. Albritton involved an employee (Albritton) who, intentionally and without consent, accessed his co-employees’ email accounts in order to obtain confidential information about his employer (Bloomington): Bloomington asserts that Albritton misappropriated its confidential information by, among other things, accessing and obtaining information that he was not authorized to view and disclosing this information to individuals not authorized to receive such information. Specifically, the Complaint alleges that Albritton accessed confidential information without authorization, accessed his manager's email, transmitted computer commands resulting in email transmissions of various confidential budget and human resources information to co-workers, activated commands which caused unauthorized activation and use of certain software on Bloomington's equipment, transmitted commands resulting in approximately 1,200 unauthorized instant messages (some of which disseminated confidential information), transmitted commands to set up unauthorized remote access to other computers, and performed many of these actions by the unauthorized use of a Bloomington administrator’s password. 2009 U.S. Dist. LEXIS 40302, *2-3. Under such allegations, the Albritton court concluded that Bloomington met the definition of “other person aggrieved.” The circumstances here are materially different. The defendants did not obtain a search warrant to get to the MacIver Institute’s electronic information; they did so to get to Mr. Fraley’s electronic information. In Wisconsin, a search warrant which seeks to obtain a suspect’s “computer or electronic data” as evidence of a crime must be issued on Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 21 of 25 22 a probable-cause determination that the suspect “is reasonably suspected to be concerned in the commission of that crime.” Wis. Stat. § 968.13(1)(d), (2). Accordingly, the search warrant itself reveals that its purpose was to acquire electronic information from Mr. Fraley, not the MacIver Institute. The MacIver Institute is not, as a consequence, a “person aggrieved” and does not have standing to assert Mr. Fraley’s privacy rights under the SCA. II. THE PLAINTIFF’S RESPONSE MEMORANDUM DOES NOT PROVIDE ANY LEGITIMATE REASON WHY THE QUALIFIED-IMMUNITY DOCTRINE DOES NOT REQUIRE DISMISSAL OF THE PLAINTIFF’S PERSONAL- CAPACITY CLAIM. The defendants are entitled to qualified immunity. In its response, the plaintiff raises a series of arguments which can be rebutted in relatively short order: (A) that the defendants’ qualified-immunity affirmative defense does not justify dismissal at the pleadings’ stage, (Pl.’s Resp. Memo. at pp. 25-28); (B) that qualified immunity is unavailable as a defense to liability under the SCA, (Pl.’s Resp. Memo. at pp. 28-30); and (C) that the plaintiff has pleaded a clearly-established right under the SCA, (Pl.’s Resp. Memo. at pp. 38-43). A. The Defendants’ Qualified-Immunity Affirmative Defense May Justify Dismissal at the Pleadings’ Stage. As explained in Section I.C above, dismissal based on affirmative defenses is permitted at the pleadings’ stage if the affirmative defense is established on the face of the amended complaint. Furthermore, qualified immunity is a defense to be addressed at the first possible instance. See Behrens v. Pelletier, 516 U.S. 299, 306-08 (1996); Siegert v. Gilley, 500 U.S. 226, 232-33 (1991); Mitchell v Forsyth, 472 U.S. 511, 526-27 (1985); Casteel v. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 22 of 25 23 Pieschek, 3 F.3d 1050, 1052-53 (7th Cir. 1993) (“The availability of immunity in a given case should be decided as early as possible in litigation.”). Immunities can certainly be addressed at the pleadings’ stage, particularly on the clearly-established prong, and it is common practice to do so. B. Qualified Immunity May Apply Against Alleged Statutory Liability Under the SCA. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). When Harlow used the word “statutory,” it meant it. Harlow and Butterfield’s claims against former President Richard Nixon and others in Harlow were not simply for violations of constitutional rights under 42 U.S.C. § 1983; their claims also included “implied causes of action” based on violations of statutory rights under 5 U.S.C. § 7211 (creating a “right of employees . . . to . . . furnish information to either House of Congress, or to a committee or Member thereof”) and 18 U. S. C. § 1505 (criminalizing the obstruction of congressional testimony). Id. at 805-06, n.10, & n.36. Qualified immunity, Harlow held, may apply to claims based on a violation of statutory rights. The Seventh Circuit has applied qualified immunity to claims involving the statutory rights arising from the SCA’s companion, the Wiretap Statute (18 U.S.C. §§ 2510 Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 23 of 25 24 to 2522).12 Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009); Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998), cert. denied at 525 U.S. 1121 (1999); see also Narducci v. Vill. of Bellwood, 444 F. Supp. 2d 924, 935 (N.D. Ill. 2006) (noting that the Seventh Circuit has done so). Other federal circuits have also applied qualified immunity to claims brought under the Wiretap Statute. Tapley v. Collins, 211 F.3d 1210, 1216 (11th Cir. 2000); Blake v. Wright, 179 F.3d 1003, 1013 (6th Cir. 1999); see also In re State Police Litigation, 88 F.3d 111, 125-27 (2d Cir. 1996) (implying that it would do the same). The plaintiff does not provide any persuasive reason why the qualified-immunity doctrine ought not apply to its SCA claim. C. The Plaintiff Has Failed to Meet Its Burden to Demonstrate That It Had a Clearly-Established Right Under the SCA to Non-Disclosure of Communications and Records That Were the Subject of a Search Warrant Lawfully Issued by a John Doe Judge. As predicted in the moving memorandum, the plaintiff is unable to point to any authority which established beyond debate that, as of October 2013, the plaintiff had a right under the SCA to non-disclosure of communications and records that were the subject of a search warrant lawfully issued by a John Doe judge. Wisconsin law is far from clear in its characterization of John Doe judges and John Doe proceedings. Even if the plaintiff could show that Wisconsin law was clear, this would only paint one-half of the picture. The plaintiff would still need to point to authority establishing beyond debate that Wisconsin’s characterization of John Doe judges and John Doe proceedings is contrary to the SCA’s use of phrases like “court of general criminal jurisdiction” and 12 The SCA and the Wiretap Statute are statutory companions in that they are both largely products of the Electronic Communications Privacy Act of 1986 (ECPA) and their provisions refer to one another. Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 24 of 25 25 “court of competent jurisdiction.” The plaintiff has not met its burden with respect to either of these showings. The law is unquestionably unclear, hence the need for the parties to undertake voluminous briefing to determine whether the plaintiff has even stated a claim under the SCA at all. As a consequence, the defendants are entitled to qualified immunity. CONCLUSION Based on the foregoing arguments, as well as the ones raised in his moving memorandum, defendant Robert Stelter respectfully asks that the Court grant his motion to dismiss. Dated this 13th day of January, 2017. LEIB KNOTT GAYNOR LLC /s/ Douglas S. Knott Samuel J. Leib, WI Bar No. 1003889 Douglas S. Knott, WI Bar No. 1001600 Brent A. Simerson, WI Bar No. 1079280 Attorneys for Defendant Robert Stelter 219 N. Milwaukee Street, Suite 710 Milwaukee, WI 53202 Office: 414-276-2102 Fax: 414-276-2140 Email: sleib@lkglaw.net Email: dknott@lkglaw.net Email: bsimerson@lkglaw.net Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 25 of 25 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., Plaintiff, Case No. 16-cv-539 v. FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, ROBERT STELTER, KEVIN KENNEDY, SHANE FALK, and JONATHON BECKER, Defendants. ______________________________________________________________________________ CERTIFICATE OF SERVICE ______________________________________________________________________________ I, Douglas S. Knott, certify that on January 13, 2017, a copy of defendant Robert Stelter’s reply brief in support of his motion to dismiss was filed electronically. Notice of this filing was transmitted to all parties by way of the ECF system. Parties may access this filing through the ECF system. Case: 3:16-cv-00539-wmc Document #: 84-1 Filed: 01/13/17 Page 1 of 2 2 Dated this 13th day of January, 2017. LEIB KNOTT GAYNOR LLC /s/ Douglas S. Knott Samuel J. Leib, WI Bar No. 1003889 Douglas S. Knott, WI Bar No. 1001600 Brent A. Simerson, WI Bar No. 1079280 Attorneys for Defendant Robert Stelter 219 N. Milwaukee Street, Suite 710 Milwaukee, WI 53202 Office: 414-276-2102 Fax: 414-276-2140 Email: sleib@lkglaw.net Email: dknott@lkglaw.net Email: bsimerson@lkglaw.net Case: 3:16-cv-00539-wmc Document #: 84-1 Filed: 01/13/17 Page 2 of 2