COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Wood
John K. MacIver Institute for – Appellant
Versus
Francis Schmitz – Respondent
United States Court of Appeals For the Seventh Circuit ____________________ No. 17‐1790 THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., Plaintiff‐Appellant,
v. FRANCIS D. SCHMITZ, et al., Defendants‐Appellees. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:16‐cv‐539 — William M. Conley, Judge. ____________________
ARGUED NOVEMBER 8, 2017 — DECIDED MARCH 21, 2018 ____________________
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐ cuit Judges. WOOD, Chief Judge. This appeal requires us once again to delve into the intricacies of the Wisconsin “John Doe proceed‐ ing,” a unique creature of Wisconsin law with some similari‐ ties to a grand jury investigation. A putative class of individ‐ uals and entities assert that they were swept up in a John Doe investigation that ran roughshod over their federal rights. They sued the members of Wisconsin’s (former) Government 2 No. 17‐1790 Accountability Board and the Milwaukee County District At‐ torney’s Office, complaining about actions the defendants took between 2012 and 2014 in connection with a multi‐ county John Doe proceeding. The investigation had focused on suspected illegal campaign coordination between certain issue‐advocacy groups and a candidate for elected office. Plaintiff, the John K. MacIver Institute for Public Policy (“MacIver”), is one of those advocacy groups. The defendants obtained search warrants from the state judge presiding over the John Doe proceeding for MacIver’s electronic records; they then executed those warrants through internet service providers without giving notice to MacIver. MacIver filed suit in the federal district court for the West‐ ern District of Wisconsin, alleging that the defendants’ con‐ duct violated the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2703(a)–(c), 2711(3). MacIver seeks damages, a pre‐ liminary injunction, and the return of its seized property. The district court dismissed the complaint and MacIver has ap‐ pealed. Although the parties have briefed a wide variety of issues relating to the SCA and the John Doe process, we con‐ clude that we need reach only one of them: the SCA’s good‐ faith defense. We conclude that the defendants are entitled to this defense and thus affirm the judgment of the district court. I A John Doe proceedings “have been in use in Wisconsin since its days as a territory.” State ex rel. Two Unnamed Peti‐ tioners v. Peterson, 363 Wis. 2d 1, 67 (2015), decision clarified on denial of reconsideration sub nom. State ex rel. Three Unnamed Pe‐ titioners v. Peterson, 365 Wis. 2d 351 (2015). Noting that it is a No. 17‐1790 3 unique device now codified under Wisconsin Statute § 968.26, this court “ha[s] likened John Doe proceedings to grand jury investigations,” except that they are conducted under the su‐ pervision of a judge, not the grand jury. See Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017). A John Doe proceeding “serves two important purposes.” Peterson, 363 Wis. 2d at 67. It is both “an investigatory tool used to ascertain whether a crime has been committed” and a special procedure “de‐ signed to protect innocent citizens from frivolous and groundless prosecutions.” Id. (quoting State ex rel. Reimann v. Cir. Ct. for Dane Cnty., 214 Wis. 2d 605, 621 (1997)). “John Doe proceedings are conducted through the author‐ ity of the
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