Federal appeals court upholds dismissal of MacIver suit over John Doe II probe

Bruce Vielmetti
Milwaukee Journal Sentinel

A federal appeals court has upheld the dismissal of a conservative group's lawsuit over how prosecutors obtained the group's electronic records during an investigation into possible election law violations during the Gov. Scott Walker campaign.

Wisconsin Gov. Scott Walker.

The U.S. 7th Circuit Court of Appeals agreed with U.S. District Judge William Conley that the prosecutors properly obtained a search warrant from the original John Doe II judge before obtaining the records from the John K. MacIver Institute for Public Policy, Inc.'s internet service provider without notice to MacIver.

The records were obtained pursuant to the federal Stored Communications Act, and the act's good-faith defense, as well as qualified immunity, protects the prosecutors from MacIver's claims, Chief Judge Diane Wood wrote for a three-judge panel.

MacIver argued that the John Doe judge wasn't a court of lawful jurisdiction as defined under the SCA. The defendants argued that SCA requires only that the search warrant for stored records be valid under state law.

The fact that the Wiretap Act uses the word “judge” does not mean that state courts for SCA purposes have an extra burden to show why a given “judge” is acting for a particular “court.”

"The fact that the legal ground shifted under them during a period of considerable upheaval in election law ... is neither here nor there," Wood wrote.

"The prosecutors had no way of predicting these changes in state law and cannot be found to have been acting in bad faith because the legal landscape later changed."

In what became known as "John Doe II," prosecutors looked into whether Walker’s campaign and outside groups illegally collaborated on recall campaigns in 2011 and 2012. The state Supreme Court ended the investigation in 2015, saying nothing illegal occurred.

Even before the state Supreme Court acted, groups caught up in the probe began filing lawsuits because they contended prosecutors and investigators had acted improperly.