Seventh Circuit-Motion To Stay On The John Doe

1
IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ERIC OKEEFE and
WISCONSIN CLUB FOR GROWTH,
INC., Eastern District of Wisconsin
Case No. 14-CV-139-RTR
Plaintiffs-Appellees,
v. Appeal No. 14-1822 (consolidated)
Appeal No. 14-1888
Appeal No. 14-1899
FRANCIS SCHMITZ, in his official and Appeal No. 14-2006
personal capacities, et al., Appeal No. 14-2012
Appeal No. 14-2023

Defendants-Appellants.

DEFENDANTS-APPELLANTS JOHN CHISHOLM, BRUCE LANDGRAF AND
DAVID ROBLES MOTION FOR STAY OF DISTRICT COURT PROCEEDINGS

Defendants-Appellants John Chisholm, Bruce Landgraf, and David Robles (the
Milwaukee prosecutors) move pursuant to Fed. R. App. P. 8(a)(2) and Cir. R. 8 for an
order vacating orders of the district court and staying all district court proceedings
pending this Courts determination of their appeals. This motion to stay is also made
pursuant to the Seventh Circuits Order dated May 7, 2014. Order (Doc. 20).
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INTRODUCTION
The Milwaukee prosecutors return to this Court, as have the other appellants, in
order to have their immunities as state officials and their rights of appeal protected. On
May 6, 2014, District Court Judge Rudolph T. Randa issued an unprecedented

1
Doc. references are to the Seventh Circuit docket for this matter.
Case: 14-1822 Document: 30-1 Filed: 05/15/2014 Pages: 22
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preliminary injunction terminating ongoing John Doe proceedings related to potential
criminal violations of Wisconsins campaign finance laws and requiring the permanent
destruction of evidence obtained in those proceedings. Knott Decl., Ex. 1, Prelim. Inj.
Order. On May 7, 2014, this Court stayed the return and destroy mandate and
directed the district court to follow the procedure outlined in Apostol v. Gallion, 870 F.2d
1335 (7th Cir. 1989) to determine whether it had jurisdiction to issue the injunction.
Order (Doc. 20). The Court directed the district court to rule[] definitively on the
question posed by Apostol, i.e., whether the defendants appeals are frivolous. Id.
Noting that it would be inappropriate to implement the injunction in a manner
that effectively prevents appellate review, the Court further advised appellants that
they could renew their request for stay in this Court should the district court find their
appeals frivolous. Id. The Courts intervention is, unfortunately, required in order to
protect the parties rights of timely appeal and immunity.
The district court was determined to rule on Wisconsins campaign finance laws.
It certified all of the defendants appeals as frivolous just one day after this Courts
order staying the matter. Knott Decl., Ex. 2, Certification Order. The certification was
issued without further briefing from the parties or significant consideration of
defendants arguments. It came just one week after the court had declined to certify the
same arguments as frivolous.
Like the prior ruling requiring the destruction of evidence, the district courts
certification is a transparent and untenable order granting plaintiffs relief that is not
warranted and permanently undermining the ability of the defendants to defend
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themselves and have their rights determined in this Court. Defendants request that the
district courts decision of May 8 be vacated and the preliminary injunction and all
further proceedings stayed pending determination of the appeals.
PROCEDURAL BACKGROUND
Although this case is just a few months old, the procedural background is
extensive. Much of the procedural history refuting the suggestion that defendants have
manipulated the appeal process is set forth in the arguments that follow. Below is a
brief procedural history leading to the current motion.
On February 10, 2014, plaintiffs Eric OKeefe and Wisconsin Club for Growth, a
501(c)4 social welfare organization, moved the district court for a preliminary injunction
enjoining ongoing John Doe state criminal proceedings related to apparent illegal
campaign coordination in violation of Wisconsins campaign finance laws. See Knott
Decl., Ex. 3, Mot. Prelim Inj. On the same date, plaintiffs filed a wife-ranging 62-page
complaint. It alleges that the plaintiffs became involved in the John Doe proceedings
when they were served with a subpoena. See Knott Decl., Ex. 4, Compl. 184. The
subpoena, which was attached as Exhibit F to plaintiffs complaint, advised them that
they may show the subpoena to their attorney and choose to challenge it. The plaintiffs
complaint alleges that they successfully moved to quash it, id. 139, but plaintiffs
nevertheless contend that their free speech has been and is currently being chilled by
the John Doe proceedings, see id. 55-56. The complaint seeks damages and an
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injunction against six state officials: the state judge of those proceedings, the special
prosecutor, a district attorney, two assistant district attorneys, and an investigator.
On March 13, the Milwaukee prosecutors and several other defendants moved
to dismiss plaintiffs complaint pursuant to Rules 12(b)(1), 12(b)(6), and 12(c), raising
abstention, immunities, and various other defenses. Mot.s Dismiss (ECF Nos. 52, 53
and 54).
2
On April 8, 2014, the district court denied all defendants motions to dismiss in
their entirety. Knott Decl., Ex. 5, Mot. Dismiss Order. A week later, on April 15, 2014,
the Milwaukee prosecutors filed a timely notice of appeal and moved to stay the district
court proceeding. Not. Appeal (ECF No. 92).
Without so much as a hearing, the district court interpreted the defendants
interlocutory appeal as an attempt to derail the courts plan for ruling on the
injunction. Knott Decl., Ex. 6, 5/1/14 Decision and Order, at 2. Convinced of that, the
court entered a preliminary injunction despite the defendants request for an
evidentiary hearing. Id., Ex. 3. Later responding to this Courts order staying the
injunction, the district court certified all defendants appeals on immunities as frivolous
pursuant to Apostol, again falsely accusing defendants of dilatory motives for asserting
their appellate rights. Id., Ex. 2. The effect of the district courts finding has been to lift
the stay of the injunction imposed by the Seventh Circuit and deprive the appellants of
the Courts timely determination of their entitlement to government immunities.

2
ECF No. refers to the district courts electronic filing system docket. The docket documents
discussed in detail are provided with this motion as attachments to the accompanying Knott
Declaration.
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ARGUMENT
Respectfully, the district court is misguided both in its assumptions as to
defendants motives and its application of the law. It has implied impropriety where
there is none. Far from dodging the preliminary injunction, the defendants asserted
their appellate rights in a timely manner as they are entitled and, indeed, as this Court
has stated is required in order to preserve the right. See Apostol v. Gallion, 870 F.2d 1335
(7th Cir. 1989) (noting delayed appeal of immunity claim destroy[] rights created by
the immunity (citing Forsyth, 472 U.S. at 526 and Scott v. Lacy, 811 F.2d 1153 (7th Cir.
1987))). In addition, the district court has misapplied Apostol and the policies the Court
intended to promote in that case. The defendants appeals are not frivolous and should
be heard before further proceedings in the district court.
I. The Apostol Procedure and Frivolousness Standard.

The United States Supreme Court determined in Mitchell v. Forsyth, 472 U.S. 511
(1985), that sound policy requires that an order denying a public official immunity be
immediately appealable in order to preserve the immunity. To require the official to
proceed with litigation undermines the very purpose of the immunity. Apostol, 870 F.2d
at 1338 (citing Forsyth, 472 U.S. at 526 and Scott v. Lacy, 811 F.2d 1153 (7th Cir. 1987)).
For this same reason, the Court has held that district court proceedings must be
stayed while the denial of immunity is appealed unless there is a finding that the appeal
is frivolous or interposed in bad faith for purposes of delay. Apostol, 870 F.2d at 1338-39.
The district courts have been admonished that their power to certify an appeal as
frivolous must be used with restraint. Id. at 1339. Public officials should not be
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required to come to the [Court of Appeals], hat in hand, seeking relief that is theirs by
virtue of Forsyth. Id. at 1339. The stamp of frivolity should be used only when an
appeal is unfounded, when it is baseless, or when the disposition is so plainly
correct that nothing can be said on the other side. Id.; see also Indianapolis Colts v. Mayor
and City Council of Baltimore, 775 F.2d 177, 184 (7th Cir. 1985) (holding appeal is frivolous
when the result is obvious or when the appellant's argument is wholly without merit).
Defendants appeals easily meet that standard.
II. The Milwaukee Prosecutors Timely Appeal was Not Designed to
Manipulate or Delay.

The district court bases its certification, in part, on a false assumption as to the
defendants intentions in seeking appeal. The court expresses dismay that it could have
been deprived of an opportunity to issue its injunction. Knott Decl., Ex. 2,
Certification Order, at 4. Beyond its lack of recognition of the legal and practical
necessity of prompt appellate review, the district court has misstated the record. The
defendants did not maneuver to dodge the Courts jurisdiction. Id. at 5. The
defendants never requested that the Court remove the injunctive hearing from its
calendar. Knott Decl., 9 (summarizing relevant procedural timeline). To the contrary,
they continued to plan for an opportunity to be heard on the preliminary injunction
even after filing their appeals. See Knott Decl., Ex. 7, Mot. Pretrial Conf. Defendants
filed a joint motion specifically requesting that the preliminary injunction hearing be an
evidentiary hearing. Id. In that request, defendants informed the court that their
reputations were under attack, credibility was at issue, and that they wished to have the
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opportunity to call witnesses in order defend themselves and put the plaintiffs to their
proof. Id. The district court denied their request for an evidentiary hearing, despite this
Courts recommendation that such a hearing occur. Knott Decl., Ex. 8; see Ty, Inc. v.
GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997).
Having denied the defendants an opportunity to present testimony or oral
argument, the court issued its injunctive order on May 6 with an unsupported narrative
of facts that impugns the defendants motives without basis. The court substantially
adopted the untested allegations of plaintiffs pleadings, including substantial reliance
on hearsay sources, newspaper articles, and internet blogs. See Knott Decl., Ex. 3, at 1-
10. Consistent with its prior course, the district court has now summarily declared all of
defendants appeals frivolous without hearing from the parties or otherwise testing its
assumption that bad faith was intended. Respectfully, there is no basis for the courts
suggestion that defendants have filed meritless appeals with an intention to delay
proceedings.
III. The Milwaukee Prosecutors Arguments Regarding Sovereign, Absolute, &
Qualified Immunity are Not Frivolous.

Just as the court misjudged the defendants intentions by declining to hear from
them, it has erroneously concluded that the appeals are frivolous without addressing
most of their arguments. Those analytical and legal errors are discussed in turn below,
demonstrating the merit (or, more precisely, non-frivolousness) of the Milwaukee
prosecutors claims for sovereign, absolute, and qualified immunity.

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A. The Milwaukee prosecutors arguments concerning sovereign immunity
are not frivolous.

The Milwaukee prosecutors sought dismissal of any claims asserted against them
in their official capacity on grounds that the Ex parte Young exception to sovereign
immunity under the Eleventh Amendment does not apply to them. Knott Decl., Ex. 9,
Br., at 28-29; Ex. 9, Reply Br., at 6-7. A complaint that alleges an ongoing violation of
federal law must seek[] relief properly characterized as prospective. Verizon Md., Inc.
v. Public Serv. Commn of Md., 535 U.S. 635, 645 (2002). The Milwaukee prosecutors
asserted that the specific allegations of the complaint pertaining to these defendants
refer to events in the past only and, therefore, plaintiffs claims are not properly
characterized as seeking prospective relief against them. Knott Decl., Ex. 9, Reply Br., at
6-7.
The district court acknowledged the retrospective nature of the plaintiffs claims
in denying a different immunity, stating, OKeefe does not attempt to hold the
prosecutors liable for their participation in the formal processes of the John Doe
proceeding. Instead, he calls them to account for pursuing the investigation in the first
instance. Knott Decl., Ex. 5, Decision & Order, at 16 (italics supplied). Yet, the district
court refused to even address that same point in denying the defendants sovereign
immunity claim. Worse, the court refused to confront its own logic while summarily
certifying their appeal as frivolous. Knott Decl., Ex. 2, Certification Order, at 3-4. It is
plainly wrong for the court to have ignored the basis for defendants arguments while
certifying their appeal as frivolous.
9

The Milwaukee prosecutors further asserted that seeking prospective relief from
them is a legal impossibility because they are prohibited by state law, specifically Wis.
Stat. 11.61(2), from enforcing campaign finance laws outside of their county. Knott
Decl., Ex. 9, Reply Br., at 8-10. The District Attorneys of plaintiffs counties of residence,
Dane and Iowa, initiated the John Doe proceedings
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pertinent to their conduct, but they
are not parties to this case. The Milwaukee prosecutors did not commence the John Doe
proceedings relevant to the plaintiffs and lack the legal capacity to compel the District
Attorneys of the plaintiffs counties of residence to either prosecute or cease prosecution
of criminal activity in their counties.
The Milwaukee prosecutors cited the controlling jurisdictional statute, Wis. Stat.
11.61(2),
4
and several cases supporting their position that the Ex parte Young exception
does not apply to them. Nevertheless, the district court declined to address their
arguments or authorities, blithely dismissing all defendants claims to sovereign
immunity as simply wrong. Knott Decl., Ex. 9, Reply Br., at 6-7; Ex. 5, Decision &
Order, at 13. The court repeated that phrase without elaboration or consideration of the
defendants arguments in its decision certifying the appeal as frivolous. Knott Decl., Ex.
2, Certification Order, at 3-4.

3
Iowa County Case No. 13-JD-000001 and Dane County Case No. 13-JD-000009.
4
Section 11.61(2) of the Wisconsin Statutes provides that all prosecutions [for campaign
finance-related activities] shall be conducted by the district attorney for the county where the
defendant resides or, if the defendant is a nonresident, by the district attorney for the county
where the violation is alleged to have occurred. For purposes of this subsection, a person other
than a natural person resides within a county if the person's principal place of operation is
located within that county.
10

Defendants respectfully submit that they should be allowed to have their
arguments on sovereign immunity heard and the matter stayed pending resolution of
the appeal. McMath v. City of Gary, Ind., 976 F.2d 1026, 1030-31 (7th Cir. 1992)
(cautioning that defendants right to pre-trial appeals under Forsyth would be
eviscerated if district courts, cloaked with the authority of Apostol, could too easily
certify even potentially meritorious appeals as frivolous). While the court below cited
the method by which courts analyze sovereign immunity, it has not undertaken the
required analysis beyond its conclusory statement determining that plaintiffs have
alleged a plausible claim for prospective relief against the defendants.
The district courts analysis did not go beyond plaintiffs reference to Ex parte
Young. The Supreme Court has cautioned against this overly-simplistic approach,
noting that [t]he real interests served by the Eleventh Amendment are not to be
sacrificed to elementary mechanics of captions and pleading. Idaho v. Coeur d'Alene
Tribe of Idaho, 521 U.S. 261, 270 (1997). The Court requires a thorough analysis because
the line between permitted and prohibited suits will often be indistinct: [T]he
difference between the type of relief barred by the Eleventh Amendment and that
permitted under Ex parte Young will not in many instances be that between day and
night. Edelman v. Jordan, 415 U.S. 651, 667 (1974); also compare, e.g., Quern v. Jordan, 440
U.S. 332 (1979) with Green v. Mansour, 474 U.S. 64 (1985). In discerning on which side of
the line a particular case falls, courts are directed to look to the substance rather than to
the form of the relief sought, see, e.g., Edelman, 415 U.S. at 668, and to be guided by the
policies of federalism and comity underlying the decision in Ex parte Young. Papasan v.
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Allain, 478 U.S. 265, 278-79 (1986). The district court has refused to perform any
substantive analysis, much less acknowledge that Milwaukee prosecutors have a
meritorious claim deserving of at least an opportunity to be heard.
Far from being frivolous, the prosecutors position is supported by this Courts
cases. In Sherman v. Cmty. Consol. Sch. Dist. 21, plaintiffs sought injunctive relief against
the Attorney General of Illinois to enjoin enforcement of Illinois statute directing
schools to recite the Pledge of Allegiance. 980 F.2d 437, 439-40 (7th Cir. 1992). The
Attorney General, sued in his official capacity, argued to this Court that Eleventh
Amendment sovereign immunity applied to immunize his office from plaintiffs claims.
Id. at 440-41. The Court agreed, concluding that plaintiffs theory of liability did not
implicate Ex parte Young because the Attorney General did not have the authority to
enforce the statute; rather, the Court noted, States Attorneys, elected in each county,
are the public prosecutors in Illinois. Id. at 441. The same principle applies here. Just as
the Attorney General could not enforce the statute at issue and was therefore an
improper party to a claim for injunctive relief in Sherman, the Milwaukee prosecutors
lack the legal capacity to take action against the plaintiffs by virtue of 11.61(2) and are
improper parties here. See also Bracci v. Becker, 2013 U.S. Dist. LEXIS 3224, *46-47
(N.D.N.Y. 2013); Dye v. Office of Racing Commission, 692 F. Supp. 2d 706, 711 (E.D. Mich.
2010).
Finally, plaintiffs take the baseless position that the Milwaukee prosecutors
waived their sovereign immunity claim. Not only did the defendants raise sovereign
immunity in their motion to dismiss briefs, the district court addressed their argument
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not once, but twice. Knott Decl., Ex. 5, Decision & Order, at 13-14; Ex. 6, Stay Decision
and Order, at 2-4. Even if the plaintiffs contention had some merit, a state official does
not easily waive sovereign immunity. Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir.
2000); Hoover v. Wagner, 47 F.3d 845, 852 (7th Cir. 1995); Pittman v. Chicago Bd. of
Education, 64 F.3d 1098, 1101 (7th Cir. 1995). The Milwaukee prosecutors did not waive
their sovereign immunity claim. They respectfully request that the Court reverse the
district courts certification of frivolousness.
B. The Milwaukee prosecutors arguments regarding absolute immunity are
not frivolous.

The Milwaukee prosecutors argued that absolute immunity applied because the
plaintiffs allegations specific to them involved non-investigative acts conducted within
the Wisconsin John Doe proceedings and, therefore, the acts were inseparable from the
judicial process. Knott Decl., Ex. 9, Br., at 30-31. That is, plaintiffs allegations specific to
these defendants implicate their role as advocates for the State of Wisconsin. Their
actions were intimately associated with the judicial phase of the criminal process and
not merely investigative or administrative. Id. The defendants directed the district
courts attention to the Seventh Circuits decision in Harris v. Harvey, 605 F.2d 330, 336
(7th Cir. 1979)the only published case addressing absolute prosecutorial immunity in
the context of John Doe proceedings. In Harris, this Court stated that the trial court
properly recognized absolute immunity for the appellants acts conducted within a John
Doe proceeding. The Harris decision, if not controlling, certainly supplies the basis for a
meritorious argument.
13

In response, plaintiffs addressed Harris only in a footnote. The district court did
not address the case in either its decision denying the defendants prosecutorial
immunity claim or in its decision deeming their appeal frivolous. Respectfully, an
appeal cannot be deemed frivolous where the only appellate court authority addressing
the issue is supportive of the appellants position.
The district court denied the claims to absolute immunity without addressing
plaintiffs specific allegations with regard to the Milwaukee prosecutors. The district
court concluded that prosecutors are at all times investigators within a John Doe
proceeding. Knott Decl., Ex. 5, Decision & Order, at 15. In doing so, the district court
did not apply the traditional Imber v. Pachtman inquiry as to whether an alleged act was
intimately associated with the judicial phase of the criminal process. Rather, citing
Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), it applied a purported bright line
test, holding that a prosecutor does not enjoy absolute immunity before he has
probable cause.
Although the defendants did concede, as they must, that John Doe proceedings
are proceedings to determine probable cause, they also noted that the district courts
test is overly simplistic and cannot be reconciled with numerous cases, including ones
from the Supreme Court. These cases apply prosecutorial immunity in the context of
pre-probable cause proceedings, such as grand jury proceedings and applications for
search warrants. Knott Decl., Ex. 10, Reply Br. at 4-5 (citing Rehberg v. Paulk, 132 S. Ct.
1497 (2012) (grand jury proceeding); Burns v. Reed, 500 U.S. 478 (1991) (application for
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search warrant and probable cause hearing); Hill v. City of New York, 45 F.3d 653 (2d Cir.
1995) (grand jury proceeding)). The district court has never addressed these authorities.
Similarly, the district court has never addressed defendants position that the
John Doe proceeding is part of the judicial phase of the criminal process because it is
commenced by a prosecutor, entails oversight by a judge, includes the right to an
attorney, involves the issuance of orders, and offers the availability of motions and
appeals within the proceeding. Wis. Stat. 968.26(1),(2)(d),(3). It is, as the defendants
pointed out, even more of a proceeding than a grand jury proceeding, to which the
Supreme Court has applied prosecutorial immunity.
To that end, the cases relied upon by the district court, such as Whitlock v.
Brueggemann, for the probable cause test are factually distinguishable from the
present case in that they do not involve the unique mechanisms of the Wisconsin John
Doe proceeding. For example, in Whitlock, the plaintiff alleged that a prosecutor
manufactured evidence and directed police in the pursuit of certain witnesses during
the investigative phase of the case. Id. at 577-78. This phase was before the submission
of arrest warrants and a subsequent determination by a judge that probable cause
existed to support their arrests. Id. A John Doe proceeding, in contrast, begins with a
request by a prosecutor to commence the proceeding, and the proceeding is then
overseen by a judicial officer with express powers to expand, limit, and otherwise direct
the proceeding. State ex rel. Unnamed Person No. 1 v. State, 660 N.W.2d 260, 275-76 (Wis.
2003); State v. Noble, 646 N.W.2d 38, 48 (Wis. 2002); Wolke v. Fleming, 29 N.W.2d 841, 844-
45 (Wis. 1964); Wis. Stat. 968.26(1),(3). A John Doe proceeding does not have a similar
15

investigation phase as found in the cases cited by the district court. Therefore, the
holding in Whitlock and other non-John Doe cases, wherein the analysis focuses on
specific phases of an investigation, are inapplicable.
Perhaps the Imbler v. Pachman test has been reduced to the type of bright line
probable cause test adopted by the district court here, but the defendants doubt it.
There is certainly no case on point supporting that position, and the defendants are
entitled to have their appeal at least considered. The application of prosecutorial
immunity in the context of a John Doe proceeding is, at minimum, fairly debatable. The
defendants appeal on absolute immunity, therefore, is not so lacking in merit that even
considering an appeal should be foreclosed.
C. The Milwaukee prosecutors arguments regarding qualified immunity are
not frivolous.

Plaintiffs allege that both Wisconsin law and the First Amendment protect
their issue advocacy speech, even if coordinated with a candidate, because they do not
engage in express advocacy. Knott Decl., Ex. 4, Compl. 95, 99. Citing the subpoena
served on them (later quashed) as part of the John Doe proceedings, they believe that
the defendants targeted them as conservatives, and likewise, plaintiffs are being
retaliated against for their conservative political speech. Id., 184. Plaintiffs demand
money from each defendant personally on grounds that their free speech has been
and is currently chilled due to the ongoing John Doe proceedings. See id., 55-56.
Each defendant, including the Milwaukee prosecutors, moved for dismissal of
plaintiffs personal capacity claims based on qualified immunity. Qualified immunity
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shields prosecutors performing discretionary functions 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); Humphries v.
Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012) (quoting Pearson v. Callahan, 555 U.S.
223, 236 (2009)) ([A] court may grant qualified immunity on the ground that a
purported right was not clearly established by prior case law without first resolving
whether the purported right exists.). The Milwaukee prosecutors argued that the
plaintiffs do not have a clearly established right, under the First Amendment or
otherwise, to be free of a John Doe proceeding centered on their potential involvement
in coordinated campaigns with an election candidate, even if, as plaintiffs maintain,
they engaged only in issue advocacy expenditures. Knott Decl., Ex. 9, at 34, 35. To the
contrary, the courts of Wisconsin (and others) have found such campaign coordination
illegal even where a groups advocacy is limited to issue advocacy. Id., at 35, 36.
5

Relying on plaintiffs retaliation allegations, however, the district court did not
address the Milwaukee prosecutors argument. As in its analysis of other arguments,
the district court refused to address plaintiffs allegations with respect to each
defendant. The district courts entire analysis of the clearly-established right prong was
as follows: the defendants cannot seriously argue that the right to express political
opinions without fear of government retaliation is not clearly established. Knott Decl.,
Ex. 7, Decision & Order, at 17.

5
The only court to hold otherwise is the district court here in granting plaintiffs preliminary
injunction.
17

Each defendant appealed the denial of qualified immunity and the reasoning of
the court. The Milwaukee prosecutors explained that the district court (and the
plaintiffs) improperly relied upon an insufficiently particularized right as a basis for
defeating the immunity. After all, the right identified by the district courtthe right
not to be retaliated against for political speechis hardly more specific than the First
Amendment. In support of their argument, defendants pointed to the Supreme Court
decision in Anderson v. Creighton, 483 U.S. 635 (1987). Knott Decl., Ex. 11, Reply Br., at 5.
There, the Supreme Court admonished a court of appeals for its brief discussion of
qualified immunity consist[ing] of little more than an assertion that a general right [the
defendant] was alleged to have violated -- the right to be free from warrantless searches
of ones home unless the searching officers have probable cause and there are exigent
circumstances -- was clearly established. Anderson, 483 U.S. at 640.
The Milwaukee prosecutors also argued, citing to authority, that the district
courts analysis improperly relied upon a subjective inquiry on retaliation, while failing
to engage in any analysis of the objective reasonableness of defendants alleged acts.
Knott Decl., Ex. 11, Reply Br., at 6 (citing Kulwicki v. Dawson, 969 F.2d 1454, 1464 n.12
(3d Cir. 1992) (citing Anderson, 483 U.S. at 641) (Notably, motive is also irrelevant in the
qualified immunity analysis. There the emphasis is on the objective reasonableness of
the officials behavior.)).
The defendants citations to authority were unsuccessful. In certifying
defendants appeal as frivolous, the district court again reiterated what it believes to be
the clearly establish right at issuethe right to express political opinions without fear
18

of government retaliation. Knott Decl., Ex. 2, Certification Order, at 6. Strangely, the
district court also commented that even if it and the plaintiffs are wrong on the clearly
established right at issuein other words, neither the plaintiffs nor the court can
identify a clearly established rightthe defendants still may be subject to damages on
remand for targeting plaintiffs because of their conservative viewpoints. Id. The
suggestion is contrary to all case law addressing qualified immunity.
The district court is wrong in its analysis. The precise right identified by the
district court in its rulings as the basis for defeating qualified immunity was specifically
rejected by the Supreme Court in Reichle v. Howards, 132 S. Ct. 2088 (2012). In that case,
the plaintiff sued under the First Amendment after being arrested by secret service
agents allegedly in retaliation for his political speech. Id. at 2091. At the lower courts,
the agents unsuccessfully argued in support of qualified immunity that probable cause
defeats the plaintiffs retaliation claim. Id. at 2092. In rejecting the agents argument, the
court of appeals determined that the plaintiff had established a material factual dispute
regarding whether agents were substantially motivated by plaintiffs speech when they
arrested him. Id.
The Supreme Court reversed. The Court expressly stated that the right relied
upon in a qualified immunity analysis cannot be the general right to be free from
retaliation for ones speech. Id. at 2094. The Courts reason, as the Milwaukee
defendants attempted to explain to the district court here, was that the plaintiffs
proffered right was too generic. Id. Almost identical to the present matter, the plaintiff
there argued as a general matter[,] the First Amendment prohibits government
19

officials from subjecting an individual to retaliatory actions for his speech. Id. at 2093-
94. Citing to Anderson, the Court summarily rejected the plaintiffs argument. [W]e
have previously explained that the right allegedly violated must be established, not as a
broad general proposition, but in a particularized sense so that the contours of the
right are clear to a reasonable official. Id. at 2094 (citations omitted).
The Supreme Court thus rejected the precise argument for defeating qualified
immunity that the district court has relied upon here, i.e., the general right to be free
from retaliation for ones speech. Id.; see also Ashcroft v. Kidd, 133 S. Ct, 2074, 2084 (2011)
(We have repeatedly told courts . . . not to define clearly established law at a high level
of generality. The general proposition, for example, that an unreasonable search or
seizure violates the Fourth Amendment is of little help in determining whether the
violative nature of particular conduct is clearly established.) (citations omitted). Yet,
the district court refused to consider defendants arguments.
Defendants respectfully submit on the basis of Reichle and other authorities that
their position is meritorious and proper. It certainly is not frivolous to appeal the
district courts denial of qualified immunity on grounds that the court failed to identify
a particularized constitutional right in its ruling where the United States Supreme Court
has ruled in the appellants favor on the precise issue presented. As is the case with
respect to the other immunities claimed, the district court should not have certified the
appeals as baseless.

20

CONCLUSION
For the foregoing reasons, Defendants-Appellants John Chisholm, Bruce
Landgraf and David Robles respectfully request that this Court enter an order: (a)
finding that their appeal of the district courts order denying their motion to dismiss
dated April 8, 2014 is not frivolous; (b) staying enforcement and execution of the
preliminary injunction entered on May 6, 2014; and (c) staying the district court
proceeding in its entirety pending Defendants-Appellants appeal.
Dated this 15th day of May, 2014.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER,
LLP

/s Douglas S. Knott
Samuel J. Leib, State Bar No.: 1003889
Douglas S. Knott, State Bar No.: 1001600
Attorneys for Defendants John Chisholm,
Bruce Landgraf and David Robles
River Bank Plaza, Suite 600
740 N. Plankinton Avenue
Milwaukee, WI 53203
Telephone: (414) 276-8816
Fax: (414) 276-8819
E-mail: samuel.leib@wilsonelser.com
E-mail: douglas.knott@wilsonelser.com

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IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

ERIC OKEEFE and
WISCONSIN CLUB FOR GROWTH,
INC., Eastern District of Wisconsin
Case No. 14-CV-139-RTR
Plaintiffs-Appellees,
v. Appeal No. 14-1822 (consolidated)
Appeal No. 14-1888
Appeal No. 14-1899
FRANCIS SCHMITZ, in his official and Appeal No. 14-2006
personal capacities, et al., Appeal No. 14-2012
Appeal No. 14-2023

Defendants-Appellants.

CERTIFICATE OF SERVICE

I hereby certify that on May 15, 2014, I electronically filed Defendant-Appellants
Motion for Stay of District Court Proceedings.
The following participants are registered CM/ECF users and were served by the
CM/ECF system: Attorneys David Rivkin, Timothy Barber, and Joseph Russell. A copy
of the Motion will be sent to Attorney David Rice, counsel for Defendant Gregory
Peterson.

22

Dated this 15th day of May, 2014.

WILSON ELSER MOSKOWITZ EDELMAN
& DICKER, LLP

/s Douglas S. Knott
Samuel J. Leib, State Bar No.: 1003889
Douglas S. Knott, State Bar No.: 1001600
Attorneys for Defendants John Chisholm,
Bruce Landgraf and David Robles
740 N. Plankinton Avenue, Ste. 600
Milwaukee, WI 53203
Telephone: (414) 276-8816
Fax: (414) 276-8819
E-mail: samuel.leib@wilsonelser.com
E-mail: douglas.knott@wilsonelser.com


Seventh Circuit-Motion To Stay On The John Doe

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Seventh Circuit-Motion To Stay On The John Doe

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IN THE UNITED STATES COURT OF APPEALS

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