IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER L. WIESMUELLER,
Plaintiff,
v.
Case No. 14-CV-1384-RTR
NEAL P. NETTESHEIM,
Defendant.
DEFENDANT'S REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS
ARGUMENT
I.
THIS ACTION AGAINST JUDGE NETTESHEIM IS BARRED
BY JUDICIAL IMMUNITY.
Judges are absolutely immune from civil suits for their judicial acts. See Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978). Judicial immunity is immunity from suit, not
just immunity from the assessment of damages. See Mireles v. Waco, 502 U.S. 9, 11
(1991). 42 U.S.C. § 1983 does not permit injunctive relief against Judge Nettesheim.
Section 1983 states, in pertinent part, that “in any action brought against a judicial officer
for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or declaratory relief was unavailable.
. . .”
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In this case, plaintiff Christopher Wiesmueller claims that Judge Nettesheim
violated his constitutional rights by issuing a search warrant and a secrecy order. These
actions plainly are judicial actions. Wiesmueller’s argument, to the contrary, that Judge
Nettesheim is not entitled to judicial immunity because he was acting in an investigative
or administrative capacity, is without merit. A John Doe judge is not a “chief
investigator” – a “John Doe judge is a judicial officer who serves an essentially judicial
function.” (Italics added). See State v. Washington, 83 Wis. 2d 808, 823-824, 266 N.W.2d
597 (1978).
Wiesmueller does not complain of any actions by Judge Nettesheim that are not
judicial actions. Consequently, Judge Nettesheim is entitled to judicial immunity and this
action against him must be dismissed.
II.
THIS ACTION AGAINST JUDGE NETTESHEIM IN HIS
OFFICIAL CAPACITY IS BARRED BY THE ELEVENTH
AMENDMENT.
Wiesmueller concedes that the Eleventh Amendment to the United States
Constitution provides immunity to state officials like Judge Nettesheim when they are sued
for damages in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).
III.
INSOFAR AS WIESMUELLER CONTENDS THAT JUDGE
NETTESHEIM WAS NOT A “NEUTRAL AND DETACHED
MAGISTRATE” WHEN HE ISSUED SEARCH WARRANTS,
WIESMUELLER FAILS TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
Wiesmueller claims that Judge Nettesheim was not a “neutral and detached
magistrate” when he issued search warrants for two reasons. First, he reiterates his claim
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that a John Doe judge acts in an investigative or administrative capacity in conducting a
John Doe investigation, rather than in a judicial capacity, and therefore is not “detached”
even if neutral. Second, he claims that Judge Nettesheim, as a reserve judge, had a
financial interest extending and perpetuating the John Doe proceeding. These claims are
is without foundation.
Wisconsin law recognizes that a John Doe judge not only “is a judicial officer who
serves an essentially judicial function,” but also is to serve as “a neutral and detached
magistrate.” See State v. Washington, 83 Wis. 2d at 823-824. Although the court in State
v. Washington stated that a John Doe Judge should conduct himself or herself as a neutral
and detached magistrate, and did not decide whether the John Doe judge in that case did
or did not conduct himself as a detached and neutral magistrate, the court’s statement
nonetheless makes clear that a judge is deemed to be a detached and neutral judge when
issuing search warrants in a John Doe investigation. Wisconsin does not consider
statements germane to a controversy as dicta. See Zarder v. Humana Ins. Co., 2010 WI
35, ¶ 52 n.19, 324 Wis. 2d 325, 782 N.W.2d 682.
In addition, unlike the justice of the peace in Connally v. Georgia, 429 U.S. 245
(1977), who was paid only upon granting a search warrant, a Wisconsin reserve judge
who serves as a John Doe judge is paid on a per diem basis regardless of whether the
judge issues or denies a warrant. Wiesmueller’s speculation that a reserve John Doe judge
has a financial interest in issuing a search warrant in a John Doe proceeding, because a
search warrant necessarily will extend or prolong the proceeding, is simply unfounded.
Review of material seized under a search warrant might just as likely result in terminating
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the proceeding sooner. Wiesmueller’s speculation that a full-time judge has greater
incentive that a reserve judge to promptly conclude a John Doe proceeding similarly is
unfounded.
In summary, insofar as Wiesmueller contends that Judge Nettesheim was not a
“neutral and detached magistrate” when he issued search warrants, Wiesmueller fails to
state a claim upon which relief can be granted.
IV.
THIS COURT SHOULD DEFER TO JUDGE NETTESHEIM, AS
A MATTER OF EQUITY, COMITY AND FEDERALISM, TO
DETERMINE WHICH JOHN DOE DOCUMENTS SHOULD BE
DISCLOSED.
In O’Keefe v. Chisholm, 769 F.3d 936, 939-940 (7th Cir. 2014), the Seventh
Circuit Court of Appeals recently clarified that as a matter of equity, comity, and
federalism, a federal district court should defer to a Wisconsin court judge to determine
which John Doe documents should be disclosed. The court stated in pertinent part:
Once again, federalism supplies the reason. . . . Wisconsin, not the
federal judiciary, should determine whether, and to what extent, documents
gathered in a John Doe proceeding are disclosed to the public. . . .
The state court entered a comprehensive order regulating disclosure
of documents in the John Doe proceeding. (It also issued a gag order,
forbidding subpoenaed parties to talk about what was happening . . . .).
Wisconsin’s judiciary must decide whether particular documents garnered
in the investigation should be disclosed. . . .
See O’Keefe, 769 F.3d at 943.
On February 1, 2013, Judge Nettesheim entered an order closing the John Doe
proceeding, but leaving in effect any secrecy orders previously entered in the
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proceeding.1 Nonetheless, on June 7, 2014, Judge Netteshein entered an order reopening
the John Doe proceeding for the limited purpose of ruling on a motion by a newspaper for
intervention and for access to sealed records.2 Judge Nettesheim granted the motion and
modified the secrecy order to permit return of documents in order to facilitate public
access.
Although Wiesmueller acknowledges that motions brought in recent John Doe
proceedings, seeking return or disclosure of documents, have been successful, he
nonetheless claims that his ability to seek and to obtain relief in the John Doe proceeding
before Judge Nettesheim is “questionable.” Yet he provides no reasonable basis for
believing that any request that he might make to Judge Nettesheim would be viewed less
favorably than the request of the newspaper. In any event, given that there is a clear
avenue available for the relief that he seeks, this court must heed the directive of the
Seventh Circuit that “Wisconsin, not the federal judiciary, should determine whether, and
to what extent, documents gathered in a John Doe proceeding are disclosed to the
public.” See O’Keefe, 769 F.3d at 943.
V.
WIESMUELLER LACKS STANDING TO VINDICATE THE
CONSTITUTIONAL RIGHTS OF NON-PARTIES.
As a general rule, one may not claim standing to vindicate the constitutional rights
of a non-party. See Singleton v. Wulff, 408 U.S. 106, 114 (1976), Singleton, 428 U.S. at
114. “Federal courts must hesitate before resolving a controversy, even one within their
1
2
A copy of the order is attached to this brief as Exhibit A.
A copy of the order is attached to this brief as Exhibit B.
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constitutional power to resolve, on the basis of rights of third persons not parties to the
litigation.” See id. at 113. This is because federal courts should not adjudicate rights of
non-parties unnecessarily, and because non-parties themselves will be the best advocates
for their own rights. See id. at 113-114. There is an exception to the general rule where
the rights of a non-party are “inextricably bound up with” the rights asserted by a party,
where the party is nearly as effective a proponent of the non-party’s rights, and where
there is some obstacle preventing the non-parties from asserting their own rights.
Wiesmueller does not have standing to vindicate the constitutional rights of nonparties by seeking disclosure of whether a search warrant was executed on their email
providers or on any other person or entity possessing material in which they had a
reasonable expectation of privacy. He does not persuasively or adequately explain how
the rights of such non-parties are “inextricably bound up with” the rights that he asserts.
Nor does he explain why he would be as effective a proponent of their rights as they
would be. Nor does he explain why there is any obstacle preventing them from asserting
their own rights. Finally, and perhaps most importantly, he does not allege that the nonparties desire that the secrecy order be lifted or that information regarding them be made
subject to disclosure. Consequently, Wiesmueller lacks standing to vindicate the
constitutional rights of non-parties.
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CONCLUSION
Judge Nettesheim respectfully requests that the court enter a final judgment
dismissing the amended complaint in this action.
Dated this 4th day of December, 2014.
s/ David C. Rice
DAVID C. RICE
State Bar # 1014323
Assistant Attorney General
Wisconsin Department of Justice
Attorneys for Defendant
Neal P. Nettesheim
Post Office Box 7857
Madison, Wisconsin 53707-7857
Telephone: 608-266-6823
Fax: 608-267-8906
E-Mail: ricedc@doj.state.wi.us
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