Rindfleisch appeals to Supreme Court in John Doe Fourth Amendment abuse case

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — As promised, attorney Franklyn Gimbel is taking Kelly Rindfleisch’s case to the Wisconsin Supreme Court.

And the appeal by Rindfleisch, a former aide to Gov. Scott Walker when Walker was Milwaukee County executive, is aimed at clarifying just how far cops and prosecutors can go in digging through digital information and whether the investigators of a politically charged John Doe probe crossed a Fourth Amendment line.

Gimbel told Wisconsin Reporter on Thursday he intended to file the motion with the court on Friday, deadline day.

“The ultimate argument is that this is an area of the law with the question of privacy interest,” Gimbel said. “This should be at the top of the list of priorities that ought to be of concern to all of us that live in this country, that government doesn’t run away with and doesn’t have the ability to get in the most private communications of folks on the pretext of some investigation.”

What’s at stake for Rindfleisch is nothing short of the Columbus woman’s freedom, and, she argues, her Fourth Amendment rights protecting her against unreasonable searches and seizures.

Last month, a three-judge panel of the the District 1 Court of Appeals in Milwaukee split 2-1 to reject Rindfleisch’s motion to overturn her original conviction.

Rindfleisch in 2012 was sentenced to six months in jail and two years’ probation after she said she was essentially forced by a Milwaukee County judge to plead guilty to a felony count on the nebulous charge of misconduct in public office.

She originally faced multiple charges for responding to emails regarding fundraising on behalf of failed lieutenant governor candidate Brett Davis in 2010. She was on the government clock when she sent those communications, working as Walker’s deputy chief of staff in the Milwaukee County Executive office.

But prosecutors wanted to up the ante and make Rindfleisch an example in the politically charged “John Doe” investigation, which, after nearly three years, ended with six convictions, four of which had nothing to do with the original scope of the probe.

Rindfleisch immediately appealed her conviction and waited for two years for the appeals court to render its verdict.

The court’s majority shrugged off Rindfleisch’s charge that prosecutors in the secret John Doe investigation employed “unfiltered,” sweeping warrants to root through her emails and other digital communications over a nearly two-year period between early 2009 and late 2010.

“Rindfleisch has failed to present any evidence at any time during these proceedings that tends to suggest that her Fourth Amendment rights were violated by the seizure authorized in these warrants,” the ruling states.

Judge Ralph Adam Fine in his dissent, however, made clear that the prosecutors of the John Doe, led by Milwaukee County District Attorney John Chisholm, a Democrat, violated Rindfleisch’s Fourth Amendment rights.

Fine argued the majority’s ruling substantiates the use of general warrants and “nullifies our Constitution.”

“The essence of our country is ‘that a law repugnant to the constitution is void’; and that courts, as well as other departments, are bound by that instrument,” Fine wrote, quoting from the landmark early U.S. Supreme Court case, Marbury v. Madison. “Simply put, we are governed by our Constitution, not expediency.”

Rindfleisch’s appeal would turn out to be one of Fine’s final cases in a long and distinguished career in Wisconsin jurisprudence. The judge died earlier this month. He was 73.

Gimbel said Fine’s death is a huge loss to the legal community.

“I always respected him for his depth of great intelligence and keen eye in identifying issues,” the attorney said. “He was a scholar, and that’s seldom true of elected judges.”

Following last month’s ruling, Gimbel said the appeals court’s majority effectively has ruled that prosecutors may gather digital communications without identifying what they are looking for, a concern at the core of the Fourth Amendment.

The search and seizure of thousands of Rindfleisch’s documents not only brought to the public eye the conduct in question but eexposed multiple examples of private communications that are supposed to be protected, Gimbel said. A judge earlier this year released tens of thousands of emails obtained from Rindfleisch’s electronic devices in the lengthy John Doe investigation into individuals surrounding Walker.

Chisholm’s probe, spanning nearly three years and the first of two such secret investigations into conservatives, ended with six convictions. Four of those convictions had nothing to do with the original scope of the John Doe. Those involved allegations of theft from a county veterans fund established by Walker. It was Walker’s staff members who tipped off the DA’s office to the discrepancies in the fund.

Rindfleisch did break Wisconsin campaign and election law by not stepping outside her government office to respond to political emails, a practice, according to Gimbel and others, that goes on in government buildings across the state and nation every day.

But the prosecutors wouldn’t have known that information without the broad — and Gimbel argues overly broad — sweep of Rindfleisch’s Internet and mobile phone service providers.

During oral arguments in September, Christopher Wren, an assistant attorney general with the Wisconsin Department of Justice’s Criminal Appeals Unit, countered that prosecutors were well within their rights to seek an affidavit in support of a search warrant to seize the emails from Rindfleisch’s Google and Yahoo accounts, as well as the emails of others eventually charged in the investigation. The Internet service providers turned over more than 16,000 email pages, or slightly more than 32 reams of standard 8.5-inch by 11-inch paper, according to court documents.

Gimbel said he’s hopeful the Supreme Court will take up the case, which he asserts is “bigger than Kelly Rindfleisch.”

“I think their choosing to hear this case would very much be a great service to those of us who practice in criminal defense and the prosecutors and the citizens,” the attorney said. “At the end of the day they (citizens) are the pingpong balls in this table tennis match. Their rights are paramount. We are seeing an ever increasing erosion of privacy in this country under banner of national security or local crime.”

As Gimbel put it, the case is about priorities.