Mervin Lee Wolfe v. Barry Schaefer

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1016
MERVIN LEE WOLFE,
Plaintiff-Appellant,
v.
BARRY SCHAEFER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-3181—Jeanne E. Scott, Judge.
ARGUED JUNE 9, 2010—DECIDED AUGUST 31, 2010
Before POSNER, WOOD, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, Mervin Wolfe, is
a lawyer who in 2008 ran for State’s Attorney of Cumber-
land County, Illinois, and lost. He brought this suit in
federal district court against his opponent, Barry Schaefer
(the incumbent State’s Attorney), and others, under 42
U.S.C. § 1983. The suit charges that they violated the
Fourth Amendment and the due process clause of the
Fourteenth Amendment by publicly disclosing that Wolfe

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2 No. 10-1016
was under investigation by Illinois state agencies for
possible violations of legal ethics, tax law, and unem-
ployment-insurance law. The judge dismissed the suit.
The invocation of the Fourth Amendment is frivolous;
of the due process clause, a little bit less so.
Wolfe is the lawyer who, as explained in Jay E. Hayden
Foundation v. First Neighbor Bank, N.A., 610 F.3d 382, 385
(7th Cir. 2010), had been hired to investigate a wide-
ranging fraud in Cumberland County. According to the
allegations in that case—allegations never either con-
firmed or refuted, because the suit was dismissed as time-
barred and we affirmed the dismissal—the defendants
(who overlap with the defendants in this case) asked the
Illinois Attorney Registration and Disciplinary Commis-
sion to force Wolfe to leave the state by threatening
that otherwise it would reopen investigations of him
that it had closed. He left the state but returned six
months later to testify before a grand jury about
the fraud. Upon his return investigations into him were
reopened and (or) new investigations launched. He
alleges that the present defendants publicized the inves-
tigations in order to defeat his bid to be elected State’s
Attorney. Schaefer, who was State’s Attorney when the
fraud was exposed and who prosecuted its ringleader
(and so had not been named a defendant in the
Hayden case), is one of the defendants, as we noted; the
others are employees of the commission plus a former
chairman of the state’s judicial inquiry board who had
been a lawyer for a defendant in the Hayden case.
The state statutes under which Wolfe was being investi-
gated require, with exceptions that we can assume are

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No. 10-1016 3
immaterial, that the investigations be kept confidential.
But his complaint does not claim a violation of state
law, though he could have included such a claim—it
would have been within the district court’s supple-
mental jurisdiction. 28 U.S.C. § 1367. The complaint, and
his brief on appeal, mention section 1367 but do not
advance a state law claim. There is no claim of inter-
ference with his candidacy, and probably couldn’t be. See
Willan v. Columbia County, 280 F.3d 1160, 1162 (7th Cir.
2002); Flinn v. Gordon, 775 F.2d 1551, 1553 (11th Cir. 1985).
The only claim is that his federal constitutional right
of privacy was violated.
At argument his lawyer contended that state law is
relevant to the complaint, but he seemed to equivocate
between the view that any violation of state law is action-
able under the due process clause of the Fourteenth
Amendment, which is false, Collins v. City of Harker
Heights, 503 U.S. 115, 128-30 (1992); Christensen v. County
of Boone, 483 F.3d 454, 462 n. 2 (7th Cir. 2007), and the
correct view, which is that state law can (within lim-
its) create a property or liberty interest that is protected
by the Constitution against a deprivation that involves a
denial of due process. Board of Regents v. Roth, 408 U.S.
564, 576-78 (1972); Brown v. City of Michigan City, 462
F.3d 720, 728-29 (7th Cir. 2006). But what counts as “prop-
erty” or “liberty” for this purpose is a federal question.
There is of course a common law tort of privacy, of a
somewhat miscellaneous character: “it is generally recog-
nized by a majority of jurisdictions that the [common law]
right of privacy may be invaded in four different ways:

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4 No. 10-1016
(1) unreasonable intrusion upon the seclusion of another;
(2) appropriation of another’s name or likeness; (3) unrea-
sonable publicity given to another’s private life; and
(4) publicity that unreasonably places another in a false
light before the public.” Robert C. Ozer, P.C. v. Borquez, 940
P.2d 371, 377 (Colo. 1997); see Restatement (Second) of
Torts § 652A (1977). The interest protected by the third
clause—informational privacy—is the one at issue in this
case. It is illustrated by the unauthorized publicizing of a
person’s medical condition, Robert C. Ozer, P.C. v. Borquez,
supra, 940 P.2d at 377-78; Miller v. Motorola, Inc., 560
N.E.2d 900, 903-04 (Ill. App. 1990), personal finances,
Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892,
895-98 (Mo. 1959), and sexual proclivities or activities.
Nappier v. Jefferson Standard Life Ins. Co., 322 F.2d 502, 504-
05 (4th Cir. 1963) (South Carolina law); Lewis v. LeGrow,
670 N.W.2d 675, 687-89 (Mich. App. 2003). But as the
plaintiff is not suing to enforce state common law rights,
we must consider how much of that common law has
become a part of federal constitutional law when the
infringer is a state or federal entity and thus subject to the
due process clause.
In Whalen v. Roe, 429 U.S. 589, 598-600 (1977), the Su-
preme Court had held that “liberty” includes “privacy.”
But except when dealing with searches and seizures, the
Court in the decades since has confined the label “pri-
vacy” mainly to sexual and reproductive rights, such as
the right to use contraceptives or have an abortion or
engage in homosexual acts. E.g., Lawrence v. Texas, 539
U.S. 558, 578 (2003); Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833, 846-53 (1992); Carey

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No. 10-1016 5
v. Population Services, Int’l, 431 U.S. 678, 684-89 (1977).
The privacy at issue in this case is different; it is the
right to conceal information about oneself. That is the
right commonly infringed by illegal searches and
seizures, but in other contexts is recognized by the Su-
preme Court only when anonymity is sought in order
to protect freedom of expression. McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 341-43, 357 (1995); Buckley
v. Valeo, 424 U.S. 1, 64 (1976) (per curiam); NAACP
v. Alabama, 357 U.S. 449, 460-66 (1958).
The Court has never held that the disclosure of private
information denies due process. But in Whalen it did
suggest that there might be a due process right to the
nondisclosure of certain private information, 429 U.S. at
599-600, though it upheld the law challenged in that
case; a law that required a copy of every prescription
for certain drugs that have both lawful and unlawful
uses (methadone, for example) to be filed with state
health authorities. A contemporaneous decision, Nixon
v. Administrator of General Services, 433 U.S. 425, 457-58
(1977), was more explicit about the existence of a constitu-
tional right of privacy in personal papers, but again the
plaintiff lost.
The courts of appeals, including this court, have inter-
preted Whalen to recognize a constitutional right to the
privacy of medical, sexual, financial, and perhaps other
categories of highly personal information—information
that most people are reluctant to disclose to strangers—and
have held that the right is defeasible only upon proof
of a strong public interest in access to or dissemination of

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6 No. 10-1016
the information. See, e.g., Denius v. Dunlap, 209 F.3d 944,
955-58 (7th Cir. 2000); Anderson v. Romero, 72 F.3d 518, 521-
22 (7th Cir. 1995); Nelson v. NASA, 530 F.3d 865, 877-82 (9th
Cir. 2008), cert. granted, 130 S. Ct. 1755 (2010); Summe v.
Kenton County Clerk’s Office, 604 F.3d 257, 270-71 (6th Cir.
2010); Aid for Women v. Foulston, 441 F.3d 1101, 1116-17
(10th Cir. 2006); Zaffuto v. City of Hammond, 308 F.3d 485,
488-91 (5th Cir. 2002); Norman-Bloodsaw v. Lawrence Berkeley
Laboratory, 135 F.3d 1260, 1269-70 (9th Cir. 1998); Eastwood
v. Department of Corrections, 846 F.2d 627, 631 (10th Cir.
1988); Fraternal Order of Police, Lodge No. 5 v. City of Philadel-
phia, 812 F.2d 105, 114-15 (3d Cir. 1987); Thorne v. City of El
Segundo, 726 F.2d 459, 468 (9th Cir. 1983); Helen L. Gilbert,
Comment, “Minors’ Constitutional Right to Informational
Privacy,” 74 U. Chi. L. Rev. 1381, 1382-84 (2007). The
Supreme Court, in contrast, has seemed more interested
in limiting the right of informational privacy than in
its recognition and enforcement. It has held that reputa-
tion is not part of the liberty that the due process
clauses protect, Paul v. Davis, 424 U.S. 693, 711-13 (1976),
even though concern with reputation is one of the
principal reasons people don’t want personal informa-
tion about themselves broadcast to strangers. It has
held that the First Amendment forbids a state to punish
broadcasting the name of a murdered rape victim if her
name is in judicial records open to public inspection. Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-96 (1975); see
also The Florida Star v. B.J.F., 491 U.S. 524, 532-34
(1989); Bowley v. City of Uniontown Police Dep’t, 404 F.3d
783, 786-89 (3d Cir. 2005). Even the publicizing of highly
personal information that is not in a record open to

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No. 10-1016 7
public inspection is privileged if there is a public interest
in access to the information.. Bartnicki v. Vopper, 532
U.S. 514, 534-35 (2001); Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1231-35 (7th Cir. 1993).
The rejection in Paul v. Davis of a liberty or property
interest in reputation casts doubt on the propriety of
basing a federal constitutional right to informational
privacy on a state’s decision to recognize such privacy
as a species of liberty or property. Paul illustrates the
modern Supreme Court’s expansive view of freedom of
speech and of the press, a view that casts doubt on any
effort to limit the public disclosure of personal informa-
tion, however private. But the Court has not yet com-
pletely extinguished state-law protections, whether
common law or statutory, against publication of in-
timate details of people’s private lives in which other
people might be interested. Amy Gajda, “Judging Jour-
nalism: The Turn Toward Privacy and Judicial Regula-
tion of the Press,” 97 Cal. L. Rev. 1039 (2009). True, not
extinguishing a private right is not the same thing as
elevating it to a constitutional right. Yet there is an air
of paradox in giving constitutional protection in the
name of privacy to conduct that stretches the ordinary
understanding of the concept of privacy, yet denying it
to intensely private information, which is at the con-
cept’s core. Maybe the Supreme Court will clarify the
issue in Nelson v. NASA, in which, as we noted, it
recently granted certiorari.
The tension between informational privacy and free
speech resides not only in the extravagant (as it seems

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8 No. 10-1016
to some observers) modern conception of the scope of
free speech but also in the fact that people often conceal
personal information not out of regard for privacy
as such but as a means of advancing their personal inter-
ests by selective, which is to say tactical, disclosure of
such information. They disclose the good and hide the
bad. (A long courtship is one of the defensive measures
that people take to avoid being misled by selective dis-
closure in the marriage market.) Tactically motivated
concealment of embarrassing or discreditable personal
information can—often it is intended to—hide things
in which the public has a legitimate interest. That is
illustrated by the present case, which involves a chal-
lenge to the disclosure of investigations of misconduct.
At oral argument Wolfe’s lawyer went so far as to sug-
gest that the investigators should have been forbidden to
reveal Wolfe’s identity to the persons whom they inter-
viewed about his alleged legal and ethical violations,
lest those persons tell others and as a result journalists
get wind of the investigations and of the identity of the
target of the investigations. Such a prohibition would
scotch the investigations.
Conflicts between the interests in informational privacy
and in public disclosure of information require accom-
modation. If Congress required airline passengers to fly
nude in order to reduce the risk of a terrorist incident,
one imagines that the law might well be held to infringe
a constitutional right to privacy even though there is a
substantial social interest in airline safety. This case is at
the other end of the spectrum. Information that a
public official or candidate for public office has been the

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No. 10-1016 9
subject of an investigation by an official body is likely
to come out sooner or later and to have public value,
often to the investigating agency itself. Some investiga-
tions are conducted in secrecy, for example in national
security cases. But others are announced in advance in
an effort to elicit further information or respond to public
demand, as when the U.S. Attorney General announced
that the Department of Justice was investigating BP for
possible civil and criminal violations relating to the oil
leak in the Gulf of Mexico that began in the spring of
2010. The fact that a candidate for public office is under
investigation for legal and ethical violations is likewise
a matter of substantial public interest.
Wolfe’s suit was properly dismissed.
AFFIRMED.
8-31-10

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