Media coalition asks judge to open sealed John Doe documents

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – A national and state coalition of journalism associations is asking a federal judge to unseal secret records in Wisconsin’s John Doe investigation into dozens of conservative organizations.

These First Amendment advocates, led by the Reporters Committee for the Freedom of the Press, on Thursday filed a motion in the U.S. District Court Eastern District of Wisconsin in Milwaukee seeking to intervene in a civil rights lawsuit brought by conservative targets of the clandestine probe.

The coalition, including the American Society of News Editors, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council and Wisconsin Newspaper Association, is challenging U.S. District Court Judge Rudolph Randa’s orders sealing documents associated with the John Doe.

“The press and the general public have a constitutional and common law right of access to civil proceedings and court documents, including the filings sealed in this case,” the coalition writes in its motion. “The First Amendment right of access can be overcome only by a showing that restrictions on access are necessary to serve a compelling interest, and any such restrictions must be narrowly tailored.

Milwaukee County District Attorney John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz and a shadowy Government Accountability Board-contracted investigator have sought and received permission from Randa to seal records that fall under the investigation’s secrecy order.

Coalition members argue that Randa failed to review the necessity of sealing the documents before he issued the order, something that runs counter to judicial protocol.

“Before entering its sealing orders, the Court was required to make specific, reviewable findings in support of sealing. It did not do so. Indeed, the sole apparent reason for the sealing orders is the existence of a secrecy order entered in the John Doe proceeding—an order which is itself secret and under seal,” the motion states.

“That the John Doe judge deemed the entirety of the proceeding before him ‘secret,’ however, does not relieve this Court of its independent obligation to determine whether sealing the record in this separate lawsuit is warranted.”

Citing separate court rulings, the motion notes that a court must be “firmly convinced that disclosure is inappropriate before arriving at a decision limiting access,” and “(a)ny doubts must be resolved in favor of disclosure.”

Coalition members argue that there is “no compelling or overriding interest” that would “justify sealing all information” related to the John Doe proceeding.

“First, John Doe proceedings are not entitled to any special presumption of secrecy that would permit the broad sealing of related court documents,” the motion asserts. “In fact, John Doe proceedings are presumptively open to the public under both Wisconsin and federal law.”

The coalition argues that the secret investigation is no longer a big secret after months of leaks in the press and in courts.

“A considerable amount of information about the proceeding, including details placed into the public domain by defendants, has already been disclosed to the public and reported in the press,” the motion states. “Thus, to the extent absolute secrecy was ever necessary to ensure the effectiveness of the John Doe proceeding, that interest is no longer present.”

John Doe proceedings are similar to grand jury investigations, without the benefit of a jury of peers. Instead, a single judge presides over the proceedings, designed to gather information to determine whether a criminal complaint should be issued. The judge has extraordinary “investigatory” powers to subpoena and examine witnesses to “ascertain whether a crime has been committed and by whom,” according to the motion.

As the coalition points out, “the public has a powerful interest in obtaining access to the sealed information” in the civil rights case.

“This litigation arises out of alleged abuse of a judicial procedure by local government officials for political gain,” the motion states. “It thus implicates the public’s interest in observing the functioning of its judicial system and the conduct of the executive branch.”

Conservative activist Eric O’Keefe and his Wisconsin Club for Growth are suing Chisholm and crew, alleging the John Doe prosecutors violated the conservatives’ First Amendment rights in the lengthy, secret investigation into 29 conservative organizations.

The lawsuit, filed in February, is a detailed account of what O’Keefe and the Wisconsin Club for Growth allege to be a partisan witch hunt, led by Chisholm, a Democrat, to punish conservatives in the state for their political successes in recent years. The complaint seeks a preliminary injunction, halting the investigation.

Randa earlier this month, thoroughly rejected the prosecutors’ motion to dismiss the civil rights lawsuit, pushing aside their argument that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

On Thursday, the judge denied a motion by the prosecutors to stay the judge’s decision, pending an appeal.

“The defendants now attempt to derail this ruling by appealing the Court’s decision and moving to stay pending appeal,” Randa wrote.

Citing legal precedent, coalition members argue that court documents and proceedings are “public rather than private property,” and that they must be “as open as possible” to public inspection.

And the coalition has been down this legal road before, intervening in a case that eventually led to the release of documents in another John Doe investigation targeting Wisconsin conservatives.

In October, the Wisconsin Court of Appeals granted a motion to intervene filed by the coalition and other media organizations in the criminal appeal of Kelly Rindfleisch. The former deputy chief of staff to Gov. Scott Walker when Walker was Milwaukee County executive was convicted on a charge of misconduct in office stemming from the Doe, also led by Chisholm’s office. Rindfleisch had sought to seal the documents. The records, including thousands of pages of emails and other documents held in the investigation were released earlier this year.

Founded in 1970, the Reporters Committee for Freedom of the Press is dedicated to preserving the freedom of the press guaranteed by the First Amendment, according to the nonprofit organization.

Coalition members argue the drive to release documents sealed in the John Doe civil rights case fits that First Amendment mission.

Contact M.D. Kittle at mkittle@watchdog.org