Wisconsin Supreme Court takes another pass on John Doe case

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The state Supreme Court on Monday again ducked two requests that it settle disputes in the stalled investigation into conservative organizations and activists.

Legal experts said the divided court may be waiting to get beyond next month’s gubernatorial election before taking on the cases.

There are no legal obstacles in the high court’s way. Last month, a three-member panel of the U.S.Court of Appeals for the 7th Circuit reversed a lower-court injunction that had shut down the so-called John Doe probe launched by Milwaukee County District Attorney John Chisholm, a Democrat. The panel also dismissed a federal civil rights lawsuit against the secret probe’s prosecutors.

The appellate judges seemed eager to limit federal authority, asserting the legal controversies surrounding Chisholm’s investigation belong in the state, not federal courts. The ruling did not address the merits of the civil rights case.

Some legal experts who have spoken to Wisconsin Reporter about the state Supreme Court’s reluctance to weigh in say political, not judicial concerns, are weighing on the narrowly divided court.

With the docket set, it is clear the Supreme Court will do nothing on John Doe until after next month’s hotly contested gubernatorial election between incumbent Republican Gov. Scott Walker and his opponent, Democrat Mary Burke.

The court then will have political cover to function, one legal expert asserts.

It has been eight months since unnamed petitioners, targets of the probe, asked the Supreme Court to intervene in the five-county investigation that has been in dispute since January, when presiding John Doe Judge Gregory Peterson quashed several subpoenas.

Peterson ruled prosecutors did not show probable cause of a campaign finance crime. That cut the legs out from under an investigation that critics have charged is nothing more than a partisan witch hunt that has included predawn, paramilitary-style raids on the homes of Wisconsin conservatives.

Despite the appeals court ruling, Peterson’s ruling effectively freezes the John Doe until the state court decides what to do.

In April, Walker’s campaign sought to bypass review of the investigation by the Wisconsin Court of Appeals for the 4th District and turn the case over to the Supreme Court.

One legal expert, who spoke on condition of anonymity, has told Wisconsin Reporter conservative members of the court may be concerned about the political fallout from ruling in favor of the Wisconsin Club for Growth, a plaintiff in the federal lawsuit. The club has during the past several years pumped hundreds of thousands of dollars into issue ads showcasing the pros of the right-leaning justices and attacking the records of their challengers.

In last year’s Supreme Court election, the club spent at least $287,000 on issue ads highlighting conservative Justice Patience Roggensack, who went on to win another 10-year term.

By the same token, Chief Justice Shirley Abrahamson has not recused herself from the many cases before her involving myriad labor unions that have spent heavily on her campaigns in the past.