Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Expressing deep concerns about a federal incursion on states’ rights, the U.S.Court of Appeals for the 7th Circuit on Wednesday reversed a lower-court injunction that had shut down a politically charged John Doe investigation into dozens of conservatives groups.

The court also backed up state claims of immunity and ordered a federal civil rights lawsuit against the secret probe’s prosecutors to be dismissed.

It was undoubtedly a tough day in court for Eric O’Keefe and the Wisconsin Club for Growth, conservative targets of the investigation, launched more than two years ago by Milwaukee County District Attorney John Chisholm, a Democrat.

But while the mainstream media headlines will scream victory for the prosecution, Wisconsin’s Secret War is far from over.

The court may have had its concerns about perceived federal interference into state business, but the investigation remains stalled, as David B. Rivkin Jr., lead attorney for O’Keefe and the club pointed out in a statement declaring that government abuse of power will not go unchecked.

“The Seventh Circuit’s decision today, while disappointing, does not revive the John Doe investigation, which John Doe Judge Gregory Peterson found violated state law,” Rivkin wrote, noting Peterson’s ruling in January that quashed several subpoenas because prosecutors had failed to show probable cause.

Rivkin said the ruling does not lend any support to allegations by Chisholm and crew that the club and at least 28 other conservative organizations may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall efforts in 2011 and ’12. As has been well documented in court, the prosecutors had failed to identify a single issue ad by the club that was coordinated with the Walker campaign, or had anything to do with the governor’s campaign.

“And it does not alter our resolve. We will ask the Seventh Circuit to correct today’s mistaken decision, and we will continue to fight this abuse of government power,” Rivkin added.

The ruling, issued by 7th Circuit Judge Frank Easterbrook, takes aim at U.S. District Judge Rudolph Randa’s ruling in May that ordered the preliminary injunction, and dismissed the prosecutors claims that they, as state government actors, are immune from such lawsuits — certainly in federal courts.

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments,” Easterbrook wrote.

While the conservative plaintiffs have built a case alleging their First Amendment rights have been trampled on by the prosecutors in a partisan “witch hunt” that has featured “synchronized, predawn, paramilitary-style” raids on the homes of conservative targets, the court ruled that the federal courts have no right to get involved.

“We hold that this case does not present a situation in which state proceedings may be displaced,” Easterbrook wrote.

The 7th Circuit’s order remands the case back to the federal district court where the civil rights lawsuit is to be dismissed. Gone with the dismissal, at least for now, is the conservative’s pursuit of personal damages from the prosecutors.

“What we have said shows not only that an injunction was an abuse of discretion but also that all defendants possess qualified immunity from liability in damages,” Easterbrook wrote. He goes on to note that Randa’s views may be vindicated, but until then public officials enjoy the benefit of qualified immunity from liability in damages.

The court notes myriad transgressions of the investigation, including its assertion that the “subpoena issued to O’Keefe is extraordinarily broad, covering essentially all of the groups records for several years — including records of contributors that O’Keefe believes are covered by a constitutional right of anonymity.”

Indeed, many court decisions, including rulings from the U.S. Supreme Court, have protected long-established anonymous speech.

And it was Easterbrook, during oral arguments earlier this month in Chicago, who questioned the constitutionality of gag orders in John Doe investigations, asserting that they appear to be “screaming with unconstitutionality.”

But the 7th Circuit made it clear in its ruling: It is not getting into the merits of the case for either side; the court is simply ruling on whether the federal courts should be involved in the case.

In the ruling, Easterbrook, appointed to the court by President Ronald Reagan, cites the Anti-Injunction Act, which “embodies a fundamental principle of federalism.”

“(S)tate courts are free to conduct their own litigation without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt,” Easterbrook writes.

Randa has made veiled threats to John Doe special prosecutor Francis Schmitz, advising him not to push the boundaries of the judge’s preliminary injunction through contact with targets.

There is a significant point of dispute between the conservative plaintiffs and the 7th Circuit decision, which asks whether the plaintiffs suffer “irreparable injury.”

“O’Keefe and the Club say yes, because donations have dried up, but that’s not the right temporal perspective,” Easterbrook writes. “We must ask whether the injury would be irreparable if the federal court were to stay its hand. And it is hard to see that kind of injury because plaintiffs obtained effective relief from Judge Peterson before the federal judge acted.”

Not quite, the conservatives have argued. Before Peterson took over as presiding judge in the investigation, the previous court-appointed arbiter, Judge Barbara A. Kluka, some targets assert, was nothing more than a “rubber stamp” who handed out subpoenas and warrants like Halloween candy.

“(P)ublic records indicate that she approved every petition, subpoena, and search warrant sought in the case, and purportedly reviewed hundreds of pages of affidavits and evidence, in just one day’s worth of work,” a brief by O’Keefe’s attorney states.

And then, suddenly, the judge was gone.

“Despite presiding over aspects of the secret criminal investigation for over a year, Judge Kluka immediately recused herself for an unexplained ‘conflict,’” the brief notes.

Wisconsin’s unique John Doe probes are akin to grand jury investigations, without the benefit of a jury of peers. One judge presides over the procedure, and is vested with extraordinary powers to compel witnesses to testify in order to determine whether there is evidence to suggest a crime has been committed. And targets and witnesses can say nothing publicly about the investigation, at the peril of going to jail on contempt charges.

Peterson’s decision was immediately appealed to the state’s 4th District Court of Appeals in Madison, which saw nothing wrong with the activities of the multi-county investigation. Unnamed petitioners and Walker’s campaign then asked the state Supreme Court to take the case.

As Wisconsin Reporter first reported Wednesday, the high court has not acted seven months after it received the first petition.

One inside source suggested the divided court was hoping the federal appeals court would settle the issue once and for all so the state court doesn’t have to deal with the political headaches and heat surrounding the John Doe.

“I think (the court) may be looking at the pendency of the federal action, and thinking, ‘Maybe the federal court will end all of this and we won’t have to put ourselves in a position to decide whether to recuse ourselves or rule in this case,’” said the source, who spoke on condition of anonymity due to his proximity to the case.

The legal expert said conservative members, who hold a slight majority on the court, may be concerned about the political fallout from ruling in favor of the Club for Growth, which 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.

While the left may excoriate them if they don’t recuse themselves, there’s nothing governing the court that demands the justices to do so.

Left-leaning Justice Ann Walsh Bradley already has begged off the case because her son, John Bradley, practices law with Dean Strang, an attorney representing one of the unnamed petitioners. Bradley writes that her son has had no involvement in the case, but says she must step aside in deference to “judicial impartiality.”

But doing so would only underscore the John Doe prosecutor’s theory that issue advocacy can be transformed into express advocacy, and therefore be subject to regulation, First Amendment experts say, a point they vehemently contest.

The idea that issue advocacy represents a contribution has been repeatedly rejected by the courts, including the Wisconsin Supreme Court.

But the 7th Circuit holds tightly to the concept of federalism in its ruling, asserting that Randa “waded into a vexed field of constitutional law needlessly.”

“Judge Peterson had already concluded that the investigation should end as a matter of state law, because prosecutor Schmitz lacks evidence that state law has been violated,” the ruling states. “The result is an injunction unnecessary at best, advisory at worst.”

Rivkin, the attorney for the club and O’Keefe, blasted the decision for not honoring the federal court’s “duty to vindicate and protect American rights under the U.S. Constitution.”

“The Wisconsin Club for Growth and Eric O’Keefe did not only challenge a subpoena or a John Doe proceeding — as the Seventh Circuit assumed — but a years’ long campaign of harassment and intimidation by Milwaukee County District Attorney John Chisholm to retaliate against the Club, Mr. O’Keefe, Wisconsin conservatives, and Governor Scott Walker,” Rivkin said in the statement.

He pointed to public statements by a whistleblower in Chisholm’s office during the 2011 recall campaigns that the DA declared it was his “personal duty to stop Walker” and undermine the governor’s economic reforms, particularly those involving public-sector collective bargaining.

“The Seventh Circuit’s view that a federal court is powerless to enjoin this blatant abuse of prosecutorial power in violation of citizens’ First Amendment rights is simply wrong,” Rivkin said.