John Doe prosecutors engaged in premature justification, conservatives’ say

By M.D. Kittle| Wisconsin Reporter

MADISON, Wis. — Prosecutors-turned defendants in a civil rights lawsuit involving a politically charged John Doe investigation have abandoned nearly all of their original claims of qualified immunity, introducing a spate of new arguments to the 7th Circuit U.S. Court of Appeals.

That’s a no-no, according to attorneys for Eric O’Keefe and the Wisconsin Club for Growth, targets of the nearly 2-year-old secret probe into dozens of conservatives. Besides the fact that it’s not legally kosher to introduce new claims to an appeals court, those new arguments are simply frivolous, according to the plaintiffs’ response, filed late last week.

It’s a case of premature justification, according to O’Keefe’s attorneys. It’s another example, they say, of delay tactics employed by the prosecutors and their contracted special investigator.

“(I)t is plain that Defendants’ premature appeals are nothing more than an attempt to use this Court’s jurisdiction to manipulate and delay the district-court proceedings,” the response asserts.

The defendants — Milwaukee County District Attorney John Chisholm, the Democrat who launched the probe in late summer 2012; two of his assistant district attorneys; Francis Schmitz, special prosecutor for the investigation; and Dean Nickel, a shadowy agent contracted by the state Government Accountability Board — have much to lose in the lawsuit.

O’Keefe and his fellow conservatives are suing the defendants not only in their official capacity as agents of the government, but in their personal capacity. That means, should they lose, Chisholm and crew could face big cash money awards to the plaintiffs.

The prosecutors and Nickel have had some serious setbacks to date.

In early May, U.S. District Judge Rudolph Randa, the presiding judge in the federal civil rights case, ordered the John Doe probe shut down, and declared frivolous the prosecutors’ claims of immunity.

The Appeals Court subsequently ruled that Randa did have the authority to shut down the investigation, contrary to the prosecutors’ claims that, as the John Doe proceeding is a state matter, the federal district court lacked jurisdiction. The 7th Circuit said it needed further information to determine whether the prosecutors’ appeals asserting qualified immunity from damages are frivolous.

Attorneys for the prosecutors and the investigator responded, bringing up a whole new set of arguments.

Qualified immunity protects public officials from being sued for damages unless they have violated “clearly established” law of which a reasonable official in his position would have known. It aims to protect civil servants from the fear of litigation in performing discretionary functions entrusted to them by law, but it cannot protect them if they have clearly violated the law.

O’Keefe and the club assert the prosecutors abused their power, denying the plaintiffs’ First Amendment rights of speech and association, in an investigation that sources say featured predawn, “paramilitary-style” raids at the homes of multiple conservative targets.

The prosecutors claim the conservatives coordinated illegally with Gov. Scott Walker’s campaign in the 2012 recall election.

In their response, O’Keefe’s attorneys claim the prosecutors provided the Appeals Court with a brief’s worth of arguments that the district court “never considered” in denying the prosecutors’ motions to dismiss the lawsuit.

“(I)n 36 pages of briefing, every single issue raised by Defendants Nickel and Schmitz, and every single issue but one raised by the Milwaukee Defendants, are” abandoned, the response asserts.

Citing court precedent, the attorneys argue that, “A party may not raise an issue for the first time on appeal.” Instead, a matter on appeal must be “specifically and adequately” presented at the lower court.

Constitutional law expert Rick Esenberg said the plaintiffs’ argument is “generally true,” although there are some instances where claims could originate in an appeals court. He does not see those arguments applying in the matter before the 7th Circuit.

Nickel abandoned his original immunity claims made before Randa, including his insistence that “a special investigator involved in a criminal proceeding is entitled to qualified immunity when conducting his normal investigatory duties,” particularly when he is just following orders, the court document states.

He also dropped his immunity claim that “as an investigator and non-attorney,” Nickel may have been ignorant of the fact that he was “violating the constitutional rights of Plaintiffs by simply participating in the John Doe investigation.”

Nickel now raises four new appeal points, including whether the District Court should have addressed the “right to coordinate issue advocacy with a political candidate,” rather than the right to be free of retaliation, and whether Randa improperly considered O’Keefe’s allegations concerning the prosecutors “motives” in undertaking their alleged retaliation.

The plaintiffs’ say the point, which should not be lost in all the legalese, is their claim that the prosecutors retaliated against them for their political successes in Wisconsin. The pretext of that retaliation is irrelevant.

Schmitz also abandoned his previous arguments in support of qualified immunity.

“Schmitz’s argument is also unburdened by any legal reasoning, citations to the case law, etc., and so was not made with the specificity or adequacy requisite to preserve it for appeal,” O’Keefe’s attorneys assert in the response.

Schmitz’s attorney, Randall Crocker, did not return a phone call seeking comment. The John Doe prosecutors repeatedly have declined to comment on the matter.

All of the defendants seek to argue on appeal that the District Court should have held them personally immune from money damages because the “right to coordinate issue advocacy with a political candidate” is not clearly established.

Nonsense, the plaintiffs assert. They make the point, by way of illustration, that the constitutional injury to O’Keefe and the club would be the same had the defendants chosen to harass them through an investigation on the pretext that the conservative targets were tearing the “do not remove under penalty of law” tags off of mattresses.

“The Milwaukee Defendants contend that they would be immune from money damages for inflicting that injury because the legal theory underlying their bad-faith, retaliatory investigation is not a clearly established violation of federal law,” the response states. “But that is non sequitur: even if there is no federal right to tear tags off of mattresses, that does not mean that a state official can retaliate with impunity so long as he identifies tag-tearing as the pretext for his conduct.”

The 7th Circuit, also in May, ruled unconstitutional portions of Wisconsin campaign finance law involving issue advocacy advertisements, the kind of political speech in which the conservative targets were engaged. In the parlance of O’Keefe’s legal response, the appeals court said there is nothing illegal about tearing off mattress tags for the buyers of mattresses.