Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Seven months have come and gone, and the Wisconsin Supreme Court has done nothing — at least publicly — to decide the fate of a controversial secret investigation into dozens of conservatives.

Last week, the high court released its calendar and synopses of cases to be argued in October.

Conspicuously missing from the docket are two requests asking the court to settle disputes in the stalled John Doe investigation, launched more than two years ago by Milwaukee County District Attorney John Chisholm, a Democrat, and his henchmen.

One legal expert suggests the Supreme Court is hoping a federal appeals court settles the issue once and for all so the state court doesn’t have to deal with the political headaches and heat surrounding the politically charged John Doe.

In February, 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 that the prosecutors did not show probable cause that a campaign finance crime had been committed, effectively cutting out the legs from under an investigation that critics have charged is nothing more than a partisan witch hunt that has included what targets have described as “predawn, paramilitary-style” raids at the homes of Wisconsin conservatives.

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

Diane Fremgen, clerk of the Supreme Court and Court of Appeals, tells Wisconsin Reporter the seven-member state Supreme Court has yet to decide whether it will even accept one or both of the petitions.

“It’s before the court, but it won’t go on the oral argument calendar until the court schedules it,” she said.

Asked what is taking so long, Fremgen said, “It’s all up to the discretion of the court. It has to do with caseload and the complexity of the issues.”

To be sure, these are extremely complex issues. It has become increasingly apparent the prosecutors and the Government Accountability Board, the agency that oversees state campaign finance and election law, either do not understand the laws they are sworn to enforce, or they are interpreting them in ways that fit their political purposes, critics assert.

Beyond Peterson’s ruling, U.S. District Court Judge Rudolph Randa in May issued a preliminary injunction shutting down the investigation.

In his highly critical decision, Randa said the prosecutors’ theory that at least 29 conservative organizations may have illegally coordinated with Walker’s campaign during the state’s partisan recall election drives was “simply wrong.”

Chisholm and crew, including John Doe special prosecutor Francis Schmitz, are being sued by political activist Eric O’Keefe and the Wisconsin Club for Growth, among the targets of the investigation, in a federal civil rights lawsuit.

The prosecutors insist that issue advertisements, which do not directly endorse or oppose any candidate, can be considered in-kind contributions by nonprofit advocacy groups, if there is coordination with a political campaign. Issue advocacy has been strictly protected political speech, mostly unencumbered from regulation, unlike express advocacy, which explicitly supports or opposes a candidate.

And rulings by federal courts, including the U.S. Supreme Court’s landmark Citizens United decision, only serve to drive home the protections afforded to issue speech.

The fate of the federal lawsuit and the preliminary injunction now are in the hands of a three-member judges on the U.S.Court of Appeals for the 7th Circuit. Earlier this month, the court heard oral arguments, with attorney’s for O’Keefe and the club asking judges to stand by the lower court’s ruling, and prosecutors imploring the court to overturn the injunction and to honor traditional claims of prosecutorial and state immunity.

While two of the judges sounded critical of the extraordinary powers granted to presiding John Doe judges and the constitutionality of Wisconsin’s unique John Doe law in general, the panel did sound concerns about the federal court’s involvement in state legal matters.

Constitutional law expert Rick Esenberg read the 7th Circuit’s federalism concerns as an indication the court may very well overturn the injunction and either dismiss the civil rights case or order it stayed.

“It seemed that they were saying that this is a matter that at least ought to wait until there is some guidance from state court on what the law is,” said Esenberg, president of the Wisconsin Institute for Law & Liberty.

So, if the dispute is the domain of the state Supreme Court, why have the justices not decided whether if they will accept the cases before the court?

“I don’t know why the Supreme Court isn’t acting,” Esenberg said.

One legal expert tells Wisconsin Reporter conservative members of 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.

“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.

While the left may excoriate them if they don’t recuse themselves, there’s nothing in laws 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 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.

In previous political firestorm involving campaign contributions and Supreme Court recusals, Roggensack argued that “judicial bias cannot be presumed solely from a lawful campaign contribution.” And the U.S. Supreme Court has backed up the justice’s position that “money spent to communicate during an election has long been held to be an element of speech.”

It is important to note that Chief Justice Shirley Abrahamson has not recused herself from the many cases before her involving the myriad labor unions that have spent heavily on her campaigns in the past.

A conservative target of the John Doe probe said the notion that any group or individual would be denied a rightful day in court because they exercised their constitutional right to free speech and association “should offend every justice on that court.”

“It is even more offensive when the rights of an entire movement are in limbo in the middle of an election cycle, apparently by design,” charged the target, who spoke to Wisconsin Reporter on condition of anonymity, fearing reprisal from the prosecutors.

“If any of these justices are incapable of making a ruling based on the statutes and the Constitution, they have no business being on the court,” the source said, singling out Bradley and her recusal. “They took an oath to uphold the Constitution. Their discomfort with potential public criticism should not be a consideration, just as it should not have been an excuse for five county district attorneys to ask for a special prosecutor.”