Will taxpayers have to pay for frivolity of John Doe prosecutors?

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Frivolous.

That’s the word that U.S. District Judge Rudolph Randa has repeatedly applied to motions filed by John Doe prosecutors-turned-defendants in a civil rights lawsuit.

Most notably, last month Randa said that he was “absolutely convinced that the defendants’ attempt to appeal this issue is a frivolous effort to deprive the Court of its jurisdiction to enter an injunction,” the federal judge wrote in his ruling that reinstated his preliminary injunction shutting down a secret John Doe investigation into dozens of conservative groups.

Then, earlier this week the 7th Circuit U.S. Court of Appeals ruled that Randa did have the authority to issue the preliminary injunction, shutting down the nearly 2-year-old probe. And the appeals court questioned the defendants’ defense, that they are immune from the federal lawsuit because of protections under the 11th Amendment.

Take that notion up with “Ex Parte Young,” the 7th Circuit told the prosecutors, referring to a century-plus-old Supreme Court ruling that allows lawsuits in federal courts against state officials despite a state’s claim of “sovereign immunity.”

The question has arisen, particularly from conservative targets of the investigation: Do Wisconsin taxpayers have to pick up the tab for the prosecutors’ defense if, indeed, their motions are deemed frivolous?

The answer is, yes, and maybe not.

Conservative activist Eric O’Keefe and his Wisconsin Club for Growth, targets of the investigation, in February filed a civil rights lawsuit against Milwaukee County District Attorney John Chisholm, the Democrat who launched the secret probe in late summer 2012; his two assistant DAs, Bruce Landgraf and David Robles; John Doe special prosecutor Francis Schmitz; and Dean Nickel, a special investigator contracted by the state Government Accountability Board.

The lawsuit claims the prosecutors and the shadowy investigator violated their First Amendment rights in an investigation based on a legal theory that the conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign. Randa has found the theory seriously flawed, indicating, as did the presiding John Doe judge, that the conservatives did not commit any crime under Wisconsin campaign finance law — a portion of which was recently ruled unconstitutional by the 7th Circuit.

Constitutional law expert Rick Esenberg says under civil rights cases, parties can recover attorney fees for frivolous motions.

But what about Wisconsin taxpayers, who are paying the legal defense bills of the defendants, to the tune of potentially more than $150,000? Would they be reimbursed? That is, would the state be reimbursed?

“The state can, whoever is reviewing the bill at the state, can say, ‘We’re not going to pay you for that. That’s not professional work. Everyone knows you can bring Ex Parte Young for an injunctive claim for relief,” Esenberg said.

Well, apparently not everyone.

It becomes a question of contracts and professional liability, Esenberg said. A court would have to decide whether there was malpractice involved.

“It’s just like if you hire a guy to replace your roof and he screws up the east side of the roof,” said Esenberg, president and general counsel of the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm.

There’s much at stake in this lawsuit for the prosecutors. O’Keefe and the club are not only suing the defendants in their official capacities, but in their individual capacities. If the plaintiffs win their lawsuit and are award damages, the prosecutors and Nickel could face expensive personal judgments.

Their “1 percent” wages and savings could be up for grabs.

Robles grossed $123,209.05 last year, at an hourly rate of $57.218, according to information Wisconsin Reporter obtained through the Milwaukee County Office of the Comptroller. Robles, who started with the Milwaukee County DA’s office in 1982, is a state employee like his fellow assistant DAs, but he opted for a more lucrative Milwaukee County pension and retirement health benefits plan.

Taxpayers United of America in 2010 estimated that Robles’ total retirement payout, including Social Security would top $2.27 million, if Robles lives to average life expectancy on the Social Security Administration’s actuarial table.

Robles’ pension more than likely would be off limits in any legal judgment. Such covered benefits are generally protected from damage awards, Esenberg said.

“That’s why when O.J. Simpson had a big judgment against him, he still was not living in poverty because his pension could not be touched,” the attorney said. “When they collect a judgment, they look for money in the bank, they garnish wages, they can foreclose on property, although there are all sorts of exemptions and complications.”

Landgraf earned $112,017.45 in gross pay, at $53.27 an hour, last year, according to the state.

Chisholm’s salary was $133,389.52, at $64.27 an hour.

We don’t know exactly how much Schmitz and Nickel have pulled in under the employ of the Government Accountability Board.

In 2014 alone, the GAB has spent at least $55,000 in connection with the John Doe investigation, including paying both Nickel and Schmitz as special investigators, according to a lawsuit that O’Keefe recently filed against the GAB in Waukesha County Circuit Court.

The state Department of Administration, in charge of the state’s bills, isn’t talking about the contracts, citing the John Doe secrecy order even after Randa ordered the probe shut down.

“As you are undoubtedly aware, anything dealing with an alleged John Doe investigation is normally sealed in accordance with the law Wis. Stat 968.26(3),” wrote Patricia Reardon, DOA program and policy analyst, in response to Wisconsin Reporter’s open records request. “Therefore, to the extent any such alleged contracts or communications did in fact exist, we would be compelled to deny your request.”

Wisconsin Reporter also attempted to contact Brian Hagehorn, Walker’s chief legal counsel. Ironically, as the John Doe prosecutors have spent years investigating Walker’s campaign, it’s the governor’s legal representative who authorized the contracts putting state taxpayers on the hook for the prosecutors’ legal fees.

Walker spokeswoman Laurel Patrick did not return multiple requests for comment over the past three days.

Wisconsin Reporter sought answers to these questions:

• Should the state be responsible for covering the legal bills of defendants who file frivolous motions?
• Will the governor’s office challenge the bills if the motions are ultimately deemed to be frivolous?
• Also, Wisconsin Reporter would like to know whether Schmitz is being paid for his special prosecutor services during the time he spends defending himself in federal court?

Silence. Like the secrecy order surrounding the John Doe investigation.

The prosecutors repeatedly have declined to comment on the lawsuit or the probe.

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