Wisconsin’s Van Hollen says goodbye to AG post, John Doe

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — A “clerical error” in a Wisconsin Supreme Court filing this week suggested that state Attorney General J.B. Van Hollen would represent the state’s election and campaign finance law regulator in a lawsuit filed by a conservative advocacy organization.

But it would seem highly unlikely that Van Hollen, who has written his swan song with just a few weeks to go before he steps down, will represent the Government Accountability Board or Milwaukee County District Attorney John Chisholm.

The state Department of Justice has said as much, describing as “tenuous” the legal positions of the GAB and Chisholm in matters related to a politically charged John Doe investigation.

The Supreme Court filing on Monday removed private attorney Daniel Kelly as counsel for the Government Accountability in the lawsuit filed by Citizens for Responsible Government Advocates. The court added Van Hollen as legal counsel after Kelly told the court it was premature to appoint him as legal counsel in the case.

Indeed it was. The Supreme Court hasn’t asked for responses from the two sides. It hasn’t even decided whether it will take CRGA’s case.

Diane Fremgen, clerk of the Supreme Court and Court of Appeals, said the filing was a “clerical error,” and that the GAB is “without representation right now until the court issues an order to appear.”

Kelly served as legal counsel for the defendants in a similar lawsuit filed in federal court. Last month, Milwaukee-based Citizens for Responsible Government Advocates, a conservative 501(c)(4) group, petitioned the State Supreme court to hear its complaint. Kelly’s representation in the federal lawsuit, paid for by Wisconsin taxpayers, does not automatically transfer to the state case.

CRGA and the defendants signed a stipulated agreement that will keep in place a federal court-ordered injunction preventing the accountability board and Chisholm from enforcing a constitutionally suspect section of Wisconsin campaign finance law.

One constitutional law expert last month told Wisconsin Reporter that the GAB and the district attorney essentially have “rolled over” on the merits of CRGA’s case, and that the accountability board and the DA are coming to terms with the fact that their interpretation of state campaign finance law is indefensible.

“Really this is just stunning,” said the legal expert, who asked to remain anonymous due to his proximity to the case. “A couple of months ago this is the legal theory that John Chisholm was defending to the hilt. At this point, the state has rolled over on the issue and agreed that their own conduct must be enjoined.”

Chisholm and GAB officials repeatedly have declined to comment on the litigation.

CRGA’s attorneys, BakerHostetler LLP, the Washington, D.C., firm that represented political activist Eric O’Keefe and the Wisconsin Club for Growth in their federal First Amendment lawsuit against Democrat Chisholm and his fellow prosecutors of a lengthy John Doe probe into conservatives, are asking the state Supreme Court to “definitively” resolve the “unsettled question of state law” surrounding the statutory term “political purposes” and its meaning.

“Political purposes” has become an umbrella term for the GAB, which has interpreted those two words, previous court cases suggest, quite liberally to include spending on issues ads coordinated with candidates for office or their campaigns.

“Only this Court’s resolution of that question will provide the clarity necessary for policy-advocacy organizations and candidates to exercise their First Amendment rights free from the chill imposed by legal uncertainty and the risk of criminal investigation and prosecution,” states the conservative group’s petition before the court.

Citizens for Responsible Government Advocates last month filed a lawsuit in federal court asking for the preliminary injunction. The group wanted to establish a website advocating limited-government policies in the remaining weeks before the general election, but its members were worried the DA would target them, too.

CRGA asked U.S. District Court Judge Rudolph Randa to protect the organization’s constitutional right to discuss policy issues with an elected official or candidate without the threat of a lengthy and invasive criminal investigation, like the ongoing John Doe investigation.

Randa agreed, and ordered the defendants not to interfere in CRGA’s advocacy activities.

The GAB and the Milwaukee County district attorney asked Van Hollen, a Republican, to represent them, but the AG’s office begged off, describing the prosecutors’ legal position as “tenuous.”

Asked about the Supreme Court filing showing Van Hollen as counsel for the GAB, Department of Justice spokeswoman Dana Brueck said the office has not filed any appearance in the case.

The AG appears to be counting down the days until he steps down following his two, four-year terms as Wisconsin’s top cop.

“As I conclude my tenure, I depart this office knowing we’ve made significant contributions toward what I have always considered government’s top priority — public safety,” Van Hollen said this week in a public letter of parting.

He sounded a particular note of pride for his work with lawmakers to boost the pay of assistant DAs and deputy DAs, like Chisholm’s assistants who logged countless hours in their probe targeting 29 conservative organizations on suspicion of campaign finance violations — employing a legal theory that two judges, including the presiding John Doe judge, have rejected.

CRGA, concerned about the potential of ending up as targets in the same kind of secret probes, including paramilitary-style raids on homes and offices that subjects of the John Doe investigation endured, asked the court to weigh in.

Van Hollen, in his adieu letter, said, “I’ve often said that the DOJ ‘exists to assist,’ and assisting county prosecutors represents a core mission of my administration.”

But the attorney general wasn’t keen on assisting the five DAs, including Milwaukee County’s, in serving as special prosecutor for the John Doe investigation.

Van Hollen took a pass on leading the John Doe investigation in 2013, when the court-administered dragnet ballooned into a multi-county probe. At that time, the AG cited concerns about the appearance of conflict of interest. That’s when district attorneys involved in the five-county investigation agreed to bring in special prosecutor Francis Schmitz to take charge of the wide-ranging probe into 29 conservative groups.

The state Supreme Court has yet to take up multiple cases before it involving the John Doe investigations. Fremgen said the court still could take up the CRGA case or the John Doe lawsuits next week before the holiday break.