Appeals court denies request to rehear John Doe civil rights case

Part 140 of 140 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – A federal appeals court has denied a petition from Wisconsin conservatives targeted in a politically charged investigation asking the full court to rehear their case against John Doe prosecutors.

In its decision, filed Thursday, the 7th Circuit U.S. Court of Appeals wrote that none of the judges on the full 10-member court has requested a vote on rehearing, and all of the judges on the three-member panel that tossed out the conservatives’ civil rights lawsuit last month voted to deny rehearing.

Attorneys for Eric O’Keefe and the Wisconsin Club for Growth, plaintiffs in the complaint, declined to comment Thursday afternoon.

DEAF EARS?: The 7th Circuit U.S. Court of Appeals on Thursday said it will not rehear a case involving Wisconsin’s politically charged John Doe investigation. A three-member panel of the court last month overturned a lower court’s ruling shutting down the probe, and dismissed a federal lawsuit against John Doe prosecutors on fears that the federal courts should not be involved.

The appeals court’s ruling came two weeks after O’Keefe and the club filed the petition. The plaintiff’s request asserts that the three judge’s panel erred in tossing out the civil rights lawsuit against Milwaukee County District Attorney John Chisholm, the Democrat who launched the investigation more than two years, ago, as well as two of Chisholm’s assistants, a special prosecutor, and a contracted investigator.

The judges also overturned a lower court’s preliminary injunction that shut down the John Doe probe, which targeted 29 conservative organizations on suspicion that they may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s recall campaigns.

U.S. District Judge Rudolph Randa issued the injunction, ruling that the prosecutors’ coordination theory is “simply wrong.” Randa’s ruling effectively concurred with John Doe presiding Judge Gregory Peterson, who in January quashed several of the probe’s subpoenas because the prosecutors had failed to show probable cause that a crime had been committed.

The 7th Circuit did not rule on the merits of the civil rights case, but did express concerns about the federal court system stepping into what it believes to be the sole domain of Wisconsin’s courts.

In their court filing seeking a rehearing, O’Keefe and the club note the panel’s decision holds that conservatives targeted for “retaliatory investigation” by state law enforcement officers on the basis of political beliefs can obtain no relief in federal court.

“That decision breaks with the 50-year line of jurisprudence,” the conservatives’ attorneys assert in the motion.

In a Q&A with Wisconsin Reporter, published Thursday, O’Keefe said, contrary to the appeals court panel’s trust in the state judiciary, Wisconsin’s court system has “failed to provide timely relief, and have only been asked to halt the current probe.”

“We have asked the federal courts for permanent protection from current and prospective abuses.”