Appeals court upholds power of judge in John Doe probe targeting conservatives

Part 24 of 24 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – A state appeals court on Thursday rejected an effort to shut down a Democrat-launched secret investigation into conservative groups, ruling that the court-administered dragnet did not overstep its authority as targets of the probe have claimed.

In effect, the decision keeps alive a two-year John Doe investigation into dozens of conservative organizations amid allegations of illegal campaign coordination during Wisconsin’s recent partisan recall elections. Interestingly, the court in its ruling concedes the probe, involving five counties, could be described as a “coordinated effort,” but not a “consolidated” investigation.

Such language, conservative critics are likely to argue, was just one distinction without a difference in a ruling seemingly filled with contradictions.

POWER TO THE PROSECUTION: The District IV Court of Appeals on Thursday rejected arguments by conservative targets of a secret John Doe investigation that the judge exceeded her power in the “multi-jurisdictional” probe.

The Madison-based Court of Appeals, District IV, arguably one of the most liberal courts in the state, unanimously rejected the four arguments of the three “unnamed petitioners” in the case and denied moving the case to the state Supreme Court.

The court did, however, grant the targets’ request to unseal several documents filed in the court, including the fact that state Attorney General J.B. Van Hollen, a Republican, after deliberating for several months “declined to handle the multi-jurisdictional investigation.”

As reported by Wisconsin Reporter in December, Van Hollen’s state Department of Justice agreed to serve as counsel to Judge Gregory A. Peterson, the retired state appeals court judge tapped late last year to oversee the secret probe. Van Hollen also was representing four other judges involved in the case, according to the state Court of Appeals.

The three petitioners had argued that previous John Doe Judge Barbara A. Kluka ,who recused herself from the probe last fall without explaining why, overstepped her power by:

  • Consolidating John Doe investigations in five counties and judicial administrative districts into a single proceeding
  • Appointing a special prosecutor without meeting the terms of state John Doe law
  • Authorizing a special prosecutor who is “not accountable to the electors of any county to act in multiple counties.”
  • And subjecting all those with access to documents in the John Doe proceedings to secrecy orders.

In rejecting the targets arguments, the court asserts there is no single John Doe investigation but five separate John Doe proceedings launched by the district attorneys of five counties as the “result of a joint investigation into conduct that could potentially result in criminal charges being filed against different individuals or entities respectively residing or headquartered in each of those counties.”

The probe, sources have told Wisconsin Reporter, was launched in early 2012 by the Milwaukee County District Attorney’s office, led by Democrat John Chisholm – the same DA who pushed a previous not-so-secret John Doe investigation into former aides and associates of Gov. Scott Walker.

Subsequently, the current investigation – John Doe II – spread to Columbia, Dane, Dodge and Iowa counties.

Because “integrally related conduct” was being investigated by the DAs of those counties and because the state’s attorney general declined to take up the “multi-jurisdictional” probe, the district attorneys sought to have the same judge and special prosecutor preside over the investigation, the court wrote.

Said judge then went about issuing the key subpoenas, which sources have told Wisconsin Reporter, led to pre-dawn raids at the homes of targets, and the confiscation of electronic equipment and other property.

“While it is certainly fair to characterize the investigation described above as a single coordinated effort, it does not follow that the individual John Doe proceedings have been consolidated,” the court wrote in its ruling.

The court shoots down the petitioners’ argument that Judge Kluka did not satisfy state law in appointing special prosecutor Francis Schmitz by asserting the judge didn’t need to rely on state law but rather her “inherent judicial authority under two cases: State v. Cummings and State v. Carlson.

Those two decisions effectively solidify the idea that John Doe judges are invested with awesome powers, wide-ranging authority that is wrought with potential for abuse, critics say.

“In Cummings, the Wisconsin Supreme Court held that John Doe judges are not limited to the exercise of those powers enumerated in the John Doe statute itself or even to those powers conferred on all judges by other statutes, but rather may exercise any power ‘necessary to fulfill the jurisdictional mandate’ of conducting a John Doe proceeding,” the court wrote.

The court’s ruling reiterates that the “John Doe judge issued five separate appointment orders – one for each proceeding.” That raises the question of whether Schmitz, the special prosecutor, was appointed five separate times.

Schmitz earlier this week declined to comment on the investigation, as he has done since October.

In rejecting the argument that Schmitz has no authority to act in multiple counties, the court points again to the issuance of five separate appointment orders.

“Additionally, the fact that the special prosecutor appointed here is not an elected district attorney has no legal significance to the writ proceeding because any attorney licensed to practice in this state may serve as a special prosecutor, thus assuming all the powers of a district attorney,” the court notes.

What’s next? That remains to be seen.

Earlier this month, presiding John Doe Judge Gregory A. Peterson quashed several of the prosecution’s subpoenas, asserting they “do not show probable cause that the moving parties committed any violations of the campaign finance laws,” according to records obtained by the Wall Street Journal.

Peterson also ordered the return of property to those targets of the probe.

Eric O’Keefe, a target of the probe, earlier this month threated to slap prosecutors with a federal civil rights lawsuit if they don’t drop the investigation.

O’Keefe, director of the Wisconsin Club for Growth, one of at least 29 conservative groups targeted in the probe, in a statement said the prosecution is “violating the constitutional rights of private citizens and must be held accountable.”

He could not be reached for comment by Wisconsin Reporter Thursday evening.

Contact M.D. Kittle at

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