Are John Doe prosecutors sweating out federal judge’s decision?

Part 49 of 49 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – In a mad dash to keep their politically charged investigation alive, John Doe prosecutors fighting a federal lawsuit alleging they violated the civil rights of conservatives are asking an appeals court to save their case.

Milwaukee County District Attorney John Chisholm the Democrat who launched the John Doe investigation, and two of his assistant DAs, filed a motion Monday with the Seventh Circuit U.S. Court of Appeals seeking an emergency stay of proceedings before U.S. District Court Judge Rudolph Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee.

LAST-MINUTE APPEAL: Prosecutors in a John Doe probe targeting conservatives have filed an emergency appeal with the Seventh Circuit U.S. Court of Appeals seeking a stay of proceedings in a federal civil rights case against them.

Last week, Randa rejected the prosecutors’ motion to stay his ruling in April that allowed the civil rights lawsuit against the prosecutors to proceed. The judge declared that the prosecutors-turned-defendants were attempting to “derail” his decision.

He said he was “included to agree” with conservative activist Eric O’Keefe, who had argued the prosecutors’ appeals for relief from the court’s decision were frivolous.

O’Keefe’s attorneys subsequently have asked Randa to intercede, “so that the Seventh Circuit may benefit from (the judge’s) superior knowledge of this matters and (his) assessment of the Milwaukee Defendants’ appeal.”

In short, no more delays or legal maneuvers from the Milwaukee County prosecutors. O’Keefe wants the court to decide on his motion for a preliminary injunction, which would shut down “John Doe II,” now nearly two years in the making.

“The Milwaukee Defendants’ latest attempt to derail this Court’s proceedings can and should be stopped,” O’Keefe’s attorneys wrote in a document filed Tuesday with the court.

O’Keefe and his Wisconsin Club for Growth are suing Chisholm and crew, alleging the John Doe prosecutors violated the conservatives’ First Amendment rights in their lengthy, secret investigation into 29 conservative organizations.

The lawsuit, filed in February, is a detailed account of what O’Keefe and the Wisconsin Club for Growth allege to be a partisan witch hunt, led by Chisholm, a Democrat, to punish conservatives in the state for their political successes in recent years. The complaint seeks a preliminary injunction, halting the investigation.

In his earlier ruling thoroughly rejected the prosecutors’ motion to dismiss the civil rights lawsuit, Randa pushed aside the defendants’ argument that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

Prosecutors, in a filing last month seeking the stay, again argued that the federal court has no jurisdiction in the matter. The prosecutors rely on the U.S. Constitution’s Eleventh Amendment protections, limiting federal judicial powers in the states.

In his ruling Thursday rejecting the motion to stay, Randa strongly disagreed.

He pointed to legal precedent, asserting that “if the defendants are violating the plaintiffs’ constitutional rights, the Eleventh Amendment (to the U.S. Constitution) does not apply and the plaintiffs are entitled to injunctive relief.”

“Since the essence of the plaintiffs’ claim is that the defendants are ‘stripped’ of their ‘official or representative character’ by violating the constitution, the Court’s denial of the defendants’ motion to dismiss is not immediately appealable,” Randa wrote.

In other words, no dice, prosecutors. The judge said that Eleventh Amendment protections don’t guarantee an “entitlement not to stand trial.”

Contrary to reports in Wisconsin news outlets, there is no hearing on the preliminary injunction scheduled for Wednesday. Randa canceled that hearing when he took up his review of the prosecutors’ motion to stay last month.

The judge did not set a date for a hearing in his latest ruling, but he did order that both sides in the lawsuit should “await further order from the Court regarding the injunction motion.” That’s shorthand for, don’t bother me with more filings right now.

The litigants did not follow that request.

“Plaintiffs improperly ask this Court to certify defendants’ appeals as frivolous because the Milwaukee County prosecutors have exercised their right to move the” appeal to the Seventh Circuit, attorneys for Chisholm and his henchmen write in a response filed Tuesday.

Contrary to O’Keefe’s arguments, Milwaukee County prosecutors assert they have a right to immunity from prosecution and that their argument is not frivolous.

In part, the Milwaukee County prosecutors argue to both courts that they have “no ongoing control of the John Doe proceedings and no jurisdiction to either prosecute” O’Keefe and the Wisconsin Club for Growth,” or order the termination of the John Doe proceedings.

The Milwaukee County prosecutors charge that O’Keefe and the club have asked Randa to “preempt lawful State ‘John Doe’ proceedings and exonerate them from any obligation to comply with Wisconsin’s campaign finance rules.”

“The effect of their claim for preliminary injunctive relief, if granted, would be to destroy evidence of crimes and effectively restrain the state of Wisconsin from enforcement of its laws,” the defendants state.

But the allegation of conservative targets of the meandering secret probe, launched in August 2012 by Chisholm, is that the prosecutors, fresh from a long and disappointing John Doe investigation into former aides and associates of Gov. Scott Walker, continued their “witch hunt” into conservative groups.

The investigation is operating under a theory that the club and 28 other conservative organizations may have illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections of 2011 and 2012. It has since blown up into a five-county investigation, hence the Milwaukee County prosecutors notion that they have no “ongoing control” of the proceedings.

O’Keefe in the lawsuit contends the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights. The Wall Street Journal editorial board has billed the John Doe as Wisconsin’s “Political Speech Raid.”

The conservatives assert that the prosecutors’ theory of illegal coordination is erroneous, a point, it appears, that is supported by former appeals court Judge Gregory A. Peterson, the presiding judge in the John Doe probe. Earlier this year, Peterson quashed several subpoenas granted by his predecessor, Judge Barbara Kluka, who recused herself in October without explanation. Peterson said the subpoenas failed to show probable cause.

A court official on Tuesday said she did not know when a hearing on the preliminary injunction motion would be rescheduled. O’Keefe’s lead attorney, David Rivkin Jr., declined comment on the case. Prosecutors have repeatedly declined comment, citing the John Doe’s secrecy order.

Contact M.D. Kittle at