BREAKING: Federal judge rejects John Doe prosecutors’ motion to stay

Part 47 of 47 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Declaring that prosecutors in a politically charged John Doe probe are attempting to “derail” his ruling, U.S. District Court Judge Rudolph Randa on Thursday rejected a motion to stay the judge’s ruling earlier this month that allowed a civil rights lawsuit against the prosecutors to proceed.

“The defendants’ motion to stay injunction proceedings pending appeal… is DENIED,” Randa ruled.

ORDER IN THE COURT: Federal judge denies motion to stay by John Doe prosecutors in a civil rights lawsuit against them. That means that conservative targets, who have argued the John Doe has violated their First Amendment rights, will have their day in court.

The decision, entered breathtakingly fast, delivers a legal tongue-lashing to Milwaukee County District Attorney John Chisholm, two of his henchmen, John Doe Special Prosecutor Francis Schmitz and a shadowy investigator employed by the state’s Government Accountability Board.

“The defendants now attempt to derail this ruling by appealing the Court’s decision and moving to stay pending appeal,” wrote Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee.

Attorneys for conservative activist Eric O’Keefe had argued the prosecutors’ appeals for relief from the court’s decision were frivolous, and Randa said he is “inclined to agree.

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 permanent injunction, halting the investigation.

Randa earlier this month, thoroughly rejected the prosecutors’ motion to dismiss the civil rights lawsuit, pushing aside their 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 week seeking the stay, again argued that the federal court has no jurisdiction in the matter, and that the court should grant their appeal of Randa’s ruling. The prosecutors-turned-defendants rely on the U.S. Constitution’s Eleventh Amendment, limiting federal judicial powers in the states.

In his ruling Thursday rejecting the motion to stay, Randa effectively says, hogwash.

He points 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 says that Eleventh Amendment protections don’t guarantee an “entitlement not to stand trial.”

And so, it seems, the prosecutors will stand trial in the civil rights case.

A hearing date had been set for May 7, but was postponed while Randa reviewed the prosecutors’ motion. The judge does not set a date for hearing in his latest ruling, but does 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.

Launched in August 2012 by Chisholm’s office, the investigation is operating under a theory 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.

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.”

In their response to the prosecutors’ motion to stay, O’Keefe’s attorneys assert the prosecutors are not only employing delaying tactics, they are making up campaign law as they go along.

They allege the “defendants cannot salvage their rejected legal theory,” something that only confirms “their bad faith.”

“In sum, Defendants’ new theory of criminal liability violates the First Amendment and finds no support in Wisconsin law. It is a pretext adopted solely for the purpose of targeting Plaintiffs and others who speak out in ways of which Defendants disapprove.”

In their legal filing, the prosecutors sound amazed that anyone would ever suspect their motives in a sprawling investigation that is presided over by a judge with extraordinary power and conducted via a gag order that punishes the probe’s targets should they try to speak out and defend their reputations.

“It is simply astounding that plaintiffs could accuse lifelong law enforcement professionals of intentional misconduct in office and then seek to deny them the opportunity to have those claims challenged by appeal,” Chisholm’s attorney writes in the prosecutors’ response.

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