Conservatives to appeals court: ‘You don’t know Doe’

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Asserting that a federal appeals court panel screwed up in tossing out a civil rights lawsuit against prosecutors, conservative targets of a politically charged secret John Doe investigation on Wednesday filed a petition with the U.S. District Court of Appeals for the 7th Circuit asking that the full 10-member court rehear the case.

While the appeals court insists the federal judiciary shouldn’t get involved in a state matter, conservatives who say they their rights have been trampled on by state prosecutors say that they have found little justice in Wisconsin’s legal system.

Last month, a three-member panel of appeals judges reversed U.S. District Court Judge Rudolph Randa’s ruling in May that shut down the probe, launched more than two years ago by Milwaukee County District Attorney John Chisholm, a Democrat.

The appeals court also dismissed the lawsuit, filed by conservative activist Eric O’Keefe and the Wisconsin Club for Growth against Chisholm, two of his assistant DAs, special prosecutor Francis Schmitz, and a shadowy investigator contracted by the state Government Accountability Board.

Writing for the panel, 7th Circuit Judge Frank Easterbrook cited concerns that Randa broke with established judicial principles of “equity, comity, and federalism” in issuing a preliminary injunction against the investigation and allowing the lawsuit to proceed.

In short, Easterbrook worried that the federal court involved itself in state business, and that the Wisconsin judicial system was capable of resolving the controversies arising out of the complaints.

In their court filing, 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.

Their argument cites a key U.S. Supreme Court case, which held that enforcement of state law “in bad faith to impose continuing harassment in order to discourage” the exercise of federal rights states is indeed the domain of the federal court to resolve.

Easterbrook argued that the conservatives obtained relief in the system because they were able to persuade presiding John Doe Judge Gregory Peterson to quash a subpoena. That one act, according to the panel, demonstrated that there was no need for a federal injunction.

They don’t know “John,” the plaintiffs argue.

The “bad-faith” conduct extends far beyond one subpoena, the conservatives argue.

The probe has targeted 29 conservative organizations – and only conservative organizations. It has featured what have been described as predawn, paramilitary style raids on the homes of conservative targets, preceded by what O’Keefe charges was a “sweeping domestic spying operation” on his activities. And the probe was conducted using a court-issued gag order, which even Easterbrook characterized as “screamingly unconstitutional.”

“Their complaint describes at length – in allegations whose plausibility has been upheld by the district court – how a team of state law-enforcement officers, led by Milwaukee County District Attorney John Chisholm, targeted Plaintiffs and scores of other conservatives for harassment based on their political beliefs and activism through a four-year-long secret criminal investigation aimed at bringing down Governor Scott Walker and reversing his policies,”O’Keefe’s attorney state in the court document.

The allegations include the previous John Doe probe, launched in spring 2010 against former aides and associates of Walker when he was Milwaukee County executive.

The conservatives note that the extended investigation involved “no fewer than six separate John Doe proceedings that were repeatedly expanded in scope” as well as “numerous acts outside of any John Doe proceeding.”

“In short, Defendants have launched a permanent campaign of intimidation and harassment against Wisconsin conservatives – because they are conservatives – and the resulting First Amendment injury is one that no pending state-court proceeding can possibly remedy,” the conservatives state in their rehearing request.

And such tactics were employed because of the prosecutors’ belief that the conservative groups may have illegally coordinated with the campaign of Gov. Scott Walker during the state’s bitter recall season of 2011 and ’12.

Their “legal theory,” rejected by Peterson and Randa, is that groups participating in issue advocacy effectively make in-kind contributions to a candidate if they coordinate with the campaign. Under that premise, the groups would have to report their ads and other communications as campaign contributions.

But recent court decisions have further clarified long-held First Amendment protections for issue advocacy, which, unlike express advocacy, does not endorse or oppose a particular candidate. Issue advocacy is not subject to the same restrictions as express advocacy, and Chisholm and crew have, in defiance of campaign finance law, attempted to transform issue advocacy into express advocacy.

The 7th Circuit Court, too, has weighed in on these matters, declaring unconstitutional Wisconsin’s “labyrinthian” campaign finance laws as they relate to issue advocacy.

O’Keefe’s attorneys argue that the 7th Circuit panel made three “central errors” that necessitate rehearing, including its failure to acknowledge the allegations that the prosecutors conduct against the conservatives was motivated by “animus” toward their viewpoints and support of Walker.

And, in general, the panel opted out of hearing and deciding a case within its jurisdiction, particularly when federal rights are at stake, the conservatives contend in the face of the court’s federalism claims.

Chisholm’s attorneys did not return calls seeking comment Friday.

One legal expert with knowledge of the case tells Wisconsin Reporter the odds are favorable the full court will rehear the case because the court “should want to take this opportunity to correct its decision particularly regarding the nature of the plaintiffs’ First Amendment retaliation claim and the other claims that the panel apparently dismissed by accident.”

A clerk with the court of appeals said there is no timetable on when the 7th Circuit will decide, but because the petition is for rehearing it will probably act soon.