John Doe lawsuit could be headed for the U.S. Supreme Court

Part 144 of 144 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Two pivotal political speech cases could land in the highest courts in Wisconsin and the nation.

The cases hope to settle critical First Amendment questions tied to issue advocacy and Wisconsin’s politically charged John Doe investigation.

Veteran political activist Eric O’Keefe and the Wisconsin Club for Growth say their First Amendment rights have been violated by partisan prosecutors of a secret investigation. And they say they’ll take their complaint to the U.S. Supreme Court.

Andrew Grossman, an attorney for Washington, D.C.-based BakerHostetler LLP, the Washington, D.C.-based firm representing O’Keefe and the club, said the conservative targets will file a petition asking the high court asking the high court to take the case.

The petition of certiorari, as it’s called, is due by Jan. 21.

SUPREME DOE: Conservative targets of Wisconsin’s politically charged John Doe investigation plan to take their case before the U.S. Supreme Court, according to their attorneys.

It’s been a long and winding road to the high court. U.S. District Court Judge Rudolph Randa had argued that the conservatives showed that their First Amendment rights had been irreparably damaged by the John Doe prosecutors. But in September, judges on the U.S. Court of Appeals for the 7th Circuit refused to hear the case, concluding that O’Keefe and the Club’s civil rights lawsuit was a state not federal matter.

In their September court filing disputing the ruling, O’Keefe and the Club noted that conservatives targeted for “retaliatory investigation” by state law enforcement officers on the basis of their political beliefs can hardly expect relief from a state court.

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

Their argument cited 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 is indeed the domain of the federal court to resolve.

The conservative plaintiffs hold to that claim and hope the U.S. Supreme Court, which has expanded political speech with landmark rulings in recent years, will take up the case, Grossman told Wisconsin Reporter.

Like the conservatives’ motion before the 7th Circuit, the petition before the U.S. Supreme Court will not address the merits of the civil rights lawsuit. It will attempt to persuade the high court merely that the federal court is the only venue to decide cases involving First Amendment claims.

More than two years after Milwaukee County District Attorney John Chisholm launched what would turn into a multi-state probe into 29 conservative groups on allegations of campaign finance violations, the investigation remains effectively stalled.

In January, John Doe presiding Judge Gregory Peterson quashed several subpoenas, concluding Chisholm’s prosecutors had failed to show probable cause that any crimes had been committed. Several lawsuits are now outstanding in state courts, including a motion by the campaign of Gov. Scott Walker asking the Wisconsin Supreme Court to weigh in.

Conservatives assert the probe is nothing more than a partisan witch-hunt led by Chisholm, a Democrat. They cite a former special prosecutor in Chisholm’s Milwaukee County DA’s office who has said Chisholm has a personal and political vendetta against Republican Walker for his reforms to public-sector collective bargaining. The John Doe investigation included predawn, paramilitary style raids at the homes of several conservative targets in October 2013.

Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and Dean Nickel, an investigator contracted by the state Government Accountability Board, are named defendants in the civil rights lawsuit.

The prosecutors’ investigation turns on an unusual reading of state law. They believe that the conservative groups may have illegally coordinated with Walker’s campaign during Wisconsin’s bitter recall season.

According to court documents, Chisholm and his fellow prosecutors hold that “issue advocacy” (political communications supporting or attacking ideas but not candidates) are effectively “express advocacy” (advertisements that directly support or oppose a political candidate) if there is coordination between a special interest group (like the Wisconsin Club for Growth) and a candidate (like Walker).

That concept, which Randa found “simply wrong” in his earlier ruling, has been met and challenged in previous court cases that hold that, in the main, only express advocacy may be specifically regulated under campaign finance law.

The prosecutors’ theory limits political speech in the face of recent U.S. Supreme Court decisions that have expanded it.

Meanwhile, another key political speech case has been filed with Wisconsin Supreme Court, a case that could have wide-ranging legal implications on the John Doe probe.

Milwaukee-based Citizens for Responsible Government Advocates, a conservative 501(c)(4) group, last week petitioned the court to hear its case involving Chisholm and the Government Accountability Board as defendants.

The petition is pursuant to a stipulated agreement between CRGA and the defendants that keeps in place a federal court-ordered injunction preventing the accountability board and Chisholm from enforcing a constitutionally suspect section of Wisconsin campaign finance law.

The agreement also halts further proceedings before Randa, while the case is taken up by the state court.

One constitutional law expert last week told Wisconsin Reporter that the GAB and the district attorney have essentially “rolled over” on the merits of CRGA’s case, and that the accountability board and the DA are coming to terms with the fact that their interpretation of state campaign finance law is indefensible.

“Really this is just stunning,” said the legal expert, who asked to remain anonymous due to his proximity to the case. “A couple of months ago this is the legal theory that John Chisholm was defending to the hilt. At this point, the state has rolled over on the issue and agreed that their own conduct must be enjoined.”

CRGA’s attorneys, also BakerHostetler LLP, asks the state Supreme Court to “definitively” resolve the “unsettled question of state law” surrounding the statutory term “political purposes” and its meaning. “Political purposes” has become an umbrella term for the GAB, which has interpreted those two words, previous court cases suggest, quite liberally to include spending on issues ads coordinated with candidates for office or their campaigns.

“Only this Court’s resolution of that question will provide the clarity necessary for policy-advocacy organizations and candidates to exercise their First Amendment rights free from the chill imposed by legal uncertainty and the risk of criminal investigation and prosecution,” states the conservative group’s petition before the court.

Citizens for Responsible Government Advocates last month filed a lawsuit in federal court asking for the preliminary injunction. The group wanted to establish a website advocating limited-government policies in the remaining weeks before the general election, but its members were worried the DA would target them, too.

CRGA asked Randa to protect the organization’s constitutional right to discuss policy issues with an elected official or candidate without the threat of a lengthy and invasive criminal investigation, like the ongoing John Doe investigation.

Randa agreed, and ordered the defendants not to interfere in CRGA’s advocacy activities.

The GAB and the Milwaukee County district attorney asked Wisconsin Attorney General J.B. Van Hollen, a Republican, to represent them, but the AG’s office begged off, describing the prosecutors’ legal position as “tenuous.”

In a rare move, the state tapped a private attorney, Daniel Kelly of Waukesha, to represent the defendants in place of the AG.

Kelly last week declined to speak about the court filing, but did say that the matter should be decided by Wisconsin’s courts, not federal courts.

“Our stipulation is narrow and prohibits enforcement only against CRGA while giving additional space for Wisconsin courts to address these questions authoritatively,” Kelly said, meaning other such nonprofits should not expect the same protections. But another legal source said political activists could find the same relief through similar court challenges.

Grossman said the state Supreme Court should take the case because it “presents what everyone agrees is a substantial question of Wisconsin law, but does so without any of the complications of the cases related to the John Doe investigation.”

“This case is the right vehicle for the Wisconsin Supreme Court to resolve the uncertainty that has plagued Wisconsin campaign-finance law for the past two years and chilled Wisconsin citizens’ right to join together to speak out on the issues.”