Judge denies conservatives’ request to add GAB to civil rights lawsuit

Part 99 of 98 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The state’s election and campaign finance overseer is effectively free from the entanglements of a federal lawsuit involving the agency’s role in the politically charged John Doe investigation into conservatives — at least for now.

On Tuesday, U.S. District Judge Rudolph Randa denied a motion by conservative activist Eric O’Keefe and the Wisconsin Club for Growth seeking to amend its civil rights complaint. The targeted conservatives want to add the Government Accountability to Board to the lawsuit as a defendant.

“This denial is without prejudice to any future attempt to file an amended complaint,” Randa said, indicating that the plaintiffs may seek to add the GAB’s board members and its executive director, Kevin Kennedy, to the complaint after the 7th Circuit U.S. Court of Appeals weighs in on a pending appeal.

ON THE SIDELINES FOR NOW: U.S. District Court Judge Rudolph Randa on Tuesday denied a request by conservatives to add the state Government Accountability Board to a civil rights lawsuit against John Doe prosecutors. Randa has on several occasions sided with conservatives in the complaint, including his ruling to shut down the John Doe probe.

Randa, who has on several occasions sided with the conservatives in their lawsuit against Milwaukee County District Attorney John Chisholm and assisting prosecutors, asserts that he does not have the jurisdiction to amend the complaint while elements of it are being heard at the 7th Circuit.

The plaintiffs filed their motion to amend after the prosecutors appealed Randa’s various rulings in the civil rights case.

“The filing of a notice of appeal is an event of jurisdictional significance —it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,” Randa wrote, citing the court ruling, Griggs v.Provident Consumer Discount Co.

Court precedent demands that “(o)nly one court at a time has jurisdiction over a subject,” Randa added, noting that the point of the rule is to “avoid the confusion of placing the same matter before two courts at the same time and to preserve the integrity of the appeal process.”

O’Keefe and the club had asked the court to add the GAB to the complaint because during one of the briefings in the lawsuit it was disclosed that the GAB “has been acting in concert with (the prosecutors) in perpetrating their investigation.” This despite “representations” from Chisholm that GAB was not involved and Kennedy’s sworn statement referring to GAB as a “third party.”

The probe, which conservatives have described as a partisan witch hunt, was launched in late summer 2012 by Chisholm, a Democrat, with backing by his assistant DA’s, David Robles and Bruce Landgraf. The secret investigation, which functions much like a grand jury, without the benefit of a jury of peers, expanded into five counties, eventually led by special prosecutor Francis Schmitz.

Prosecutors have operated under the legal theory that dozens of conservative groups, such as the Wisconsin Club for Growth, may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall election. Two judges, including Randa, have ruled the theory is without merit, or “simply wrong,” that the conservatives did not violate campaign finance law.

Court documents show Schmitz originally worked for the accountability board as an investigator in the probe before being appointed special prosecutor. GAB also contracted the services of investigator Dean Nickel for the investigation, which featured what sources have described as predawn, “paramilitary-style” raids on the homes of conservative targets.

Schmitz and Nickel, too, are defendants in the civil rights lawsuit.

A GAB spokesman did not return an email seeking comment. The lead attorney for O’Keefe and the club did not return a call seeking comment.

Randa in May ordered the investigation shut down, a decision that was upheld by the 7th Circuit. The court of appeals has agreed to hear the prosecutors’ argument that they have qualified immunity and cannot be held personally liable for damages.

Meanwhile, the GAB is a defendant in a state lawsuit filed in late May by O’Keefe and the Wisconsin Club for Growth on behalf of state taxpayers. That complaint accuses the agency of overstepping its authority and cobbling together a “Frankenstein monster” of campaign finance laws to justify their role in the investigation – all at a considerable but unreported cost to taxpayers.

Last week, attorneys for O’Keefe and the GAB seem to have come to terms on a “joint proposed protective order,” aimed at balancing the needs and desires of the GAB to keep certain investigatory documents confidential and the demands of the plaintiffs to obtain information pertinent to its case.

The agreement, “achieves an optimal balance between Defendants’ concerns about confidentiality and secrecy, the public interest in the even-handed and reasoned application of the confidentiality provision, and Plaintiffs’ strong due process interest in litigating their case and pursuing reasonable discovery,” states a document filed on behalf of O’Keefe and the club in Waukesha County Circuit Court.

Attorneys for the GAB had sought, and received, approval from the court to keep John Doe-related documents sealed. Without the joint proposed protective order, the plaintiffs ability to litigate its case would be “frustrated,” according to the response.

The secrecy position, O’Keefe’s attorneys say, is untenable in the wake of so much John Doe-related information made public, much of it disclosed by attorneys for GAB agents Nickel and Schmitz.

“The John Doe investigation has become so widely publicized and involves matters of such high public importance that secrecy may no longer be justified,” Nickel’s attorney wrote in an earlier brief in federal court involving the civil rights lawsuit.