By M.D. Kittle | Wisconsin Reporter
MADISON, Wis. — Much has changed in the four months since conservative activist Eric O’Keefe stood up — legally speaking — and said that he was mad as hell and he wasn’t about to take anymore.
O’Keefe and his Wisconsin Club for Growth have turned their civil rights lawsuit — a complaint many legal experts believed would be an uphill battle at best — into ground-breaking litigation to be reckoned with.
It certainly has demanded the attention of John Doe prosecutors turned defendants: Milwaukee County District Attorney John Chisholm, the Democrat who launched the secret probe into dozens of conservative organizations in the summer of 2012; two of Chisholm’s assistant DAs; John Doe special prosecutor Francis Schmitz; and Dean Nickel, a shadowy investigator contracted by the state Government Accountability Board.
Some say the prosecutors, not used to being on the defensive, are sounding a little nervous these days, maybe even hostile. Their filings in federal court of late come across as condescending, and testy.
Who could blame them? There’s much at stake for Chisholm and crew – beyond the forced termination of the probe they’ve pushed for nearly two years.
The authors of an investigation that conservatives have described as nothing more than a partisan witch hunt, political payback for conservative victories in Wisconsin over the past few years, stand to lose professionally, personally and financially.
FIRST FIGHT: The civil rights lawsuit against John Doe prosecutors is at its core, conservative targets say, a battle for the First Amendment.
O’Keefe’s not messing around. His lawsuit seeks unspecified damages from the prosecutors, in their official and personal capacities.
The conservatives have notched some big legal wins, dating back more than a month before O’Keefe and the club filed their lawsuit.
Presiding John Doe Judge Gregory Peterson in January quashed several subpoenas in the investigation, saying they did not show probable cause.
Peterson contested the prosecutors’ legal theory, that the conservative organizations, including the Wisconsin Club for Growth, may have illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections.
“The issue in this case is the scope of Wisconsin’s campaign finance laws. The State’s theory is that various parties engaged in illegal coordinated activities during the recent recall elections. I concluded, however, that the coordinated activities are not prohibited under the statutes,” the judge wrote in Nickel’s response to the civil rights lawsuit, which was supposed to be redacted, but was not.
Early last month, U.S. District Court Judge Rudolph Randa, who is presiding over the civil rights lawsuit, issued a preliminary injunction, ordering the John Doe investigation be shut down.
Randa demanded that the prosecutors “cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.”
Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee, said the plaintiffs and “others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation.”
“Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court,” he ordered in the 26-page ruling.
Randa also posed serious questions and concerns about the prosecutors’ legal theory, which the federal judge described as “simply wrong.”
The 7th Circuit U.S. Court of Appeals stayed the “return-and-destroy” portion of the preliminary injunction, and asked that Randa rule on whether he believed the prosecutors’ claims for appeal were frivolous.
The judge swiftly did so, clarifying that the “Court is absolutely convinced that the defendants’ attempt to appeal this issue is a frivolous effort to deprive the Court of its jurisdiction to enter an injunction.”
On Monday, the appeals court upheld Randa’s preliminary injunction and took aim at the prosecutors’ contention that they are immune from such lawsuits under the 11th Amendment of the U.S. Constitution
Their “invocation of immunity does not affect litigation under Ex parte Young,” the 7thCircuit wrote, referring to a century-plus-old Supreme Court ruling that allows lawsuits in federal courts against state officials despite a state’s claim of “Sovereign immunity.”
“The district court therefore had authority, notwithstanding the appeals, to issue an injunction,” the appeals court said in its ruling.
The legal maneuvering rolls on, even as the appeals court sorts out the prosecutors’ qualified immunity claims, which applies to lawsuits against government officials as individuals, not litigation against the government for damages caused by the officials’ actions.
Given the rapidly evolving events surrounding the John Doe investigation, O’Keefe and the Wisconsin Club for Growth late Monday asked the U.S. District Court to amend the civil rights lawsuit.
First, the plaintiffs have sought to add the members of the Government Accountability Board, as well as Kevin Kennedy, the agency’s director, to the lawsuit.
Late last month, O’Keefe and the club filed a lawsuit in Waukesha County Circuit Court against the GAB. They claim the agency, which oversees state campaign and election law, overstepped its authority while cobbling together a “Frankenstein’s monster” of campaign finance law that does not exist in state statute. And they charge that the accountability board’s improper involvement in the investigation has unnecessarily cost taxpayers untold amounts of money.
The prosecutors in court documents, outed, if you will, the GAB and its involvement in the John Doe probe, that the agency has been “acting in concert” with the prosecutors in “perpetrating the investigation,” according to the federal court filing, submitted Monday.
O’Keefe’s attorney notes in the court documents that his client did not and could not have known that information at the filing, “given defendant Chisholm’s representations that GAB was not involved in the investigation.”
The plaintiffs also point to the 7th Circuit’s ruling on May 14 that declared unconstitutional the portions of Wisconsin campaign finance law that relate to issue advocacy advertising, like the kind Wisconsin Club for Growth and the other conservative targets are involved in.
That decision “confirms” Randa was “correct in enjoining the defendants investigation, which sought to apply Wisconsin campaign-finance regime to Plaintiffs’ issue advocacy” when the laws exclusively apply to express advocacy, according to the motion to amend the civil rights suit. Express advocacy involves messages in direct support or opposition of a candidate; issue advocacy does not endorse or oppose a candidate.
So O’Keefe and the club seek a declaration from the court that the coordination theories of the prosecutors and the GAB are invalid, and they hope to include the allegations to “supply substantive support” for declaratory relief — the judge’s determination of the rights of the parties of the lawsuit.
The prosecutors and Nickel have repeatedly declined to comment on the matter. A GAB spokesman has also declined to comment on the agency’s role in the John Doe probe.
O’Keefe’s attorney in his filing asserts the time is right to amend the complaint; discovery has not begun and a trial date for the lawsuit has not yet been set.
Much more remains to be settled in the case.