Oral arguments set in John Doe prosecutors’ appeal

Part 100 of 100 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The 7th Circuit U.S. Court of Appeals has set oral arguments in a case to determine whether a lower court’s ruling shutting down a politically charged John Doe investigation into conservative groups will stand.

The court Wednesday issued a notice, scheduling oral arguments for 2:30 p.m., Sept. 9, in the main courtroom of the 7th Circuit’s Chicago complex, at 219 South Dearborn St.

A source with knowledge of the case tells Wisconsin Reporter the accelerated schedule bodes well for conservative activist Eric O’Keefe and the Wisconsin Club for Growth, plaintiffs in a civil rights lawsuit against the prosecutors of the nearly two-year-old John Doe probe. The source, who asked not to be identified due to proximity to the case, said the previous schedule of court filings had put oral arguments on track for October or November.

ARGUMENTS SCHEDULED: The 7th Circuit U.S. Court of Appeals has set oral arguments in a case involving Wisconsin’s politically charged John Doe investigation for Sept. 9.

It appears the John Doe matter will be among the first cases the three-member 7th Circuit takes up when it returns from summer recess.

O’Keefe’s lawsuit and arguments in appeal stress the urgency of resolve. In their civil rights lawsuit, the plaintiffs allege that Milwaukee County District Attorney John Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and shadowy contracted investigator, Dean Nickel, violated the conservatives’ First Amendment rights with a secret probe the plaintiffs describe as nothing more than a political witch hunt.

Chisholm, a Democrat, and the other plaintiffs appealed to the 7th Circuit after U.S. District Judge Rudolph Randa in May issued a preliminary injunction, shutting down the John Doe investigation.

Prosecutors have operated the court-sanctioned dragnet on the theory that dozens of conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall drives. They believe the groups may have violated state campaign finance law by running issue ads, viewed by prosecutors as unreported in-kind contributions.

Randa called the prosecutors’ assertions “simply wrong,” in large part because the ads were not express campaign messages, meaning they did not directly support or oppose one candidate or another. Randa also denied the prosecutors’ motion to dismiss the civil rights lawsuit.

The 7th Circuit in May declared unconstitutional portions of Wisconsin’s campaign finance law that restricted issue advertisements.

In short, the court, in a 3-0 decision, found the state’s corporate-speech ban, the ban on political spending by corporations, unconstitutional under the U.S. Supreme Court’s 2010 Citizens United ruling that opened up previous restrictions on campaign finance. The Appeals Court remanded the case to the district court to issue a permanent injunction consistent with the opinion.

The court found that the language of the law was vague and over broad.

The ruling seems to further cement protections for anonymous speech under the First Amendment, and could create more legal problems for John Doe prosecutors, who have dug their heels into the defense of their legal theory on campaign coordination.

In June, the appeals court ruled that, contrary to the prosecutors’ claims, Randa did have the authority to issue a preliminary injunction.

The 7th Circuit expects oral arguments, unlike the “briefs” filed by prosecutors, will be brief.

“Oral argument will be no more than minutes for each side,” the court makes clear in its notice. “Counsel are advised that the panel of judges assigned to oral argument may decide, after reading the briefs, that less time is required for oral argument.”

Attorneys for prosecutors and Nickel had asked to consolidate their briefs into two joint documents, requesting 55,000 words of briefing.

Last week, the court ruled that the appellants will get no more than 18,000 words to argue for their motion to dismiss the lawsuit, and 14,000 to contest the preliminary injunction. No more.

The court also has denied a request by the state Government Accountability Board, the agency that oversees campaign finance and election law, to intervene in the prosecutors’ appeal. The GAB will, however, be allowed to file an amicus brief.