Sources: No urgency in WI Supreme Court on John Doe

Part 66 of 66 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin

MADISON, Wis. – In his ruling earlier this month shutting down a politically charged John Doe investigation into dozens of conservatives, U.S. District Court Judge Rudolph Randa noted the urgency in acting.

“The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect,” Randa stated in ordering the preliminary injunction against prosecutors-turned-defendants in a civil rights case.

The state Supreme Court, conservative critics contend, doesn’t seem to share that same sense of urgency.

Three cases involving the John Doe are before the court. Those cases have been pending for months.

WHEELS OF JUSTICE … Months after cases involving the secret John Doe investigation into conservatives were taken to the Wisconsin Supreme Court, action still is pending. Critics say the high court has exhibited no sense of urgency in a matter that involves time-sensitive First Amendment rights.

In one case, dating back to November, unnamed petitioners, targets of the nearly three-year probe, ask the Supreme Court to kill the investigation. The other case involves the Supreme Court review of an appeals court decision and request for the matter to be bypassed from the lower court to the Supreme Court.

The only real movement in some time occurred Tuesday, when two unnamed petitioners filed a motion concerning the recent decision by the 7th Circuit U.S. Court of Appeals that declared unconstitutional portions of Wisconsin campaign law involving issue advertisements. The motions are sealed, but the presumption is the targets would very much like to bring the federal appeals court’s ruling, which legal experts say could cut the legs out from under the John Doe investigation, to the attention of the Supreme Court justices.

Supreme Court spokesman Tom Sheehan told Wisconsin Reporter there is “no timeframe for any particular case, and that each case is unique.”

“I think the court is going to take the time it needs to decide,” he said. “It needs to gather the information it needs.”

But sources close to the John Doe investigation say there has been no movement by the court on what the federal court in Milwaukee has declared an urgent matter.

One legal expert with knowledge of the cases before the Supreme Court told Wisconsin Reporter he couldn’t say whether there has been a concerted effort by the court to stall proceedings, but it certainly isn’t acting with “alacrity.”

“I think they have to understand that this is a real problem and their job is to address it,” said the legal expert who asked not to be identified due to his proximity to the matter. “If the targets are wrong and the investigation should go forward,” then the court should rule accordingly. But if the investigation is illegal, “then there’s still a cloud hanging over the heads of these people and (the court) need(s) to do something about that to address the potential chilling impact on constitutionally protected political speech.”

The Supreme Court’s current session ends June 30.

There is no question the court has had a lot on its plate since last fall, and some high-profile legal challenges at that – from cases involving Act 10, Wisconsin’s controversial public-sector collective bargaining reforms to the state’s voter ID law. There have been a lot of lawyer disciplinary reviews, too.

But Chief Justice Shirley Abrahamson, perhaps the court’s most liberal judge, has a reputation as a plodder, known for “dragging her heels” on opinions, the legal source said.

“She’s the chief justice. She can use her authority to slow things down, although she can’t stop it,” the source said.

Court administration officials say there is no intentional delay going on by the court, that there is nothing abnormal about the timeline concerning the John Doe matters. One Supreme Court official said the justices are dealing with quite a backlog of cases.

But for targets of the lengthy investigation, the clock has stopped.

It’s been nearly eight months since sheriff’s deputies and investigators, search warrants in hand, charged into the homes of conservatives in what have been described as “paramilitary-style” predawn raids. Investigators rooted through the possessions of the targets and seized an array of personal property, from electronic devices to paper documents.

Those seized possessions, which two judges have returned to the conservative targets, remain in the custody of the John Doe prosecutors.

One of the John Doe’s targets, conservative activist Eric O’Keefe and his Wisconsin Club for Growth, in February filed a civil rights lawsuit against Milwaukee County District Attorney John Chisholm, the Democrat who launched the probe in August 2012, two of his assistant DAs, John Doe special prosecutor Francis Schmitz and Dean Nickel, a shadowy investigator contracted by the state Government Accountability Board.

O’Keefe and the club allege the investigation is nothing more than a partisan witch hunt, political payback against conservative groups for the successes they’ve enjoyed in recent years. The plaintiffs charge that the prosecutors have violated their First Amendment rights, chilling their ability to raise money and advocate for causes important to the free-market and liberty movement.

Prosecutors have operated the probe under the theory that conservative organizations illegally coordinated with the campaign of Gov. Scott Walker during the state’s partisan recall efforts in 2011 and 2012.

In his ruling, Randa called that theory “simply wrong,” and it would seem the 7th Circuit’s ruling striking down special interest sections of Wisconsin campaign finance law agrees with that assessment.

“While the defendants deny that their investigation is motivated by animus towards the plaintiffs’ conservative viewpoints, it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state’s regulatory reach,” Randa wrote in his earlier ruling.

John Doe presiding Judge Gregory Peterson quashed several subpoenas sought by prosecutors, asserting they failed to show probable cause.

“To me this prosecutorial investigation has never been about indicting anybody, although they (the prosecutors) would love to indict conservatives and would do so gladly if there were any basis to it,” David B. Rivkin Jr., lead attorney for O’Keefe and the Wisconsin Club for Growth, told Wisconsin Reporter earlier this month. “But the whole purpose of the investigation has been to stifle speech by putting people on notice, by sending subpoenas, by making it impossible for them to go raise money and to spend money.”

Conservatives insist the process is the punishment, that, to the prosecutors, it doesn’t matter if charges ever come out of the investigation. The real pursuit, they claim, is to shut down conservative speech through never-ending investigations into alleged campaign violations.

In the wake of the recent federal court decisions, conservatives are asking: What is the Wisconsin Supreme Court waiting for?

“Where do citizens go for relief? I guess they have to go to federal court,” a source close to the investigation recently told Wisconsin Reporter.

Contact M.D. Kittle at