Friday, July 17, 2015

Wisconsin Supreme Court shuts down John Doe investigation, affirms First Amendment

By Eric Boehm |

The Supreme Court of Wisconsin killed John Doe.

In a ruling issued Thursday morning, the high court ordered an end to a Milwaukee prosecutor’s politically motivated investigation into conservative groups that dragged on for more than three years.

Writing for the majority, Justice Michael Gableman slammed a special prosecutor’s handling of the investigation and praised the unnamed plaintiffs for pushing back against a violation of their First Amendment rights to political speech.

“It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing,” Gableman wrote in the majority opinion. “To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.”

The Milwaukee County District Attorney’s office secretly launched the John Doe into conservative groups and donors who backed Gov. Scott Walker’s campaign during the recall election of 2012. Investigators sought to prove those groups, most notably the Wisconsin Club for Growth, coordinated with Walker’s campaign in violation of state campaign finance law.

Law enforcement officials raided the homes and offices of the DA’s targets and warned them they could be jailed if they spoke out.

Todd Graves, an attorney who represented some of the targets of the John Doe investigation, praised Gableman’s ruling. He said it confirms what other courts have already found: Special prosecutor Francis Schmitz and Milwaukee County District Attorney John Chisholm acted as if key elements of the Bill of Right’s didn’t exist.

“They counted on a veil of secrecy to assault the fundamental liberties of our clients and commit taxpayer funds for an outrageous misuse of their offices and the law,” said Graves. “They used their unlawful investigation to try to threaten and embarrass groups they do not like, specifically because of the groups’ constitutionally protected efforts on libertarian and conservative issues.”

In dissenting, Justice Shirley Abrahamson said the conclusion reached by the majority disregards both the letter and the spirit of Wisconsin’s campaign finance law.

“The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” she wrote. “In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law.”

Thursday’s ruling dealt with three separate legal issues, which the court earlier this year combined into a single case. At the center of the three cases, along with prosecutors’ tactics, was the legal interpretation of Wisconsin’s campaign finance laws.

The ruling continues a trend in state court decisions since the 1970s to take a narrower view of the state’s right to regulate campaign finance, said Rick Esenberg, president and general counsel at the Wisconsin Institute for Law and Liberty.

Allowing the investigation to continue, Esenberg said, would have opened the doors to politicized attacks on individuals and groups on either side of a hot-button issue.

“I can’t imagine anything that would serve to have a more substantial chilling effect on First Amendment liberties,” he said. “That’s not the way we should conduct politics in this state.”

Esenberg encouraged state lawmakers to review and rewrite the campaign finance laws, which have been subject to decades of interpretation by the courts and “are really a mess now.”

Some state lawmakers are already working on reforms spurred by the John Doe investigation.

State Sen. Tom Tiffany, R‐Hazelhurst, and state Rep. Dave Craig, R-Vernon, have introduced bills that would place stricter rules on how John Doe investigations are carried out — limiting such investigations to six months and preventing gag orders on subjects of those investigations. Their bill would also require that costs of John Doe investigations be made public.

The lawmakers praised Thursday’s ruling and called for action from the state Legislature.

“While justice may have been served at long last on those unnamed petitioners in today’s ruling, unfortunately there are several others who do not have the means and the opportunity to pursue a rigorous defense when battling similar circumstances,” they said in a joint statement.

Gableman, in the ruling Thursday, praised the subjects of the John Doe investigation for fighting back through the legal system.

“These brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution,” he wrote.

Lower courts already determined no laws were broken, even if Walker’s campaign had coordinated with outside groups during the campaign. In the majority opinion, Gableman said the Supreme Court’s ruling left no room for doubt the John Doe investigation was over.

“This closes a divisive chapter in Wisconsin history, and the assertive recognition of First Amendment rights by the Wisconsin Supreme Court protects free speech for all Wisconsinites,” said Brad Schimel, Wisconsin’s attorney general, in a statement.

The case cannot be appealed to the U.S. Supreme Court on its merits because the federal court has no jurisdiction over state court rulings on state laws, Esenberg said.

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