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

 From Watchdog.org, By   /   July 16, 2015  –

FILE - In this July 14, 2015 file photo, Republican presidential candidate, Wisconsin Gov. Scott Walker, speaks during a campaign event at a Harley-Davidson dealership in Las Vegas. The Wisconsin Supreme Court on Thursday ended a secret investigation into whether Republican Gov. Scott Walker's campaign illegally coordinated with conservative groups in winning his 2012 recall election. (AP Photo/John Locher)

FILE – In this July 14, 2015 file photo, Republican presidential candidate, Wisconsin Gov. Scott Walker, speaks during a campaign event at a Harley-Davidson dealership in Las Vegas. The Wisconsin Supreme Court on Thursday ended a secret investigation into whether Republican Gov. Scott Walker’s campaign illegally coordinated with conservative groups in winning his 2012 recall election. (AP Photo/John Locher)

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.

But another aspect of the case could be the subject of an appeal. Liberal groups have called for the conservative members of Wisconsin’s Supreme Court — including all four justices who made up the majority in Thursday’s decision — to recuse themselves because they received campaign contributions from the Club for Growth and other conservative organizations.

“This ruling raises grave concerns about the fairness and impartiality of the court in this case,” said Matt Menendez, counsel at the Brennan Center for Justice. “Based on publicly available information, it is extraordinary that the Wisconsin Supreme Court refused to explain how several of the justices could, ethically and constitutionally, even rule on this case.”

Esenberg said the John Doe prosecutors could appeal that issue to the U.S. Supreme Court, but it’s unlikely to get involved. In the past, federal courts have acknowledged that campaign contributions are a fundamental part of the process of electing judges.

From a political perspective, Thursday’s ruling is yet another win for Walker against the same coalition that tried to recall him from office in 2012 and then failed to defeat his re-election bid in 2014.

The timing couldn’t be better for Walker. The Supreme Court ruling coincides with the launch of his presidential campaign earlier this week.

“Today’s ruling confirmed no laws were broken, a ruling that was previously stated by both a state and federal judge,” said AshLee Strong, Walker’s campaign spokeswoman. “It is time to move past this unwarranted investigation that has cost taxpayers hundreds of thousands of dollars.”

Series NavigationWisconsin Supreme Court shuts down John Doe investigation

Part 222 of 222 in the series Wisconsin’s Secret War

    1. Wisconsin Supreme Court shuts down John Doe investigation; affirms First Amendment
    2. Wisconsin Supreme Court shuts down John Doe investigation
    3. The John Doe investigation might finally be over; Supreme Court to rule Thursday
    4. Left’s loud transparency defenders silent on secret John Doe
    5. Vos: Time to ‘double down’ on GAB reform in wake of reported IRS links
    6. Wall Street Journal: GAB’s Kennedy had a friend in IRS’ Lois Lerner
    7. National Review: Political John Doe victimized 16-year-old boy
    8. Cindy Archer: Chisholm’s John Doe was ‘campaign of intimidation’
    9. Former Walker aide to file civil rights lawsuit against John Doe prosecutor
    10. Kelly Rindfleisch: ‘I fear I will never get justice’
    11. ‘Did they get me?’: Docs reveal long-time John Doe spying operation
    12. Justice Gableman: Warrants in Rindfleisch case amount to ‘fishing expedition’
    13. Justice asks state Supreme Court to reconsider Rindfleisch Fourth Amendment appeal
    14. What happened to Kelly Rindfleisch could happen to you
    15. Kelly Rindfleisch takes her Fourth Amendment fight to the U.S. Supreme Court
    16. GAB reform stalled, new docs show GAB working closely with John Doe prosecutors
    17. John Doe reform bill stuck in legislative waiting game
    18. Was John Chisholm John Doe distracted?
    19. U.S. Supreme Court denies review of John Doe-related case
    20. Warrants command John Doe targets to remain silent
    21. Political prisoner Kelly Rindfleisch on home confinement, working for O’Keefe
    22. Will discovery reveal more bombshell information about ‘rogue’ GAB?
    23. Wisconsin as a New Yorker cartoon of itself
    24. U.S. Supreme Court could announce decision on John Doe case later this month
    25. Five years later: America just learning ‘tyrannical’ secrets of Wisconsin’s John Doe
    26. John Chisholm’s 50 shades of ‘raid’
    27. Do Chisholm’s public comments on John Doe cross ethical line?
    28. Experts: Chances rise that U.S. Supreme Court will take John Doe case
    29. U.S. Supreme Court to consider hearing John Doe-related case
    30. Who was the reporter outside Cindy Archer’s house?
    31. John Doe reform bill stalls in Legislature
    32. Lawmaker: Chief justice’s civil rights complaint is ‘pathetic’
    33. New documents expose GAB’s ‘parallel’ probe expenditures
    34. Did chief justice show her hand in dissenting John Doe opinion?
    35. U.S. Supreme Court could soon decide whether to take John Doe Case
    36. Kelly Rindfleisch, Chisholm’s political prize, to begin sentence on Thursday
    37. GAB, friend of the John Doe, just wants to be a ‘friend of the court’
    38. Kelly Rindfleisch hopes to avoid becoming first John Doe political prisoner
    39. Secretive John Doe special prosecutor who fancies a good leak screams secrecy breach
    40. Wisconsin Supreme Court rejects Rindfleisch Fourth Amendment appeal
    41. On Sunshine Week, GAB still operating in the dark
    42. John Doe target says they are the victim of identity theft
    43. Reform bill would open up the John Doe books to taxpayers
    44. John Doe reform bill aims to break silence of abusive investigations
    45. Milwaukee DA to be ‘special guest’ at fundraiser for Supreme Court justice
    46. $775,000 and rising — Wisconsin taxpayers’ bill to defend John Doe prosecutors
    47. Prosecutor misstatements continue to shape John Doe narrative, Walker’s future
    48. Is John Doe special prosecutor still working with partisan DA, GAB?
    49. Conservative groups ask U.S. Supreme Court to defend rights of John Doe targets
    50. Does chief justice have conflict of interest in John Doe case?
    51. First Amendment expert: Wisconsin ought to be ’embarrassed’ by John Doe
    52. Following judge’s order killing John Doe, what’s next?
    53. Federal judge’s judgment takes John Doe probe off life support
    54. How Wisconsin media support DA’s war on conservatives
    55. Conservatives: GAB’s meeting minutes show gap in board’s John Doe oversight
    56. O’Keefe takes his case against John Doe to U.S. Supreme Court
    57. GAB has a sudden change of heart on campaign finance reform
    58. Public defender asks Supreme Court to take up John Doe-related Fourth Amendment case
    59. GAB plays victim card in ‘complicated’ John Doe, campaign finance farce
    60. Doe possessed: ‘They have information about every aspect of our lives’
    61. One year ago, judge’s ruling shakes up John Doe probe
    62. State lawmakers look to investigate the GAB and its investigators
    63. O’Keefe officially asks judge to open probe into John ‘Doe’ Chisholm
    64. GAB offers contradictory defense of its John Doe activities
    65. Isn’t it ironic: Mainstream silence follows reports of secret GAB Gmail in John Doe
    66. Attorney: GAB’s John Doe justifications don’t hold up to law
    67. ‘Outside the … law’: Lawmakers call for investigation of GAB
    68. Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives
    69. GAB won’t say whether it has reauthorized its role in John Doe probe
    70. ‘R word’ surfaces in wake of state Supreme Court taking up John Doe challenges
    71. Wisconsin Supreme Court to take up John Doe complaints
    72. Audit: GAB has failed to follow the law
    73. Rindfleisch appeals to Supreme Court in John Doe Fourth Amendment abuse case
    74. Wisconsin’s Van Hollen says goodbye to AG post, John Doe
    75. Did the GAB doctor documents to cover their tracks in John Doe?
    76. Conservatives to court: Open up records on GAB’s role in John Doe
    77. John Doe froze conservative speech, targets say
    78. Kelly Rindfleisch will fight on in Fourth Amendment case
    79. John Doe lawsuit could be headed to U.S. Supreme Court
    80. GAB, Milwaukee County DA bail on key provision behind war on conservatives
    81. Vos: There will be reforms to John Doe, GAB
    82. Voters say ‘yes’ to Walker, ‘no’ to John Doe, law expert says
    83. Appeals court denies request to rehear John Doe civil rights case
    84. Report: No district attorney will investigate District Attorney John Chisholm
    85. Federalism v. individual rights: A conversation with Eric O’Keefe
    86. No surprise: Bice buries the lead, Walker follows the law
    87. Wisconsin Supreme Court takes another pass on John Doe case
    88. Federal judge stops John Doe prosecutors from bothering conservative group
    89. Armed and growing: Milwaukee County DA beefs up his ‘police force’
    90. Conservatives to appeals court: ‘You don’t know Doe’
    91. Conservative group asks court to stop John Doe ‘constitutional injury’
    92. Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
    93. The day John Doe rushed through the door
    94. Target of secret John Doe probe is fighting back and speaking out
    95. Who’s paying the bill? Report casts questions on GAB and John Doe payments
    96. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
    97. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
    98. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
    99. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
    100. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
    101. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
    102. GAB director says agency just following the law in John Doe probe
    103. Is John Doe story colored with a bit of ‘Macbeth?’
    104. Wisconsin prosecutors appeal for protection from blowback in partisan probe
    105. Another blow for Wisconsin’s restrictive campaign finance law
    106. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
    107. Was John Doe judge a rubber stamp?
    108. First Amendment big guns back targets of John Doe probe
    109. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
    110. Conservatives appeal to common sense in John Doe appeals case
    111. Wisconsin prosecutors aim to shut down conservatives
    112. Walker ‘smoking gun’ story has tiny glaring flaw
    113. John Doe prosecutors take desperate, unethical slap
    114. ‘Retaliation’: Docs show state prosecutors launched mini-NSA probe of WI conservatives
    115. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
    116. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
    117. Appeals court orders release of some John Doe documents
    118. Conservatives in John Doe battle know disclosure comes with a heavy price
    119. Kelly Rindfleisch appeal to test validity of John Doe digital searches
    120. Senator: Looks like accountability board is hiding something
    121. John Doe document blitz must have broken mainstream media’s heart
    122. In John Doe Land, the left doesn’t illegally coordinate
    123. Oral arguments set in John Doe prosecutors’ appeal
    124. Judge denies conservatives’ request to add GAB to civil rights lawsuit
    125. John Doe prosecutors engaged in war of words — lots and lots of words
    126. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
    127. GAB now playing secrets in state John Doe lawsuit
    128. Senator asks attorney general to compel GAB to open up its books
    129. AG opinion means accountability board’s John Doe secrets are safe — for now
    130. Is John Doe probe a case of a mini NSA in Wisconsin?
    131. John Doe prosecutors engaged in premature justification, conservatives say
    132. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
    133. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
    134. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
    135. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
    136. Right on cue: Document dump fuels anti-Walker donation drive
    137. Federal judge blasts John Doe prosecutors – again – as he denies records release
    138. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
    139. What about those prosecutors? Questions surround other John Doe DAs
    140. John Doe prosecutors jump back into the dark?
    141. Will taxpayers have to pay for frivolity of John Doe prosecutors?
    142. John Doe I judge says he’s not responsible for John Doe II
    143. O’Keefe keeps collecting big wins in John Doe lawsuit
    144. Appeals court upholds judge’s order shutting down John Doe probe
    145. ‘Never-ending’ John Doe never ended, WSJ reports
    146. John Doe special prosecutor obeys judge’s order
    147. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
    148. John Doe special prosecutor’s bill still shrouded in secrecy
    149. Federal judge says his order halting John Doe probe should be clear to prosecutor
    150. John Doe targets sue Wisconsin’s Government Accountability Board
    151. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
    152. Sources: Attorney General passes on defending GAB in John Doe cases
    153. Walker’s John Doe response raises more questions than answers
    154. Contempt questions surround reported John Doe deal talks
    155. Would Walker settlement with John Doe prosecutors be a deal with the devil?
    156. Sources: No urgency in WI Supreme Court on John Doe
    157. For the Walker-hating left, John Doe is ‘Mission Accomplished’
    158. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
    159. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
    160. John Doe prosecutors voice phony outrage, legal source says
    161. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
    162. John Doe prosecutors suddenly support opening sealed court records
    163. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
    164. Still their little secret? Questions remain on John Doe gag order
    165. Secret’s out: The world is beginning to learn more about WI’s John Doe
    166. Lawyers, lawyers everywhere and other dispatches from John Doe Land
    167. Lawmakers call for review of GAB’s secret John Doe activities, funds
    168. Federal judge orders John Doe probe shut down again
    169. Federal judge’s ruling could open up sealed John Doe records
    170. Appeals court stalls judge’s order halting John Doe probe
    171. What’s next for now-defunct John Doe probe?
    172. This is what the Fourth Amendment looks like?
    173. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
    174. Are John Doe prosecutors sweating out federal judge’s decision?
    175. Media coalition asks judge to open sealed John Doe documents
    176. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
    177. John Doe prosecutors sound defensive in latest court filings
    178. John Doe target says prosecutors latest move another delay tactic
    179. John Doe, as it is being used, must go, WI senator says
    180. Target: John Doe prosecutors making up campaign law as they go along
    181. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
    182. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
    183. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
    184. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
    185. ‘Easy target’: Kelly Rindfleisch breaks silence about John Doe probe
    186. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
    187. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
    188. Recusal in John Doe case raises questions of fairness, purpose
    189. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
    190. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
    191. John Doe prosecutors wanted higher-priced lawyers, source says
    192. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
    193. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
    194. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
    195. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
    196. John Doe judge: ‘Results of the John Doe speak for themselves’
    197. Liberal group looking to take Wisconsin’s John Doe national
    198. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
    199. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
    200. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
    201. John Doe target O’Keefe taking on IRS, too
    202. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
    203. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
    204. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
    205. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
    206. Biggest secret in John Doe may be just how judges and special prosecutors are selected
    207. Republicans speak out about silent John Doe targeting conservatives
    208. WI Republican attorney general to represent judges in Democrat-led John Doe probe
    209. Wisconsin Dems suddenly support political investigations
    210. Center for Media and Democracy: Liberals are morally superior
    211. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
    212. Conservative targets bring in big guns to Democrat-led John Doe fight
    213. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
    214. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
    215. Sources: New judge named in Democrat-led secret probe
    216. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
    217. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
    218. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
    219. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
    220. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
    221. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
    222. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers

Eric is a reporter for Watchdog.org and former bureau chief for Pennsylvania Independent. He lives in Minneapolis, Minnesota, where he enjoys great weather and low taxes while writing about state governments, pensions, labor issues and economic/civil liberty. Previously, he worked for more than three years in Harrisburg, Pennsylvania, covering Pennsylvania state politics and occasionally sneaking across the border to Delaware to buy six-packs of beer. He has also lived (in order of desirability) in Brussels, Belgium, Pennsburg, Pa., Fairfield, Conn., and Rochester, N.Y. His work has appeared in Reason Magazine, National Review Online, The Freeman Magazine, The Philadelphia Inquirer, The Washington Examiner and elsewhere. He received a bachelor’s degree from Fairfield University in 2009, but he refuses to hang on his wall until his student loans are fully paid off sometime in the mid-2020s. When he steps away from the computer, he enjoys drinking craft beers in classy bars, cheering for an eclectic mix of favorite sports teams (mostly based in Philadelphia) and traveling to new places.

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