MacIver News Service | July 16, 2015[Madison, Wisc…] The Wisconsin Supreme Court put an end to the John Doe investigation with a 4-2 ruling that was issued early Thursday morning.
The investigation that was officially quashed by the state’s highest court had been called a political witch-hunt by Gov. Scott Walker and others that were targeted by Milwaukee County District Attorney John Chisholm. The multi-year investigation, which looked into the possible coordination between the governor and independent conservative organizations during the recall elections, did not lead to any charges being filed.
That did not, however, stop the continuous leaks from the otherwise secret probe. Many of the documents that surfaced were pounced on by left-leaning organizations – and sometimes the mainstream media – in an attempt to make the victims look bad in the court of public opinion.
As prosecutors tried to claim that Walker was at the center of a national “criminal scheme,” they routinely failed to prove their claim at the different levels of court.
Walker’s campaign said on Thursday that the Supreme Court’s decision was further – and final – proof that no one broke any laws.
“It is time to move past this unwarranted investigation that has cost taxpayers hundreds of thousands of dollars,” said Ashlee Strong, Walker campaign spokeswoman.
The decision is also a major victory for Eric O’Keefe’s group, Wisconsin Club for Growth. O’Keefe and his organization won a lawsuit in federal court after arguing the investigation violated their civil rights. That case was overturned on appeal because the judges felt it was a matter to be decided by the state court.
As of Thursday, that matter was finally decided by the state Supreme Court. All documents and other materials from the probe were ordered to be destroyed.
“We order that the special prosecutor and the district attorneys involved in this investigation must 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. All Unnamed Movants are relieved of any duty to cooperate further with the investigation,” Justice Michael Gableman wrote in his opinion.
Justice Shirley Abrahamson disagreed with ending the investigation. She wrote in her opinion, “If the majority opinion succeeds in terminating the John Doe investigation, the majority opinion will deny the people of this state the opportunity to determine once and for all whether the targets of the John Doe investigation are guilty of systematically violating Wisconsin’s campaign finance law through undisclosed campaign coordination.”
The John Doe investigations trace back to 2010, when Milwaukee District Attorney John Chisholm had a theory that employees were misusing public resources in the Milwaukee County Executive’s Office. By pursuing that hunch with a John Doe investigation, he didn’t need any proof up front. He just needed a judge to sign off on it so he could go find evidence. It turned out his hunch panned out and charges were filed against four individuals in January 2012, according to court documents.
That investigation led Chisholm to a new theory – that issue advocacy groups were illegally coordinating their fundraising with the Walker Campaign. This was based on an email found during John Doe I that suggested such activity was taking place. This new investigation was then referred to as John Doe II. Problems with this investigation are what led to the state Supreme Court case.
John Doe II was authorized on September 5, 2012 by Milwaukee County Reserve Judge Kluka. It included a gag order on victims preventing them from talking to anyone (including lawyers) about what investigators did to them. The investigation soon began to swell. Throughout the summer of 2013, the state authorized Kluka to expand John Doe II beyond Milwaukee County into Columbia, Dodge, Iowa, and Dane counties. All five counties were assigned the same special prosecutor, Francis Schmitz.
Kluka then authorized 29 subpoenas and 2 search warrants on October 1, 2013. Those warrants were executed two days later during “pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes,” as described by Justice Gableman.
Allegedly, at one of the houses raided, only a 16-year-old boy was home. Police told him he couldn’t tell anyone about the raid including his school, parents, or lawyer. In another home, police watched as the female victim got dressed and then barged into the bathroom as another victim showered.
Motions were filed to “quash” the subpoenas on October 17th in Milwaukee County. Kluka reused herself from the proceeding and by the end of the month withdrew from the John Doe investigation entirely. Another reserve judge, Gregory Peterson, took over for her in Milwaukee County.
Peterson “quashed” the subpoenas on January 10, 2014, stating, “I conclude the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws.”
However, Peterson stayed that order two weeks later at the request of the special investigator.
The victims of John Doe II starting filing complaints about the legality of various aspects of the investigation, including whether a John Doe Investigation could be conducted across five counties. On November 3, 2014, after the investigation had gone on for over two years and no charges had been filed, the victims filed a motion requesting an explanation why the investigation should continue. Peterson denied the motion, but acknowledged the appellate courts might agree and shut down John Doe II.
Their complaints eventually led to the state Supreme Court case that was decided on Thursday. It involved three main questions. First, even if the victims were doing what investigators suspected, was it illegal? Secondly, was the reserve judge able to “quash” the investigation? And finally, can a circuit court judge from Milwaukee order a statewide, five-county investigation?
Justices David Prosser, Patience Roggensack, Annette Ziegler, and Gableman concurred. Justices Abrahamson and Patrick Crooks dissented. Justice Ann Walsh Bradley did not participate because her son works for a law firm involved with the case.
Concerning the first question, Gableman, in his opinion, wrote that the campaign finance law “is unconstitutionally overbroad and vague,” and is at odds with the US Constitution’s First Amendment and the Wisconsin Constitution’s Article 1, Section 3.
“We invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants,” Gableman wrote. “To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed.”
Abrahamson disagreed with her fellow justices on this point.
“The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment. In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ‘stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate,'” she wrote in her opinion. “Within the realm of issue advocacy, the majority opinion’s theme is ‘Anything Goes.'”
“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day,” Gableman quoted from the Citizens United case.
Ziegler also wrote an opinion, focusing on the paramilitary, predawn raids. This issue was not part of the case, but she still felt it was worth comment.
She pointed out these raids likely violated the U.S. Constitution’s Fourth Amendment and the Wisconsin Constitution’s Article I, Section 11. Both are related to unreasonable search and seizure.
Ziegler wrote, “Because no Wisconsin law specifically addresses the legality of nighttime searches of private homes, under the existing facts of this case, these pre-dawn searches could raise questions as to whether they would pass constitutional muster.”
Gableman explained “Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.”
These justices pointed out how there was no logical reason these searches had to be conducted at night using paramilitary force.
Abrahamson did not address this subject directly. She only mentioned it as she claimed her colleagues came to their conclusions “without the benefit of briefs or facts.” Throughout her opinion Abrahamson attacked her fellow justices by name and concluded only the victims who actually filed the complaint should be entitled to any relief from the John Doe investigation.
With the John Doe case settled, it is expected that the legislature could move forward with reforms to these types of probes and also make changes to the state’s body that oversees elections, the Government Accountability Board.