Federal Appeals Ct upholds injunction against Wisconsin “John Doe” investigation pending appeal

Federal Appeals Ct upholds injunction against Wisconsin “John Doe” investigation pending appeal

The Wisconsin anti-conservative investigation by local prosecutors targeting numerous conservative activists and groups has resulted in numerous legal cases. The investigation is a round-about attack on Gov. Scott Walker, seeking to damage him politically and freeze his supporters out of the political process.

Most prominently, in a federal lawsuit two of the targets obtained a preliminary injunction shutting down the investigation as a violation of their constitutional rights. There also are claims for damages individually against the investigators.

A separate lawsuit was filed in state court against the Wisconsin Government Accountability Board for its role.

The investigation has become the poster child for government abuse of process against conservative activists, as George Will wrote:

Last Tuesday, [Federal Judge] Randa halted the corruption being committed by people pretending to administer campaign regulations — regulations ostensibly enacted to prevent corruption or the appearance thereof. The prosecutors’ cynical manipulation of Wisconsin’s campaign laws is more than the mere appearance of corruption.

There were two important developments this afternoon.

In the first and most important development, the 7th Circuit Court of Appeals upheld, pending appeal, the preliminary injunction halting the investigation (full order embedded at bottom of post):

1. Appeal Nos. 14-2006, 14-2012, and 14-2023 challenge the district court’s authority to issue a preliminary injunction, and to conduct proceedings concerning the request for permanent injunctive relief. They are frivolous to the extent they present this topic. Defendants’ invocation of immunity does not affect litigation under Ex parte Young, 209 U.S. 123 (1908), that seeks prospective relief to compel compliance with federal law (including the Constitution). The district court therefore had authority, notwithstanding the appeals, to issue an injunction.

The court vacated the prior briefing schedule, meaning the appeal will take longer, and also stayed the trial court case pending the appeal:

4. Proceedings in the district court concerning damages are stayed pending further order of this court.

5. The briefing schedule set by order of May 13, 2014, is vacated. The court will establish a new schedule after all jurisdictional issues have been resolved.

The Appeals Court left open the possibility that it might dismiss the appeals, indicating it needed more information.

This has to be viewed as a loss for the investigators. While the damages case is on hold, so too is the investigation and the investigators are under a federal court injunction that is quite sweeping. So sweeping, in fact, that the John Doe targets argued that the investigators trying to negotiate a settlement with Gov. Scott Walker that prejudiced the targets would violate the injunction.

M.D. Kittle at Wisconsin Reporter, who has followed the cases more closely than anyone, writes:

Not a good day for John Doe prosecutors-turned defendants in a civil rights lawsuit.

Prosecutors in that investigation — including Milwaukee County District Attorney John Chisholm, a Democrat, two of his assistant DAs, John Doe special prosecutor Francis Schmitz and Dean Nickel, a contracted investigator — had sought relief from the appeals court, asking that the 7th Circuit stay the preliminary injunction.

Chisholm and crew invoked the 11th Amendment of the U.S. Constitution, asserting that they have sovereign immunity from such legal actions.

Not so much, the three-judge 7th Circuit appeals court answered.

In another development, the plaintiffs in the federal District Court lawsuit filed a Motion to Amend to add the GAB to the federal case as well (h/t @AndrewMGrossman).

Wisconsin John Doe – 7th Circuit Order June 9 2014 Re Preliminary Injunction

Wisconsin John Doe – Motion to Amend and First Amended Complaint

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