September 2014

The 7th Circuit Court of Appeals has vacated a District Court injunction prohibiting Wisconsin prosecutors from utilizing a "John Doe" proceeding investigating Scott Walker and conservatives. (Full Opinion embedded at bottom of post.) The Court ruled that it was an issue for the state courts, not the federal courts. While not ruling on the ultimate issue of whether the conduct at issue was protected under the First Amendment, the Court ruled that the law on that issue was not so clear that a federal court could take the extraordinary step of enjoining a state court issue. The Court suggested that the U.S. Supreme Court may have to one day decide whether "issue advocacy" is beyond the purview of campaign regulation. Whether the John Doe targets/plaintiff will try to get the Supreme Court to take the case at this stage to decide the constitutional issues remains to be seen. Whether the Supreme Court would take the case also is a question mark. Because the state courts already were addressing the issue, and in fact a state court judge had refused to issue any more subpoenas effectively halting the case, the Appeals Court deferred to the state court system to resolve the issues. From the Opinion:

The issuance of injunctive relief directly against Judge Peterson is hard to justify in light of the Anti-­‐‑Injunction Act, and the district court did not try to do so. The Anti-­Injunction Act embodies a fundamental principle of federalism: state courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt.... One important question is whether the plaintiff suffers irreparable injury. O’Keefe and the Club say yes, because donations have dried up, but that’s not the right temporal perspective. We must ask whether the injury would be irreparable if the federal court were to stay its hand. And it is hard to see that kind of injury, because plaintiffs obtained effective relief from Judge Peterson before the federal judge acted—indeed, before filing this suit.... A second important question is whether the plaintiff has adequate remedies at law (which is to say, without the need for an injunction). That Judge Peterson entertained and granted the motion to quash shows that the answer is yes. A third important question is whether federal relief is appropriate in light of normal jurisprudential principles, such as the rule against unnecessary constitutional adjudication.....Yet the district court waded into a vexed field of constitutional law needlessly. Judge Peterson had already concluded that the investigation should end as a matter of state law, because prosecutor Schmitz lacks evidence that state law has been violated. The result is an injunction unnecessary at best, advisory at worst.

The Appeals Court refused to decide the First Amendment issue, ruling that the John Doe plaintiffs (who received subpoenas) may one day be vindicated, but that vindication on constitutional grounds would have to come from the Supreme Court:

Plaintiffs’ claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician’s campaign committee has not been established “beyond debate.” To the contrary, there is a lively debate among judges and academic analysts. The Supreme Court regularly decides campaign-­‐‑finance issues by closely divided votes. No opinion issued by the Supreme Court, or by any court of appeals, establishes (“clearly” or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-­‐‑advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic. The district court broke new ground. Its views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages. This makes it unnecessary for us to consider whether any defendant also enjoys the benefit of absolute prosecutorial immunity, which depends on the capacities in which they may have acted at different times.....

So where does this leave us? The John Doe investigation now will be fought in the Wisconsin state courts. That creates a cloud of uncertainty for Wisconsin conservatives, but as of this moment, the state courts effectively have halted the investigation. The Appeals Court ordered the case dismissed, but that seems odd (I want to reflect on this) since there are damage claims apart from the injunction. UPDATE: The attorneys for the John Doe Plaintiffs issued the following statement:

Statement of David B. Rivkin, Jr., Attorney for the Wisconsin Club for Growth and Eric O’Keefe The Seventh Circuit’s decision today, while disappointing, does not revive the John Doe investigation, which John Doe Judge Gregory Peterson found violated state law. It does not lend any support to Milwaukee County District Attorney John Chisholm’s allegations against the Wisconsin Club for Growth, given that he has failed to identify a single advertisement by the Club that was coordinated with Scott Walker or even had anything to do with Walker’s campaign. And it does not alter our resolve. We will ask the Seventh Circuit to correct today’s mistaken decision, and we will continue to fight this abuse of government power. Today’s decision does not honor a federal court’s duty to vindicate and protect Americans’ rights under the U.S. Constitution. The Wisconsin Club for Growth and Eric O’Keefe did not only challenge a subpoena or a John Doe proceeding—as the Seventh Circuit assumed—but a years’ long campaign of harassment and intimidation by Milwaukee County District Attorney John Chisholm to retaliate against the Club, Mr. O’Keefe, Wisconsin conservatives, and Governor Scott Walker. According to a whistleblower who worked under Chisholm, the District Attorney declared it his “personal duty to stop Walker” and undermine Walker’s economic reforms—a vow that led to his targeting nearly the entirety of Wisconsin’s conservative movement. The Seventh Circuit’s view that a federal court is powerless to enjoin this blatant abuse of prosecutorial power in violation of citizens’ First Amendment rights is simply wrong.

Here is the Opinion: