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Will Supreme Court take blockbuster “John Doe” campaign case?

Will Supreme Court take blockbuster “John Doe” campaign case?

Still waiting on what could be another groundbreaking campaign First Amendment case.

The U.S. Supreme court has not yet decided whether to grant a petition for writ of certiorari to review a decision by the 7th Circuit Court of Appeals that ruled the federal courts should not have issued an injunction halting the “John Doe” investigation targeting conservative groups in Wisconsin.

The case was on the Supreme Court conference list for Friday, April 24, 2015, and a decision was expected to be part of Orders issued today, but there was no order. Andrew Grossman, one of the counsel for the petitioners, tweeted this morning:

The case is O’Keefe v. Chisholm. You can find all the pleadings here. Since the vast majority of cases are not accepted by the Supreme Court, it’s hard to know what, if anything, the delay means.

The issue on which review was sought had little to do — on the surface — with the substance of the abuses in the John Doe case, but rather, focuses on a technical legal point as to whether and when federal courts can or should stop state investigations.

Here’s how ScotusBlog summarized the issues:

Issue: (1) Whether considerations of “equity, comity, and federalism” insufficient to support abstention can override the holding in Mitchum v. Foster that 42 U.S.C. § 1983 is an “expressly authorized” statutory exception to the Anti-Injunction Act; and (2) whether, as this Court left unresolved in Hartman v. Moore, officials may be held liable for subjecting citizens to investigation in retaliation for First Amendment-protected speech and association, particularly where non-retaliatory grounds are insufficient to support the investigation.

More details on the underlying case are here.

Because both a separate federal ruling in a different case, and a state court ruling as part of the investigation, have halted the investigation for now, this Supreme Court decision will not directly affect the current status.

But, the nature of the case necessarily involves the underlying ability of states to regulate campaign coordination and how that ability interacts with First Amendment rights.

That is a huge issue, which the Justices may decide to reach as part of a ruling if they take the case. That’s what has Democrats so scared about this case — they fear it could turn into another case of the magnitude of Citizens United, in which the Supreme Court again upholds the constitutional rights of citizens to express views cooperatively.

The abuses in the underlying investigation have been making national headlines — something of which the Justices must be aware.

(Video via Right Wisconsin)

That national attention has the lead prosecutor frazzled and angry, via Charlie Sykes at Right Wisconsin:

For guys who ordered pre-dawn raids using battering rams, the John Doe prosecutors turn out to be awfully touchy… in fact, so thin-skinned that they actually let the mask slip.

Milwaukee DA John Chisholm was apparently so unhinged by recent criticism that he actually suggested Saturday that Governor Scott Walker be criminally charged with defamation for criticizing him.

So, no, Chisholm really doesn’t get the First Amendment thing, does he?

And so much for the notion of prosecutorial restraint and Chisholm’s non-political motivations.

This prosecutorial reaction highlights the need for the Supreme Court not only to take the case, but to reach the merits of the First Amendment issue.

We will let you know as soon as we know whether the Supreme Court takes the case.


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What this means is that the Supreme Court denied certiorari, but there will be a written dissent from that decision. At least that’s my guess.

Will one of you legal beagles please explain the “John Doe” thing to me? How in Heaven’s name could it possibly be legal to tell someone they cannot contact an attorney and cannot speak of having jack booted thugs batter in their door, terrorize their children and animals, search and seize, all over campaign communications? I just don’t understand…

    stevewhitemd in reply to JoAnne. | April 27, 2015 at 1:29 pm

    Because the Wisconsin “John Doe” forbade them to do those things on pain of substantial penalty.

    The real questions are 1) how on earth the Wisconsin legislature wrote such a law (answer: it was controlled by Democrats) and 2) how on earth a prosecutor would think such a law is moral and just (answer: he’s a Democrat).

    Ragspierre in reply to JoAnne. | April 27, 2015 at 2:36 pm

    “How…could it possibly be legal to tell someone they cannot contact an attorney and cannot speak…”

    Well, I am a legal mongrel, and I don’t see any possible way for that to be legal.

    The concept, I guess, stems for the idea that the good guys want to prevent the bad guys involved in a major criminal conspiracy from warning others, or synchronizing their alibis. Criminal attorneys (but I repeat myself) sometimes are used as conduits in such matters.

    Still, I don’t see how this EVER saw the light of day…or the darkness of night. This is just gobsmacking.

    And, as I’ve written earlier, I would have cheerfully violated the orders, and hard.

    DINORightMarie in reply to JoAnne. | April 27, 2015 at 3:34 pm

    This NRO article, at the link below, is a good, fairly concise (though long) explanation both of the “John Doe” process in WI and some of the horrible fallout and injustices suffered due to this specific “John Doe” case. (This supplementary to the Professor’s many blog posts on the topic – see the link at the bottom of his post for those.)

    Hope this helps:

Maybe the delay is being caused by John Roberts switching sides again.

Subotai Bahadur | April 27, 2015 at 2:32 pm

Expecting the Supreme Court to accept a case where they might have to rule against the Democrats and uphold the law and Constitution, and then to do so is to hope for too much. It was amazing that they took the current Obamacare case and the pretzel that they will have to twist themselves into to protect Obamacare yet again is going to be truly impressive [if disgusting].

If they considered “Citizens United” under the First Amendment, and abortion rights under the same (with a liberal dose of amorality and fantasy), then they should obviously consider “Jon Doe” under the Fourth Amendment. The Wisconsin Democrats clearly violated American citizens rights to be free from unreasonable search and seizure. For one, we are at war with international terrorists under an international, left-wing ideology, not American conservatives under The Constitution.

This is just another illustration of the fanciful notion of citizens in this country that they have rights.

Sammy Finkelman | April 27, 2015 at 3:50 pm

Hillary Clinton has endorsed amending the constitution to make it possible to make the kind of “co-ordination” Scott Walker is accused of, illegal (and presumably investigations like this legal as well)