Will Any DA Appeal High Court John Doe Ruling?

Court “fires” chief prosecutor, Democracy Campaign calls on other prosecutors to appeal decision

By - Dec 4th, 2015 04:58 pm
John Chisholm. Photo by Grace Fuhr.

John Chisholm. Photo by Grace Fuhr.

Two days after the Wisconsin Supreme Court essentially fired the lead John Doe II prosecutor Francis Schmitz, a watchdog group has called on other prosecutors to take his place. The court had already shut down the Doe probe, but has now ruled that Schmitz, who intended to appeal the ruling to the U.S. Supreme Court, was never legally appointed a Doe prosecutor, meaning he may not have standing to appeal the high court decision.

Matthew Rothschild, executive director of the nonpartisan Wisconsin Democracy Campaign has sent a letter to five Wisconsin district attorneys who were also involved in the John Doe case, asking them to step in and appeal the high court decision.

“To let this dangerous State Supreme Court decision stand without challenge would do a grave disservice to the people of Wisconsin you represent,” Rothschild said in the letter. “Since this case has profound significance not only for the John Doe but for the integrity of our campaign finance system, I urge you to step up and take this on.”

The latest Wisconsin Supreme Court decision was “not meant to interfere with the ability of the prosecution team to seek Supreme Court review,” the court declared, The court invited five district attorneys who have had some involvement with the case to take over for Schmitz.

Rothschild sent the letter yesterday to those prosecutors: Columbia County DA  Jane Kohlwey, Dane County DA Ismael Ozanne, Dodge County DA Kurt F. Klomberg, Iowa County DA Larry E. Nelson and Milwaukee County DA, John Chisholm who initiated the probe and has been a particular focus of conservative opponents of the decision.

“I’m hoping Ozanne will rise to this occasion and appeal to the U.S. Supreme Court,” Rothschild says.

In his letter Rothschild outlines grounds for the appeal as; failure of judges to recuse themselves, a blatant misreading of campaign finance precedents and ignoring evidence of potentially illegal express advocacy coordination.

The letter indicates the four member majority of the State Supreme which wrote the decision shutting down the Doe probe benefitted from $8 million in election expenditures spent on their elections by the Wisconsin Club for Growth and the Wisconsin Manufacturers and Commerce, two groups that the John Doe probe was investigating. Schmitz had asked two of the justices to recuse themselves because of a conflict of interest but they declined.

The the second John Doe investigation had been launched in 2012 and the judge who oversaw the investigation, Gregory Peterson, had overseen the appointment of Schmitz. But the supreme court ruled the appointment was improper because special prosecutors are allowed to be appointed only in certain circumstances, such as when the district attorney has a conflict of interest.

“I am disappointed,” Schmitz said in a statement in response to the high court ruling. “I continue to believe that the investigation was justified. The voters of Wisconsin have a right to know the identity of large donors, corporate and individual, which coordinate with campaign committees.”

Schmitz said he had underestimated “the power and influence special interest groups have in Wisconsin politics. My career in the military and as a federal prosecutor fighting violent criminals and terrorists did not fully prepare me for the tactics employed by these special interest groups.”

Schmitz said that “if I have the resources, (I) intend to pursue an appeal before the U.S. Supreme Court,” but some legal observers say that may be difficult. Chisholm and the other four DAs who were also involved in the case have so far had no comment about the high court decision or Rothschild’s call for them to appeal the case.

Categories: Politics, Public Safety

8 thoughts on “Will Any DA Appeal High Court John Doe Ruling?”

  1. John Casper says:

    Jim, excellent reporting, thanks very much.

    There’s hope, because Justice Roberts just cast the deciding vote in Williams-Yulee v Florida Bar and it’s right on point.

    “… John Roberts’s Roadmap for Campaign-Finance Reform The chief justice’s bold stance in a judicial-elections case offers Congress a chance to curtail fundraising.”

    “In upholding that ban, Roberts emphasized that judicial candidates had complete freedom to speak on any issue; they simply were barred from saying: “Please give me the money.” The chief justice emphasized the unavoidable power-play involved: “The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.” Personal involvement, he writes, “creates the public appearance that the candidate will remember who says yes, and who says no.”


  2. David Ciepluch says:

    The right of due process cannot be denied in this country. It was one of the main points in founding of the USA and US Constitution.

    I know it takes legal funding to cover expense to move forward. I would donate and I am sure there are many other citizens like me that would do the same.

    Our Wisconsin Supreme Court if so obviously corrupted and needs to be held accountable to the people.

  3. Kent Mueller says:

    It will be a grave injustice if this isn’t pursued higher. It’s clearly evident that the view of the WI Supreme Court re campaign finance laws are far more expansive the US Supreme Court meant with decisions such as Citizens United. It would give SCOTUS a chance to revisit and fine tune the issue, which is widely viewed as one of the worst decisions of modern times. The Wisconsin Supreme Court has taken it to mean “anything goes”. Eric O’Keefe, the head of WI Club For Growth, views it as his right to buy the government he wants. Money is speech and speech is money, too bad if you don’t have as much as he does. Apparently I can buy a drink with a Haiku, and a dollar value can be assigned to an adverb, or so Eric would have you believe.
    Three if not four of the WI Supreme Court justices deserved to be smacked down under Caperton v Massey, the SCOTUS decision that directly addresses “bought” state higher court justices.
    I wonder if the WI GOP, what can only be described as an all-powerful and evidently corrupt machine, of which the State Supreme Court majority is clearly an operating arm, has given much thought to what, as they dismantle all oversight and criticism, will happen when they inevitably fall from power. All their hard work to turn government to their liking will be finished just in time to hand it over to the Democratic Party. They must sense it somehow, I mean I can’t be the only to see they’ve been in one Hell of hurry to get away with as much as possible as soon as possible.

  4. Richard Martin says:

    Now that he’s lost every battle his masks are coming off. Most people at least understand a sore loser. But it’s kind of undignified to act like a crybaby when the other side won fair and square. Yeah I know the rejoinder, it wasn’t fair and square – the Supremes were bought off. This conveniently overlooks people of unquestioned integrity like Reserve Judge Greg Peterson, and others who didn’t buy what the John Doe prosecutors were selling.

  5. John Casper says:


    Sorry you tolerate stealing from veterans.

    How many convictions did Chisholm get?

    How many were overturned on appeal?

    “We own C.F.G.,” said R.J. Johnson, a Walker campaign official and paid staffer at the Club for Growth who was at the center of the case. In emails obtained as evidence, a Walker fundraiser wrote that “As the Governor discussed … he wants all the issue advocacy efforts run thru one group to ensure correct messaging,” adding that “Wisconsin Club for Growth can accept corporate and personal donations without limitations and no donors disclosure.” I

    Collectively, those four justices have thus far received just under $6 million from Wisconsin Manufacturers and Commerce, and about $2 million from Wisconsin Club for Growth – the two groups being investigated for wrongdoing and who, along with the Walker campaign, launched the case against their prosecution.


    Go ahead, respond to Mr. Schmitz.

    “To: I am disappointed with today’s ruling from the Wisconsin Supreme Court and respectfully disagree with the conclusions drawn by the majority which end the investigation. The decision represents a loss for all of the citizens of Wisconsin — independents, Democrats and Republicans alike. It defies common sense that a Wisconsin resident of average means who gives $25 to a campaign has his or her name publicly reported under the law but, according to this decision, someone who gives, for example, $100,000 to a group which closely coordinates with the same campaign can remain anonymous. The United States Supreme Court has fittingly characterized such donations as “disguised contributions” to the candidate. As stated in Wisconsin Statute 11.001, “[w]hen the true source of support or extent of support is not fully disclosed, or when a candidate becomes overly dependent upon large private contributors, the democratic process is subjected to a potential corrupting influence.”

    Particular justices assert as fact many allegations that I specifically denied in my response materials. There has been no fact-finding hearing conducted at any level establishing, for example, that search warrants were executed unprofessionally or that persons were denied an opportunity to contact their attorneys. All of these search warrants were audio-recorded and it is wrong for the court to accept as true the information alleged by some of the Unnamed Movants and their media outlets.

    It is also unfortunate that the citizens of Wisconsin will not have the benefit of a public discussion of the facts and the law because the court decided not to allow oral argument. Consequently, I was denied the opportunity to appropriately respond to the campaign of misinformation about how and why the investigation was conducted.”


    Where is he wrong?

  6. John Casper says:

    Richard, “the other side?”

    What’s the problem identifying everyone involved, except Judge Peterson?

  7. Richard Martin says:

    John, I just now saw your comments. I will try to respond in more detail as soon as I can. I do want to clarify one point, my remarks were directed to the outrageous comments of Francis Schmitz. I have a lot of respect for John Chisholm. In all my professional dealings with him he was thoroughly professional and ethical. I don’t know what to make of certain aspects of John Doe II. For Mr. Schmitz to unfavorably compare the tactics of John Doe parties to gangsters and violent criminals was neither professional nor ethical.I’m not privy to any inside information, but my perception, based on some emails that were released, is that he was a pawn of the GAB. A junior GAB staffer didn’t hesitate to sternly rebuke Mr. Schmitz for public comments he made that strayed from the GAB narrative.

  8. Bruce Thompson says:

    I don’t have any idea what sort of appeals court judge Peterson was, but his decision in this case seems awfully slap dash. He starts by saying that getting a decision out quickly is more important than detailed reasoning. Implies that whatever he decides isn’t all that important because “any reviewing court owes no deference to my rationale.” (True in theory but notice how every defender of the SC decision points to the Peterson decision for backup.) Then he suggests that any wishing more detail should consult O’Keefe’s brief.

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