The Plot Thickens In John Doe
Did State Supreme Court try to sabotage appeal of its Doe ruling to US Supreme Court?
The ruling was made by the Wisconsin Supreme Court in February and got no coverage whatsoever from the Milwaukee Journal Sentinel. Milwaukee County District Attorney John Chisholm and two other prosecutors who are appealing the state court’s decision shutting down the John Doe probe made a simple request: that they be allowed to share the full, unredacted documents from the investigation with three attorneys (Brian A. Sutherland, Kasey J. Curtis, and M. Patrick Yingling) with the Reed Smith law firm, who had agreed to provide free, “pro bono” help to Chisholm and company in preparing the appeal.
And the Wisconsin Supreme Court, in a 4-1 decision, declined to allow this. The ruling is unsigned but among the four justices in the majority are David Prosser and Michael Gableman, who are the subject of Chisholm’s appeal to the US Supreme, which argued because each benefitted from millions in campaign contributions from parties to the John Doe case, they should have recused themselves from the case.
How unusual is it for a court to prevent government attorneys from benefitting from pro-bono help? “I’ve never heard of that. Ever.” So says David Fawcett, an attorney with Reed Smith, who is best known for his success in handling the 2009 Caperton case, the watershed U.S. Supreme Court decision that ruled a justice must recuse from a case when there is a huge financial conflict of interest (in this case a $3 million campaign contribution to a justice). “The issue of money as a corrupting influence in state court elections is just growing and growing,” says Fawcett. And because of the money and high-priced legal help used to defend heavy spending to elect judges, “people need all the resources they can get to fight this corrupting influence.”
Justice Shirley Abrahamson, in her dissent, suggested the ruling saying no to Chisholm reflects “the four justices’ anxiety that allowing the district attorneys to obtain pro bono assistance from appellate counsel will increase the chances of review in the United States Supreme Court of a recusal challenge under Caperton…”
The John Doe secrecy order would have applied to the three pro bono lawyers and also to a printer that Chisholm and the prosecutor asked to be allowed to print documents (something routinely done to facilitate Supreme Court petitions). The majority, remarkably, also ruled against allowing the printer, adding more headaches for Chisholm’s group.
“It is hard to imagine how a state Supreme Court could throw more roadblocks in front of an attempt to file with the U.S. Supreme Court than this court has,” said former Wisconsin Supreme Court Justice Janine Geske, now a professor at Marquette Law School, in a story by the Center for Media and Democracy’s PR Watch.
The majority decision noted the “District Attorneys have offered no legal authority to support their ability to retain outside counsel to represent them.” Abrahamson’s retort: “Contrary to the four justices’ conclusion, the district attorneys have offered legal authorities to support their position… The real question is what in the statutes, rules, or case law prevents the district attorneys from obtaining pro bono assistance in seeking certiorari in the United States Supreme Court. The answer is none.”
She went on to cite past cases on the state and federal level where private attorneys have been used to help public attorneys. One example that comes to mind is the work of attorney Kenneth Starr, who was paid by the conservative Bradley Foundation to give pro bono help to the administration of Gov. Tommy Thompson to defend the school choice program in the courts.
“The prosecutors are not functioning as traditional prosecutors in a criminal case,” Geske told PR Watch. “We don’t even have a criminal defendant in this litigation.”
And the private pro bono attorneys “are not involved in the trial or prosecution of a criminal case,” Abrahamson wrote.
Geske argues the majority is denying Chisholm and the prosecutors their right to counsel. “I frankly do not know how to explain the legal rationale of the majority opinion,” she said.
What makes the decision all the more questionable is that all four members of the majority have a personal stake in the appeal of their decision. As I’ve previously reported, an incredible 76 percent of Prosser’s campaign support came from parties to the John Doe case. For Gableman, the corresponding figure was 69 percent, for Annette Ziegler 59 percent, for Pat Roggensack 48 percent.
Yet all four declined to recuse from the case. As Bruce Thompson’s last Data Wonk column reported, Prosser benefitted from $3.7 million, Ziegler from more than $2.5 million and Gableman from more than $2.2 million from these groups. All three “reached levels that triggered the US Supreme Court’s disapproval in the Caperton decision,” he noted.
But Thompson suggested more damning reasons why the court has a conflict: that Prosser and Gableman were personally implicated in the John Doe probe. His review of the appeal the prosecutors managed to put together to the U.S. Supreme Court shows they do not go after Ziegler on the recusal issue, but only after Prosser and Gableman. Why? “One comes away with the impression that many of the people alleged to have coordinated with the Walker campaign also played a role in Prosser’s re-election, which came at roughly the same time.”
Indeed, in Prosser’s letter defending his decision not to recuse from the John Doe case, he admits the support he received from groups under investigation by the John Doe was “significant and disproportionate.” In fact, he concedes he couldn’t have won without their help.
But even worse, Prosser makes it clear he was coordinating his own campaign with these “independent” advocacy groups, which was exactly what the John Doe probe was accusing Walker of illegally doing. (Matthew Rothschild of the Wisconsin Democracy Campaign offered a withering look at Prosser’s recusal letter.)
Much of the redacted material in the appeal by Chisholm and the prosecutors appears to deal with the possible campaign coordination between these groups and Prosser and Gableman, Thompson suggests. In a follow-up to Thompson’s story, Urban Milwaukee contacted the Wisconsin Supreme Court asking for a comment from Prosser and Gableman. Court Information Officer Tom Sheehan’s reply: “The code of judicial conduct would restrict a judge or justice from commenting while a case is pending or impending in any court.”
Gableman has yet to offer any explanation of why he didn’t recuse from the John Doe ruling, and neither Gableman nor Prosser have explained why they didn’t recuse from the February order barring the use of pro bono letters. Since the order is unsigned, it’s entirely possible one or both of them wrote it.