Data Wonk

The Further Adventures of John Doe

U.S. Supreme Court signals it might take appeal of decision shutting down John Doe probe.

By - Jul 22nd, 2016 12:54 pm
Wisconsin Supreme Court justices David Prosser and Michael Gableman.

Wisconsin Supreme Court justices David Prosser and Michael Gableman.

Just as there were two John Doe investigations of events related to Scott Walker administrations, there are two appeals of court decisions related to those investigations. This is a status report on both.

The first investigation, commonly called Doe I, centered on the Walker Milwaukee County Executive office. It was triggered by a theft of money from a veterans’ organization. An investigation by the Milwaukee District Attorney’s office led to the convictions of six people for a variety of crimes.

Cindy Archer was investigated in Doe I but not charged. She served in the Walker county executive office. Archer sued several prosecutors and investigators from the Milwaukee District Attorney’s office, including DA John Chisholm, alleging violation of her civil rights.

In late May of this year, federal Judge Lynn Adelman dismissed Archer’s lawsuit. Archer promised to appeal Adelman’s decision.

Thus far, Archer’s attorneys have not submitted a brief laying out the grounds for an appeal, so it is unclear what form the appeal will take — or if will actually be filed. Archer’s original complaint before Judge Adelman alleged a number of actions during the search of Archer’s house that, if true, constituted clear violations of her civil rights. Unfortunately for Archer’s case, evidence from the search, especially an audio tape, contradicted her allegations and they were dropped from her revised complaint.

Absent the discarded allegations, Archer’s claims consisted largely of the charge that the investigation was retaliation for Archer’s support for Act 10, the legislation aimed at undercutting public employee unions. While evidence of a political motive was largely circumstantial, the judge concluded that, even if it were true, the defendants would be entitled to immunity in their role as public servants.

One unusual issue presented by this case is how to deal with the inherent conflict between state and federal courts caused by the Wisconsin Supreme Court’s order to destroy evidence used in the John Doe II investigation of Walker’s gubernatorial campaign. It will be interesting to see what the 7th Circuit Court of Appeals thinks of Judge Adelman’s attempt to solve this conflict by suggesting that copies of the evidence could be stored at the federal courthouse.

Doe II arose because in the course of Doe I, investigators came across evidence that the Walker gubernatorial campaign was coordinating with various outside, supposedly independent, groups. Under then-existing Wisconsin law, and current federal law, such coordinated expenditures should be treated as contributions to the campaign, to be reported as contributions and subject to the contribution limits. But they were not handled that way by these “independent” conservative groups.

A four-to-two majority of the Wisconsin Supreme Court ruled the Wisconsin law unconstitutional and declared that candidates and outside groups were free to coordinate so long as they did not use the magic words to expressly urge voters to act, such as “vote for Jones” or “defeat Smith.” Three district attorneys—Chisholm, Iowa County’s Larry Nelson, and Dane County’s Ismael Ozanne—appealed the state Supreme Court’s decision to the U.S. Supreme Court using what is called a Petition for a Writ of Certiori. This is the only way to appeal a state supreme court decision to the U.S. Supreme Court.

The Court has scheduled the petition to be considered at its conference on September 26, the first after its summer break, where it will decide whether to accept the appeal of the Wisconsin Supreme Court decision shutting down the Doe II investigation. This schedule seems to be standard procedure for writs that arrive before the start of the new session and likely says little about the ultimate decision. However, there are other indicators of both interest from the Court and concern by the opponents of the investigation.

The parties challenging the investigation have not been publicly identified, listed only as Unnamed Movant No. 1 through 8. Two are also listed as Unnamed Petitioners. Indications are that they include Walker and his campaign committee, several Republican consultants, and several outside groups. In the appeal, only two of the eight share the same attorney.

There is, however, evidence that they coordinated their legal strategy. The Supreme Court, in accepting the writ, asked for responses by June 22. On June 21 all eight Unnamed Movants waived their right to respond. On the surface, this seems like a very strange decision. Why would they forego the chance to respond to the arguments made in the DA’s petition? My guess is  they feared that responding would call attention to the writ and raise its profile.

If so, the low-profile strategy doesn’t seem to be working. Here is an entry dated July 14 on the Supreme Court’s website, which notes “Response Requested (Due August 15, 2016)”

In his Election Law blog, the law professor Rick Hasen comments that this entry “means that someone at the Court thought enough of the district attorneys’ cert petition to ask for those opposing cert. to file a response. It is no guarantee of a cert grant, but makes it somewhat more likely.”

The next day (July 15) the Court’s website had an entry noting that the Unnamed Movant Nos. 1-8 (including the Walker campaign and conservative groups who supported his election) oppose the motions by such groups as the Center for Media and Democracy, the Brennan Center for Justice and Common Cause “to file a brief as amicus curiae” brief supporting the appeal of the Doe decision. Hasen’s interpretation is that this means “some of the unnamed respondents don’t want to allow those groups to file an amicus brief supporting cert. That’s unusual, and to me a sign of weakness.”

The Brennan Center amicus makes two arguments. The first is that the Wisconsin Supreme Court’s decision directly contravenes the U.S. Supreme Court’s “holdings that the government may treat a coordinated expenditure as a contribution regardless of whether the resulting communication contains express advocacy or its functional equivalent.” In addition, it “eviscerates contribution limits and disclosure protections.”

The second argument revolves around the amount of aid the groups gave to the election of least two of the Wisconsin justices (Michael Gableman and David Prosser) who participated in the Wisconsin Supreme Court decision. In particular, it calls attention to the possibility that these justices could have themselves benefited from coordination and thus were protecting themselves personally from possible prosecution. The amicus concludes with the following paragraph:

It is bad enough that the public might reasonably interpret the Wisconsin Supreme Court’s decision as a “get out of jail” card repaying a debt of gratitude to litigants who had a disproportionate influence putting some of the justices on the bench. It is even worse that the public might reasonably think those justices also dealt themselves and their campaign committees the same card.

Stay tuned. Will the conservative U.S. Justices, having repeatedly referred to the lack of coordination as a reason that other restrictions on campaign spending can be safely abandoned, feel a particular responsibility to protect that principle? Or will this remarkably important case combining election financing and state Supreme Court ethics be drowned out by the noise of the presidential election?

16 thoughts on “Data Wonk: The Further Adventures of John Doe”

  1. Virginia Small says:

    Bruce, thanks for this clear update on all the John Doe issues, including the latest legal wrangling and potential review of it by the U.S. Supreme Court. It’s just one more major aspect of Wisconsin recent legislation getting national scrutiny.

  2. Jake formerly of the LP says:

    Good summary Bruce. Thanks for staying on this, and mentioning the made-up expansion of Citizens United by the “WMC 4” in Wisconsin. This is exactly why SCOTUS has to take this case, to clarify things.

  3. podman says:

    Did Chisholm know that Justice Bradley would recuse when he asked for Prosser and Gableman to ?

  4. daniel golden says:

    Good update Bruce. I think this whole case puts Justice Kennedy in a tough spot. He was the Justice who wrote that unlimited donations to 501(c)3 and (c)4 PACs were being allowed by the court because these tax free foundations could not legally coordinate with political candidates or political campaign committees. Walker blew the doors off this restriction and blatantly had the same coordinator for his campaign and his PAC’s. An underlying issue that is largely unaddressed in comments on this matter is the difference between PAC’s which are tax exempt organizations, and political campaigns, which are not. If the Supreme Court does not address this blatant disregard of all previous Federal Appellate decisions by Walker and his corrupt posse, which decisions all said this activity was illegal, the IRS would take quite a hit, since a candidate would have to be nuts to not use 501 organizations for most spending.

  5. Kent Mueller says:

    An 8 member court may complicate whether this goes forward or not, but in one case it offers opportunities to re-address Citizen’s United (widely viewed as one of the worst modern day decisions) and back up Caperton v Massey. In my meager legal knowledge it seems two points significantly stand out; that Gableman and Prosser went forward AFTER Caperton v Massey, and that the Wisconsin Supremes made the co-ordination legal after the fact, although it seems to have clearly violated state law at the time of alleged offense. Adding to the drama are the flaws in Archer’s case as originally filed and the (insane to me) order to destroy evidence in a case still subject to appeal.

  6. Bill Sweeney says:

    Bruce Thompson, you are doing a great public service by continuing to monitor the progress of this appeal which is so important to the governance of our state and the nation as well. Thank you, we really appreciate it.

  7. Virginia Small says:

    The blatant partisanship and flimsy credentials of Daniel Kelly as the next Supreme Court justice merely aggravates concerns about what many call the “best supreme court money can buy” (and a governor can appoint–in order to protect himself and his party’s interests).

    Now we know where grads of Pat Roberts U. Law School end up.

  8. Virginia Small says:

    Make that Pat Robertson Regent University for Kelly’s alma mater.

  9. Vincent Hanna says:

    This guy went to Regent University? Reminds me of this.
    I was also wondering why he applied in secret? Did he anticipate that he’d be controversial? Why do that? I mean everyone expects the governor to appoint someone conservative.

  10. Mary Elizabeth VonDras says:

    Sadly, the John Doe cases don’t really zero in on the most egregious crimes against the state, namely the intentional destruction of state infrastructure, notably programs serving : public education, healthcare and transportation. Criminal negligence, or simply outright theft should not be that difficult to prosecute, given the vast evidence of wrongdoing. For a reminder, see:

  11. M says:

    From the article cited in #9: “Still, Brauch said, the recent criticism prompted the school to overhaul its curriculum and tighten admissions standards.

    “Seven years ago, 60 percent of the class of 1999 — Goodling’s class — failed the bar exam on the first attempt. (Goodling’s performance was not available, though she is admitted to the bar in Virginia.) The dismal numbers of the law school triggered by Goodling’s involvement in the US attorney firings has missed the mark in one respect: the quality of the lawyers now being turned out by the school, he argued, is far better than its image.”

    The good news for Regent University is law school admissions standards and curriculum have improved. The bad news for Daniel Kelly–and for Wisconsin–is that he attended regent over 20 years ago during the “dismal” era highlighted in this report.

  12. Bruce Thompson says:

    In response to podman’s question (#3), according to the WI Supreme Court web site, Bradley did not participate from the beginning. The first mention is 4/9/14, in which the court accepted the appeal. It appears that Special Prosecutor Francis Schmitz made his motion for recusal almost a year later (2/23/15).

    Incidentally, for those who read Dan Bice’s column this morning, the conservative activist judge who plays the central role, James Troupis, appears in the record as the attorney for two conservative amicus briefs, one for Republican former members of the Federal Election Commission and the other for something called the the Ethics and Public Policy Center.

  13. redwriter says:

    The Doe II case may not be drowned out by the presidential campaign- it may become a part of it. Donald Trump was one of the donors going above campaign limits for Walker.

  14. Bruce Thompson says:

    Do you have a source that?

  15. John says:

    Bruce–keep up the good work.

    With all of the (dark) money flowing throughout this entire JDII process, I can’t help but wonder if the constant push (esp. the Archer suit) is not part of what is called “litigation finance” or “litigation investment.”

    See one example here:

    And a search of those terms on the intertubes might help shed some light.


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