The Further Adventures of John Doe
U.S. Supreme Court signals it might take appeal of decision shutting down John Doe probe.
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.
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)”
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?