Wisconsin Supreme Court ends John Doe probe

Wisconsin Supreme Court ends John Doe probe into Scott Walker's campaign

 

By Patrick Marley of the Journal Sentinel

July 16, 2015 8:03 a.m.

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Madison— Dealing Gov. Scott Walker a victory just as his presidential camapaign gets underway, the Wisconsin Supreme Court ruled Thursday the governor's campaign and conservative groups had not violated campaign finance laws in recall elections in 2011 and 2012.

The ruling means the likely end of the investigation, which has been stalled for 18 months after a lower court judge determined no laws were violated even if Walker's campaign and the groups had worked together as prosecutors believe.

It could also prompt the escalation of other litigation over the probe.

The ruling dealt with three pieces of litigation, and the justices split 4-2 on the campaign finance laws that were at the center of the probe.

Writing for the majority, Justice Michael Gableman found a key section of Wisconsin's campaign finance law is "unconstitutionally overbroad and vague" and that the activities prosecutors had investigated were not illegal.

"To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law," Gableman wrote. "Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge (Gregory) Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All unnamed movants are relieved of any duty to cooperate further with the investigation."

In dissent, Justice Shirley Abrahamson wrote that the ruling had loosened campaign finance rules and that "the majority opinion's theme is 'Anything Goes.'"

"The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment," she wrote. "In doing so, the majority opinion delivers a significant blow to Wisconsin's campaign finance law and to its paramount objectives of 'stimulating vigorous campaigns on a fair and equal basis' and providing for 'a better informed electorate.'"

Francis Schmitz, the special prosecutor leading the investigation, has written in court papers that one or more of the justices should not have participated in the case because the groups being investigated had spent millions of dollars to help elect those justices. None of those justices agreed to step aside.

Schmitz could ask the U.S. Supreme Court to review their decision to stay on the cases, but the nation's high court steps into such matters rarely. He could also ask the nation's high court to review how the state court interpreted the First Amendment right to free speech.

The investigation and the litigation have been shrouded in secrecy. Large sections of court filings have been blacked out — which is highly unusual — because the underlying investigation was conducted under the state's John Doe law, which allows prosecutors to operate in secret.

John Doe probes allow prosectuors to force people to produce documents and give testimony and bar them from speaking about the matter with anyone but their attorneys. They are conducted before a judge.

Despite the attempts to keep the information about the investigation private, key details have emerged in news reports and a wave of litigation challenging the probe.

Milwaukee County District Attorney John Chisholm in August 2012 opened the investigation into Walker's campaign. He was assisted by Schmitz, four district attorneys from both parties and the Government Accountability Board, which oversees the state's campaign finance laws. Chisholm is a Democrat and Schmitz is a Republican.

Walker and other Republicans have insisted the probe is a political witch hunt — claims prosecutors deny.

The investigation focused on whether Walker's campaign illegally coordinated its activities with the Wisconsin Club for Growth and other conservative groups.

Prosecutors turned up evidence that Walker helped raise funds for the Wisconsin Club for Growth and that his campaign worked with the group on strategy. R.J. Johnson simultaneously served as an adviser to the club and Walker's campaign.

Those groups and Walker say they did nothing wrong, in part because the groups run issue ads that don't explicitly tell people how to vote. The state's high court on Thursday came firmly down on their side.

Issue groups have broader free speech rights than those that run ads expressly urging people to vote for or against candidates. To the average voter, the two types of ads appear similar because they praise or denigrate candidates, but only one type uses phrases such as "vote for" or "vote against."

The reserve judge overseeing the case agreed with the groups in January 2014 that the activites in question were not illegal. He quashed subpoenas that had been issued to the groups and his ruling effectively halted the investigation.

Court records have shown those fighting the subpoenas included Walker's campaign; the state's largest business group, Wisconsin Manufacturers & Commerce; and WMC's political arm.

Schmitz asked an appeals court to overturn that ruling. Meanwhile, the Wisconsin Club for Growth, Johnson and another club adviser, Deb Jordahl, filed lawsuits challenging the probe. Johnson and Jordahl also filed suit directly with the high court challenging aspects of the investigation.

The suits involving the club, Johnson and Jordahl were filed anonymously, but the Journal Sentinel reportedon their involvement in the cases last year.

The appeals court ruled in favor of prosecutors in one challeng that dealt with technical issues about how the probe was conducted. The state Supreme Court agreed last year to take that case, as well as the other two without input from the appeals court.

Joining Gableman in the majority were the court's three other conservatives — Chief Justice Patience Roggensack and Justices David Prosser and Annette Ziegler.

In dissent on the campaign finance issue were Abrahamson, a liberal, and Justice N. Patrick Crooks, a swing vote. Liberal Justice Ann Walsh Bradley did not particiapte in the case because her son practices law with one of the attorneys involved in the case.

Justices asked to step aside

In February, the special prosecutor asked that one or more justices drop out of the cases, presumably because they have benefitted from spending by the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce.

The Wisconsin Club for Growth is estimated to have spent $400,000 for Ziegler in 2007; $507,000 for Gableman in 2008; $520,000 for Prosser in 2011; and $350,000 for Roggensack in 2013.

WMC spent an estimated $2.2 million for Ziegler; $1.8 million for Gableman; $1.1 million for Prosser; and $500,000 for Roggensack.

In addition, Citizens for a Strong America — a group funded entirely by the Wisconsin Club for Growth — spent an estimated $985,000 to help Prosser. The spending estimates come from the Wisconsin Democracy Campaign, which tracks political spending.

The justices did not give a reason for why they don't view that spending as a conflict, but court rules say political spending on its own is not enough to force a justice off a case.

In the 2011 race, Prosser defeated JoAnne Kloppenburg. She later was elected an appeals court judge and participated in one of the challenges to the probe even though she had money spent against her by groups involved in the probe. Kloppenburg is again seeking a seat on the high court — this time for the seat Crooks is expected to vacate when his term ends next year.

Abrahamson has benefitted from spending by unions and liberal groups, but those entities were not involved in the investigation or the litigation over it.

Prosceutors could ask the U.S. Supreme Court to review Thursday's decision because justices did not step down from the case or on the First Amendment issues the Wisconsin high court raised.

Other lawsuits filed

The Wisconsin Club for Growth and its director, Eric O'Keefe, have challenged the probe on other legal fronts. A federal lawsuit they brought alleging their civil rights were violated was thrown out last year and a separate lawsuit over the probe is pending in Waukesha County Circuit Court.

Putting up a defense against those lawsuits has cost taxpayers more than $1 million. Prosecutors and investigators have never provided an accounting of how much their investigation has cost, frustrating critics of the probe.

The disclosures stemming from the litigation have been damaging to both prosecutors and those being investigated. One set of court documents showed Walker had worked closely with the Wisconsin Club for Growth, and that the group had roped in $700,000 from Gogebic Taconite, the mining company that helped write a 2013 law that loosened environmental regulations aimed at helping the company establish an iron ore mine in northern Wisconsin. Gogebic abandoned the project this year.

Even before the high court ruled, it was clear changes are likely in store. Republicans who control the Legislature have put on their agenda plans to rewrite campaign finance laws, overhaul how John Doe probes are conducted and restructure the Government Accountability Board. They have been waiting for the court decisions before advancing those bills and could take them up this fall.

Supporters of the accountability board say it should be preserved and have called it a model for the nation because it is non-partisan and consists of six retired judges. Opponents have alleged its staff is biased against Republicans.

Some GOP lawmakers last week called for the board's director, Kevin Kennedy, to step down after learning he has had a professional association for years with Lois Lerner, the former Internal Revenue Service official involved in targeting tea party groups for review of their tax exempt status. Kennedy said there was nothing to suggest he or his agency had done anything inappropriate.

About Patrick Marley

Patrick Marley covers state government and state politics. He is the author, with Journal Sentinel reporter Jason Stein, of "More Than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin.”