Wis. High Court Kills Final ‘John Doe’ Investigation of Walker Aides

     MADISON, Wis. (CN) – The conservative Wisconsin Supreme Court on Thursday dismissed the final campaign-finance investigation hanging over Gov. Scott Walker.
     “Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation,” Justice Michael Gableman wrote for the five-member majority.
     Though Wisconsin law allows prosecutors to commence such probes to secretly gather information when a crime is suspected, the state Supreme Court found today that the probe in question, John Doe II, stemmed from an unconstitutionally overbroad law governing campaign finances.     
     The decision was good news for Walker, who on Monday officially announced he is running for president next year.
     The investigation began in 2012 as the result of evidence obtained in the first investigation, which resulted in the criminal convictions of four Walker staffers during the Republican politician’s time as Milwaukee County executive while running for governor the first time.
     Milwaukee County District Attorney John Chisholm, a Democrat who faces a civil rights lawsuit for searches related to John Doe investigations, had persuaded a judge to authorize the second secret probe, and district attorneys in Iowa, Dodge, Columbia and Dane Counties soon joined him.
     The attorneys alleged illegal “hand-in-glove” coordination between supposedly independent advocacy groups and Walker’s campaign staff, a violation of the state’s “labyrinthian” campaign finance laws, as quoted in the opinion.
     Judge Barbara Kluka, the first jurist to preside over the case, appointed Francis Schmitz as the John Doe II special investigator at the request of the district attorneys, all of whom were Democrats.
     Kluka later disqualified herself for an unspecified “conflict” – but not before she issued subpoenas and search warrants that have since drawn scrutiny and become the subject of lawsuits .
     “The search warrants were executed at approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes,” Gableman wrote, referring to two “Unnamed Movants” in the investigation.
     “The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing,” he continued. “Millions of documents, both in digital and paper copy, were subpoenaed and/or seized.
     “As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.”
     Kluka’s successor, Judge Gregory Peterson, quashed subpoenas and returned property at the request of the unnamed movants.
     Though Schmitz had that judge’s orders stayed, the state was ordered not to examine any of the seized property.
     While the appeals court fielded challenges to the administration of the case, the parties filed opposing motions on enforcing the subpoenas and search warrants. These disputes bypassed the appeals court and went straight to the Supreme Court.
     Gableman noted that resolution of the case required an examination of the state’s campaign-finance laws, which regulate speech for “political purposes.”
     “By its very nature, this task involves fundamental questions regarding the scope of the government’s ability to regulate political speech,” Gableman wrote. “To resolve this case, we must engage in statutory interpretation of the phrase ‘political purposes,’ which includes all activities ‘done for the purpose of influencing [an] election.'”
     The majority concluded that the government’s interest in stamping out corruption includes the right to regulate political speech, but that the “issue ads” at the core of the investigation did not specifically endorse or condemn a political candidate or party.
     Schmitz had alleged that the issue advocacy was “illegally coordinated,” claiming that supposedly independent groups became de-facto members of Walker’s gubernatorial campaign and thus contributed directly.
     State law offers “no support” for this theory, however, Gableman said.
     “However, by limiting the definition of ‘political purposes’ to express advocacy and its functional equivalent, we ensure that all issue advocacy will remain unencumbered,” the 87-page lead opinion states.
     Despite Schmitz’s assertions, the court found that the issue-advocacy groups did not, by definition, contribute to influence an election.
     “In essence, under his theory, every candidate, in every campaign in which an issue advocacy group participates, would get their own John Doe proceeding and their own special prosecutor to determine the extent of any coordination,” Gableman wrote. “This is not, and cannot, be the law in a democracy.”
     The court further concluded that Peterson did not overstep his considerable authority in quashing the subpoenas, and that petitions for supervisory writs disqualifying the judge and prosecutor are dismissed.
     Gableman concluded with several “simple, but important, points,” including a restatement of the opinion and a scathing condemnation of Schmitz.
     “The special prosecutor was the instigator of a ‘perfect storm’ of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them,” he wrote. “It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.”
     Chief Justice Patience Drake Roggensack and Justices David Prosser and Annette Kingsland Ziegler concurred in full. Justices Patrick Crooks and Shirley Abrahamson, the recently ousted chief justice, dissented in part.
     Justice Ann Walsh Bradley did not participate in the court’s consideration of the case.
     Abrahamson called the theme of the majority opinion “Anything Goes,” saying that the majority legalized unlimited undisclosed campaign contributions provided they are made as “issue advocacy.”
     “Lest the length, convoluted analysis, and overblown rhetoric of the majority opinion obscure its effect, let me state clearly: The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” the liberal judge wrote.
     Abrahamson also slammed the majority’s declaration that its opinion ends the investigation, saying it “contradicts other aspects of the majority opinion and reveals the majority opinion’s blatant attempt to reach its desired result by whatever means necessary.”
     The court’s authorization of “excessive sealing and redaction” of documents earned criticism from Abrahamson as well.
     Both Crooks and Abrahamson said they would allow the investigation to continue.
     Jay Heck of Common Cause Wisconsin issued a statement condemning the “highly flawed” decision of the majority.
     “No federal court decision has ever permitted the type of candidate-outside group coordination that this completely compromised ruling seems to permit,” Heck said. “Four of the justices of the court were the beneficiaries of dark money spent in their behalf and which was the heart of this case. They should have recused themselves and did not. The decision can and should be appealed.”
     Schmitz had unsuccessfully petitioned for removal of several judges who had received campaign contributions from Walker donors.

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