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Wednesday, May 22, 2024 | Back issues
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Wis. High Court Tries to Dull Thorn in Gov. Walker’s Side

(CN) - Contradictions and infighting abound in a Wisconsin Supreme Court ruling Wednesday against the special prosecutor tasked with a campaign-finance probe of Gov. Scott Walker.

Back in July when the same court last ruled on the case, it promised: "Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation."

Apparently not, as special prosecutor Francis Schmitz, appointed at the request of five district attorneys, has continued working on the task to which he was appointed in 2012.

Wisconsin law allows prosecutors to commence such "John Doe" probes to secretly gather information when a crime is suspected.

When Walker had been a mere Milwaukee County executive running on the Republican ticket for governor, the first investigation resulted in the criminal convictions of four Walker staffers.

The second investigation in 2013, christened John Doe II, raised complaints from targets who say they were ambushed in paramilitary-style raids that seized millions of documents, paper and digital, most of which were personal and unrelated to the allegations, such as retirement account statements and family photos.

In condemning John Doe II as unconstitutional this past July, the state Supreme Court called Schmitz "the instigator of a 'perfect storm' of wrongs that was visited upon the innocent unnamed movants and those who dared to associate with them."

The court was presented with the case again as Schmitz sought reconsideration but flatly denied the motion Wednesday.

Though unsigned, the opinion apparently represents just four voices from the seven-member court. Justices Ann Bradley and Rebecca Bradley both did not participate, with the latter Bradley having replaced the recently deceased Justice N. Patrick Crooks.

Justice Shirley Abrahamson, who served as the court's chief prior to a sudden ouster this April, slammed her colleagues in a scathing, 45-page dissent.

"In response to the motion for reconsideration, the per curiam significantly modifies the July 16, 2015 majority opinion by creative writing devoid of supporting legal authority," Abrahamson wrote.

Abrahamson condemned the ruling as "anything but even-handed."

"The per curiam terminates the special prosecutor's authority to act as special prosecutor from this date forward and leaves the prosecution and state totally unrepresented in future proceedings in the John Doe trilogy," the opinion states. "Yet the per curiam nonetheless assigns the special prosecutor new tasks and new deadlines without providing the special prosecutor (a private practitioner) any compensation or assistance.

"The per curiam appears to derail any meaningful review of the July 16, 2015 majority opinion, to stop any and all further investigation, and to prevent the release of information obtained during the investigation.

Abrahamson blasted her colleagues behind the per curiam, all of them conservatives, for embracing "confusing and conflicting positions, all the while leaving many important issues unresolved."

The lead opinion tersely explains that Schmitz's authority to act as special prosecutor ended in July when Justice David Prosser's concurring opinion, joined by three colleagues, found his appointment invalid.

Though the majority ruling in July focused on quashing Schmitz's subpoenas, Prosser's concurrence still represented the court's majority, the court said today.

"That legal conclusion of four justices set forth in Justice Prosser's concurrence remains regardless of any subsequent actions or inactions by Attorney Schmitz or anyone else," today's unsigned opinion says.

The majority emphasized that a special prosecutor's authority "ends at the point in time when a court makes a legal ruling that the appointment was invalid and orders as a matter of law that the individual's authority is terminated."

Based on this ruling, Schmitz cannot represent the state, if Wisconsin chooses to seek relief from the U.S. Supreme Court.

But the court did impose continuing obligations on Schmitz "in order to rectify the results of the investigation," to return personal property to its owners and to collect all the documents seized in an organized fashion to be kept under seal by the court.

Given that the court did not issue an order in July that Schmitz cease acting as a special prosecutor in this case, however, the court said it would not invalidate all his actions since then.

The ruling comes two weeks after the Wisconsin Assembly passed two bills that dissolve the state's nonpartisan board overseeing campaign finance, and doubling campaign-contribution limits.

Gov. Walker is expected to sign the bills as part of an overhaul of Wisconsin's campaign-finance laws.

Jay Heck of Common Cause Wisconsin said of the vote: "This will be remembered as one of the saddest and darkest days in Wisconsin history, at the end of one of the most horrendous months in our state's 167-year history, when honest, accountable and transparent state government was systematically dismantled in favor of hyper-partisan political advantage, retroactive decriminalization, and revenge."

Justice Abrahamson cited these developments among six intervening events that "make clear that the per curiam is too little, too late."

"The per curiam fails to come to grips with the present circumstances in which the court and parties find themselves," she said. "The court leaves these and other important issues for another day, although they are of immediate significance and ripe for decision, having been fully briefed."

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