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  • WisBar News
    December 02, 2015

    State Supreme Court Keeps Doe Probe Closed, Removes Special Prosecutor

    Joe Forward

    Dec. 2, 2015 – The Wisconsin Supreme Court has denied a motion to reconsider its July 2015 decision to end a “John Doe” probe into alleged illegal campaign coordination between Gov. Scott Walker’s recall campaign and outside advocacy groups.

    A majority ruled in July that the so-called “John Doe II” investigation must end because the alleged illegal conduct involved campaign coordination on “issue advocacy,” which refers to speech advocating or opposing political “issues” and is not regulated.

    In a per curiam opinion issued today, the court ruled (4-1) that the July 2015 decision won’t be reconsidered. However, it modified its July ruling, which had ordered the destruction of all documents and data obtained in the case. Instead, the court said all materials must be collected, indexed, and submitted to the court for safekeeping.

    In addition, the court ruled that Francis Schmitz, the special prosecutor appointed in 2012 to oversee the John Doe investigation, is no longer authorized to work the case, including work to prepare a possible petition for review to the U.S. Supreme Court.

    Justice Shirley Abrahamson dissented from the per curiam opinion. Justices Ann Walsh Bradley and recently appointed Justice Rebecca Bradley did not participate.

    Schmitz’s Appointment Invalid

    The court ruled that Schmitz can no longer work on the case because his initial appointment as a special prosecutor was invalid. That is, the appointment did not comply with statutes that governed special prosecutor appointments at the time.

    New laws governing special prosecutor appointments, and John Doe proceedings, have been enacted in recent months, as the court pointed out in its decision.

    However, the court did not invalidate any of Schmitz’s previous work on the case. He is no longer authorized moving forward, the court concluded.

    “We do not hold that because of the invalidity of Attorney Schmitz’s appointment, all of his actions as the special prosecutor since his appointment, including his filing of briefs, motions, memoranda, ect. before the John Doe judge, the court of appeals, and this court, were nullities at the time they were taken,” the per curiam opinion states.

    “Such a ruling would unfairly void actions relied on by the special prosecutor, the lower courts, law enforcement, and the individuals/entities that have been involved with the John Doe investigations and proceedings.”

    Instead, the court ruled, Schmitz’s authority to act as special prosecutor “terminates with the release of this opinion,” except to comply with obligations imposed by it.

    “Our decision to terminate Attorney Schmitz’s authority is not meant to interfere with the ability of the prosecution team to seek [U.S] Supreme Court review,” the opinion notes.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The court noted that one or more of the five district attorneys who participated in the John Doe proceedings, but who were not named as parties in the cases, could seek to intervene in the cases in order to initiate future actions. The court had previously denied a motion to add the district attorneys as named parties.

    “Given the inability of Attorney Schmitz to continue acting as the special prosecutor based on his invalid appointment, such a motion to intervene by one or more of the district attorneys would receive prompt review by this court,” the opinion says.

    Motion for Reconsideration Denied

    Schmitz, still acting with authority, filed a motion to reconsider the court’s July 2015 decision, which ended the John Doe probe. Schmitz said he should have been allowed to pursue the investigation to determine whether campaigns coordinated on “express advocacy,” which involves speech that expressly advocates for the defeat or election of a specific candidate.

    But that argument was forfeited, the court ruled, because evidence uncovered through search warrants and subpoenas was based on a legally incorrect theory of illegal coordination. Thus, the John Doe judge, Gregory Peterson, properly granted motions to return seized property and quash subpoenas, the per curiam opinion explained.

    “[Schmitz’s] response never claimed that the subpoenas and search warrants that were the subjects of the Unnamed Movants’ motions were valid because they were directed at finding evidence of coordination of express advocacy and never provided any examples of evidence of such express advocacy coordination,” the opinion states.

    The court noted that Schmitz attempted to bring the issue of express advocacy into the appellate writ case, but never made the argument to Judge Peterson.

    “By failing to raise the issue and argument in front of the John Doe judge, Attorney Schmitz forfeited his ability to argue that the subpoenas and search warrants at issue were valid because they were actually intended to obtain evidence of coordination of express advocacy,” the per curiam opinion states.

    “[H]ow could Attorney Schmitz show that the John Doe judge had violated a plain legal duty by failing to rely on a theory that Attorney Schmitz never presented to that judge? It simply cannot be done.”

    What About the Records?

    The court noted that the John Doe proceedings and investigations that began in 2012 generated a multitude of documents and electronic files that are not public. In its July 2015 decision, the supreme court majority ordered the special prosecutor to return any property seized and also ordered the destruction of all John Doe documents and materials obtained.

    The supreme court said that all documents and data were obtained based on an invalid theory, and destruction was meant to “divest” the prosecution of this evidence and ensure the prosecution ceased its activities related to the John Doe investigation.

    In the per curiam opinion, however, the majority modified this mandate, noting the case may end up before the U.S. Supreme Court.

    Instead, the majority said destruction “must be completed within 30 days following the completion of proceedings in the U.S. Supreme Court on any petition for certiorari review.” If no petition is filed, the documents must be destroyed within 30 days of the deadline for filing the petition with the U.S. Supreme Court, the per curiam noted.

    The court said Schmitz and the prosecution team must still return property seized during investigations, such as computer hardware. But it can wait until a later date to return copies of data found on those computers.

    However, the per curiam ordered Schmitz and his team to “divest” itself of all John Doe documents, materials, and electronic data, within 30 days, by indexing the information and submitting it to the court to maintain, under seal, pending further order of the court. That was among a list of obligations imposed on Schmitz as former special prosecutor.

    “The prosecution team will continue to possess all of its work product and all of the evidence gathered in the investigation, subject to the previous orders issued by the John Doe judge, during the time that it would be preparing any petition for U.S. Supreme Court review and until the conclusion of proceedings in that Court.”

    Justice Abrahamson Concurs, Dissents

    Justice Abrahamson agreed that the majority’s July 2015 opinion, written by Justice Gableman, was “significantly flawed and must be modified.” But she dissented with the per curiam’s decision to deny Schmitz’s motion for reconsideration.

    “The per curiam significantly modifies the July 16, 2015 majority opinion by creative writing devoid of supporting legal authority,” she wrote. “Furthermore, events subsequent to the motion for reconsideration have overtaken the per curiam.”

    Abrahamson noted that since the July 2015 decision, the John Doe statutes have been revised, and parties have raised the issue of whether new laws apply to this case.

    “I would grant the motion for reconsideration, order oral argument on the issues raised in the motion for reconsideration and the effect of the revised John Doe statutes, and then issue a decision,” Justice Abrahamson wrote.

    She went on to address the substance of the per curiam decision, including Schmitz’s motion for reconsideration, three motions for limited intervention, and motion to remand the matter to Judge Peterson.

    Justice Abrahamson essentially rips the per curiam decision, addressing what she sees as major flaws throughout. She said the per curiam overreached to terminate the special prosecutor’s authority and “erroneously concluded that the investigation into coordinated express advocacy cannot continue.”

    She also questioned whether the per curiam is impeding review by the U.S. Supreme Court by terminating the special prosecutor’s authority, leaving the prosecution and the state unrepresented moving forward.

    “In sum, the per curiam embraces confusing and conflicting positions, all the while leaving many important issues unresolved, including those posed by events subsequent to the motion for reconsideration.”

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