Appeals court stalls judge’s order halting John Doe probe

Posted: May 08, 2014 12:02 AM
Appeals court stalls judge’s order halting John Doe probe
Part 53 of 53 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The roller coaster ride that is Wisconsin’s politically charged John Doe investigation – and all of the litigation it has inspired – took another wild turn Wednesday evening.

One day after federal Judge Rudolph Randa shut down the nearly three-year probe and ordered prosecutors to “permanently destroy all copies of information and other materials obtained through the investigation,” the 7th Circuit U.S. Court of Appeals stayed the judge’s preliminary injunction.


STAYED: The 7th Circuit U.S. Court of Appeals on Wednesday stayed a federal court judge’s decision to shut down the John Doe investigation into conservatives. But it might just be a matter of paperwork before the judge’s preliminary junction is back on.

The three-member panel also stopped Randa’s “return-and-destroy” portions of the injunction order.

But while liberals and mainstream publications pointed to the “short-lived victory” for conservative targets of the secret John Doe probe, the appeals court stay may just be a speed bump on conservative activist Eric O’Keefe’s legal road to shut down a dragnet that he has dubbed a politically motivated “witch hunt.”

In February, O’Keefe and his Wisconsin Club for Growth filed a civil rights lawsuit against Milwaukee County District John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and shadowy contracted investigator Dean Nickel.

O’Keefe and the club contend the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights.

Randa, taking aim at the prosecutors’ theory that conservative organizations like Wisconsin Club for Growth illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections, ordered the prosecutors-turned-defendants to “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.

The plaintiffs and “others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation,” wrote Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee.

“Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court,” he ordered in the 26-page ruling.

But the appeals court thinks Randa jumped the gun in issuing his decision before he ruled on the status of the prosecutors’ appeal.

In its ruling on the defendants’ emergency appeal, the court said Randa erred in failing to certify that an appeal filed last month by the prosecutors with the 7th Circuit was frivolous.

The judges said Randa did not follow legal precedent, despite the notice of appeal filed by several of the prosecutors.

“This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question …” the 7th Circuit wrote in its order.

If Randa concludes the appeal is frivolous, “then the proceedings in the district court may resume, though appellants would be entitled to renew in this court their request for a stay.”

Should the judge decide the appeal isn’t frivolous, then the appeals court’s stay will hold until the court has resolved the appeal on its merits. That could take a while. The court filing schedule extends out until the end of July, closing in on Wisconsin’s furious peak campaign season.

O’Keefe’s attorney, David B. Rivkin Jr., declined to comment Wednesday on the appeals court ruling.

One source close to the John investigation, however, told Wisconsin Reporter that the odds are good Randa will return soon certifying the prosecutors’ appeal as frivolous.

While it isn’t clear why Randa didn’t issue such a declaration before, his ruling this week hints at the judge’s frustration with the prosecutors’ claims.

Randa took issue with the prosecutors’ position that the federal court had no business involving itself in a state investigation, and that the prosecution is immune from the civil rights lawsuit. The judge said it doesn’t appear the John Doe targets, who engaged in issue advocacy, violated campaign finance law, a position seemingly shared by John Doe presiding Judge Gregory Peterson.

“While the defendants deny that their investigation is motivated by animus towards the plaintiffs’ conservative viewpoints, it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state‘s regulatory reach,” Randa wrote.

“The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect.”

In making his appeal, Nickel took issue with what he called Randa’s “broad and wide-ranging injunction, requiring, among other things, that defendants destroy documents used in the underlying John Doe proceeding (documents that defendants would need to defend the merits of the present action).”

The appeals court agreed. Whether or not Randa determines that the prosecutors’ appeal is frivolous, “the portions of the injunction that require defendants to return or destroy documents will remain stayed as long as proceedings continue in this court.” Destroying the documents could “moot some or all of the issues on appeal.”

The validity of the John Doe investigation is before the state Supreme Court, too.

Balancing interests, the court ordered prosecutors not to “disclose or use the information they have gathered, and that is within the scope of the injunction, pending further order of this court.”

Contact M.D. Kittle at

the 7th Circuit U.S. Court of Appeals