A Federal Court Looks at Wisconsin’s Political War

Want-to-be President-of-the-United-States Scott Walker, currently the Republican governor of Wisconsin, has given his state ongoing political conflict the likes of which few long-time Wisconsinites can recall. On Walker’s side is a small array of radical Republicans both from within the state and from without: Wisconsin Club for Growth, Koch’s Americans for Prosperity, Rove’s American Crossroads, Republican Party of Wisconsin, Republican Governors Association, Friends of Scott Walker—to name a few. On the other side of this conservative coalition will be found most everyone else in Wisconsin who wants to return to political sanity in the Badger State.

It will be recalled that President Obama carried Wisconsin 52.8 to 46.1 percent in the 2012 presidential election. Yet the more aggressive/activist conservative GOP has used every ploy in the book to successfully take control of Wisconsin’s state government, with Scott Walker leading the way. The Walker administration, in turn, has effectively imposed a solid conservative Republican agenda on the state. The actions of a small minority have caused the majority to examine what the minority in doing, and how they are doing it.

Activity in Wisconsin is important and instructive for two reasons: First, the state is a microcosm for the nation of a situation where radical right Republicans control government over an otherwise centrist-to-progressive population. This minority has been governing for their narrow ideological interests, without regard to the interests of anyone else. Secondly, Scott Walker is one of a few contemporary politicians who is strikingly (if not scarily) Nixonian. (I have looked at Walker before: here and here.)

It is not surprising that the internecine politics of Wisconsin conservatives have caused others in the state to look more closely at what these folks are doing. Conservatives, however, believe these inquiries are a secret political war—an unconstitutional infringement of their First Amendment rights—which they want the federal judiciary to halt. More specifically, Wisconsin conservatives seek to halt the state’s inquiry into potential abuses or misuses of the state’s campaign finance laws. Conservatives have had some success, so far, in persuading at least one federal judge that they have a valid complaint.

The “John Doe” Investigations Battle

In the baggage that Scott Walker carried into the Wisconsin governor’s mansion was a secret John Doe investigation from his days as the Milwaukee county executive. Such investigations are usually secret. While Walker was never criminally charged because of this investigation, others were.

These John Doe investigations are unique to Wisconsin. Wisconsin criminal defense attorney Marcus Berghahn reports this investigative tool has existed since pre-statehood days, and today it is part and parcel of the Wisconsin criminal justice system. It is like a grand jury proceeding without the jurors, for Joe Doe investigations are overseen by state judges in proceedings set forth in the Wisconsin Criminal Code.

Scott Walker’s John Doe investigation was discovered only when he reported creating a legal defense fund to deal with it, which, in turn, sparked news coverage of the activities. Soon thereafter conservatives were claiming they were being attacked in a secret war by Wisconsin “liberals”—by which conservatives actually meant moderates, centrists, and progressives—who were exploiting the state’s John Doe investigative process against them.

Wisconsin conservatives soon began leaking the existence of these investigations to the Wall Street Journal and other conservative media, which have reported about them on a continuing basis. The Wall Street Journal’s editorial page has been particularly outraged by Wisconsin’s interest in quietly determining whether conservatives are playing by the rules. Most recently, the Journal addressed the John Doe investigation in February, and then again this month: Wisconsin Punch Back (02.10.14), Documents Released in Probe of Scott Walker’s Former Aide (02.19.14), and most recently, Wisconsin Civil-Rights March (04.11.14).

This most recent Wall Street Journal editorial got my attention. A leading target of the latest iteration of the John Doe investigations related to Scott Walker is trying to kill the investigation. Wisconsin Club for Growth Director Eric O’Keefe filed a federal lawsuit against the investigator, prosecutors, and judge handling the case to halt their inquiry. These Wisconsin officials have responded by trying, unsuccessfully, to get the federal lawsuit dismissed. So what are we to make of this latest battle with Wisconsin conservatives?

A Federal Court Has Entered the John Doe Investigations Fray

The Wall Street Journal editorial proclaimed: “Score another one for free political speech,” when “Federal District Judge Rudolph Randa soundly rejected a motion to dismiss a federal civil-rights lawsuit against Wisconsin prosecutors who are investigating the political activities of conservative groups (but not liberals).” The editorial noted: “The John Doe probe has been a one-sided investigation conducted against political opponents to chill their ability to influence elections, and now the prosecutors will have to defend themselves in open court.” (Incidentally, the Journal has absolutely no evidence Wisconsin has ignored liberals.)

The Journal, along with a number of conservative blogs, have claimed from the outset that all of the John Doe investigations relating to Scott Walker have been little more than partisan witch hunts against conservatives, notwithstanding the fact they have produced evidence of misconduct in the Walker camp. While it is true there have been more complaints about alleged abuses by John Doe investigations than there have been explanations of what these investigations have uncovered, this is for a very good reason: The work of the John Doe investigations has been secret and sealed to protect the innocent.

Given their secrecy it is not surprising very little has been said about what the John Doe investigations have actually done or may be doing. Accordingly, Marquette Law School Professor Edward Fallone has cautiously speculated that the current John Doe investigation may now be looking at obstruction of justice in connection with its prior Walker-related inquires. But, in fact, no one knows, and the O’Keefe lawsuit sheds very little additional light.

Too Soon to Make a Judgment on the Wisconsin Joe Doe Inquiry

Notwithstanding the Journal’s delight with Judge Randa’s ruling, that decision was very limited. Surviving a motion to dismiss is no great accomplishment for any plaintiff in any lawsuit, not to mention an action like this filed under 42 U.S.C. § 1983, which is an extremely broad federal statute.

O’Keefe’s complaint is loaded with sweeping conclusory statements about the accomplishments of Scott Walker’s administration, and how in the wake of Citizens United, the defendants sought to undertake a Joe Doe investigation to stymie their efforts to further conservative causes. However, all the key factual statements about what, in fact, specifically happened have been redacted in the complaint. Indeed, all the key facts in this case remain secret and sealed. So all the sealed affidavits and declarations filed to support O’Keefe’s complaint tell us absolutely nothing at this stage. And Judge Randa is not the ultimate fact-finder; rather that will be the task of a jury, if this case survives that long.

As Judge Randa’s decision of April 8, 2014, notes, and most all attorneys appreciate, O’Keefe did not have much to do to survive the motion to dismiss. He merely had to file a complaint with factual allegations, and the Judge wrote, “sufficient to state a claim that is plausible on its face, not merely speculative.” The Judge further noted that for purposes of this motion, he had to accept the complaint’s “allegations as true, drawing all reasonable inferences in favor of the plaintiffs.” A motion to dismiss merely tests whether, if all or even some of the facts could be proven as true, as a matter of law the case raises real legal issues for resolution, rather than being a waste of everyone’s time.

There was a very low threshold for this action: “To state a claim for selective prosecution or retaliation, a plaintiff must only allege facts to show the exercise of a constitutional right, state action likely to deter that exercise, and that the protected exercise was at least a ‘motivating factor’ in state action.” O’Keefe claims a violation of his First Amendment rights, and that the state of Wisconsin has violated those rights with its John Doe investigation. Accordingly, O’Keefe seeks preliminary and permanent injunctions to halt the John Doe investigation, and compensatory damages for infringement of his constitutional rights.

But this case has just started. While Judge Randa’s ruling could raise some interesting issues regarding discovery in Wisconsin’s secret John Doe proceedings, that may never happen. The defendants who are conducting the John Doe investigation have filed a notice that they plan to appeal O’Keefe’s action. The U.S. Court of Appeals for the Seventh Circuit may view this case much differently than Judge Randa did.