State of Wisconsin ex rel. Two Unnamed Petitioners v. The Honorable Gregory Peterson et al.; State of Wisconsin ex rel. Francis D. Schmitz v. the Honorable Gregory Peterson, & State of Wisconsin ex rel. Three Unnamed Petitioners v. The Honorable Gregory Peterson, et al., 2015 WI 85, issued 7/16/15; case activity: Two Unnamed Petitioners; Schmitz v. Peterson; Three Unnamed Petitioners
Unless you’ve just returned from a trip to a remote corner of the globe that’s beyond the reach of news media, you know by now that the Wisconsin Supreme Court decided the so-called “John Doe” cases. The court’s decision ordered a halt into the investigation of coordinated fundraising and spending between candidate committees and certain independent groups during the 2011-12 recall campaigns. Gargantuan by any standard, the decision goes on for almost 400 pages, with a majority opinion, two concurrences (Prosser and Ziegler), and two dissents/concurrences (Abrahamson and Crooks). It contains almost nothing of relevance to ordinary criminal law practice. However, in the interest of helping orient readers who may want to look more closely at the decision, below the break is a summary of the major issues and how the various opinions address them.
Wisconsin’s statute governing coordination of spending between candidates and issue advocacy groups
The majority opinion declares that § 11.01(16), which defines “political purposes” as used in Wisconsin’s campaign finance law, is overbroad and vague in violation of the First Amendment unless it is limited to “express advocacy” (advocating a vote for or against a named candidate) and its functional equivalent. (¶¶44-67). Thus, coordinated “issue advocacy” (speech about issues without expressly advocating a vote for or against a candidate) is not regulated under state campaign finance law. (¶¶68-75). Because these John Doe investigations were premised on the unlawfulness of coordinated issue advocacy, “the special prosecutor’s legal theory is unsupported in either reason or law” (¶76) and the investigation must cease.
Dissents by Abrahamson (¶¶408-485) and Crooks (¶¶560-618) reject the majority’s overbreadth and vagueness conclusion. Both note that in its recent decision regarding the same John Doe investigations, the 7th Circuit held it was far from clear that the First Amendment prohibits regulation of issue advocacy coordination (¶¶434, 617, both citing O’Keefe v. Chisholm, 769 F.3d 936, 941 (7th Cir. 2014)).
As Justice Abrahamson says, “Chapter 11 is not easy to read or understand. It has been described as ‘labyrinthian [sic] and difficult to decipher without a background in this area of the law.’” (¶409, quoting Wis. Right to Life v. Barland, 751 F.3d 804, 808 (7th Cir. 2014) (emphasis added)). We here at On Point are without a background in this area of law, so for quick takes on this issue by some election law experts, see here and here. The majority’s holding that the First Amendment bars regulation of issue advocacy coordination is an issue that seems ripe for a certiorari petition, given the majority’s reliance on the federal constitution and U.S. Supreme Court precedent, though of course the chances for a cert grant are small.
Review of the court of appeals’ denial of requests for supervisory writs
In Schmitz v. Peterson and Three Unnamed Petitioners the issues presented involved whether the court of appeals should have issued supervisory writs to the John Doe judges. The special prosecutor sought a writ to challenge the judge’s order quashing various subpoenas and search warrants related to the investigation, while the three unnamed petitioners challenged various aspects of how the proceedings were initiated, including whether the John Doe judge could appoint a special prosecutor. (¶¶17-36, 77, 100-01).
A supervisory writ may be issued only if the judge violated a “plain legal duty.” State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110. The majority holds that the order to quash subpoenas and search warrants was based on the judge’s interpretation of the state’s campaign finance law, and interpretation of the law is a discretionary act; it rejects the argument that the judge had a duty to correctly apply the law, relying on Kalal, 271 WIs. 2d 633, ¶¶23-24 (“In essence, the Kalals argue that the judge . . . has a plain duty to correctly find facts and apply the law. We cannot accept this proposition, as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law.”). (¶¶95-99). Abrahamson dissents from this conclusion. (¶¶508-540). She explains that the majority reads language from Kalal out of context and reduces it to “balderdash.” (¶¶516-18). And, since there is no direct appeal in John Doe cases, a supervisory writ must necessarily involve review of whether the judge correctly interpreted the law. (¶¶515, 519-39).
All the justices agree that the three unnamed petitioners’ supervisory writ was properly denied (¶¶107-132, 626), though three justices join Prosser’s concurrence in concluding a John Doe judge has no inherent power to appoint a special prosecutor (¶¶203-239, 306). Abrahamson agrees the three unnamed petitioners aren’t entitled to a writ (¶¶542-554), stressing that the court of appeals decision on the writ was discretionary, requiring it to interpret and apply the applicable law to determine whether the John Doe judge had violated a plain legal duty, and that the supreme court in turn reviews the court of appeals’ exercise of discretion (which must be based on a proper interpretation of the law). (¶548).
Issues relating to the search warrants
Prosser (joined by Roggensack) concludes the search warrants were invalid because the special prosecutor who presented them wasn’t validly appointed and because they were overbroad by seeking evidence from a time period before recall elections were contemplated. (¶¶240-269). Ziegler’s concurrence addresses only the reasonableness of the execution of search warrants issued by John Doe judges, with special focus on the time of day (“pre-dawn darkness”), the para-military operation, and the seizure of reams of electronic records that could possibly be obtained in a less intrusive way. (¶¶307-341). (The majority opinion makes a few comments along these lines, too (e.g., ¶¶28-29).)
It’s heartening to see the supreme court criticize overbroad warrants and police search tactics, and by all means mine the concurrences for useful quotes in your next challenge to a warrant or its execution. But don’t expect these sentiments to redound to the benefit of the average criminal defendant who’s been subject to the same overreaching and indignity. While Ziegler’s concurrence (¶¶333-338) might be worth citing in an aggressive execution of a warrant searching for electronic records that could be obtained in some other way (e.g., child pornography), she makes sure to distance this case from all those non-white collar crime cases (“[t]his is not a drug or human trafficking investigation….” (¶332)).
More importantly, the discussions of the breadth and execution issues are merely precatory. The only warrant issue listed in the court’s order accepting review (described here) was whether the warrants were supported by probable cause; thus, as Abrahamson’s dissent points out (¶¶356-59), the parties didn’t raise, much less fully brief, the overbreadth and execution issues. That also means these issues weren’t the subject of any fact-finding in the circuit court.
Indeed, Ziegler acknowledges repeatedly that the execution issue wasn’t raised below, that the record is incomplete, and that a full record might show perfectly valid reasons for the method of execution. (¶¶318, 323, 324, 330, 331). Why, then, do we get 25 pages of what amounts to musings about how the court “could” analyze the issue, if only it were before the court and the facts had been established? And why, given the absence of an actual factual record, cite “news outlets” such as the National Review for the “facts”? (We are not making this up: ¶¶325-329 nn.12-22). Try that in your next brief and see how you fare! The end result, then, is that Ziegler’s concurrence is a tale … well, to borrow an old phrase, “full of sound and fury/Signifying nothing.”
Recusal motions directed at two justices
You won’t learn from the majority opinion or Prosser’s concurrence that the special prosecutor filed a request (supported by amici) to recuse Gableman and Prosser based on contributions to their campaigns by some of the John Doe targets or their affiliates. Justice Abrahamson mentions this issue (¶¶490-499), noting it was based on Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), and that there’d been no response from either justice to the request. Coincidentally, the same day this opinion came down, the recusal motions were denied without explanation. See here and here.
The silence in the opinion, and the lack of explanation in the denial orders, resolves the mystery of Ziegler’s concurrence in State v. Herrmann, 2015 WI 84. That concurrence was mysterious because, as we noted here, its focused (rather anxiously it seems in retrospect) on the standard for recusal based on campaign contributions after Caperton, even though that species of bias issue was extraneous to the issue presented in Herrmann. Plainly, that concurrence was meant to serve as the explanation for the denial of the prosecutor’s recusal motions in this case.
UPDATE: On July 29, 2015, Prosser filed this explanation for his refusal to recuse himself.
Could the refusals to recuse be a ground for review by the U.S. Supreme Court, given the holding in Caperton that participation of a justice who should have disqualified himself under the due process objective bias standard violates a litigants rights? (And if the Court does grant certiorari, might Gableman’s paean to the “innocent citizens” and “brave individuals” with the will and the means to fight this case (¶133) add grist to the bias mill?) Perhaps, but as with the issue of coordination of issue advocacy, the chances are slim. Given that, it looks like our supreme court’s approach to recusal will be around for a while.
