July 17, 2015 – The state supreme court has ended the secret John Doe proceedings reportedly initiated in 2012 to determine whether Gov. Scott Walker’s recall campaign, and other recall campaigns, illegally coordinated with outside advocacy groups.

The court in 11 consolidated cases including Schmitz v. Peterson, 2015 WI 85 (July 16, 2015), ruled that the John Doe investigation must end because the alleged conduct at issue involved coordination on “issue advocacy,” which Wisconsin does not regulate.

A John Doe proceeding – intended as an independent, investigatory tool to determine if a crime has been committed without naming individuals involved – was initially commenced in 2010 (John Doe I). It alleged illegal misconduct by individuals and aides tied to the Milwaukee County Executive’s office under now Gov. Scott Walker.

That investigation resulted in convictions against numerous people, including Walker’s deputy chief of staff. It also triggered a second John Doe proceeding (John Doe II), commenced two months after Walker’s gubernatorial recall election in June 2012.

That petition alleged violations of campaign finance laws. Specifically, according to the majority’s opinion, it alleged that documents uncovered in John Doe I evidenced possible illegal fundraising between campaign committees and independent groups.

A judge authorized the proceeding. Similar petitions in four other counties followed. At the request of district attorneys, presiding Judge Barbara Kluka appointed special prosecutor Francis Schmitz to handle the investigation in all five counties. Kluka later recused herself and Reserve Judge Gregory Peterson was appointed to John Doe II.

Ultimately, Judge Peterson closed the proceeding, finding no evidence of campaign coordination to fund “express advocacy” for the purpose of influencing an election.

Schmitz appealed that decision directly to the supreme court, requesting that Judge Peterson’s decision be vacated and that the investigation be allowed to proceed.

A supreme court majority recently affirmed, ending the John Doe probe and ordering the destruction of records obtained during the investigation. It said the special prosecutor was alleging campaign coordination with respect to “issue advocacy,” but issue advocacy is beyond the reach of Wisconsin’s campaign finance laws.

Following the lead of the U.S. Seventh Circuit Court of Appeals, the majority adopted a “limiting construction” to the definition of “political purposes” in Wis. Stat. section 11.01(16)(b), which says, in part, that “an act is for ‘political purposes’ when it is done for the purpose of influencing the election or nomination for election of any individual. ….” The restrictions placed on acts done for political purposes only reach “express advocacy and its functional equivalent,” the majority opinion noted.

“To be clear, the reason that the definition of ‘political purposes’ … is unconstitutional is because the phrase ‘influencing [an] election’ is so broad that it sweeps in protected speech, as well as speech that can be subject to regulation,” wrote Justice Michael Gableman in the majority opinion. “This is precisely the kind of overbroad language that the Supreme Court has repeatedly rejected.”

The majority said the prosecutor’s theory of the case – campaign coordination with outside groups triggered statutes that regulate “campaign committees” – was flawed because the allegations involved coordination on issue advocacy­, which isn’t regulated.

“Put simply, because the Unnamed Movants did not engage in express advocacy, they could not be considered a ‘committee’ subject to Chapter 11’s regulation,” Justice Gableman wrote. “To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.”

A majority effectively affirmed Judge Peterson’s decision to quash certain subpoenas and search warrants and ordering the return of property seized as part of the investigation, declining the special prosecutor’s writ petition for review.

Based on a concurrence from Justice David Prosser, a majority also ruled that the appointment of a special prosecutor was invalid, because the process did not comply with statutes governing special prosecutor appointments.

Concluding the majority opinion, Justice Gableman stated: “It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.”

Justice Annette Ziegler concurred but wrote separately, questioning whether the execution of the “nighttime search warrants” complied with the Fourth Amendment.

Justice Abrahamson dissented on the majority decision to end the investigation, saying Wisconsin’s campaign finance law “require[s] a candidate’s campaign committee to report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate’s campaign committee.”

She said Justice Gableman’s majority opinion “adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment.”

“Because I conclude that the Special Prosecutor has a valid legal theory to support his investigation, I would allow the John Doe proceedings to continue,” she wrote.

Justice Patrick Crooks also dissented on that point, and would have let the John Doe proceeding continue. “Although the special prosecutor advances a secondary argument of criminal activity coordinated express advocacy, the majority inexplicably ignores that argument,” he wrote. “These mistakes lead the majority to terminate a valid John Doe investigation in an unprecedented fashion.”

Justice Ann Walsh Bradley did not participate.