By Dan Sinclair

It appears Wisconsin’s controversial “John Doe” investigations into conservative political groups is finally at an end. Again.

The Wisconsin Supreme Court Wednesday reaffirmed an earlier ruling that halted the investigations, declaring the acting special prosecutor has no grounds to continue investigation of groups suspected of illegally coordinating with the recall election campaigns of Wisconsin Governor Scott Walker.

In its July 16th, 2015 decision, the State Supreme Court declined to rule on the effect a finding that Schmitz’s appointment was improper might have on the investigation’s validity. In a concurring opinion joined by three others, Justice David Prosser’s did suggest that Schmitz’s appointment violated Wisconsin law, though the majority ruling on a superseding issue rendered that finding moot. Despite Prosser’s concurrence, special prosecutor Francis Schmitz continued to act in his capacity as special prosecutor by filing motions to reconsider and requesting a stay on the court’s order to return property seized as part of the investigation.

Wednesday’s ruling by the Wisconsin Supreme Court echoed that finding and fully developed the consequences for the state’s long-running investigation into conservative political groups. The court ruled on the question of when the acts of a special prosecutor, improperly appointed, cease to carry legal authority, holding that such termination occurs only when a court makes a legal ruling as to the invalid appointment. Thus the actions of Schmitz as special prosecutor were deemed valid up to the point this decision was handed down. Schmitz’s authority to act on behalf of the prosecution going forward, including making good on his promise to appeal the July decision to the United States Supreme Court, is effectively ended. One of the district attorneys from a county involved in the investigation could step in to petition the high court on behalf of the prosecution. While such a petition may be likely, most experts consider the chances of review to be exceedingly low.

Review by the Supreme Court may hinge on a close ruling related to the constitutionality of allowing elected justices to hear cases involving major donors to their election campaigns. In Caperton v. A.T. Massey Coal Co., the Court held in a 5-4 decision that a West Virginia Supreme Court of Appeals Justice violated Due Process under the 14th Amendment by failing to recuse himself from a case involving a donor to his election campaign.  The Court stated that the applicable standard for recusal was a “risk of actual bias” shown “under a realistic appraisal of psychological tendencies and human weakness.”

Prior to the Wisconsin Supreme Court’s July decision, Schmitz filed motions seeking recusal of up to four Justices on the grounds that the political groups being investigated made significant contributions to their election campaigns. Those motions were denied. Wisconsin Democracy Campaign Executive Director Matthew Rothschild wrote after the ruling that the Caperton decision gave Schmitz solid grounds for appeal to the Supreme Court:

“The relative size of the expenditures on behalf of all four justices and the apparent effect those expenditures had on the outcome of their elections provide a solid basis for ruling that all four justices should have recused themselves.”

Others strongly disagreed, citing material differences between the situations present in the West Virginia case and the John Doe investigation proceedings. There was a significant gap in time between the John Doe proceedings and many of the at-issue contributions, and Wisconsin law doesn’t require recusal based on outside group contributions.

Denial of review by the Supreme Court would finally settle things in Wisconsin where campaign finance rules are concerned, though don’t expect it to bring much comfort. The state legislature recently passed a bill making sweeping reforms to laws controlling campaign contributions, changes many worry will increase the influence of outside groups in state elections. The state also voted to dismantle its nonpartisan elections and ethics board, which had faced substantial criticism regarding its oversight of the John Doe investigations.

In trevess case, however, the analysis is not so speculative
Print Friendly