MADISON, Wis. (Legal Newsline) – Attorneys for those looking to quash a secret, or “John Doe,” investigation into Wisconsin Gov. Scott Walker and his 2012 recall campaign argue the Wisconsin Supreme Court should close its hearing room to the public next month.
In September, the U.S. Court of Appeals for the Seventh Circuit reversed an injunction granted by U.S. District Judge Rudolph Randa that stopped Milwaukee District Attorney John Chisholm’s investigation into Walker, who is now eyeing a 2016 run for President.
Walker
The Seventh Circuit ruled that the lower court was wrong to stop the four-year criminal investigation, which alleges “illegal coordination” of campaign funding by Walker and 29 independent nonprofits.
Judge Frank Easterbrook, who authored the Seventh Circuit’s opinion, said the Anti-Injunction Act keeps federal courts from barring state court proceedings.
In October, those targeted by Chisholm’s investigation — among them, the Wisconsin Club for Growth and its chief strategist and fundraiser, Eric O’Keefe — asked the full Seventh Circuit to rehear the case.
The court denied the en banc rehearing petition. In January, the group filed a petition for writ of certiorari with the U.S. Supreme Court.
In December, in separate but related state litigation, the Wisconsin Supreme Court agreed to take up petitions originally filed in the court last February and others.
Three lawsuits have been filed; two by unnamed parties challenging the investigation’s validity and another by prosecutors looking to reinstate subpoenas.
Oral arguments have been set in the proceedings for April 17 and 20.
Earlier this month, the state’s high court asked the petitioners and prosecutors to submit proposals on how to handle the arguments, keeping in mind that most information in the case is considered secret.
In a joint report filed Thursday, the petitioners — which argue they have done nothing illegal and have free-speech rights — want the justices to limit the audience in court’s hearing room.
“Given the number of parties and counsel involved, the nonmoving parties anticipate that the courtroom will be at or close to full capacity solely when occupied by counsel and the party representatives,” lawyers for the petitioners wrote. “As it has in the past, the Court should designate appropriate space in the Capitol for the public to view and hear the argument as it occurs via closed-circuit television.
“Regardless of whether the courtroom is at full capacity, however, to effectuate the concerns noted above, no one other than the parties, counsel for the parties and authorized agents of the parties may be present in the courtroom itself during oral argument.”
The petitioners propose that no one — person or organization — be mentioned by name.
They also suggest that Wisconsin Eye, the state’s non-profit, private public affairs cable network, broadcast, stream and tape the arguments, but operate on a “sufficient” delay.
“Following the argument, Wisconsin Eye shall prepare a redacted copy of the video and audio recordings of the proceeding that excises any remarks for which the Court sustains an objections,” lawyers for the petitioners wrote in the joint report. “Any transcript of the proceedings made available to the public also shall redact any remarks to which the Court sustains an objection.”
Prosecutors, which contend conservative groups did not operate independently of Walker’s campaign, argue in the joint report that the court’s hearing room should remain open.
“Indeed, most — if not all — of the facts of consequence have already been released publicly,” they wrote. “This fundamentally affects the need to continue non-public proceedings before the Supreme Court of the State of Wisconsin.
“Consequently, the Special Prosecutor submits the Unnamed Movants should be referred to by name and that the contents of pleadings, as set forth in the February 26, 2015 Special Prosecutor’s Statement on Redactions, be made public.”
If the justices do not agree to that proposal, prosecutors suggest the unnamed petitioners be referred to by a “pre-arranged” set of pseudonyms.
Also last week, the Milwaukee Journal Sentinel filed a motion to intervene in the proceedings. The newspaper argues that the issues on appeal are of “extreme statewide interest and importance.”
Calling itself a “surrogate of the public,” the Journal Sentinel argues that next month’s oral arguments should remain open.
Republican lawmakers now are looking to reform the state’s John Doe law, which is unique to Wisconsin.
Last month, Senate Bill 43 was introduced. The legislation would end such investigations into political campaign crimes. The bill also would impose a six-month time limit on a John Doe proceeding, among other things.
From Legal Newsline: Reach Jessica Karmasek by email at [email protected].
