MADISON, Wis. (Legal Newsline) — The Wisconsin Supreme Court on Friday declined to hear arguments as it decides whether to allow a secret, or “John Doe,” investigation into Gov. Scott Walker and his 2012 recall campaign to continue.
A majority of the court agreed in a three-page order that after considering all of the parties’ positions and “bearing in mind the very unique nature” of the case, that it is “neither legally nor practically reasonable” to hold arguments.
“The prospect of oral argument creates severe tension between important and conflicting priorities,” the order states.
Walker
“On the one hand, the court is strongly adverse to the idea of closing the courtroom to the public; our long tradition is to render public decisions based on public arguments, both oral and written.
“On the other hand, we must uphold the John Doe secrecy orders, from which no party has appealed and which protect a vast amount of information from disclosure, including the John Doe docket and activity records, John Doe filings, process issued by the John Doe judge, and all other matters observed or heard in the John Doe proceeding.”
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.
The Seventh Circuit ruled that a 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 were 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.
The petitioners — which argue they have done nothing illegal and have free-speech rights — wanted the justices to limit the audience in court’s hearing room. Prosecutors, which contend conservative groups did not operate independently of Walker’s campaign, argued that the court’s hearing room should remain open.
The state’s high court said it will decide the matter on briefs.
“Pursuant to the redaction process set forth in our Dec. 16, 2014 order and further explained in a separate order issued on today’s date, the parties’ briefs will, in the near future, become publicly available in redacted form so as to allow as much public access to the parties’ arguments as the John Doe secrecy orders permit,” the justices wrote.
“In this unique situation, this is the best way we can achieve transparency in the handling of these matters while the underlying John Doe investigation remains pending.”
Chief Justice Shirley Abrahamson disagreed, and filed a dissent.
“The court’s order is long on summarizing the parties’ positions regarding oral argument but short on setting forth the court’s own reasoning for canceling oral argument,” she wrote. “The court regurgitates much of the parties’ joint report on oral argument before concluding that ‘it is neither legally nor practically possible to hold argument…. The parties have not provided us with a workable procedure….’
“These two sentences are the entire explanation this court offers to the parties and the public. The court’s failure to provide further justification for its highly unusual decision to cancel oral argument is, in my view, alarming.”
Abrahamson said if federal courts can manage to maintain public oral argument and access to briefs in cases implicating serious national security concerns, then “surely this court can manage oral argument in the three John Doe cases before us.”
“Although it would not be free from difficulty, oral argument is legally and practically possible in the instant cases,” she wrote.
In addition to its order regarding oral arguments, the majority issued an order providing that the John Doe proceedings shall remain secret.
“All persons having access to these proceedings are hereby ordered not to disclose to anyone the court docket and activity records, court filings, process issued by the court, information concerning the questions asked and the answers given during a John Doe hearing, transcripts of the proceedings, exhibits and other papers produced during the proceedings, as well as all other matters they may observe or hear in the John Doe proceeding,” the justices wrote.
The court also ruled on a motion to intervene filed by the Milwaukee Journal Sentinel this month. The newspaper wanted to intervene in the proceedings, arguing that the issues on appeal are of “extreme statewide interest and importance” and that oral arguments should remain open.
But the majority denied the publication’s motion, calling it “untimely.”
“Despite knowing that the court of appeals had initially ordered all documents in the writ proceeding to be sealed and then had kept under seal all documents that contained information covered by the secrecy order issued by the John Doe judge, Journal Sentinel, Inc. never sought to intervene in the court of appeals to argue that the court of appeals was failing to provide adequate public access to the documents filed in that court,” the justices wrote in a separate, six-page order.
“Only after the court asked the parties to submit a report on how oral argument might be handled in these John Doe cases (and on the date the parties’ report was due) did Journal Sentinel, Inc. move to intervene to express its views on how this court should provide public access to its proceedings and record.”
Abrahamson again dissented, arguing that timeliness is not “a tool of retribution.”
“The court’s response to Journal Sentinel’s motion endangers the public’s perception of the judicial system as fair,” the chief justice wrote.
“The court’s swift disposal of Journal Sentinel’s motion — in conjunction with its concurrent decisions to cancel oral argument and require extensive redaction of the parties’ briefs — may, unfortunately, signify the court’s intention to dispose of the John Doe cases as a whole in a similarly swift and secretive manner.
“I cannot join the court in concealing this important litigation from public view.”
From Legal Newsline: Reach Jessica Karmasek by email at [email protected].
