The Candid Review: A Blog About Appeals

Shortly after Governor Scott Walker won the June 2012 recall election in Wisconsin, District Attorney John Chisholm launched a secret probe to investigate illegal activity surrounding the election. This secret probe is referred to as a John Doe proceeding and is defined by Wisconsin Statute 968.26 as a proceeding to determine whether a crime has been committed in the courts jurisdiction. The statute further provides that a judge can subpoena and examine any witnesses the district attorney identifies and that the examination may be in secret.

Prosecutors Claim Immunity but Federal Judge Disagrees

The prosecutors are trying to determine whether the Wisconsin Club for Growth along with other conservative groups illegally coordinated with Governor Walker and other candidates during two recall elections. The investigators claim that a consultant for both Wisconsin Club for Growth and Governor Walker’s campaign acted as a “hub” by plotting strategy and directing funds to several groups. In response, Wisconsin Club for Growth argues that the investigation violated their rights regarding free speech, and filed a federal lawsuit in February. Additionally, the group alleges that investigators participated in early morning home raids of several consultants of Wisconsin Club for Growth. During these raids, the consultants were physically restrained and prevented from contacting their attorneys. Prosecutors claim however that the case against them should be dismissed because they are immune from lawsuits as prosecutors and state officials. Federal Judge Rudolph Randa rejected the Prosecutions arguments and they appealed. However, Judge Randa still went ahead and issued an order to stop the John Doe Proceeding and ordered the prosecutors to return any evidence gathered during the probe and to destroy any copies they retained. Judge Randa ruled that the investigation appeared to violate Wisconsin for Growth’s constitutional rights. Judge Randa further stated that the Wisconsin Club for Growth has not engaged in any illegal activity because it participates in issue advocacy.  This means the group releases advertisements that communicate the groups views on certain issues but do not urge people to vote for a specific person.

7^th Circuit Court of Appeals Intervenes

The next day, the 7^th Circuit Court of Appeals ruled that Judge Randa did not have the authority to issue an order destroying evidence gathered during the investigation this early in the proceeding. They further stated that Judge Randa must first find that the appeal filed by the Prosecution was frivolous before he could stop the investigation. In response, Judge Randa issued an order finding that the Prosecutions appeal attempting to dismiss the case was in fact frivolous. Now it’s up to the Court of Appeals to determine whether the case should be dismissed. In the meantime, lawyers from both sides of the case are in disagreement as to whether they should begin the discovery process by deposing witnesses. David Rivkin Jr., attorney for Wisconsin Club for Growth, argues that the discovery process begins immediately. However Randall Crocker, the attorney representing special prosecutor Francis Schmitz argues that they should wait until the Court of Appeals makes a ruling before they move forward with depositions.