Two Unnamed Petitioners v. Gregory A. Peterson

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Two Unnamed Petitioners v. Gregory A. Peterson is an appeal that was filed on November 14, 2013, to shut down the John Doe investigations related to Scott Walker. The petitioners' appeal was based on the belief that the state did not have the authority to regulate speech that isn't classified as express advocacy.

John Doe investigations

See also: John Doe investigations related to Scott Walker

Two John Doe investigations were launched by Milwaukee County District Attorney John Chisholm (D) into the activities of staff and associates of Gov. Scott Walker (R).

The first investigation, John Doe I, was launched after Walker aide Darlene Wink noticed funds were missing from the money raised by Operation Freedom, a charitable event for veterans that Walker hosted annually. Walker's office turned the case over to the Milwaukee County DA's office to investigate the missing funds.

Over a year passed before the DA's office began investigating the case. By this time, Walker had announced his candidacy for Governor of Wisconsin. On May 5, 2010, Assistant District Attorney Bruce Landgraf asked for the authority to launch a John Doe investigation into the missing funds. He asked for the John Doe on the premise of determining where the funds had originated (i.e., sponsors and donors of the Operation Freedom Event). His request was granted by Judge Neal Nettesheim, who had been appointed the John Doe I judge.

During the 2010 gubernatorial campaign, the John Doe investigation was expanded multiple times to include a Walker donor and members of Walker's county executive staff. The homes, offices and cars of these people were raided and searched, and property, such as computers and cell phones, was seized. The investigation lasted three years and resulted in the convictions of six people, four of whom weren’t related to the missing funds on which the investigation was predicated. The announcement of the charges against the six were made in January 2012, in the midst of an effort to recall Gov. Walker due to his support for Act 10.

On June 5, 2012, Gov. Walker won a recall election (R). In August 2012, the first John Doe investigation was rolled into a second investigation, John Doe II. This investigation was based on the belief that Governor Walker’s campaign had illegally coordinated with conservative social welfare groups that had engaged in issue advocacy during the recall elections.

The second John Doe investigation spanned multiple counties but was consolidated into one investigation, overseen by an appointed judge and one special prosecutor, Francis Schmitz. During the early morning hours of October 3, 2013, investigators served search warrants on several homes and subpoenaed records from 29 conservative organizations. Several weeks later, on October 25, 2013, three targets of the subpoenas filed a motion to have the subpoenas quashed. The judge overseeing the investigation, Judge Gregory Peterson, granted that motion in January 2014, stating that the prosecutor's theory of criminal activity was not, in fact, criminal under Wisconsin statutes. Although Schmitz filed an appeal to a higher court, the investigation was effectively stalled.

A series of lawsuits were filed, one against the John Doe prosecutors for a violation of free speech and several others against the agency that oversees campaign finance law, the Wisconsin Government Accountability Board (GAB), for trying to enforce unconstitutional regulations of issue advocacy groups, the regulations on which the prosecutor's theory was based.

The legality of the investigation eventually went before the Wisconsin Supreme Court. On July 16, 2015, the Supreme Court ruled in a 4-2 decision to halt the John Doe II investigation officially. The court combined three cases into one, thereby simultaneously ruling on all three. In its ruling, the Supreme Court criticized Schmitz's handling of the case and declared the actions of Chisholm and Schmitz were violations of the targets' First Amendment rights to political speech.

The Supreme Court, in interpreting Wisconsin's campaign finance law, ruled "that the definition of 'political purposes' [...] is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language 'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'"

The court noted that since issue advocacy is "beyond the reach of Ch. 11," Schmitz's theory of illegal coordination between Walker's campaign and social welfare groups was invalid. The court further declared "the special prosecutor's legal theory is unsupported in either reason or law," thereby declaring an official end to the John Doe II investigation.

Regarding the other two cases addressed in the ruling, the court denied Schmitz's supervisory writ and affirmed Peterson's original motion to quash the subpoenas. It also ruled that the John Doe II judges, Peterson and Barbara Kluka before him, had not "violated a plain legal duty" by allowing the appointment of one judge and one special prosecutor to preside over a multi-county John Doe, though the court did concede "the circumstances surrounding the formation of the John Doe investigation raise serious concerns."

In its ruling, the court ordered that "everything gathered as potential evidence—including thousands of pages of emails and other documents—be returned and all copies be destroyed."

Lawsuit

Background

On August 10, 2012, Milwaukee County District Attorney John Chisholm (D) asked for a John Doe investigation based on the belief that Gov. Scott Walker's (R) campaign had engaged in illegal coordination with 501(c)(4) social welfare groups making independent expenditures during the 2012 recall elections. Super PACs, political action committees and social welfare groups, including 501(c)(4)s, are forbidden by law from coordinating with candidates and their campaigns.

Independent expenditures are monies spent on political advertising in support of or against a particular candidate, coming from outside a candidate's own election organization.

According to the Federal Election Commission (FEC), "When an individual or political committee pays for a communication that is coordinated with a candidate or party committee, the communication is considered an in-kind contribution to that candidate or party committee and is subject to the limits, prohibitions and reporting requirements of the federal campaign finance law. In general, a payment for a communication is 'coordinated' if it is made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee or their agents, or a political party committee or its agents."

After subpoenas were served to a number of conservative groups, several of the targets filed a motion with John Doe II Judge Gregory Peterson to quash those subpoenas . On January 10, 2014, Peterson granted the motion to quash the subpoenas based on the fact that the actions taken by the plantiffs were not, in fact, criminal under Wisconsin statutes. In the order, Peterson wrote that the "subpoenas fail to show probable cause that a crime was committed."

In addition to the motions to quash the subpoenas, two unnamed petitioners filed an appeal on November 14, 2013, to shut down the investigation. The appeal was based on the belief that the theory of the special prosecutor was invalid because the statute the prosecutors used to launch the investigation wasn’t constitutional. The petitioners argued that the type of speech the constitution protects the groups engaged in and doesn’t fall under “express advocacy,” which can be regulated.

Decision

The case went to the Wisconsin Supreme Court, which agreed to take it up in December 2014.

On July 16, 2015, the state Supreme Court found that the special prosecutor’s theory was invalid and shut down the investigation permanently. The majority found that the definition of "political purpose" in Wisconsin statutes was overly broad and constitutionally vague. The court also limited "political purpose" to only apply to the practice of express advocacy. The court further ordered the return of all property seized during the investigation and the destruction of all copies of information and materials obtained during the investigation.

See also

• John Doe investigations related to Scott Walker
• Timeline of John Doe investigations related to Scott Walker
• Wisconsin John Doe laws
• Scott Walker
• Wisconsin Government Accountability Board

External links

• Wisconsin Supreme Court Ruling on Two Unnamed Petitioners v. Gregory A. Peterson