Justice Abrahamson Slams the Canning of the John Doe Prosecutor

December 2, 2015

The Wisconsin Supreme Court, by a vote of 4-1, today rejected a request from John Doe prosecutor Francis Schmitz to reconsider its July decision that shut down a secret investigation into alleged coordination between electioneering groups and Republican Gov. Scott Walker’s campaign during the 2011 and 2012 recall elections.

What’s more, the Court dismissed Schmitz, effective immediately, which may adversely affect any ability to appeal the case to the U.S. Supreme Court.

Both rulings were met with a scathing dissent by Justice Shirley Abrahamson, who wrote: “What a mess this Court has wrought!”

The Court, with Abrahamson’s assent, did issue a stay, however, on its previous order that all documents in the John Doe II case need to be destroyed. Instead, it ordered those documents to be turned over to the Court itself.

The John Doe probe was launched by Milwaukee County District Attorney John Chisholm in 2012 with help from Schmitz, other county district attorneys, and the state Government Accountability Board. The investigation looked at collaboration between Walker's campaign and several conservative groups that ran ads, including the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce, during the recalls.

Both of the state Supreme Court’s rulings in the case in July and today were rendered by the seven-member court’s conservative majority – Chief Justice Pat Roggensack, and Justices David Prosser, Annette Ziegler and Michael Gableman.

On the merits of Schmitz’s request for reconsideration of the July decision, which legalized coordination between candidates and issue advocacy groups, the four conservative justices on the Court concluded that the prosecutor would suffer no immediate harm if they upheld their decision. And they also said that his argument that the John Doe should continue because there was evidence of coordination not only with issue advocacy groups but also with express advocacy groups (groups that say “vote for” or “vote against” a candidate) was invalid because he didn’t raise it earlier.

Abrahamson excoriated the Court for this conclusion, on two grounds.

First, even on the question of issue advocacy coordination itself, the State Supreme Court should have reconsidered its “misguided” decision in light of U.S Supreme Court precedents and “a recent decision of the United States Court of Appeals for the Third Circuit that is contrary to the July 16, 2015 majority opinion,” she wrote.

Second, on the question of express advocacy coordination, Abrahamson said the majority opinion had reached an “ erroneous conclusion that the Special Prosecutor never presented evidence of illegally coordinated express advocacy to the John Doe Judge.”In fact, wrote, Abrahamson, “According to the record, evidence of coordinated express advocacy on which the Special Prosecutor relies was presented both to the John Doe Judge and to this court. The legal arguments and evidence the Special Prosecutor presented to the John Doe Judge and to this court provide ‘reason to believe’ a crime was committed by coordinated express advocacy. Accordingly, reconsideration should be granted and the investigation into coordinated express advocacy should continue.”

On the issue of whether Schmitz was appointed in a valid manner in the first place, Abrahamson had some fun pointing out the inconsistencies of her colleagues. The majority opinion issued by Justice Michael Gableman in July affirmed that Schmitz was lawfully appointed. The concurring opinion by Justice David Prosser took the opposing view. “By joining both Justice Gableman's majority opinion and Justice Prosser's concurrence, four justices created at least two sets of votes that logically do not align: The four justices held that the Special Prosecutor's appointment was simultaneously valid and invalid.” For her part, Abrahamson said that Gableman had it right the first time.

The Court’s dismissal of Schmitz provoked Abrahamson’s ire.

“The prosecution and State are left totally unrepresented hereafter,” she wrote. The majority suggested that local district attorneys might petition the Court to intervene but taking on such a complex case would be costly and time consuming,” Abrahamson noted.

She noted that the dismissal of the Special Prosecutor could hamper any effort to appeal the July decision to the U.S. Supreme Court, which Schmitz has been considering. “This ruling has the potential to create problems with respect to who may act on behalf of the prosecution in this court or elsewhere going forward,” she wrote.

Even the majority alluded to this possibility, while denying any intent: “Our decision to terminate Attorney Schmitz's authority is not meant to interfere with the ability of the prosecution team to seek Supreme Court review.”

Abrahamson also objected to the Court’s requirement that Schmitz execute some “limited tasks” that the majority assigned to him, even though it canned him as prosecutor.

Those “limited tasks,” most to be completed within 30 days, include:

the returning of computer hardware and other personal property to their rightful owners;

the turning over of all documents and electronic data in the case, under seal, to the Wisconsin Supreme Court;

supplying a written index to those documents;

getting statements from all members, past and present, of the prosecution team and others who had access to these documents that they no longer possess copies of them;

providing written notices to all individuals and organizations whose documents or electronic data were obtained by the prosecution.

Abrahamson called this an “unfunded mandate” and wondered whether Schmitz would have to do this work for free. The Court “assigns the Special Prosecutor new tasks and new deadlines without providing the Special Prosecutor (a private practitioner) any compensation or assistance.”

Lastly, Abrahamson objected strongly to the secrecy that the State Supreme Court has imposed on this case, sealing one filing after another. “The general rule is that court filings are presumptively open for public inspection. . . . In the face of virtually total secrecy of filings since July 16, 2015, the public cannot understand the basis for the four justices’ decisions. And she quoted a U.S. Supreme Court precedent on the subject of secret court proceedings: "The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is ‘done in a corner [or] in any covert manner.’ ”

As she put it: “Why the secrecy?”