John Doe Opponents Try to Block Path to U.S. Supreme Court

February 2, 2016

Lawyers for two people embroiled in the now-halted John Doe II investigation are seeking to block any appeal to the U.S. Supreme Court, which is due on March 1.

They are doing so in two ways.

First, they want to deny the district attorneys who are attempting to prosecute the case the opportunity to get outside legal help.

Second, they are casting doubt on whether these district attorneys even have the authority to appeal the case to the U.S. Supreme Court.

Here’s the background: The John Doe II investigation was looking into alleged illegal coordination between Scott Walker and several conservative groups during the recall campaigns of 2011 and 2012.

On July 16, 2015, the Wisconsin Supreme Court halted the John Doe II investigation and ordered the destruction of all the evidence in the case. The special prosecutor, Francis Schmitz, urged the justices to reconsider.

On December 2, they affirmed their decision to halt the investigation. They amended the part of their decision dealing with destroying the evidence by saying all the evidence should be sealed and handed over to the Wisconsin Supreme Court.

They also dismissed Schmitz from all but a custodial role in the case but suggested that several district attorneys previously involved in the case could take over if they petitioned the court to do so.

The district attorneys of Dane, Milwaukee, and Iowa counties submitted such a petition, and the court permitted them to join the case on January 12. On January 27, the three district attorneys filed a motion with the Wisconsin Supreme Court to allow pro-bono outside appellate counsel to have access to some of the evidence for an appeal to the U.S. Supreme Court.

On Feb. 1, lawyers for two unnamed individuals caught up in the John Doe filed an objection to this motion. Eric Wilson of the law firm Godfrey & Kahn wrote that “the district attorneys lack the authority to retain ‘outside appellate counsel,’ whether or not pro bono, to present their case to the United States Supreme Court.”

Wilson also claimed that the DAs can’t simply replace the special prosecutor: “The suggestion that a district attorney could unilaterally replace, implicitly or explicitly, the special prosecutor here flies in the face of months of continuous litigation.”

And Wilson suggested that the district attorneys do not have the authority to appeal the July 16 decision to the U.S. Supreme Court. Under Wisconsin statutes, he wrote, “that appellate function has been reserved with narrow exceptions to the Attorney General and the Department of Justice.”

If the Wisconsin Supreme Court agrees with Wilson’s arguments, the door to an appeal to the U.S. Supreme Court in the John Doe II case will be slammed shut.

That would be an ironic twist because in its December 2 ruling, the Wisconsin Supreme Court said: “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.”