Bench Memos

Law & the Courts

More on Incredible Wisconsin Shenanigans Against Scott Walker

Several months ago, I called attention to the Kafka-esque “John Doe” proceeding that Milwaukee district attorney John Chisholm has been using against Wisconsin governor (and potential 2016 presidential candidate) Scott Walker and his allies. I’d like to highlight the latest bizarre development in this secret and byzantine legal proceeding, but first let me provide some background (drawn from this article by Stuart Taylor):

1. Back in 2009, when Walker was Milwaukee County executive, his staff discovered that some $11,000 had apparently been embezzled from a county charity and asked the district attorney’s office to conduct a criminal investigation of the embezzlement.

2. In May 2010, Chisholm obtained a court order authorizing him to conduct a so-called “John Doe” proceeding to investigate the embezzlement. Believe it or not, under Wisconsin law this extraordinary John Doe proceeding empowers prosecutors to require complete secrecy from targets and witnesses and thus prevents targets from publicly defending themselves. In the guise of investigating the embezzlement, Chisholm raided Walker’s office and seized thousands of pages of communications between Walker (and his staff) and his supporters.

3. Chisholm—evidently driven by his and his wife’s fervent opposition to Walker’s battle against public-sector unions—then redirected the John Doe investigation into an investigation of possible campaign-finance violations by Walker and his supporters in connection with Walker’s 2012 recall campaign. Taylor sums up what happened next:

[Chisholm and this team] obtained sweeping subpoenas for records from at least eight phone companies and records from every major private email provider including Google and Yahoo, ultimately amassing hundreds of thousands of pages on the activities of every major conservative group in Wisconsin and many around the country, as well as of Walker and his team. They seized documents from people’s offices and homes.

Armed officers raided the homes of Walker’s supporters across the state, using bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and were denied the ability to contact their lawyers.

At other times, the prosecutors jailed at least two witnesses “who did not possess the information they sought” and “blanketed conservative activists nationwide with [more than 100] invasive subpoenas,” according to court filings.

In the process, Chisholm began targeting the governor’s outside supporters….

Fast-forward to last month. Now that the targeted conservatives (otherwise known as “Three Unnamed Petitioners,” “Two Unnamed Petitioners,” and “Eight Unnamed Movants”) have gone to court to try to put an end to the witchhunt, the special prosecutor appointed in Chisholm’s stead has, according to this article, filed a motion—under seal, of course—asking “one or more state Supreme Court justices to step aside” from the case. The article speculates that the basis for the request is that three of the “groups mentioned in the investigation … spent heavily in court races to elect” the four conservative justices on the court.

Unfortunately for the prosecutor’s motion, the Wisconsin Code of Judicial Conduct expressly states that a judge’s recusal shall not “be based solely on the sponsorship of an independent expenditure or issue advocacy communication … by an individual or entity involved in the proceeding.” So that’s led the Brennan Center for Justice to file a very strange amicus brief in support of a motion that it has supposedly never seen. (As a formal matter, the Brennan Center contends that its brief is “in support of neither party,” but its arguments cut—ineffectively, to be sure—in only one direction.)

The Brennan Center argues that Wisconsin’s judicial-recusal rule must be applied in a manner consistent with the U.S. Supreme Court’s Due Process holding in Caperton v. A.T. Massey Coal Co. (2009). At a very general level, that argument is surely correct, but Caperton can’t plausibly be understood to affect the application of the Wisconsin rule in this context. That’s true for two simple reasons.

First, Caperton’s Due Process holding can only be applied to benefit a party who has Due Process rights. The special prosecutor has no such rights. (It’s particularly galling that anyone would invoke Due Process in support of a prosecutor who uses a John Doe proceeding to trample the Due Process rights of those being investigated.)

Second, the five-justice majority in Caperton “conclude[d] that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” (Emphasis added.) I’m reliably informed that the targeted parties learned about the John Doe investigation of them only in October 2013 (when armed officers raided the homes of their principals and when the prosecutor blanketed them with subpoenas). But Justice David Prosser was last elected in 2011, Justice Annette Ziegler in 2007, Justice Michael Gableman in 2008, and Justice Patience Roggensack in April 2013. So no party could have acted to put these justices “on the case,” because there was no case or expectation of one at the time independent campaign expenditures were made. (Caperton is distinguishable on additional grounds that I won’t belabor here.)

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