On Tuesday, federal judge Rudolph Randa halted a “John Doe” investigation into third-party groups that ran ads in support of Wisconsin governor Scott Walker during his battle with the state’s public-employee unions. Randa argued that the investigation amounted to the criminalization of political speech and damaged the ability of groups like the Club for Growth to raise money, thus suppressing their First Amendment right to engage in political discourse. (See my article over at the mothership yesterday here.)
Then, 24 hours later, the U.S. Seventh District Court of Appeals issued a stay of Randa’s ruling. The stay has nothing to do with the merits of his decision; instead, it applies to a procedural item that the appeals court thinks Randa failed to address before issuing his ruling.
The case was initiated by Eric O’Keefe, acting with the Club for Growth (of which he is a national director). O’Keefe is suing to stop the investigation by Milwaukee’s Democratic district attorney, John Chisholm. Last month Chisholm filed to have O’Keefe’s case dismissed, and Randa denied that motion. Chisholm then appealed the denial, and Randa issued his order halting the investigation on Tuesday, while that appeal was still pending.
The appeals court ruled yesterday that before Randa’s order can go into effect, he must rule as to whether Chisholm’s appeal is “frivolous.” If Randa does rule it to be frivolous, his order halting the Doe investigation will go into effect, with one caveat: It cannot order Chisholm and other investigators to destroy evidence they have collected. If Randa rules that Chisholm’s appeal of his denial was not frivolous, his order is not in effect and the investigation continues, pending more action in Randa’s court.
Randa has already indicated that he thinks the appeal is frivolous, and given the forcefulness of his opinion on Tuesday, it seems unlikely he would allow the John Doe investigation to continue for long. And, of course, down the road, he could be overturned by the Seventh District Court of Appeals. But if there’s anything predictable about this case, it is its unpredictability.
UPDATE: Well, that was fast. As expected, Judge Randa this morning ruled the defendants’ previous appeal to be frivolous, thereby reinstating his injunction. The investigation into conservative groups in Wisconsin is thereby blocked once again, pending future action by the Seventh District. Read Randa’s opinion today here.
— Christian Schneider is a columnist for the Milwaukee Journal Sentinel.