Three Unnamed Petitioners v. Gregory A. Peterson

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Three Unnamed Petitioners v. Gregory A. Peterson was an appeal that was filed on November 14, 2013, in order to shut down a John Doe investigation being conducted in Wisconsin. The plaintiffs remained anonymous, and the defendant was deputy chief judge of the Wisconsin Court of Appeals Gregory Peterson, who was serving as the John Doe judge at the time.

The appeal was based on the belief that Wisconsin state law did not give the authority for one judge and one special prosecutor to reside over a multi-county John Doe. The Wisconsin Court of Appeals District IV denied the petition to stop the investigation on November 22, 2013, but ordered prosecutors to respond to the questions of the legal authority to assign one judge and one special prosecutor to multiple John Doe investigations and the scope of the secrecy orders. In January 2014, the appeals court rejected the arguments of the unnamed petitioners, which allowed the investigation to continue.

The three unnamed petitioners took their suit to the Wisconsin Supreme Court, which agreed to take up the case in December of 2014, nine months after it had been appealed to the court.

Background

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 Governor Scott Walker (R).

On June 5, 2012, a recall election attempting to remove Gov. Scott Walker (R) from office was held in Wisconsin. Walker won the recall race, defeating Tom Barrett (D) 53%-46%. On August 10, 2012, Milwaukee County District Attorney John Chisholm (D) asked for a John Doe investigation, claiming that the Walker campaign had engaged in coordination with 501(c)(4) social welfare groups making independent expenditures during the recall elections, which would have been a violation of campaign finance law. Independent expenditures include money spent on political advertising in support of or against a specific candidate. This marked the second John Doe investigation Chisholm launched to investigate Walker, his staff and conservative supporters.

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.	”
—FEC

Super PACs, PACs and social welfare groups, including 501(c)(4)s, were forbidden by law from coordinating with candidates and their campaigns.

After subpoenas were served to a number of conservative groups, several of the targets filed a motion with John Doe Judge Gregory Peterson to stop those subpoenas. On January 10, 2014, Peterson granted the motion to stop the subpoenas, saying that the prosecution's theory of the crime was not criminal under Wisconsin state law. In the order, Peterson wrote that the "subpoenas fail to show probable cause that a crime was committed."

Judge Gregory Peterson, John Doe II judge

In addition to the motions to stop the subpoenas, three unnamed petitioners filed an appeal on November 14, 2013, to end the investigation. The appeal was based on the belief that Wisconsin state law did not give the authority for one judge and one special prosecutor to preside over a multi-county John Doe. The petitioners presented four questions for the court regarding the legal authority of the John Doe Judge to:

• Consolidate John Doe investigations from multiple counties
• Appoint a special prosecutor
• Authorize a special prosecutor who was not elected by the people of the counties involved in the John Doe
• Subject the targets to the secrecy order

Through a series of motions, the petitioners asked the court to:

• Consolidate the John Doe cases in the five counties into one for the purposes of their motions
• Seal the petition, affidavits and exhibits
• Stay the investigation
• Unseal the petitioners' memorandum in support of the petition and the motion to stay the investigation
• Certify the case to go to the Wisconsin Supreme Court

Decision

Court of Appeals

The Wisconsin Court of Appeals District IV denied the petition to stop the investigation on November 22, 2013, but ordered prosecutors to respond to the questions of the legal authority to assign one judge and one special prosecutor to multiple John Doe investigations and the scope of the secrecy orders. In January 2014, the appeals court rejected the arguments of the unnamed petitioners, which allowed the investigation to continue. The court also denied certification to the Supreme Court.

The three unnamed petitioners took their suit to the Wisconsin Supreme Court, which agreed to take up the case in December of 2014, nine months after it had been appealed to the court. The case was combined with two others by the Supreme Court. Supreme Court Justice Ann Walsh Bradley recused herself the previous March from the case because, at that time, her son practiced at the same law firm as one of the attorneys involved in the case.

State Supreme Court

On July 16, 2015, the Wisconsin Supreme Court ruled in a 4-2 decision to halt the John Doe II investigation. The court combined three cases—Two Unnamed Petitioners v. Gregory A. Peterson and Francis D. Schmitz (Two Unnamed Petitioners); Three Unnamed Petitioners v. Gregory A. Peterson (Three Unnamed Petitioners); and Francis D. Schmitz v. Gregory A. Peterson (Schmitz v. Peterson)—into one, thereby simultaneously ruling on all three. In its ruling, the Supreme Court criticized Special Prosecutor Francis 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.

Addressing the case of Two Unnamed Petitioners, the court ruled "that the definition of 'political purposes' in Wis. Stat. § 11.01(16) 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 John Doe II prosecutor alleged coordination between the Walker campaign and various social welfare groups on issue advocacy, as opposed to express advocacy. Issue advocacy is "beyond the reach of Ch. 11;" therefore, the court "invalidate[d] the special prosecutor's theory of the case, and [...] grant[ed] the relief requested by the Unnamed Movants." The court further noted "the special prosecutor's legal theory is unsupported in either reason or law," and declared an official end to the John Doe II investigation.

Regarding the second case, Schmitz v. Peterson, the court ruled "that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor." The court found that Peterson, in his capacity as John Doe II judge, operated within "his discretion" under the John Doe statutes. The court denied Schmitz's supervisory writ and affirmed Peterson's original motion to quash the subpoenas.

In regards to the case of Three Unnamed Petitioners, the court upheld the ruling made by the lower court of appeals, stating, "We hold that the Unnamed Movants have failed to prove that either Reserve Judge [Barbara] Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and although the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent preconditions for a supervisory writ."

Justice Michael Gableman wrote the majority opinion, which was supported by Justices David Prosser, Patience Roggensack, and Annette Ziegler. Justices Shirley Abrahamson and N. Patrick Crooks dissented. Justice Ann Walsh Bradley recused herself.

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." In the majority opinion, Justice Gableman wrote "It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing." In her dissent, Justice Abrahamson wrote "The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment."

Supreme Court reaffirms its decision

On December 2, 2015, the Wisconsin Supreme Court reaffirmed its July decision that the John Doe investigations were unconstitutional. The court barred Francis Schmitz from continued involvement in the case.

The opinion read:

“	…(W)e now issue a legal ruling and order that, because of the invalidity of his appointment, Attorney Schmitz must cease taking any actions as the John Doe II special prosecutor as of the date of this opinion and order, except for the actions this court directs below to conclude the John Doe II investigation.	”

Schmitz had filed motions in August requesting that the Supreme Court reconsider the July decision and stay an order to return and destroy evidence that Schmitz had collected for the investigation.

The majority of the court, including conservative justices Michael Gableman, David Prosser, Pat Roggensack and Annette Ziegler, wrote, “We conclude that Attorney Schmitz’s motion does not present any grounds to reconsider our prior decision." In a dissent, Justice Shirley Abrahamson, the lone dissenting justice, wrote critically of what the ruling would mean for the future of the case: "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."

While the court reaffirmed the decision, it modified its order that Schmitz return and destroy evidence. The court ruled that Schmitz must return all documents, electronic files, and computer hardware to their rightful owners within 30 days. The court told Schmitz to gather all documents, electronic data, and copies related to the investigation from anyone who had access, index the evidence, and submit it, under seal, to the Supreme Court clerk.

Schmitz had asked that Gableman and Prosser recuse themselves because their election campaigns benefited from millions of dollars spent by at least three of the groups under investigation. The court denied the recusal request. The court said that the revised order will allow prosecutors enough time to ask for a review of the case.

Because Schmitz was no longer allowed to serve in his role as special prosecutor, he could not participate in further legal action related to the case.

See also

• John Doe investigations related to Scott Walker
• Timeline of John Doe investigations related to Scott Walker
• Wisconsin John Doe laws
• Scott Walker
• Independent expenditure

External links

• Three Unnamed Petitioners v. Gregory A. Peterson