John Doe Litigation
State ex rel. Two Unnamed Petitioners v. Peterson
State ex rel. Schmitz v. Peterson
State ex rel. Three Unnamed Petitioners v. Peterson
O’Keefe v. Chisholm
Type of Case: Free Speech; Campaign Finance; Political Prosecution
Court: Special John Doe Court; Wisconsin Supreme Court; E.D. Wisconsin District Court; Seventh Circuit Court of Appeals
Filed On: February 2, 2014 (O’Keefe case)
Current Status: Wisconsin Supreme Court shut down John Doe investigation; Seventh Circuit dismissed O’Keefe’s damages and injunction suit
Over the past several years, partisan prosecutors (with the assistance of the GAB) have engaged in witch hunts against conservative groups (no liberal groups were targeted, even though they engaged in the exact same behavior) throughout Wisconsin, raiding offices and homes and seizing documents from them. Their alleged “crime”? Engaging in issue advocacy around the same time as they talked with the governor or used the same vendors as the governor. Prosecutors think that this can somehow turn fully-protected issue advocacy into the equivalent of express advocacy for the election of Scott Walker (never mind that Walker was not even running for election or in the recall at this time), because it was “coordinated.” But such a criminal theory is (1) not permitted under Wisconsin’s statutes, and (2) even if it were permitted, would be unconstitutional in violation of the groups’ First Amendment rights to speak, associate, and petition the government.
Conservative groups have fought back. The parties investigated in the John Doe investigation have challenged it all the way up to the Wisconsin Supreme Court, which finally shut down the investigation in 2015. Eric O’Keefe and Wisconsin Club for Growth sued John Chisholm and several other district attorneys along with the special prosecutor those DAs appointed seeking damages against them personally. Unfortunately, the Seventh Circuit ruled that federal courts should not interfere with ongoing state court proceedings and the defendant officers enjoyed “qualified immunity” from suit.
In both of those cases, WILL filed amicus briefs on behalf of former FEC member and chair, the Honorable Bradley A. Smith, the Center for Competitive Politics, and Wisconsin Family Action.