SHARE Related Coverage Editorial: John Doe issues should be settled in Wisconsin

John Doe issues should be settled in Wisconsin Decision: U.S. Court of Appeals ruling About John Doe Separate but related criminal investigations initiated by Milwaukee County prosecutors have examined events and activities during Scott Walker's time as Milwaukee County executive and as governor. Prosecutors have conducted the probes under the state's "John Doe" statutes that grant extraordinary powers to investigators to compel testimony and maintain secrecy. The first John Doe investigation, begun in 2010, led to convictions of six Walker aides, associates or appointees on charges ranging from theft from a veteran's group to misconduct in office. The second Doe probe, launched in 2012, looked into coordination between conservative political organizations and Walker and other candidates during recall elections. The second probe was halted in May 2014 by a federal judge who agreed that the investigation denied one of the conservative groups' its free-speech rights. No charges have been filed in the second investigation. Walker has denied wrongdoing. See full coverage in John Doe special section

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A federal appeals court Wednesday overturned a lower-court ruling blocking a secret probe into Gov. Scott Walker's campaign and allied groups, sending the issue back to the Wisconsin courts as the Nov. 4 election approaches.

In overturning a ruling made earlier this summer by U.S. District Judge Rudolph Randa in Milwaukee, the 7th Circuit Court of Appeals in Chicago didn't restart the investigation. That is because a state judge has also put the case on hold in a decision that is undergoing its own separate appeal.

The 7th Circuit ruling criticized Randa's decision as an intrusion into the affairs of Wisconsin's legal system, echoing statements the appellate judges made during oral arguments in the case earlier this month.

"What we have said shows not only that an injunction was an abuse of discretion but also that (as prosecutors) all defendants possess qualified immunity from liability in damages," wrote Judge Frank Easterbrook in the decision.

Also Wednesday, the three-judge panel ruled in favor of keeping eight documents in the case under seal, meaning that for now at least the public will get no more insight into the stalled case.

An attorney for the lead prosecutor in the John Doe hailed the decision.

"The court adopted in their entirety the arguments we have asserted since the outset of this case," said Randall Crocker, attorney for special prosecutor Francis Schmitz. "The decision confirms that our client has acted in accordance with his oath as a special prosecutor and in good faith."

The appeals court's decision comes as Walker, a Republican, finds himself in a tight race with Democrat Mary Burke, a former Trek Bicycle Corp. executive.

The decision was a victory for prosecutors, but not necessarily for their investigation. That's because they were at least at some risk of being held personally liable for violating the free speech rights of the Wisconsin Club for Growth and one of its directors, Eric O'Keefe.

But state courts will decide the fate of the probe itself. Four other pieces of litigation are ongoing in state court over the probe.

Walker said in Milwaukee that the John Doe is halted for now and will likely come before the state Supreme Court.

"It's still something that a respected judge in the state of Wisconsin at the state level who has no political ties to me or anyone I'm affiliated with said should not go forward," Walker said at an event at the War Memorial Center.

David Rivkin Jr., an attorney for the Club and O'Keefe, said that his clients would ask the 7th Circuit to "correct today's mistaken decision."

"We will continue to fight this abuse of government power," Rivkin wrote.

Douglas S. Knott, an attorney commenting for the Milwaukee County prosecutors, said in a statement: "The decision confirms that the rich and powerful are not above the law and that the district court should not have entertained Mr. O'Keefe's and the Club's attempt to undermine the work of state prosecutors investigating whether a crime has occurred."

Mike Maistelman, a Democratic Milwaukee attorney who represented a former Walker aide in an earlier John Doe probe, said the appeals court decision was a clear warning to federal courts to stay out of state criminal investigations in most circumstances.

"This is a stunning reversal of Judge Randa," Maistelman said.

Prosecutors launched their John Doe probe in August 2012 in Milwaukee County and last year expanded it to four other counties. They were looking at whether Walker's campaign illegally collaborated with ostensibly independent groups, such as the Club for Growth.

John Doe investigations allow prosecutors to compel people to testify and produce documents and bar them from talking publicly about the probe.

In court documents, prosecutors also say that Walker helped raise money for the Club for Growth and that the group received a $700,000 contribution from a company seeking to open a large open pit iron mine in northern Wisconsin.

Burke, who has generally avoided the subject of the John Doe, jumped on it Wednesday.

"As I've said repeatedly, if a secret $700,000 donation from a mining company with legislation pending before the state — who then gets what they want — isn't illegal, it should be," Burke said in a statement. "The people of Wisconsin deserve answers to the questions raised by this investigation, which at minimum are very disappointing, and are potentially criminal."

The federal case was heard by Easterbrook and Judges Diane Wood and William Bauer. Wood was appointed to the appeals court by President Bill Clinton, Bauer by President Gerald Ford and Easterbrook by President Ronald Reagan.

In reversing the injunction, Easterbrook noted in the ruling that a Wisconsin judge had already effectively halted the investigation and that Randa had "waded into a vexed field of constitutional law needlessly."

Randa had found that regulation on coordination between candidates and other political groups could violate the First Amendment. Prior, no court had made such a finding, Easterbrook wrote.

"Until the district court's opinion in this case, neither a state nor a federal court had held that Wisconsin's (or any other state's) regulation of coordinated fundraising and issue advocacy violates the First Amendment. ...It is not possible to treat as 'bad faith' a criminal investigation that reflects (the U.S. Supreme Court's) interpretation of the First Amendment," Easterbrook wrote.

Because of that, prosecutors and investigators involved in the case remain immune from lawsuits, Easterbrook wrote.

The decision did include some criticism of prosecutors, including their wide-ranging subpoenas to O'Keefe and other conservatives.

"The subpoena issued to O'Keefe is extraordinarily broad, covering essentially all of the group's records for several years," Easterbrook wrote.

State John Doe Judge Gregory Peterson in January quashed the subpoenas that had been issued in the investigation, ruling he did not believe anything illegal had transpired. The decision, which remains under appeal, effectively shut down the investigation.

The Wisconsin Club for Growth and O'Keefe sought to go further, suing prosecutors in February in federal court and alleging they had violated their constitutional rights to free speech and association. In May, Randa sided with the group and issued an injunction stopping the investigation.

Prosecutors appealed, arguing that state court is the proper place to decide the issues raised in the case because federal courts generally stay out of litigation being determined by state courts. They stressed the investigation has been closely overseen by judges and the state Government Accountability Board, a panel that administers election laws and consists of six former judges.

The Wisconsin Club for Growth and O'Keefe argued that the federal case should stay alive because they contended prosecutors had willfully violated their rights in an effort to prevent conservatives from having their voices heard — a claim prosecutors deny.

Typically, court documents are available to the public, but in this case numerous documents were sealed or had key passages blacked out because of the secret nature of the investigation.

The Reporters Committee for Freedom of the Press and four other journalism groups intervened in the case to try to unseal the records. Two unnamed targets also intervened in an effort to keep key records secret.

Hundreds of pages of once-secret documents were unsealed, including some that were apparently inadvertently made public by the court. But in its ruling Wednesday, the court decided to leave those remaining under seal, saying that the decision on whether to reveal them should be left up to state court.

Those documents would give the public fuller details about why prosecutors believe campaign finance laws may have been violated. Prosecutors say it is important those files be kept secret to protect the privacy of people who are not charged and to ensure witnesses and targets don't destroy evidence.

The journalism group said the public deserves to see court documents that would shed light on what public officials have done and why judges have ruled as they have.

This isn't the first time that Randa, an appointee of President George H.W. Bush, has been reversed by the 7th Circuit appeals court on a high-profile case.

In the mid-1990s, Randa threw out a federal law authored by U.S. Sen. Herb Kohl, a Democrat, that protected access to abortion clinics, a ruling that was later reversed.

In 2007, Randa ordered convicted state purchasing official Georgia Thompson to be jailed while she appealed her conviction for steering a travel contract to a company of supporters of then-Gov. Jim Doyle, a Democrat. The appeals court tossed Thompson's conviction, calling evidence "beyond thin," and ordered her freed immediately.

Randa also has come under attack for issuing a favorable ruling for the Archdiocese of Milwaukee in its bankruptcy case without disclosing a possible conflict of interest. That decision is on appeal.

Lee Bergquist of the Journal Sentinel staff contributed to this report.