April 11, 2014

Federal judge rules in favor of the John Doe targets who went on the offensive in federal court.

The Milwaukee Journal Sentinel reports.

Here's the opinion (PDF). The defendants made various abstention and immunity arguments, most notably contending that the federal court shouldn't interfere with an ongoing state proceeding. But the U.S. District Judge Rudolph T. Randa said that at the investigatory stage, there's no state judicial proceeding that can be deferred to under the Younger abstention doctrine:
Wisconsin's John Doe procedure is an investigatory device, similar to a grand jury proceeding, but lacking the oversight of a jury. It is “not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime in which the judge has significant powers.” State v. Washington, 266 N.W.2d 597, 604 (Wis. 1978). “By invoking the formal John Doe investigative proceeding, law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness.” Id. The judge's responsibility is to “ensure procedural fairness. The John Doe judge should act with a view toward issuing a complaint or determining that no crime has occurred.” Id. at 605. So understood, the John Doe proceeding does not fit into any of the categories for Younger abstention. It is an investigatory process, not an ongoing criminal prosecution or civil enforcement proceeding. Nor is it a proceeding – like a civil contempt order, Juidice v. Vail, 430 U.S. 327, 336 n.12 (1977), or the requirement to post a bond pending appeal, Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 13 (1987) – that implicates a State‟s interest in “enforcing the orders and judgments of its courts, . . .” Sprint at 588. The John Doe is a criminal investigation, but it is not “akin to a criminal prosecution.” Id. at 592. Younger is inapplicable until a criminal proceeding is actually commenced....

Further... the John Doe proceeding does not offer O'Keefe the opportunity to adjudicate the federal constitutional issues that are raised in this lawsuit....

Finally, Younger abstention does not apply when the plaintiff alleges “specific facts” that the state proceeding was “brought in bad faith for the purpose of retaliating for or deterring the exercise of constitutionally protected rights.” Collins v. Kendall Cnty., Ill., 807 F.2d 95, 98 (7th Cir. 1986). O'Keefe's complaint easily satisfies this standard, precisely alleging that the defendants have used the John Doe proceeding as a pretext to target conservative groups across the state...

18 comments:

khesanh0802 said...

One must give Mr. O'Keefe credit for bringing this case.

Not being a lawyer I have had trouble understanding how this seemingly permanent - and unsuccessful- fishing expedition could be justified legally or ethically. Judge Rand seems to have the same problem.

Curious George said...

garage is at Ace picking up some duct tape and a garden hose.

You know the probe is bullshit when the investigated go after the prosecutors and judge. Democrats are worse than most third world dictators.

Sam L. said...

Good. Very good.

mccullough said...

I wouldn't be surprised if the Supreme Court didn't eventually apply Younger abstention to grand jury proceedings and similar proceedings such as the one used here.

That said, the bad faith exception seems pretty strong here.

Pogo is Only Mostly Dead said...

Your donations to political causes should be exposed, but the use of the courts and IRS to go after political enemies should be secret.

Do I have that right?

Rocketeer said...

The New Dog is Winning.

who-knew said...

I don't pretend to fully understand all the legal issues involved here, but all public information about this points to it being a partisan witch hunt, so I'd say it's a good thing that the prey in this hunt appear to be outsmarting the predators. Who knows if this will slow down or stop the whole farce.

The Drill SGT said...

Randa noted prosecutors enjoy absolute immunity, but in this matter prosecutors are acting as investigators. When doing such work, they enjoy only limited immunity, and they have not shown that limited immunity applies in this case, Randa wrote.


DA Nifong revisited...

Ignorance is Bliss said...

Just for clarity, the judge ruled in favor of the John Doe targets as to their right to proceed with the suit.

The judge has not yet ruled on the merits of the suit.

Unless I'm reading the article wrong.

gregq said...

Pogo is Only Mostly Dead said...

Your donations to political causes should be exposed, but the use of the courts and IRS to go after political enemies should be secret.

Do I have that right?


You are ready to be a liberal. :-)

gregq said...

"The success or failure of O'Keefe's claims do not depend upon the state court's interpretation of its own campaign finance laws," Randa wrote. "O'Keefe's rights under the First Amendment are not outweighed by the state's purported interest in running a secret John Doe investigation that targets conservative activists."

I'd say that's a direct shot at the "prosecutors and investigators".

garage mahal said...

Democrats are worse than most third world dictators.

Several Republican DA's are involved in this case, and an ex-military Special Prosecutor who tracked down terrorist groups. But yes, this a Democrat witch hunt. Spoken like a true Walker Fanboi. They are throwing everything they can at the wall hoping it sticks. Walker said yesterday he wants the WI Supreme Court to take the case. Problem is the majority were all put on the Court by the same groups under investigation. Not that it would matter to these

You seem to be under the impression I truly care. I don't. I will enjoy watching Republicans stampede over each other in their drunk lust for power, stab each other in the back, and watch this whole thing burn down to the ground though. Like every Crime Family, it never ends well.

David said...

Ooooh, sunlight! Back to the casket, vampires.

(But remember, at night they can come back out.)

David said...

Now that I've made my result oriented comment, could someone who knows the law in this area comment on whether they think Judge Randa got it right here?

Mark said...

Ignorance is Bliss - you read that correctly. Prosecutors in the John Doe sought to have this dismissed, they failed in that attempt.

This came out the other day, it was just one more pawn moving around in this chess match.

Curious George said...

"garage mahal said...
Democrats are worse than most third world dictators.

Several Republican DA's are involved in this case, and an ex-military Special Prosecutor who tracked down terrorist groups."

LOL Did you see any of the Republicans on this Wisconsin Club for Growth lawsuit?

The answer would be "no".

This is being driven from Milwaukee and Madison. Chisolm has prosecutors and investigators on the case, as does Ismael Ozanne in Dane County.

This is about two things, shutting down conservative groups in the run up to the fall election, and negative headlines for Walker.

Seems to be the national playbook for the Dems...IRS nationally, John Doe here in WI.

President-Mom-Jeans said...

Sure fatty, you don't care at all.

Only why you have been bleating about secret routers for two years.

gerry said...

Several Republican DA's are involved in this case

1). You meant the plural "DAs" - unless you forgot the noun the possessive "DA's" is supposed to moderate.

2). You are delusional asshole.