As predicted, the 7th Circuit requires abstention in the John Doe investigation case, leaving it to the state judge to address the constitutional questions.

Here's the PDF of the opinion.

After the oral argument on September 9th, I wrote: "I predict the prosecutors will win in this case, but mainly because the John Doe investigation can and should be shut down by the state court judge." And that seems to be what happened. I'm going to read the whole thing and get back to you.

ADDED: The opinion is about the scope of the Younger abstention doctrine, which requires federal courts to refrain from enjoining an ongoing proceeding in state court, on the theory that the state court judge ought to handle the federal questions — even federal constitutional question — that arise in the context of that proceeding. The difficult part here is that in this case there is a state court judge overseeing a John Doe investigation, and, as Judge Easterbrook, writing for the 3-judge panel says (citations omitted):

Courts of appeals have disagreed about the extent to which Younger compels abstention when states are conducting grand jury investigations (which John Doe proceedings are like). We need not take sides, because principles of equity, comity, and federalism counsel against a federal role here.

One important question is whether the plaintiff suffers irreparable injury. O’Keefe and the Club say yes, because donations have dried up, but that’s not the right temporal perspective. We must ask whether the injury would be irreparable if the federal court were to stay its hand. And it is hard to see that kind of injury, because plaintiffs obtained effective relief from Judge Peterson before the federal judge acted — indeed, before filing this suit. True, uncertainty will continue pending appellate review within the Wisconsin judiciary, and this may well affect donations, but the commencement of this federal suit also produces uncertainty, because it entails review by a district judge, three or more appellate judges, and potentially the Supreme Court of the United States. The state case might be over today had the district judge allowed it to take its course.

That is, federal courts shouldn't interfere where state courts can and should provide the relief. This is a conservative judicial principle. I want to add that for the edification of Scott Walker supporters and to stem any gloating that Scott Walker haters might think is a good idea.

AND: There is an exception to the Younger doctrine, which the plaintiffs tried to use here, that applies when the federal rights claimants show that the prosecutors in state court are proceeding in "bad faith." The question is whether the prosecutors are really attempting to secure a valid conviction or whether they are simply using the legal process to harass the federal court plaintiffs. The 7th Circuit panel found some perplexity in the free speech issues about campaign coordination:

The Supreme Court has yet to determine what “coordination” means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person’s election? What if the speech implies, rather than expresses, a preference for a particular candidate’s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician’s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions.

This is a nudge to the state judge to shut down the investigation, and yet there is something very disturbing about this ambiguity in free speech law and the leeway it gives prosecutors to stall a political group throughout a campaign season. I'd like to see the Supreme Court make this clear, but it's not as though it's likely to see a petition for certiorari and do anything about it in the current election season.

Now, a separate question, aside from the request for an injunction, is the claim for damages. Here, immunity doctrine stands in the way of the federal rights claimants. The very ambiguity seen in the last blocked quote, above, slots into the qualified immunity doctrine. If the law is not clearly established, government officials have immunity from damages claims.