September 24, 2014

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.

144 comments:

Badger Pundit said...

Glad you're on this -- look forward to reading your detailed analysis.

I agree with you that the abstention ruling is unsurprising, and justified, but I wonder about your reaction to the qualified-immunity ruling. If it's the final word, Chisholm and the other prosecutors are off the hook on the basis that it wasn't clearly established whether or not the activities of the outside groups involved here were permitted by state law and/or constitutionally protected.

But what of the recent allegations that Chisholm pursued the investigation motivated, at least in part, by personal/partisan animus -- because his wife, a union steward, was upset about Act 10, leading him to vow to stop Walker from hurting people?

Couldn't a litigation theory focused on personal/partisan animus get around the general analysis of qualified immunity in this decisions?

Michael K said...

It will be dragged out until after the election.

Badger Pundit said...

For readers who want more background, here's the Milwaukee Journal Sentinel article on the decision:
http://www.jsonline.com/news/statepolitics/johndoe25-b99358722z1-276976981.html

Anonymous said...

But what of the recent allegations that Chisholm pursued the investigation motivated, at least in part, by personal/partisan animus -- because his wife, a union steward, was upset about Act 10, leading him to vow to stop Walker from hurting people?

Not only is she a union boss, but there are allegations that she personally hung those Blue Fist posters above the DA's desk. It is disgusting that the liberal media won't report on that.

Basil said...

The dismissal of the action and the decision on the merits of the qualified immunity issue seems to be an outrageous abuse of power. These issues have not even been tried and discovery and motions practice have not taken place. This is an appeal of an injunction not an appeal from on Order granting a Motion for Summary Judgment.

Also, the Court applies qualified immunity while at the same time discussing the case as if it were a prosecution, which would involve absolute immunity. The point of the lawsuit is that this is NOT a grand jury and that the John Doe "prosecutor" is not a real prosecutor.

Maybe this is why Appellate Courts should not issue decisions in two weeks. Maybe they should think about it for a while.

garage mahal said...

This will be extremely useful to the Burke campaign.

Mark said...

It is quite clear reading the brief that Judge Randa gets pretty heavily overruled in this decision. It is right that he be criticized over skipping holding the hearing, among other points.

His decision is quite clearly ripped to shreds.

Ann Althouse said...

"This will be extremely useful to the Burke campaign."

Why?

Ann Althouse said...

Is Burke into the suppression of political speech?

Anonymous said...

Is Burke into the suppression of political speech?

Are reasonable limits and transparency laws the same as suppression?

Should it be legal for someone to wear a mask while yelling "fire" in a movie house or are you in favor of suppressing their speech?

The Drill SGT said...

Is Burke into the suppression of political speech?

Not really. Only Half the time. If it is coordination with the Teachers Union, not a problem....

garage mahal said...

Is Burke into the suppression of political speech?

"No opinion issued by the Supreme Court, or by any court of
appeals, establishes (“clearly” or otherwise) that the First
Amendment forbids regulation of coordination between
campaign committees and issue-advocacy groups—let alone
that the First Amendment forbids even an inquiry into that
topic."

Walker's campaign isn't being investigated for speaking.

Bobber Fleck said...

Ann Althouse said: "This will be extremely useful to the Burke campaign."

Why?


It appears the gloves are coming off. From the JS article: 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."

Bobber Fleck said...
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Bobber Fleck said...
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The Drill SGT said...
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Birkel said...

"garage mahal", Mark and madisonfella (Inga) are quite pleased to suppress political speech. Mary Burke benefits from suppression of political speech, as each of the Fascist Leftists plainly concur is true in these very comments.

The point of the exercise was to stop political speech.

Ann Althouse said...

"Walker's campaign isn't being investigated for speaking."

Your narrow, illiberal view of speech is noted. Does Burke share it?

garage mahal said...

Walker's campaign is being investigated for speaking? I must have missed that part.

garage mahal said...

Your narrow, illiberal view of speech is noted. Does Burke share it?

You disagree with Easterbrook then? If Walker and outside groups don't like our state laws they should change them.

Douglas said...

Garage - I know you aren't a lawyer, so I should cut you some slack, but just for the record, Judge Easterbrook's decision was on abstention, not on the merits.

Michael said...

Garage

Another warm thank you from the sticks! Some really hilarious posts, actually laugh out loud. I am as happy as I can be reading your "take" on this matter and writing it out loud as it were right here on the Althouse blog where you apparently love to humiliate yourself with your deep understanding of the issue at hand. A legal issue. You do know where your are, right?

Thanks again, dude. Outfuckingstanding performance.

Michael K said...

"Is Burke into the suppression of political speech?"

You're kidding, right ?

Badger Pundit said...

Ann,

Isn't it possible that on remand, the plaintiffs might be able to justify an injunction based on the "bad faith" exception to Younger, AND beat the qualified-immunity defense, by supplementing the record with testimony from Michael Lutz, the ex-friend of prosecutor Chisholm (he was a cop who was partnered with Chisholm's brother-in-law) who overheard Chisholm say he was pursuing the prosecution to "get" Walker, in retaliation for Walker passing Act 10?

damikesc said...

Is Burke into the suppression of political speech?

She's a Democrat. So yes.

Badger Pundit said...

FYI, to readers who may be unaware of Ann's scholarly work, this is an area which she actually knows something about! E.g., this article:
https://media.law.wisc.edu/m/mtfdy/althouse_how_to_build_a_separate_sphere_100_harv.pdf

Birkel said...

Althouse:

Was anything beyond the Anti-Injunction decision other than dicta? Why should the part of the decision regarding immunity -- qualified or otherwise -- be respected?

mccullough said...

It's disturbing the special prosecutor asked for donor lists for Club for Growth.

It really has nothing to do with whether Club for Growth coordinated with Walker's political campaign.

The state judiciary should put this asshole in his place.

traditionalguy said...

Great Political Theater with another generation ( i.e., election cycle) of disappointed Jarndyce v. Jarndyce heirs to their inheritance of Free political Speech without criminal defense costs and a decade's delay.

Wisconsin could add political donating to the list of acts protected from oral accusation only cases under the Statute of Frauds.

Pretending tp enforce laws is a piss poor excuse to destroy innocent people...or does Wisconsin want to be like Chicago.

mccullough said...

Birkel,

The qualified immunity ruling was not dicta. The case for damages against the defendants is dismissed on the merits.

The request for injunction was dismissed based on federalism principles enunciated in the Mitchum case, as well general principles of equity that would deny injunctive relief in this case. Even when the Anti-Injunction Act doesn't apply, as it didn't here because its a 1983 suit, general equitable principles still apply.

There is no ruling on whether or not Younger abstention applies to a John Doe proceeding since the court didn't need to reach that issue. The bad faith discussion was dicta, since that's an exception to Younger, but the Court suggested that it wasn't objective bad faith because the law in this free speech area isn't clear.

The court did not mention subjective bad faith because no hearing was held as to the motives of the special prosecutor or the Milwaukee District Attorney.

Curious George said...

"garage mahal said...
This will be extremely useful to the Burke campaign."

"Ann Althouse said...
Why?"

Mr. I Tappa Kehgga of course can't answer this because his dumb ass lefty blog didn't address it.

garage mahal said...

Another warm thank you from the sticks! Some really hilarious posts, actually laugh out loud. I am as happy as I can be reading your "take" on this matter and writing it out loud as it were right here on the Althouse blog where you apparently love to humiliate yourself with your deep understanding of the issue at hand. A legal issue. You do know where your are, right?

Why don't you tell me where I'm mistaken, genius?

You're always yapping from the sidelines but you never want to step out onto to the field where you might get hit. I highly doubt you've ever played any physical sports, but you wouldn't actually have to get "hit" on a blog comment.

Spill it out or shut the fuck up.

Birkel said...

mccullough:

I read the decision. The decision, as I read it is to send the case back to the state court system. The state court system is free to hold a trial on the merits as to whether the prosecutors deserve immunity and nothing the circuit court wrote will affect the ability of the state court to reach that issue.

Do you believe the circuit court has ordered the courts of the state of Wisconsin not to consider this issue? If so, what gives them the power to do so since they properly reached the conclusion that the federal courts should not have intervened in the state court matter?

And following from that, I ask again why it is not properly dicta.

phantommut said...

I see the logic of the ruling, but I don't see the justice of it. Hopefully it does get to the Supreme Court because the root issue (whether the John Doe law functionally suppresses free speech) is an important one.

But that won't happen any time soon.

Meanwhile, the garages of the world are going to flog the "he's a CROOK!" lie mercilessly. That speech -- which strikes me as ridiculous and actively harmful to both individual citizens and to the political process in general -- goes unabated.

Drago said...

garage: "I highly doubt you've ever played any physical sports..."

LOL

Looks like our high school hero is upset!!

I'm sure you were quite the Friday Night Lights star!!

Drago said...

garage: "Spill it out or shut the fuck up."

Quick, somebody give garage an "Althouse Blog Posting Hall Monitor" armband. Stat!!!

mccullough said...

Birkel,

That is incorrect. The issue on the injunction remains alive in state court as to whether the investigation violates state law or federal law.

The damages issue is resolved. Qualified immunity applies and the defendants can not be sued under federal law.

Also, since the federal plaintiff didn't also bring a state law claim for damages in the federal proceeding, under principles of claim preclusion, the plaintiff cannot bring a state law claim in state court for damages either. If it had, the court would have dismissed that claim without prejudice to the plaintiff bringing it in state court.

Game over on damages.

Gusty Winds said...
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Birkel said...

Wow. I skipped most of what "garage mahal" wrote but I must thank Drago for bringing that "physical sport" comment to light. How ridiculous. Springsteen just called. He wants his "Glory Days" back, "garage mahal".

mccullough said...

Also, to round out the decision, qualified immunity does not apply to a request for an injunction, only a request for damages.

Birkel said...

mccullough:

So your reading of the decision is "federal courts cannot intervene due to the Anti-Injunction law but can intervene on this other issue which is also at issue in the state courts"?

Does that strike you as reasonable?

Drago said...

garage: "You're always yapping from the sidelines but you never want to step out onto to the field where you might get hit."

LOL

This is part of the problem garage. You aren't "on the field" as evidenced by the reaction of those knowledgeable in the Law to your questions/comments.

example:

Douglas said...
Garage - I know you aren't a lawyer, so I should cut you some slack, but just for the record, Judge Easterbrook's decision was on abstention, not on the merits.

Now, for the record, I'm not "on the field" on this topic for precisely the same reason as you: lack of clear understanding of the legal issues, procedures and precedents in play.

The truly wise/learned man knows precisely just how much he doesn't know.

Your actions indicate the mental meanderings of someone less than wise or learned.

No shame in that, but why flaunt it so?

garage mahal said...

Now, for the record, I'm not "on the field" on this topic for precisely the same reason as you: lack of clear understanding of the legal issues, procedures and precedents in play.

If anyone wants to explain where I erred in interpreting Easterbrook's opinion I'm happy to hear and concede the point.

mccullough said...

Birkel,

The Anti-Injunction Act does not apply to a suit under 42 USC 1983.

That hurdle was cleared.

The other hurdles are Younger, Mitchum, and general principles of equity that inform a judge's decision as to whether or not an injunction is appropriate.

The court punted on the Younger issue, agreed that Mitchum (which holds that even if the Anti-Injunction Act doesn't apply, principles of federalism still apply and make an injunction inappropriate, and also agreed that general principles of equity (whether there is irreparable harm if no federal injunction is issued) make an injunction inappropriate.

What the court did not decide: whether the First Amendment makes laws against issue advocacy coordination illegal. It also did not decide if the defendants brought their John Doe investigations in bad faith (i.e. selective prosecution).

Drago said...

garage: "If anyone wants to explain where I erred in interpreting Easterbrook's opinion I'm happy to hear and concede the point."

Of course.

The double down.

Well played.

You don't seem to understand that spending even a moment engaging with you on these issues is wasted time. You haven't the capacity to "interpret" Easterbrooks decision. Douglas' comment above is an example why.

Everyone's time is much better spend perusing the comments of those in the know.

Gusty Winds said...

You don't have to be a lawyer to understand John Doe. Just grab a torch and join the parade.

Gusty Winds said...

Professor, when Walker wins will you please post a "gloat all you want cafe"? Please?

mccullough said...

Garage,

There are a few big issues the Court's opinion didn't address.

Whether Wisconsin's law forbids issue advocacy coordination. That is for the Wisconsin courts to determine. So far, the state court judge has agreed with the Club for Growth on this issue.

Whether, if Wisconsin law forbids issue advocacy coordination, that law is unconstitutional under the Wisconsin Constitution.

Whether, if Wisconsin law forbids issue advocacy coordination, that law is unconstitutional under the US Constitution.

Whether, if Wisconsin's law is not unconstitutional under either the state or federal constitution, the investigation into Club for Growth is selective enforcement of the law, which is unconstitutional even if the law is not.

Birkel said...

mccullough:

Since there has been no discovery on the issue of bad faith on the part of the prosecutors, how could the Circuit Court reach the decision that qualified immunity barred the state court from considering the issue?

If bad faith can be proven, the state court is free to pursue the issue, right? So what the Circuit Court said is, what?

(You seem to know much more than me. I confess ignorance on these issues. But I don't see how the state courts are barred from allowing a trial on the merits for whether the defendants acted in bad faith. If there's an E-mail that says "Hey, let's fuck with those conservative and Christian bastards because they're our political enemies and we want Walker to lose, Lose LOSE!" I think equity would demand a loss of immunity.)

Drago said...

Drago to garage: "You don't seem to understand that spending even a moment engaging with you on these issues is wasted time. You haven't the capacity to "interpret" Easterbrooks decision."

In fairness, neither do I.

richard mcenroe said...

"Is Burke into the suppression of political speech?"

She's a Democrat so the odds are in favor of it.

Rusty said...

"You're always yapping from the sidelines but you never want to step out onto to the field where you might get hit."

NASA level irony

garage mahal said...

mccullough;

I responded to a comment asking me if Mary Burke is into suppression of political speech. I responded that Easterbrook, in his opinion, stated that the state can regulate campaign committees and outside groups, and that the state can open investigations. There is no evidence that the state intended to suppress the free speech of anyone. Correct me if I'm wrong.

mccullough said...

Birkel,

"Bad faith" is an exception to a federal court having to abstain from issuing an injunction under the Younger case. The court never decided whether Younger abstention even applied in the first place, although the trial court ruled that he wouldn't abstain under Younger because of the "bad faith" exception.

The court here looked at "bad faith" as a factor in deciding whether under principles of federalism and equity (not as an exception to Younger just as something to consider) the district judge should have issued the injunction. Since the judge didn't hold a hearing, the only evidence of bad faith would be issuing subpoenas/investigating for violation of a law that was unconstitutional. Since it's not clear that the law is unconstitutional, there is no evidence of objective bad faith.

With respect to subjective bad faith, the Plaintiff didn't sue for selective enforcement (maybe because it's not clear that issuing subpoenas/investigation is enforcement of the law; it is mostly abuse of process, which is a state law claim but not a federal constitutional claim) so there was no reason to hold a hearing anyway on subjective bad faith.

If the Club for Growth was ever prosecuted, it could raise a selective enforcement defense.

mccullough said...

Garage,

The opinion did not say that. The opinion said that it's unclear if the state law is unconstitutional, and since it's unclear, the plaintiff can't sue for money damages for being investigated for possible violations of the law because of qualified immunity.

The court could have made it clear whether the law was unconstitutional, but declined to address the issue because it said an injunction was not appropriate given the pending state court proceedings, which will also address the issue of whether Wisconsin law even prohibits issue advocacy coordination.

Even if the court addressed the issue and found the law unconstitutional and upheld the injunction, the defendants would still not be liable for damages because of qualified immunity (it had not been established that law was clearly unconstitutional).

As it stands, the subpoenas have been quashed by the state court saying there is no evidence that Wisconsin law has been violated.

Don't know how this helps (or hurts) the Burke campaign. Has she chimed in as to whether she thinks Wisconsin law bans coordination of issue advocacy? Does she think this is a good idea? Does she think the First Amendment makes this an unconstitutional law?

garage mahal said...

mcullough

Easterbrook:

"No opinion issued by the Supreme Court, or by any court of
appeals, establishes (“clearly” or otherwise) that the First
Amendment forbids regulation of coordination between
campaign committees and issue-advocacy groups—let alone
that the First Amendment forbids even an inquiry into that
topic."

I interpret that meaning states can enact laws regulating campaigns and outside groups and that the state can open investigations into possible violations of those laws. How do you interpret that?

Anonymous said...

No, really. Are reasonable limits and transparency laws the same as suppression?

If there are to be no limits on political speech, including a right to anonymity while doing so, does that mean one should be allowed to put on a mask and scream "Fuck Mary Burke right in her hairy ass!!" over and over again at the Farmer's Market?

mccullough said...

Garage,

It is in the context of discussing qualified immunity from suit for damages for the prosecutors.

The Supreme Court has not weighed in on the issue and neither have the courts of appeal as to whether the First Amendment prohibits laws that ban coordination of issue advocacy. So the defendants could not have violated the plaintiff's clearly established rights, since the right has not been clearly established.

Now it's up to the Wisconsin courts, and then maybe the Supreme Court if things get that far, to determine if laws banning coordination for issue advocacy are unconstitutional.

Actually, it will probably not get that far because the Wisconsin courts will likely decide that Wisconsin law doesn't even ban coordination of issue advocacy.

Bob Ellison said...

In other news, the Arizona Cardinals are three and zero.

mccullough said...

The Cardinals are pretty good team. Better than the Packers

ALH said...

MadisonFella- thanks a million for the visual.

Yes - I believe there are limits to speech.**
I am pretty sure that if someone were to do what you mentioned, they would have to sit out from next week's Farmers Market.

**But "IANAL"

Joshua Barker said...

What I don't understand, is how an on-going, open-ended, politically motivated witch-hunt that gags and silences those it targets can be viewed as anything other than a gross violation of political freedom.

I could understand if this was being applied against drug dealers or a child pornography ring or if it was being handled by a neutral outsider or 3rd party, but in a state with this much animosity and contention between the political parties, this entire thing reeks of corruption from top to bottom.

Anonymous said...

I am Turtle Man. Everyth_____ing has a shell. The Shell of Fre____ee Speech has bumps that are scars that come from bumping into other Turtles. Some of you are_____ wrong.

It is turtles all the way down.

Bob Ellison said...

garage mahal keeps citing:

No opinion issued by the Supreme Court, or by any court of
appeals, establishes (“clearly” or otherwise) that the First
Amendment forbids regulation of coordination between
campaign committees and issue-advocacy groups—let alone
that the First Amendment forbids even an inquiry into that
topic.


Come, let us be reasonable.

The First Amendment declares that we Americans can speak our minds.

Incorporation of the First Amendment prohibits state governments and smaller governments from prohibiting us from speaking our minds.

Under what rules might you seek to uphold this criminalization of speech?

Anonymous said...

I am Turtle Man. Fre____edom of Speech is for those witho___ut a shell. Abuse. Plankton. Seashell. People.

Anonymous said...

I am Turtle Man. Your nec___ks are pale and exposed. Bite Bite Bite Bite. I am Turtle Man.

It is Turtles all the way down.

Anonymous said...

I am Turtle Man. I see your sof____t belly. Soft belly soft belly liar liar liar. Eyelid.

It is turtles all the way down.

garage mahal said...

Actually, it will probably not get that far because the Wisconsin courts will likely decide that Wisconsin law doesn't even ban coordination of issue advocacy.

The state Supreme Court is next as I understand it. And they have been hesitant to do so, perhaps understandable as the groups under scrutiny contributed millions of dollars electing members of the court.

RecChief said...
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RecChief said...

interesting. On an earlier thread, commenter Garage Mahal said, "Court reinstates John Doe probe into Walker's campaign."

But the 7th circuit simply threw the case back to the state judiciary where, Althouse patiently explained, the case belongs (though I am not entirely certain I agree, but...'Merica). Apparently, commenter Garage Mahal thinks state judges in Wisconsin are Democrat Party partisan hacks the same as him, so reinstatement of the probe is a foregone conclusion.

garage mahal said...

interesting. On an earlier thread, commenter Garage Mahal said, "Court reinstates John Doe probe into Walker's campaign."

That was copied and pasted word for word from the Journal Sentinel.

Bob Ellison said...

garage mahal, what principles would you propose to govern political speech and campaigns?

Alex said...

It's a Scott Walker thread.

Garage has spammed/jizzed all over it.

Never in doubt.

Original Mike said...

"That was copied and pasted word for word from the Journal Sentinel."

Figures.

Beldar said...
This comment has been removed by the author.
NotquiteunBuckley said...

I feel sorry for the poor bastards, I really do.
Just like G. Scott playing General Patton.

You see, the truth is is it's Kochs all the way down.

Nobody can stop it.

No group or organization.

Nothing can stop the Kochs and the laughter from the right has only just begun to begin.

Drago said...

Alex: "Garage has spammed/jizzed all over it."

Uh, that would be noted WI high school graduate and Soliciter Maximus (Order of the Hack), one garage mahal.

Curious George said...

"mccullough said...
Don't know how this helps (or hurts) the Burke campaign. Has she chimed in as to whether she thinks Wisconsin law bans coordination of issue advocacy? Does she think this is a good idea? Does she think the First Amendment makes this an unconstitutional law?"

You really need to bypass garage on this and go write to the source...not an easy task with Mary "You heard it here last" Burke.

Unknown said...

Eric Holder just added his voice to a class action lawsuit saying New York defenders are abusing poor people, and I'm supposed to care about the persecution of a man with a history of hiring racists to abuse poor people?

I honestly don't understand,...

Crack

Chuck said...

I keep wondering when Wisconsinites are going to repeal the John Doe Investigation law.

It's one of the weirdest Star Chamber laws I know of. With almost daily proof of ho it can be abused.

When was the last time a Wisconsin John Doe investigation exposed some real public corruption? That is, by operation of the John Doe law's unique provisions, that wouldn't have been possible by ordinary law enforcement investigative and prosecution tools?

Diogenes of Sinope said...
This comment has been removed by the author.
Diogenes of Sinope said...

Wisconsin's John Doe law is an open invitation to political prosecutorial abuse. Wisconsin's John Doe law will be repealed the first time a Republican prosecutor effectively uses it in a political attack against a Democrat.

Mark said...

Diogenes, it has been.

Chisholm has successfully prosecuted Democrats under the Doe process and he is far from the first.

Perhaps you should actually look into what you are saying before claiming things.

RecChief said...

"garage mahal said...
interesting. On an earlier thread, commenter Garage Mahal said, "Court reinstates John Doe probe into Walker's campaign."

That was copied and pasted word for word from the Journal Sentinel."

That's funny, because on the other thread, there is no attribution. It's presented as your own thoughts. Man, I could swear I have seen nearly this exact scenario play out recently.

Birkel said...

mccullough:

While I appreciate your efforts to explain what the Circuit Court thinks it's doing, that explanation only works if one assumes there wasn't an attempt to deprive people of their civil liberties. And one cannot be sure that is the case just because the alleged perpetrators of the alleged bad acts tell the Circuit Court that they did not intend what allegedly happened.

If a state court judge wishes to allow a claim to proceed through discovery, I believe a proper interpretation of the Circuit Court's decision is that the burden of proof is quite high but not unreachable. Again, my smoking gun hypothetical from above would prove conclusively the intent of the prosecutors. If I were a state court judge, I wouldn't feel barred from allowing discovery on the question of whether that evidence existed.

Birkel said...

Mark:

There is a difference in a process that produces criminal convictions of laws that were broken and this case. In this case there is no law allegedly broken.

So you'll please point to a fishing expedition by a Republican prosecutor that is similar to this one. Thanks in advance.

damikesc said...

If there are to be no limits on political speech, including a right to anonymity while doing so, does that mean one should be allowed to put on a mask and scream "Fuck Mary Burke right in her hairy ass!!" over and over again at the Farmer's Market?

Yes. Polite speech doesn't need protections in the first place. The offensive type is the one that needs it.

Mark said...

Birkel, some courts found reason to investigate and did allow it. Some haven't. To say that this has been conclusively ruled always one direction is incorrect.

Regarding bad faith with the investigators, do you think that ex cop wants to go on record and testify? Do you think his allegation would stand after they put more than one witness on the stand disputing his allegations?

I am no lawyer, but that case looks quite weak.

Meade said...

RecChief said...
"garage mahal said...
interesting. On an earlier thread, commenter Garage Mahal said, "Court reinstates John Doe probe into Walker's campaign."

That was copied and pasted word for word from the Journal Sentinel."

That's funny, because on the other thread, there is no attribution. It's presented as your own thoughts. Man, I could swear I have seen nearly this exact scenario play out recently.


Ha ha! Simply complex.

Michael said...

Garage

Ah, the man in the arena. I box. . The spilling out would be your teeth on the sidewalk.

Very funny stuff about the case, though, so I want to thank you for that. Did you learn your law in jail as so many do?

Original Mike said...

"Don't know how this helps (or hurts) the Burke campaign."

It's a big win for Burke, because conservative donors have been on the sidelines for fear of being dragged into the John Doe. Money for groups like the Wisconsin Club for Growth has dried up. This state of affairs will continue until the case is settled.

Chisholm has no intention of actually prosecuting a crime. He has sought to suppress speech in favor of Scott Walker and he has succeeded.

Unknown said...

Betamax, no crack-inspired posts? I didn't see it either until the 9/25/14, 12:35 AM
unknown comment.

garage mahal said...

Ah, the man in the arena. I box. . The spilling out would be your teeth on the sidewalk.

Okay old man. Sure thing.

Curious George said...

"Mark said...
Chisholm has successfully prosecuted Democrats under the Doe process..."

Really? Who?

Mark said...

Curious George, you know this fact and could easily google it. As you seem incapable of using search, here is one to get you going on:

Chisholm successfully prosecuted Milwaukee County Supervisor Toni Clark, a Democrat and supporter of Barack Obama. She was convicted of a felony for filing a false campaign finance report. Chisholm’s office also helped prosecute Ald. Michael McGee, Jr. who was successfully convicted of bribery and extortion.

There are more, including unsuccessful charges against Dems [Johnny Thomas].

Claiming that there aren't because you refused to even look is lame, George.

Birkel said...

Mark's so cute when he doesn't respond to the substance of a post. Let the trolling troll troll-away.

"garage mahal" is an internet tough guy of the first degree. I've got a $20 says my wife could beat his arse.

Onward trolls. Mush!

mccullough:
Can you tell me why a Wisconsin state court should feel barred from allowing discovery on the question of whether the Doe process is being exploited to suppress civil rights? Where was that reached in the Circuit Court's decision? On what evidence? Or, as I have supposed above, did the Circuit Court merely take the prosecutors' words for it?

Birkel said...

Now Mark is chiding Curious George because Curious George is able to distinguish between prosecutions of criminal activity and never ending investigations into no alleged criminal activity.

Precious.

Mark said...

Bickel, look up Johnny Thomas.

garage mahal said...

Now Mark is chiding Curious George because Curious George is able to distinguish between prosecutions of criminal activity and never ending investigations into no alleged criminal activity.

John Doe prosecutors allege Scott Walker at center of 'criminal scheme'

No alleged criminal activity. Center of criminal scheme. You nailed it again Birkel.

Birkel said...

What is the alleged crime, "garage mahal"? Name it. Cite the criminal code. Be specific.

Or, failing that, make some shit up.

Birkel said...

Mark:

Your point, as I understand it, is that a Democrat was the target of a dreadful prosecution? Now, if you'll please point to the alleged civil rights violations of that case I'll say you're in the ballpark.

Give it a whack.

garage mahal said...

7th graph from the link.

"The scope of the criminal scheme under investigation "is expansive," Schmitz wrote. "It includes criminal violations of multiple elections laws, including violations of Filing a False Campaign Report or Statement and Conspiracy to File a False Campaign Report or Statement."

Curious George said...

"Mark said...
Curious George, you know this fact and could easily google it. As you seem incapable of using search, here is one to get you going on:

Chisholm successfully prosecuted Milwaukee County Supervisor Toni Clark, a Democrat and supporter of Barack Obama. She was convicted of a felony for filing a false campaign finance report. Chisholm’s office also helped prosecute Ald. Michael McGee, Jr. who was successfully convicted of bribery and extortion.

There are more, including unsuccessful charges against Dems [Johnny Thomas].

Claiming that there aren't because you refused to even look is lame, George."

First of all I didn't claim anything Corky.

Now lets look at the prosecutions.

Toni Clark: Despite years and years of mismanaging campaign funds, they only prosecuted for submitting a false campaign report in 2007, a felony that calls for 3-1/2 years in prison. After getting a conviction, THEY asked the judge for probation.

Powerful stuff.

Next Michael McGee, who had a long history of criminal activity long before Chisholm got involved. As a matter of fact, McGee's was first convicted of federal crimes, and finally agreed to a plea bargain and got a slap on the wrist from Chisholm.

Keep in mind that McGee was a thorn in the side to the DEMOCRATS in Milwaukee County.

Speaking of lame.

But I want to add one thought, all of those listed are black. Funny you didn't find Chisholm a racist. I mean everything done to Obama is racist, why not this?

Birkel said...

I know it's unfair to pick on "garage mahal" because he's not able to think clearly. It's probably all that tough guy sports participation that addled his brain. Honestly, I hope there is a lawsuit in his future. His middle school football career has clearly caused permanent injuries.

You cited a self-interested allegation by one of the conspirators to deprive Wisconsin citizens of civil rights. Seriously, your middle school coaches owe you money.

mccullough said...

Birkel

The club for growth didn't file a lawsuit in state court so there is no discovery to be had there. There is also no prosecution and the John Doe subpoenas have been quashed.

The federal court case didn't accuse the defendants of selective enforcement, it was a first amendment claim for damages. It is now too late for the plaintiffs to bring another claim based on the same actions. Under general legal principles, you cannot bring successive lawsuits based on the same underlying actions. You have to assert all your potential claims at one time.

Birkel said...

mccullough:

There are other potential plaintiffs.

mccullough said...

No criminal charges have been brought against anyone here. Prosecutors beliefs and allegations to the media are not evidence.

The state court quashed the subpoenas saying no evidence of any crime. The prosecutors are appealing.

Subpoenaing a group's donor list is appalling behavior.

mccullough said...

Birkel,

That is true. Other targets of the John Doe witch hunt are free to file lawsuits.

Birkel said...

mccullough:

Now I understand why my point to you did not make sense, and vice versa. You are talking specifically about The Club for Growth. I am talking about bringing the prosecutors to account for their actions.

Also, I would file charges with the Wisconsin Bar Association. They are not bound by the Circuit Court decision.

garage mahal said...

There is also no prosecution and the John Doe subpoenas have been quashed.

This is the part where I am confused. Peterson quashed some(?) subpoenas, they stayed his own order two weeks later. That matter is still in the Wisconsin Court of Appeals?

Birkel said...

"garage mahal":
This is the part where I am confused.

The word 'this' has a very specific meaning and you're using it incorrectly.

garage mahal said...

birkel
Just get fucking lost you annoying gnat.

Birkel said...

It's okay, "garage mahal". You're job trolling the internet is going well. There's no reason to lash out at others in anger for your own mental deficiencies. You should get those middle school coaches to pay for what they've done to you. I fully support your efforts to recover your obvious damages.

Anonymous said...

Leave garage alone... there weren't any 'concussion protocols' in Pop Warner football when he strapped on his cleats.
Bless his heart.

RecChief said...

"garage mahal said...
There is also no prosecution and the John Doe subpoenas have been quashed.

This is the part where I am confused."


I haven't been following this as closely as I would if I was actually from Wisconsin. But if all you do is copy and paste from the Milwaukee Sentinel-Journal perhaps that is the original source of your confusion.

Dumb and lazy is no way to go through life, son. (that's a paraphrase, not a quote, just so you don't waste our time on that point)

hombre said...

@garage: Do you actually believe, despite the finding of two judges to the contrary, that these investigations should continue, or are you just engaging the enemy on all fronts here?

If you respond, please don't cite the 7th Circuit, which didn't rule on the merits.

Drago said...

Livermoron said...
Leave garage alone... there weren't any 'concussion protocols' in Pop Warner football when he strapped on his cleats.

Spoken like someone who didn't have the courage to tee it up tee-ball.

Shame on you sir!!

See garage, I've got yo back!

garage mahal said...

Aaaand the D Listers have arrived.

Anonymous said...

Geez, Drago....
My LL team made it all the way to the LLWS quarter-final!
So, you kind hurt me with your comment.

Oh well, that's why the good Lord gave us alcohol.

hombre said...

@garage: D-lister or not, I repeat, "Do you actually believe, despite the finding of two judges to the contrary, that these investigations should continue, or are you just engaging the enemy on all fronts here?

If you respond, please don't cite the 7th Circuit, which didn't rule on the merits."

garage mahal said...

"Do you actually believe, despite the finding of two judges to the contrary, that these investigations should continue, or are you just engaging the enemy on all fronts here?

Yes. One of those two judges was just smacked down yesterday for poking his nose into a state matter.

Drago said...

Livermoron said...
Geez, Drago....
My LL team made it all the way to the LLWS quarter-final!

Name-dropper!!

But I'll bet you never experienced a brush-back pitch, so how can you say you've been "on the field"?

Amiright garage?

LOL

Drago said...

garage mahal said...
Aaaand the D Listers have arrived

And by "D" one assumes you mean "degree-ed" or "diploma-ed" from one or more institutions of higher learning.

Which, of course, easily excludes you.

There is still a chance for you to move from the GED list to the D-list though.

Oh wait. You'd have to actually work at it.

Nevermind.

Please return to providing more of your scintillating legal analysis.

Anonymous said...

Drago, OK I give up.... Sorry for gettin' a little 'handsy' with garage. He yo' bitch and I should've stepped away.

EMD said...

"Fuck Mary Burke right in her hairy ass!!"

How do you know so much (apparently) about Mary Burke's ass?

Drago said...

I'm giving odds on whether or not garage still wears his high school lettermans jacket while posting on Althouse.

Courageously.

Always courageously.

When Churchill spoke of the "man in the arena", who else but garage could he have been thinking about?

hombre said...

"Yes. One of those two judges was just smacked down yesterday for poking his nose into a state matter."

Sorry. It was a compound question. "Yes" you actually believe ..., or "yes" you are engaging the enemy...?

As for the smackdown on abstention grounds, it neutralizes, but does not alter, his finding on the merits.

Unknown said...

Drago, still blathering, damn dude, go get laid.

garage mahal said...

Sorry. It was a compound question. "Yes" you actually believe ..., or "yes" you are engaging the enemy...?

Yes I actually believe the investigation should continue to its logical end.

Unknown said...

Drago and Birkel, you two dudes got the hots for poor old Garage, huh?

Drago said...

Unknown said...
Drago, still blathering, damn dude, go get laid.

The sock puppet returns!!

Drago said...
This comment has been removed by a blog administrator.
Meade said...

@Drago, email me if you need an explanation for why I deleted your last comment.

hombre said...

"Yes I actually believe the investigation should continue to its logical end."

That's an interesting way of putting it. I think it is logical, although rare, for a judge to terminate it after finding there is no probable cause to believe a crime has been committed.

Sometimes it seems, lamentably, that we are so divided and contentious that we are destined to fall.

garage mahal said...

I think it is logical, although rare, for a judge to terminate it after finding there is no probable cause to believe a crime has been committed.

Randa has been overturned by the 7th Circuit many times.

Birkel said...

I don't know about the rest of you, but I'd be willing to testify as a non-expert witness that "garage mahal" has suffered serious brain injury. His middle school coaches must be held to account.

Drago said...

Meade said...
@Drago, email me if you need an explanation for why I deleted your last comment.

No need. I trust your judgement.

President-Mom-Jeans said...

Stop picking on the fat retarded kid who couldn't make it to college.

He played junior varsity sports once. Not like ISIS junior varsity though.

Plus his wife left him.

garage mahal said...

A legal thread wouldn't be complete without the unemployed, unstable loser who pretends he/she is a lawyer on the internet.

Drago said...

garage mahal: "A legal thread wouldn't be complete without the unemployed, unstable loser who pretends he/she is a lawyer on the internet."

Nor the high school educated wanna-be solicitor.

Drago said...

garage: "Randa has been overturned by the 7th Circuit many times."

How many times, exactly?

And how does that compare with the left crazies on the 9th Circuit?

Don't worry, we don't expect a coherent answer.

LarryK said...

When Churchill spoke of the "man in the arena", who else but garage could he have been thinking about?

Drago, wasn't that Teddy Roosevelt? Churchill may have also used that phrase but, if so, it was probably after Roosevelt.

Still, excellent insight re garage.

Drago said...

LarryK: "Drago, wasn't that Teddy Roosevelt? Churchill may have also used that phrase but, if so, it was probably after Roosevelt."

Possibly Roosevelt. But my default is always Churchill since I figure I have a high probability of being correct. That guy was quite prolific.

Chesterton is my second or "safe school" choice for uncertain quotes.

Rusty said...

garage mahal said...
A legal thread wouldn't be complete without the unemployed, unstable loser who pretends he/she is a lawyer on the internet.


Good god. That is fucking awesome. For reasons you can't begin to fathom.