September 9, 2014

The 7th Circuit panel seemed quite skeptical of the federal court's place interfering with the John Doe investigation.

I've listened to the oral argument, here, and here's Patrick Marley's report in the Milwaukee Journal Sentinel.
"I don't understand why the federal courts at the micro-level would be brought in," said Diane Wood, chief judge of the U.S. 7th Circuit Court of Appeals. Later, she expressed uncertainty about taking "an invitation to butt into a state criminal proceeding."
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.

59 comments:

David said...

Lack of empathy by the 7th Circuit? Horrors.

sojerofgod said...

But will they?

I don't see why this has been allowed to go on as long as it has. I'm not conversant in Wisconsin law but it seems to me that the state court has so far gone along with the fishing expedition, and gone as far as to hand over bait to the fishermen.
If citizens can not look to the courts to redress grievances against the government because the courts place themselves on the government's side reflexively, it is a recipe for disaster.

D. said...

>Later, she expressed uncertainty about taking "an invitation to butt into a state criminal proceeding."<

eric holder and baracky beg to differ

StoughtonSconnie said...

A question for Ann or any of the other legal beagles out there:
Is there any precedent for the court to find that this is a matter for State courts, admonish the State courts for dragging their heels, and ask them to move their asses toward a conclusion?

Carol said...

I dunno, why did the Justice Dept meddle in the Missoula County Attorney's office? because they can get away with it, unless some powerful entity stops them?

Ann Althouse said...

@StoughtonSconnie

That's a good question, but I think what would happen would be much more respectfully phrased statements about the deference to the state court being based on the assumption that the state court will perform its duties. The prosecutors' lawyer had to agree that the state judge had the opportunity either to construe the state statute to avoid the federal constitutional question or to decide the federal question.

There's also the claim for damages. The paragraph above has to do with prospective relief. I think on damages, the 7th circuit will either find absolute immunity or qualified immunity. I'm saying that based on the way the questioning went today.

Birkel said...

Immunity for civil rights violations?
Somebody should read the law, even 7th Circuit judges.

The Drill SGT said...
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The Drill SGT said...
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The Drill SGT said...

Althouse,

Didn't the State courts switch judges and the new one pretty much shut it down?

Now there is the issue of damages and costs of defending against a reckless process for four years.

traditionalguy said...

So Chicken shit Federal Judges cannot do their job and enforce Constitution when a political advantage from not enforcing it is sniffed. So why do we bestow life tenure on them for again? If they wont ignore politics in any event, then make them get off their spoiled asses and run for re-election.

StoughtonSconnie said...

Thanks Ann. I suspect you're right on the question of immunity, unfair though that may be.

And yes, the court would be a bit more diplomatic linguistically than my suggestion. That doesn't mean, however, that Wisconsin courts don't deserve a good smackdown, at least where Walker-related cases are concerned. It seems that the system seems very happy to slow walk anything that would be beneficial to Governor Walker, such all the cases surrounding Act 10, Voter ID or throwing this "screamingly unconstitutional" John Doe process out.

One thing is certain, and that is for all the wailing and rending of garments from the left over the Governor's supposed transgressions, should Burke win, we will be treated to an immediate Emily Litella act on all of it.

Mark said...

It sure sounded like they were going to say that Federal Court has no place in this.

I am no expert but your take on it is what I heard as well.

Ann Althouse said...

"Immunity for civil rights violations?
Somebody should read the law, even 7th Circuit judges."

Yes, there is immunity from lawsuits for damages for civil rights violations. Either it's absolute or qualified, and with qualified immunity, the government official is immune if the violation is not a violation of clearly established law. At the oral argument, it seemed clear to me that the judges didn't think the provision of constitutional law, at a particular enough level, had been clearly established. If that's so, then there will be no damages.

Original Mike said...

Isn't the 7th Circuit panel hearing an appeal, by the prosecutors, of Randa's shutting down the investigation? Why are discussions of personal liability of the prosecutors and unsealing of records taking place at this hearing?

Ann Althouse said...

"Didn't the State courts switch judges and the new one pretty much shut it down?"

He didn't complete the process of shutting it down, which is something the 7th circuit judges were asking about. It's possible that the judge is hanging back because the federal court got involved, and that's exactly what federal courts have abstention doctrines to prevent. The federal courts should be the backup when the already-in-process state proceeding fails, but that shouldn't morph into letting the state judges get away with becoming passive. That's not efficient and it's not what federal courts want to give state courts the incentive to do.

Birkel said...

When the Civil Rights Act was written, violations of federal civil rights were stripped of immunity, as I understand the issue.

Are we telling Missouri cops they are free from civil rights tort claims?
Or Rodney King's police assailants?
This will be news to all involved.

Ann Althouse said...

"Isn't the 7th Circuit panel hearing an appeal, by the prosecutors, of Randa's shutting down the investigation? Why are discussions of personal liability of the prosecutors and unsealing of records taking place at this hearing?"

There were 2 separate cases, but the personal liability question was in the same case with the preliminary injunction. The second case was about unsealing the documents. I haven't listened to the entire oral argument there, but I thought the judges were quite hostile to the govt's argument.

Ann Althouse said...

"When the Civil Rights Act was written, violations of federal civil rights were stripped of immunity, as I understand the issue."

You might be thinking of the way there's no sovereign immunity when officials are sued in their official capacity for prospective relief. Ex Parte Young.

This is official immunity when they are sued in their personal capacity for damages. There are many, many cases on this subject. Here's a recent one.

Ann Althouse said...

"Are we telling Missouri cops they are free from civil rights tort claims?
Or Rodney King's police assailants?
This will be news to all involved."

They have qualified immunity, but they are sued successfully when they violate clearly established law.

dreams said...

Good article by Stuart Taylor about what has been hapening.

http://legalnewsline.com/news/251647-district-attorneys-wife-drove-case-against-wis-gov-walker-insider-says

Mark said...

That Stuart Taylor story is one hell of a smear.

I guess that is what you do when you lose in court, you attack the wife of the government official you don't like.

If you cannot win in court, smear smear smear.

trumpetdaddy said...

Except, Mark, O'Keefe and Walker HAVEN'T lost in court repeatedly. The exact opposite, actually.

The only reason this is now before an appeals court is because O'keefe won resoundingly at the state court and federal district court level.

Original Mike said...

Thanks for the link, dreams. It appears to be a good synopsis of what has been a long confusing case. I've bookmarked it for future reference.

Original Mike said...

Mark, I fail to see how reporting that Chisholm's wife was upset over Act 10 is "an attack" or a "smear.

Birkel said...

So what I wrote is correct.
Thanks for clarifying what I already made plain.

Violating the civil rights of Americans by denying their First Amendment rights on a theory that has been declared -- twice in court, once in state court and once in federal court, and once by the Board -- an unconstitutionally over-broad interpretation of the law, cannot be anything but a purposeful act made in full knowledge of the unconstitutionality as an exercise to deny Americans civil rights.

This exercise by the DAs was willful, wanton, purposeful and unless they want to plead they are just too God damned stupid to understand the law of civil rights and the Constitution of the United States (and law that goes back to, what?, Blackstone? Beyond?)...

Well shit, Althouse. Tell me which other civil rights you think public officials can knowingly disregard while maintaining some immunity. I'd like a fucking list.

We're talking about depriving people of the most basic rights under the Constitution, for fuck's sake. And too many people are defending the Alabama sheriffs for my comfort.

Birkel said...

From Ann's link about qualified immunity:

"(The police) could reasonably have believed that the doctrine authorized their conduct."

And that is the problem, wrapped up with the prettiest of bows. Could these prosecutors have reasonably believed what they were doing was not an attempt to deny the civil rights of the targets of their fishing expedition?

I mean, you won't believe the wife of an abusive husband when she says things about how she feels. But now you want me to believe the prosecutors were acting in good faith? Based on what understanding of human nature could those two things be offered by a reasonable person on the same day?

Are you fuckin' shittin' me?

Wilbur said...

What Birkel is getting at is the question that people are starting to grimly ask each other: Just how long do these people think we're going to sit still for this crap?

People are talking about the day coming when they will be taking up arms. Reluctantly but resolutely.

Birkel said...

Wilbur:
I'm decidedly not saying that. But I'm aware that the consent of the governed is a necessary precondition for a republican form of government, to your point.

Althouse:
A serious question is couldn't these defendants show under a disparate impact claim under the 14th Amendment Equal Protection Clause that they were targeted because of their political speech? And do you know any lawyers who think that is reasonable? I mean ones who aren't currently elected politicians, of course.

Come on.

Michael K said...

Lawfare seems to be doing well in Wisconsin and Texas so far.

RecChief said...

I read this over at Legal Insurrection:

Now a longtime Chisholm subordinate reveals for the first time in this article that the district attorney may have had personal motivations for his investigation. Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee, had been repeatedly moved to tears by Walker’s anti-union policies in 2011, according to the former staff prosecutor in Chisholm’s office. Chisholm said in the presence of the former prosecutor that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally.”

Citing fear of retaliation, the former prosecutor declined to be identified and has not previously talked to reporters.


Chisholm added, according to that prosecutor, that “he felt that it was his personal duty to stop Walker from treating people like this.”

That's from Stuart Taylor at Legal Newsline.

How long before Chisholm's emails are subpoenaed, and he has a "hard drive crash" losing all of them?

Original Mike said...

"How long before Chisholm's emails are subpoenaed, and he has a "hard drive crash" losing all of them?"

I'm guessing he's smarter than Lois Lerner. But it's the same story, isn't it? Using your position to hamstring your political opponents.

Drago said...

trumpetdaddy said...
Except, Mark, O'Keefe and Walker HAVEN'T lost in court repeatedly. The exact opposite, actually.

The only reason this is now before an appeals court is because O'keefe won resoundingly at the state court and federal district court level.

Are you trying to confuse Mark?

mccullough said...

Pretty authoritarian of the John Doe law to try and gag witnesses from disclosing the subpoenas and what a prosecutor has asked them.

Also obviously unconstitutional.

sojerofgod said...

I'm with Glen Reynolds when he says that prosecutorial immunity and judicial immunity is a construct of the judiciary that has no constitutional basis. Frankly what we have today is industrialized law. The judges, prosecutors, lawyers etc, they all work in the courts where they are "processing" human beings. The raw materials come in one door, and the finished products go out the other. Like other guys would work at the Kellog's Eggo factory. Instead of pressin' out waffles though Lives are made or destroyed. Now, I know there are criminals. Believe me I have met them up close and personal. No question some folk need to be in jail. That doesn't mitigate the fact that courts are like GOB clubs, lacking only the tennis courts and the 19th green.

sojerofgod said...

There actually is an Eggo plant nearby where I am. I used to tell my child to straighten up and get good marks in school because, " You don't want to end up working the waffle press at Kelloggs."
Oh, and when the wind is right, the air is mighty tasty.

Douglas said...

sojerofgod-your post, off topic as it may be, brought back happy memories of my college days walking past the NECCO factory on Mass Avenue in Cambridge. I believe today it's now offices and apartments but it smelled great back when it was making candy.

Douglas said...

Prof. Althouse,

I defer to your much greater knowledge of Federal Courts, but consider the following hypothetical: Suppose the state prosecutor is using a state grand jury to gather evidence that black civil rights activists are violating a local law against sedition. He is conducting midnight raids with SWAT teams to gather evidence, even though the activists are incontestably non-violent. Assume that the sedition law is as blatantly unconstitutional as the anti-coordination statute here (as it has been applied by the state prosecutors). Is the only remedy for the targets to wait until they have been charged and convicted and then appeal eventually to the US Supreme Court?

Mark said...

Douglas, how has that have anything to do with this?

Especially when the plaintiff here never had anyone knock on his home or serve him personally with a search warrant? He made a big deal about raids but personally was not involved (and his characterization of the raids hyperbolic and only partly true).

It is quite clear people did not listen to court arguments, would prefer to play hypotheticals instead of deal with the truth here. Sorry, but this suit is a joke and the court clearly saw right through it.

Just because Randa made a mistake weighing in does not mean you have won anything here. His ruling is soon to be reversed, as seems usual for Randa.

Birkel said...

Mark favors suppression of civil rights.
What a distinction! Only businesses were raided. Kosher!

Darrell said...

http://www.dailymail.co.uk/news/article-2750225/Report-Crying-wife-drove-Democratic-DA-target-Republican-governor-s-staff-conservative-activists-five-year-investigation.html

garage mahal said...

It is quite clear people did not listen to court arguments, would prefer to play hypotheticals instead of deal with the truth here

In the conservative mind there just can't exist a legitimate investigation into a Republican. Ever. There must be something else going on!

Mark said...

If you lose in court, smear the family of the DA.

Guess that's better than discussing how far Judge Randa overstepped, how you blew the arguments so badly.

Douglas said...

Mark and Garage,
I will take your failure to respond to my hypo as a confession that you have no response.

Douglas said...

Mark and Garage,
I will take your failure to respond to my hypo as a confession that you have no response.

garage mahal said...

He is conducting midnight raids with SWAT teams to gather evidence, even though the activists are incontestably non-violent.

As I understand it, this is based solely on O'Keefe's word.

Michael said...

Show me the man and I will show you the crime.

Brennan said...

As I understand General Holder stepping into local law enforcement matters, it has occurred at the request of the victim's survivors.

It is different when the Federal Courts are stepping in and when the Executive Branch and its agents are stepping in.

Darrell said...

Maybe Garage's tears can spawn a third-round of post-midnight raids and terror.

Mark said...

Post midnight?

School buses drove by during when warrants were served. I know of no Wisconsin school district that runs classes or buses then.

In case you never lived here in winter, its dark when school buses come by in the morning a bit after 7.

If the truth is damming, why is it constantly stretched in regards to the description of when warrants were served?

Birkel said...

Because warrants are executed in seconds, right Mark?

Or, back in reality, the constitutionally impermissible warrants were executed very early in the a.m. and law enforcement was still there hours later, when buses were running.

Why do you hate the truth, Mark?

Mark said...

Constitutionally impermissible? According to who?

Funny, the arguments for that were dismissed by the judges yesterday.

Also, please state exactly what time these warrants were served. If you want to claim they are the middle of the night please list every search and the time it started.

Otherwise you are just blowing hot air.

Birkel said...
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Birkel said...
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Birkel said...

First of all, the object pronoun is demanded in your second question.
/grammar nazi

You hate the truth and are intrigued by if not supportive of the idea that Leftists should be able to suppress the civil rights of disfavored groups. You are well on your way to fascism.

The Alabama sheriffs of the 1950s and 1960s welcome you to their club. Congratulations.

Mark said...

Smear the other side, that's all you got.

When asked for facts, you smear. Thank you for the clear acknowledgement that the serving of these warrants were not as you depict.

All you got is insults.

Birkel said...

You have made no factual assertions, Mark. Your only point is that you support the use of the state apparatus to chill the speech of your political opposition in contravention of the civil rights all Americans hold, as announced in the Bill of Rights. Congratulations. You stand in good Democrat company with Bull Connor.

Mark said...

I know you are, but what am I?

Seriously, get some meat to your arguments beyond calling me a thug. It's gotten old.

Big Mike said...

but mainly because the John Doe investigation can and should be shut down by the state court judge.

It won't be. The law is infinitely flexible when one is guilty of being Republican.

Charles Dickens was right.