It was a short-lived victory for targets of a secret “John Doe” investigation Wednesday after a federal appeals court stayed a Milwaukee judge’s decision ordering prosecutors to stop the probe and destroy any evidence they had collected.
U.S. District Judge Rudolph Randa on Tuesday said prosecutors were improperly investigating conservative groups and individuals for exercising their constitutionally protected right to engage in so-called issue advocacy.
But a three-judge appeals panel in Chicago, acting on emergency motions that prosecutors had filed just before and after Randa’s ruling, found the judge failed to follow proper procedure in issuing his ruling Tuesday.
“Once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous,” the appeals judges wrote. “The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction.”
The appeals judges — Diane Wood, William Bauer and Frank Easterbrook — also nullified Randa’s order requiring the Milwaukee County prosecutors to return the evidence they had collected and “permanently destroy” all copies of it. The appeals panel said such an action “effectively prevents appellate review” and ordered that Randa’s “return-and-destroy” order be stayed pending further order of the court.
In their emergency appeal, the prosecutors also noted that the same evidence is at the heart of challenges to the probe pending in the Wisconsin Court of Appeals and state Supreme Court.
Randa’s preliminary injunction had halted the five-county investigation, launched in August 2012, into coordination between candidates and conservative groups during the spate of recalls in Wisconsin in 2011 and 2012.
The appeals court decision returns the case to Randa’s courtroom, where he must first rule on whether an emergency appeal filed by the prosecutors is frivolous. If he determines it is, the judge can re-issue his ruling. If he finds the appeal has merit, the stay will remain in effect until the appeals court can rule on the appeal.
Reaction to Randa’s ruling were strong, and mixed. UW-Madison law professor Ben Kempinen said Wednesday that the federal judge took the “extraordinary” step of stopping a state investigation even before charges were filed.
“I have never heard of another situation in which a federal judge has intervened in an ongoing state investigation of possible law violations,” Kempinen said.
Kempinen also said it’s highly unusual for a judge to halt an investigation before charges are issued. Questions about the legality of a prosecution generally are resolved after charges are filed or in a lawsuit after a case is concluded.
“Many persons subject to investigation claim police or prosecutors have exceeded their authority in the investigation of possible law violations and have violated their rights,” he said.
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“In this case, the federal judge has ordered the investigation to stop before it is even completed based on allegations rather than findings of any improper government conduct.”
Prosecutors in the investigation agreed. Randa’s ruling has “far-reaching implications for criminal investigations in Wisconsin,” said attorney Samuel Leib of Milwaukee, who is representing the Milwaukee County prosecutors.
“For the first time, a federal civil lawsuit has been used to disrupt an investigation commenced by the judiciary of Wisconsin and sanctioned by the Government Accountability Board,” Leib said. “There is no reason that similar steps could not be taken to disrupt any other lawfully instituted criminal investigatory proceeding.”
A ‘nefarious probe’
But Washington, D.C., attorney David Rivkin, who represents Wisconsin Club for Growth and one of its directors, Eric O’Keefe, had called Randa’s decision “a victory for free speech.”
“For almost three years, the political left in Wisconsin, led by elected prosecutors, has been unsuccessfully trying to silence conservative voices because of their successes,” Rivkin said in a statement. “Since the left can’t win at the ballot box, they secretly resort to the illegal use of government power — ‘dark power’ — to go after those who do not agree with them.
“This nefarious probe had nothing to do with bringing more fairness to the political process. Judge Rudolph Randa and others saw this for what it was: pure political payback.”
Attorney Rick Esenberg with the right-leaning Wisconsin Institute for Law and Liberty, said Randa’s intervention was justified because prosecutors were “using criminal law as a political weapon” that put people under a legal cloud for engaging in “constitutionally protected conduct.”
A spokesman for O’Keefe and Club for Growth said they did not plan to issue any statements Wednesday after the court of appeals decision was announced.
The decision is just the latest in a string of hot-button rulings Randa has issued since President George H.W. Bush appointed him to the federal bench in Milwaukee in 1992.
Previous decisions by Randa struck down the Freedom to Clinics Entrances Act, which prohibited people from blocking abortion clinic entrances; eliminated Wisconsin’s minimum markup on gasoline, which was meant to prevent stations from undercutting and driving competitors out of business; and declared more than $50 million off-limits to victims of clergy sexual abuse who were suing the Milwaukee archdiocese.
— The Associated Press contributed to this report.