The Wisconsin Supreme Court agreed Tuesday to hear three separate challenges to the “John Doe” investigation into Gov. Scott Walker’s campaign and combine them into a single case for arguments.
Several unnamed petitioners, and the John Doe prosecutor himself, have filed challenges related to the investigation. The secret probe is looking at coordination between Walker’s campaign and purportedly independent conservative and Republican groups during the 2011 and 2012 recalls.
The Supreme Court order directs those challenging the John Doe to present arguments on 14 questions, some of which go to the legitimacy of the investigation.
Among them: What is illegal coordination? Does it apply to the types of activities the “independent” groups engaged in during the recall campaigns? Should such activity be considered a campaign donation to be reported by the candidate?
Other arguments are procedural, questioning the legality of the appointments of special prosecutor Francis Schmitz and John Doe Judge Gregory Peterson and whether the two have the authority to conduct a five-county investigation.
Among the matters to be heard is Schmitz’s challenge of a decision in January by Peterson quashing subpoenas issued by Schmitz, effectively halting the investigation. Peterson had questioned whether the coordination under investigation was illegal.
One complication is that much of the record in the various challenges remains sealed because of a secrecy order issued by Peterson. Chief Justice Shirley Abrahamson, while agreeing to take up the cases, highlighted the problem of secrecy in her concurring opinion, writing that the public should have access to as much information about the cases as possible.
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“Some documents have been disclosed to some of the participants but not to other participants,” she wrote, detailing the potential complications. “These issues may be down the road a piece, but now is the time to think about the road we are constructing and where it will ultimately lead.”
Justice David Prosser agreed in his concurring opinion that the amount of sealed documents creates an “enormous problem” including “the ‘facts’ upon which the parties and this court may rely.” Prosser wrote that the court should hear the appeals, but he said combining them into a single matter for argument and briefing was a mistake.
“These matters are important to the people of Wisconsin,” he wrote. “They require the court’s best effort and they require the best effort of all counsel. The present order is so complex that it makes ‘best effort’ by anyone nearly impossible.”
Justice Ann Walsh Bradley, considered one of the three liberals on the court, recused herself, citing her son’s employment at a law firm bringing one of the challenges.
Some good-government groups questioned whether the four-member conservative majority, who benefited from a combined $8 million in outside spending by three groups targeted in the John Doe probe, also should recuse.
Club for Growth, Citizens for a Strong America and Wisconsin Manufacturers and Commerce spent millions to support the candidacies of Justices Prosser, Pat Roggensack, Annette Ziegler and Michael Gableman over the past seven years.