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Scott Walker, State Journal file photo

Gov. Scott Walker

The state Supreme Court has denied a special prosecutor’s request to reopen an investigation into Gov. Scott Walker’s recall campaign, a decision the prosecutor says he plans to appeal to the U.S. Supreme Court if he has the money and personnel to do so.

However, the state high court also ruled that special prosecutor Francis Schmitz’s appointment was invalid, casting doubt on his ability to represent the prosecution in future court proceedings and raising the possibility that one of the district attorneys originally involved in the case could intervene.

“I continue to believe that the investigation was justified,” Schmitz said in an email. “The voters of Wisconsin have a right to know the identity of large donors, corporate and individual, which coordinate with campaign committees.”

Conservative groups that were under investigation have called the so-called John Doe II investigation a “partisan witch hunt” because it originated in the office of Milwaukee County District Attorney John Chisholm, a Democrat. Todd Graves, one of the lawyers representing eight unnamed parties challenging the investigation, said the ruling reaffirms the “investigation was unconstitutional from its inception.”

Walker told reporters Wednesday that “this was one more instance where (the process) validated what we’ve said all along.”

In a 4-1 decision released Wednesday, with Justices Ann Walsh Bradley and Rebecca Bradley not participating, the court clarified its July order halting the investigation.

That decision called for investigators to either destroy or return all evidence that had been collected, but the new order requires evidence be turned over to the state Supreme Court within 30 days of the resolution of any appeal to the U.S. Supreme Court.

The investigators also must sign affidavits testifying that they have turned over all evidence. And electronic hardware seized two years ago as part of the investigation must be returned within 30 days regardless of what happens at the U.S. Supreme Court, the court ordered.

The court also ruled Schmitz’s appointment as special prosecutor in the case was invalid because it did not meet statutory requirements. That ruling doesn’t invalidate his previous actions in the case, including his motion seeking reconsideration, they wrote. They also permitted him to handle the collection and transfer of evidence.

However, the court acknowledged invalidating Schmitz’s role as special prosecutor “has the potential to create problems with respect to who may act on behalf of the prosecution in this court or elsewhere going forward.” The court suggested one of the five district attorneys who were at one time part of the investigation could file a motion to intervene and such a motion “would receive prompt review by this court.”

Abrahamson dissents

In her dissent, Justice Shirley Abrahamson criticized the unsigned majority opinion for removing Schmitz from the case when he is the only named party representing the investigation.

She also noted the ruling doesn’t address what happens to the secrecy order that has kept many details of the John Doe investigation hidden from the public, now that Walker and the Legislature have done away with John Doe investigations for suspected campaign-related crimes. And she criticized the court for ordering the return of electronic equipment and storage of documents without a complete understanding of the volume of materials that were seized and how it is currently being stored.

“What a mess this court has wrought!” she wrote.

The investigation was based on evidence that Walker’s recall campaign coordinated fundraising with the Wisconsin Club for Growth, which then provided money to various groups that helped Walker and Republican senators win recall elections in 2011 and 2012. The Government Accountability Board and its predecessor had previously opined that such coordination is illegal unless reported as a campaign expenditure.

The John Doe investigation found evidence that mining company Gogebic Taconite had made a $700,000 contribution during the recalls to Wisconsin Club for Growth, which isn’t required to disclose its donors. Walker and the Legislature later changed state mining laws to help the company open a massive iron ore mine in northern Wisconsin, though the project was eventually scrapped.

In July, the state Supreme Court ruled 4-2 that the investigators’ legal theory was invalid because it was based on a legal interpretation that too broadly regulated so-called issue advocacy in violation of the First Amendment. Such advocacy includes campaign ads that praise or criticize a candidate, but don’t expressly advocate a vote for or against that candidate.

Schmitz asked the court to reconsider its July ruling primarily because of evidence that the coordination also involved express advocacy, which the Supreme Court did not address. However, in its ruling Wednesday, the court said Schmitz forfeited his ability to use that argument because he did not raise it before the judge who presided over the John Doe case.

Abrahamson disagreed, noting Schmitz’s argument was based on illegal coordination in general, and that the distinction between issue advocacy and express advocacy didn’t come up until later in the appeals process.

Recusal at issue?

If Schmitz or others appeal to the U.S. Supreme Court, some legal experts have said he might focus on whether justices in the conservative majority should have recused themselves from the case because they benefited from more than $8 million in spending by some of the groups that were being investigated. Conservative legal experts have said that argument would also apply to justices who were opposed by those groups.

John Chisholm launched the investigation in August 2012 based on evidence collected as part of a previous John Doe investigation into Walker’s Milwaukee County office. That investigation yielded six convictions, including theft from a veterans fund, illegal campaign contributions and public employees campaigning during taxpayer-funded work time.

Chisholm asked then-Attorney General J.B. Van Hollen, a Republican, to lead the investigation, but after a six-month review, Van Hollen declined citing a potential conflict and sent the matter to the GAB. The investigation expanded to five counties where various subjects of the investigation resided before it was consolidated under Schmitz, a Republican, who was employed by the GAB.

Schmitz organized service of five warrants and 29 subpoenas in October 2013, seizing laptops, computers and documents in early morning police actions. The subjects of the investigation countered with lawsuits and a new judge appointed to oversee the case quashed the subpoenas, effectively bringing the investigation to a halt.

Though the John Doe investigation was supposed to be conducted in secret, details have been leaked primarily in court filings as part of several related lawsuits.

State Journal reporter Mark Sommerhauser contributed to this report.

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Matthew DeFour covers state government and politics for the Wisconsin State Journal.