John Doe Judge Looks To Determine His Authority

By Jerry Bader and Sam Morateck

Brown County Circuit Court Judge Kendall Kelley gave the appearance of a new hire looking for an employee’s manual in his first hearing as a newly-appointed John Doe Judge Thursday.  Kelley laid out three series of questions to attorneys and principles in the courtroom designed to determine what he can and cannot do with the controversial John Doe probe which the Wisconsin Supreme Court terminated.

The courtroom was populated by John Doe prosecutors, other government officials and perhaps the most famous of the probe’s targets: Eric O’Keefe, whose role as Director of Club for Growth of Wisconsin put him in investigators cross hairs. The probe included early morning home raids and targeted conservative political activity in Wisconsin. Activity that O’Keefe points out was perfectly legal at the time.

Kelley solicited briefs on the issues he raised  from those present in the courtroom and others participating telephonically. He said briefs that go beyond that scope would not be considered. This process could ultimately lead to Kelley deciding whether any of the nine officials that conducted the investigation covering cases in several counties should face contempt sanctions, as recommended by Attorney General Brad Schimel. Kelley said any briefs submitted should be limited to the following three areas:

What is the legal status of the John Doe investigations? The Wisconsin Supreme Court has stated or ordered repeatedly, in its opinions, that all John Doe investigations in the cases identified are terminated or ended. None of the cases were remanded by the state supreme court for further action by a John Doe judge. The U.S. Supreme Court, denied cert, (declined to hear the matter), leaving it to the Wisconsin Supreme Court to be the law governing the case.

Apart from the state supreme court, who has authority to take action on the largely sealed, now closed investigations? What authority does any John Doe judge have without an order from the state supreme court ordering some new action or recognizing access to sealed material?

What authority does the legislature have through the attorney general’s  office to intervene in a closed investigation?  In its action, did the legislature contemplate its own intervention?

Which version of the statute applies to further actions in these investigations? If it is the statute in effect when the investigations commenced, the former version of the statute(the legislature has since changed the law), and authority was bestowed on John Doe judge, what is the present scope of the investigation and the authority of the John Doe judge as the investigation appears to have been ended by a superior court?

Even if a John Doe judge has authority, what actions can be taken under the old statute and are prosecutors prohibited from further actions by the state supreme court?

What is the independent authority of the John Doe judge after a case has been completely resolved by the Wisconsin Supreme Court, with complete authority over the John Doe judge?

Similar to what has been previously explored, what, if any, authority does a John Doe court have without direction from the state supreme court?

What general, independent authority does an inferior court have to find a party in contempt of a Wisconsin Supreme Court order, when a superior court has intentionally declined to make such a finding?

After the hearing O’Keefe spoke to reporters about Kelley’s directives.

“We’re four and a half years after the day when prosecutors raided family homes and woke children in their beds and launched me on a path of exposing and terminating the John Doe. This is actually the first time we have seen a John Doe judge, this is the fourth John Doe judge in John Doe II alone, but the first time we’ve seen one. I’d say a couple of things that I learned here are that Judge Kelley has clearly studied the Supreme Court ruling, which ruled that the John Doe was conducted without foundation and reason or law…so he comes here in an interesting position where he’s asking those who have been involved for a long time for their opinions on his authority and the range of his jurisdiction. I was a little surprised by that. One interpretation would be he’s coming in and saying hey I have a new job could you please tell me what it involves, and I’m sure my attorneys will have extremely helpful advice for him.”

 

“He even asked a pretty fundamental question. Now, attorneys were here for the Attorney General and some of that was really questions for them. I think he was asking them what authority he has…I think he was asking really broad questions and inviting people here who don’t want to hear anything else about the John Doe. Now I’m in the unusual position of having fought hard to close down the John Doe and now wanting some work done by somebody on behalf of the taxpayers of Wisconsin to get some justice because of the abuses that happened. Remember this happened, this is responsive to the Attorney General’s report; finding significant sloppiness and even potential crimes out of the Government Accountability Board and illegally appointed special prosecutor Francis Schmitz, who attended today. There was an invitation by the Attorney General that I would say was to either the State Supreme Court or the John Doe judge or both to look at sanctions, that’s why this happened. I think out of an abundance of fairness to the parties who now have the light on them, the people recommended for sanctions who are represented here, I think that Judge Kelley was offering them every opportunity to say you can’t do anything to us as a John Doe Judge.”

O’Keefe was asked what it was  like sitting so close to those who that had access to hundreds of thousands of emails, his personal email, and others:

“It was creepy to be in the courtroom with Milwaukee District Attorney John Chisholm, Dane County District Attorney Ismael Ozanne, Assistant District Attorneys of Milwaukee Landgraf and Robles, as well as Francis Schmitz, the illegally appointed special prosecutor. It was creepy, I would say that. They conducted an investigation that was illegal from inception. Its motive was political; its purpose was political, its tactics violated the Constitution of the United States, and the constitution of the state of Wisconsin.To those who haven’t heard me say this: our actions at the Wisconsin Club for Growth have always been legal in Wisconsin, what we did has always been legal. It didn’t depend on some recent U.S. Supreme Court decision to make it legal. The raids on family homes of people with no criminal record in the dark have never been proper, legal, or constitutional in Wisconsin. I would like to see some justice for the people who attacked us under color of law, and today may be the beginning of that process.”

What form would that justice take?

“Here’s one of the questions Judge Kelley asked; is he the appropriate venue for some of the sanctions, and I think my attorneys will speak to that. I think that he’s limited probably to contempt of court and possibly referring people to legal review. For some of the other offenses, that would be up to the Attorney General himself, and, as you saw, he had two representatives here.”

How confident are you that justice will be served?

“I am not confident that the state of Wisconsin will deliver justice here. However, history, I think, will get the final word. I’m writing a book on this and there will be some justice delivered in those pages.”

So you think your only victory will be in the court of public opinion?

“I was happy with the legislative reforms to the John Doe law, the campaign finance law, and the Government Accountability Board, the elimination thereof. Those were better than some types of relief we might have gotten. I’m especially concerned with perspective, with the freedom of people in Wisconsin, and for that frankly the narrative and the illumination, the education of the citizens, is more important than throwing a particular person in jail. I actually am more concerned with the court of public opinion than with any individual being sanctioned.”

You know there are fellow conservatives who were targeted here who have a little different take on that. They would like to see justice in the form of people losing their licenses, going to jail. How do you feel?

“You mentioned two very different things, prison or law license. Definitely some people here should lose their law licenses, they violated legal ethics and the constitution. Prison rarely does much good for anybody, taxpayers included. I think there is a big difference between a sanction on what they can do for a living and whether they can remain in a field they have disgraced, i.e the practice of law or rather they be thrown into jail. We have a difference of opinion but we believe in open debate and transparency about political disagreements, not raiding family homes.”

To put a fine point on it, you may not be optimistic but certainly you think punitive sanctions would be appropriate?

“Yes I do. To those in the state interested in trying to protect the integrity of the legal system, take a look at this and see whether you want these people, Fran Schmitz, John Chisholm, Ismael Ozanne even practicing law. Look what they did, look what they signed off on. They should be out of the practice of law, out of office, and the legislature has the power to impeach and remove John Chisholm, Ismael Ozanne, and the Iowa county District Attorney, the three who appealed to the Supreme Court of the United States. They should be removed from office.”  

Kelley gave the principles 60 days to file briefs. Kelley was appointed John Doe judge by Director of State Courts, Judge Randy Koschnick. In his 91-page report, Schimel argued the nine individuals associated with the John Doe investigations should be held in contempt for not following court orders. Schimel was investigating leaks from the probe to a British publication.

You can hear reporters’ Q&A with O’Keefe here: