Chisolm's Brief in the John Doe Case

No. 14-1822 ___________________________________

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT ___________________________________

ERIC O’KEEFE and WISCONSIN CLUB FOR GROWTH, INC. Consolidated with Appeal Nos.

14-1888; 14-1899; 14-2006; 14-2012; Plaintiffs-Appellees, 14-2023

v.

JOHN CHISHOLM, et al.,

Defendants-Appellants.

___________________________________

Appeal from The United States District Court for the Eastern District of Wisconsin

Case No. CV-139-RTR Rudolph T. Randa, District Court Judge ___________________________________

DEFENDANTS-APPELLANTS’ JOINT REPLY BRIEF ON APPEAL OF MOTIONS TO DISMISS AND PRELIMINARY INJUNCTION

_______________________________________

von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816

Case: 14-1822 Document: 146 Filed: 09/08/2014 Pages: 67

Axley Brynelson, LLP Timothy M. Barber Patrick J. Fiedler Justin H. Lessner Attorneys for Defendant-Appellant Dean Nickel 2 E. Mifflin Street, Suite 200 Madison, WI 53703 (608) 257-5661


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TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................... i

TABLE OF AUTHORITIES ............................................................................................ iii

INTRODUCTION ............................................................................................................. 1

ARGUMENT ..................................................................................................................... 3

I. The Preliminary Injunction Must Be Reversed. ..................................... 3

A. Plaintiffs’ Brief Relies on Misleading “Factual” State-ments and Unreasonable Inferences of Bad Faith ...................... 3

B. Plaintiffs Mischaracterize the District Court’s Prelimi-nary Injunction Order and Abandon the Claims within the their Complaint in attempt to Legitimize the Injunc-tion ................................................................................................... 11

C Plaintiffs Concede the Type of Conduct Being Investi-gated by the John Doe Proceedings—Coordinated Ex-penditures – Can be Regulated under the First Amend-ment ................................................................................................. 16

1 Plaintiffs Mischaracterize the Type of Illegal Coordi-nated Conduct the John Doe Proceedings Were Com-menced to Investigate ............................................................ 18

2 Hard Evidence of Coordinated Expenditures ....................... 21

II. Defendants Are Entitled to Qualified Immunity ................................. 23

A. Defendants Did Not “Forfeit” Their Qualified Immunity Defense ............................................................................................ 23

B. The Court Has Jurisdiction to Address The Qualified Immunity Defense Under The Collateral Order Doctrine ...... 28

C Broad Allegations of Bad Faith Targeting Cannot Defeat a Claim For Qualified Immunity When There Was An Objectively Reasonable Basis For The John Doe ....................... 32

1 Neither Plaintiff Was Required to Produce Documents ....... 32

2 Defendants Did Not Petition For The John Doe Pro-ceedings Against Plaintiffs ................................................... 33

III. Defendants Are Entitled to Prosecutorial Immunity .......................... 38


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A. Actions Furthering a John Doe Proceeding are Cloaked in Absolute Prosecutorial Immunity .......................................... 38

B. Absolute Immunity Attaches to John Doe Proceedings, as Ab-solute Immunity Attaches to Grand Jury Proceedings ...................... 39

C Plaintiffs’ Allegations Do Not Preclude Prosecutorial Immunity ........................................................................................ 41

IV. Younger Abstention Requires Dismissal of the Preliminary Injunction and Stay of The Damages Action If It Is Not Dismissed ................................................................................................... 42

A. John Doe Proceedings Fall Within The Sprint Category of Proceedings “Akin to” a Criminal Prosecution ................... 41

B. Younger Abstention Does Not Require an Active Crimi-nal Prosecution .............................................................................. 46

C The Bad Faith Exception Does Not Apply Because Plaintiffs Have Not Proved They Were Targeted With-out Any Valid Hope of Obtaining A Conviction ...................... 48

V. Pullman Abstention is Proper. ................................................................ 54

A. This Court Has Jurisdiction to Consider Pullman absten-tion. .................................................................................................. 54

B. Plaintiffs Use The Wrong Standard of Review ......................... 54

C Pullman Abstention is Warranted ............................................... 55

CONCLUSION ................................................................................................................ 56

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ............................................ 57

CERTIFICATE OF SERVICE ......................................................................................... 58


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TABLE OF AUTHORITIES Cases

Acra Turf Club, LLC v. Zanzuccki, 748 F.3d 127 (3d Cir. N.J. 2014) .................................................................................. 44

American Fed’n. Of Labor v. Watson, 327 U.S. 582 (1948) ....................................................................................................... 54

Anderson v. Creighton, 483 U.S. 635 (1987) ....................................................................................................... 29

Branzburg v. Hayes, 408 U.S. 665 (1972) ....................................................................................................... 38

Brusseau v. Haugen, 543 U.S. 194 (2004) ....................................................................................................... 32

Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994) ................................................................................... passim

Burns v. Reed, 500 U.S. 478 (1991) ................................................................................................. 39, 41

Chasensky v. Walker, 740 F.3d 1088 (7th Cir. 2014) ............................................................................... 23, 24

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ....................................................................................................... 14

Collins v. County of Kendall, 807 F.2d 95 (7th Cir. 1986) ................................................................................ 6, 51, 52

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ....................................................................................................... 28

Crawford-El v. Britton, 523 U.S. 574 (1998) ................................................................................................. 29, 31

Custodian of Records for the Legislative Tech. Serv. Bureau v. State (In re John Doe), 689 N.W.2d 908 (Wis. 2004) ................................................................................ passim

Dombrowski v. Pfister, 380 U.S. 479 (1965) ................................................................................................. 49, 50


iv

English v. Dyke, 23 F.3d 1086 (6th Cir. 1994) ........................................................................................ 24

Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir. 2010) ................................................................................ 38

FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C. 1999) ............................................................................. 14, 15

Fed. Election Comm'n v. Colorado Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431 (2001) ................................................................................................ 16, 20

Findlay v. Lendermon, 722 F.3d 895 (7th Cir. 2013) ........................................................................................ 27

Fund v. City of New York, No. 14 Civ. 2958, 2014 U.S. Dist. LEXIS 68509 (S.D.N.Y. May 19, 2014) ............. 43

Garofalo v. Village of Hazel Crest, 754 F.3d 428 (7th Cir. 2014) .................................................................................. 26, 27

Gonzalez v. Waterfront Comm'n of the N.Y. Harbor, 755 F.3d 176 (3d Cir. N.J. 2014) ................................................................................ 43

Grandco Corp. v. Rochford, 536 F.2d 197 (7th Cir. 1976) ........................................................................................ 50

Hamilton v. O’Leary, 976 F.2d 341 (7th Cir. 1992) ....................................................................................... 25

Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906 (7th Cir. 2011) ....................................................................................... 27

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ...................................................................................................... 43

Imbler v. Pachtman, 424 U.S. 409 (1976) ................................................................................................ 40, 41

Jayaraj v. Scappini, 66 F.3d 36 (2d Cir. 1995) ............................................................................................. 54

Kelly v. Illinois Bell Telephone Co., 325 F.2d 148 (7th Cir. 1963) ....................................................................................... 15


v

Kugler v. Helfabt, 421 U.S. 117 (1975) ...................................................................................................... 49

Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008) ....................................................................................... 27

Lawrence v. Astrue, 337 Fed. Appx. 579 (7th Cir. 2009) ........................................................................... 23

Massey v. Helman, 196 F.3d 727 (7th Cir. 1999) ........................................................................................ 32

McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) ......................................................................................................... 14

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) ................................................................................................ 43, 45

Mir v. Shah, Case No. 13-55, 2014 WL 2722767 (2d Cir. N.Y. June 17, 2014) ............................ 45

Mitchell v. Forsyth, 47 U.S. 511 (1985) ......................................................................................................... 28

Moe v. Dinkins, 635 F.2d 1045 (2nd Cir. 1980) ..................................................................................... 55

Mulholland v. Marion County Election Board, 746 F.3d 811 (7th Cir. 2,014) ................................................................................ passim

Pincham v. Illinois Judicial Inquiry Bd., 872 F.2d 1341 (7th Cir. 1989) ..................................................................................... 53

Pole v. Randolf, 570 F.3d 922 (7th Cir. 2009) ....................................................................................... 27

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) ............................................................................................ passim

Railroad Commission v. Pullman Co., 312 U.S. 496 (1941) ...................................................................................................... 55

Ray v. Maher, 662 F.3d 770 (7th Cir. 2011) ........................................................................................ 32


vi

Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007) .................................................................................. 39, 40

Russ v. Watts, 414 F.3d 783 (7th Cir. 2005) ........................................................................................ 32

Reichle v. Howards, 132 S.Ct. 2088 (2012) .............................................................................................. 36, 37

Sprint Commc’ns., Inc. v. Jacobs, 134 S.Ct. 584 (2013) .............................................................................................. passim

State ex rel. Unnamed Person No. 1 v. State (In re Doe), 2003 WI 30, 660 N.W.2d 260 ...................................................................................... 45

State v. Washington, 266 N.W.2d 597 (Wis. 1978) ........................................................................... 39, 44, 45

Surita v. Hyde, 665 F.3d 860 (7th Cir. 2011) ........................................................................................ 26

United States v. Bloom, 149 F.3d 649 (7th Cir. 1998) ....................................................................................... 15

United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) ................................................................................................. 37, 38

White v. Stanley, 745 F.3d 237 (7th Cir. 2014) .................................................................................. 26, 27

Wis. Coal. for Voter Participation, Inc. v. State Elections Bd., 605 N.W.2d 654 (Wis. Ct. App. 1999) .................................................................. 4, 14

Wis. Right to Life State PAC (WRTL) v. Barland, 664 F.3d 139 (7th Cir. 2011) .................................................................................. 20, 22

Statutes

42 U.S.C. § 1983 ......................................................................................................... 32, 38

Wis. Stat. § 11.26 ........................................................................................................ 30, 34

Wis. Stat. §11.27 ......................................................................................................... 30, 34

Wis. Stat. §11.38 ......................................................................................................... 30, 34


vii

Wis. Stat. §11.61(1)(b) ............................................................................................... 30, 34

Wis. Stat. § 11.61(2) ......................................................................................................... 34

Wis. Stat. § 19.01 ................................................................................................................ 7

Wis. Stat. § 968.135 .............................................................................................. 10, 37, 40

Wis. Stat. § 968.26 ...................................................................................................... 34, 48

Wis. Stat. § 971.19(12)) .............................................................................................. 34, 55

Wis. Stat. § 978.05(1) ....................................................................................................... 34

Rules

SCR § 20:3.1(a) ................................................................................................................... 7

SCR § 20:3.8 ........................................................................................................................ 7

Election Board Opinion 00-2 (2000) (reaffirmed by GAB March 26, 2008) .............................................................. 4. 15, 21

Op. FEC 2011-12 (June 30, 2011) ................................................................................... 19

11 C.F.R. § 109.21(d) ....................................................................................................... 21

11 C.F.R. § 300.64(b) ........................................................................................................ 19


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INTRODUCTION

The John Doe Proceedings were commenced in five different Wisconsin coun-

ties as a result of petitions and affidavits filed by five different district attorneys

in five different circuit courts. Those petitions were assigned to a state judge who

reviewed the petitions and ordered each of the five John Doe Proceedings to

commence based on her independent finding that there was a reasonable belief

that campaign-finance crimes had occurred in each of the five Wisconsin coun-

ties. This judge then appointed a former federal prosecutor to lead the five John

Doe Proceedings. These proceedings were supported at all times by Wisconsin’s

Governmental Accountability Board (the “GAB”), a non-partisan agency that is

charged with interpreting and enforcing Wisconsin’s campaign finance laws and

that is comprised of six retired state court judges. Notably, none of the Defend-

ants petitioned for the commencement of the John Doe Proceedings in the coun-

ties in which Plaintiffs are located; rather, district attorneys not party to this liti-

gation did so.

Plaintiffs were served with a subpoena in the course of the John Doe proceed-

ing specific to them, after a finding of probable cause was made by the John Doe

judge to issue that subpoena. Although Plaintiffs successfully quashed this sub-

poena, Plaintiffs selectively sued four career prosecutors and one career investi-

gator for personal damages on the basis of it. Very few of Plaintiffs’ allegations,


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however, actually concern Defendants. Instead, Plaintiffs spin an epic yarn of a

years-long statewide conspiracy by Defendants to willfully suppress political

speech by conservative groups that they did not like, claiming that the legal the-

ory underlying the John Doe Proceedings—that secret coordination of issue ad-

vocacy is a crime under Wisconsin law—was used merely as a pretext to violate

Plaintiffs’ constitutional rights.

For this Court to accept Plaintiffs’ prodigious tale of bad-faith retaliation, it

would need to conclude that all of the individuals involved in the John Doe Pro-

ceedings—five different Wisconsin district attorneys (two of whom are elected

Republicans), retired Wisconsin judges appointed to be the judges of these John

Doe Proceedings, a career federal prosecutor that was judicially appointed to be

the John Doe special prosecutor, career investigators, and a non-partisan state

agency comprised of six former Wisconsin judges—violated their oaths of office

and willfully participated in state criminal proceedings for the sole purpose of

persecuting Plaintiffs and conservative groups for their political speech. The

Court would also need to reach this conclusion with knowledge that the GAB re-

affirmed a formal opinion in 2008 that supports the legal theory underlying the

John Doe Proceedings and with knowledge that the only Wisconsin appellate de-

cision directly on point expressly concluded that coordinated issue advocacy is

subject to regulation under Wisconsin law. Considering this and the wealth of


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federal case law that also supports the legal theory underlying the John Doe Pro-

ceedings, Plaintiffs’ bad-faith narrative must be rejected.

When Plaintiff’s pretext theory is laid bare and reduced to what it is—a gross

mischaracterization of the facts underlying lawfully commenced state criminal

proceedings—the district court’s preliminary injunction must be vacated and all

of Plaintiffs’ claims dismissed.

ARGUMENT

I. The Preliminary Injunction Must Be Reversed.

A. Plaintiffs’ Brief Relies on Misleading “Factual” Statements and Un-reasonable Inferences of Bad Faith.

Plaintiffs’ “factual” discussions1 consist of imaginative speculation as to De-

fendants’ ulterior motives, notwithstanding a record that demonstrates Defend-

ants’ objectively lawful conduct. In order to manufacture partisan motive in sup-

port of their bad faith-retaliation claim, Plaintiffs either misrepresent the factual

record or willfully ignore it. For instance, despite the fact that Plaintiffs were on-

ly served a single subpoena, which they successfully quashed, Plaintiffs now re-

1 Plaintiffs’ brief repeatedly cites to its own allegations and dubious internet postings as evi-dence. Indeed, many of their “facts” – especially the most scandalous - rely exclusively on “R.1”—their unverified complaint. See e.g., Resp. Br. at 99 (allegation, without any reference to a specific defendant, that “some of this information [regarding the John Doe proceedings] reached the public through direct or indirect selective leaks from the DA’s Office”); id. at 101 (citing internet postings that allegedly show “coordination” with a candidate – although no candidate is mentioned in some of those postings – as evidence of Defendants’ disparate treat-ment of conservative groups).


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quest that this Court “take judicial notice of the fact that is not Soviet Russia.”

Resp. Br. at 59.

Plaintiffs resort to such rhetorical gimmicks because the relief they seek is so

extraordinary and the objective legal reasonableness of Defendants’ conduct is so

clear. The evidence demonstrates that the John Doe criminal proceedings at issue

were:

(1) Commenced in direct consultation with the non-partisan GAB upon that agency’s review of the evidence for the sole purpose of enforcing state campaign finance law, R.104 ¶13;

(2) Supported by a unanimous vote by the nonpartisan GAB, R.110 Ex. A;

(3) Supported by published state case law and formal agency opin-ions, specifically Wis. Coal. for Voter Participation, Inc. v. State Elec-tions Bd. (WCVP v. SEB), 605 N.W.2d 654 (Wis. Ct. App. 1999) and Op.El.Bd. 00-2, at 8-13 (2000) (reaffirmed by GAB March 26, 2008), R.110, Ex. A;

(4) Petitioned for by both Republican and Democrat district attor-neys, R.53, Ex. B-E, J, W, X;

(5) Petitioned for by district attorneys with the specific request to have judicially-supervised proceedings under the State’s criminal John Doe Proceeding statute See R.53, Ex. B-E, J;

(6) Prosecuted by a judge-appointed, independent special prosecu-tor, who has no current political affiliation but who had voted for Governor Scott Walker, at the request of district attorneys from both political parties2, R.53, Ex. S, R.117 ¶10, R.110 Ex. M;

(7) Commenced by order of a state judge who found, based on her review of the evidence and law, “reason to believe that a crime

2 As another example of Plaintiffs’ mischaracterization of the evidence to fit their partisan narra-tive, Plaintiffs describe a jointly-signed letter from a bipartisan group of district attorneys as on-ly authored by District Attorney Chisholm. Resp. Br. at 18-19. The letter was actually signed by five district attorneys. R.53, Ex. S, R.117 ¶10, R.110 Ex. M


5

ha[d] been committed,” in five different Wisconsin counties R.53, Ex. K-O;

(8) Carried out through the issuance of subpoenas and search war-rants, all approved and issued upon a finding of probable cause by a John Doe Judge, who is not a party to this case and is not al-leged to have any animus toward Plaintiffs, R.1 Ex. F at 1-2; and

(9) Supervised by a state judge as part of a proceeding where Plain-tiffs were allowed to raise, and successfully did raise, constitu-tional arguments before the judge, Resp. Br. 24-25, R.1 Ex. D.

Far from showing bad faith and retaliation, the conduct of the GAB and bipar-

tisan prosecutors here demonstrates careful adherence to the law and respect for

all prosecutorial protocols. Nonetheless, Plaintiffs’ brief resorts to factual misrep-

resentations and unreasonable inferences regarding nearly every aspect of the

Defendants’ conduct. The sections below detail some of the more egregious “fac-

tual” narratives Plaintiffs proffer.

Prior John Doe Proceedings. Plaintiffs fault the Milwaukee District Attor-

ney’s office for successfully obtaining six convictions, including felony embezzle-

ment, against several persons who engaged in criminal conduct while associated

with the Milwaukee County Executive’s Office. Resp. Br. at 14. Plaintiffs do not

point to a single prosecution as part of those other John Doe Proceedings that

was not successfully prosecuted, either through dismissal, directed verdict, or re-

versal of any conviction. See id. Indeed, the State Attorney General, a Republican,

has since acknowledged that his office “supported [these convictions] in the ap-

pellate courts.” R.1 Ex. B at 3 (Sep. App. 70). No court has ever drawn an infer-


6

ence of bad faith based on uniformly successful prosecutions. Nevertheless, that

is precisely the inference of bad faith that Plaintiffs urge this Court to make,

which is directly contrary to this Court’s case law. See Collins v. Cnty. of Kendall,

807 F.2d 95, 101 (7th Cir. 1986) (discussing cases of bad faith and noting that an

inference of bad faith based on a plaintiff’s complaint of multiple prosecutions is

limited to “uniformly unsuccessful” prosecutions (emphasis in original)).

Plaintiffs’ brief concedes, moreover, that those prior proceedings did not in

any way concern the Plaintiffs. Nor do those proceedings concern the campaign

finance violations at issue here. See Resp. Br. 10-14. Yet Plaintiffs still highlight

those prior successful prosecutions as a basis for inferring bad faith of the De-

fendants here, including Schmitz and Nickel, who were in no way involved in

those prosecutions.3

Attorney General and GAB Involvement. Similarly, Plaintiffs attempt to col-

or the plainly reasonable conduct of the prosecutors as evidence of a partisan

agenda. For instance, District Attorney John Chisholm, a Democrat, sought early

on in the John Doe Proceedings to involve the State Attorney General, a Republi-

can. Resp. Br. at 16-17. Clearly, a politically-motivated and retaliatory prosecutor

would not surrender a proceeding to another office, much less one which is led

3 Plaintiffs consistently fail to refer to the Defendants individually or which alleged evidence is specific to each of them. Instead, they merge Defendants into one prosecutorial entity with re-spect to virtually every argument.


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by a member of the opposing political party. Yet Plaintiffs describe this entirely

appropriate conduct as “evidence” of District Attorney Chisholm’s alleged “pre-

text.” The inference Plaintiffs urge is counterintuitive at best. It is indeed a bold

conspirator who would consult the State Attorney General and ask for his partic-

ipation in order to cover up his real motivation.

Along the same line, Plaintiffs initially alleged that Chisholm rejected the ad-

vice of the Attorney General and refused to consult the non-partisan GAB. See

R.1 ¶¶ 93-94. The undisputed evidence shows, however, that Chisholm had re-

lied upon the GAB since the inception of the John Doe Proceedings in 2012. R.104

¶ 13. Rather than withdraw their false accusation that Chisholm refused to in-

volve the GAB, Plaintiffs stubbornly adhere to their tale of retaliation, now argu-

ing that Chisholm’s consultation of the nonpartisan GAB is itself evidence of

conspiracy and bad faith. Resp. Br. at 17.

Petitions for the John Doe Proceedings. Plaintiffs argue that the non-party

district attorneys made no “independent consideration of the facts and law”

when petitioning their respective circuit courts for a John Doe proceeding. Resp.

Br. at 17. Plaintiffs accuse the district attorneys (including Republican prosecu-

tors) of ignoring their oath of office and ethical obligations in commencing crimi-

nal proceedings when they personally signed and filed each petition for com-

mencement of the proceedings. See Wis. Stat. § 19.01; SCR 20:3.1(a), 20:3.8. How-


8

ever, Plaintiffs’ arguments are contradicted by evidence already in the record.

The two district attorneys who petitioned for the John Doe Proceedings in the

counties in which Plaintiffs are located, and who have the sole authority to pros-

ecute potential criminal violations in those counties, declared explicitly that they

“reviewed and evaluated independently” the evidence in support of the their re-

spective petitions during a meeting with the GAB in 2013, prior to filing their pe-

titions. R.112, 113.

Commencement of the John Doe Proceedings. Plaintiffs ignore that each of

the five John Doe Proceedings was necessarily commenced by a judicial finding

of “an objectively reasonable belief that a crime has been committed.” Custodian of

Records for the Legislative Tech. Serv. Bureau v. State (In re John Doe), 689 N.W.2d

908, 909 (Wis. 2004) (emphasis added). In other words, if a judge determines that

a John Doe petition is based on an unreasonable subjective belief—which Plain-

tiffs’ entire action against Defendants is premised on—the judge cannot order the

commencement of the John Doe. Here, the John Doe judge made a determination

that each of the five district attorneys had an “objectively reasonable belief that a

crime has been committed.” Indeed, each order executed by the judge states: “I

hereby find that there is reason to believe that violations of Wisconsin[‘s cam-

paign finance statutes] have occurred and that the crimes have been committed

within the jurisdiction of [the respective counties] and the jurisdiction of this


9

court.” R.53, Ex. K-O (emphasis added). In addition, none of the Defendants peti-

tioned for the commencement of the John Doe Proceedings in the counties in

which Plaintiffs are located. See, e.g., R.1 Ex. C.

Appointment of Special Prosecutor. Plaintiffs seek an inference of bad faith

regarding the appointment of Francis Schmitz as special prosecutor, speculating

that the appointment was “to provide a veneer of impartiality to the retaliatory

investigation.” Resp. Br. at 7. However, Plaintiffs misrepresent the objective evi-

dence showing that both Republican and Democrat district attorneys sought

Schmitz’s appointment, and that a judge made the appointment. R.53, Ex. S,

R.110 Ex. M. In addition, Plaintiffs ignore the undisputed averment of the special

prosecutor that he has no political affiliation at this time, that he was once a Re-

publican, that he voted for Governor Walker, and that he was approached by the

nonpartisan GAB—not by any district attorney—to lead the proceedings. R.117

¶¶ 6-8, 10-12. Directly contradicting Plaintiffs’ argument that the special prosecu-

tor plays only a token role in the proceedings, Special Prosecutor Schmitz has

averred, “In my role as a special prosecutor, while I have sought input and coun-

sel from, others involved in the investigation, I have made the final decisions on

what actions to take and the content of pleadings and other filings.” R.117 ¶ 20.

Plaintiffs’ Lawyers Were Served With a Single Subpoena After a Finding of

Probable Cause. Plaintiffs fail to acknowledge that the only “retaliatory” action


10

they allege is specific to them is a single subpoena that was served on their law-

yers in October 2013, which advised them that they could challenge the subpoe-

na “for any reason.” R.l ¶¶ 139, 184, Ex. F. Plaintiffs also fail to acknowledge that

the subpoena was issued by a judge, who necessarily found probable cause sup-

porting its issuance. In re John Doe, 689 N.W.2d at 909 (“The necessary link be-

tween the documents requested and the suspected criminal activity under inves-

tigation is thus shown, affording probable cause to believe that the documents

sought will produce evidence relevant to potentially criminal activity, as re-

quired by Wis. Stat. § 968.135.” (emphasis added)).

Plaintiffs’ Homes Were Not “Raided.” Plaintiffs argue as fact that unidenti-

fied “armed officers” conducted an unspecified number of “raids” at unidenti-

fied “homes” of Plaintiffs’ unidentified “associates.” Resp Br. at 19. Plaintiffs

now fault the Defendants for not challenging these allegations. The fact is Plain-

tiffs were subpoenaed as part of the John Doe Proceeding. See Resp. Br. at 20.

Their homes and property were not “raided.”

The only “evidence” in the record referencing these “raids” comes from Plain-

tiff O’Keefe’s declaration. See Resp. Br. at 19 (citing R.7 Ex. B). In that declaration,

O’Keefe claims that he somehow “learned” in the Fall of 2013—through some

unknown means—that unidentified “armed sheriff deputies arrived at several

[unidentified] homes across the state, shining floodlights on them.” R.7 Ex. B


11

¶ 49. The district court refused Defendants an opportunity to cross-examine

O’Keefe on his claim, but it is clear that these unidentified “raided” homes did

not include his own. It is also clear that none of the Defendants here are those un-

identified “sheriff deputies” who arrived at unidentified “homes across the

state.”

B. Plaintiffs Mischaracterize the District Court’s Preliminary Injunction Order and Abandon Claims within their Complaint to Legitimize the Injunction.

Although Defendants stand by their opening brief as to the factors supporting

the vacation of the district court’s preliminary injunction, Defendants offer here a

few reply points in demonstrating that the district court incorrectly determined

that the Plaintiffs had any likelihood of success on their claims.

As a matter of law, bad faith cannot be found where the undisputed evidence

shows: (1) the prosecutors sought judicially-supervised John Doe Proceedings;

(2) the prosecutors at the inception of those John Doe Proceedings consulted with

the non-partisan state agency (the GAB) responsible for interpreting and enforc-

ing the state’s campaign finance law regarding those proceedings; (3) the prose-

cutors sought to turn over the proceeding to the Republican State Attorney Gen-

eral for prosecution; (4) the prosecutors involved other district attorneys of both

political parties in the proceedings; and (5) the five district attorneys involved

requested that the proceedings be led by an independent special prosecutor who


12

voted for the very candidate that is allegedly at the center of proceedings. The

evidence demonstrates that, far from prosecuting a political vendetta in bad

faith, Defendants took every step available to them to enforce the law—as is their

sworn duty—while attempting to preclude baseless accusations of partisanship

such as those Plaintiffs now proffer.

No one before this lawsuit was filed ever asserted that the proceedings lacked

an objective basis in law or fact—not the judge who commenced the John Doe

Proceedings, not the non-partisan agency whose board of former judges unani-

mously endorsed the proceedings, not the State Attorney General who was ad-

vised of the proceedings, not any of the district attorneys who petitioned for the

proceedings, and not the special prosecutor who was appointed to lead the pro-

ceedings. Even the John Doe judge who quashed the subpoena that was served

on the Plaintiffs acknowledged that the State’s theory underlying the John Doe

Proceedings was an arguable interpretation of Wisconsin’s statutes and that an

appellate court may agree with the State’s theory. R.1 Ex. D (Sep. App. 102-05).

Nevertheless, in an unprecedented constitutional analysis of Plaintiffs’ bad faith-

retaliation claims, the district court found that Defendants commenced the John

Doe Proceedings in bad faith without any hope of obtaining a valid conviction.

Plaintiffs now make several unsuccessful arguments to legitimatize that decision.


13

First, Plaintiffs argue that the district court made factual findings of bad faith

to support its conclusion. However, the district court’s “background” section is

devoid of any facts supporting a reasonable inference of Defendants’ bad faith. If

there was any doubt as to whether the district court’s analysis included factual

findings, the district court removed that doubt in a later order, where it admitted

that the facts were unimportant to its strictly “legal analysis regarding the proper

scope of campaign finance regulation.” R.243 at 13 (“In other words, the Court’s

ruling would have been the same even in the absence of this evidence because, as

the Court held, regulation of coordinated issue advocacy is unconstitutional.”)

Second, Plaintiffs devote over twenty pages of their brief, weaving together fif-

ty years of court cases, to explain why Defendants’ “coordination theory” is inva-

lid. Resp. Br. 73-98. Yet, despite (and perhaps demonstrated by) that lengthy dis-

cussion, the Plaintiffs are unable to point to a single case that directly rebuts that

coordination theory, which they claim is indicative of bad faith. Indeed, there is

not a single decision the Plaintiffs or the district court have pointed to where a

court held that secret issue advocacy coordination between a 501(c)(4) organiza-

tion and a candidate is free from any and all regulation.

Tellingly, Plaintiffs avoid discussing this Court’s recent bad faith case, Mulhol-

land v. Marion Cnty Election Board, 746 F.3d 811 (7th Cir. 2014). That case demon-

strates that a bad faith claim that is based on a challenge to a legal theory is lim-


14

ited to “exceptional circumstances” where the legal theory has been previously

and explicitly held invalid. Perhaps more telling, Plaintiffs concede in their brief

that the most relevant case, WCVP v. SEB, 605 N.W.2d 654, 659 (Wis. Ct. App.

1999)—the only Wisconsin state case that directly concerns coordinated issue ad-

vocacy4 – supports Defendants’ legal theory. Resp. Br. at 81-82. That concession

directly contradicts other portions of their brief where Plaintiffs argue that De-

fendants’ legal theory is “not even arguably supported by Wisconsin law.” Resp.

Br. at 96. Considering the undisputed fact that Defendants’ coordination theory

is likewise supported by the state agency responsible for interpreting Wiscon-

sin’s campaign finance laws, there is simply no basis for disparaging Defendants

here for bad faith conduct.5

4 Although not relevant to Plaintiffs’ claims of bad faith against Defendants, Plaintiffs’ criticism of Wisconsin Coalition is misplaced. Plaintiffs fault that court for not focusing on “the distinction between issue and express advocacy” and, rather, making an “intent and circumstance-based inquiry.”Resp. Br. at 82. However, the court did not make an intent-based inquiry. The focus was on the level of coordination between a candidate and the so-called independent organiza-tion regarding the expenditure at issue. That focus is indeed consistent with Supreme Court precedent and, therefore, exactly what the court of appeals should have focused on. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 190 (2003) (rejecting plaintiff’s argument that the Supreme Court “drew a constitutionally mandated line between express advocacy and so-called issue advocacy” and explaining that the “the express advocacy restriction [is] an endpoint of statutory interpretation, not a first principle of constitutional law.”) Indeed, the McConnell Court clarified that its precedent has never held “that a statute that was neither vague nor over-broad would be required to toe the same express advocacy line.” Id. at 192. The Supreme Court in Citizens United has since clarified that disclosure requirements could sweep more broadly than speech “that is the functional equivalent of express advocacy.” 558 U.S. 310, 368‐69 (2010). In the end, the Supreme Court has rejected Plaintiffs’ argument that there is some type of consti-tutional command for a court to focus on “the distinction between issue and express advocacy.” 5 Remarkably, Plaintiffs’ brief fails to discuss the Defendants and the GAB’s reliance on the fed-eral case directly on-point regarding the constitutionality of their “coordination theory.” See FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C. 1999) (“Contrary to the characterization of the


15

Finally, Plaintiffs entirely abandon the claims underlying their motion for pre-

liminary injunction and now ask this Court to affirm the district court’s prelimi-

nary injunction as a direct constitutional challenge to Wisconsin statutes. Simply

put, Plaintiffs now ask this Court in a response brief on appeal to rule on the basis

of claims that are not in their Complaint and that Plaintiffs previously represent-

ed are not part of this lawsuit. Dck. 8 at 8 (“Plaintiffs’ right under the First and

Fourteenth Amendments ‘to coordinate political expenditures so long as they do

not engage in ‘express advocacy’’ [is] a right that is not the subject of any claim in

this case.”). However, Plaintiffs’ request goes against this Court’s well-

established rule that constitutionality of a statute should not be considered un-

less such adjudication is essential to a determination of the matter before the

court. United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998) (“[F]ederal judges

[are] to explore all non-constitutional grounds of decision before addressing con-

stitutional ones.”); Kelly v. Illinois Bell Telephone Co., 325 F.2d 148, 151 (7th Cir.

1963) (“Questions of constitutionality are not to be decided unless such adjudica-

tion is unavoidable.”)

The district court’s injunction based on bad faith must be vacated. If, for no

other reason, it must be vacated for the sake of vindicating the Defendants here

when the record cannot support such a conclusion of bad faith.

Coalition and amici, the FEC hardly invented the ‘coordination theory’ on its own”) (omitting citations); cf. El.Bd.00-2).


16

C. Plaintiffs Concede the Type of Conduct Being Investigated by the John Doe Proceedings—Coordinated Expenditures—Can be Regulated Under the First Amendment.

Plaintiffs repeatedly concede—albeit in circumspect, oblique and contradicto-

ry phrasing—the simple truth that coordinated expenditures, which are the focus of

the John Doe Proceedings, can be regulated under the First Amendment. See, e.g.,

Dkt. 130 at 74 (“Expenditures for political communications . . . may rarely if ever

be limited.”); id. (“the [Buckley] Court recognized that certain expenditures coor-

dinated with a candidate may also be restricted, to prevent circumvention of con-

tribution limits”); id. at 80-81 (quoting Colorado II as “holding that government

may regulate parties’ coordinated campaign-related expenditures because they

are ‘the functional equivalent of contributions’”); id. at 82 (quoting Buckley for the

proposition that “[c]ontribution limits (if that is how restrictions on coordinated

issue advocacy are to be viewed) may be upheld where the government demon-

strates that they are ‘closely drawn’ to match the government’s interest in pre-

venting quid-pro-quo corruption and its appearance and “to avoid unnecessary

abridgment of associational freedoms”); id. at 86 (citing Buckley for the proposi-

tion that “[r]estriction of coordinated expenditures is another prophylaxis, to

prevent circumvention of contribution limits”); id. at 93 (“a coordinated expendi-

ture may be treated as an in-kind contribution to a candidate only if, at the abso-

lute least, it is undertaken for the purpose of influencing votes in that candidate’s


17

race”) (emphasis in original); id. at 97 (“whatever legitimate interest the govern-

ment may have in regulating coordinated expenditures, it has no interest at all in

regulating contributions other than to candidates and parties”).

By conceding that coordinated expenditures can be regulated under the First

Amendment, Plaintiffs must abandon their cornerstone allegation that “the coor-

dination theory proposed [by Defendants] cannot extend to its activities” even if

Plaintiffs coordinated expenditures (i.e., coordinated issue advocacy) with a candi-

date, a candidate’s campaign committee or a candidate’s agents. R.1 ¶ 99 (Sep.

App. 30-31); cf. Compl. Ex C at 27-28 (describing the “legal predicate” of Defend-

ants’ coordination theory and that “[t]he United States Supreme Court and other

federal and district courts have consistently upheld the proposition that coordi-

nated expenditures are contributions subject to campaign finance limitations and

disclosure requirements in the context of First Amendment challenges to cam-

paign finance regulations”) (emphasis added) (omitting cases).

Simply put, because coordinated expenditures are treated as contributions,

the express advocacy test the Buckley Court applied to independent expenditures is

no longer applicable to the conduct being investigated here. Nor is the “strict

scrutiny” standard of review appropriate when analyzing the laws supporting

an investigation of such coordinated expenditures. For this reason, this Court’s

analysis in Barland II of whether independent expenditures can be regulated under


18

Wisconsin law has little analogous value to this case. Indeed, Plaintiffs concede

that a different standard of review must be applied here. Resp. Br. at 79 (“limits

on contributions are subject to lesser scrutiny”). However, because Plaintiffs are

compelled to make such concessions, they now attempt to confuse this Court by

(1) claiming that the focus of the John Doe Proceedings was actually not on coor-

dinated expenditures or, alternatively, (2) claiming that there is no hard evidence

that coordinated expenditures actually occurred.

1. Plaintiffs Mischaracterize the Type of Illegal Coordinated Conduct the John Doe Proceedings Were Commenced to Investigate.

Within only a few sentences of their introduction, Plaintiffs set forth false

analogies and mischaracterize the type of illegal coordinated conduct the John

Doe Proceedings were commenced to investigate. First, Plaintiffs claim that Pres-

ident Barack Obama and his campaign committee’s fundraising activities for Pri-

orities USA Action—a “Super Pac” supporting Democratic candidates—

represent the same type of activities that are being investigated by the John Doe

Proceedings. Resp. Br. at 1 (“Defendants launched and aggressively pursued a

secret criminal investigation . . . on the view that this kind of ‘coordination’ be-

tween a candidate and supporters is illegal.”). Plaintiffs’ characterization is false.

The John Doe Proceedings were not commenced to simply investigate a candi-

date or his campaign committee’s public fundraising activities for outside

groups, like a Super PAC. Indeed, a federal candidate can raise money for such


19

outside organizations—even by appearing at a Super PAC fundraising event—as

long as the candidate does not ask for money beyond the federal source and

amount limitations.6 See, e.g., Op. FEC 2011-12 (June 30, 2011); see also 11 C.F.R. §

300.64(b) (restrictions on fundraising by candidates). Second, Plaintiffs claim that

the John Doe Proceedings are simply “based on an advocacy group’s communi-

cation with a candidate.” Id. This too is false, as the John Doe Proceedings were

not focused on an advocacy groups’ mere contact with a candidate or his cam-

paign committee.

Specifically, the John Doe Proceedings were commenced to focus on coordinat-

ed expenditures—in the form of coordinated issue advocacy7—that were secretly

coordinated between a candidate, the candidate’s campaign committee and the

candidate’s agents and various outside groups, including 501(c)(4) organizations,

in order to circumvent state contribution limits and reporting requirements. With

respect to Plaintiff O’Keefe, the Iowa County District Attorney petitioned for a

John Doe Proceeding in his county because “O’Keefe is believed to have coordi-

nated political campaign advertising [i.e., expenditures] between the Friends of

6 Unlike 501(c)(4) organizations, Super PACs need to disclose their donors. 7 Plaintiffs do not contest that issue advocacy is an “expenditure” in this regard. See Dkt. 130 at 80 (“Speech on the issues is an ‘expenditure’ in every respect that Buckley regarded as rele-vant.”). That said, Plaintiffs’ argument that Defendants cannot identify any issue advocacy ad-vertisements produced by WCFG for a candidate’s campaign is meritless. The evidence indi-cates that a candidate or his campaign committee diverted money into WCFG so that the money could secretly be spent on campaign-related advocacy. The manner in which that money was spent is at the core of what the John Doe Proceedings were commenced to investigate.


20

Scott Walker, a campaign committee, and . . . Club for Growth—Wisconsin.” R.53

Ex. C Aff. ¶¶ 3, 5. Unlike independent expenditures, coordinated expenditures related

to political campaign advertising can be regulated, which this Court acknowl-

edged as recently as three years ago. See Wis. Right to Life State PAC (WRTL) v.

Barland, 664 F.3d 139, 155 (7th Cir. 2011) (“the First Amendment permits the gov-

ernment to regulate coordinated expenditures”) (emphasis in original) (citing Col-

orado II, 533 U.S. at 465).

Moreover, there are no “overbreadth” or “vagueness” issues here insofar as

Plaintiffs attempt to mischaracterize Defendants’ conduct as criminalizing any

unreported communication between an outside group and a candidate or his

campaign committee. Rather, the coordination standard set forth by the GAB,

and which has been in force in Wisconsin since 2001, specifically describes the

type of coordination that is subject to state regulation:

The communication is made at the request or suggestion of the cam-paign (i.e., the candidate or agents of the candidate); or, in the ab-sence of a request or suggestion from the campaign, if the coopera-tion, consultation or coordination between the two is such that the candidate or his/her agents can exercise control over, or where there has been substantial discussion or negotiation between the cam-paign and the spender over, a communication’s: (1) contents; (2) tim-ing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio advertisement); or (4) “volume” (e.g., number of copies of printed materials or frequency of media spots). Substantial discussion or negotiation is such that the candidate and the spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners.


21

El.Bd.00-2 at 12. This “Christian Coalition standard” has likewise been imported

into the FEC’s definition of “coordinated communications.” See 11 C.F.R. §

109.21(d). In short, the John Doe Proceedings are supported by a valid and con-

stitutional legal theory; accordingly, there is a reasonable expectation of obtain-

ing a valid conviction if those proceedings establish probable cause that secret

coordinated issue advocacy actually occurred.

2. Hard Evidence of Coordinated Expenditures

Contrary to Plaintiffs’ assertion that “Defendants declined multiple opportu-

nities to introduce any evidence contravening Plaintiffs’ [allegations],” (Dkt. 130

at 20-21), the record itself shows that it was the Plaintiffs that shied away and ob-

jected to the evidentiary hearing Defendants requested the district court to hold

in order to contravene Plaintiffs’ allegations:

Plaintiffs’ position is that the May 7 hearing should be an oral argu-ment on the Parties’ submissions. The Parties have submitted exten-sive declarations and documentary evidence. . . .

Defendants’ position is that Plaintiffs cannot sustain their burden of proof in the absence of live witnesses as Plaintiffs allege that the conduct of the Defendants is motivated by partisanship, animus, po-litical purposes and bad faith. Defendants dispute these allegations and intend to put Plaintiffs to their proof. Defendants will call wit-nesses to rebut Plaintiffs’ allegations and to defend against Plaintiffs’ attacks on Defendants’ declarations and credibility. . . .

R.136 at 2 (“Joint Civil L.R.7(h) Expedited Non-Dispositive Motion for a Pretrial

Conference”). Such an evidentiary hearing would have provided the opportunity


22

for the Defendants to demonstrate why five different district attorneys and the

John Doe Judge found a reasonable belief that a crime (i.e., secret coordinated is-

sue advocacy) occurred. Contrary to Plaintiffs’ claim, Defendants need not justify

the commencement of a state criminal proceeding by identifying evidence that

demonstrates that a crime, in fact, had been committed. Indeed, it is the very

purpose of the John Doe Proceeding to obtain that evidence after a judicial find-

ing that there is a reasonable belief a crime occurred. Judge Kluka ordered the

commencement of the John Doe Proceedings upon a finding of that reasonable

belief.

That said, Defendants respond briefly to Plaintiffs’ argument that much of the

evidence collected by the John Doe Proceedings dates back to 2011 before the gu-

bernatorial recall election officially began. However, the evidence dating from

2011 suggests a course of conduct that is highly relevant to what took place in the

2012 gubernatorial recall elections. In 2011, even this Court knew that gubernato-

rial recall effort was in full swing. Wis. Right to Life State PAC v. Barland, 664 F.3d

139, 149 (7th Cir. 2011) (“Indeed, the body politic in Wisconsin is experiencing

something of a perpetual campaign; efforts are currently underway to force the

governor and four state senators to stand in recall elections.”) Moreover, the def-

inition of “candidate” under Wis. Stat. § 11.01(1) is not as temporally limited as


23

Plaintiffs appear to suggest. Plaintiffs cannot categorically deny the relevance of

evidence dating from 2011 to the gubernatorial recall elections held in 2012.

II. Defendants Are Entitled to Qualified Immunity

A. Defendants Did Not “Forfeit” Their Qualified Immunity Defense.

Notwithstanding an extensive briefing history and the repeated notice De-

fendants provided to the district court and Plaintiffs that they were each assert-

ing qualified immunity, Plaintiffs now make the extraordinary claim that De-

fendants “forfeited” this defense on appeal because they did not “specifically

and adequately present it below.” Dkt. 130 at 55. Plaintiffs’ argument, however,

falls well short of this Court’s standard for determining that a party has forfeited

an argument on appeal. Issues are not waived on appeal when they were raised

before the district court and the district court had the opportunity to rule on the

issue. Lawrence v. Astrue, 337 Fed. Appx. 579, 584 (7th Cir. 2009). There was no

waiver here because each Defendant raised qualified immunity as an affirmative

defense at the earliest opportunity and argued that Plaintiffs’ rights at issue were

not clearly established, the defense was fully briefed by the parties and ruled on

by the district court, and there is no prejudice to Plaintiffs.

First, Defendants raised the defense of qualified immunity at the earliest op-

portunity by filing their respective motions to dismiss on March 12, 2014. R.40,

R.43, R.52. Defendants then raised qualified immunity again in their respective

answers to Plaintiffs’ Complaint. R.160 at 57, R.164 at 29, R.167 at 25. Thus, as a


24

matter of law, Defendants did not waive the defense of qualified immunity. See

Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014) (reversing district court’s

holding that defendants waived qualified immunity because “defendants raised

the defense of qualified at the very first opportunity . . . raised it again later in

their answer . . . [a]ccordingly, as a matter of law, defendants did not waive the

defense of qualified immunity”) (citing English v. Dyke, 23 F.3d 1086, 1089 (6th

Cir. 1994)).

Second, the qualified immunity defense was raised by each Defendant with

sufficient particularity. In their motion to dismiss briefs, each Defendant assert-

ed—in multi-paged and separately titled subsections of their respective briefs—

that he was entitled to qualified immunity. R.43 at 9-10, R.52 at 25-27, R.54 at 34-

37. In addition, in support of these qualified immunity arguments, Defendant

Schmitz referred the district court to the brief attached to Plaintiffs’ Complaint,

R.1 Ex. C (“State’s Consolidated Response to Motions to Quash Subpoenas Duces

Tecum”), that Defendant Schmitz had filed with the John Doe Judge in opposi-

tion to Plaintiffs’ motion to quash the subpoena that was served on Plaintiff


25

O’Keefe in October of 2013.8 That brief, as Defendant Schmitz argued, detailed

the “validity and constitutionality” of the primary basis upon which Plaintiffs

allege a constitutional injury—the subpoena Judge Barbara Kluka issued to

Plaintiff O’Keefe9—and “demonstrate[d] that the constitutional right at issue was

not clearly established at the time of the alleged violation.” R.43 at 10. This brief

outlined in detail the “legal predicate for the John Doe investigation” and, in par-

ticular, why coordinated expenditures are treated as contributions under Wis-

consin law and subject to the same limits and disclosure requirements. R.1 Ex. C

at 4-5 (Sep. App. 76-77).10 Similarly, Defendant Nickel argued that he was enti-

tled to qualified immunity because his actions did not “violate a clearly estab-

lished statutory or constitutional right of which a reasonable person would have

known.” R.54. at 25. Specifically, he argued there was no basis to find that he

knowingly violated Plaintiffs rights simply by virtue of the fact that he partici-

pated in the John Doe investigation because “[a]s Judge Peterson himself noted,

8 Plaintiffs attached this brief to their Complaint to support their characterization of the “theo-ry” underlying the John Doe Proceedings: “Defendants argue that R.J. Johnson’s ties with FOSW and with other social welfare organizations during the recall campaign, including WCFG, were sufficient to render the activities of these organizations ‘coordinated with FOSW. Under Defendants’ theory, by operation of law, these organizations either (1) became subcom-mittees of FOSW, and so were subject to the same limitations applicable to FOSW, or (2) their expenditures became ‘contributions’ to FOSW.” R.1 ¶97. 9 Plaintiffs do not appear to allege that WCFG was served a subpoena or was subject to a search warrant. 10 Plaintiffs fail to respond to Defendants’ argument that, because it was attached to the com-plaint, this exhibit represents a “built-in-defense” that the law was not “clearly established” at the time Plaintiff O’Keefe was issued the complained-of subpoena. Br. at 41 n.8. (citing Hamilton v. O’Leary, 976 F.2d 341 (7th Cir. 1992).


26

the State’s legal theory was not frivolous and was an arguable interpretation of

the campaign finance statutes.” Id. at 26.

Third, the district court addressed the qualified immunity arguments in its or-

der denying Defendants’ motions to dismiss. R.83 at App. 17; see Surita v. Hyde,

665 F.3d 860, 880 (7th Cir. 2011) (“The district court addressed the qualified im-

munity issue . . . . Hence, we will not find the qualified immunity issue waived

when the district court did not.”).

Fourth, there is no prejudice to Plaintiffs regarding the qualified immunity is-

sue because they had the opportunity to fully brief the issue in the district court

and before this Court. White v. Stanley, 745 F.3d 237, 239 (7th Cir. 2014) (“[w]e en-

force waiver in part to prevent prejudice to the opposing party”). In their re-

sponse to the Defendants’ motions to dismiss, Plaintiffs readily acknowledged

that “all [Defendants] rais[ed] qualified immunity defenses.” R.71 at 49. Plain-

tiffs’ opposition brief contains fifteen pages—more pages than Plaintiffs now de-

vote to the qualified immunity issue on appeal—addressing Defendants’ claims

of qualified immunity and even contains a separate subsection in which Plaintiffs

argue that Defendants’ conduct violated “clearly established law.” R.71 at 35-50.

Thus, Plaintiffs were on notice of Defendants’ arguments and had the opportuni-

ty to address them. See Garofalo v. Village of Hazel Crest, 754 F.3d 428, 437 (7th Cir.

2014) (finding no waiver of affirmative defense first raised in summary judgment


27

brief because defendants “had the opportunity to challenge this argument in

their own summary judgment submissions”).

Indeed, this Court has held that a qualified immunity defense is preserved

even when defendants only “mention[ed] in passing that [they] should be cov-

ered by qualified immunity,” because plaintiff “was on notice . . . that they

planned to assert qualified immunity,” it was “obvious that [plaintiff] would suf-

fer no prejudice by allowing the defense here.” Stanley, 745 F.3d at 239 see also

Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913-14 (7th Cir. 2011) (“[t]he

defendants’ assertion in their opening brief of a qualified immunity defense was

unambiguous” and because “it is absolutely clear that the defendants’ underde-

veloped opening brief argument supplied adequate notice to the plaintiffs and

caused them no prejudice”); Findlay v. Lendermon, 722 F.3d 895, 899 n.3 (7th Cir.

2013) (same).11

For these reasons, Plaintiffs’ waiver argument is without merit.

11 The two cases Plaintiffs cite in support of their waiver arguments – Pole v. Randolf, 570 F.3d 922 (7th Cir. 2009) and Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008) – are inapposite. In Pole, this Court held that a criminal defendant forfeited an ineffective-counsel argument because he did not argue it in his habeas petition or his brief in district court. 570 F.3d at 937. In Kunz, this Court affirmed the district court’s judgment that an argument was not properly preserved because the argument was not “articulated” until the party’s reply brief. 538 F.3d at 682.


28

B. The Court Has Jurisdiction to Address The Qualified Immunity De-fense Under The Collateral Order Doctrine.

Plaintiffs claim that “this Court lacks collateral-order jurisdiction to consider

Defendants’ qualified-immunity defenses because they would not ‘conclusively

determine[] the defendant’s claim of right not to stand trial on the plaintiff’s alle-

gations.” Resp. Br. at 4 (quoting Mitchell v. Forsyth, 47 U.S. 511, 527 (1985)). How-

ever, the Plaintiffs misapply Mitchell to this case. Mitchell held that an appealable

interlocutory decision “must ‘conclusively determine the disputed question,’”

and that “[s]uch a decision is ‘conclusive’” when the district court concludes that

“the defendant’s actions violated clearly established law and are therefore not

within the scope of the qualified immunity.” 47 U.S. at 527 (quoting Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). There is no question that is what the

district court did here when it answered the disputed question—that Defend-

ants’ alleged participation in John Doe Proceedings that target coordinated issue

advocacy represents a clear, unlawful violation of Plaintiffs’ constitutional

rights—and held, accordingly, that Defendants’ alleged actions were not within

the scope of the qualified immunity: “the defendants cannot seriously argue that

the right to express political opinions without fear of government retaliation is

not clearly established.” R.83 at App. 17.

Nonetheless, Plaintiffs claim that four additional “questions [would still] have

to be considered [by the district court] on remand” before a qualified immunity


29

determination can be made: (1) whether the Milwaukee Defendants acted in re-

taliation for Plaintiffs’ political speech; (2) whether the Milwaukee Defendants

had any reason to believe Plaintiffs may have engaged in conduct violating Wis-

consin law; (3) whether Wisconsin law may be interpreted, consisted with the

First Amendment, to reach coordinated issue advocacy; or (4) whether Plaintiffs’

advocacy actually violated Wisconsin law. Id. at 62. However, in claiming that

the district court must answer these four questions, Plaintiffs reveal a fundamen-

tal misunderstanding as to what questions need to be asked for this Court to de-

termine whether Defendants are entitled to qualified immunity.12

First, it is irrelevant to the qualified immunity analysis whether the Milwau-

kee Defendants “acted in retaliation for Plaintiffs’ political speech.” Anderson v.

Creighton, 483 U.S. 635, 641 (1987) (holding that police officer’s “subjective beliefs

. . . are irrelevant” in qualified immunity analysis); Crawford-El v. Britton, 523 U.S.

574, 589, 590-91 (1998) (“[E]vidence of improper motive is irrelevant on the issue

of qualified immunity . . . .” even “when the official conduct is motivated, in part,

by hostility to the plaintiff”).

Second, this Court can easily determine that there was “a reason to believe”

Plaintiffs may have engaged in conduct violating Wisconsin law; indeed, that is

12 At minimum, Plaintiffs now appear to concede, with regard to the first two questions they pose which only address “the Milwaukee Defendants,” that Schmitz and Nickel did not retali-ate against Plaintiffs for their political speech and that their qualified immunity claims can now be resolved by this Court.


30

exactly what the John Doe Judge found when she commenced each of the five

John Doe Proceedings and issued subpoenas and search warrants in furtherance

of those proceedings. In particular, with regard to Plaintiff O’Keefe, the District

Attorney of Iowa County supported his petition to commence a John Doe Pro-

ceeding in Iowa County—where O’Keefe resides—with an affidavit that specifi-

cally identified O’Keefe as an individual who was “believed to have coordinated

political campaign advertising between the Friends of Scott Walker . . . and a

501(c)(4) organization known as Club for Growth—Wisconsin” in violation of

Wisconsin campaign-finance laws. R.53 Ex. C, Aff. ¶ 5. The John Doe Judge, in

turn, commenced a John Doe Proceeding in Iowa County because she found

“reason to believe that violations of Wisconsin Statutes §§ 11.26, 11.27, 11.38 and

11.61(1)(b), pertaining to Limits on Campaign Contributions, False Campaign

Reports, and Contributions by Corporations, may have occurred and that the

crimes have been committed within the jurisdiction of Iowa County and the ju-

risdiction of this court.” R.53 Ex. L.

Third, Plaintiffs cannot dispute that “Wisconsin law may be interpreted, con-

sistent with the First Amendment, to reach coordinated issue advocacy.” That is

precisely what Wisconsin’s State Election Board and its successor, the GAB, has

been advising Wisconsin citizens since at least 2001. Dkt. 28 Ex. B at 12 (Sep.

App. 131) (“speech which does not expressly advocate the election or defeat of a


31

clearly identified candidate may, nevertheless, be subject to campaign finance

regulation”); see also R.53 Ex. A. ¶¶ 10, 13 (2014 affidavit in which GAB’s director

and general counsel avers that “[i]n contradiction of the stated legislative pur-

pose of Wisconsin’s campaign finance laws, affirming the John Doe Judge’s in-

terpretation of Wisconsin law regarding coordination would result in [a] candi-

date’s direct control over millions of dollars of undisclosed corporate and indi-

vidual contributions without limitations on the amounts accepted”).

Fourth, the question “whether Plaintiffs’ advocacy actually violated Wisconsin

law” is irrelevant to the issue of whether Defendants are entitled to qualified

immunity for actions taken to further John Doe Proceedings that were still ongo-

ing to determine if a violation of Wisconsin campaign finance law had occurred.

Simply put, the only question this Court needs to address with regard to De-

fendants’ qualified immunity is “the crucial question . . . whether the [Defend-

ants’] acted reasonably in the particular circumstances that he or she faced.”

Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); see also Crawford-El, 523 U.S. at

574, 590-91(proper focus of the qualified immunity analysis should be on “the ob-

jective legal reasonableness of an official's acts”) (emphasis added). This Court can

answer that question now. Plumhoff, 134 S.Ct. at 2019 (“deciding legal issues of

this sort is a core responsibility of appellate courts, and requiring appellate

courts to decide such issues is not an undue burden”).


32

C. Broad Allegations of Bad Faith Targeting Cannot Defeat a Claim For Qualified Immunity When There Was An Objectively Reasonable Basis For The John Doe.

Plaintiffs argue that “the [qualified immunity] ‘inquiry must be undertaken in

light of the specific context of the case,” . . . or, in other words, that ‘it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.’” Dkt. 60 (quoting Brusseau v. Haugen, 543 U.S. 194, 198 (2004)). De-

fendants agree. Accordingly, and because Plaintiffs cannot set forth constitution-

al claims on behalf of other individuals or organizations,13 the Court must focus

on the specific constitutional injury allegedly suffered by Plaintiffs.

1. Neither Plaintiff Was Required to Produce Documents.

Here, Plaintiffs allege that O’Keefe “first learned of the [John Doe Proceed-

ings] on October 3, 2013, when he was served a subpoena.” R.1 ¶122.14 That sub-

poena was issued by Judge Kluka on September 28, 2013, and required O’Keefe

to appear at the Dane County Courthouse, in Madison, Wisconsin, on October

29, 2013, and to bring with him documents that were defined in “Attachment A.”

13 In Ray v. Maher, 662 F.3d 770, 773-74 (7th Cir. 2011), this Court observed that a “bedrock prin-ciple of § 1983 law” is the personal nature of a § 1983 claim; see, e.g., Russ v. Watts, 414 F.3d 783, 790 (7th Cir. 2005) (holding that parents may sue only for constitutional injury to themselves, not for constitutional injuries to their son); see also Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999) (“a litigant must assert his own legal rights and cannot assert the legal rights of a third party.”); Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) (“[r]ights personal to their hold-ers may not be enforced by third parties”). Thus, Plaintiffs lack standing to assert the constitu-tional rights of other individuals or entities involved in the John Doe Proceedings. 14 Plaintiffs attached this subpoena to their Complaint. R.1 Ex. F. The subpoena indicates that the subpoena was not served on O’Keefe but to a law firm. Id. at 1. Plaintiffs have not alleged that WCFG was served a subpoena or other legal process and have not alleged which of the five John Doe Proceedings directly “targets” WCFG.


33

R.1 Ex. F. In lieu of appearing himself, the subpoena authorized O’Keefe to pro-

duce the requested documents to Defendant Schmitz. Id. at 2. The subpoena also

notified O’Keefe that he could “file challenge papers” with Judge Kluka if he

“elect[ed] to challenge this Subpoena for any reason.” Id. That is exactly what

Plaintiffs did, resulting in the quashing of the subpoena. R.1 Ex. D. Thus, neither

Plaintiff has produced documents in relation to the John Doe Proceedings. Id.

2. Defendants Did Not Petition For The John Doe Proceedings Against Plaintiffs.

None of the Defendants petitioned for the commencement of the John Doe

Proceedings in the counties in which Plaintiffs are located. Specifically, with re-

gard to Plaintiff O’Keefe, it was the Iowa County District Attorney, Larry Nelson,

who petitioned for its commencement. R.1 Ex. C. Mr. Nelson filed his petition af-

ter having “had occasion to review information involving a person named Eric S.

O’Keefe . . . a resident of the County of Iowa” and after coming to the independ-

ent “belie[f] that further information concerning possible crimes occurring under

Chapter 11 of the Wisconsin Statutes can be revealed utilizing a John Doe Pro-

ceeding.” Id. at 1. Mr. Nelson’s petition also requested the John Doe Proceeding

be secret. Id. at 1-3. In support of his petition, Mr. Nelson attached an affidavit in

which he averred the following:

I make this Affidavit in support of a request for commencement of a John Doe investigation concerning alleged Campaign Finance viola-tions committed by Eric S. O’Keefe . . . By operation of law at Wis-


34

consin Statutes §§ 11.61(2), 971.19(12) and 978.05(1), the prosecutors and the courts of the defendant’s county of residence [Iowa County] have the responsibility to handle violations of Chapter 11 of the Wisconsin Statutes.

… . . . Mr. O’Keefe is believed to have coordinated political campaign advertising between the Friends of Scott Walker, a campaign com-mittee, and a 501(c)(4) organization known as Club for Growth—Wisconsin. For these reasons, I respectfully submit there is reason to suspect that a criminal violation of the Wisconsin Statutes has occurred and there is likewise reason to suspect that such violations have taken place involving a person who is a resident of Iowa County, making him subject to the jurisdiction of the Iowa County Courts and the Iowa County District Attorney’s Office.

Id. at 4.

On August 27, 2013, Judge Kluka granted Mr. Nelson’s petition and com-

menced the John Doe Proceeding in Iowa County:

Based upon the Petition of District Attorney Larry E. Nelson and his supporting Affidavit, I hereby find reason to believe that viola-tions of Wisconsin Statutes §§ 11.26, 11.27, 11.38 and 11.61(1)(b), per-taining to Limits on Campaign Contributions, False Campaign Re-ports, and Contributions by Corporations, may have occurred and that the crimes have been committed within the jurisdiction of Iowa County and the jurisdiction of this court. NOW THEREFORE I hereby authorize the commencement of a John Doe Proceeding, pursuant to Wis. Stats., Section 968.26.

R.53 Ex. L. Judge Kluka also granted Mr. Nelson’s request that the John Doe Pro-

ceeding be “secret” and, accordingly, issued a secrecy order that governed the


35

Iowa County John Doe Proceeding.15 R.1 Ex. E. It was only after the Iowa County

John Doe Proceeding was commenced that Defendant Schmitz was appointed its

special prosecutor. R.53 Ex. S.

Thus, despite Plaintiffs’ broad allegations that Defendants attempted to “tar-

get” Plaintiffs by commencing John Doe Proceedings against them and initiating

other legal process (e.g., subpoenas), the specific context of Plaintiffs’ injury, for

purposes of the qualified immunity analysis,16 shows that (1) none of the De-

fendants petitioned for the John Doe Proceedings in the counties in which Plain-

tiffs are located; (2) none of the Defendants provided affidavits in support of

such petitions; (3) none of the Defendants petitioned or issued the secrecy orders

to which Plaintiffs were subject; and (4) none of the Defendants issued the sub-

poena served on Plaintiffs. But even if Plaintiffs could allege that Defendants

were behind the issuance or service of Judge Kluka’s complained-of subpoenas,

Defendants would still be entitled to qualified immunity because each Defendant

“acted reasonably in the particular circumstances that he or she faced.” Plumhoff,

15 A month after receiving his subpoena, which referred to the secrecy order and ordered O’Keefe not to disclose its contents or the fact that he received it, O’Keefe was in contact with The Wall Street Journal and publicly identified himself as a subpoenaed party in the John Doe Proceedings: “[O]ne target who did confirm receiving a subpoena is Eric O’Keefe, who realizes the personal risk but wants the public to know what is going on. Mr. O’Keefe is the director of the Wisconsin Club for Growth. . . . Mr. O’Keefe says he received his subpoena in early Octo-ber.” R.7 Ex. 33. 16 See Forsyth, 472 U.S. at 528 (“To be sure, the resolution of these legal issues [regarding quali-fied immunity] will entail consideration of the factual allegations that make up the plaintiff's claim for relief.”).


36

134 S.Ct. at 2023 (instructing that courts must address “the crucial question

whether the official acted reasonably in the particular circumstances that he or

she faced.”).

The Supreme Court’s analysis in Reichle v. Howards is instructive in these par-

ticular circumstances. 132 S.Ct. 2088 (2012). In Reichle, the plaintiff was arrested

by secret service agents after he told Vice President Dick Cheney that his “poli-

cies in Iraq are disgusting” and after he falsely denied that he had touched the

Vice President on the shoulder. Id. at 2091. Plaintiff filed a complaint alleging, in-

ter alia, that the secret service agents arrested him in retaliation for criticizing the

Vice President, in violation of the First Amendment. Id. at 2092. The Court of

Appeals for the Tenth Circuit upheld the district court’s denial of the agents’

claims of qualified immunity based on the broad, general right that “the First

Amendment prohibits government officials from subjecting an individual to re-

taliatory actions for his speech.” Id. However, the Supreme Court held that the

secret service agents were entitled to qualified immunity because the specific

right at issue could not be so broadly phrased; rather, the specific right at issue

was the right “to be free from a retaliatory arrest that is otherwise supported by

probable cause,” which the Court concluded was not clearly established at the

time of the arrest. Id. at 2094, 2097.


37

Similarly, here, with regard to Plaintiffs’ claims of “retaliation,” the Plaintiffs’

right at issue is not the broad right—as framed by the district court—“to express

political opinions without fear of government retaliation,” R.83 at App. 17; ra-

ther, it is Plaintiffs’ right to be free from a retaliatory John Doe subpoena that is other-

wise supported by probable cause. Here, the subpoena served on O’Keefe was neces-

sarily supported by probable cause, which is the standard upon which all John

Doe subpoenas are issued. See, e.g., In re John Doe, 689 N.W.2d at 909 (noting that

Wis. Stat. § 968.135 requires a John Doe subpoena be supported by probable

cause). Thus, the right to be free from a retaliatory John Doe subpoena that is

otherwise supported by probable cause (i.e., that a crime of coordinated issue

advocacy has been committed)—just as is the right to secretly coordinate issue

advocacy with a candidate, a candidate’s personal campaign committee and a

candidate’s agents—was not clearly established at the time that subpoena was

issued. Indeed, even if there was no probable cause supporting the issuance of

O’Keefe’s subpoena, the right to be free from a retaliatory John Doe subpoena—

which is similar to a grand jury subpoena insofar as John Doe and grand jury

proceedings are considered to be similar by state and federal courts—could not

be considered clearly established. See, e.g., United States v. R. Enterprises, Inc., 498

U.S. 292, 297 (1991) (“the Government cannot be required to justify the issuance

of a grand jury subpoena by presenting evidence sufficient to establish probable


38

cause because the very purpose of requesting the information is to ascertain

whether probable cause exists”); Branzburg v. Hayes, 408 U.S. 665, 682, 688 (1972)

(concluding that “(c)itizens generally are not constitutionally immune from

grand jury subpoenas . . . ” and acknowledging that “the longstanding principle

that ‘the public . . . has a right to every man's evidence’ . . . is particularly appli-

cable to grand jury proceedings”) (omitting citation). 17

III. Defendants Are Entitled to Prosecutorial Immunity.

A. Actions Furthering a John Doe Proceeding are Cloaked in Absolute Prosecutorial Immunity.

Plaintiffs fail to respond to Defendants’ argument (Br. at 52-53) that absolute

immunity has attached to activities undertaken to further John Doe Proceedings

since Wisconsin’s territorial days—long before 42 U.S.C. § 1983 was enacted.

Failing to address this historical fact, Plaintiffs waver between refusing to

acknowledge that absolute immunity can attach to any activity within a John

Doe Proceeding (Resp. Br. at 66) and conceding that immunity can apply in a

John Doe Proceeding insofar as it constitutes a probable cause hearing, like a 17 Contrary to Plaintiffs’ claim, the Tenth Circuit case Bennett v. Hendrix is not “analogous” to this case. In Bennett, “the alleged retaliatory acts complained of . . . include[d] a prolonged and organized campaign of harassment by local police officers . . . with instances where the defend-ants followed, pulled over, cited, intimidated, or otherwise harassed plaintiffs . . . [and] at-tempted to obtain arrest warrants against the plaintiffs without probable cause, and produced and mailed to [county] residents depicting the plaintiffs as criminals terrorizing the county.” 423 F.3d 1247, 1255. Here, the retaliatory act Plaintiffs allegedly suffered was the service of a subpoena, which was issued in a John Doe Proceeding commenced by a non-Defendant district attorney and which was issued by the John Doe judge upon a finding of probable cause. See, e.g., In re John Doe, 689 N.W.2d at 909. Plaintiffs fail to cite any “other closely analogous case establishing that the conduct [of Defendants] is unconstitutional.” See Estate of Escobedo v. Bend-er, 600 F.3d 770, 779 (7th Cir. 2010).


39

grand jury hearing (Resp. Br. at 69-70). Unable to articulate a consistent position,

Plaintiffs then cite to vague allegations in their complaint that putatively take all

John Doe activities of each Defendant outside the scope of absolute immunity.

B. Absolute Immunity Attaches to John Doe Proceedings, as Absolute Immunity Attaches to Grand Jury Proceedings.

Plaintiffs argue that Defendants are not entitled to absolute immunity because

a probable-cause determination had not been made. Defendants, of course, con-

cede that the probable-cause determination had not been made to arrest anyone

because Plaintiffs brought this civil lawsuit in the middle of the very proceeding

meant to determine whether such probable cause existed. To be sure, the entire

purpose of a John Doe Proceeding—just like an application for a search warrant

as discussed in Burns v. Reed, 500 U.S. 478 (1991), or the grand jury proceeding

discussed in Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007)—is the determination

of probable cause. State v. Washington, 266 N.W.2d 597, 605 (Wis. 1978). (“It is the

responsibility of the [John Doe] judge to utilize his or her training in constitu-

tional and criminal law and in courtroom procedure . . . in determining probable

cause.”). That is not to say, however, that probable cause did not exist for issu-

ance of the subpoena that forms the basis of Plaintiffs’ Complaint. In re John Doe,

689 N.W.2d at 909 (observing that Wis. Stat. § 968.135 requires a John Doe sub-

poena be supported by probable cause).


40

According to Plaintiffs’ logic, however, so long as a civil litigant files a civil

action before a probable-cause determination has been made in a state criminal

proceeding, no absolute immunity can apply to participants involved in that

proceeding. However, such a result would encourage prosecutors to rush the de-

termination of probable cause in a probable cause hearing out of fear that an in-

dividual subject to those proceedings need only file a civil lawsuit in order to

preemptively defeating the prosecutor’s absolute immunity. Prosecutorial im-

munity should not be dependent on a race to the courthouse.

Regardless, Plaintiffs concede (Resp. Br. at 68-70) that conduct within a John

Doe Proceeding (e.g., applying for a search warrant) can be cloaked by prosecu-

torial immunity, just as it would be in other probable cause hearings, like a grand

jury proceeding. Indeed, given the well-established rule that prosecutorial im-

munity applies to “acts intimately associated with judicial phase of the criminal

process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (emphasis added), it would

be anomaly for this Court, on the one hand, to recognize absolute immunity

within a grand jury proceeding as it did in Redwood v. Dobson despite the absence

of judicial oversight as part of that proceeding, but on the other hand, decline to

recognize absolute immunity as part of the John Doe Proceeding when there is,

by statute, judicial oversight from the very inception of that criminal proceeding.


41

C. Plaintiffs’ Allegations Do Not Preclude Prosecutorial Immunity.

The action on which Plaintiffs’ alleged constitutional injury is based is the

service of a subpoena. R.l ¶¶ 139, 184, Ex. F. That subpoena, like all subpoenas

and search warrants, was approved by a judge, necessarily upon a finding of

probable cause as part of the John Doe Proceeding. See R.l Ex. F at 1-2; In re John

Doe, 689 N.W.2d at 909. Although John Doe Judge Gregory Peterson later disa-

greed with Judge Kluka as to whether probable cause existed, that disagreement

is irrelevant as to whether immunity applies to the prosecutors who may have

advocated on behalf of the state with regard to that subpoena. See Burns, 500 U.S.

at 483.

With respect to their allegations that the investigation is retaliatory and based

on a “pretextual” legal theory, Plaintiffs’ allegations clearly pertain to motive,

which is irrelevant to the prosecutorial immunity analysis. See Br. at 54 (citing

cases). Moreover, the majority of Plaintiffs’ allegations have nothing to do with

Plaintiffs who, again, were simply served with a subpoena (e.g., alleging Defend-

ants “crafted broad and invasive requests for search warrants,” “seized activists’

computers . . . .,” “timed investigatory conduct to injure their political oppo-

nents”). Other allegations are objectively irrelevant (e.g., alleging Defendants

“shopped the investigation around to the Attorney General . . . ,” “structured

those proceedings so they could participate in and exercise control over the in-


42

vestigation,” “interviewed numerous witnesses and reviewed hundreds of thou-

sands of documents”).

Plaintiffs also allege that “defendants” (apparently all of them, although

Plaintiffs do not specify) “selectively leaked material to injure their targets.”

Resp. Br. at 68-70. However, quite apart from the cases relied on by Plaintiffs, the

Plaintiffs here fail to allege which Defendant they are referring to that allegedly

leaked the material, what materials they are claiming were leaked, how they

caused injury to the plaintiffs here, or, related to that point, who the “materials”

refer to other than “targets.” Even the citations to the Complaint that they rely on

here for the alleged injurious leaks refer only to Scott Walker. But Scott Walker is

not a plaintiff in this case.

IV. Younger Abstention Requires Dismissal of the Preliminary Injunction and Stay of The Damages Action If It Is Not Dismissed.

Plaintiffs argue that Younger abstention does not apply because, under the

“bright line” drawn by Sprint, abstention is appropriate only in the case of ongo-

ing criminal proceedings. Plaintiffs also argue that their unsupported allegations

of bad faith defeat abstention. Neither argument is correct.

A. John Doe Proceedings Fall Within The Sprint Category of Proceed-ings “Akin to” a Criminal Prosecution.

After becoming wary of the frequency with which federal courts were ab-

staining from hearing cases involving state civil proceedings, the Supreme Court


43

in Sprint Commc’ns., Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013), clarified that Younger

abstention is appropriate only in proceedings bearing some clear procedural rela-

tionship to a “pending state criminal proceeding.” 134 S.Ct. at 588. Contrary to

the Plaintiffs’ assertions, Sprint did not draw a bright line limiting Younger ab-

stention only to ongoing criminal prosecutions; instead, it held Younger absten-

tion could also apply to non-criminal proceedings that are “‘akin to a criminal

prosecution’ in ‘important respects.’” Id. at 591 (quoting Huffman v. Pursue, Ltd.,

420 U.S. 592, 608 (1975). Sprint also clarified that the factors set forth in Middlesex

Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982), were still rele-

vant to “quasi-criminal” proceedings. Sprint, 134 S.Ct. at 593. In other words,

Sprint “focus[ed] the abstention inquiry on whether the state proceeding is quasi-

criminal.” Gonzalez v. Waterfront Comm'n of the N.Y. Harbor, 755 F.3d 176, 181 (3d

Cir. N.J. 2014); see also Fund v. City of New York, No. 14 Civ. 2958, 2014 U.S. Dist.

LEXIS 68509, at 12 (S.D.N.Y. May 19, 2014) (“the Supreme Court explained in

Sprint that abstention is only appropriate in settings bearing some clear proce-

dural relationship to criminal proceedings.”)

In order to determine whether a proceeding is “akin to” a criminal prosecu-

tion or “quasi-criminal” in nature, Sprint considered whether “(1) the action was

commenced by the State in its sovereign capacity, (2) the proceeding was initiat-

ed to sanction the federal plaintiff for some wrongful act, and (3) there are other


44

similarities to criminal actions, such as a preliminary investigation that culminat-

ed with the filing of formal charges.” Acra Turf Club, LLC v. Zanzuccki, 748 F.3d

127, 138 (3d Cir. 2014). These factors are satisfied here. John Doe Proceedings are

brought by the state in its sovereign capacity with the end result being a criminal

prosecution. John Doe Proceedings are governed by Wisconsin’s criminal stat-

utes, instituted by a prosecutor, overseen by a judge, involve criminal procedural

due process protections, require probable cause findings, and expose individuals

to criminal penalties. Likewise, all of the cases cited by Defendants involving

grand jury proceedings remain good law following Sprint because they involve

similar characteristics to that of a John Doe Proceeding and the facts before the

Sprint court did not involve a criminal proceeding but, rather, a civil dispute be-

tween private parties.

Contrary to Plaintiffs’ claim, Defendants never argued that a John Doe Pro-

ceeding was merely an “inquest into a crime.” Dkt. 131 at 38. Certainly, a John

Doe Proceeding involves a criminal investigation, but it also involves a judge ex-

ercising “his or her training in constitutional and criminal law and in courtroom

procedure in determining the need to subpoena witnesses requested by the dis-

trict attorney, in presiding at the examination of witnesses, and in determining

probable cause.” Washington, 266 N.W.2d at 603, 605. Additionally, in order for

the John Doe judge to issue subpoenas and search warrants he or she must have


45

made a probable cause determination. In re John Doe, 689 N.W.2d at 909. And, the

John Doe judge holds contempt power over the subjects of the proceeding. See

State ex rel. Unnamed Person No. 1 v. State (In re Doe), 2003 WI 30, ¶ 99, 260 Wis. 2d

653, 706, 660 N.W.2d 260, 286 (2003). Plaintiffs characterization of this procedure

as a “subpoena mill in service,” Dkt.. 131 at 42, is wholly unsupported by Wis-

consin case law and inconsistent with the fact that Judge Peterson quashed the

subpoena directed at Plaintiff O’Keefe in this case.

The Plaintiffs next argue that the language in Sprint relating to “proceedings

akin to” a criminal prosecution and “quasi-criminal” proceedings apply only to

“civil enforcement actions.” These “civil enforcement actions” include proceed-

ings such as the state bar disciplinary proceedings at issue in Middlesex. See also

Mir v. Shah, Case No. 13-55, 2014 U.S. App. LEXIS 11500, 6, 2014 WL 2722767 (2d

Cir. N.Y. June 17, 2014) (applying Younger to state proceeding to forfeit physician

license post-Sprint).

It would be quite an odd result if Younger abstention applied to federal cases

arising out of state bar disciplinary proceedings and revocation of a medical li-

cense, but not a John Doe Proceeding—a proceeding instituted by state prosecu-

tors to determine if a crime has been committed, overseen by a judge, involving

the state’s coercive power to subpoena witnesses, obtain evidence, and hold wit-

nesses in contempt, and one that includes criminal due process protections, such


46

as the right to appear by counsel and challenge the actions of state officials par-

ticipating in the proceeding. It is clearly evident that a John Doe Proceeding is

much more of a coercive action brought in the name of the State than a profes-

sional licensure proceeding brought by a disciplinary board. Accordingly,

Younger abstention should apply to John Doe Proceedings.

Given the uniqueness of Wisconsin’s John Doe Procedure, it is not surprising

that it does not fit neatly into the categories of a formal “criminal prosecution” or

“civil enforcement action.” But, the bottom line is that while a John Doe Proceed-

ing is not yet a criminal prosecution, it is a quasi-criminal proceeding and ulti-

mately leads to a criminal prosecution and satisfies the factors set forth in Sprint.

Indeed, a contrary result would be inconsistent with the very purpose of Younger

abstention: to allow a state to enforce its criminal laws—which is precisely the

issue in this case.

B. Younger Abstention Does Not Require an Active Criminal Prose-cution.

Relying on Mulholland v. Marion Cnty. Election Bd., 746 F.3d 811, 818 (7th Cir.

2014), Plaintiffs argue that Younger abstention cannot apply to anything less than

an active criminal prosecution. This is incorrect for several reasons.

First, in discussing the types of civil enforcement proceedings to which

Younger abstention could apply, the Sprint court expressly mentioned proceed-

ings in which [i]nvestigations are commonly involved, often culminating in the fil-


47

ing of a formal complaint or charges.” Sprint, 134 S.Ct. at 592 (emphasis added).

Thus, Sprint did not limit Younger abstention a proceedings in which a formal

complaint has been issued.

Second, the state proceeding in the present case bears no relationship to the

advisory election board hearing at issue in Mulholland. Mulholland involved a

planned hearing by a state elections board to determine if a candidate for office

had violated Indiana’s “anti-slating” law. The key facts in the Court’s decision in

Mulholland were that the election board did not have the authority to sanction the

plaintiff, the Board lacked “prosecutorial powers,” and the Board’s hearing could

only lead to a “recommendation of prosecution.” Id. at 817.

Here, Plaintiffs’ reliance on Mulholland would carry more weight if the under-

lying state proceeding they were attempting to halt was simply an investigation

carried out by the GAB, which does not have authority to criminally prosecute

anyone. In this case, however, the District Attorneys of five separate counties de-

termined that there was a reasonable belief a crime had been committed and

commenced the John Doe Proceedings by petitioning the state courts, which ap-

pointed a judge with the ability to sanction. Unlike the election board investiga-

tion in Mulholland, if probable cause is found by a John Doe judge, criminal

charges must be brought. Wis. Stat. § 968.26. Thus, the John Doe Proceeding is

not merely a preliminary, advisory hearing like the election board procedure in


48

Mulholland and this Court’s holding in Mulholland must be tempered against the

unique facts of this case.

Strong policy reasons also dictate reversal of the district court’s ruling on ab-

stention. Under the district court’s theory, the subject of a Wisconsin John Doe

Proceeding (and the same would hold true for the subject of a state grand jury

proceeding), can quash the proceedings by simply filing a federal lawsuit claim-

ing his or her First Amendment rights have been violated. Allowing this holding

to stand will likely result in the subjects of John Doe or state grand jury proceed-

ings flooding the federal court with claims of selective targeting and bad faith in

order to put a halt to these criminal proceedings. This will impede Wisconsin’s

ability to enforce its own criminal laws.

D. The Bad Faith Exception Does Not Apply Because Plaintiffs Have Not Proved They Were Targeted Without Any Valid Hope of Obtain-ing A Conviction.

Plaintiffs next argue that the bad faith exception to Younger applies because

Defendants allegedly “engaged in a pattern of activity to harass the [plaintiffs].”

Resp. Br. at 43. To support this argument, Plaintiffs spin their tale of a state-wide

left-wing conspiracy to shut down conservative groups. They have, however, ab-

solutely no actual evidence that they (Plaintiffs) were harassed. Indeed, the only

state action taken against Plaintiffs was that they were served with a single sub-

poena through their attorney. Unlike the cases on which Plaintiffs rely, there is


49

no evidence that they personally were subject to harassment and intimidation. Al-

legations of “paramilitary raids” and comparisons to “Soviet Russia” may make

for interesting reading, but they are wholly irrelevant because Plaintiffs not once

allege they were subject to these raids. Likewise, while Plaintiffs spend consider-

able time discussing harassment and physical threats to conservative politicians

during protests at the Wisconsin Capitol, they do not allege that any of the De-

fendants physically threatened them. Plaintiffs simply cannot meet the high bar

for proving bad faith to avoid application of Younger abstention, which requires

proof that Defendants acted in face of a known unconstitutional law without any

hope of obtaining a valid conviction.

The bad faith exception to Younger is extremely “narrow,” Mulholland, 746

F.3d at 818 and applies only “in cases of proven harassment or prosecutions un-

dertaken by state officials . . . without hope of obtaining a valid conviction.” Ku-

gler v. Helfabt, 421 U.S. 117, 124 (1975). The classic example of such conduct is in

Dombrowski v. Pfister, 380 U.S. 479 (1965), where state officials attempted to pros-

ecute a civil rights group for allegedly violating the Louisiana “Subversive Activ-

ities and Communist Control Law and the Communist Propaganda Law”—

statutes found to be facially unconstitutional. Id. at 482. The facts are easily dis-

tinguished from those here: the plaintiffs were arrested and had their files and

records seized via warrants that were later found to lack probable cause. Id. at


50

487. The court then granted a motion to suppress all evidence gained through the

invalid warrants. Id. However, the state officials continued to threaten plaintiffs

with criminal prosecution in private and publically. Id.at 489-90. The Court

found that the prosecutors’ actions were taken “without any hope of ultimate

success,” such that abstention did not apply. Id. at 490. This Court later character-

ized Donbrowski as involving “multiple prosecutions . . . characterized by fail-

ure.” Grandco Corp. v. Rochford, 536 F.2d 197, 204 (7th Cir. 1976).

Similarly, Mulholland, 746 F.3d at 818, involved an attempt by a state agency

to prosecute a political candidate under a statute that it had previously acknowl-

edged was unconstitutional. Id. at 818-19. Plaintiffs try and squeeze this case un-

der the holding in Mulholland by arguing that the GAB had previously agreed

not to enforce the statute that forms the basis of the John Doe Proceeding in this

case. This argument, which was relegated to a footnote, ignores the fact that the

GAB has never agreed, and no court before the district court has ever ruled, that

Wisconsin law does not regulate coordinated issue advocacy. Thus, this case does

not involve state officials attempting to prosecute someone under a law that was

previously declared invalid.

To the contrary, while Judge Peterson ultimately quashed the subpoenas is-

sued to Plaintiffs, he expressly found that the prosecutors’ legal theory was not

frivolous. The John Doe Proceeding below was the result of five separate John


51

Doe Proceedings that were instituted in different counties and overseen by a

judge in each instance. The John Doe Proceedings were then supervised by a

former federal prosecutor with the blessing of the State of Wisconsin’s non-

partisan GAB. The subpoenas were issued with court approval.

Defendants did not prosecute Plaintiffs under a law that was facially uncon-

stitutional. The law in effect at the time the John Doe Proccedings were initiated

supported the legal theory underlying the investigation. Indeed, the GAB con-

tinues to support this position in its amicus brief in this case. Defendants did not

arrest Plaintiffs based on deficient warrants. Defendants did not try to enforce

the subpoenas issued to Plaintiffs after they were quashed. Nor did they repeat-

edly prosecute or to threaten prosecution after the John Doe Judge quashed those

subpoenas.

Indeed, this Court has found that the bad faith exception did not apply in Col-

lins v. Cnty. of Kendall, 807 F.2d 95, 97 (7th Cir. 1986), where state officials initiat-

ed 34 criminal prosecutions against the owners of adult book stores, following

searches and seizures of their merchandise. One third of the cases were dis-

missed and several others resulted in directed not guilty verdicts; only 3 resulted

in convictions. Id. at 98-100. This Court found that plaintiffs did not satisfy the

Younger bad faith exception because the search warrants were authorized and the


52

state officials did initiate the prosecutions “regardless of their outcome.” Id. at

101.

Plaintiffs unsupported allegations of pretext do not win the day because

Judge Peterson expressly found that Defendants actions were not frivolous and

the investigation had been judicially approved and countenanced by the Wiscon-

sin GAB. In order for Plaintiffs’ pretext argument to prevail, this Court would

need to conclude that five separate county district attorneys, two retired Wiscon-

sin judges, a career federal prosecutor, professional investigators, and a non-

partisan state agency comprised of former judges all willfully participated in the

John Doe Proceedings knowing it had no basis in law and was undertaken for

the sole purpose of suppressing Plaintiffs’ speech based on their conservative be-

liefs. Plaintiffs simply have no actual evidence to support such wild allegations.

The district court’s “findings” to the contrary cannot be upheld because the dis-

trict court admitted that it never examined any of the evidence before it and only

looked at the allegations in Plaintiffs’ Complaint. R.200 at 3; R.243 at 13. Moreo-

ver, both the Plaintiffs and the district court ignored ample evidence of the De-

fendants’ good faith. While Plaintiffs disagree with the GAB’s interpretation of

Wisconsin law, they cannot dispute that the GAB and its predecessor expressly

endorsed the legal theory underlying the John Doe Proceeding.


53

Finally, Plaintiffs’ unsupported “targeting” and selective prosecution allega-

tions do not establish bad faith because they cannot demonstrate that Defendants

were aware of similar activities by other groups and chose not to investigate

them. See Pincham v. Illinois Judicial Inquiry Bd., 872 F.2d 1341, 1350 (7th Cir. 1989)

(“we refuse to conclude that there was "bad faith" absent allegations that the state

agencies had some awareness of the other judges' activities and treated them

more favorably than Justice Pincham as part of a campaign that used prosecu-

tions, regardless of outcome, to suppress speech.”) To the contrary, the evidence

is undisputed that Defendants investigated and successfully prosecuted left-

leaning politicians for campaign finance violations during this time period. Spe-

cifically, Milwaukee Democratic Mayor Tom Barrett (who ran against Governor

Walker during the recall election) was found to have violated Chapter 11 of Wis-

consin campaign statues and paid forfeiture of approximately $20,000 for con-

duct in 2013; in addition, there was an investigation into illegal coordination by

Sandy Pasch, a Democrat Wisconsin senator. R.105. While Plaintiffs complain

that the above actions were not good enough, they cannot show that only right of

center political groups were targeted by Defendants.

Thus, the bad faith exception to Younger does not apply and the district court

should have dismissed Plaintiffs’ official capacity claims and request for a pre-

liminary injunction. While the court may stay the personal capacity claims


54

against Defendants under Younger, there is ample authority for dismissing those

claims as well based on the immunity defenses raised above.

IV. Pullman Abstention is Proper.

A. This Court Has Jurisdiction to Consider Pullman abstention.

For the first time Plaintiffs argue that this Court does not have jurisdiction to

consider the district court’s denial of abstention under Pullman. Dkt. 55-4. Con-

trary to Plaintiffs’ new-found position, the Supreme Court has found that Pull-

man abstention is a proper jurisdictional basis on appeal. See American Fed’n. Of

Labor v. Watson, 327 U.S. 582, 589 (1948) (holding that Pullman abstention applied

to plaintiffs request for injunctive relief to enjoin enforcement of a provision of

Florida Constitution that allegedly violated plaintiffs’ First Amendment rights).

Additionally, this Court has jurisdiction to exercise its discretionary, sua sponte

authority to order abstention under Pullman. See Jayaraj v. Scappini, 66 F.3d 36, 40

(2d Cir. 1995) (ordering abstention sua sponte where resolution of state law issue

could obviate need to address the constitutional issue). Accordingly, there are

multiple reasons why this Court can and should exercise its jurisdiction to de-

termine if the district court erred in denying abstention under Pullman.

B. Plaintiffs Use The Wrong Standard of Review

Plaintiffs also mischaracterize the standard of review for Pullman abstention

as being an abuse of discretion standard. As one court has explained, the stand-

ard of review is more relaxed:


55

Abstention was initially characterized as an equitable concept, since it is invoked in actions seeking an injunction against the enforce-ment of a state statute or a declaration that a statute is void. See Rail-road Commission v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L. Ed. 971 (1941). Although abstention’s origins in equity might sug-gest that decisions to abstain are reversible only if an abuse of dis-cretion, appellate courts from Pullman to the present have used a more searching standard of review, and have reversed abstention orders whenever convinced the decision was improper or wrong. 1A Moore’s Federal Practice P 0.203(1) at 2105-06 (2d ed. 1980).

Moe v. Dinkins, 635 F.2d 1045, 1048 n.7 (2nd Cir. 1980).

C. Pullman Abstention is Warranted.

Using the correct standard of review the district court’s decision was improp-

er because there are multiple state court proceedings that will address the very

campaign finance issues at issue in this case and will likely foreclose the need to

address constitutional claims made by Plaintiffs in this federal lawsuit.

Plaintiffs’ assertion that abstention is inappropriate under Pullman because

their First Amendment rights are under imminent threat must once again be

tempered against reality. As explained above, Plaintiffs were served with a sub-

poena for documents through their attorney and that subpoena was quashed by

the John Doe Judge. No one is attempting to enforce the subpoena and the legal

issues surrounding that subpoena are before the Wisconsin Court of Appeals and

Wisconsin Supreme Court. There is no substantial risk of injury to Plaintiffs in

allowing the Wisconsin courts to rule on these issues. Thus, it was error for the

district court to refuse to abstain under Pullman.


56

CONCLUSION

For these reasons, this Court should: 1) vacate the preliminary injunction; 2)

reverse the district court’s decision denying Defendants’ motion to dismiss the

personal capacity claims; or 3) hold that the district court should have abstained

from ruling on the preliminary injunction and stay the damages claims under the

underlying state court proceedings are resolved.

Date: September 8, 2014

s/ Joseph M. Russell von Briesen & Roper, S.C. Joseph M. Russell Randall D. Crocker Patrick C. Greeley Attorneys for Defendant-Appellant Francis Schmitz 411 E. Wisconsin Ave., Suite 1000 Milwaukee, WI 53202 (414) 276-1122

/s Douglas S. Knott Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816

/s Timothy M. Barber Axley Brynelson, LLP Timothy M. Barber Patrick J. Fiedler Justin H. Lessner Attorneys for Defendant-Appellant Dean Nickel 2 E. Mifflin Street, Suite 200 Madison, WI 53703 (608) 257-5661


57

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:

this brief contains 13,892 words, excluding the parts of the brief ex-empted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because:

this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Book Antiqua 13 point font.

Dated: August 1, 2014


/s Douglas S. Knott Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Douglas S. Knott Samuel J. Leib Nicholas D. Harken Brent A. Simerson Attorneys for Defendants-Appellants John T. Chisholm, David Robles, and Bruce J. Landgraf 740 N. Plankinton Ave., Suite 600 Milwaukee Wisconsin 53203 (414) 276-8816

/s Timothy M. Barber Axley Brynelson, LLP Timothy M. Barber Patrick J. Fiedler Justin H. Lessner Attorneys for Defendant-Appellant Dean Nickel 2 E. Mifflin Street, Suite 200 Madison, WI 53703 (608) 257-5661


58

CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2014, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Seventh Cir-

cuit by using the CM/ECF system. I certify that all participants in the case are

registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

Date: September 8, 2014

