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SCOW to review John Doe proceedings

Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504-2508-W; case activity (for 2013AP2504); Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA; case activity; and Schmitz v. Peterson, Nos. 2014AP417-421-W; case activity (for 2014AP417)

The supreme court has granted review in some of the John Doe investigations into coordination of spending by candidate campaigns and independent groups. The long and varied list of issues presented (below the jump) is taken directly from the court’s order, which also includes directions regarding the briefing schedule, word limits, filings under seal, redaction and confidentiality of documents in the record in compliance with any secrecy orders. Chief Justice Abrahamson and Justice Prosser concur in the grants, but write separately (pp. 7-12) to raise various legal and practical questions. Justice Bradley is not participating for reasons given in a letter appended to the order (pp. 15-18).

Issues presented:

1.  Whether the Director of State Courts had lawful authority to appoint reserve judge, Barbara Kluka, as the John Doe judge to preside over a multi-county John Doe proceeding.

2.  Whether the Chief Judge of the First Judicial District had lawful authority to appoint reserve judge, Gregory A. Peterson, as the John Doe judge to preside over a multicounty John Doe proceeding.

3.  Whether Wis. Stat. § 968.26 permits a John Doe judge to convene a John Doe proceeding over multiple counties, which is then coordinated by the district attorney of one of the counties.

4.  Whether Wisconsin law allows a John Doe judge to appoint a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county requests the appointment; (b) but none of the nine grounds for appointing a special prosecutor under Wis. Stat. § 978.045(1r) apply; (c) no charges have yet been issued; (d) the district attorney in each county has not refused to continue the investigation or prosecution of any potential charge; and (e) no certification that no other prosecutorial unit was able to do the work for which the special prosecutor was sought was made to the Department of Administration.

5.  If, arguendo, there was a defect in the appointment of the special prosecutor in the John Doe proceedings at issue in these matters, what effect, if any, would that have on the competency of the special prosecutor to conduct the investigation; or the competency of the John Doe judge to conduct these proceedings? See, e.g., State v. Bollig, 222 Wis. 2d 558, 569-70, 587 N.W.2d 908 (Ct. App. 1998).

6.  Whether, with regard to recall elections, Wis. Stat. § 11.26(13m) affects a claim that alleged illegal coordination occurred during the circulation of recall petitions and/or resulting recall elections.

7.  Whether the statutory definitions of “contributions,” “disbursements,” and “political purposes” in Wis. Stat. §§ 11.01(6), (7) and (16) are limited to contributions or expenditures for express advocacy or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. If they extend to issue advocacy coordination, what constitutes prohibited “coordination?”

a.  Whether Wis. Stat. § 11.10(4) and § 11.06(4)(d) apply to any activity other than contributions or disbursements that are made for political purposes under Wis. Stat. § 11.01(16) by

i. The candidate’s campaign committee; or

ii. An independent political committee.

b. Whether Wis. Stat. § 11.10(4) operates to transform an independent organization engaged in issue advocacy into a “subcommittee” of a candidate’s campaign committee if the independent advocacy organization has coordinated its issue advocacy with the candidate or the candidate’s campaign committee.

c.  Whether the campaign finance reporting requirements in Wis. Stat. ch. 11 apply to contributions or disbursements that are not made for political purposes, as defined by Wis. Stat. § 11.01(16).

d.  Whether Wisconsin Coalition for Voter Participation, Inc. v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App), pet. for rev. denied, 231 Wis. 2d 377, 607 N.W.2d 293 (1999), has application to the proceedings pending before this court.

8.  Whether fundraising that is coordinated among a candidate or a candidate’s campaign committee and independent advocacy organizations violates Wis. Stat. ch. 11.

9.  Whether a criminal prosecution may, consistent with due process, be founded on a theory that coordinated issue advocacy constitutes a regulated “contribution” under Wis. Stat. ch. 11.

10.  Whether the records in the John Doe proceedings provide a reasonable belief that Wisconsin law was violated by a campaign committee’s coordination with independent advocacy organizations that engaged in express advocacy speech. If so, which records support such a reasonable belief?

11.  If Wis. Stat. ch. 11 prohibits a candidate or a candidate’s campaign committee from engaging in “coordination” with an independent advocacy organization that engages solely in issue advocacy, whether such prohibition violates the free speech provisions of the First Amendment to the United States Constitution and/or Article I, Section 3 of the Wisconsin Constitution.

12.  Whether pursuant to Wis. Stat. ch. 11, a criminal prosecution may, consistent with due process, be founded on an allegation that a candidate or candidate committee “coordinated” with an independent advocacy organization’s issue advocacy.

13.  Whether the term “for political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally vague unless it is limited to express advocacy to elect or defeat a clearly identified candidate?

14.  Whether the affidavits underlying the warrants issued in the John Doe proceedings provided probable cause to believe that evidence of a criminal violation of Wis. Stat. §§ 11.27, 11.26(2)(a), 11.61(1), 939.31, and 939.05 would be found in the private dwellings and offices of the two individuals whose dwellings and offices were searched and from which their property was seized….

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