Federal judge could set up conflict with Wisconsin Supreme Court decision

A federal judge has been asked to weigh in on what to do with evidence from the John Doe investigation.

Investigators have asked a federal judge to overrule a state Supreme Court order that they turn over evidence from their secret criminal investigation into Gov. Scott Walker’s recall campaign.

Should U.S. District Judge Lynn Adelman grant the request, it would set up a high-level clash between state and federal courts, perhaps giving the U.S. Supreme Court another reason to intervene, according to a former state Supreme Court justice.

“The (Wisconsin) Supreme Court has created a hornets’ nest over this evidence and I don’t know how they get themselves out of it,” former Justice Janine Geske said in an interview Monday. “I suspect there are going to be some justices at the U.S. Supreme Court who say, ‘We’ve got to look at what’s going on in Wisconsin.’ ”

In July, the state Supreme Court’s conservative majority halted the so-called John Doe II probe into the Republican governor’s recall campaign. That probe was based on evidence collected in a previous John Doe investigation into Walker’s Milwaukee County office. At the same time, the court ordered the evidence from both cases be returned or destroyed. Then on Dec. 2 the court changed its order, allowing the evidence be preserved under its authority for possible use in related litigation.

The decision also removed special prosecutor Francis Schmitz as the lead investigator in John Doe II, challenging his ability to appeal the decision to the U.S. Supreme Court. In response, three of the five district attorneys initially involved in the case — Milwaukee County District Attorney John Chisholm, Dane County District Attorney Ismael Ozanne and Iowa County District Attorney Larry Nelson, all Democrats — filed to intervene. The Wisconsin Supreme Court has yet to rule on that motion.

Critics of the state Supreme Court decision have urged the prosecutors to appeal because the case involves alleged illegal campaign coordination by groups that also spent heavily on electing conservative justices, who turned down a request to recuse themselves. The decision also validated coordination between campaigns and so-called issue advocacy groups, in contrast with some past court rulings. Geske said a conflict between federal and state courts over preserving evidence from an investigation would add another compelling reason for the U.S. Supreme Court to get involved.

That conflict could arise in a separate lawsuit filed in July by longtime Walker aide Cindy Archer, who alleges investigators violated her constitutional rights when they searched her Madison home in September 2011.

Adelman, a former Democratic state senator appointed to the court by President Bill Clinton, was assigned to hear the case.

In their Dec. 21 motion, the investigators argued the state Supreme Court’s order to turn over evidence is “unfair” because it inhibits the investigators’ ability to respond to Archer’s lawsuit. They call the court’s solution for managing evidence “unworkable” and note any time the court disagrees with their request for evidence, they would likely appeal that decision to a federal court anyway.

The motion lists 28 categories of records that should be preserved, including several they say “show evidence of criminal activity.” They asked Adelman to order that the evidence continue to be kept under seal.

“Their reputations are on the line, and anyone who opens a newspaper in Wisconsin knows it,” attorney Samuel Leib wrote in the prosecutors’ motion. “They cannot defend themselves in this lawsuit with the Wisconsin courts tying one hand behind their backs.”

David Rivkin, an attorney representing Archer, said his client’s response is due by the end of January but otherwise declined to comment.

Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty whose firm filed friend-of-the-court briefs in connection with the second John Doe, said the federal court could resolve the matter by allowing the investigators to return the evidence to the affected parties. They could then use the normal discovery process, which Esenberg noted they are entitled to, to retrieve that evidence.

“Federal judges are loath to get crosswise with state courts unless it’s clearly necessary,” Esenberg said. “I think the defendants may be asking for too much.”

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