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Federal judge denies John Doe prosecutors’ motion to stall civil rights case

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Part 47 of 122 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Declaring that prosecutors in a politically charged John Doe probe are attempting to “derail” his decision, U.S. District Court Judge Rudolph Randa on Thursday rejected a motion to stay the judge’s ruling earlier this month that allowed a civil rights lawsuit against the prosecutors to proceed.

“The defendants’ motion to stay injunction proceedings pending appeal… is DENIED,” Randa ruled.

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ORDER IN THE COURT: Federal judge denies motion to stay by John Doe prosecutors in a civil rights lawsuit against them. That means that conservative targets, who have argued the John Doe has violated their First Amendment rights, will have their day in court.

The decision, entered breathtakingly fast, delivers a legal tongue-lashing to Milwaukee County District Attorney John Chisholm, two of his henchmen, John Doe Special Prosecutor Francis Schmitz and a shadowy investigator employed by the state’s Government Accountability Board.

“The defendants now attempt to derail this ruling by appealing the Court’s decision and moving to stay pending appeal,” wrote Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee.

Attorneys for conservative activist Eric O’Keefe had argued the prosecutors’ appeals for relief from the court’s decision were frivolous, and Randa said he is “inclined to agree.”

O’Keefe and his Wisconsin Club for Growth are suing Chisholm and crew, alleging the John Doe prosecutors violated the conservatives’ First Amendment rights in their lengthy, secret investigation into 29 conservative organizations.

The lawsuit, filed in February, is a detailed account of what O’Keefe and the Wisconsin Club for Growth allege to be a partisan witch hunt, led by Chisholm, a Democrat, to punish conservatives in the state for their political successes in recent years. The complaint seeks a preliminary injunction, halting the investigation.

Randa earlier this month, thoroughly rejected the prosecutors’ motion to dismiss the civil rights lawsuit, pushing aside their argument that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

Prosecutors, in a filing last week seeking the stay, again argued that the federal court has no jurisdiction in the matter, and that the court should grant their appeal of Randa’s ruling. The prosecutors-turned-defendants rely on the U.S. Constitution’s Eleventh Amendment protections, limiting federal judicial powers in the states.

In his ruling Thursday rejecting the motion to stay, Randa effectively says, hogwash.

He points to legal precedent, asserting that “if the defendants are violating the plaintiffs’ constitutional rights, the Eleventh Amendment (to the U.S. Constitution) does not apply and the plaintiffs are entitled to injunctive relief.”

“Since the essence of the plaintiffs’ claim is that the defendants are ‘stripped’ of their ‘official or representative character’ by violating the constitution, the Court’s denial of the defendants’ motion to dismiss is not immediately appealable,” Randa wrote.

In other words, no dice, prosecutors. The judge says that Eleventh Amendment protections don’t guarantee an “entitlement not to stand trial.”

And so, it seems, the prosecutors will stand trial in the civil rights case.

A hearing date had been set for May 7, but was postponed while Randa reviewed the prosecutors’ motion. The judge does not set a date for a hearing in his latest ruling, but does order that both sides in the lawsuit should “await further order from the Court regarding the injunction motion.” That’s shorthand for, don’t bother me with more filings right now.

Launched in August 2012 by Chisholm’s office, the investigation is operating under a theory the club and 28 other conservative organizations may have illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections of 2011 and 2012. It has since blown up into a five-county investigation.

O’Keefe in the lawsuit contends the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights. The Wall Street Journal editorial board has billed the John Doe as Wisconsin’s “Political Speech Raid.”

In their response to the prosecutors’ motion to stay, O’Keefe’s attorneys assert the prosecutors are not only employing delaying tactics, they are making up campaign law as they go along.

They allege the “defendants cannot salvage their rejected legal theory,” something that only confirms “their bad faith.”

“In sum, Defendants’ new theory of criminal liability violates the First Amendment and finds no support in Wisconsin law. It is a pretext adopted solely for the purpose of targeting Plaintiffs and others who speak out in ways of which Defendants disapprove.”

In their legal filing, the prosecutors sound amazed that anyone would ever suspect their motives in a sprawling investigation that is presided over by a judge with extraordinary power and conducted via a gag order that punishes the probe’s targets should they try to speak out and defend their reputations.

“It is simply astounding that plaintiffs could accuse lifelong law enforcement professionals of intentional misconduct in office and then seek to deny them the opportunity to have those claims challenged by appeal,” Chisholm’s attorney writes in the prosecutors’ response.

Contact M.D. Kittle at mkittle@watchdog.org

Part of 122 in the series Wisconsin's Secret War
  1. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
  2. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
  3. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
  4. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
  5. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
  6. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
  7. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
  8. Sources: New judge named in Democrat-led secret probe
  9. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
  10. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
  11. Conservative targets bring in big guns to Democrat-led John Doe fight
  12. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
  13. Center for Media and Democracy: Liberals are morally superior
  14. Wisconsin Dems suddenly support political investigations
  15. WI Republican attorney general to represent judges in Democrat-led John Doe probe
  16. Republicans speak out about silent John Doe targeting conservatives
  17. Biggest secret in John Doe may be just how judges and special prosecutors are selected
  18. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
  19. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
  20. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
  21. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
  22. John Doe target O’Keefe taking on IRS, too
  23. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
  24. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
  25. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
  26. Liberal group looking to take Wisconsin’s John Doe national
  27. John Doe judge: ‘Results of the John Doe speak for themselves’
  28. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
  29. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
  30. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
  31. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
  32. John Doe prosecutors wanted higher-priced lawyers, source says
  33. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
  34. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
  35. Recusal in John Doe case raises questions of fairness, purpose
  36. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
  37. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
  38. ‘Easy target’: Kelly Rindfleisch breaks silence about John Doe probe
  39. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
  40. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
  41. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
  42. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
  43. Target: John Doe prosecutors making up campaign law as they go along
  44. John Doe, as it is being used, must go, WI senator says
  45. John Doe target says prosecutors latest move another delay tactic
  46. John Doe prosecutors sound defensive in latest court filings
  47. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
  48. Media coalition asks judge to open sealed John Doe documents
  49. Are John Doe prosecutors sweating out federal judge’s decision?
  50. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
  51. This is what the Fourth Amendment looks like?
  52. What’s next for now-defunct John Doe probe?
  53. Appeals court stalls judge’s order halting John Doe probe
  54. Federal judge’s ruling could open up sealed John Doe records
  55. Federal judge orders John Doe probe shut down again
  56. Lawmakers call for review of GAB’s secret John Doe activities, funds
  57. Lawyers, lawyers everywhere and other dispatches from John Doe Land
  58. Secret’s out: The world is beginning to learn more about WI’s John Doe
  59. Still their little secret? Questions remain on John Doe gag order
  60. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
  61. John Doe prosecutors suddenly support opening sealed court records
  62. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
  63. John Doe prosecutors voice phony outrage, legal source says
  64. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
  65. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
  66. For the Walker-hating left, John Doe is ‘Mission Accomplished’
  67. Sources: No urgency in WI Supreme Court on John Doe
  68. Would Walker settlement with John Doe prosecutors be a deal with the devil?
  69. Contempt questions surround reported John Doe deal talks
  70. Walker’s John Doe response raises more questions than answers
  71. Sources: Attorney General passes on defending GAB in John Doe cases
  72. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
  73. John Doe targets sue Wisconsin’s Government Accountability Board
  74. Federal judge says his order halting John Doe probe should be clear to prosecutor
  75. John Doe special prosecutor’s bill still shrouded in secrecy
  76. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
  77. John Doe special prosecutor obeys judge’s order
  78. ‘Never-ending’ John Doe never ended, WSJ reports
  79. Appeals court upholds judge’s order shutting down John Doe probe
  80. O’Keefe keeps collecting big wins in John Doe lawsuit
  81. John Doe I judge says he’s not responsible for John Doe II
  82. Will taxpayers have to pay for frivolity of John Doe prosecutors?
  83. John Doe prosecutors jump back into the dark?
  84. What about those prosecutors? Questions surround other John Doe DAs
  85. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
  86. Federal judge blasts John Doe prosecutors – again – as he denies records release
  87. Right on cue: Document dump fuels anti-Walker donation drive
  88. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
  89. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
  90. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
  91. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
  92. John Doe prosecutors engaged in premature justification, conservatives say
  93. Is John Doe probe a case of a mini NSA in Wisconsin?
  94. AG opinion means accountability board’s John Doe secrets are safe — for now
  95. Senator asks attorney general to compel GAB to open up its books
  96. GAB now playing secrets in state John Doe lawsuit
  97. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
  98. John Doe prosecutors engaged in war of words — lots and lots of words
  99. Judge denies conservatives’ request to add GAB to civil rights lawsuit
  100. Oral arguments set in John Doe prosecutors’ appeal
  101. In John Doe Land, the left doesn’t illegally coordinate
  102. John Doe document blitz must have broken mainstream media’s heart
  103. Senator: Looks like accountability board is hiding something
  104. Kelly Rindfleisch appeal to test validity of John Doe digital searches
  105. Conservatives in John Doe battle know disclosure comes with a heavy price
  106. Appeals court orders release of some John Doe documents
  107. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
  108. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
  109. ‘Retaliation’: Docs show state prosecutors launched mini-NSA probe of WI conservatives
  110. John Doe prosecutors take desperate, unethical slap
  111. Walker ‘smoking gun’ story has tiny glaring flaw
  112. Wisconsin prosecutors aim to shut down conservatives
  113. Conservatives appeal to common sense in John Doe appeals case
  114. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
  115. First Amendment big guns back targets of John Doe probe
  116. Was John Doe judge a rubber stamp?
  117. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
  118. Another blow for Wisconsin’s restrictive campaign finance law
  119. Wisconsin prosecutors appeal for protection from blowback in partisan probe
  120. Is John Doe story colored with a bit of ‘Macbeth?’
  121. GAB director says agency just following the law in John Doe probe
  122. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?

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Kittle is a 25-year veteran of radio, newspaper and online journalism. In July 2011, Kittle joined Watchdog.org as bureau chief for Wisconsin Reporter. He has spent much of the past three years covering the seismic political changes taking place in the Badger State. Last year, Kittle joined Watchdog’s national reporting team, covering everything from energy policy to governmental assaults on civil rights. Beyond being published in Wisconsin’s daily newspapers and in multimedia news outlets, Kittle’s work has appeared on Fox News, and in Human Events, Reason Magazine, Newsmax and Town Hall. His special investigation into a politically charged John Doe probe, “Wisconsin’s Secret War,” was the basis of a 2014 documentary on Glenn Beck’s TheBlaze. Kittle has made several appearances on Fox News, including “On the Record with Greta Van Susteren. He serves as weekly politics commentator for Lake 96.1 FM in Lake Geneva, and WRJN-AM 1400 in Racine. His resume includes multiple awards for journalism excellence from The Associated Press, Inland Press, Wisconsin Broadcast Association and other journalism associations. Contact Kittle at mkittle@watchdog.org.