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Media coalition asks judge to open sealed John Doe documents

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Part 48 of 98 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – A national and state coalition of journalism associations is asking a federal judge to unseal secret records in Wisconsin’s John Doe investigation into dozens of conservative organizations.

These First Amendment advocates, led by the Reporters Committee for the Freedom of the Press, on Thursday filed a motion in the U.S. District Court Eastern District of Wisconsin in Milwaukee seeking to intervene in a civil rights lawsuit brought by conservative targets of the clandestine probe.

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FIRST PRIORITY: A Coalition of media associations is asking a federal judge to lift his orders sealing records involving a politically charged John Doe investigation. The documents are part of a civil rights lawsuit brought by conservative targets of the secret investigation.

The coalition, including the American Society of News Editors, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council and Wisconsin Newspaper Association, is challenging U.S. District Court Judge Rudolph Randa’s orders sealing documents associated with the John Doe.

“The press and the general public have a constitutional and common law right of access to civil proceedings and court documents, including the filings sealed in this case,” the coalition writes in its motion. “The First Amendment right of access can be overcome only by a showing that restrictions on access are necessary to serve a compelling interest, and any such restrictions must be narrowly tailored.

Milwaukee County District Attorney John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz and a shadowy Government Accountability Board-contracted investigator have sought and received permission from Randa to seal records that fall under the investigation’s secrecy order.

Coalition members argue that Randa failed to review the necessity of sealing the documents before he issued the order, something that runs counter to judicial protocol.

“Before entering its sealing orders, the Court was required to make specific, reviewable findings in support of sealing. It did not do so. Indeed, the sole apparent reason for the sealing orders is the existence of a secrecy order entered in the John Doe proceeding—an order which is itself secret and under seal,” the motion states.

“That the John Doe judge deemed the entirety of the proceeding before him ‘secret,’ however, does not relieve this Court of its independent obligation to determine whether sealing the record in this separate lawsuit is warranted.”

Citing separate court rulings, the motion notes that a court must be “firmly convinced that disclosure is inappropriate before arriving at a decision limiting access,” and “(a)ny doubts must be resolved in favor of disclosure.”

Coalition members argue that there is “no compelling or overriding interest” that would “justify sealing all information” related to the John Doe proceeding.

“First, John Doe proceedings are not entitled to any special presumption of secrecy that would permit the broad sealing of related court documents,” the motion asserts. “In fact, John Doe proceedings are presumptively open to the public under both Wisconsin and federal law.”

The coalition argues that the secret investigation is no longer a big secret after months of leaks in the press and in courts.

“A considerable amount of information about the proceeding, including details placed into the public domain by defendants, has already been disclosed to the public and reported in the press,” the motion states. “Thus, to the extent absolute secrecy was ever necessary to ensure the effectiveness of the John Doe proceeding, that interest is no longer present.”

John Doe proceedings are similar to grand jury investigations, without the benefit of a jury of peers. Instead, a single judge presides over the proceedings, designed to gather information to determine whether a criminal complaint should be issued. The judge has extraordinary “investigatory” powers to subpoena and examine witnesses to “ascertain whether a crime has been committed and by whom,” according to the motion.

As the coalition points out, “the public has a powerful interest in obtaining access to the sealed information” in the civil rights case.

“This litigation arises out of alleged abuse of a judicial procedure by local government officials for political gain,” the motion states. “It thus implicates the public’s interest in observing the functioning of its judicial system and the conduct of the executive branch.”

Conservative activist Eric 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 the 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.

On Thursday, the judge denied a motion by the prosecutors to stay the judge’s decision, pending an appeal.

“The defendants now attempt to derail this ruling by appealing the Court’s decision and moving to stay pending appeal,” Randa wrote.

Citing legal precedent, coalition members argue that court documents and proceedings are “public rather than private property,” and that they must be “as open as possible” to public inspection.

And the coalition has been down this legal road before, intervening in a case that eventually led to the release of documents in another John Doe investigation targeting Wisconsin conservatives.

In October, the Wisconsin Court of Appeals granted a motion to intervene filed by the coalition and other media organizations in the criminal appeal of Kelly Rindfleisch. The former deputy chief of staff to Gov. Scott Walker when Walker was Milwaukee County executive was convicted on a charge of misconduct in office stemming from the Doe, also led by Chisholm’s office. Rindfleisch had sought to seal the documents. The records, including thousands of pages of emails and other documents held in the investigation were released earlier this year.

Founded in 1970, the Reporters Committee for Freedom of the Press is dedicated to preserving the freedom of the press guaranteed by the First Amendment, according to the nonprofit organization.

Coalition members argue the drive to release documents sealed in the John Doe civil rights case fits that First Amendment mission.

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

Part of 98 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

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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.