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John Doe targets sue Wisconsin’s Government Accountability Board

By   /   May 30, 2014  /   No Comments

Part 73 of 146 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The targets of a politically charged John Doe investigation are now targeting the state’s Government Accountability Board, alleging in a lawsuit the agency that oversees election and campaign finance law has created a “Frankenstein monster” out of its enforcement authority.

The GAB has “exceeded its statutory authority and evaded its statutory obligations by pursuing and funding a far-reaching criminal investigation into virtually every conservative-leaning group in Wisconsin,” according to the lawsuit, filed Friday morning in Waukesha County Circuit Court by conservative activist Eric O’Keefe and his Wisconsin Club for Growth, and on “behalf of others similarly situated.”

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HOLDING GAB ACCOUNTABLE? Eric O’Keefe and the Wisconsin Club for Growth are suing the state Government Accountability Board on allegations that the agency overstepped its authority and cost taxpayers unnecessary expense through GAB’s involvement in secret John Doe probes into conservatives.

O’Keefe takes particular aim at the GAB and its involvement in the John Doe probe, a nearly three-year investigation into 29 conservative issue advocacy organizations.

The court-administered dragnet, launched in late summer 2012 by Milwaukee County District Attorney John Chisholm, a Democrat, is nothing more than a partisan witch hunt, O’Keefe asserts in a civil rights lawsuit filed earlier this year in federal court against John Doe prosecutors.

In that complaint, O’Keefe argues that the prosecutors violated his First Amendment rights via an investigation that, sources say, involved pre-dawn, “paramilitary-style” raids on the homes of conservative targets.

And it was all done with the backing of the Government Accountability Board, using powers not ascribed to the board, O’Keefe’s lawsuit alleges.

The GAB, in conjunction with district attorneys in five counties in Wisconsin, has initiated a wide-scale criminal investigation into O’Keefe, the club, and other conservative-leaning groups throughout Wisconsin and the country, according to the lawsuit.

“The GAB’s use of a John Doe has created a Frankenstein monster,” the complaint states. “The GAB has grafted its existing powers for civil enforcement of campaign finance laws onto law enforcement powers borrowed from John Doe statute, and from this hybrid bundle of investigative powers, has lopped off vital procedural protections.”

With horror film flair, the lawsuit asserts the result of that administrative “monster” is “terrible to behold: a creature that covertly collects sensitive information on political activities that do not — and cannot — constitute a crime, all while maintaining a nearly impenetrable shield of secrecy.”

Most troubling of all, the complaint alleges, is that the “monster is fed by taxpayer dollars that were never intended for this purpose.”

Court documents in recent months have shown GAB’s integral involvement in the investigation, including the activities of the agency’s shadowy contracted investigator, Dean Nickel.

Nickel filed the original affidavit for probable cause in the search warrants that were executed in the John Doe raids. Nickel, in documents filed in federal court, said that’s all he did. Others — Chisholm, his assistant DAs, special prosecutor Francis Schmitz and former John Doe presiding Judge Barbara Kluka — are responsible for the investigation, Nickel’s legal team argued in a long explanation filed in March in the U.S. District Court for the Eastern District of Wisconsin, Milwaukee Division.

U.S. District Judge Rudolph Randa earlier this month ordered the probe shut down, noting that the prosecutor-turned-defendants’ theory that the conservative groups may have illegally coordinated with Walker’s campaign is “simply wrong.”

That decision was followed by a ruling from the  7th Circuit U.S. Court of Appeals, which declared unconstitutional sections of Wisconsin campaign finance law involving issue advertisements, the same ads in question in the John Doe probe. The court scolded the state Legislature for not keeping up with recent U.S. Supreme Court decisions on campaign finance laws, and took issue with the GAB’s interpretation of the “Labyrinthian” rules and regulations.

In the lawsuit against the GAB and Kevin J. Kennedy, the board’s director and general counsel, O’Keefe and the club assert the agency’s use of the John Doe device exceeds the agency’s statutory authority, and doing so deprives the plaintiffs of their statutory rights.

“In a calculated power grab, the GAB has improperly used a John Doe proceeding to explore speculative criminal theories of campaign finance law without challenge by the accused or scrutiny of the public,” the lawsuit alleges, referencing the strict gag ordered placed on the investigation.

“Due to the secretive nature of the GAB’s investigative process and its confidential John Doe proceeding, the full extent of the GAB’s conduct is unknown to many, including Mr. O’Keefe and the Club,” the complaint states.

Wisconsin’s unique John Doe procedures are similar to grand jury investigations, without the benefit of a jury of peers. A presiding judge is vested with extraordinary powers to compel witnesses to testify in order to determine if a crime has been committed, and by whom.

More so, the lawsuit, alleges, the “GAB’s illegitimate and unauthorized participation in the John Doe proceeding has come at significant expense to taxpayers.”

“Since at least August of 2012, the GAB has spent and continues to spend substantial resources in furtherance of the proceeding,” the lawsuit asserts. “To date, the GAB and its staff have obtained and examined hundreds of thousands of documents in connection with the John Doe proceeding.”

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GAB CHIEF: A lawsuit alleges that Government Accountability Board Executive Director Kevin Kennedy has been less than forthcoming about the agency’s role in the John Doe.

John Doe prosecutors and the GAB have repeatedly declined to provide cost estimates of the investigation; in fact, they’ve declined to talk at all about the probe, citing its secrecy order.

“The total expenditures related to the investigation, and the hourly rate of the special investigators, have remained a closely guarded secret,” the lawsuit states.

The GAB has appointed at least two special investigators, including Nickel and Schmitz, and issued more than 30 subpoenas throughout Wisconsin and across the country to conservative-leaning groups, Internet service providers, and financial institutions, according to the lawsuit.

“In addition, the GAB has obtained and executed search warrants through pre-dawn raids by armed deputies on the homes of targets throughout Wisconsin,” the complaint states.

The GAB had appointed Schmitz as a special investigator before Kluka appointed Schmitz as special prosecutor of the five-county probe in August 2013, a point not previously reported, according to the lawsuit.

“Furthermore, on information and belief, the GAB continues to employ Mr. Schmitz as a special investigator for the GAB, providing him an office and paying him to pursue John Doe II on behalf of the GAB,” the lawsuit asserts.

In 2014 alone, the GAB has spent at least $55,000 in connection with the John Doe II investigation, including paying both Dean Nickel and Schmitz as special investigators, according to the complaint.

John Doe II, as the probe is often called, is the outgrowth of “an unprecedented set of interrelated John Doe proceedings spearheaded by District Attorney John Chisholm at the Milwaukee County Attorney’s Office” more than four years ago, the lawsuit states.

In the first John Doe, the GAB opened an investigation into William Gardner and the Wisconsin & Southern Railroad Company (WSOR) after receiving a complaint by Mr. Gardner’s former girlfriend that she had been asked to make a campaign contribution on their behalf.

While state law demands GAB either pursue civil enforcement or refer such complaints over to the district attorney where the alleged violator resides, “the GAB sought the best of both worlds,” the lawsuit asserts.

“The Board subsequently contacted the Milwaukee County District Attorney’s Office and the two agencies worked closely together over the past year to complete a John Doe investigation before Judge Neal Nettesheim,” a GAB press release stated.

Gardner agreed to plead guilty to two felony counts, and WSOR agreed to pay a civil forfeiture to the GAB of $166,900.

“Not only did the GAB fail to follow its statutory mandate to refer the matter to the district attorney in lieu of civil prosecution by the GAB, the GAB also failed to refer the matter to the appropriate district attorney (i.e., the district attorney for the county in which Mr. Gardner resides, Washington County, or the principal place of business for WSOR, Madison County).

But GAB’s Kennedy found other photo-op moments with Chisholm along the way, in a John Doe probe that netted six convictions of former aides and associates of Walker when Walker was Milwaukee County executive. Only two of those convictions had anything to do with the original reason for the investigation, pilfering a Milwaukee County veterans’ fund. And Walker’s staff brought the theft to investigators’ attention, a report that launched the meandering John Doe probe.

The lawsuit also states that the current John Doe proceeding, John Doe II, officially commenced on Sept. 5, 2012, pursuant to an order by Kluka. “At or near the same time, board members of the GAB and its staff, including GAB Director and General Counsel Kevin J. Kennedy, were admitted as parties to John Doe II.”

The lawsuit seeks to “halt the GAB’s end-run around the substantive and procedural mandates” of its “enabling statute,” which lays out the agency’s authority. Doing so, the complaint asserts, would “dismember” the GAB’s “Frankenstein monster” and require it to “conduct only those activities for which it receives taxpayer dollars.”

O’Keefe and the club seek a judgment declaring the GAB has made and continues to make “illegal expenditures associated with its participation in the secret John Doe proceeding, and enjoining GAB from making any additional unlawful expenditures of public funds.”

The plaintiffs say the lawsuit deals with state statute, and is in no way intended to take away from the significant civil rights claims made in the federal complaint. They ask for a jury trial.

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

Part of 146 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?
  123. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
  124. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
  125. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
  126. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
  127. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
  128. Who’s paying the bill? Report casts questions on GAB and John Doe payments
  129. Target of secret John Doe probe is fighting back and speaking out
  130. The day John Doe rushed through the door
  131. Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
  132. Conservative group asks court to stop John Doe ‘constitutional injury’
  133. Conservatives to appeals court: ‘You don’t know Doe’
  134. Armed and growing: Milwaukee County DA beefs up his ‘police force’
  135. Federal judge stops John Doe prosecutors from bothering conservative group
  136. Wisconsin Supreme Court takes another pass on John Doe case
  137. No surprise: Bice buries the lead, Walker follows the law
  138. Federalism v. individual rights: A conversation with Eric O’Keefe
  139. Report: No district attorney will investigate District Attorney John Chisholm
  140. Appeals court denies request to rehear John Doe civil rights case
  141. Voters say ‘yes’ to Walker, ‘no’ to John Doe, law expert says
  142. Vos: There will be reforms to John Doe, GAB
  143. GAB, Milwaukee County DA bail on key provision behind war on conservatives
  144. John Doe lawsuit could be headed to U.S. Supreme Court
  145. Kelly Rindfleisch will fight on in Fourth Amendment case
  146. John Doe froze conservative speech, targets say

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M.D. Kittle is national First Amendment reporter at Watchdog.org. Contact him at mkittle@watchdog.org.

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