[EL] my thoughts on the John Doe case

Thu Jul 16 09:48:37 PDT 2015

I'm going to dig in a bit here, because it is warranted:

Yes there were nighttime raids, and the police, as they usually do when they conduct a raid, had weapons. That does not mean that what was done was (1) out of ordinary practice or (2) unwarranted.
-Really? That's really the position you want to stake out? Not "unwarranted"? How exactly, would this be warranted? (doors were smashed down, police barging in screaming, searchlights blinding, etc., for non-dangerous persons with no record of criminal activity?).  This is an easy one to condemn, and the lack of condemnation from the reform community is very telling.

This is really one of those "gotcha" moments, in which the "gotcha" works only because people go to contortions to avoid admitting the obvious, and so tell us something about where they truly stand.

Justice Ziegler reached the issue in dicta. Brad is splitting hairs.
- Really? It's a concurrence that never says that the tactics violated the constitution (though it does strongly suggest that she would be inclined in that direction). The difference between reaching and not reaching an issue, between dicta and holding, is a pretty big one in law, and the attack on Ziegler's concurrence is unfair and incorrect. But we can tie this back to point 1 - some people are contorting themselves to avoid condemning the indefensible.

We read the 7th Circuit opinion differently.  I see much more skepticism, but readers can judge for themselves.
- That is to say, one of us actually quotes the opinion. But no matter how much skepticism you read into it, what the 7th Circuit opinion doesn't do is reject the theory of today's majority opinion, let alone "strongly reject" it.

I think this was a totally partisan ruling, on BOTH sides.
- Well, glad that is cleared up, because that's not what the first take stated or implied, particularly since it talked about the "holding" and the "decision," which are made by the majority, not the dissent.

I make these points only because Rick's credibility and quotability with the press makes it worth pointing out when he is grossly overstating his case in the heat of the media's quick press cycle. These are not "splitting hairs;" there is pretty much no argument that the police tactics here were "warranted;" the 7th Circuit did not reject the theory of today's majority; and it is unfair, without more, to simply dismiss the majority opinion as "partisan," or to suggest that even if that were the case, the serious First Amendment issues raised by this case do not need to be addressed.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, July 16, 2015 12:26 PM
To: Smith, Brad; law-election at UCI.edu
Subject: Re: [EL] my thoughts on the John Doe case

I'm going to have to go do some real work in a few moments, so pardon me if I don't respond to the rest of the conservative missives coming my way. But a few words in response to Brad's comments.

1. Yes there were nighttime raids, and the police, as they usually do when they conduct a raid, had weapons. That does not mean that what was done was (1) out of ordinary practice or (2) unwarranted. As I said, I want a full accounting from a more unbiased source (now that there is no gag order, this should be possible) before rendering judgment.  Even if it was overreaching, and worthy of condemnation, however, that does not mean that conservatives are ordinarily under attack or harassed for their political views. To the contrary.

2. Justice Ziegler reached the issue in dicta. Brad is splitting hairs.

3. We read the 7th Circuit opinion differently.  I see much more skepticism, but readers can judge for themselves.

4. I think this was a totally partisan ruling, on BOTH sides.  That is, I expect the elected, partisan, rancorous court (in which one Justice was accused, fairly or not, of choking another Justice as a conference) to not be able to perform as a fair court.

And with that I'm back to writing an article.

Rick

On 7/16/15 9:08 AM, Smith, Brad wrote:
Rick's post is one of those that merits a "whoa, wait a minute... ."

1. The facts of how the investigation in Wisconsin was conducted, including nighttime, armed raids, etc., are not in disupte. Too the extent Rick implies that they are that is simply wrong. I know of no account suggesting otherwise, and they are not challenged today. The dissent seems in a big hurry to get by them, saying they are not really the issue.

If, alternatively, Rick merely means to say that conservatives were not targeted for investigation in Wisconsin (however heavy handily the investigations were carried out), then he is wrong--though others have, the Court does not make any accusations of partisan agenda (though Abrahamson and Crooks, in their dissents, get pretty far out there against the majority), so it is hard to see them "validating" that story. As to the facts of the investigation, it is hard to ignore the facts. One will draw from them such implications as one is inclined to draw.

2. Justice Ziegler did not go "so far as to reach the issue of constitutionality of the nighttime raids even though the issue was not before the Court." As Justice Ziegler's concurrence opens:
"[T]hese pre-dawn searches could raise questions as to whether they would pass constitutional muster.  I recognize that because no challenge has been made to the execution of the warrants, the record is without explanation as to why the search warrants were executed as they were.  I also recognize that the State might have had a legitimate reason for executing the search warrants pre-dawn in paramilitary fashion.
¶309 I join the majority opinion in all three cases.  I write separately to explain that, even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution's counterpart."
And she concludes:
"I write separately to explain that even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution's counterpart.  A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought."

(Empasis added).

In other words, she states quite clearly that she is not reaching the issue, but is raising important concerns for future reference. Concurrences are often used for such a purpose, and one would think Rick would actually appreciate that, since he then complains "I would love that Justice to ride along with police in the poorer parts of Milwaukee at night and perhaps gain some appreciation of what others face from law enforcement every day." Yeah, me too, which is why it is nice to see some judges care about this. Praise, not sarcasm, is in order. It's a fine dissent and an important cautionary note to law enforcement. Would that more judges write such things more often.

3. Rick says that the 7th Circuit strongly "strongly rejected" the Court's substantive theory of this case. This is, at a minimum, a substantial overstatement. The 7th Circuit wrote that the theory of the federal district court (essentially the same one adopted today by the Wisconsin Supreme Court) "has not been established 'beyond debate.' To the contrary, there is a lively debate among judges and academic analysts." That's a pretty far cry from "rejecting" the theory, let alone "strongly rejecting" it. The 7th Circuit went on to conclude on the issue that "Its [the district court's] views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages." (Recall that the federal anti-injunction act and immunity of officials was the issue in the 7th Circuit, not the underlying action).

4. Rick calls this a "partisan" holding. On what basis, he doesn't say. Granted, it's a quick, immediate post-take, but  he attacks none of the legal reasoning, addresses none of the implications of a different holding, considers none of the practical first amendment issues at stake. It is, then an unfair attack--it would be as legitimate to call the dissenting of opinions of the Court's two Democrats, and Rick's own views, as nothing but partisanship. I think that Rick's take on the substance is not motivated by partisanship, but we might wish to give the same courtesy to the views of others.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Thursday, July 16, 2015 11:17 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] my thoughts on the John Doe case

Analysis of Wisconsin John Doe Ruling: Bad News for Campaign Finance Laws<http://electionlawblog.org/?p=74355>
Posted on July 16, 2015 7:36 am<http://electionlawblog.org/?p=74355> by Rick Hasen<http://electionlawblog.org/?author=3>

Today’s lengthy and contentious 4-2 ruling<http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=144526> dividing the Court on partisan/ideological lines, from the Wisconsin Supreme Court ending the so-called “John Doe” probe, is significant for three reasons: (1) it removes a cloud from the Scott Walker presidential campaign; (2) it guts, perhaps for years, the effectiveness of the state of Wisconsin’s campaign finance laws, and (3) it reenforces conservative beliefs that they are the victims of frightening harassment, a belief which is likely to lead conservative judges to strike more campaign laws.  The case also raises significant questions about judicial recusal which go unanswered, and provide one of two potential bases to seek U.S. Supreme Court review in this case. Still, high court review seems unlikely.

I will not spend any time on the effects of the case on the Scott Walker candidacy, as this is an obvious benefit.

Nor will I review the background of this convoluted set of cases.  For more, see my earlier Slate piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html?wpsrc>, as well as early coverage of today’s ruling in the NY Times<http://www.nytimes.com/2015/07/17/us/wisconsin-court-to-rule-on-inquiry-involving-scott-walkers-2012-campaign.html?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news>, Milwaukee Journal-Sentinel,<http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html> andWisconsin State Journal<http://host.madison.com/wsj/news/local/govt-and-politics/supreme-court-ends-john-doe-probe-that-threatened-scott-walker/article_50f22c3b-27c9-5906-92e8-ded75ed50954.html>. So let me focus on the remaining two points, and the potential for Court review.

Gutting of campaign finance.  The conservatives on the Court have held that Wisconsin’s existing campaign finance laws violate the First Amendment to the extent they limit coordination between a candidate and any group, even a 501c4 group not disclosing its donors, on campaigns to support that candidate. The only thing the nominally outside group has to do is to avoid words of express advocacy or their functional equivalent.  Avoiding express advocacy while vigorously supporting a candidate, as we know from the federal period before McCain-Feingold, is child’s play. That is, a candidate can now direct unlimited contributions to a nominally outside group and tell that group what ads to run, when, and how.  If you think it is a problem for someone to be able to give millions of dollars directly to a candidate to support that candidate’s campaign, then this should be very troubling to you. It was a theory of coordination strongly rejected by the 7th Circuit in the federal version of the John Doe case. And there’s no prospect that the Wisconsin legislature, dominated by Republicans and already weakening campaign finance law, will fix this.  This applies only to Wisconsin elections (and not federal elections in Wisconsin) but is very, very bad news. (More analysis in my earlier Slate piece.)<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html?wpsrc>

Conservative harassment. For months, conservatives have been sending me stories for ELB purporting to show the horrors of the investigation (late night raids, etc.)  However, these stories were never fully verified. As the Milwaukee-Journal Sentinel editorialized<http://www.jsonline.com/news/opinion/open-john-doe-investigation-of-gov-scott-walker-to-the-public-b99491741z1-302162641.html> about the selling of this story: “A breathless article in the conservative National Review<http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french>. An equally breathless report by Megyn Kelly on Fox News<http://www.foxnews.com/transcript/2015/04/24/scott-walker-supporters-claim-police-raided-homes-over-politics/>. Tart comments from Gov. Scott Walker <https://www.youtube.com/watch?v=cuuGYGWoaC0> on the campaign trail in Iowa…. onservatives targeted by the John Doe investigation for more than a year have declined to discuss their concerns with the Journal Sentinel or other independent news outlets that will seek out all sides to a story. They have told their stories only to partisan outlets that share their political agenda, such as Fox News, the National Review and The Wall Street Journal’s editorial page<http://www.wsj.com/articles/another-john-doe-disclosure-1402265159> (not its news staff).”  Now the conservatives on the Supreme Court have validated this version of events, and without full transparency the stories cannot be fully investigated. One Justice even went so far as to reach the issue of the constitutionality of the nighttime raids even though the issue was not before the Court. (I would love that Justice to ride along with police in the poorer parts of Milwaukee at night and perhaps gain some appreciation of what others face from law enforcement every day.) In the meantime, they fit into a conservative meme of persecution for conservative ideas. Expect this to lead to calls for even more laws to be struck down out of fear of persecution, fears which generally do not stand up to scrutiny<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>.

Recusal? We know that one of the prosecutors in the case asked at least one of the Justices who decided the case to recuse because the Justice may have been supported by some of the campaign spending in the case. As the dissenting Justice Abrahamson notes, the majority did not even respond to the issue. It seems to me that this at least deserves a response as to why recusal is not warranted.

U.S. Supreme Court review? The dissent notes that under the U.S. Supreme Court’s Caperton decision, the failure to recuse in this case could be a due process violation. At least theoretically, that’s an issue which could go to the U.S. Supreme Court. The Court could also potentially consider the First Amendment holding about coordinated issue advocacy. My guess is that the Court will decline review in this case, and frankly, given this Supreme Court on campaign finance issues, I’d be very afraid of having this issue before this Supreme Court. I mean I think Justice Kennedy would consider coordinated issue advocacy to be regulable, but I don’t know that I’d be the entire country’s campaign finance system on it.

In all, this is an unsurprising partisan holding<http://electionlawblog.org/?p=74299> on a partisan court about a campaign finance investigation with partisan implications. (True, Justice Crooks who dissented campaigned as a conservative, but started as a Democrat. So I guess there’s that to argue this is not fully a partisan decision.) The Wisconsin Supreme Court has been among the most bitterly divided along partisan lines. I doubt that after this they will move on. This will just further entrench things.  A bad day for campaign finance, and a worse day for Wisconsin.

[This post has been updated and edited.]

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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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