[EL] John Doe

Sat Apr 30 14:42:37 PDT 2016

I have read the Wisconsin Supreme Court’s decision, but not the petition for cert. So it’s possible that I may be missing something.

With that caveat, it seems to me there may be two possible errors here that the Wisconsin Supreme Court may have made:

1. Misreading US S. Ct. cases.
2. Mistakenly concluding that free speech rights under the Wisconsin Constitution (as it, the Wisconsin Supreme Court, interprets the Wisconsin Constitution) are coextensive with free speech rights under the U.S. Constitution (as interpreted by the U.S. Supreme Court).

If the Wisconsin court is relying on the Wisconsin Constitution but just is mistaken as to whether the U.S. Constitution (as interpreted by the U.S. Supreme Court) requires the same result that it (the Wisconsin Supreme Court) would reach under the Wisconsin Constitution, there may well be an independent state ground for the decision. It is not for the U.S. S. Ct. to decide whether a state court is correct in deciding that a state constitutional right is coextensive with the analogous right under the U.S. Constitution (as interpreted by the U.S. Supreme Court).
That could be a basis for the U.S. S. Ct. to uphold the Wisconsin S. Ct.’s decision or possibly to remand the case for the Wisconsin S. Ct. to clarify whether it was indeed relying on its reading of the Wisconsin Constitution, and would reach the same result, even if the result is not required by the U.S. Constitution.

Note the Wisconsin Supreme Court’s citation, at fn. 8, to County of Kenosha v. C & S Management, Inc., 223 Wis.2d 373, 588 N.W.2d 236 (1999), which notes (in dealing with obscene speech) the possibility that the Wisconsin Constitution could provide greater protections for free speech than the U.S. Constitution, though the Wisconsin S. Ct. had not yet so concluded, and in that case declined to do so. From that case:

9 Here, Crossroads would have us find that Wisconsin citizens enjoy more expansive freedoms of speech under the state constitution than they do under the First Amendment and that under the state constitution the state may not limit speech to the extent authorized by Miller.
¶ 20 We have previously stated that this court “will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin and the laws of this state require that greater protection of citizens' liberties ought to be afforded.” State v. Doe, 78 Wis.2d 161, 172, 254 N.W.2d 210 (1977)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977110790&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>. And, in a few limited circumstances, we have found within our state constitution protections that exceeded those provided our citizens by comparable clauses under the federal constitution. See e.g., State v. Hansford, 219 Wis.2d 226, 242, 580 N.W.2d 171 (1998)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998129044&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)> (12–member jury is constitutionally required under Wisconsin Constitution, although not under the federal constitution); Doe, 78 Wis.2d at 171–72, 254 N.W.2d 210<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977110790&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>(explaining that the state has on occasion accorded criminal defendants broader right to counsel than mandated by the United States Supreme Court under the Fourteenth Amendment to the United States Constitution).
¶ 21 Despite the differences in their language, we have heretofore found no differences in the freedom of speech guarantees provided by the First Amendment and Article I, § 3<https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000757&cite=WICNART1S3&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>. Wisconsin courts consistently have held that Article I, § 3 of the Wisconsin Constitution<https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000757&cite=WICNART1S3&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)> guarantees the same freedom of speech rights as the First Amendment of the United States Constitution. See Lawson v. Housing Authority, 270 Wis. 269, 274, 70 N.W.2d 605 (1955)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1955106707&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>; Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832 (1987)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987079567&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>; State v. Bagley, 164 Wis.2d 255, 260 n. 1, 474 N.W.2d 761 (Ct.App.1991)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1991165825&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>.
*389 ¶ 22 As for the issue before us here, this court has indeed considered the breadth of the protection afforded by Article I, § 3<https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000260&cite=WICNART1S3&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)> in the context of obscenity and has concluded that no greater protection exists under the Wisconsin Constitution than under the First **245Amendment. See State v. Chobot, 12 Wis.2d 110, 106 N.W.2d 286 (1960)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1961135553&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>; see also State ex rel. Gall v. Wittig, 42 Wis.2d 595, 605, 167 N.W.2d 577 (1969)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1969124741&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)> (recognition that the sale of obscene matter is a recognized abuse of the right to speak freely on all subjects and is not protected by either the federal or state constitutions); Princess Cinema, 96 Wis.2d at 655, 292 N.W.2d 807<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1980114507&pubNum=0000595&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)> (court considered the constitutionality of the predecessor to the current Wis. Stat. § 944.21<https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000260&cite=WIST944.21&originatingDoc=I73bbe81dff3e11d9b386b232635db992&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)> under backdrop of both the Wisconsin Constitution and the federal constitution making no distinction as to the protections they each accord).

It seems to me that the U.S. S. Ct. could not simply reverse the Wisconsin S. Ct., even if the Court is unwilling to conclude that there is an independent state ground. The Court would need to remand to see whether the Wisconsin Supreme Court would find, in this case, that the Wisconsin Constitution provides greater protection than the U.S. Constitution.

In addition, it seems critical here that the Wisconsin Supreme Court’s decision was based on its interpretation of a state statute that it found to be difficult to understand and vague. It’s true that the court gave the statute a limiting construction because of constitutional concerns, but still the final issue was interpretation of a state statute. It’s hard for me to see how that raises a federal issue.

I haven’t been following this case carefully and may  be mistaken as to the analysis of another issue but here are some thoughts:

With regard to the John Doe judge’s quashing of the subpoenas and order to return the seized materials, the Wisconsin Supreme Court seems to have held that this was within the judge’s discretion in determining the scope of the John Doe proceeding and that the procedure that was being used to seek review of the judge’s orders was improper:

“¶ 136 In Schmitz v. Peterson, we hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review *100 of a judge's discretionary acts, Kalal, 271 Wis.2d 633, ¶ 24, 681 N.W.2d 110, the supervisory writ sought by the special **213 prosecutor is denied, and Reserve Judge Peterson's order is affirmed.”

It is hard to believe that there is a federal issue with regard to the exercise of discretion under a state statute and the manner of reviewing the exercise of discretion. I don’t know whether the petition for cert deals with this point.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, April 29, 2016 1:29 PM
To: Steve Klein; Smith, Brad
Cc: law-election at UCI.edu
Subject: Re: [EL] John Doe

from the brief:
[cid:image001.png at 01D1A2E4.985F4A40]
On 4/29/16 1:21 PM, Steve Klein wrote:
Given that the Wisconsin Supreme Court ruled on coordination based upon both the First Amendment and article I, section 3 of the Wisconsin Constitution (see paragraph 10 of the majority opinion), can SCOTUS reach the coordination discussion?

State constitutions can still be more protective<https://www.jstor.org/stable/1340334?seq=1#page_scan_tab_contents> of individual rights, no?

On Fri, Apr 29, 2016 at 12:15 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
My analysis would be that the Wisconsin court got the coordination law right; that this will, if anything, give Kennedy an opportunity to clarify that Caperton does not and cannot mean that if friends of friends are involved in judicial elections, that would be grounds for recusal, and that the case is not a hot potato any more than dozens of other cases that present themselves to the Supreme Court, such as the Texas ID statute on which the court issued an order today.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317<tel:%28614%29%20236-6317>
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Rick Hasen
Sent: Friday, April 29, 2016 11:11 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 4/29/16

WI John Doe Cert. Petition Raises Substantial Questions, But #SCOTUS May Not Bite<http://electionlawblog.org/?p=82420>
Posted on April 29, 2016 8:08 am<http://electionlawblog.org/?p=82420> by Rick Hasen<http://electionlawblog.org/?author=3>

I have posted a copy of the redacted petition for cert<https://www.scribd.com/doc/310939038/John-Doe-Cert-Redacted>. in the John Doe Wisconsin case. Never before have I seen a cert. petition with even parts of the questions presented redacted.  The redactions make it difficult to fully assess the claims, as is the fact that this was not written by Supreme Court specialists—because the Wisconsin Supreme Court, in more than a bit of chutzpah, denied the ability of Reed Smith to work pro bono on this cert petition. (The petition contains a dig at this point: “The state supreme court denied the request, refusing to recognize the right of the district attorneys to be represented by counsel. The court wrote that no need had been shown by the petitioners, whose appellate experience is limited to traffic and misdemeanor matters in the state court of appeals.”)

There are two meaty issues. First, it seems pretty clear to me that the Wisconsin Supreme Court mangled U.S. constitutional campaign finance law to let elected officials like Gov. Scott Walker coordinate with outside groups on an unlimited basis with groups taking unlimited campaign contributions from whatever source so long as the outside groups avoid express words of advocacy like vote for or vote against. The second issue is whether those Justices on the WI Supreme Court who benefitted from the outside spending by the very groups before the court should have recused themselves from hearing the case. The number of redactions involving the actions of controversial state Supreme Court Justice David Prosser are remarkable in and of themselves.

Either of these arguments are substantial enough, and the case important enough nationally, to merit Supreme Court review, although while Justice Scalia was still on the Court I would be very wary of bringing any campaign finance case to the Supreme Court lest the Supreme Court actually move in the direction of even further deregulation, taking a bad ruling and making it national.  Now, with Scalia gone and a potential 4-4 split on these issues, the calculation is uncertain. There could well be a cert denial on the campaign finance question even if, as I said, the WI Supreme Court surely mangled constitutional law.

There is a better shot on the recusal issue. It could well interest Justice Kennedy, who along with the four liberals formed a majority in Caperton, seeing due process limits on judges deciding cases where they benefitted from very large campaign spending on their behalf. Even Chief Justice Roberts, who dissented in Caperton but who has been concerned about the role of judges in fundraising (see his Williams-Yulee decision) could be interested in this case.

But who knows what this 4-4 Court will do with a hot potato such as this case?
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