April 23, 2015

WILL SCOTUS AGREE TO HEAR WISCONSIN “JOHN DOE” CASE?:  The Supreme Court will decide Friday whether to grant review on a case relating to the infamous Wisconsin “John Doe” investigation of conservative groups that supported Governor Scott Walker and his reform of public sector union collective bargaining.

The case, O’Keefe v. Chisholm, was filed by Eric O’Keefe and the Wisconsin Club for Growth after they each received John Doe subpoenas in October 2013, demanding that they turn over all Club records and communications–including all emails, financial materials and donor lists–to prosecutors.  Consistent with Wisconsin’s John Doe law, the subpoenas gagged O’Keefe and the Club, prohibiting them from speaking to anyone (including lawyers or the press) about the existence or nature of the subpoenas, under pain of contempt.  Numerous other conservative activists’ homes were searched in middle-of-the-night SWAT raids, their computers, phones and other papers seized, and their victims also gagged.  Documents divulged in the litigation revealed that the prosecutors hoped to expand the John Doe investigation by issuing subpoenas to high profile conservatives such as radio show host Sean Hannity.

O’Keefe’s lawsuit centers primarily around a claim that the John Doe investigation was being conducted in bad faith, in an attempt to silence the First Amendment speech and association rights of O’Keefe and the Club.  In May 2014, a federal trial judge, Rudolph Randa, granted O’Keefe and the Club a preliminary injunction, halting the investigation and finding that their First Amendment claims were likely to succeed on the merits.

The U.S. Court of Appeals for the Seventh Circuit reversed, reasoning that federal courts should not entertain O’Keefe’s First Amendment claims because of the Anti-Injunction Act (AIA)– an argument that none of the parties to the O’Keefe litigation (nor Judge Randa) had argued or briefed.

Specifically, the 7th Circuit ruled that O’Keefe’s federal constitutional lawsuit should not be considered because considerations of “equity, comity and federalism” that underlie the AIA required Wisconsin state courts be given an opportunity to halt the John Doe investigation before federal courts should get involved.  Unfortunately, as O’Keefe’s Supreme Court petition rightly points out, this interpretation of the AIA directly contradicts the Supreme Court’s decision in Mitchum v. Foster (1972), which held that federal civil rights lawsuits were an exception to the AIA.

To make matters worse, the 7th Circuit’s ruling also directly contradicts the Supreme Court’s 2013 decision in Sprint Communications, Inc. v. Jacobs, that federal courts should not abstain from deciding federal law claims because federal courts “are obliged to decide cases within the scope of federal jurisdiction” and “[a]bstention is not in order simply because a pending state-court proceeding involves the same subject matter.”  Federal constitutional rights are sufficiently important that victims of abusive state government power shouldn’t be forced to wait years to see if state courts will halt abusive state officers’ behavior, before they are able to seek relief from neutral federal courts.

The Supreme Court is also being asked to consider the propriety of the Seventh Circuit’s alternative ruling that a viable First Amendment claim cannot be grounded in an assertion of retaliatory, bad faith investigation– a question the Supreme Court has unfortunately punted since its obscure footnote 9 in Hartman v. Moore (2006).   Since Hartman, five federal appellate courts have disagreed with the Seventh Circuit, and concluded that any retaliatory investigation that would deter a reasonable person from exercising his First Amendment rights is, in fact, actionable.  And this is as it should be:  just consider the IRS scandal, in which the agency has targeted tea party groups for investigation and scrutiny, all in an attempt to chill those groups’ First Amendment activities.  Retaliatory investigation is the quintessential abuse of government power, and it must be actionable lest John Doe-type investigations become a model for intimidating those who dare to participate in the political process.

If the Supreme Court cares about vigorously defending the First Amendment–and recent cases have suggested it does— the O’Keefe case warrants review, to set the record straight about abstention in federal civil rights cases, and to close the gaping First Amendment loophole (disallowing retaliatory claims) endorsed by the 7th Circuit.

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