MADISON, Wis. (AP) — The Wisconsin Supreme Court refused Wednesday to reconsider its decision to end the so-called John Doe investigation into Republican Gov. Scott Walker’s recall campaign, but backed off an order to destroy evidence in the probe.
No one was charged in the probe, which focused on whether Walker’s campaign illegally coordinated with outside conservative groups on issue ads, but it generated plenty of ugly headlines for the governor as he prepared to launch his now-abandoned presidential bid.
The state Government Accountability Board and Milwaukee prosecutors launched the investigation in 2012, but the Supreme Court ended it in July, ruling that coordination on issue ads was permissible under state law.
The justices ruled then that the state’s ban on campaigns coordinating with outside groups was so vague that it infringed on free-speech rights. The justices said the coordination ban applied only to express advocacy, which are ads that directly call for a named candidate’s election or defeat, and ordered prosecutors to return all the evidence they had collected from witnesses and destroy any copies.
The special prosecutor leading the investigation, Francis Schmitz, filed motions in August asking the Supreme Court to reconsider its decision and stay its order to return and destroy evidence.
The particulars of his motions are unknown because John Doe proceedings are secret. Almost all the court filings in the case, including Schmitz’s motions, remain under seal.
But the justices wrote Wednesday that Schmitz had wanted the court to let him continue to investigate whether Walker’s campaign and the outside groups coordinated on express advocacy.
The justices ruled 4-1 that Schmitz never raised that argument before Judge Gregory Peterson, who was overseeing the proceedings until he stalled the investigation last year over questions about the prosecutors’ legal theories. Since Schmitz didn’t bring the point up then, he’s barred from raising it on appeal, they ruled.
“We conclude that Attorney Schmitz’s motion does not present any grounds to reconsider our prior decision,” the majority, including conservative-leaning Michael Gableman, David Prosser, Pat Roggensack and Annette Ziegler, wrote.
Schmitz said he hadn’t seen the opinion Wednesday morning and couldn’t comment.
The court did modify its order to return and destroy evidence. The justices gave Schmitz 30 days to return all the documents, electronic files and computer hardware to their rightful owners. He must gather all documents, electronic data and copies relating to the investigation from anyone who was granted access to them, index all the evidence and submit everything to the Supreme Court’s clerk under seal.
The justices said the revised order gives prosecutors enough time to ask the U.S. Supreme Court to review the case.
Schmitz had asked that Gableman and Prosser recuse themselves because their campaigns for the high court benefited from millions of dollars spent by at least three groups that were under investigation. The court denied the request, forming the basis for a potential appeal to the U.S. Supreme Court.
They also wrote that the July opinion effectively terminated Schmitz’s appointment as a special prosecutor, although he had a right to file his motions for reconsideration and a stay because that ruling didn’t order him to stop acting as the lead prosecutor.
Under Wednesday’s clarification, the “prosecution team” can appeal to the U.S. Supreme Court. Justice Shirley Abrahamson wrote in dissent that the opinion doesn’t define “prosecution team,” leaving it unclear as to who can petition the nation’s highest court.
She added that the investigation should continue to determine whether coordination on express advocacy took place, saying prosecutors focused on ferretting out coordination and never limited themselves to issue advocacy.
“What a mess this court has wrought!” Abrahamson wrote.
Walker signed a bill in October prohibiting prosecutors from using John Doe to investigate political wrongdoing. He’s poised to sign another measure soon that would eliminate the Government Accountability Board and replace it with two commissions made up of partisan appointees.
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