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Wisconsin Supreme Court ends probe into Scott Walker's campaign

MADISON, Wisc., -- Dealing Gov. Scott Walker a victory just as his presidential camapaign gets underway, the Wisconsin Supreme Court in a sweeping decision Thursday ruled the governor's campaign and conservative groups had not violated campaign f...

MADISON, Wisc., - Dealing Gov. Scott Walker a victory just as his presidential camapaign gets underway, the Wisconsin Supreme Court in a sweeping decision Thursday ruled the governor's campaign and conservative groups had not violated campaign finance laws in recall elections in 2011 and 2012.

The ruling means the end of the investigation, which has been stalled for 18 months after a lower court judge determined no laws were violated even if Walker's campaign and the groups had worked together as prosecutors believe.
It builds momentum for rewriting campaign finance laws, overhauling the state's elections and ethics agency and limiting the ability of prosecutors to conduct John Doe probes. Republicans who control the Legislature have put those issues at the top of their agenda, arguing such investigations shouldn't be conducted in political cases and targets of probes shouldn't be barred from speaking out publicly if they want.
The ruling dealt with three pieces of litigation, and the justices split 4-2 on the campaign finance laws that were at the center of the probe.
Writing for the majority, Justice Michael Gableman found a key section of Wisconsin's campaign finance law is "unconstitutionally overbroad and vague" and that the activities prosecutors had investigated were not illegal. He ordered prosecutors to return all records they seized and destory any copies they made of them.
"It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing," Gableman wrote.
Calling those who challenged the probe "brave individuals," Gableman wrote that their litigation gave "this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation."
In dissent, Justice Shirley Abrahamson wrote that the ruling had loosened campaign finance rules and that "the majority opinion's theme is 'Anything Goes.'"
"The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment," she wrote. "In doing so, the majority opinion delivers a significant blow to Wisconsin's campaign finance law and to its paramount objectives of 'stimulating vigorous campaigns on a fair and equal basis' and providing for 'a better informed electorate.'"
A spokeswoman for Walker's presidential campaign applauded the ruling.
"Today's ruling confirmed no laws were broken, a ruling that was previously stated by both a state and federal judge," AshLee Strong said in a statement. "It is time to move past this unwarranted investigation that has cost taxpayers hundreds of thousands of dollars."
Francis Schmitz, the special prosecutor leading the investigation, has written in court papers that one or more of the justices should not have participated in the case because the groups being investigated had spent millions of dollars to help elect those justices. None of those justices agreed to step aside.
Schmitz could ask the U.S. Supreme Court to review their decision to stay on the cases, but the nation's high court steps into such matters rarely. He could also ask the nation's high court to review how the state court interpreted the First Amendment right to free speech.
Schmitz has not yet issued a statement on the ruling.
The investigation and the litigation have been shrouded in secrecy. Large sections of court filings have been blacked out - which is highly unusual - because the underlying investigation was conducted under the state's John Doe law, which allows prosecutors to operate in secret.
John Doe probes allow prosectuors to force people to produce documents and give testimony and bar them from speaking about the matter with anyone but their attorneys. They are conducted before a judge.
Despite the attempts to keep the information about the investigation private, key details have emerged in news reports and a wave of litigation challenging the probe.
Milwaukee County District Attorney John Chisholm in August 2012 opened the investigation into Walker's campaign. He was assisted by Schmitz, four district attorneys from both parties and the Government Accountability Board, which oversees the state's campaign finance laws. Chisholm is a Democrat and Schmitz is a Republican.
Walker and other Republicans have insisted the probe is a political witch hunt - claims prosecutors deny.
Those in the majority raised questions about the way the probe was conducted, with Gableman writing the search warrants were executed as "pre-dawn, armed, paramilitary-style raids" and Justice David Prosser writing in a concurrence that the subpoenas were "so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison."
In all, 29 organizations and individauls received subpoenas seeking millions of documents. Some of the material seized was "wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos," Gableman wrote.
The investigation focused on whether Walker's campaign illegally coordinated its activities with the Wisconsin Club for Growth and other conservative groups.
Prosecutors turned up evidence that Walker helped raise funds for the Wisconsin Club for Growth and that his campaign worked with the group on strategy. R.J. Johnson simultaneously served as an adviser to the club and Walker's campaign.
Those groups and Walker say they did nothing wrong, in part because the groups run issue ads that don't explicitly tell people how to vote. The state's high court on Thursday came firmly down on their side, with Gableman writing prosecutors and election authorities don't have the power to determine how much campaigns and such groups can work together.
Issue groups have broader free speech rights than those that run ads expressly urging people to vote for or against candidates. To the average voter, the two types of ads appear similar because they praise or denigrate candidates, but only one type uses phrases such as "vote for" or "vote against."
Reserve Judge Gregory Peterson, who oversaw the investigation, agreed with the groups in January 2014 that the activites in question were not illegal. He quashed subpoenas that had been issued to the groups and his ruling effectively halted the investigation.
Court records have shown those fighting the subpoenas included Walker's campaign; the state's largest business group, Wisconsin Manufacturers & Commerce; and WMC's political arm.
Schmitz asked an appeals court to overturn that ruling. Meanwhile, the Wisconsin Club for Growth, Johnson and another club adviser, Deb Jordahl, filed a lawsuit challenging the probe on technical grounds. Johnson and Jordahl - whose homes were raided in October 2013 - also filed suit directly with the high court asking the high court to uphold Peterson's ruling.
The suits involving the club, Johnson and Jordahl were filed anonymously, but the Journal Sentinel reported on their involvement in the cases last year.
The appeals court ruled in favor of prosecutors in the challenge that dealt with technical issues about how the probe was conducted. The state Supreme Court agreed last year to take that case, as well as the other two without input from the appeals court.
The technical challenge argued the special prosecutor had been improperly appointed, reserve judges couldn't oversee such probes and investigations in seperate counties couldn't be conducted together. The state Supreme Court agreed with the appeals court and did not accept those arguments, though Gableman wrote the way the investigation was conducted "does raise serious questions."
But the justice sided with the targets oft he probe on the more significant issue of whether issue groups and campaigns can closely collaborate. They found that they could.
Joining Gableman in the majority were the court's three other conservatives - Prosser, Chief Justice Patience Roggensack and JusticeAnnette Ziegler.
In dissent on the campaign finance issue were Abrahamson, a liberal, and Justice N. Patrick Crooks, a swing vote. Liberal Justice Ann Walsh Bradley did not particiapte in the case because her son practices law with one of the attorneys involved in the case.
Eric O'Keefe, the director of the Wisconsin Club for Growth, said in a Thursday interview with conservative Green Bay radio host Jerry Bader state law needed to be rewritten to prevent the John Doe law from being used in the future for cases involving politics.
"If tools like this are allowed to be used by one side, eventually they will be used by the other side," O'Keefe said.
Todd Graves, an attorney for O'Keefe and the club, praised the ruling and said in a statement Chisholm and the accountability board until now "acted like playground bullies without fear of restraint from the courts."
"The government acted as if key protections in our nation's Bill of Rights simply did not apply," Graves said in his statement. "They used search warrants to conduct pre-dawn raids on families and secretly obtained millions of personal emails from numerous parties, including individuals who still do not know they were targeted. They counted on a veil of secrecy to assault the fundamental liberties of our clients and commit taxpayer funds for an outrageous misuse of their offices and the law."
Republican Attorney General Brad Schimel - who had no role in the investigation - issued a statement that said the ruling "leaves no doubt that the John Doe investigation is over."
"This closes a divisive chapter in Wisconsin history, and the assertive recognition of First Amendment rights by the Wisconsin Supreme Court protects free speech for all Wisconsinites," his statement said.
Justices asked to step aside
In February, the special prosecutor asked that one or more justices drop out of the cases, presumably because they have benefitted from spending by the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce.
The Wisconsin Club for Growth is estimated to have spent $400,000 for Ziegler in 2007; $507,000 for Gableman in 2008; $520,000 for Prosser in 2011; and $350,000 for Roggensack in 2013.
WMC spent an estimated $2.2 million for Ziegler; $1.8 million for Gableman; $1.1 million for Prosser; and $500,000 for Roggensack.
In addition, Citizens for a Strong America - a group funded entirely by the Wisconsin Club for Growth - spent an estimated $985,000 to help Prosser. The spending estimates come from the Wisconsin Democracy Campaign, which tracks political spending.
The justices did not give a reason for why they don't view that spending as a conflict, but court rules say political spending on its own is not enough to force a justice off a case.
In the 2011 race, Prosser defeated JoAnne Kloppenburg. She later was elected an appeals court judge and participated in one of the challenges to the probe even though she had money spent against her by groups involved in the probe. Kloppenburg is again seeking a seat on the high court - this time for the seat Crooks is expected to vacate when his term ends next year.
Abrahamson has benefitted from spending by unions and liberal groups, but those entities were not involved in the investigation or the litigation over it.
Prosceutors could ask the U.S. Supreme Court to review Thursday's decision because justices did not step down from the case or on the First Amendment issues the Wisconsin high court raised.
Other lawsuits filed
O'Keefe and his Wisconsin Club for Growth have challenged the probe on other legal fronts. A federal lawsuit they brought alleging their civil rights were violated was thrown out last year and a separate lawsuit over the probe is pending in Waukesha County Circuit Court.
Putting up a defense against those lawsuits has cost taxpayers more than $1 million. Prosecutors and investigators have never provided an accounting of how much their investigation has cost, frustrating critics of the probe.
The disclosures stemming from the litigation have been damaging to both prosecutors and those being investigated. One set of court documents showed Walker had worked closely with the Wisconsin Club for Growth, and that the group had roped in $700,000 from Gogebic Taconite, the mining company that helped write a 2013 law that loosened environmental regulations aimed at helping the company establish an iron ore mine in northern Wisconsin. Gogebic abandoned the project this year.
Even before the high court ruled, it was clear changes are likely in store. Republicans who control the Legislature have put on their agenda plans to rewrite campaign finance laws, overhaul how John Doe probes are conducted and restructure the Government Accountability Board. They have been waiting for the court decisions before advancing those bills and could take them up this fall.
Supporters of the accountability board say it should be preserved and have called it a model for the nation because it is non-partisan and consists of six retired judges. Opponents have alleged its staff is biased against Republicans.
Some GOP lawmakers last week called for the board's director, Kevin Kennedy, to step down after learning he has had a professional association for years with Lois Lerner, the former Internal Revenue Service official involved in targeting tea party groups for review of their tax exempt status. Kennedy said there was nothing to suggest he or his agency had done anything inappropriate.
Thursday's ruling also revealed some details that hadn't previously been known. For instance, Johnson and Jordahl separately filed court claims in Decmeber 2013 to recover material that prosecutors had seized from them.
Jason Stein of the Journal Sentinel staff contributed to this report.

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