September 26, 2014 at 1:00 p.m.
Federal appeals court OKs resumption of John Doe probe against Walker
Federal appeals court OKs resumption of John Doe probe against Walker
Three federal appeals judges said the court improperly issued the injunction despite a federal law, the Anti-Injunction Act, that prohibits a federal court from staying proceedings in a state court absent an act of Congress or other necessary condition.
That condition did not exist, the court determined: "We hold that this case does not present a situation in which state proceedings may be displaced."
The decision won't automatically jump-start the probe - a state judge also sidelined the proceedings, and that is also being appealed - but it does breathe new life into it.
The court observed that Eric O'Keefe and his Club for Growth filed the federal lawsuit while state proceedings were ongoing.
"O'Keefe and the Club filed this federal suit, asking for an injunction that would halt the investigation permanently, whether or not the prosecutor could establish a violation of Wisconsin law," the court's decision stated. "O'Keefe also requested damages against five defendants."
The district court, the appeals panel said, held that the First Amendment to the U.S. constitution, applied to the states through the Fourteenth Amendment, forbids not only penalties for coordination between political committees and groups that engage in issue advocacy but also any attempt by the state to learn just what kind of coordination had occurred.
Hard to justify
But the lower court's issuance of an injunction was hard to justify in light of the Anti-Injunction Act, and the district court did not try to do so, the appeals panel wrote.
"The Anti-Injunction Act embodies a fundamental principle of federalism: state courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt," the appeals panel wrote. "The scope given to state litigation is especially great in the realm of criminal investigations and prosecutions, a principle that led to (an earlier decision), which requires a federal court to abstain even if an injunction would be justified under normal principles, except in rare situations."
While courts of appeals have disagreed about the extent to which abstention is required when states are conducting grand-jury investigations, to which it likened John Doe proceedings, the appeals panel said it did not need to take sides because other principles of equity, comity, and federalism counseled against a federal role.
Three separate questions arose in the case, the appeals panel stated.
"One important question is whether the plaintiff suffers irreparable injury," the decision stated. "O'Keefe and the Club say yes, because donations have dried up, but that's not the right temporal perspective. We must ask whether the injury would be irreparable if the federal court were to stay its hand."
And, in fact, the judges stated, it was difficult to find that type of injury because the plaintiffs had already obtained effective relief from the state judge overseeing the investigation. That judge had quashed prosecutorial subpoenas.
"True, uncertainty will continue pending appellate review within the Wisconsin judiciary, and this may well affect donations, but the commencement of this federal suit also produces uncertainty because it entails review by a district judge, three or more appellate judges, and potentially the Supreme Court of the United States," the decision stated. "The state case might be over today had the district judge allowed it to take its course."
A second important question, they wrote, was whether the plaintiffs had adequate remedies at law, that is to say, without the need for an injunction.
"That Judge Peterson (the state judge) entertained and granted the motion to quash shows that the answer is yes," the judges wrote.
A third question, they wrote, was whether federal relief was appropriate in light of normal jurisprudential principles, such as the rule against unnecessary constitutional adjudication.
"Courts must strive to resolve cases on statutory rather than constitutional grounds," the decision stated. "Yet the district court waded into a vexed field of constitutional law needlessly. Judge Peterson had already concluded that the investigation should end as a matter of state law, because prosecutor Schmitz lacks evidence that state law has been violated. The result is an injunction unnecessary at best, advisory at worst."
What's more, the decision continued, case law tilts away from authorizing federal interference in state litigation.
"(Earlier decisions) .... do show, however, that the policy against federal interference in state litigation is especially strong when the state proceedings are criminal in nature," the decision stated. "That's a fourth important subject militating against a federal injunction."
In the end, the court determined, case law and a host of questions anchoring the case in uncertainty dictated that the federal judiciary keep away from the case as long as it is in state court.
"The Supreme Court has yet to determine what 'coordination' means," the decision stated. "Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person's election? What if the speech implies, rather than expresses, a preference for a particular candidate's election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician's committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions."
Richard Moore may be reached at [email protected]
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