State Supreme Court Says ‘No’ To Outside Lawyers In John Doe 2 Appeal

Conservative justices on the Wisconsin Supreme Court have blocked three district attorneys from getting help from outside lawyers in their bid to appeal the so-called “John Doe 2” case to the U.S. Supreme Court.

Milwaukee County District Attorney John Chisholm, Dane County District Attorney Ismael Ozanne, and Iowa County District Attorney Larry Nelson asked the state’s high court last month for permission to retain a private law firm in their appeal. In an order issued Friday night, the court said the DAs had no legal authority to support their request, saying they could prepare any appeal on their own.

From the order:

“The intervenor district attorneys have presented no authority that a single state prosecutor (or three prosecutors) can confer those parts of the prosecutorial function on behalf of the state onto private outside attorneys.”

Dissenting from the order was Justice Shirley Abrahamson, who suggested the court’s conservative majority was trying to make it harder to appeal.

“The four justices generously allow the district attorneys to go to the United States Supreme Court, then place a roadblock in their path to the United States Supreme Court,” Abrahamson wrote.

The John Doe 2 investigation was looking into whether Gov. Scott Walker’s campaign illegally coordinated with conservative groups that can accept unlimited funds and keep their donors secret. The state Supreme Court shut the investigation down last year, writing that state law does not forbid such coordination.

Justices later took the unusual step of ordering Special Prosecutor Francis Schmitz to relinquish his duties, prompting Chisholm and the other district attorneys to get involved. The court’s order released Friday night indicates those district attorneys will have to go it alone if they want to pursue a U.S. Supreme Court appeal.

While such an appeal is far from a slam dunk, there is a precedent for the nation’s highest court to get involved in such a case. In 2009, the U.S. Supreme Court overturned a West Virginia Supreme Court ruling on the grounds that the justices who decided that case had a financial interest in the outcome.

In Wisconsin, four of the state Supreme Court’s conservative justices benefited from millions of dollars in campaign contributions from some of the very same conservative groups under investigation in John Doe 2. Prosecutors asked Justices Michael Gableman and David Prosser to recuse themselves from the case because of that spending. Gableman and Prosser denied that request, with Prosser writing that such a move would have “undermin(ed) judicial elections in Wisconsin.”