The Wisconsin Supreme Court’s order closing an investigation that had threatened to ensnare Gov. Scott Walker upholds the state’s John Doe law but could encourage more defense lawyers to challenge search warrants.
The three cases the court decided Thursday stem from a special investigation into whether Walker’s campaign illegally worked with conservative groups to win his 2012 recall election.
In her concurring opinion, Justice Annette Ziegler wrote that even though a particular search warrant might have been lawfully issued, its execution could still be subject to scrutiny under the Fourth Amendment and Wisconsin Constitution.
“I also recognize that the State might have had a legitimate reason for executing the search warrants pre-dawn in paramilitary fashion,” she wrote.
Ziegler went on to say that the courts’ scrutiny of a particular search warrant could take into account the time when it was executed, the type of evidence that was being sought and and any accompanying steps taken to protect the safety of both the public and officers of the law.
Ed Fallone, professor at Marquette University, predicted that the ruling will lead defense lawyers to more frequently challenge evidence obtained from search warrants.
“Justice Ziegler’s concurrence was the most surprisingly restrictive on search warrants,” he said, noting that the majority opinion made no move to distance itself from it.
Ziegler’s concurrence could have far-reaching effects because the rules governing the execution of search warrants depend mostly on interpretations handed down by state and federal courts.
The current rules call for a person who is executing a search warrant to knock and announce his presence, although officers can get a warrant allowing a no-knock entry and the use of force, said David Schultz, a University of Wisconsin law professor.
“The rules of execution (of search warrants) come from the Fourth Amendment as the state and U.S. Supreme Courts have interpreted it,” he said. “Even those mentioned in Wisconsin statues are interpreted based on how the courts have interpreted the Fourth Amendment.”
Schultz said evidence obtained from search warrants is usually tougher for defense lawyers to challenge in court because law-enforcement officials cannot get a warrant without convincing a judge that they have probable cause. If prosecution follows a search, most defense attorneys, he said, resort to filing a motion calling for the suppression of any evidence that was obtained without a search warrant.
Motions to suppress are usually made on the grounds that there was no probable cause or that false statements were made in a warrant application.
“Motions to suppress are very common,” he said, “but are not often successful when a warrant is involved.”
The discussion of search warrants is just part of the 388-page decision the state Supreme Court handed down Thursday.
The ruling ended the John Doe investigation into whether Walker’s campaign had improperly coordinated with outside groups. The majority of the state Supreme Court justices held that Wisconsin Club for Growth and other conservative groups’ collaboration with Walker to promote certain issues during the 2012 recall election was protected as free speech under the First Amendment. The justices in the majority argued those protections trump the state’s campaign finance laws.
“In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with ‘narrow specificity,’” Justice Michael Gableman wrote for the majority.
The court also ordered that all property that was seized during the investigation must be returned and all copies of information and other materials must be destroyed.
Fallone, agreeing with points that Justice Shirley Abrahamson made in a dissenting opinion, argued that the court’s ruling concerning the state’s campaign finance laws did not rely on settled precedent.
“Quite frankly, the U.S. Supreme Court did uphold a campaign finance restriction this last term, so the idea that the First Amendment blows a hole through all campaign finance laws is not correct,” he said.
Similar points were made by the state’s Government Accountability Board, which is charged with upholding various election laws. In a statement released Thursday, the board argued that the decision in the John Doe case reverses a long-standing interpretation of campaign finance law going back to the U.S. Supreme Court’s 1976 decision in Buckley v. Valeo. The Government Accountability Board contended that the decision furthermore reverses a 1999 state Court of Appeal decision that had backed the previous interpretation.
The board also argued that it has encouraged the Legislature to form a study committee that would be charged with reviewing and revising the state’s campaign finance laws. The board contended that Thursday’s Supreme Court decision reinforces the need for the review.
Thursday’s decision not only ended a years-long investigation, but also uncertainty for Walker, who is campaigning for president.
No one had been charged in the probe, but questions about it have hung over the governor for months. Now he can campaign in early-primary states without concern about the investigation uncovering anything damaging. Prosecutors can still appeal the decision to the U.S. Supreme Court, but it would be months before that court would rule, if it even agreed to take the case.
Republicans have relied heavily on the words “partisan witch hunt” when referring to the John Doe investigation, which was begun by Milwaukee County District Attorney John Chisholm, a Democrat. Wisconsin Club for Growth and its director, Eric O’Keefe, filed a federal civil rights lawsuit in 2014 seeking to halt the probe, arguing it was violating their free-speech rights. U.S. District Judge Rudolph Randa sided with the club, but a federal appellate court later tossed out the lawsuit, saying the issue belonged in state courts.
The club and O’Keefe then turned to the state Supreme Court, which is controlled by a four-justice conservative majority.
In February, the lead prosecutor in the case, Francis Schmitz, asked at least two justices to recuse themselves to avoid the appearance of impropriety, but the justices did not respond.
Justice Ann Walsh Bradley stepped down from the case because her son works for a law firm involved in the litigation.
The Associated Press also contributed to this report.