The U.S. Supreme Court will not take up an appeal on the John Doe 2 case, permanently ending a probe into Wisconsin Gov. Scott Walker’s campaign against a recall.
The high court declined to reopen the John Doe 2 investigation, leaving in place the state supreme court’s decision that halted the John Doe probe into whether the Republican governor illegally coordinated with outside interest groups, specifically the conservative Wisconsin Club for Growth. The state court’s decision was considered highly partisan.
In the probe, prosecutors were looking into whether Walker’s campaign coordinated with conservative groups on campaign ads in 2012. The governor was fighting off a recall effort after he signed his bill stripping public unions of collective bargaining rights.
The Wisconsin Justice Initiative on Oct. 3 said the U.S. Supreme Court’s decision highlights a need to reform state judicial campaign laws.
“This unfortunate decision doesn’t erase the perception that money corrupted the deliberative process of the Wisconsin Supreme Court,” WJI executive director Gretchen Schuldt said. “That court’s majority took too much in campaign funds from too many players with interests in the case. The money raises suspicions that will never go away.”
The state should bar judges from participating in cases that include or might affect campaign donors, according to WJI. Also, judges should be blocked from participating in cases involving groups or individuals who have provided endorsements in the judges’ races.
“The integrity of the state supreme court has rightly been called into question,” Schuldt said. “The court itself does not want to restore it and the U.S. Supreme Court does not want to restore it. It is up to Wisconsin voters to insist that their legislators enact laws that will ensure the state supreme court is the pride of Wisconsin, not the huge embarrassment it is now.”
Iowa County District Attorney Larry Nelson, Dane County District Attorney Ismael Ozanne and Milwaukee County District Attorney John Chisholm issue a joint statement after learning of the U.S. Supreme Court’s decision: “We are disappointed by today’s Supreme Court order denying our Petition for Certiorari. The state supreme court decision, left intact by today’s order, prohibits Wisconsin citizens from enacting laws requiring the full disclosure of disguised contributions to a candidate, i.e., monies expended by third parties at the direction of a candidate for the benefit of that candidate’s election. We are proud to have taken this fight as far as the law would allow and we look forward to the day when Wisconsin adopts a more enlightened view of the need for transparency in campaign finance.”
Wisconsin Club for Growth president Eric O’Keefe, according to Wisconsin Public Radio, said, “From its inception, this proceeding was a politically motivated attack and a criminal investigation in search of a theory.”
The high court announced the decision without explanation on Oct. 3, the court’s first day of the fall term. The order said, “The petition for a writ of certiorari is denied.”
Editor’s note: This story will be updated.
The death of Justice Antonin Scalia increases the chances the decision in John Doe 2 may reach the U.S. Supreme Court.
The Wisconsin high court’s decision halted the investigation into allegations that Scott Walker illegally coordinated with outside groups during the recall elections of 2011 and 2012. The court held that the First Amendment forbids the state from banning coordination between candidates and issue advocacy groups, even though the U.S. Supreme Court never has reach any such ruling.
There are legal limits on donations to candidates, but contributions to groups that indirectly support specific candidates without naming them can raise unlimited sums of money from anonymous donors. That means in Wisconsin candidates have limitless dollars at their personal disposal — dollars that cannot be traced.
Campaign limits to candidates are intended to rein in the corrupting effect of money in politics. Allowing coordination between outside groups, more commonly known as “dark money” groups, and candidates defeats the purpose of limits on campaigns.
If the district attorneys fighting back against this John Doe decision were concerned that appealing to the U.S. Supreme Court might backfire, because a majority might uphold the Wisconsin Supreme Court decision, they can put that fear to rest.
Scalia represented a problem for the district attorneys and for the liberal justices on the Court. The court now has a 4–4 split between conservative and liberal justices. The four liberal justices have consistently voted in favor of campaign finance regulations and they now essentially hold veto power.
In his concurring opinion in the Citizens United case of 2010, Scalia made a First Amendment argument that echoes that of the John Doe opponents. He wrote: “The individual person’s right to speak includes the right to speak in association with other individual persons. …The Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals.”
But Scalia’s argument here is only about corporations and associations having free speech rights. It’s not about candidates being allowed to coordinate with issue advocacy groups.
Indeed, Justice Anthony Kennedy, writing the majority opinion in Citizens United, which Scalia signed on to, made this distinction: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
It is precisely that definition the Wisconsin Supreme Court erased in its John Doe decision.
Matt Rothschild is the executive director of the Wisconsin Democracy Campaign.
Alabama Chief Justice Roy Moore yesterday said state probate judges remain under a court order to refuse marriage licenses to gay couples even though a US. Supreme Court decision effectively legalized same-sex marriage more than six months ago.
The outspoken chief justice has said that biblical law trumps constitutional law. He previously tried to block gay marriage from coming to the Deep South state, issued an administrative order saying the Alabama Supreme Court never lifted a March directive to probate judges to refuse licenses to gay couples.
“Until further decision by the Alabama Supreme Court, the existing orders … that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” Moore wrote.
But the chief justice stopped short of directly ordering judges to refuse the licenses. He wrote in his order that he was not “at liberty to provide any guidance to Alabama probate judges on the effect of (the Supreme Court ruling) on the existing orders of the Alabama Supreme Court.”
Nonetheless, at least three Alabama counties suspended all marriage license operations — not issuing licenses to anyone— as a result of his order.
The Alabama Supreme Court issued its directive to refuse licenses to gay couples at the request of a conservative group after a federal judge ruled in January 2015 that the state’s gay-marriage ban was illegal. Months later, in June, the U.S. Supreme Court issued a ruling that effectively legalized gay marriage nationwide.
“Yet again, Chief Justice Roy Moore is flagrantly defying the rule of law, and empowering those who wish to stand between same-sex couples and their constitutional right to marry the person they love,” said Human Rights Campaign legal director Sarah Warbelow in a statement to the press. “Regardless of what Roy Moore says, marriage equality is the law of the land. … We urge all of the state’s probate judges to issue licenses to same-sex couples, as is their duty under the law. Moore’s personal opinions are not at issue here. As a judge, he has an obligation to follow the law. If he refuses to do so, he should be removed from office.”
Claiming the Supreme Court did not specifically address Alabama’s ban on same-sex marriage in the historic Obergefell v. Hodges case, Moore justified his position by quoting a state law that says he can “take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state,” according to HRC, the nation’s largest and most influential lobbying group for LGBT equality.
The Alabama court had asked for briefs on how to proceed after the U.S. high court ruling, but never issued any follow-up orders. Moore said he was issuing his latest administrative order because there was “confusion” among probate judges on how to proceed. Moore told the Montgomery Advertiser that he didn’t mean to defy the U.S. Supreme Court as he sought to clarify conflicting orders.
Susan Watson, director of the ACLU of Alabama, said it was Moore who was creating confusion, but she also predicted that his order would have little effect. Watson noted that the same federal judge who initially overturned Alabama’s gay marriage ban also issued an injunction prohibiting probate judges from enforcing the ban.
Most judges in Alabama’s 67 counties are issuing marriage licenses to gay couples, although at least three Alabama counties suspended all marriage license operations yesterday in response to Moore’s order. That is in addition to the judges in nine counties who had already shut down their operations following the U.S. Supreme Court decision.
Alabama Rep. Patricia Todd, D-Birmingham, the only openly gay member of the Alabama Legislature, said it is time for Moore to stop fighting the ruling of the U.S. Supreme Court.
“He’ll be challenged and he’ll lose and he’ll cost the state a lot of money in the process,” Todd said.
University of Alabama School of Law Professor Ronald Krotoszynski agreed.
He said that although it is technically true the state Supreme Court never withdrew its March injunction, “the U.S. Supreme Court plainly overruled it and federal courts would rule against judges who refuse licenses.”
“In light of this reality, ordering the state’s probate judges to refuse to issue marriage licenses to all couples who seek them constitutes an exercise in futility,” Krotoszynski said. “At best, it sows chaos and confusion; at worst, it forces couples to bring federal court litigation in order to exercise a clearly established federal constitutional right.”
Moore has become one of the state’s most outspoken opponents of gay marriage, and he has won praise from some right-wing religious groups for his position.
Washington County Probate Judge Nick Williams said the order has no impact on his county since he stopped issuing marriage certificates altogether in June, but he praised Moore.
“I respect our chief justice greatly,” Williams said. “I think he’s a man of honor and I respect everything he does.”
Montgomery County Probate Judge Steven Reed, one of the first probate judges to issue same-sex marriage licenses in the state, tweeted this statement:
“Judge Moore’s latest charade is just sad & pathetic. My office will ignore him & this.”
Moore’s son Caleb Moore has been arrested three times on drug charges, leading LGBT rights advocates to charge the judge with hypocrisy and failing to minister to his own son while trying to foist his religious views on the public. In 2012, Caleb Moore worked part-time for the anti-gay Foundation For Moral Law, which was founded by his father and is currently headed by his mother Kayla Moore.
Prior to his same-sex marriage opposition, Moore was best known for being removed from office in 2003 after refusing to move a 5,300-pound Ten Commandments monument from the state Supreme Court building. But the Bible Belt state re-elected him to the position in 2012.
The Ten Commandments does not address same-sex marriage.