The Kill Shot
Paragraph 76: To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.
The Gut Punch to the Prosecutors
Paragraph 133: Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. 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. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting 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.
On the First Amendment:
Paragraph 44: In addressing the scope of Wisconsin’s campaign finance law we are keenly aware that this task bears directly on the ability of all citizens in our State to engage in the democratic process. The special prosecutor’s theories implicate one of the foundational principles of our nation: the freedom of speech, specifically, political speech. We therefore begin our analysis with the words of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I.[16] Article I, Section 3 of the Wisconsin Constitution guarantees that: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.”
On Wisconsin’s Campaign Finance Laws:
Paragraphs 55-57: The special prosecutor alleges that the Unnamed Movants engaged in illegally coordinated issue advocacy. However, the basis for his theory has evolved over the course of the various legal challenges to his investigation, and he appears unable to decide just how the Unnamed Movants have broken the law.[20]
Today, the special prosecutor alleges two theories of illegal coordination: (1) that the coordination between the Unnamed Movants is so extensive that the supposedly independent groups became subcommittees for the candidate’s campaign under Wis. Stat. § 11.10(4); and (2) that the coordinated issue advocacy amounts to an in-kind contribution under Wis. Admin. Code § GAB 1.20. The special prosecutor’s theories, if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues. See Citizens United, 558 U.S. at 324. We find no support for the special prosecutor’s theories in Wis. Stat. Ch. 11. Chapter 11’s definition of “political purposes,” which underlies Wisconsin’s campaign finance law, is both overbroad and vague and thus unconstitutionally chills speech because people “‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’” Id. (quoting Connally, 269 U.S. at 391).
However, by limiting the definition of “political purposes” to express advocacy and its functional equivalent, we ensure that all issue advocacy will remain unencumbered. This limiting construction[21] allows us to protect political speech, a vital First Amendment right, and allows us to guard against the theories of the special prosecutor and those who would rely on overbroad and vague statutes to silence those with whom they disagree.
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Paragraphs 66-67: To be clear, the reason that the definition of “political purposes” in § 11.01(16) is unconstitutional is because the phrase “influencing [an] election” is so broad that it sweeps in protected speech, as well as speech that can be subject to regulation. “Influencing [an] election” obviously includes express advocacy, but without a limiting construction it could just as easily include issue advocacy aired during the closing days of an election cycle. This is precisely the kind of overbroad language that the Supreme Court has repeatedly rejected. “Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election.” WRTL II, 551 U.S. at 474 (emphasis added). We must have clear rules that protect political speech, and we must continue to reject the idea that some protected speech may be chilled or restricted simply because it is “difficult to distinguish from unprotected speech.” Id. at 494 (Scalia, J., concurring). “[L]aws targeting political speech are the principal object of the First Amendment guarantee. The fact that the line between electoral advocacy and issue advocacy dissolves in practice is an indictment of the statute, not a justification of it.” Id.
We therefore hold that the definition of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague. In order to cure this overbreadth and vagueness, we adopt a construction of § 11.01(16) that limits the definition of “political purposes” to include only express advocacy and its functional equivalent, as those terms are defined in Buckley and WRTL II.
FromJustice David Prosser’s concurrence, on the subpoenas and search warrants:
Paragraphs 262: The precedent set by this case has the potential to affect the privacy rights of millions of Wisconsin citizens. “Among online adults, 92% use email, with 61% using it on an average day.”[53] Cell phones and smart phones are, of course, ubiquitous in our society, but countless numbers of people communicate by e-mail and texting. The ability of government to capture——without notice——the substance of our non-aural communications is not dissimilar to government wiretaps that record the substance of telephone conversations. The only difference is that wiretaps disclose the content of telephone conversations in real time.
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Paragraphs 265-269: The search warrants and subpoenas in this case are so broad and so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.[55] After all, the special prosecutor has access to thousands and thousands of electronic communications about the 2010 election, Act 10, the 2011-13 state budget, other legislation, all the recall elections and the strategies and fundraising efforts employed in them, [——————————], litigation, and the then-upcoming 2012 general election. As the substance of this John Doe leaks out, as it already has, the search warrants and subpoenas have an eerie similarity to SLAPP suits in a civil context.[56] SLAPP suits have the effect, whether intended or not, to cost defendants tremendous amounts of money, to extract privileged information from them, and to cause the defendants and others to withdraw from the political process out of fear of harassment.
The special prosecutor insists that he had probable cause for all his investigative efforts. This is sharply disputed. In any event, probable cause for a search warrant may be wholly devoid of probable cause that the recipient of the search warrant or subpoena or even the subject of the search warrant or subpoena has committed any crime. Rather, the supposed probable cause is that evidence that will aid in the conviction of some crime will be found in the place to be searched, particularly if the items to be seized include everything found at that place——here, the e-mail accounts of people who have been targeted.
This sort of probable cause must be weighed against the privacy being invaded by the search warrants and subpoenas. The special prosecutor has not been targeting terrorists or mobsters who impose an imminent danger to society. Covering up the breathtaking extent of the John Doe investigation through secrecy orders is highly problematic and cannot last.[57]
I conclude the following:
1. The search warrants and subpoenas issued on or about October 1, 2013, are invalid because they were presented by a special prosecutor who had none of the powers of a district attorney because his appointment was invalid.
2. The search warrants and subpoenas issued on or about October 1, 2013, were unconstitutionally overbroad because they covered a time period before recall elections were even contemplated, thereby exceeding the subject matter of the investigation; included all periods of exemption within the time period——246 days——thereby permitting secret investigation of lawful First Amendment activities; lacked the level of particularity required as to those things that might lawfully be seized; and improperly invaded the privacy of persons who were not suspects by seeking information virtually without limitation.
3. The search warrants and subpoenas issued in September and December 2012 were unconstitutionally overbroad, for the reasons stated in point 2, but especially because they dated back more than 21 months before recalls were contemplated, a period unrelated to the recall elections in 2011 and 2012, the purported subject of the John Doe.
Consequently, I would affirm the decision of Judge Peterson to quash the subpoenas and return seized property and expand his ruling to cover the search warrants and subpoenas issued in September and December of 2012.
Justice Annette Ziegler, concurring on the warrants that lead to the pre-dawn raids:
Paragraph 319-322: In the case at issue, Investigator Dean Nickel obtained two secret John Doe warrants from Reserve Judge Barbara Kluka to search the homes of Unnamed Movants Nos. 6 and 7. The warrants were obtained in the course of a secret John Doe investigation.[67] Those warrants and their supporting affidavit did not set forth any particular time at which, or manner in which, the warrants would be executed. Unlike many warrants that must be executed at nighttime for fear of the evidence being destroyed or removed from the location or because of public or officer safety reasons, much of this evidence had been sitting on computers and in cyberspace for years.
This was not, as sometimes occurs, a situation where a judge was awoken in the middle of the night to issue a warrant because law enforcement needs to execute it promptly in order to seize the evidence. Reserve Judge Kluka signed the warrants at 11:30 a.m. on Monday, September 30, 2013. However, they were not executed until Thursday, October 3, 2013, at approximately 6:00 a.m.[68] “A search warrant must be executed and returned not more than 5 days after the date of issuance.” Wis. Stat. § 968.15(1). These warrants were executed three days after they were issued. “The return of the search warrant shall be made within 48 hours after execution . . . .” Wis. Stat. § 968.17(1). The warrants were returned on October 4, four days after they were issued and one day after they were executed.
The warrants were executed in the pre-dawn darkness. On October 3 civil twilight began in Madison at 6:29 a.m. and sunrise began at 6:57 a.m.[69] For all practical purposes, each of these searches was the equivalent of a nighttime search. Because no challenge to the warrant execution has been made, the record lacks any explanation as to why law enforcement did not execute the warrants any time during the preceding 66.5 hours——or more specifically, the 29.5 daylight hours——between issuance and actual execution.
A nighttime search will often occur shortly after a judge has issued the warrant, as there is some urgency in needing to conduct the search in non-daylight hours. Courts often consider “nighttime” as the time when it is “dark” outside, between sunset and sunrise, between dusk and dawn, or when most people are asleep. See Claudia G. Catalano, Annotation, Propriety of Execution of Search Warrants at Nighttime, 41 A.L.R. 5th 171 (1996). This record, understandably, lacks any indication of why it was reasonable to execute these warrants in this manner, especially since the warrants had been issued three days earlier. The prosecution might have obtained the same evidence in the daylight by waiting a mere hour or two or by executing the warrants in any of the preceding daylight hours. Why did law enforcement execute these secret John Doe warrants days after obtaining them, in the pre-dawn darkness, needing floodlights to illuminate the homes, and with such forceful presence?
Ziegler’s conclusion:
Paragraph 340: I join the majority opinion in all three cases. I write separately to explain that even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution’s counterpart. A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought.
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