Lower court keeps Doe case

State Supreme Court hands huge number of emails, documents over to circuit court judge’s discretion

MADISON – The Wisconsin Supreme Court ruled Thursday it would stay away for now from lingering litigation over a now-closed investigation into Gov. Scott Walker’s campaign, leaving a Brown County judge to sort out the legal fight.

In its 4-0 order, the high court handed over to Brown County Circuit Judge Kendall Kelley millions of pages of emails and other evidence from the probe known as John Doe II. It will be up to Kelley — not the high court — to determine what to do with that material.

Individuals and entities who were caught up in the investigation contend the material should be returned to them because the Supreme Court terminated the investigation and found no one had engaged in any criminal wrongdoing.

“The John Doe II judge shall have authority to make all decisions in the first instance regarding that evidence,” the justices wrote in the unsigned order.

The ruling came as the governor gears up his re-election bid and two days after Milwaukee County Circuit Judge Rebecca Dallet won a seat on the high court. Dallet will be seated in August.

The justices declined to loosen secrecy orders in the case so that targets and witnesses could speak more freely about the probe. Any requests to do that will have to be made to Kelley.

The justices also left it to Kelley to make any findings about whether anyone had violated the secrecy orders and, if so, what to do about it.

GOP Attorney General Brad Schimel has asked to commence contempt proceedings against investigators and other government officials to ensure that file-sharing accounts that contained John Doe evidence have been closed. That request sprang from his investigation into the leak of John Doe documents to the Guardian U.S. website.

In another sign that the high court wants the case to reside with Kelley, the justices said they were closing out all appeals related to the litigation. They wrote that anyone who wants to get Doe-related issues before them again

would need to file new appeals.

Prosecutors in 2012 began an investigation of the campaign of Walker, other Republicans and conservative groups that back them.

The probe was conducted under the state's John Doe law, which allows prosecutors to force people to give testimony and produce documents.

The Supreme Court shut down the probe in 2015, finding nothing illegal occurred.

The probe was dubbed John Doe II because it followed an earlier investigation of Walker aides and associates that resulted in six convictions.

While John Doe II was ended nearly three years ago, fallout from it has persisted in the courts.

Kelley took over the case in December and at a hearing in February questioned how much authority he had to act in the case given that the Supreme Court had terminated the probe.

Thursday’s order answered his main question by making it plain he has wide latitude to make important decisions about the case.

While the case will remain with Kelley for the time being, it could eventually wend its way back to the Supreme Court. What could happen at that stage is an open question.

Only four of the court’s seven justices participated in Thursday’s order — Chief Justice Patience Roggensack and Justices Shirley Abrahamson, Michael Gableman and Annette Ziegler.

Staying out of the case were Justices Ann Walsh Bradley, Rebecca Bradley and Daniel Kelly. (The Bradleys are not related.)

Ann Bradley has not participated in the litigation from the outset because her son’s law firm is involved in the case.

Rebecca Bradley and Kelly joined the court in recent years — when the case was already well underway — and have stayed on the sidelines.

If the case returns to the high court, the dynamic could change in August, when Dallet replaces Gableman, who did not seek a second term.

That could mean two liberals — Abrahamson and Dallet — could consider the case alongside two conservatives — Roggensack and Ziegler — and raise the prospect of deadlocks.

It’s also possible one or more of the justices who did not participate would try to involve themselves in the case, or that Dallet would not participate in the case. At least four justices are needed to take action on a case.