Sat 12 Apr, 2014 08:54 am
Score another one for free political speech. On Tuesday, Federal District Judge Rudolph Randa soundly rejected a motion to dismiss a federal civil-rights lawsuit against Wisconsin prosecutors who are investigating the political activities of conservative groups (but not liberals).
In a 19-page ruling, Judge Randa wrote that Wisconsin Club for Growth Director Eric O'Keefe's claim that the unlawful investigation violates his First and Fourteenth Amendment rights may proceed. Mr. O'Keefe has standing to bring the lawsuit because "chilled speech is, unquestionably, an injury supporting standing" and that claim doesn't depend on whether he is charged with a crime; "the threat of prosecution is enough."
Prosecutors argued that the federal suit couldn't proceed under the 1971 Supreme Court ruling in Younger v. Harris, which prevents federal courts from intervening in a criminal prosecution. That precedent doesn't apply here, Judge Randa wrote, because the state's secretive John Doe proceeding is not a prosecution but "an investigatory device, similar to a grand jury proceeding, but lacking the oversight of a jury."
The Younger exemption also does not apply, the judge added, when the plaintiffs allege that the prosecution was "brought in bad faith for the purpose of retaliating for or deterring the exercise of constitutionally protected rights." Mr. O'Keefe's claim easily satisfies that requirement with its assertion that the John Doe investigation into possible campaign finance violations has been selectively used as a "pretext" to target conservative groups and deter their political engagement.
...."The success or failure of O'Keefe's claims do not depend upon the state court's interpretation of its own campaign finance laws," Judge Randa wrote. "O'Keefe's rights under the First Amendment are not outweighed by the state's purported interest in running a secret John Doe investigation that targets conservative activists."
The ruling means that those named in the lawsuit, including special prosecutor Francis Schmitz, Democratic prosecutors John Chisholm, Bruce Landgraf, David Robles and Government Accountability Board contractor Dean Nickel can be held personally liable. The judge rejected their claims of immunity, noting that a prosecutor's absolute immunity is "limited to the performance of his prosecutorial duties, and not to other duties to which he might to assigned by his superiors or perform on his own initiative, such as investigating a crime before an arrest or indictment."
The John Doe probe has been a one-sided investigation conducted against political opponents to chill their ability to influence elections, and now the prosecutors will have to defend themselves in open court.
O'Keefe argues that they can commit a crime because the other side isn't being investigated. I can't wait for discovery when O'Keefe has to answer questions under oath in order for the lawsuit to proceed.
The judge's ruling:
The underlying theory of this case is that O‟Keefe, along with other
conservative groups, are being targeted for their political activism, whereas
the “coordination” activities of those on the opposite side of the political spectrum are
Since the argument is both sides coordinate, it means the lawyers can ask O'Keefe about any and all "coordination" his group was involved in. O'Keefe can answer the question truthfully or commit perjury. Either way he could find himself in jail.