Frederica Freyberg:

First, the legal tangle known as the John Doe II investigation. It took another hairpin curve this week. The 7^th circuit court of appeals in Chicago overturned an earlier district court ruling that halted the investigation. This week’s ruling sent it out of the federal courts and back to the state with a message that essentially said, figure it out, Wisconsin. The investigation focuses on alleged illegal coordination between the Scott Walker recall campaign and outside, independent funding groups, including the Wisconsin Club for Growth. What’s next for the case? You need a former state supreme court justice to try to figure it out and that’s who joins us now. Janine Geske, who’s also a law professor at Marquette University. Former Justice Geske is in Sturgeon Bay tonight. Justice, thanks very much for joining us.

Janine Geske:

You’re welcome.

Frederica Freyberg:

So the 7th circuit court said federal judge Rudolph Randa’s ruling halting the probe was imprudent and an abuse of discretion. How big of a slap is that?

Janine Geske:

Well, it was a pretty substantial slap. As you may recall, earlier Judge Randa had ordered that the materials that had been subpoenaed be destroyed and they had earlier set aside that, saying that was not an appropriate order. And now it was clear this federal court said, you know, the federal court should not be involved in this and the prosecutors that are involved have qualified immunity. This matter belongs in state court, not in federal court.

Frederica Freyberg:

On the core of the matter, kind of whether Wisconsin laws allow regulation of coordination between third-party political groups and candidates or whether that violates First Amendment freedom of political speech, the 7th circuit wrote this, “Until a district court’s opinion in this case, neither a state nor a federal court had held that Wisconsin’s or any other state’s regulation of coordinated fund-raising and issue advocacy violates the first amendment.” It also wrote, another quote here from the ruling, “–the Supreme Court has stated repeatedly that although the First Amendment protects truly independent expenditures for political speech, the government is entitled to regulate coordination between candidates, campaigns and purportedly independent groups.” So with all of that, is this vindication in your mind as the John Doe prosecutors say, for their position?

Janine Geske:

Well, the language is strong. There’s other language that isn’t quite as helpful. And it’s vindication only in as much as the federal lawsuit was found basically to have no merit. The problem, though, is that there’s a state court ruling by Judge Peterson that quashed some of the subpoenas, saying that there is no allegation of criminal behavior here. And so this issue is not going away. It’s going to be analyzed by state court judges rather than federal court judges. But it is a murky area. And it’s an area I think that all of us need to be concerned about, because it’s not just about the John Doe. It is about how elections are conducted, and what the public knows and doesn’t know about where that money is coming from.

Frederica Freyberg:

In terms of that, Judge Peterson kind of stalling this John Doe investigation by quashing the subpoenas and then really kind of questioning the investigation’s merits. He did something else, though, as I recall, that seemed a little confusing. That was almost to ask for an appeal, to get other kind of opinions on this. How usual is that?

Janine Geske:

Well, I think Judge Peterson, who’s a very, very fine retired court of appeals judge was indicating this is really a murky area, is a difficult area. The United States Supreme Court sort of started this cascade of these issues with Citizens United, and it is not clear. And I think he knew that the case would obviously go up to a higher court and that ultimately the Wisconsin Supreme Court would get it and hopefully decide it. Even when that happens, I think there are good odds that it will continue up to the US Supreme Court to get a final answer. Whether the court will take it or not is another matter.

Frederica Freyberg:

So this might almost be rhetorical, but how big of a legal tangle is this that Wisconsin is now confronting?

Janine Geske:

Well, it’s a big entanglement. Part of it is that the objects of a John Doe are willing, obviously, to spare no expense in attacking this process from all different legal grounds. There are four state court actions, I believe, in different stages in addition to the federal action that was just ended. And so it is tough to sort of tell where each one’s at. Right now, the eyes will be on the Wisconsin Supreme Court, on Judge Peterson’s case, because that is pending in front of them. And we’ll have to see whether they take it through a bypass and bypass the court of appeals, or whether they send it back to the court of appeals for an opinion. And that’s within their discretion.

Frederica Freyberg:

People have been writing in the past kind of several weeks questioning why the state Supreme Court kind of hasn’t already stepped in to settle this and have suggested it’s too hot for them to handle? What do you think of that premise?

Janine Geske:

Oh, I don’t think that’s the case. The court handles lots and lots of hot cases. I suspect in part they were waiting to see what the federal court was going to do. It was obvious that that decision was imminent, and, you know, if the federal court had made a finding, then they– the Supreme Court might have reacted differently and sent it to the court of appeals first. So I think they were probably waiting for that. There’s of course substantial recusal issues that the court has to face also. So I think now it’s clear the court’s going to have to decide either to take the case or not take the case or if there are not enough justices to hear it, just simply send it back to the court of appeals for an opinion. So we’ll have to wait and see. We have one justice already having recused herself, but what’s going to happen with the other ones, you know, it’s hard to know.

Frederica Freyberg:

Well, what’s your sense on that, whether or not, in your legal opinion, some of those justices would in fact have to step aside because of a conflict?

Janine Geske:

Well, I think, you know, the way our rules of ethics go now for judges, it really is within their own discretion whether to set aside or not. And I think one of the biggest concerns is the appearance of the judges not being impartial because of the monies that were poured into their respective campaigns. There is a rule called the Rule of Necessity. When there’s no one else to hear it and no justices can be replaced with another justice, that they might hear it. Based on the past behavior and decision-making on recusals by the members of this court, I suspect they are not going to recuse themselves and that they’ll go ahead and either decide it or send if to the court of appeals who will later decide it. So that would be my guess, is that we’re going to see them sitting on the case.

Frederica Freyberg:

All right. Former Supreme Court justice, Janine Geske, thank you very much for joining us on this.

Janine Geske:

You’re welcome. My pleasure. Thanks, Frederica.