"The Wisconsin Supreme Court... said Tuesday that a state agency that oversees public employee union recertification elections can delay the release of voter records to prevent voter intimidation."

The Wisconsin State Journal reports.

Government openness advocates warned that the ruling could have a broad impact on the public's right to know how its government works because it allows records custodians to consider the perceived motivations of requestors when determining whether to release records....

But the court's majority, led by Chief Justice Patience Roggensack, said ... "The public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open records," Roggensack wrote, "under the circumstances presented in the case before us."...

In a dissenting opinion, Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson [wrote] "this concocted concern is based solely on one uninvestigated and unsubstantiated complaint from Racine County, involving a different union, in a different election, in a different year, that did not involve a public records request."

"The Wisconsin Supreme Court is expected on Thursday to make public a decision on whether a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign may continue." UPDATE: Court ends the investgation.

The NYT reports.

The investigation, which has been stalled by court decisions for more than a year, began in 2012 after Mr. Walker survived a recall election brought by voters who opposed limits he made to collective bargaining rights and union power when he became governor in 2011. At its root, the investigation looked at whether Mr. Walker’s advisers directed interactions with at least a dozen outside conservative groups, including the Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, and Citizens for a Strong America, and whether that violated disclosure rules and donation limits....

The State Supreme Court had been asked to look at three legal suits tied to the case, including efforts to end the inquiry by those under investigation as well as a push by the special prosecutor to renew it....

ADDED: This paragraph seems miswritten:

The state’s highest court is widely seen as being split between a larger conservative bloc and liberal one as well as having an increasingly polarized, antagonistic climate between the blocs. Shirley S. Abrahamson, the longtime, liberal-leaning chief justice, filed a federal lawsuit this spring after voters approved a Republican-led constitutional amendment changing the way the chief was picked — in essence, assuring that a member of the conservative bloc, Patience Roggensack, would be picked to replace her.

The constitutional amendment didn't assure that Patience Roggensack would be chosen. The NYT doesn't mention what the constitutional change was. We went from designating the most senior justice as chief to choosing the chief by a vote of the justices. That meant the so-called conservatives controlled the outcome if they voted as a bloc, but a majority of justices, making their individual choices, could have decided to vote for Abrahamson, perhaps out of concern for the seeming disrespect of taking her position away in the middle of her term or because she was experienced and doing a fine job. We Wisconsinites who voted to amend the constitution did not feel assured of the outcome, especially that Roggensack, specially, would be chosen.

UPDATE: "Wisconsin Supreme Court ends John Doe probe into Scott Walker's campaign."

The ruling means the likely end of the investigation, which has been stalled for 18 months after a lower court judge determined no laws were violated even if Walker's campaign and the groups had worked together as prosecutors believe.

It could also prompt the escalation of other litigation over the probe....

Writing for the majority, Justice Michael Gableman found a key section of Wisconsin's campaign finance law is "unconstitutionally overbroad and vague" and that the activities prosecutors had investigated were not illegal.

"To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law," Gableman wrote. "Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge (Gregory) 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."

AND: Here's the full text of the opinion.

MORE: The court — citing freedom of speech rights in the U.S. and Wisconsin constitutions — rejects the interpretation of the Wisconsin statute that was the basis of the special prosecutor's :

In Two Unnamed Petitioners, we hold that the definition of that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language "'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'"  State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987)).  However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, "political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976), and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (WRTL II).  With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants.  The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is "beyond the reach of [Ch. 11]."  Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II).  Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

AND: "The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing.  Millions of documents, both in digital and paper copy, were subpoenaed and/or seized.  Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys.  The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013).  Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11.  As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos."

MORE: "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."

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)....

The special prosecutor argues that coordinated issue advocacy is prohibited under this provision because the statute itself only requires cooperation between a candidate's committee and another committee and that the statute does not require that such cooperation be limited to express advocacy.

The first flaw in the special prosecutor's theory is that it is left to the whim of each regulatory bureaucrat and/or prosecutor to subjectively determine how much coordination is "too much."  Indeed, the special prosecutor, because he relies on vague and overbroad statutes, will be the only one to know how much coordination is "too much."  This cannot be; such an interpretation of § 11.10(4) is unconstitutionally overbroad and vague under the First Amendment. 

There's a second flaw that the court finds "more obvious":

Wisconsin Stat. § 11.10(4) refers to a "committee" that coordinates with a candidate's committee and in order to be a "committee," an entity must "make[] or accept[] contributions or make[] disbursements."   In order to come within the purview of regulated acts both "contributions" and "disbursements" must be "made for political purposes."  Wis. Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1.  Applying the necessary limiting construction to the phrase "for political purposes," we conclude that in order to meet the statutory definition of "committee," a committee must engage in express advocacy and its functional equivalent.  This conclusion is fatal to the special prosecutor's subcommittee theory because he does not allege that the Unnamed Movants engaged in express advocacy.  Put simply, because the Unnamed Movants did not engage in express advocacy, they could not be considered a "committee" subject to Chapter 11's regulation. 

AND: From the conclusion:

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. 

At the Wisconsin Supreme Court today, the new chief justice, Patience Roggensack, had to tell the old chief, Shirley Abrahamson, "You are out of order."

"You are out of order. ... I never did this to you when you operated as chief justice, to keep going back when you tried to move to an item on the agenda. You really need to give me the same courtesy, please."

Abrahamson — who is suing in federal court to get the position of chief justice back — answered: "But I never silenced anyone. I didn't call the question. I let everyone speak, but maybe that was not the right thing to do but that's what I did to everyone and I expect the same courtesy."

And then Roggensack said: "I run the meeting perhaps a little differently than you do."

I think it looked something like this:

At the swearing-in ceremony for Marquette University Law School graduates, only the justices who voted for Patience Roggensack appear.

Wisconsin Supreme Court Justice Patience Roggensack was presiding as chief justice for the first time as the court performed the time-honored ritual for the newest members of the bar. Not present was Shirley Abrahamson, who lost the position of chief when voters amended the state constitution to provide for the justices to elect their own chief. Abrahamson is suing in federal court, claiming that she's still properly the chief, under the old seniority rule, until the end of her term in 2019. Also absent were Justices Ann Walsh Bradley and Patrick Crooks, who, we're told, voted against Roggensack.

Congratulations to the graduates of Marquette University Law School, beneficiaries of Wisconsin's delightful diploma privilege. I'm sorry you didn't get to see a full bench for your special celebration, but you did get to see something special.

Denying Shirley Abrahamson an injunction that would restore her to the position of Chief Justice of the Wisconsin Supreme Court...

... U.S. District Judge James Peterson found no irreparable harm because the new Chief Justice Patience Roggensack is "not consolidating power in any ruthless way."

"Other columnists have argued that the conservatives' quick action to replace Abrahamson is overplaying their hand."

"But it is no such thing; the chief's chair is rightfully Roggensack's, and delaying her ascension to the seat simply would be giving oxygen to Abrahamson's charade."

Writes Christian Scheider in the Milwaukee Journal Sentinel (about the lawsuit Wisconsin Supreme Court Justice Shirley Abrahamson brought to keep her position as chief after Wisconsin voters amended the state constitution to change the selection process from seniority to a vote of the 7 justices).

By the way, I wouldn't have used the word "ascension." When you're elected to a position, do you ascend? Funny that bothered me. It was just yesterday that I finished reading the book "Means of Ascent (The Years of Lyndon Johnson)," by Robert A. Caro. It's the story of how Lyndon Johnson first got his senate seat in 1948. It wasn't by winning an election. It was by stealing an election... most outrageously.

"Wisconsin Supreme Court justices have moved quickly to replace longtime Chief Justice Shirley Abrahamson with Justice Patience Roggensack."

"Abrahamson’s attorney Robert Peck says in a letter filed in a federal court that Abrahamson continues to believe she is still chief justice."

Oh, no! Too many chiefs!

After Wisconsinites vote to amend the state constitution to change how the state supreme court's chief justice is selected, Shirley Abrahamson sues in federal court to keep her position under the old provision.

Under the old provision, Abrahamson was entitled to the position because she is the most senior member of the court. Under the amendment we voted for in yesterday's election, the justices elect their own chief. What is the federal question that allows this to be heard in federal court?

To have the selection process change immediately would shorten the term of office to which Abrahamson was elected, she argued, and would therefore violate her constitutional rights to due process and equal protection rights.

She also asks the court to block the other six justices on the court from taking any action to remove her as chief justice. Earlier Wednesday, before Abrahamson filed the lawsuit, Justice Pat Roggensack told The Associated Press that she hoped to meet "quite soon" to discuss how to proceed following the amendment's adoption....

ADDED: On reading this, Meade said: "I think what should be said is that this changed the terms of her office, not the term of her office." (That is, voters elected her to serve as a justice for a 10-year term, and under the old provision, by virtue of her seniority, she would be chief. Under the new provision, the terms of her job have changed, so that seniority does not entail service as chief, but the justices get to vote for a chief. Her term is the same: 10 years.)

AND: As they say in Wisconsin (sometimes!): This is what democracy looks like.

The Wisconsin Supreme Court upholds the photo ID law.

Like the Act 10 case (discussed 2 posts down), this was a 5-2 decision with Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissenting.

Writing for the majority, Justice Patience Roggensack said "the burdens of time and inconvenience associated with obtaining Act 23-acceptable photo identification are not severe burdens on the right to vote."

The dissenting Chief Justice said:

"Today the court follows not James Madison -- for whom Wisconsin's capital city is named -- but rather Jim Crow -- the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans."