Chisolm's Brief in The John Doe Case

No.
14-1822
___________________________________

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
___________________________________

ERIC OKEEFE and
WISCONSIN CLUB FOR GROWTH, INC. Consolidated with Appeal Nos.
14-1888; 14-1899; 14-2006; 14-2012;
Plaintiffs-Appellees, 14-2023

v.
JOHN CHISHOLM, et al.,

Defendants-Appellants.

___________________________________

Appeal from The United States District Court
for the Eastern District of Wisconsin
Case No. CV-139-RTR
Rudolph T. Randa, District Court Judge
___________________________________

DEFENDANTS-APPELLANTS JOINT REPLY BRIEF
ON APPEAL OF MOTIONS TO DISMISS AND PRELIMINARY INJUNCTION
_______________________________________
von Briesen & Roper, S.C.
Joseph M. Russell
Randall D. Crocker
Patrick C. Greeley
Attorneys for Defendant-Appellant
Francis Schmitz
411 E. Wisconsin Ave., Suite 1000
Milwaukee, WI 53202
(414) 276-1122
Wilson, Elser, Moskowitz, Edelman &
Dicker, LLP
Douglas S. Knott
Samuel J. Leib
Nicholas D. Harken
Brent A. Simerson
Attorneys for Defendants-Appellants
John T. Chisholm, David Robles, and
Bruce J. Landgraf
740 N. Plankinton Ave., Suite 600
Milwaukee Wisconsin 53203
(414) 276-8816
Case: 14-1822 Document: 146 Filed: 09/08/2014 Pages: 67

Axley Brynelson, LLP

Timothy M. Barber
Patrick J. Fiedler
Justin H. Lessner
Dean Nickel
2 E. Mifflin Street, Suite 200
Madison, WI 53703
(608) 257-5661

TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................... i
TABLE OF AUTHORITIES ............................................................................................ iii
INTRODUCTION ............................................................................................................. 1
ARGUMENT ..................................................................................................................... 3
I. The Preliminary Injunction Must Be Reversed. ..................................... 3
A. Plaintiffs Brief Relies on Misleading Factual State-
ments and Unreasonable Inferences of Bad Faith ...................... 3
B. Plaintiffs Mischaracterize the District Courts Prelimi-
nary Injunction Order and Abandon the Claims within
the their Complaint in attempt to Legitimize the Injunc-
tion ................................................................................................... 11
C Plaintiffs Concede the Type of Conduct Being Investi-
gated by the John Doe ProceedingsCoordinated Ex-
penditures Can be Regulated under the First Amend-
ment ................................................................................................. 16
1 Plaintiffs Mischaracterize the Type of Illegal Coordi-
nated Conduct the John Doe Proceedings Were Com-
menced to Investigate ............................................................ 18
2 Hard Evidence of Coordinated Expenditures ....................... 21
II. Defendants Are Entitled to Qualified Immunity ................................. 23
A. Defendants Did Not Forfeit Their Qualified Immunity
Defense ............................................................................................ 23
B. The Court Has Jurisdiction to Address The Qualified
Immunity Defense Under The Collateral Order Doctrine ...... 28
C Broad Allegations of Bad Faith Targeting Cannot Defeat
a Claim For Qualified Immunity When There Was An
Objectively Reasonable Basis For The John Doe ....................... 32
1 Neither Plaintiff Was Required to Produce Documents ....... 32
2 Defendants Did Not Petition For The John Doe Pro-
ceedings Against Plaintiffs ................................................... 33
III. Defendants Are Entitled to Prosecutorial Immunity .......................... 38
ii
A. Actions Furthering a John Doe Proceeding are Cloaked

in Absolute Prosecutorial Immunity .......................................... 38
B. Absolute Immunity Attaches to John Doe Proceedings, as Ab-
solute Immunity Attaches to Grand Jury Proceedings ...................... 39
C Plaintiffs Allegations Do Not Preclude Prosecutorial
Immunity ........................................................................................ 41
IV. Younger Abstention Requires Dismissal of the Preliminary
Injunction and Stay of The Damages Action If It Is Not
Dismissed ................................................................................................... 42
A. John Doe Proceedings Fall Within The Sprint Category
of Proceedings Akin to a Criminal Prosecution ................... 41
B. Younger Abstention Does Not Require an Active Crimi-
nal Prosecution .............................................................................. 46
C The Bad Faith Exception Does Not Apply Because
Plaintiffs Have Not Proved They Were Targeted With-
out Any Valid Hope of Obtaining A Conviction ...................... 48
V. Pullman Abstention is Proper. ................................................................ 54
A. This Court Has Jurisdiction to Consider Pullman absten-
tion. .................................................................................................. 54
B. Plaintiffs Use The Wrong Standard of Review ......................... 54
C Pullman Abstention is Warranted ............................................... 55
CONCLUSION ................................................................................................................ 56
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ............................................ 57
CERTIFICATE OF SERVICE ......................................................................................... 58

iii
TABLE OF AUTHORITIES
Cases
Acra Turf Club, LLC v. Zanzuccki,
748 F.3d 127 (3d Cir. N.J. 2014) .................................................................................. 44
American Fedn. Of Labor v. Watson,
327 U.S. 582 (1948) ....................................................................................................... 54
Anderson v. Creighton,
483 U.S. 635 (1987) ....................................................................................................... 29
Branzburg v. Hayes,
408 U.S. 665 (1972) ....................................................................................................... 38
Brusseau v. Haugen,
543 U.S. 194 (2004) ....................................................................................................... 32
Buckley v. Fitzsimmons,
20 F.3d 789 (7th Cir. 1994) ................................................................................... passim
Burns v. Reed,
500 U.S. 478 (1991) ................................................................................................. 39, 41
Chasensky v. Walker,
740 F.3d 1088 (7th Cir. 2014) ............................................................................... 23, 24
Citizens United v. Federal Election Commission,
558 U.S. 310 (2010) ....................................................................................................... 14
Collins v. County of Kendall,
807 F.2d 95 (7th Cir. 1986) ................................................................................ 6, 51, 52
Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978) ....................................................................................................... 28
Crawford-El v. Britton,
523 U.S. 574 (1998) ................................................................................................. 29, 31
Custodian of Records for the Legislative Tech. Serv. Bureau v. State (In re John Doe),
689 N.W.2d 908 (Wis. 2004) ................................................................................ passim
Dombrowski v. Pfister,
380 U.S. 479 (1965) ................................................................................................. 49, 50
iv
English v. Dyke,
23 F.3d 1086 (6th Cir. 1994) ........................................................................................ 24
Estate of Escobedo v. Bender,
600 F.3d 770, 779 (7th Cir. 2010) ................................................................................ 38
FEC v. Christian Coalition,
52 F.Supp.2d 45 (D.D.C. 1999) ............................................................................. 14, 15
Fed. Election Comm'n v. Colorado Republican Fed. Campaign Comm. (Colorado II),
533 U.S. 431 (2001) ................................................................................................ 16, 20
Findlay v. Lendermon,
722 F.3d 895 (7th Cir. 2013) ........................................................................................ 27
Fund v. City of New York,
No. 14 Civ. 2958, 2014 U.S. Dist. LEXIS 68509 (S.D.N.Y. May 19, 2014) ............. 43
Garofalo v. Village of Hazel Crest,
754 F.3d 428 (7th Cir. 2014) .................................................................................. 26, 27
Gonzalez v. Waterfront Comm'n of the N.Y. Harbor,
755 F.3d 176 (3d Cir. N.J. 2014) ................................................................................ 43
Grandco Corp. v. Rochford,
536 F.2d 197 (7th Cir. 1976) ........................................................................................ 50
Hamilton v. OLeary,
976 F.2d 341 (7th Cir. 1992) ....................................................................................... 25
Hernandez v. Cook Cnty. Sheriffs Office,
634 F.3d 906 (7th Cir. 2011) ....................................................................................... 27
Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975) ...................................................................................................... 43
Imbler v. Pachtman,
424 U.S. 409 (1976) ................................................................................................ 40, 41
Jayaraj v. Scappini,
66 F.3d 36 (2d Cir. 1995) ............................................................................................. 54
Kelly v. Illinois Bell Telephone Co.,
325 F.2d 148 (7th Cir. 1963) ....................................................................................... 15
Kugler v. Helfabt,
421 U.S. 117 (1975) ...................................................................................................... 49
Kunz v. DeFelice,
538 F.3d 667 (7th Cir. 2008) ....................................................................................... 27
Lawrence v. Astrue,
337 Fed. Appx. 579 (7th Cir. 2009) ........................................................................... 23
Massey v. Helman,
196 F.3d 727 (7th Cir. 1999) ........................................................................................ 32
McConnell v. Fed. Election Commn,
540 U.S. 93 (2003) ......................................................................................................... 14
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n,
457 U.S. 423 (1982) ................................................................................................ 43, 45
Mir v. Shah,
Case No. 13-55, 2014 WL 2722767 (2d Cir. N.Y. June 17, 2014) ............................ 45
Mitchell v. Forsyth,
47 U.S. 511 (1985) ......................................................................................................... 28
Moe v. Dinkins,
635 F.2d 1045 (2nd Cir. 1980) ..................................................................................... 55
Mulholland v. Marion County Election Board,
746 F.3d 811 (7th Cir. 2,014) ................................................................................ passim
Pincham v. Illinois Judicial Inquiry Bd.,
872 F.2d 1341 (7th Cir. 1989) ..................................................................................... 53
Pole v. Randolf,
570 F.3d 922 (7th Cir. 2009) ....................................................................................... 27
Plumhoff v. Rickard,
134 S. Ct. 2012 (2014) ............................................................................................ passim
Railroad Commission v. Pullman Co.,
312 U.S. 496 (1941) ...................................................................................................... 55
Ray v. Maher,
662 F.3d 770 (7th Cir. 2011) ........................................................................................ 32
vi
Redwood v. Dobson,
476 F.3d 462 (7th Cir. 2007) .................................................................................. 39, 40
Russ v. Watts,
414 F.3d 783 (7th Cir. 2005) ........................................................................................ 32
Reichle v. Howards,
132 S.Ct. 2088 (2012) .............................................................................................. 36, 37
Sprint Commcns., Inc. v. Jacobs,
134 S.Ct. 584 (2013) .............................................................................................. passim
State ex rel. Unnamed Person No. 1 v. State (In re Doe),
2003 WI 30, 660 N.W.2d 260 ...................................................................................... 45
State v. Washington,
266 N.W.2d 597 (Wis. 1978) ........................................................................... 39, 44, 45
Surita v. Hyde,
665 F.3d 860 (7th Cir. 2011) ........................................................................................ 26
United States v. Bloom,
149 F.3d 649 (7th Cir. 1998) ....................................................................................... 15
United States v. R. Enterprises, Inc.,
498 U.S. 292 (1991) ................................................................................................. 37, 38
White v. Stanley,
745 F.3d 237 (7th Cir. 2014) .................................................................................. 26, 27
Wis. Coal. for Voter Participation, Inc. v. State Elections Bd.,
605 N.W.2d 654 (Wis. Ct. App. 1999) .................................................................. 4, 14
Wis. Right to Life State PAC (WRTL) v. Barland,
664 F.3d 139 (7th Cir. 2011) .................................................................................. 20, 22
Statutes
42 U.S.C. 1983 ......................................................................................................... 32, 38
Wis. Stat. 11.26 ........................................................................................................ 30, 34
Wis. Stat. 11.27 ......................................................................................................... 30, 34
Wis. Stat. 11.38 ......................................................................................................... 30, 34
vii
Wis. Stat. 11.61(1)(b) ............................................................................................... 30, 34

Wis. Stat. 11.61(2) ......................................................................................................... 34
Wis. Stat. 19.01 ................................................................................................................ 7
Wis. Stat. 968.135 .............................................................................................. 10, 37, 40
Wis. Stat. 968.26 ...................................................................................................... 34, 48
Wis. Stat. 971.19(12)) .............................................................................................. 34, 55
Wis. Stat. 978.05(1) ....................................................................................................... 34
Rules
SCR 20:3.1(a) ................................................................................................................... 7
SCR 20:3.8 ........................................................................................................................ 7
Election Board Opinion 00-2 (2000)
(reaffirmed by GAB March 26, 2008) .............................................................. 4. 15, 21
Op. FEC 2011-12 (June 30, 2011) ................................................................................... 19
11 C.F.R. 109.21(d) ....................................................................................................... 21
11 C.F.R. 300.64(b) ........................................................................................................ 19

INTRODUCTION
The John Doe Proceedings were commenced in five different Wisconsin coun-
ties as a result of petitions and affidavits filed by five different district attorneys
in five different circuit courts. Those petitions were assigned to a state judge who
reviewed the petitions and ordered each of the five John Doe Proceedings to
commence based on her independent finding that there was a reasonable belief
that campaign-finance crimes had occurred in each of the five Wisconsin coun-
ties. This judge then appointed a former federal prosecutor to lead the five John
Doe Proceedings. These proceedings were supported at all times by Wisconsins
Governmental Accountability Board (the GAB), a non-partisan agency that is
charged with interpreting and enforcing Wisconsins campaign finance laws and
that is comprised of six retired state court judges. Notably, none of the Defend-
ants petitioned for the commencement of the John Doe Proceedings in the coun-
ties in which Plaintiffs are located; rather, district attorneys not party to this liti-
gation did so.
Plaintiffs were served with a subpoena in the course of the John Doe proceed-
ing specific to them, after a finding of probable cause was made by the John Doe
judge to issue that subpoena. Although Plaintiffs successfully quashed this sub-
poena, Plaintiffs selectively sued four career prosecutors and one career investi-
gator for personal damages on the basis of it. Very few of Plaintiffs allegations,
however, actually concern Defendants. Instead, Plaintiffs spin an epic yarn of a

years-long statewide conspiracy by Defendants to willfully suppress political
speech by conservative groups that they did not like, claiming that the legal the-
ory underlying the John Doe Proceedingsthat secret coordination of issue ad-
vocacy is a crime under Wisconsin lawwas used merely as a pretext to violate
Plaintiffs constitutional rights.
For this Court to accept Plaintiffs prodigious tale of bad-faith retaliation, it
would need to conclude that all of the individuals involved in the John Doe Pro-
ceedingsfive different Wisconsin district attorneys (two of whom are elected
Republicans), retired Wisconsin judges appointed to be the judges of these John
Doe Proceedings, a career federal prosecutor that was judicially appointed to be
the John Doe special prosecutor, career investigators, and a non-partisan state
agency comprised of six former Wisconsin judgesviolated their oaths of office
and willfully participated in state criminal proceedings for the sole purpose of
persecuting Plaintiffs and conservative groups for their political speech. The
Court would also need to reach this conclusion with knowledge that the GAB re-
affirmed a formal opinion in 2008 that supports the legal theory underlying the
John Doe Proceedings and with knowledge that the only Wisconsin appellate de-
cision directly on point expressly concluded that coordinated issue advocacy is
subject to regulation under Wisconsin law. Considering this and the wealth of
federal case law that also supports the legal theory underlying the John Doe Pro-
ceedings, Plaintiffs bad-faith narrative must be rejected.
When Plaintiffs pretext theory is laid bare and reduced to what it isa gross
mischaracterization of the facts underlying lawfully commenced state criminal
proceedingsthe district courts preliminary injunction must be vacated and all
of Plaintiffs claims dismissed.
ARGUMENT
I. The Preliminary Injunction Must Be Reversed.
A. Plaintiffs Brief Relies on Misleading Factual Statements and Un-
reasonable Inferences of Bad Faith.
Plaintiffs factual discussions
1
consist of imaginative speculation as to De-
fendants ulterior motives, notwithstanding a record that demonstrates Defend-
ants objectively lawful conduct. In order to manufacture partisan motive in sup-
port of their bad faith-retaliation claim, Plaintiffs either misrepresent the factual
record or willfully ignore it. For instance, despite the fact that Plaintiffs were on-
ly served a single subpoena, which they successfully quashed, Plaintiffs now re-
1
Plaintiffs brief repeatedly cites to its own allegations and dubious internet postings as evi-
dence. Indeed, many of their facts especially the most scandalous - rely exclusively on
R.1their unverified complaint. See e.g., Resp. Br. at 99 (allegation, without any reference to a
specific defendant, that some of this information [regarding the John Doe proceedings]
reached the public through direct or indirect selective leaks from the DAs Office); id. at 101
(citing internet postings that allegedly show coordination with a candidate although no
candidate is mentioned in some of those postings as evidence of Defendants disparate treat-
ment of conservative groups).
quest that this Court take judicial notice of the fact that is not Soviet Russia.
Resp. Br. at 59.
Plaintiffs resort to such rhetorical gimmicks because the relief they seek is so
extraordinary and the objective legal reasonableness of Defendants conduct is so
clear. The evidence demonstrates that the John Doe criminal proceedings at issue
were:
(1) Commenced in direct consultation with the non-partisan GAB
upon that agencys review of the evidence for the sole purpose of
enforcing state campaign finance law, R.104 13;
(2) Supported by a unanimous vote by the nonpartisan GAB, R.110
Ex. A;
(3) Supported by published state case law and formal agency opin-
ions, specifically Wis. Coal. for Voter Participation, Inc. v. State Elec-
tions Bd. (WCVP v. SEB), 605 N.W.2d 654 (Wis. Ct. App. 1999) and
Op.El.Bd. 00-2, at 8-13 (2000) (reaffirmed by GAB March 26,
2008), R.110, Ex. A;
(4) Petitioned for by both Republican and Democrat district attor-
neys, R.53, Ex. B-E, J, W, X;
(5) Petitioned for by district attorneys with the specific request to
have judicially-supervised proceedings under the States criminal
John Doe Proceeding statute See R.53, Ex. B-E, J;
(6) Prosecuted by a judge-appointed, independent special prosecu-
tor, who has no current political affiliation but who had voted for
Governor Scott Walker, at the request of district attorneys from
both political parties
2
, R.53, Ex. S, R.117 10, R.110 Ex. M;
(7) Commenced by order of a state judge who found, based on her
review of the evidence and law, reason to believe that a crime
2
As another example of Plaintiffs mischaracterization of the evidence to fit their partisan narra-
tive, Plaintiffs describe a jointly-signed letter from a bipartisan group of district attorneys as on-
ly authored by District Attorney Chisholm. Resp. Br. at 18-19. The letter was actually signed by
five district attorneys. R.53, Ex. S, R.117 10, R.110 Ex. M
ha[d] been committed, in five different Wisconsin counties R.53,

Ex. K-O;
(8) Carried out through the issuance of subpoenas and search war-
rants, all approved and issued upon a finding of probable cause
by a John Doe Judge, who is not a party to this case and is not al-
leged to have any animus toward Plaintiffs, R.1 Ex. F at 1-2; and
(9) Supervised by a state judge as part of a proceeding where Plain-
tiffs were allowed to raise, and successfully did raise, constitu-
tional arguments before the judge, Resp. Br. 24-25, R.1 Ex. D.
Far from showing bad faith and retaliation, the conduct of the GAB and bipar-
tisan prosecutors here demonstrates careful adherence to the law and respect for
all prosecutorial protocols. Nonetheless, Plaintiffs brief resorts to factual misrep-
resentations and unreasonable inferences regarding nearly every aspect of the
Defendants conduct. The sections below detail some of the more egregious fac-
tual narratives Plaintiffs proffer.
Prior John Doe Proceedings. Plaintiffs fault the Milwaukee District Attor-
neys office for successfully obtaining six convictions, including felony embezzle-
ment, against several persons who engaged in criminal conduct while associated
with the Milwaukee County Executives Office. Resp. Br. at 14. Plaintiffs do not
point to a single prosecution as part of those other John Doe Proceedings that
was not successfully prosecuted, either through dismissal, directed verdict, or re-
versal of any conviction. See id. Indeed, the State Attorney General, a Republican,
has since acknowledged that his office supported [these convictions] in the ap-
pellate courts. R.1 Ex. B at 3 (Sep. App. 70). No court has ever drawn an infer-
ence of bad faith based on uniformly successful prosecutions. Nevertheless, that

is precisely the inference of bad faith that Plaintiffs urge this Court to make,
which is directly contrary to this Courts case law. See Collins v. Cnty. of Kendall,
807 F.2d 95, 101 (7th Cir. 1986) (discussing cases of bad faith and noting that an
inference of bad faith based on a plaintiffs complaint of multiple prosecutions is
limited to uniformly unsuccessful prosecutions (emphasis in original)).
Plaintiffs brief concedes, moreover, that those prior proceedings did not in
any way concern the Plaintiffs. Nor do those proceedings concern the campaign
finance violations at issue here. See Resp. Br. 10-14. Yet Plaintiffs still highlight
those prior successful prosecutions as a basis for inferring bad faith of the De-
fendants here, including Schmitz and Nickel, who were in no way involved in
those prosecutions.
3

Attorney General and GAB Involvement. Similarly, Plaintiffs attempt to col-
or the plainly reasonable conduct of the prosecutors as evidence of a partisan
agenda. For instance, District Attorney John Chisholm, a Democrat, sought early
on in the John Doe Proceedings to involve the State Attorney General, a Republi-
can. Resp. Br. at 16-17. Clearly, a politically-motivated and retaliatory prosecutor
would not surrender a proceeding to another office, much less one which is led
3
Plaintiffs consistently fail to refer to the Defendants individually or which alleged evidence is
specific to each of them. Instead, they merge Defendants into one prosecutorial entity with re-
spect to virtually every argument.
by a member of the opposing political party. Yet Plaintiffs describe this entirely
appropriate conduct as evidence of District Attorney Chisholms alleged pre-
text. The inference Plaintiffs urge is counterintuitive at best. It is indeed a bold
conspirator who would consult the State Attorney General and ask for his partic-
ipation in order to cover up his real motivation.
Along the same line, Plaintiffs initially alleged that Chisholm rejected the ad-
vice of the Attorney General and refused to consult the non-partisan GAB. See
R.1 93-94. The undisputed evidence shows, however, that Chisholm had re-
lied upon the GAB since the inception of the John Doe Proceedings in 2012. R.104
13. Rather than withdraw their false accusation that Chisholm refused to in-
volve the GAB, Plaintiffs stubbornly adhere to their tale of retaliation, now argu-
ing that Chisholms consultation of the nonpartisan GAB is itself evidence of
conspiracy and bad faith. Resp. Br. at 17.
Petitions for the John Doe Proceedings. Plaintiffs argue that the non-party
district attorneys made no independent consideration of the facts and law
when petitioning their respective circuit courts for a John Doe proceeding. Resp.
Br. at 17. Plaintiffs accuse the district attorneys (including Republican prosecu-
tors) of ignoring their oath of office and ethical obligations in commencing crimi-
nal proceedings when they personally signed and filed each petition for com-
mencement of the proceedings. See Wis. Stat. 19.01; SCR 20:3.1(a), 20:3.8. How-
ever, Plaintiffs arguments are contradicted by evidence already in the record.

The two district attorneys who petitioned for the John Doe Proceedings in the
counties in which Plaintiffs are located, and who have the sole authority to pros-
ecute potential criminal violations in those counties, declared explicitly that they
reviewed and evaluated independently the evidence in support of the their re-
spective petitions during a meeting with the GAB in 2013, prior to filing their pe-
titions. R.112, 113.
Commencement of the John Doe Proceedings. Plaintiffs ignore that each of
the five John Doe Proceedings was necessarily commenced by a judicial finding
of an objectively reasonable belief that a crime has been committed. Custodian of
Records for the Legislative Tech. Serv. Bureau v. State (In re John Doe), 689 N.W.2d
908, 909 (Wis. 2004) (emphasis added). In other words, if a judge determines that
a John Doe petition is based on an unreasonable subjective beliefwhich Plain-
tiffs entire action against Defendants is premised onthe judge cannot order the
commencement of the John Doe. Here, the John Doe judge made a determination
that each of the five district attorneys had an objectively reasonable belief that a
crime has been committed. Indeed, each order executed by the judge states: I
hereby find that there is reason to believe that violations of Wisconsin[s cam-
paign finance statutes] have occurred and that the crimes have been committed
within the jurisdiction of [the respective counties] and the jurisdiction of this
court. R.53, Ex. K-O (emphasis added). In addition, none of the Defendants peti-
tioned for the commencement of the John Doe Proceedings in the counties in
which Plaintiffs are located. See, e.g., R.1 Ex. C.
Appointment of Special Prosecutor. Plaintiffs seek an inference of bad faith
regarding the appointment of Francis Schmitz as special prosecutor, speculating
that the appointment was to provide a veneer of impartiality to the retaliatory
investigation. Resp. Br. at 7. However, Plaintiffs misrepresent the objective evi-
dence showing that both Republican and Democrat district attorneys sought
Schmitzs appointment, and that a judge made the appointment. R.53, Ex. S,
R.110 Ex. M. In addition, Plaintiffs ignore the undisputed averment of the special
prosecutor that he has no political affiliation at this time, that he was once a Re-
publican, that he voted for Governor Walker, and that he was approached by the
nonpartisan GABnot by any district attorneyto lead the proceedings. R.117
6-8, 10-12. Directly contradicting Plaintiffs argument that the special prosecu-
tor plays only a token role in the proceedings, Special Prosecutor Schmitz has
averred, In my role as a special prosecutor, while I have sought input and coun-
sel from, others involved in the investigation, I have made the final decisions on
what actions to take and the content of pleadings and other filings. R.117 20.
Plaintiffs Lawyers Were Served With a Single Subpoena After a Finding of
Probable Cause. Plaintiffs fail to acknowledge that the only retaliatory action
10
they allege is specific to them is a single subpoena that was served on their law-
yers in October 2013, which advised them that they could challenge the subpoe-
na for any reason. R.l 139, 184, Ex. F. Plaintiffs also fail to acknowledge that
the subpoena was issued by a judge, who necessarily found probable cause sup-
porting its issuance. In re John Doe, 689 N.W.2d at 909 (The necessary link be-
tween the documents requested and the suspected criminal activity under inves-
tigation is thus shown, affording probable cause to believe that the documents
sought will produce evidence relevant to potentially criminal activity, as re-
quired by Wis. Stat. 968.135. (emphasis added)).
Plaintiffs Homes Were Not Raided. Plaintiffs argue as fact that unidenti-
fied armed officers conducted an unspecified number of raids at unidenti-
fied homes of Plaintiffs unidentified associates. Resp Br. at 19. Plaintiffs
now fault the Defendants for not challenging these allegations. The fact is Plain-
tiffs were subpoenaed as part of the John Doe Proceeding. See Resp. Br. at 20.
Their homes and property were not raided.
The only evidence in the record referencing these raids comes from Plain-
tiff OKeefes declaration. See Resp. Br. at 19 (citing R.7 Ex. B). In that declaration,
OKeefe claims that he somehow learned in the Fall of 2013through some
unknown meansthat unidentified armed sheriff deputies arrived at several
[unidentified] homes across the state, shining floodlights on them. R.7 Ex. B
11
49. The district court refused Defendants an opportunity to cross-examine

OKeefe on his claim, but it is clear that these unidentified raided homes did
not include his own. It is also clear that none of the Defendants here are those un-
identified sheriff deputies who arrived at unidentified homes across the
state.
B. Plaintiffs Mischaracterize the District Courts Preliminary Injunction
Order and Abandon Claims within their Complaint to Legitimize the
Injunction.
Although Defendants stand by their opening brief as to the factors supporting
the vacation of the district courts preliminary injunction, Defendants offer here a
few reply points in demonstrating that the district court incorrectly determined
that the Plaintiffs had any likelihood of success on their claims.
As a matter of law, bad faith cannot be found where the undisputed evidence
shows: (1) the prosecutors sought judicially-supervised John Doe Proceedings;
(2) the prosecutors at the inception of those John Doe Proceedings consulted with
the non-partisan state agency (the GAB) responsible for interpreting and enforc-
ing the states campaign finance law regarding those proceedings; (3) the prose-
cutors sought to turn over the proceeding to the Republican State Attorney Gen-
eral for prosecution; (4) the prosecutors involved other district attorneys of both
political parties in the proceedings; and (5) the five district attorneys involved
requested that the proceedings be led by an independent special prosecutor who
12
voted for the very candidate that is allegedly at the center of proceedings. The
evidence demonstrates that, far from prosecuting a political vendetta in bad
faith, Defendants took every step available to them to enforce the lawas is their
sworn dutywhile attempting to preclude baseless accusations of partisanship
such as those Plaintiffs now proffer.
No one before this lawsuit was filed ever asserted that the proceedings lacked
an objective basis in law or factnot the judge who commenced the John Doe
Proceedings, not the non-partisan agency whose board of former judges unani-
mously endorsed the proceedings, not the State Attorney General who was ad-
vised of the proceedings, not any of the district attorneys who petitioned for the
proceedings, and not the special prosecutor who was appointed to lead the pro-
ceedings. Even the John Doe judge who quashed the subpoena that was served
on the Plaintiffs acknowledged that the States theory underlying the John Doe
Proceedings was an arguable interpretation of Wisconsins statutes and that an
appellate court may agree with the States theory. R.1 Ex. D (Sep. App. 102-05).
Nevertheless, in an unprecedented constitutional analysis of Plaintiffs bad faith-
retaliation claims, the district court found that Defendants commenced the John
Doe Proceedings in bad faith without any hope of obtaining a valid conviction.
Plaintiffs now make several unsuccessful arguments to legitimatize that decision.
13
First, Plaintiffs argue that the district court made factual findings of bad faith
to support its conclusion. However, the district courts background section is
devoid of any facts supporting a reasonable inference of Defendants bad faith. If
there was any doubt as to whether the district courts analysis included factual
findings, the district court removed that doubt in a later order, where it admitted
that the facts were unimportant to its strictly legal analysis regarding the proper
scope of campaign finance regulation. R.243 at 13 (In other words, the Courts
ruling would have been the same even in the absence of this evidence because, as
the Court held, regulation of coordinated issue advocacy is unconstitutional.)
Second, Plaintiffs devote over twenty pages of their brief, weaving together fif-
ty years of court cases, to explain why Defendants coordination theory is inva-
lid. Resp. Br. 73-98. Yet, despite (and perhaps demonstrated by) that lengthy dis-
cussion, the Plaintiffs are unable to point to a single case that directly rebuts that
coordination theory, which they claim is indicative of bad faith. Indeed, there is
not a single decision the Plaintiffs or the district court have pointed to where a
court held that secret issue advocacy coordination between a 501(c)(4) organiza-
tion and a candidate is free from any and all regulation.
Tellingly, Plaintiffs avoid discussing this Courts recent bad faith case, Mulhol-
land v. Marion Cnty Election Board, 746 F.3d 811 (7th Cir. 2014). That case demon-
strates that a bad faith claim that is based on a challenge to a legal theory is lim-
14
ited to exceptional circumstances where the legal theory has been previously
and explicitly held invalid. Perhaps more telling, Plaintiffs concede in their brief
that the most relevant case, WCVP v. SEB, 605 N.W.2d 654, 659 (Wis. Ct. App.
1999)the only Wisconsin state case that directly concerns coordinated issue ad-
vocacy
4
supports Defendants legal theory. Resp. Br. at 81-82. That concession
directly contradicts other portions of their brief where Plaintiffs argue that De-
fendants legal theory is not even arguably supported by Wisconsin law. Resp.
Br. at 96. Considering the undisputed fact that Defendants coordination theory
is likewise supported by the state agency responsible for interpreting Wiscon-
sins campaign finance laws, there is simply no basis for disparaging Defendants
here for bad faith conduct.
5

4
Although not relevant to Plaintiffs claims of bad faith against Defendants, Plaintiffs criticism
of Wisconsin Coalition is misplaced. Plaintiffs fault that court for not focusing on the distinction
between issue and express advocacy and, rather, making an intent and circumstance-based
inquiry.Resp. Br. at 82. However, the court did not make an intent-based inquiry. The focus
was on the level of coordination between a candidate and the so-called independent organiza-
tion regarding the expenditure at issue. That focus is indeed consistent with Supreme Court
precedent and, therefore, exactly what the court of appeals should have focused on. See
McConnell v. Fed. Election Commn, 540 U.S. 93, 190 (2003) (rejecting plaintiffs argument that the
Supreme Court drew a constitutionally mandated line between express advocacy and so-called
issue advocacy and explaining that the the express advocacy restriction [is] an endpoint of
statutory interpretation, not a first principle of constitutional law.) Indeed, the McConnell
Court clarified that its precedent has never held that a statute that was neither vague nor over-
broad would be required to toe the same express advocacy line. Id. at 192. The Supreme Court
in Citizens United has since clarified that disclosure requirements could sweep more broadly
than speech that is the functional equivalent of express advocacy. 558 U.S. 310, 36869 (2010).
In the end, the Supreme Court has rejected Plaintiffs argument that there is some type of consti-
tutional command for a court to focus on the distinction between issue and express advocacy.
5
Remarkably, Plaintiffs brief fails to discuss the Defendants and the GABs reliance on the fed-
eral case directly on-point regarding the constitutionality of their coordination theory. See
FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C. 1999) (Contrary to the characterization of the
15
Finally, Plaintiffs entirely abandon the claims underlying their motion for pre-
liminary injunction and now ask this Court to affirm the district courts prelimi-
nary injunction as a direct constitutional challenge to Wisconsin statutes. Simply
put, Plaintiffs now ask this Court in a response brief on appeal to rule on the basis
of claims that are not in their Complaint and that Plaintiffs previously represent-
ed are not part of this lawsuit. Dck. 8 at 8 (Plaintiffs right under the First and
Fourteenth Amendments to coordinate political expenditures so long as they do
not engage in express advocacy [is] a right that is not the subject of any claim in
this case.). However, Plaintiffs request goes against this Courts well-
established rule that constitutionality of a statute should not be considered un-
less such adjudication is essential to a determination of the matter before the
court. United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998) ([F]ederal judges
[are] to explore all non-constitutional grounds of decision before addressing con-
stitutional ones.); Kelly v. Illinois Bell Telephone Co., 325 F.2d 148, 151 (7th Cir.
1963) (Questions of constitutionality are not to be decided unless such adjudica-
tion is unavoidable.)
The district courts injunction based on bad faith must be vacated. If, for no
other reason, it must be vacated for the sake of vindicating the Defendants here
when the record cannot support such a conclusion of bad faith.
Coalition and amici, the FEC hardly invented the coordination theory on its own) (omitting
citations); cf. El.Bd.00-2).
16
C. Plaintiffs Concede the Type of Conduct Being Investigated by the

John Doe ProceedingsCoordinated ExpendituresCan be Regulated
Under the First Amendment.
Plaintiffs repeatedly concedealbeit in circumspect, oblique and contradicto-
ry phrasingthe simple truth that coordinated expenditures, which are the focus of
the John Doe Proceedings, can be regulated under the First Amendment. See, e.g.,
Dkt. 130 at 74 (Expenditures for political communications . . . may rarely if ever
be limited.); id. (the [Buckley] Court recognized that certain expenditures coor-
dinated with a candidate may also be restricted, to prevent circumvention of con-
tribution limits); id. at 80-81 (quoting Colorado II as holding that government
may regulate parties coordinated campaign-related expenditures because they
are the functional equivalent of contributions); id. at 82 (quoting Buckley for the
proposition that [c]ontribution limits (if that is how restrictions on coordinated
issue advocacy are to be viewed) may be upheld where the government demon-
strates that they are closely drawn to match the governments interest in pre-
venting quid-pro-quo corruption and its appearance and to avoid unnecessary
abridgment of associational freedoms); id. at 86 (citing Buckley for the proposi-
tion that [r]estriction of coordinated expenditures is another prophylaxis, to
prevent circumvention of contribution limits); id. at 93 (a coordinated expendi-
ture may be treated as an in-kind contribution to a candidate only if, at the abso-
lute least, it is undertaken for the purpose of influencing votes in that candidates
17
race) (emphasis in original); id. at 97 (whatever legitimate interest the govern-

ment may have in regulating coordinated expenditures, it has no interest at all in
regulating contributions other than to candidates and parties).
By conceding that coordinated expenditures can be regulated under the First
Amendment, Plaintiffs must abandon their cornerstone allegation that the coor-
dination theory proposed [by Defendants] cannot extend to its activities even if
Plaintiffs coordinated expenditures (i.e., coordinated issue advocacy) with a candi-
date, a candidates campaign committee or a candidates agents. R.1 99 (Sep.
App. 30-31); cf. Compl. Ex C at 27-28 (describing the legal predicate of Defend-
ants coordination theory and that [t]he United States Supreme Court and other
federal and district courts have consistently upheld the proposition that coordi-
nated expenditures are contributions subject to campaign finance limitations and
disclosure requirements in the context of First Amendment challenges to cam-
paign finance regulations) (emphasis added) (omitting cases).
Simply put, because coordinated expenditures are treated as contributions,
the express advocacy test the Buckley Court applied to independent expenditures is
no longer applicable to the conduct being investigated here. Nor is the strict
scrutiny standard of review appropriate when analyzing the laws supporting
an investigation of such coordinated expenditures. For this reason, this Courts
analysis in Barland II of whether independent expenditures can be regulated under
18
Wisconsin law has little analogous value to this case. Indeed, Plaintiffs concede
that a different standard of review must be applied here. Resp. Br. at 79 (limits
on contributions are subject to lesser scrutiny). However, because Plaintiffs are
compelled to make such concessions, they now attempt to confuse this Court by
(1) claiming that the focus of the John Doe Proceedings was actually not on coor-
dinated expenditures or, alternatively, (2) claiming that there is no hard evidence
that coordinated expenditures actually occurred.
1. Plaintiffs Mischaracterize the Type of Illegal Coordinated Conduct the
John Doe Proceedings Were Commenced to Investigate.

Within only a few sentences of their introduction, Plaintiffs set forth false
analogies and mischaracterize the type of illegal coordinated conduct the John
Doe Proceedings were commenced to investigate. First, Plaintiffs claim that Pres-
ident Barack Obama and his campaign committees fundraising activities for Pri-
orities USA Actiona Super Pac supporting Democratic candidates
represent the same type of activities that are being investigated by the John Doe
Proceedings. Resp. Br. at 1 (Defendants launched and aggressively pursued a
secret criminal investigation . . . on the view that this kind of coordination be-
tween a candidate and supporters is illegal.). Plaintiffs characterization is false.
The John Doe Proceedings were not commenced to simply investigate a candi-
date or his campaign committees public fundraising activities for outside
groups, like a Super PAC. Indeed, a federal candidate can raise money for such
19
outside organizationseven by appearing at a Super PAC fundraising eventas

long as the candidate does not ask for money beyond the federal source and
amount limitations.
6
See, e.g., Op. FEC 2011-12 (June 30, 2011); see also 11 C.F.R.
300.64(b) (restrictions on fundraising by candidates). Second, Plaintiffs claim that
the John Doe Proceedings are simply based on an advocacy groups communi-
cation with a candidate. Id. This too is false, as the John Doe Proceedings were
not focused on an advocacy groups mere contact with a candidate or his cam-
paign committee.
Specifically, the John Doe Proceedings were commenced to focus on coordinat-
ed expendituresin the form of coordinated issue advocacy
7
that were secretly
coordinated between a candidate, the candidates campaign committee and the
candidates agents and various outside groups, including 501(c)(4) organizations,
in order to circumvent state contribution limits and reporting requirements. With
respect to Plaintiff OKeefe, the Iowa County District Attorney petitioned for a
John Doe Proceeding in his county because OKeefe is believed to have coordi-
nated political campaign advertising [i.e., expenditures] between the Friends of
6
Unlike 501(c)(4) organizations, Super PACs need to disclose their donors.
7
Plaintiffs do not contest that issue advocacy is an expenditure in this regard. See Dkt. 130 at
80 (Speech on the issues is an expenditure in every respect that Buckley regarded as rele-
vant.). That said, Plaintiffs argument that Defendants cannot identify any issue advocacy ad-
vertisements produced by WCFG for a candidates campaign is meritless. The evidence indi-
cates that a candidate or his campaign committee diverted money into WCFG so that the money
could secretly be spent on campaign-related advocacy. The manner in which that money was
spent is at the core of what the John Doe Proceedings were commenced to investigate.
20
Scott Walker, a campaign committee, and . . . Club for GrowthWisconsin. R.53

Ex. C Aff. 3, 5. Unlike independent expenditures, coordinated expenditures related
to political campaign advertising can be regulated, which this Court acknowl-
edged as recently as three years ago. See Wis. Right to Life State PAC (WRTL) v.
Barland, 664 F.3d 139, 155 (7th Cir. 2011) (the First Amendment permits the gov-
ernment to regulate coordinated expenditures) (emphasis in original) (citing Col-
orado II, 533 U.S. at 465).
Moreover, there are no overbreadth or vagueness issues here insofar as
Plaintiffs attempt to mischaracterize Defendants conduct as criminalizing any
unreported communication between an outside group and a candidate or his
campaign committee. Rather, the coordination standard set forth by the GAB,
and which has been in force in Wisconsin since 2001, specifically describes the
type of coordination that is subject to state regulation:
The communication is made at the request or suggestion of the cam-
paign (i.e., the candidate or agents of the candidate); or, in the ab-
sence of a request or suggestion from the campaign, if the coopera-
tion, consultation or coordination between the two is such that the
candidate or his/her agents can exercise control over, or where there
has been substantial discussion or negotiation between the cam-
paign and the spender over, a communications: (1) contents; (2) tim-
ing; (3) location, mode, or intended audience (e.g., choice between
newspaper or radio advertisement); or (4) volume (e.g., number of
copies of printed materials or frequency of media spots). Substantial
discussion or negotiation is such that the candidate and the spender
emerge as partners or joint venturers in the expressive expenditure,
but the candidate and spender need not be equal partners.
21
El.Bd.00-2 at 12. This Christian Coalition standard has likewise been imported
into the FECs definition of coordinated communications. See 11 C.F.R.
109.21(d). In short, the John Doe Proceedings are supported by a valid and con-
stitutional legal theory; accordingly, there is a reasonable expectation of obtain-
ing a valid conviction if those proceedings establish probable cause that secret
coordinated issue advocacy actually occurred.
2. Hard Evidence of Coordinated Expenditures

Contrary to Plaintiffs assertion that Defendants declined multiple opportu-
nities to introduce any evidence contravening Plaintiffs [allegations], (Dkt. 130
at 20-21), the record itself shows that it was the Plaintiffs that shied away and ob-
jected to the evidentiary hearing Defendants requested the district court to hold
in order to contravene Plaintiffs allegations:
Plaintiffs position is that the May 7 hearing should be an oral argu-
ment on the Parties submissions. The Parties have submitted exten-
sive declarations and documentary evidence. . . .
Defendants position is that Plaintiffs cannot sustain their burden of
proof in the absence of live witnesses as Plaintiffs allege that the
conduct of the Defendants is motivated by partisanship, animus, po-
litical purposes and bad faith. Defendants dispute these allegations
and intend to put Plaintiffs to their proof. Defendants will call wit-
nesses to rebut Plaintiffs allegations and to defend against Plaintiffs
attacks on Defendants declarations and credibility. . . .
R.136 at 2 (Joint Civil L.R.7(h) Expedited Non-Dispositive Motion for a Pretrial
Conference). Such an evidentiary hearing would have provided the opportunity
22
for the Defendants to demonstrate why five different district attorneys and the
John Doe Judge found a reasonable belief that a crime (i.e., secret coordinated is-
sue advocacy) occurred. Contrary to Plaintiffs claim, Defendants need not justify
the commencement of a state criminal proceeding by identifying evidence that
demonstrates that a crime, in fact, had been committed. Indeed, it is the very
purpose of the John Doe Proceeding to obtain that evidence after a judicial find-
ing that there is a reasonable belief a crime occurred. Judge Kluka ordered the
commencement of the John Doe Proceedings upon a finding of that reasonable
belief.
That said, Defendants respond briefly to Plaintiffs argument that much of the
evidence collected by the John Doe Proceedings dates back to 2011 before the gu-
bernatorial recall election officially began. However, the evidence dating from
2011 suggests a course of conduct that is highly relevant to what took place in the
2012 gubernatorial recall elections. In 2011, even this Court knew that gubernato-
rial recall effort was in full swing. Wis. Right to Life State PAC v. Barland, 664 F.3d
139, 149 (7th Cir. 2011) (Indeed, the body politic in Wisconsin is experiencing
something of a perpetual campaign; efforts are currently underway to force the
governor and four state senators to stand in recall elections.) Moreover, the def-
inition of candidate under Wis. Stat. 11.01(1) is not as temporally limited as
23
Plaintiffs appear to suggest. Plaintiffs cannot categorically deny the relevance of

evidence dating from 2011 to the gubernatorial recall elections held in 2012.
II. Defendants Are Entitled to Qualified Immunity
A. Defendants Did Not Forfeit Their Qualified Immunity Defense.
Notwithstanding an extensive briefing history and the repeated notice De-
fendants provided to the district court and Plaintiffs that they were each assert-
ing qualified immunity, Plaintiffs now make the extraordinary claim that De-
fendants forfeited this defense on appeal because they did not specifically
and adequately present it below. Dkt. 130 at 55. Plaintiffs argument, however,
falls well short of this Courts standard for determining that a party has forfeited
an argument on appeal. Issues are not waived on appeal when they were raised
before the district court and the district court had the opportunity to rule on the
issue. Lawrence v. Astrue, 337 Fed. Appx. 579, 584 (7th Cir. 2009). There was no
waiver here because each Defendant raised qualified immunity as an affirmative
defense at the earliest opportunity and argued that Plaintiffs rights at issue were
not clearly established, the defense was fully briefed by the parties and ruled on
by the district court, and there is no prejudice to Plaintiffs.
First, Defendants raised the defense of qualified immunity at the earliest op-
portunity by filing their respective motions to dismiss on March 12, 2014. R.40,
R.43, R.52. Defendants then raised qualified immunity again in their respective
answers to Plaintiffs Complaint. R.160 at 57, R.164 at 29, R.167 at 25. Thus, as a
24
matter of law, Defendants did not waive the defense of qualified immunity. See
Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014) (reversing district courts
holding that defendants waived qualified immunity because defendants raised
the defense of qualified at the very first opportunity . . . raised it again later in
their answer . . . [a]ccordingly, as a matter of law, defendants did not waive the
defense of qualified immunity) (citing English v. Dyke, 23 F.3d 1086, 1089 (6th
Cir. 1994)).
Second, the qualified immunity defense was raised by each Defendant with
sufficient particularity. In their motion to dismiss briefs, each Defendant assert-
edin multi-paged and separately titled subsections of their respective briefs
that he was entitled to qualified immunity. R.43 at 9-10, R.52 at 25-27, R.54 at 34-
37. In addition, in support of these qualified immunity arguments, Defendant
Schmitz referred the district court to the brief attached to Plaintiffs Complaint,
R.1 Ex. C (States Consolidated Response to Motions to Quash Subpoenas Duces
Tecum), that Defendant Schmitz had filed with the John Doe Judge in opposi-
tion to Plaintiffs motion to quash the subpoena that was served on Plaintiff
25
OKeefe in October of 2013.

8
That brief, as Defendant Schmitz argued, detailed
the validity and constitutionality of the primary basis upon which Plaintiffs
allege a constitutional injurythe subpoena Judge Barbara Kluka issued to
Plaintiff OKeefe
9
and demonstrate[d] that the constitutional right at issue was
not clearly established at the time of the alleged violation. R.43 at 10. This brief
outlined in detail the legal predicate for the John Doe investigation and, in par-
ticular, why coordinated expenditures are treated as contributions under Wis-
consin law and subject to the same limits and disclosure requirements. R.1 Ex. C
at 4-5 (Sep. App. 76-77).
10
Similarly, Defendant Nickel argued that he was enti-
tled to qualified immunity because his actions did not violate a clearly estab-
lished statutory or constitutional right of which a reasonable person would have
known. R.54. at 25. Specifically, he argued there was no basis to find that he
knowingly violated Plaintiffs rights simply by virtue of the fact that he partici-
pated in the John Doe investigation because [a]s Judge Peterson himself noted,
8
Plaintiffs attached this brief to their Complaint to support their characterization of the theo-
ry underlying the John Doe Proceedings: Defendants argue that R.J. Johnsons ties with
FOSW and with other social welfare organizations during the recall campaign, including
WCFG, were sufficient to render the activities of these organizations coordinated with FOSW.
Under Defendants theory, by operation of law, these organizations either (1) became subcom-
mittees of FOSW, and so were subject to the same limitations applicable to FOSW, or (2) their
expenditures became contributions to FOSW. R.1 97.
9
Plaintiffs do not appear to allege that WCFG was served a subpoena or was subject to a search
warrant.
10
Plaintiffs fail to respond to Defendants argument that, because it was attached to the com-
plaint, this exhibit represents a built-in-defense that the law was not clearly established at
the time Plaintiff OKeefe was issued the complained-of subpoena. Br. at 41 n.8. (citing Hamilton
v. OLeary, 976 F.2d 341 (7th Cir. 1992).

26
the States legal theory was not frivolous and was an arguable interpretation of
the campaign finance statutes. Id. at 26.
Third, the district court addressed the qualified immunity arguments in its or-
der denying Defendants motions to dismiss. R.83 at App. 17; see Surita v. Hyde,
665 F.3d 860, 880 (7th Cir. 2011) (The district court addressed the qualified im-
munity issue . . . . Hence, we will not find the qualified immunity issue waived
when the district court did not.).
Fourth, there is no prejudice to Plaintiffs regarding the qualified immunity is-
sue because they had the opportunity to fully brief the issue in the district court
and before this Court. White v. Stanley, 745 F.3d 237, 239 (7th Cir. 2014) ([w]e en-
force waiver in part to prevent prejudice to the opposing party). In their re-
sponse to the Defendants motions to dismiss, Plaintiffs readily acknowledged
that all [Defendants] rais[ed] qualified immunity defenses. R.71 at 49. Plain-
tiffs opposition brief contains fifteen pagesmore pages than Plaintiffs now de-
vote to the qualified immunity issue on appealaddressing Defendants claims
of qualified immunity and even contains a separate subsection in which Plaintiffs
argue that Defendants conduct violated clearly established law. R.71 at 35-50.
Thus, Plaintiffs were on notice of Defendants arguments and had the opportuni-
ty to address them. See Garofalo v. Village of Hazel Crest, 754 F.3d 428, 437 (7th Cir.
2014) (finding no waiver of affirmative defense first raised in summary judgment
27
brief because defendants had the opportunity to challenge this argument in

their own summary judgment submissions).
Indeed, this Court has held that a qualified immunity defense is preserved
even when defendants only mention[ed] in passing that [they] should be cov-
ered by qualified immunity, because plaintiff was on notice . . . that they
planned to assert qualified immunity, it was obvious that [plaintiff] would suf-
fer no prejudice by allowing the defense here. Stanley, 745 F.3d at 239 see also
Hernandez v. Cook Cnty. Sheriffs Office, 634 F.3d 906, 913-14 (7th Cir. 2011) ([t]he
defendants assertion in their opening brief of a qualified immunity defense was
unambiguous and because it is absolutely clear that the defendants underde-
veloped opening brief argument supplied adequate notice to the plaintiffs and
caused them no prejudice); Findlay v. Lendermon, 722 F.3d 895, 899 n.3 (7th Cir.
2013) (same).
11

For these reasons, Plaintiffs waiver argument is without merit.
11
The two cases Plaintiffs cite in support of their waiver arguments Pole v. Randolf, 570 F.3d
922 (7th Cir. 2009) and Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008) are inapposite. In Pole, this
Court held that a criminal defendant forfeited an ineffective-counsel argument because he did
not argue it in his habeas petition or his brief in district court. 570 F.3d at 937. In Kunz, this Court
affirmed the district courts judgment that an argument was not properly preserved because the
argument was not articulated until the partys reply brief. 538 F.3d at 682.

28
B. The Court Has Jurisdiction to Address The Qualified Immunity De-

fense Under The Collateral Order Doctrine.
Plaintiffs claim that this Court lacks collateral-order jurisdiction to consider
Defendants qualified-immunity defenses because they would not conclusively
determine[] the defendants claim of right not to stand trial on the plaintiffs alle-
gations. Resp. Br. at 4 (quoting Mitchell v. Forsyth, 47 U.S. 511, 527 (1985)). How-
ever, the Plaintiffs misapply Mitchell to this case. Mitchell held that an appealable
interlocutory decision must conclusively determine the disputed question,
and that [s]uch a decision is conclusive when the district court concludes that
the defendants actions violated clearly established law and are therefore not
within the scope of the qualified immunity. 47 U.S. at 527 (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). There is no question that is what the
district court did here when it answered the disputed questionthat Defend-
ants alleged participation in John Doe Proceedings that target coordinated issue
advocacy represents a clear, unlawful violation of Plaintiffs constitutional
rightsand held, accordingly, that Defendants alleged actions were not within
the scope of the qualified immunity: the defendants cannot seriously argue that
the right to express political opinions without fear of government retaliation is
not clearly established. R.83 at App. 17.
Nonetheless, Plaintiffs claim that four additional questions [would still] have
to be considered [by the district court] on remand before a qualified immunity
29
determination can be made: (1) whether the Milwaukee Defendants acted in re-
taliation for Plaintiffs political speech; (2) whether the Milwaukee Defendants
had any reason to believe Plaintiffs may have engaged in conduct violating Wis-
consin law; (3) whether Wisconsin law may be interpreted, consisted with the
First Amendment, to reach coordinated issue advocacy; or (4) whether Plaintiffs
advocacy actually violated Wisconsin law. Id. at 62. However, in claiming that
the district court must answer these four questions, Plaintiffs reveal a fundamen-
tal misunderstanding as to what questions need to be asked for this Court to de-
termine whether Defendants are entitled to qualified immunity.
12

First, it is irrelevant to the qualified immunity analysis whether the Milwau-
kee Defendants acted in retaliation for Plaintiffs political speech. Anderson v.
Creighton, 483 U.S. 635, 641 (1987) (holding that police officers subjective beliefs
. . . are irrelevant in qualified immunity analysis); Crawford-El v. Britton, 523 U.S.
574, 589, 590-91 (1998) ([E]vidence of improper motive is irrelevant on the issue
of qualified immunity . . . . even when the official conduct is motivated, in part,
by hostility to the plaintiff).
Second, this Court can easily determine that there was a reason to believe
Plaintiffs may have engaged in conduct violating Wisconsin law; indeed, that is
12
At minimum, Plaintiffs now appear to concede, with regard to the first two questions they
pose which only address the Milwaukee Defendants, that Schmitz and Nickel did not retali-
ate against Plaintiffs for their political speech and that their qualified immunity claims can now
be resolved by this Court.
30
exactly what the John Doe Judge found when she commenced each of the five
John Doe Proceedings and issued subpoenas and search warrants in furtherance
of those proceedings. In particular, with regard to Plaintiff OKeefe, the District
Attorney of Iowa County supported his petition to commence a John Doe Pro-
ceeding in Iowa Countywhere OKeefe resideswith an affidavit that specifi-
cally identified OKeefe as an individual who was believed to have coordinated
political campaign advertising between the Friends of Scott Walker . . . and a
501(c)(4) organization known as Club for GrowthWisconsin in violation of
Wisconsin campaign-finance laws. R.53 Ex. C, Aff. 5. The John Doe Judge, in
turn, commenced a John Doe Proceeding in Iowa County because she found
reason to believe that violations of Wisconsin Statutes 11.26, 11.27, 11.38 and
11.61(1)(b), pertaining to Limits on Campaign Contributions, False Campaign
Reports, and Contributions by Corporations, may have occurred and that the
crimes have been committed within the jurisdiction of Iowa County and the ju-
risdiction of this court. R.53 Ex. L.
Third, Plaintiffs cannot dispute that Wisconsin law may be interpreted, con-
sistent with the First Amendment, to reach coordinated issue advocacy. That is
precisely what Wisconsins State Election Board and its successor, the GAB, has
been advising Wisconsin citizens since at least 2001. Dkt. 28 Ex. B at 12 (Sep.
App. 131) (speech which does not expressly advocate the election or defeat of a
31
clearly identified candidate may, nevertheless, be subject to campaign finance

regulation); see also R.53 Ex. A. 10, 13 (2014 affidavit in which GABs director
and general counsel avers that [i]n contradiction of the stated legislative pur-
pose of Wisconsins campaign finance laws, affirming the John Doe Judges in-
terpretation of Wisconsin law regarding coordination would result in [a] candi-
dates direct control over millions of dollars of undisclosed corporate and indi-
vidual contributions without limitations on the amounts accepted).
Fourth, the question whether Plaintiffs advocacy actually violated Wisconsin
law is irrelevant to the issue of whether Defendants are entitled to qualified
immunity for actions taken to further John Doe Proceedings that were still ongo-
ing to determine if a violation of Wisconsin campaign finance law had occurred.
Simply put, the only question this Court needs to address with regard to De-
fendants qualified immunity is the crucial question . . . whether the [Defend-
ants] acted reasonably in the particular circumstances that he or she faced.
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); see also Crawford-El, 523 U.S. at
574, 590-91(proper focus of the qualified immunity analysis should be on the ob-
jective legal reasonableness of an official's acts) (emphasis added). This Court can
answer that question now. Plumhoff, 134 S.Ct. at 2019 (deciding legal issues of
this sort is a core responsibility of appellate courts, and requiring appellate
courts to decide such issues is not an undue burden).
32
C. Broad Allegations of Bad Faith Targeting Cannot Defeat a Claim For

Qualified Immunity When There Was An Objectively Reasonable
Basis For The John Doe.
Plaintiffs argue that the [qualified immunity] inquiry must be undertaken in
light of the specific context of the case, . . . or, in other words, that it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted. Dkt. 60 (quoting Brusseau v. Haugen, 543 U.S. 194, 198 (2004)). De-
fendants agree. Accordingly, and because Plaintiffs cannot set forth constitution-
al claims on behalf of other individuals or organizations,
13
the Court must focus
on the specific constitutional injury allegedly suffered by Plaintiffs.
1. Neither Plaintiff Was Required to Produce Documents.

Here, Plaintiffs allege that OKeefe first learned of the [John Doe Proceed-
ings] on October 3, 2013, when he was served a subpoena. R.1 122.
14
That sub-
poena was issued by Judge Kluka on September 28, 2013, and required OKeefe
to appear at the Dane County Courthouse, in Madison, Wisconsin, on October
29, 2013, and to bring with him documents that were defined in Attachment A.
13
In Ray v. Maher, 662 F.3d 770, 773-74 (7th Cir. 2011), this Court observed that a bedrock prin-
ciple of 1983 law is the personal nature of a 1983 claim; see, e.g., Russ v. Watts, 414 F.3d 783,
790 (7th Cir. 2005) (holding that parents may sue only for constitutional injury to themselves,
not for constitutional injuries to their son); see also Massey v. Helman, 196 F.3d 727, 739 (7th Cir.
1999) (a litigant must assert his own legal rights and cannot assert the legal rights of a third
party.); Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) ([r]ights personal to their hold-
ers may not be enforced by third parties). Thus, Plaintiffs lack standing to assert the constitu-
tional rights of other individuals or entities involved in the John Doe Proceedings.
14
Plaintiffs attached this subpoena to their Complaint. R.1 Ex. F. The subpoena indicates that
the subpoena was not served on OKeefe but to a law firm. Id. at 1. Plaintiffs have not alleged
that WCFG was served a subpoena or other legal process and have not alleged which of the five
John Doe Proceedings directly targets WCFG.
33
R.1 Ex. F. In lieu of appearing himself, the subpoena authorized OKeefe to pro-
duce the requested documents to Defendant Schmitz. Id. at 2. The subpoena also
notified OKeefe that he could file challenge papers with Judge Kluka if he
elect[ed] to challenge this Subpoena for any reason. Id. That is exactly what
Plaintiffs did, resulting in the quashing of the subpoena. R.1 Ex. D. Thus, neither
Plaintiff has produced documents in relation to the John Doe Proceedings. Id.
2. Defendants Did Not Petition For The John Doe Proceedings Against
Plaintiffs.

None of the Defendants petitioned for the commencement of the John Doe
Proceedings in the counties in which Plaintiffs are located. Specifically, with re-
gard to Plaintiff OKeefe, it was the Iowa County District Attorney, Larry Nelson,
who petitioned for its commencement. R.1 Ex. C. Mr. Nelson filed his petition af-
ter having had occasion to review information involving a person named Eric S.
OKeefe . . . a resident of the County of Iowa and after coming to the independ-
ent belie[f] that further information concerning possible crimes occurring under
Chapter 11 of the Wisconsin Statutes can be revealed utilizing a John Doe Pro-
ceeding. Id. at 1. Mr. Nelsons petition also requested the John Doe Proceeding
be secret. Id. at 1-3. In support of his petition, Mr. Nelson attached an affidavit in
which he averred the following:
I make this Affidavit in support of a request for commencement of a
John Doe investigation concerning alleged Campaign Finance viola-
tions committed by Eric S. OKeefe . . . By operation of law at Wis-
34
consin Statutes 11.61(2), 971.19(12) and 978.05(1), the prosecutors

and the courts of the defendants county of residence [Iowa County]
have the responsibility to handle violations of Chapter 11 of the
Wisconsin Statutes.

. . . Mr. OKeefe is believed to have coordinated political campaign
advertising between the Friends of Scott Walker, a campaign com-
mittee, and a 501(c)(4) organization known as Club for Growth
Wisconsin.

For these reasons, I respectfully submit there is reason to suspect
that a criminal violation of the Wisconsin Statutes has occurred and
there is likewise reason to suspect that such violations have taken
place involving a person who is a resident of Iowa County, making
him subject to the jurisdiction of the Iowa County Courts and the
Iowa County District Attorneys Office.

Id. at 4.
On August 27, 2013, Judge Kluka granted Mr. Nelsons petition and com-
menced the John Doe Proceeding in Iowa County:
Based upon the Petition of District Attorney Larry E. Nelson and
his supporting Affidavit, I hereby find reason to believe that viola-
tions of Wisconsin Statutes 11.26, 11.27, 11.38 and 11.61(1)(b), per-
taining to Limits on Campaign Contributions, False Campaign Re-
ports, and Contributions by Corporations, may have occurred and
that the crimes have been committed within the jurisdiction of Iowa
County and the jurisdiction of this court.

NOW THEREFORE I hereby authorize the commencement of a
John Doe Proceeding, pursuant to Wis. Stats., Section 968.26.

R.53 Ex. L. Judge Kluka also granted Mr. Nelsons request that the John Doe Pro-
ceeding be secret and, accordingly, issued a secrecy order that governed the
35
Iowa County John Doe Proceeding.

15
R.1 Ex. E. It was only after the Iowa County
John Doe Proceeding was commenced that Defendant Schmitz was appointed its
special prosecutor. R.53 Ex. S.
Thus, despite Plaintiffs broad allegations that Defendants attempted to tar-
get Plaintiffs by commencing John Doe Proceedings against them and initiating
other legal process (e.g., subpoenas), the specific context of Plaintiffs injury, for
purposes of the qualified immunity analysis,
16
shows that (1) none of the De-
fendants petitioned for the John Doe Proceedings in the counties in which Plain-
tiffs are located; (2) none of the Defendants provided affidavits in support of
such petitions; (3) none of the Defendants petitioned or issued the secrecy orders
to which Plaintiffs were subject; and (4) none of the Defendants issued the sub-
poena served on Plaintiffs. But even if Plaintiffs could allege that Defendants
were behind the issuance or service of Judge Klukas complained-of subpoenas,
Defendants would still be entitled to qualified immunity because each Defendant
acted reasonably in the particular circumstances that he or she faced. Plumhoff,
15
A month after receiving his subpoena, which referred to the secrecy order and ordered
OKeefe not to disclose its contents or the fact that he received it, OKeefe was in contact with
The Wall Street Journal and publicly identified himself as a subpoenaed party in the John Doe
Proceedings: [O]ne target who did confirm receiving a subpoena is Eric OKeefe, who realizes
the personal risk but wants the public to know what is going on. Mr. OKeefe is the director of
the Wisconsin Club for Growth. . . . Mr. OKeefe says he received his subpoena in early Octo-
ber. R.7 Ex. 33.
16
See Forsyth, 472 U.S. at 528 (To be sure, the resolution of these legal issues [regarding quali-
fied immunity] will entail consideration of the factual allegations that make up the plaintiff's
claim for relief.).
36
134 S.Ct. at 2023 (instructing that courts must address the crucial question
whether the official acted reasonably in the particular circumstances that he or
she faced.).
The Supreme Courts analysis in Reichle v. Howards is instructive in these par-
ticular circumstances. 132 S.Ct. 2088 (2012). In Reichle, the plaintiff was arrested
by secret service agents after he told Vice President Dick Cheney that his poli-
cies in Iraq are disgusting and after he falsely denied that he had touched the
Vice President on the shoulder. Id. at 2091. Plaintiff filed a complaint alleging, in-
ter alia, that the secret service agents arrested him in retaliation for criticizing the
Vice President, in violation of the First Amendment. Id. at 2092. The Court of
Appeals for the Tenth Circuit upheld the district courts denial of the agents
claims of qualified immunity based on the broad, general right that the First
Amendment prohibits government officials from subjecting an individual to re-
taliatory actions for his speech. Id. However, the Supreme Court held that the
secret service agents were entitled to qualified immunity because the specific
right at issue could not be so broadly phrased; rather, the specific right at issue
was the right to be free from a retaliatory arrest that is otherwise supported by
probable cause, which the Court concluded was not clearly established at the
time of the arrest. Id. at 2094, 2097.
37
Similarly, here, with regard to Plaintiffs claims of retaliation, the Plaintiffs

right at issue is not the broad rightas framed by the district courtto express
political opinions without fear of government retaliation, R.83 at App. 17; ra-
ther, it is Plaintiffs right to be free from a retaliatory John Doe subpoena that is other-
wise supported by probable cause. Here, the subpoena served on OKeefe was neces-
sarily supported by probable cause, which is the standard upon which all John
Doe subpoenas are issued. See, e.g., In re John Doe, 689 N.W.2d at 909 (noting that
Wis. Stat. 968.135 requires a John Doe subpoena be supported by probable
cause). Thus, the right to be free from a retaliatory John Doe subpoena that is
otherwise supported by probable cause (i.e., that a crime of coordinated issue
advocacy has been committed)just as is the right to secretly coordinate issue
advocacy with a candidate, a candidates personal campaign committee and a
candidates agentswas not clearly established at the time that subpoena was
issued. Indeed, even if there was no probable cause supporting the issuance of
OKeefes subpoena, the right to be free from a retaliatory John Doe subpoena
which is similar to a grand jury subpoena insofar as John Doe and grand jury
proceedings are considered to be similar by state and federal courtscould not
be considered clearly established. See, e.g., United States v. R. Enterprises, Inc., 498
U.S. 292, 297 (1991) (the Government cannot be required to justify the issuance
of a grand jury subpoena by presenting evidence sufficient to establish probable
38
cause because the very purpose of requesting the information is to ascertain

whether probable cause exists); Branzburg v. Hayes, 408 U.S. 665, 682, 688 (1972)
(concluding that (c)itizens generally are not constitutionally immune from
grand jury subpoenas . . . and acknowledging that the longstanding principle
that the public . . . has a right to every man's evidence . . . is particularly appli-
cable to grand jury proceedings) (omitting citation).
17

III. Defendants Are Entitled to Prosecutorial Immunity.
A. Actions Furthering a John Doe Proceeding are Cloaked in Absolute
Prosecutorial Immunity.
Plaintiffs fail to respond to Defendants argument (Br. at 52-53) that absolute
immunity has attached to activities undertaken to further John Doe Proceedings
since Wisconsins territorial dayslong before 42 U.S.C. 1983 was enacted.
Failing to address this historical fact, Plaintiffs waver between refusing to
acknowledge that absolute immunity can attach to any activity within a John
Doe Proceeding (Resp. Br. at 66) and conceding that immunity can apply in a
John Doe Proceeding insofar as it constitutes a probable cause hearing, like a
17
Contrary to Plaintiffs claim, the Tenth Circuit case Bennett v. Hendrix is not analogous to
this case. In Bennett, the alleged retaliatory acts complained of . . . include[d] a prolonged and
organized campaign of harassment by local police officers . . . with instances where the defend-
ants followed, pulled over, cited, intimidated, or otherwise harassed plaintiffs . . . [and] at-
tempted to obtain arrest warrants against the plaintiffs without probable cause, and produced
and mailed to [county] residents depicting the plaintiffs as criminals terrorizing the county.
423 F.3d 1247, 1255. Here, the retaliatory act Plaintiffs allegedly suffered was the service of a
subpoena, which was issued in a John Doe Proceeding commenced by a non-Defendant district
attorney and which was issued by the John Doe judge upon a finding of probable cause. See,
e.g., In re John Doe, 689 N.W.2d at 909. Plaintiffs fail to cite any other closely analogous case
establishing that the conduct [of Defendants] is unconstitutional. See Estate of Escobedo v. Bend-
er, 600 F.3d 770, 779 (7th Cir. 2010).
39
grand jury hearing (Resp. Br. at 69-70). Unable to articulate a consistent position,
Plaintiffs then cite to vague allegations in their complaint that putatively take all
John Doe activities of each Defendant outside the scope of absolute immunity.
B. Absolute Immunity Attaches to John Doe Proceedings, as Absolute
Immunity Attaches to Grand Jury Proceedings.
Plaintiffs argue that Defendants are not entitled to absolute immunity because
a probable-cause determination had not been made. Defendants, of course, con-
cede that the probable-cause determination had not been made to arrest anyone
because Plaintiffs brought this civil lawsuit in the middle of the very proceeding
meant to determine whether such probable cause existed. To be sure, the entire
purpose of a John Doe Proceedingjust like an application for a search warrant
as discussed in Burns v. Reed, 500 U.S. 478 (1991), or the grand jury proceeding
discussed in Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007)is the determination
of probable cause. State v. Washington, 266 N.W.2d 597, 605 (Wis. 1978). (It is the
responsibility of the [John Doe] judge to utilize his or her training in constitu-
tional and criminal law and in courtroom procedure . . . in determining probable
cause.). That is not to say, however, that probable cause did not exist for issu-
ance of the subpoena that forms the basis of Plaintiffs Complaint. In re John Doe,
689 N.W.2d at 909 (observing that Wis. Stat. 968.135 requires a John Doe sub-
poena be supported by probable cause).
40
According to Plaintiffs logic, however, so long as a civil litigant files a civil

action before a probable-cause determination has been made in a state criminal
proceeding, no absolute immunity can apply to participants involved in that
proceeding. However, such a result would encourage prosecutors to rush the de-
termination of probable cause in a probable cause hearing out of fear that an in-
dividual subject to those proceedings need only file a civil lawsuit in order to
preemptively defeating the prosecutors absolute immunity. Prosecutorial im-
munity should not be dependent on a race to the courthouse.
Regardless, Plaintiffs concede (Resp. Br. at 68-70) that conduct within a John
Doe Proceeding (e.g., applying for a search warrant) can be cloaked by prosecu-
torial immunity, just as it would be in other probable cause hearings, like a grand
jury proceeding. Indeed, given the well-established rule that prosecutorial im-
munity applies to acts intimately associated with judicial phase of the criminal
process, Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (emphasis added), it would
be anomaly for this Court, on the one hand, to recognize absolute immunity
within a grand jury proceeding as it did in Redwood v. Dobson despite the absence
of judicial oversight as part of that proceeding, but on the other hand, decline to
recognize absolute immunity as part of the John Doe Proceeding when there is,
by statute, judicial oversight from the very inception of that criminal proceeding.
41
C. Plaintiffs Allegations Do Not Preclude Prosecutorial Immunity.

The action on which Plaintiffs alleged constitutional injury is based is the
service of a subpoena. R.l 139, 184, Ex. F. That subpoena, like all subpoenas
and search warrants, was approved by a judge, necessarily upon a finding of
probable cause as part of the John Doe Proceeding. See R.l Ex. F at 1-2; In re John
Doe, 689 N.W.2d at 909. Although John Doe Judge Gregory Peterson later disa-
greed with Judge Kluka as to whether probable cause existed, that disagreement
is irrelevant as to whether immunity applies to the prosecutors who may have
advocated on behalf of the state with regard to that subpoena. See Burns, 500 U.S.
at 483.
With respect to their allegations that the investigation is retaliatory and based
on a pretextual legal theory, Plaintiffs allegations clearly pertain to motive,
which is irrelevant to the prosecutorial immunity analysis. See Br. at 54 (citing
cases). Moreover, the majority of Plaintiffs allegations have nothing to do with
Plaintiffs who, again, were simply served with a subpoena (e.g., alleging Defend-
ants crafted broad and invasive requests for search warrants, seized activists
computers . . . ., timed investigatory conduct to injure their political oppo-
nents). Other allegations are objectively irrelevant (e.g., alleging Defendants
shopped the investigation around to the Attorney General . . . , structured
those proceedings so they could participate in and exercise control over the in-
42
vestigation, interviewed numerous witnesses and reviewed hundreds of thou-

sands of documents).
Plaintiffs also allege that defendants (apparently all of them, although
Plaintiffs do not specify) selectively leaked material to injure their targets.
Resp. Br. at 68-70. However, quite apart from the cases relied on by Plaintiffs, the
Plaintiffs here fail to allege which Defendant they are referring to that allegedly
leaked the material, what materials they are claiming were leaked, how they
caused injury to the plaintiffs here, or, related to that point, who the materials
refer to other than targets. Even the citations to the Complaint that they rely on
here for the alleged injurious leaks refer only to Scott Walker. But Scott Walker is
not a plaintiff in this case.
IV. Younger Abstention Requires Dismissal of the Preliminary Injunction
and Stay of The Damages Action If It Is Not Dismissed.

Plaintiffs argue that Younger abstention does not apply because, under the
bright line drawn by Sprint, abstention is appropriate only in the case of ongo-
ing criminal proceedings. Plaintiffs also argue that their unsupported allegations
of bad faith defeat abstention. Neither argument is correct.
A. John Doe Proceedings Fall Within The Sprint Category of Proceed-
ings Akin to a Criminal Prosecution.
After becoming wary of the frequency with which federal courts were ab-
staining from hearing cases involving state civil proceedings, the Supreme Court
43
in Sprint Commcns., Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013), clarified that Younger
abstention is appropriate only in proceedings bearing some clear procedural rela-
tionship to a pending state criminal proceeding. 134 S.Ct. at 588. Contrary to
the Plaintiffs assertions, Sprint did not draw a bright line limiting Younger ab-
stention only to ongoing criminal prosecutions; instead, it held Younger absten-
tion could also apply to non-criminal proceedings that are akin to a criminal
prosecution in important respects. Id. at 591 (quoting Huffman v. Pursue, Ltd.,
420 U.S. 592, 608 (1975). Sprint also clarified that the factors set forth in Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982), were still rele-
vant to quasi-criminal proceedings. Sprint, 134 S.Ct. at 593. In other words,
Sprint focus[ed] the abstention inquiry on whether the state proceeding is quasi-
criminal. Gonzalez v. Waterfront Comm'n of the N.Y. Harbor, 755 F.3d 176, 181 (3d
Cir. N.J. 2014); see also Fund v. City of New York, No. 14 Civ. 2958, 2014 U.S. Dist.
LEXIS 68509, at 12 (S.D.N.Y. May 19, 2014) (the Supreme Court explained in
Sprint that abstention is only appropriate in settings bearing some clear proce-
dural relationship to criminal proceedings.)
In order to determine whether a proceeding is akin to a criminal prosecu-
tion or quasi-criminal in nature, Sprint considered whether (1) the action was
commenced by the State in its sovereign capacity, (2) the proceeding was initiat-
ed to sanction the federal plaintiff for some wrongful act, and (3) there are other
44
similarities to criminal actions, such as a preliminary investigation that culminat-

ed with the filing of formal charges. Acra Turf Club, LLC v. Zanzuccki, 748 F.3d
127, 138 (3d Cir. 2014). These factors are satisfied here. John Doe Proceedings are
brought by the state in its sovereign capacity with the end result being a criminal
prosecution. John Doe Proceedings are governed by Wisconsins criminal stat-
utes, instituted by a prosecutor, overseen by a judge, involve criminal procedural
due process protections, require probable cause findings, and expose individuals
to criminal penalties. Likewise, all of the cases cited by Defendants involving
grand jury proceedings remain good law following Sprint because they involve
similar characteristics to that of a John Doe Proceeding and the facts before the
Sprint court did not involve a criminal proceeding but, rather, a civil dispute be-
tween private parties.
Contrary to Plaintiffs claim, Defendants never argued that a John Doe Pro-
ceeding was merely an inquest into a crime. Dkt. 131 at 38. Certainly, a John
Doe Proceeding involves a criminal investigation, but it also involves a judge ex-
ercising his or her training in constitutional and criminal law and in courtroom
procedure in determining the need to subpoena witnesses requested by the dis-
trict attorney, in presiding at the examination of witnesses, and in determining
probable cause. Washington, 266 N.W.2d at 603, 605. Additionally, in order for
the John Doe judge to issue subpoenas and search warrants he or she must have
45
made a probable cause determination. In re John Doe, 689 N.W.2d at 909. And, the
John Doe judge holds contempt power over the subjects of the proceeding. See
State ex rel. Unnamed Person No. 1 v. State (In re Doe), 2003 WI 30, 99, 260 Wis. 2d
653, 706, 660 N.W.2d 260, 286 (2003). Plaintiffs characterization of this procedure
as a subpoena mill in service, Dkt.. 131 at 42, is wholly unsupported by Wis-
consin case law and inconsistent with the fact that Judge Peterson quashed the
subpoena directed at Plaintiff OKeefe in this case.
The Plaintiffs next argue that the language in Sprint relating to proceedings
akin to a criminal prosecution and quasi-criminal proceedings apply only to
civil enforcement actions. These civil enforcement actions include proceed-
ings such as the state bar disciplinary proceedings at issue in Middlesex. See also
Mir v. Shah, Case No. 13-55, 2014 U.S. App. LEXIS 11500, 6, 2014 WL 2722767 (2d
Cir. N.Y. June 17, 2014) (applying Younger to state proceeding to forfeit physician
license post-Sprint).
It would be quite an odd result if Younger abstention applied to federal cases
arising out of state bar disciplinary proceedings and revocation of a medical li-
cense, but not a John Doe Proceedinga proceeding instituted by state prosecu-
tors to determine if a crime has been committed, overseen by a judge, involving
the states coercive power to subpoena witnesses, obtain evidence, and hold wit-
nesses in contempt, and one that includes criminal due process protections, such
46
as the right to appear by counsel and challenge the actions of state officials par-
ticipating in the proceeding. It is clearly evident that a John Doe Proceeding is
much more of a coercive action brought in the name of the State than a profes-
sional licensure proceeding brought by a disciplinary board. Accordingly,
Younger abstention should apply to John Doe Proceedings.
Given the uniqueness of Wisconsins John Doe Procedure, it is not surprising
that it does not fit neatly into the categories of a formal criminal prosecution or
civil enforcement action. But, the bottom line is that while a John Doe Proceed-
ing is not yet a criminal prosecution, it is a quasi-criminal proceeding and ulti-
mately leads to a criminal prosecution and satisfies the factors set forth in Sprint.
Indeed, a contrary result would be inconsistent with the very purpose of Younger
abstention: to allow a state to enforce its criminal lawswhich is precisely the
issue in this case.
B. Younger Abstention Does Not Require an Active Criminal Prose-
cution.
Relying on Mulholland v. Marion Cnty. Election Bd., 746 F.3d 811, 818 (7th Cir.
2014), Plaintiffs argue that Younger abstention cannot apply to anything less than
an active criminal prosecution. This is incorrect for several reasons.
First, in discussing the types of civil enforcement proceedings to which
Younger abstention could apply, the Sprint court expressly mentioned proceed-
ings in which [i]nvestigations are commonly involved, often culminating in the fil-
47
ing of a formal complaint or charges. Sprint, 134 S.Ct. at 592 (emphasis added).
Thus, Sprint did not limit Younger abstention a proceedings in which a formal
complaint has been issued.
Second, the state proceeding in the present case bears no relationship to the
advisory election board hearing at issue in Mulholland. Mulholland involved a
planned hearing by a state elections board to determine if a candidate for office
had violated Indianas anti-slating law. The key facts in the Courts decision in
Mulholland were that the election board did not have the authority to sanction the
plaintiff, the Board lacked prosecutorial powers, and the Boards hearing could
only lead to a recommendation of prosecution. Id. at 817.
Here, Plaintiffs reliance on Mulholland would carry more weight if the under-
lying state proceeding they were attempting to halt was simply an investigation
carried out by the GAB, which does not have authority to criminally prosecute
anyone. In this case, however, the District Attorneys of five separate counties de-
termined that there was a reasonable belief a crime had been committed and
commenced the John Doe Proceedings by petitioning the state courts, which ap-
pointed a judge with the ability to sanction. Unlike the election board investiga-
tion in Mulholland, if probable cause is found by a John Doe judge, criminal
charges must be brought. Wis. Stat. 968.26. Thus, the John Doe Proceeding is
not merely a preliminary, advisory hearing like the election board procedure in
48
Mulholland and this Courts holding in Mulholland must be tempered against the
unique facts of this case.
Strong policy reasons also dictate reversal of the district courts ruling on ab-
stention. Under the district courts theory, the subject of a Wisconsin John Doe
Proceeding (and the same would hold true for the subject of a state grand jury
proceeding), can quash the proceedings by simply filing a federal lawsuit claim-
ing his or her First Amendment rights have been violated. Allowing this holding
to stand will likely result in the subjects of John Doe or state grand jury proceed-
ings flooding the federal court with claims of selective targeting and bad faith in
order to put a halt to these criminal proceedings. This will impede Wisconsins
ability to enforce its own criminal laws.
D. The Bad Faith Exception Does Not Apply Because Plaintiffs Have
Not Proved They Were Targeted Without Any Valid Hope of Obtain-
ing A Conviction.
Plaintiffs next argue that the bad faith exception to Younger applies because
Defendants allegedly engaged in a pattern of activity to harass the [plaintiffs].
Resp. Br. at 43. To support this argument, Plaintiffs spin their tale of a state-wide
left-wing conspiracy to shut down conservative groups. They have, however, ab-
solutely no actual evidence that they (Plaintiffs) were harassed. Indeed, the only
state action taken against Plaintiffs was that they were served with a single sub-
poena through their attorney. Unlike the cases on which Plaintiffs rely, there is
49
no evidence that they personally were subject to harassment and intimidation. Al-
legations of paramilitary raids and comparisons to Soviet Russia may make
for interesting reading, but they are wholly irrelevant because Plaintiffs not once
allege they were subject to these raids. Likewise, while Plaintiffs spend consider-
able time discussing harassment and physical threats to conservative politicians
during protests at the Wisconsin Capitol, they do not allege that any of the De-
fendants physically threatened them. Plaintiffs simply cannot meet the high bar
for proving bad faith to avoid application of Younger abstention, which requires
proof that Defendants acted in face of a known unconstitutional law without any
hope of obtaining a valid conviction.
The bad faith exception to Younger is extremely narrow, Mulholland, 746
F.3d at 818 and applies only in cases of proven harassment or prosecutions un-
dertaken by state officials . . . without hope of obtaining a valid conviction. Ku-
gler v. Helfabt, 421 U.S. 117, 124 (1975). The classic example of such conduct is in
Dombrowski v. Pfister, 380 U.S. 479 (1965), where state officials attempted to pros-
ecute a civil rights group for allegedly violating the Louisiana Subversive Activ-
ities and Communist Control Law and the Communist Propaganda Law
statutes found to be facially unconstitutional. Id. at 482. The facts are easily dis-
tinguished from those here: the plaintiffs were arrested and had their files and
records seized via warrants that were later found to lack probable cause. Id. at
50
487. The court then granted a motion to suppress all evidence gained through the
invalid warrants. Id. However, the state officials continued to threaten plaintiffs
with criminal prosecution in private and publically. Id.at 489-90. The Court
found that the prosecutors actions were taken without any hope of ultimate
success, such that abstention did not apply. Id. at 490. This Court later character-
ized Donbrowski as involving multiple prosecutions . . . characterized by fail-
ure. Grandco Corp. v. Rochford, 536 F.2d 197, 204 (7th Cir. 1976).
Similarly, Mulholland, 746 F.3d at 818, involved an attempt by a state agency
to prosecute a political candidate under a statute that it had previously acknowl-
edged was unconstitutional. Id. at 818-19. Plaintiffs try and squeeze this case un-
der the holding in Mulholland by arguing that the GAB had previously agreed
not to enforce the statute that forms the basis of the John Doe Proceeding in this
case. This argument, which was relegated to a footnote, ignores the fact that the
GAB has never agreed, and no court before the district court has ever ruled, that
Wisconsin law does not regulate coordinated issue advocacy. Thus, this case does
not involve state officials attempting to prosecute someone under a law that was
previously declared invalid.
To the contrary, while Judge Peterson ultimately quashed the subpoenas is-
sued to Plaintiffs, he expressly found that the prosecutors legal theory was not
frivolous. The John Doe Proceeding below was the result of five separate John
51
Doe Proceedings that were instituted in different counties and overseen by a

judge in each instance. The John Doe Proceedings were then supervised by a
former federal prosecutor with the blessing of the State of Wisconsins non-
partisan GAB. The subpoenas were issued with court approval.
Defendants did not prosecute Plaintiffs under a law that was facially uncon-
stitutional. The law in effect at the time the John Doe Proccedings were initiated
supported the legal theory underlying the investigation. Indeed, the GAB con-
tinues to support this position in its amicus brief in this case. Defendants did not
arrest Plaintiffs based on deficient warrants. Defendants did not try to enforce
the subpoenas issued to Plaintiffs after they were quashed. Nor did they repeat-
edly prosecute or to threaten prosecution after the John Doe Judge quashed those
subpoenas.
Indeed, this Court has found that the bad faith exception did not apply in Col-
lins v. Cnty. of Kendall, 807 F.2d 95, 97 (7th Cir. 1986), where state officials initiat-
ed 34 criminal prosecutions against the owners of adult book stores, following
searches and seizures of their merchandise. One third of the cases were dis-
missed and several others resulted in directed not guilty verdicts; only 3 resulted
in convictions. Id. at 98-100. This Court found that plaintiffs did not satisfy the
Younger bad faith exception because the search warrants were authorized and the
52
state officials did initiate the prosecutions regardless of their outcome. Id. at
101.
Plaintiffs unsupported allegations of pretext do not win the day because
Judge Peterson expressly found that Defendants actions were not frivolous and
the investigation had been judicially approved and countenanced by the Wiscon-
sin GAB. In order for Plaintiffs pretext argument to prevail, this Court would
need to conclude that five separate county district attorneys, two retired Wiscon-
sin judges, a career federal prosecutor, professional investigators, and a non-
partisan state agency comprised of former judges all willfully participated in the
John Doe Proceedings knowing it had no basis in law and was undertaken for
the sole purpose of suppressing Plaintiffs speech based on their conservative be-
liefs. Plaintiffs simply have no actual evidence to support such wild allegations.
The district courts findings to the contrary cannot be upheld because the dis-
trict court admitted that it never examined any of the evidence before it and only
looked at the allegations in Plaintiffs Complaint. R.200 at 3; R.243 at 13. Moreo-
ver, both the Plaintiffs and the district court ignored ample evidence of the De-
fendants good faith. While Plaintiffs disagree with the GABs interpretation of
Wisconsin law, they cannot dispute that the GAB and its predecessor expressly
endorsed the legal theory underlying the John Doe Proceeding.
53
Finally, Plaintiffs unsupported targeting and selective prosecution allega-

tions do not establish bad faith because they cannot demonstrate that Defendants
were aware of similar activities by other groups and chose not to investigate
them. See Pincham v. Illinois Judicial Inquiry Bd., 872 F.2d 1341, 1350 (7th Cir. 1989)
(we refuse to conclude that there was "bad faith" absent allegations that the state
agencies had some awareness of the other judges' activities and treated them
more favorably than Justice Pincham as part of a campaign that used prosecu-
tions, regardless of outcome, to suppress speech.) To the contrary, the evidence
is undisputed that Defendants investigated and successfully prosecuted left-
leaning politicians for campaign finance violations during this time period. Spe-
cifically, Milwaukee Democratic Mayor Tom Barrett (who ran against Governor
Walker during the recall election) was found to have violated Chapter 11 of Wis-
consin campaign statues and paid forfeiture of approximately $20,000 for con-
duct in 2013; in addition, there was an investigation into illegal coordination by
Sandy Pasch, a Democrat Wisconsin senator. R.105. While Plaintiffs complain
that the above actions were not good enough, they cannot show that only right of
center political groups were targeted by Defendants.
Thus, the bad faith exception to Younger does not apply and the district court
should have dismissed Plaintiffs official capacity claims and request for a pre-
liminary injunction. While the court may stay the personal capacity claims
54
against Defendants under Younger, there is ample authority for dismissing those
claims as well based on the immunity defenses raised above.
IV. Pullman Abstention is Proper.
A. This Court Has Jurisdiction to Consider Pullman abstention.
For the first time Plaintiffs argue that this Court does not have jurisdiction to
consider the district courts denial of abstention under Pullman. Dkt. 55-4. Con-
trary to Plaintiffs new-found position, the Supreme Court has found that Pull-
man abstention is a proper jurisdictional basis on appeal. See American Fedn. Of
Labor v. Watson, 327 U.S. 582, 589 (1948) (holding that Pullman abstention applied
to plaintiffs request for injunctive relief to enjoin enforcement of a provision of
Florida Constitution that allegedly violated plaintiffs First Amendment rights).
Additionally, this Court has jurisdiction to exercise its discretionary, sua sponte
authority to order abstention under Pullman. See Jayaraj v. Scappini, 66 F.3d 36, 40
(2d Cir. 1995) (ordering abstention sua sponte where resolution of state law issue
could obviate need to address the constitutional issue). Accordingly, there are
multiple reasons why this Court can and should exercise its jurisdiction to de-
termine if the district court erred in denying abstention under Pullman.
B. Plaintiffs Use The Wrong Standard of Review
Plaintiffs also mischaracterize the standard of review for Pullman abstention
as being an abuse of discretion standard. As one court has explained, the stand-
ard of review is more relaxed:
55
Abstention was initially characterized as an equitable concept, since

it is invoked in actions seeking an injunction against the enforce-
ment of a state statute or a declaration that a statute is void. See Rail-
road Commission v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85
L. Ed. 971 (1941). Although abstentions origins in equity might sug-
gest that decisions to abstain are reversible only if an abuse of dis-
cretion, appellate courts from Pullman to the present have used a
more searching standard of review, and have reversed abstention
orders whenever convinced the decision was improper or wrong. 1A
Moores Federal Practice P 0.203(1) at 2105-06 (2d ed. 1980).

Moe v. Dinkins, 635 F.2d 1045, 1048 n.7 (2nd Cir. 1980).
C. Pullman Abstention is Warranted.
Using the correct standard of review the district courts decision was improp-
er because there are multiple state court proceedings that will address the very
campaign finance issues at issue in this case and will likely foreclose the need to
address constitutional claims made by Plaintiffs in this federal lawsuit.
Plaintiffs assertion that abstention is inappropriate under Pullman because
their First Amendment rights are under imminent threat must once again be
tempered against reality. As explained above, Plaintiffs were served with a sub-
poena for documents through their attorney and that subpoena was quashed by
the John Doe Judge. No one is attempting to enforce the subpoena and the legal
issues surrounding that subpoena are before the Wisconsin Court of Appeals and
Wisconsin Supreme Court. There is no substantial risk of injury to Plaintiffs in
allowing the Wisconsin courts to rule on these issues. Thus, it was error for the
district court to refuse to abstain under Pullman.
56
CONCLUSION
For these reasons, this Court should: 1) vacate the preliminary injunction; 2)
reverse the district courts decision denying Defendants motion to dismiss the
personal capacity claims; or 3) hold that the district court should have abstained
from ruling on the preliminary injunction and stay the damages claims under the
underlying state court proceedings are resolved.

Date: September 8, 2014

s/ Joseph M. Russell
Joseph M. Russell
Randall D. Crocker
Patrick C. Greeley
Francis Schmitz
Milwaukee, WI 53202
(414) 276-1122
/s Douglas S. Knott
Dicker, LLP
Douglas S. Knott
Samuel J. Leib
Nicholas D. Harken
Brent A. Simerson
Bruce J. Landgraf
(414) 276-8816
/s Timothy M. Barber
Timothy M. Barber
Patrick J. Fiedler
Justin H. Lessner
Dean Nickel
Madison, WI 53703
(608) 257-5661

57
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
this brief contains 13,892 words, excluding the parts of the brief ex-
empted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because:
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in Book Antiqua 13 point font.

Dated: August 1, 2014
Joseph M. Russell
Randall D. Crocker
Patrick C. Greeley
Francis Schmitz
Milwaukee, WI 53202
(414) 276-1122
/s Douglas S. Knott
Dicker, LLP
Douglas S. Knott
Samuel J. Leib
Nicholas D. Harken
Brent A. Simerson
Bruce J. Landgraf
(414) 276-8816
/s Timothy M. Barber
Timothy M. Barber
Patrick J. Fiedler
Justin H. Lessner
Attorneys for Defendant-Appellant Dean
Nickel
Madison, WI 53703
(608) 257-5661

58
CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2014, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Seventh Cir-
cuit by using the CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the CM/ECF
system.

Date: September 8, 2014
Joseph M. Russell
Randall D. Crocker
Patrick C. Greeley
Francis Schmitz
Milwaukee, WI 53202
(414) 276-1122


Chisolm's Brief in The John Doe Case

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No.

Axley Brynelson, LLP

A. Actions Furthering a John Doe Proceeding are Cloaked

Wis. Stat. 11.61(1)(b) ............................................................................................... 30, 34

however, actually concern Defendants. Instead, Plaintiffs spin an epic yarn of a

ha[d] been committed, in five different Wisconsin counties R.53,

ence of bad faith based on uniformly successful prosecutions. Nevertheless, that

ever, Plaintiffs arguments are contradicted by evidence already in the record.

49. The district court refused Defendants an opportunity to cross-examine

C. Plaintiffs Concede the Type of Conduct Being Investigated by the

race) (emphasis in original); id. at 97 (whatever legitimate interest the govern-

outside organizationseven by appearing at a Super PAC fundraising eventas

Scott Walker, a campaign committee, and . . . Club for GrowthWisconsin. R.53

Plaintiffs appear to suggest. Plaintiffs cannot categorically deny the relevance of

OKeefe in October of 2013.

brief because defendants had the opportunity to challenge this argument in

B. The Court Has Jurisdiction to Address The Qualified Immunity De-

clearly identified candidate may, nevertheless, be subject to campaign finance

C. Broad Allegations of Bad Faith Targeting Cannot Defeat a Claim For

consin Statutes 11.61(2), 971.19(12) and 978.05(1), the prosecutors

Iowa County John Doe Proceeding.

Similarly, here, with regard to Plaintiffs claims of retaliation, the Plaintiffs

cause because the very purpose of requesting the information is to ascertain

According to Plaintiffs logic, however, so long as a civil litigant files a civil

C. Plaintiffs Allegations Do Not Preclude Prosecutorial Immunity.

vestigation, interviewed numerous witnesses and reviewed hundreds of thou-

similarities to criminal actions, such as a preliminary investigation that culminat-

Doe Proceedings that were instituted in different counties and overseen by a

Finally, Plaintiffs unsupported targeting and selective prosecution allega-

Abstention was initially characterized as an equitable concept, since

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

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