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Wisconsin John Doe Fed Case - May 28 Request to Clarify Injunction.pdf

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Wisconsin John Doe Fed Case - May 28 Request to Clarify Injunction.pdf Powered By Docstoc
					                      IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF WISCONSIN
                              MILWAUKEE DIVISION

ERIC O’KEEFE, and
WISCONSIN CLUB FOR GROWTH, INC.,

               Plaintiffs,
                                                            Case No. 2:14-cv-00139-RTR
v.

FRANCIS SCHMITZ, in his official and
 personal capacities,
JOHN CHISHOLM, in his official and
 personal capacities,
BRUCE LANDGRAF, in his official and
 personal capacities,
DAVID ROBLES, in his official and
 personal capacities,
DEAN NICKEL, in his official and
 personal capacities,
GREGORY PETERSON, in his official
 capacity,

               Defendants.

 CIVIL L. R. 7(h) EXPEDITED NON-DISPOSITIVE MOTION FOR CLARIFICATION

       Defendant Francis Schmitz (“Defendant”), pursuant to Fed. R. Civ. P. 65(d) and Civil L.

R. Rule 7(h), respectfully moves the Court to clarify the scope of the preliminary injunction

granted on May 6, 2014. Dkt. No. 181. Defendant, in support, states as follows.

       Preliminary injunctions must comply with Rule 65(d), which provides that “[e]very order

granting an injunction . . . must: . . . (B) state its terms specifically; and (C) describe in

reasonable detail . . . the act or acts restrained or required.” See also Hispanics United of

DuPage Cnty. v. Vill. of Addison, 248 F.3d 617, 619–21 (7th Cir. 2001); United States v. Apex

Oil Co., Inc., 579 F.3d 734, 739 (7th Cir. 2009). The Seventh Circuit insists on strict compliance

with these requirements. See Nuxoll ex rel. Nuxoll v. Indian Prairie School Dist. # 204, 523 F.3d




         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 1 of 4 Document 227
668, 675 (7th Cir. 2008); Chicago Board of Education v. Substance, Inc., 354 F.3d 624, 631–32

(7th Cir. 2003); IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 543 (7th Cir. 1998).

       Specifically, Defendant requests the Court clarify the scope of the preliminary injunction

insofar as the operative language in the injunction not currently stayed by the Seventh Circuit’s

May 7, 2014, Order1 – “Defendant[] must cease all activities related to the investigation” (Dkt.

No. 181, at 26) – may be construed to enjoin Defendant from all activities related to on-going

state court proceedings that arise from the John Doe proceedings and in which Defendant is a

named party. Those state court proceedings currently include State of Wisconsin ex rel. Francis

Schmitz v. Honorable Gregory Peterson, et al., (2014AP000417-W, 2014AP000418-W,

W2014AP000419-W, 2014AP000420-W, 2014AP000421-W); State of Wisconsin ex rel. Three

Unnamed Petitioners v. Francis D. Schmitz, et al. (2013AP2504-W, 2013AP2505-W,

2013AP2506-W, 2013AP2507-W, 2013AP2508-W); State ex rel. Two Unnamed Petitioners v.

Francis D. Schmitz, et al. (14AP296-OA).2 Defendant also requests the Court clarify the scope

of the preliminary injunction as to whether it encompasses Defendant’s discussions with counsel

for individuals and organizations that were subjects of the John Doe investigation and that are

parties in the state-court proceedings.

       The ambiguity of this language – “Defendants must cease all activities related to the

investigation” – presents a potential trap to Defendant that Rule 65(d) is designed to prevent:

“The aims of Rule 65(d) are to . . . protect defendants from being held in contempt for failure to


                                                       
1
    The Seventh Circuit “stay[ed] the return-and-destroy portions of the injunction.” No. 14-1822,
Dkt. 20, at 2.
2
   Complete case information can be found at http://wscca.wicourts.gov. Defendant notes that the
John Doe proceedings had already been halted pending rulings related to it in the ongoing
Wisconsin state court proceedings. Defendant further notes that he will comply with the Court’s
preliminary injunction regardless of rulings favorable to Defendant in these state court
proceedings.
                                                2

         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 2 of 4 Document 227
follow a directive that was a trap because of its ambiguity.” Apex Oil Co., Inc., 579 F.3d at 739–

40. “Rule 65(d) means that the parties need not guess their obligations at peril of contempt

sanctions.” Hispanics United of DuPage Cnty., 248 F.3d at 620. For nearly three weeks,

Defendant has been attempting to confirm the scope of the injunction with the Plaintiffs. On

May 9, 2014, Defendant asked the Plaintiffs if they agreed with the position that the language

“Defendants must cease all activities related to the investigation” did not enjoin activities related

to the state court proceedings that have arisen from the investigation. May 9, 2014, Letter from

R. Crocker to D. Rivkin, attached hereto as Ex. A. On May 14, 2014, Plaintiffs led Defendant to

believe they agreed with this position: “We do not believe . . . that this language extends to legal

proceedings, including these federal court proceedings, that do not seek to enforce such

compliance [with an order, subpoena, or other process issued in furtherance of the

investigation].” May 14, 2014, Letter from D. Rivkin to R. Crocker, attached hereto as Ex. B.

On May 20, 2014, Defendant sought confirmation of Plaintiffs’ position: “It appears that we

agree and that you acknowledge that the scope of the injunction does not include legal

proceedings related to the John Doe now pending in state or federal court.” May 20, 2014, Letter

from R. Crocker to D. Rivkin, attached hereto as Ex. C. However, on May 21, 2014, Plaintiffs

denied any such agreement: “To be clear: We do not agree to that, and I cannot imagine why

you thought that we would.” May 21, 2014, Letter from D. Rivkin to R. Crocker, attached

hereto as Ex. D. Defendant, in response, sought further clarification from the Plaintiff: “I still

seek clarification as to what your ambiguous phrase ‘participation in legal proceedings’

encompasses.” May 22, 2014, Letter from R. Crocker to D. Rivkin, attached hereto as Ex. E.

Today, Plaintiffs sent a letter that not only failed to clarify their position on the scope of the

injunction regarding state court proceedings but threatens Defendant with sanctions “by agreeing



                                                 3

         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 3 of 4 Document 227
to settlements” that Plaintiffs believe will “undermine [Plaintiffs’] associational and speech

rights.” May 28, 2014, Letter from D. Rivkin to R. Crocker, attached hereto as Ex. F.

       Because Defendant seeks certainty regarding the scope of the preliminary injunction in

order to confirm his compliance with it, Defendant now seeks clarification from the Court as to

whether the preliminary injunction enjoins Defendant from participating in the above-listed state

court proceedings that have arisen from the John Doe investigation by filing pleadings, papers

and other responses and whether the preliminary injunction enjoins Defendant’s discussions with

counsel for individuals and organizations that were subjects of the John Doe proceedings and

that are parties in the above-listed state-court proceedings.

       WHEREFORE, Defendant respectfully requests the Court grant Defendant’s motion and

clarify the scope of the preliminary injunction.


Dated: May 28, 2014.                                   s/ Joseph M. Russell
                                                       Randall D. Crocker (#1000251)
                                                       Joseph M. Russell (#1092211)
                                                       Patrick C. Greeley (#1092436)
                                                       Attorneys for Defendant Francis Schmitz
                                                       von Briesen & Roper, s.c.
                                                       411 E. Wisconsin Avenue
                                                       Suite 1000
                                                       Milwaukee, WI 53202
                                                       Telephone: (414) 287-1238
                                                       Fax: (414) 276-6532
                                                       rcrocker@vonbriesen.com
                                                       jrussell@vonbriesen.com
                                                       pgreeley@vonbriesen.com




                                                   4

         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 4 of 4 Document 227
           EXHIBIT A




Case 2:14-cv-00139-RTR Filed 05/28/14 Page 1 of 3 Document 227-1
                                                                                         TAGLaw International Lawyers

                                                                                                   Randall D. Crocker
                                                                                                     Direct Telephone
                                                                                                         414-287-1238
                                                                                            rcrocker@vonbriesen.com



May 9, 2014

VIA E-MAIL

David B. Rivkin, Jr.
Baker & Hostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304

       Re:     O’Keefe et al. v. Schmitz et al., Case No. 2:14-cv-00139-RTR

Dear David:

I am in receipt of your May, 7, 2014, letter – which I did not receive from you until May 8, 2014,
because the letter was incorrectly addressed – as well as your letter of today. In light of the Seventh
Circuit Court of Appeal’s stay of the “return-and-destroy” portions of the injunction, many of the
demands contained in your May 7, 2014, letter are no longer applicable. Therefore, for the sake of
clarity, I only respond to the requests contained in your letter of today. Before doing so, however,
there are two preliminary issues I would like to raise.

First, the operative portion of the injunction that the Seventh Circuit did not stay – “Defendants
must cease all activities related to the investigation” – is phrased in such a manner that I believe it
useful to understand each other’s position regarding its scope. Our position is that this language is
directed at only the investigation itself – with regard to which I confirm that our client has ceased
all activities, in compliance with the injunction – but not to activities related to the state court
proceedings that have arisen from the investigation, and not to activities related to this federal
action and its related appellate activities. Please let us know if you agree with this position.

Second, the fifth footnote of the Court’s May 8, 2014, Order states that the Court “does not intend
to proceed on the plaintiffs’ damages claims while this case is pending on appeal.” Our position is
that, consistent with the Court’s intent, all discovery should be stayed while Defendants’ various
appeals are pending. Please let me know if you agree with this position.

I invite any comments you may have with regard to these two issues. Please be sure, I raise them to
help clarify the parties’ positions with respect to the injunction; I do not raise them as an attempt to
avoid the Court’s orders.

With regard to your requests regarding “Notice Requirements,” I disagree that our client and my
firm needs to coordinate any communications ensuring compliance with you, needs to share such
communications with you, or needs to schedule such communications according to the timeline you



         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 2 of 3 Document 227-1
May 9, 2014
Page 2


set forth in your letter. With regard to “Confidentiality Requirements,” I likewise disagree that our
client and my firm need to disclose to you the arrangements we make for complying with the
Court’s order that we “not disclose or use the information they have gathered, and that is within the
scope of the injunction.” However, I am happy to review any authority establishing that my client
or my firm needs to fulfill the “Notice Requirements” and “Confidentiality Requirements” as they
are set forth in your letter.

As a final matter, I confirm that, absent a stay, our client and my firm plan to fully conform to the
Court’s orders.


                                                            Sincerely,

                                                            /s/ Randall D. Crocker

                                                            Randall D. Crocker




         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 3 of 3 Document 227-1
           EXHIBIT B




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           EXHIBIT C




Case 2:14-cv-00139-RTR Filed 05/28/14 Page 1 of 3 Document 227-3
                                                                                        TAGLaw International Lawyers

                                                                                                  Randall D. Crocker
                                                                                                    Direct Telephone
                                                                                                        414-287-1238
                                                                                           rcrocker@vonbriesen.com



May 20, 2014

VIA E-MAIL

David B. Rivkin, Jr.
Baker & Hostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304

       Re:     O’Keefe et al. v. Schmitz et al., Case No. 2:14-cv-00139-RTR

Dear David:

Thank you for your recent letter.

It appears that we agree and that you acknowledge that the scope of the injunction does not include
legal proceedings related to the John Doe now pending in state or federal court. As such, our client
is not enjoined from his continuing participation in those pending matters.

Regarding compliance with the injunction, our client and my firm will fully comply and conform to
the Court’s orders. I have so confirmed in my letter of May 9, 2014. I did not, as you suggest,
“refuse to provide notice of those orders to [our] client’s ‘agents, servants, employees, and
attorneys,’ as well as those with whom [our] client and those persons have acted ‘in active concert
or participation.’” I also did not state my “position” as being that “[our] client has no duty to
inform these persons of the Court’s orders” or that “[our] client refuses to put others on notice of
their shared legal obligations.”

I confirm, again, that our client and my firm have and will fully comply with the Court’s order and
to the notice requirements as set forth under Federal Rule Civil Procedure 65(d)(2). Our client and
our firm continue to observe, as you describe it, “the full language and spirit of the Court’s orders,”
and continue to maintain the confidentiality of material gathered during the John Doe proceedings.

I also confirm that our client and my firm will comply with the Seventh Circuit’s Order that
defendants are “not to disclose or use the information they have gathered, and that is within the
scope of the injunction, pending further order of this court.”

With regard to discovery, thank you for acknowledging that, consistent with the Court’s order,
discovery will not proceed on the Plaintiffs’ damages claims while this case is pending on appeal.




         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 2 of 3 Document 227-3
May 20, 2014
Page 2


In light of the briefing schedule issued the Seventh Circuit, I believe it is premature to discuss
discovery regarding Plaintiffs’ “official-capacity” claims.

I would very much like to discuss a discovery schedule with you at the appropriate time.

                                                           Sincerely,

                                                           /s/ Randall D. Crocker

                                                           Randall D. Crocker




         Case 2:14-cv-00139-RTR Filed 05/28/14 Page 3 of 3 Document 227-3
           EXHIBIT D




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           EXHIBIT E




Case 2:14-cv-00139-RTR Filed 05/28/14 Page 1 of 2 Document 227-5
                                                                                       TAGLaw International Lawyers

                                                                                                 Randall D. Crocker
                                                                                                   Direct Telephone
                                                                                                       414-287-1238
                                                                                          rcrocker@vonbriesen.com



May 22, 2014

VIA E-MAIL

David B. Rivkin, Jr.
Baker & Hostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304

         Re:     O’Keefe et al. v. Schmitz et al., Case No. 2:14-cv-00139-RTR

Dear David:

I acknowledge, in response to your May 21, 2014, letter, that Plaintiffs’ position is that the
injunction “encompasses, inter alia, any attempt by [our] client to obtain compliance with an order,
subpoena, or other process issued in furtherance of the [John Doe] investigation,” but that Plaintiffs
“do not believe . . . that the injunction precludes [our] client’s participation in legal proceedings,
including these federal court proceedings that do not seek to enforce such compliance.” However, I
still seek clarification as to what your ambiguous phrase “participation in legal proceedings”
encompasses.

To that end, let me be more specific. As you know, our client is a named party in state court
proceedings arising from the John Doe investigation. Those state court proceedings now include
State of Wisconsin ex rel. Francis Schmitz v. Honorable Gregory Peterson, et al., (2014AP000417-
W, 2014AP000418-W, W2014AP000419-W, 2014AP000420-W, 2014AP000421-W); State of
Wisconsin ex rel. Three Unnamed Petitioners v. Francis D. Schmitz, et al. (2013AP2504-W,
2013AP2505-W, 2013AP2506-W, 2013AP2507-W, 2013AP2508-W); and State ex rel. Two
Unnamed Petitioners v. Francis D. Schmitz, et al. (14AP296-OA).1

Based on the language you used in your letter of May 14, 2014 – “we do not believe . . . that the
injunction precludes your client’s participation in legal proceedings” – you have led me to believe
that Plaintiffs do not believe the injunction precludes our client’s participation in the above-listed
state court proceedings. Please confirm that is Plaintiffs’ position. Of course, regardless of the
developments in these above-listed state court proceedings, our client and my firm have and will
fully comply with Judge Randa’s orders.
                                                             Sincerely,

                                                             /s/ Randall D. Crocker
1
    Additional case information can be found at http://wscca.wicourts.gov.



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           EXHIBIT F




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