IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
ERIC O’KEEFE and WISCONSIN CLUB
FOR GROWTH, INC.,
v. Civil Case No. 14-cv-00139
FRANCIS SCHMITZ, et al.,
PLAINTIFFS’ RESPONSE TO DEFENDANT FRANCIS SCHMITZ’S EXPEDITED
CIVIL L.R. 7(h) NON-DISPOSITIVE MOTION FOR CLARIFICATION
On the heels of news reports suggesting that Defendant Francis Schmitz is seeking to enter
into a settlement that would impair Plaintiffs’ rights by forcing their associates to choose whether to
work with Plaintiffs or Friends of Scott Walker, Schmitz has discontinued discussions with Plaintiffs
and run to this Court to seek an advisory opinion that would frustrate the Court’s preliminary in-
junction. While Schmitz’s motion is vague, it appears that he wants the Court to moot its injunction
by allowing him to attempt to enforce subpoenas in Wisconsin state court and to use the coercive
power of the state to cut side-deals that impair Plaintiffs’ associational rights. Enough is enough.
The Court should confirm that its injunction precludes any attempt by Defendants to obtain com-
pliance with any order, subpoena, or other process issued in furtherance of the investigation. It
should defer decision on the remainder of the motion until Schmitz explains to the Court and Plain-
tiffs what he intends to do that would risk violating the injunction. Unless and until does so, the
Court and Plaintiffs can only speculate as to his intentions and the precise relief that he seeks.
1. The Court’s order that “[t]he Defendants must cease all activities related to the in-
vestigation” and that “any attempt to obtain compliance by any Defendant or John Doe Judge
Gregory Peterson is grounds for a contempt finding by this Court” easily comports with Rule 65.
The Seventh Circuit regularly upholds injunctions whose terms regulate “any” or “all” types of con-
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duct, see United States v. Apex Oil Co., Inc., 579 F.3d 734, 739 (7th Cir. 2009) (affirming injunction
providing that “all work required by this injunctive order shall be subject to U.S. EPA oversight and
approval”); Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1431–32 (7th Cir. 1985) (affirming
injunction proscribing “‘any colorable imitation’ of a particular logo”). These cases apply doubly
here, as injunctions proscribing “a fairly wide range of conduct” are particularly appropriate to rem-
edy the “infringements of civil rights,” 11A Wright, et al., Federal Practice & Procedure Civil § 2955
(3d ed.), such as Schmitz’s violation of Plaintiffs’ civil rights.
2. In this regard, Plaintiffs have consistently advanced a plain-language reading that the
preliminary injunction bars “any attempt by [Schmitz] to obtain compliance with any order, subpoe-
na, or other process issued in furtherance of the investigation,” but that it does not “extend to legal
proceedings, including these federal court proceedings, that do not seek to enforce such compli-
ance.” Rivkin Letter, Schmitz Motion for Clarification (“Mot.”) Ex. B, Doc. 227-2; Rivkin Letter,
Mot. Ex. D, Doc. 227-4. Plaintiffs’ view honors the injunction’s purpose by allowing Defendants to
defend this action and exercise their official duties, but not to continue their unconstitutional secret
criminal investigation. The preliminary injunction would be stripped of any force if Schmitz may
continue his investigation or participate in state-court proceedings that seek to enforce legal process
that this Court has already declared violates Plaintiffs’ constitutional rights.
3. Schmitz has attempted to muddy the waters in a way that would effectively allow
him to maintain the investigation. Schmitz’s first question is “whether the preliminary injunction
enjoins Defendant from participating in [certain] state court proceedings that have arisen from the
John Doe investigation by filing pleadings, papers and other responses[?]” 1 Given that Schmitz has
Schmitz represents that “[t]hose 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,
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never explained why he disagrees with Plaintiffs’ position and that Plaintiffs do not have access to all
his filings in one of those cases to measure this issue themselves, Plaintiffs have been unable to re-
solve this issue with Schmitz. But participation in some or all of these state-court proceedings may
well be improper. In the Milwaukee Defendants’ second emergency motion to stay before the Sev-
enth Circuit, they argued for a stay both of the injunction’s “return and destroy” provision and its
“cease all activities” provision because “active participation in matters on appeal in the state courts
or any activity before the John Doe judge” grounds for contempt. Defendant-Appellants’ Second
Emergency Motion for Stay 3-4, Ex. A, No. 14-1822, ECF No. 15-1. The Court of Appeals stayed
the evidentiary provision but left standing the “cease all activities” provision, tacitly and correctly
rejecting that argument as an attempt to circumvent the Court’s injunction.
4. The second question, which Schmitz did not attempt to resolve with Plaintiffs but
raised directly with this Court when media reports raised key questions about his conduct, is
“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.” Mot. 4. This question is not a serious request for clarification. Of
course Schmitz can “discuss” certain matters with counsel and targets—Plaintiffs took the position
that Schmitz should do just that by providing all targets and subpoenaed parties with a copy of the
Court’s injunction so that they knew their legal rights. (Schmitz apparently refused to inform them
of their rights.) Schmitz obviously wants more than idle chatter.
5. In light of news reports that Schmitz is continuing the investigation by using his po-
sition as John Doe and GAB Special Prosecutor to negotiate settlements that would violate Plain-
tiffs’ rights by requiring them to associating with consultants, vendors, or others who also associate
2013AP2507-W, 2013AP2508-W); State ex rel. Two Unnamed Petitioners v. Francis D. Schmitz, et al.
(14AP296-OA).” Mot. 2.
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with Plaintiffs, Plaintiffs are concerned that Schmitz’s “discussions” violate the injunction. But giv-
en Defendants’ track record in this matter, it seems likely that Defendant Schmitz has raised the
vague “discussion” straw man to tee up yet another stay motion in the Seventh Circuit. Rather than
act absent context, Plaintiffs respectfully suggest that the Court defer decision on Schmitz’s second
question until he informs Plaintiffs and the Court of exactly what he is doing and exactly what he
wants to do. That will allow the parties to consider an actual course of action—not a “discus-
sion”—in light of the language of the injunction, attempt to resolve any dispute without the Court’s
intervention, and to present a concrete controversy to the Court if they do not reach resolution.
Dated: May 29, 2014 Respectfully submitted,
/s/ David B. Rivkin
David B. Rivkin
Edward H. Williams Gregory L. Baker
BakerHostetler Lee A. Casey
191 North Wacker Drive, Suite 3100 Mark W. DeLaquil
Chicago, IL 60606 Andrew M. Grossman
(312) 416-6229 Richard B. Raile
1050 Connecticut Ave., N.W., Suite 1100
Washington, D.C. 20036
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was served on May 29, 2014, upon all coun-
sel of record by the United States District Court’s ECF system.
/s/ David B. Rivkin, Jr.
David B. Rivkin, Jr.
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