In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-‐‑1822, 14-‐‑1888, 14-‐‑1899, 14-‐‑2006, 14-‐‑2012, 14-‐‑2023 &
14-‐‑2585
ERIC O’KEEFE and WISCONSIN CLUB FOR GROWTH, INC.,
Plaintiffs-‐‑Appellees,
v.
JOHN T. CHISHOLM, et al.,
Defendants-‐‑Appellants.
FRANCIS SCHMITZ,
Defendant-‐‑Appellant / Cross-‐‑Appellee.
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, et al.,
Intervenors-‐‑Appellants.
UNNAMED INTERVENORS NO. 1 AND NO. 2,
Intervenors-‐‑Appellees.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 14-‐‑C-‐‑139 — Rudolph T. Randa, Judge.
____________________
ARGUED SEPTEMBER 9, 2014 — DECIDED SEPTEMBER 24, 2014
____________________
2 Nos. 14-‐‑1822 et al.
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. A federal district judge is-‐‑
sued an injunction that blocks the State of Wisconsin from
conducting a judicially supervised criminal investigation in-‐‑
to the question whether certain persons have violated the
state’s campaign-‐‑finance laws. The court did this despite 28
U.S.C. §2283, the Anti-‐‑Injunction Act, which provides: “A
court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized
by Act of Congress, or where necessary in aid of its jurisdic-‐‑
tion, or to protect or effectuate its judgments.” Mitchum v.
Foster, 407 U.S. 225 (1972), holds that 42 U.S.C. §1983 author-‐‑
izes anti-‐‑suit injunctions but adds that principles of “equity,
comity, and federalism” (407 U.S. at 243) determine whether
they are appropriate. Cf. Younger v. Harris, 401 U.S. 37 (1971).
We hold that this case does not present a situation in which
state proceedings may be displaced.
The ongoing criminal investigation is being supervised
by a judge, in lieu of a grand jury. Wis. Stat. §968.26. Prose-‐‑
cutors in Wisconsin can ask the state’s courts to conduct the-‐‑
se inquiries, which go by the name “John Doe proceedings”
because they may begin without any particular target. The
District Attorney for Milwaukee County made such a re-‐‑
quest after concluding that the campaign committee for a
political official may have been coordinating fund-‐‑raising
and expenditures with an “independent” group that was
raising and spending money to speak about particular is-‐‑
sues. (We put “independent” in quotation marks, which we
drop from now on, because the prosecutor suspected that
the group’s independence is ostensible rather than real.
Nos. 14-‐‑1822 et al. 3
Whether, and if so how, this group and the campaign com-‐‑
mittee have coordinated their activities is a subject we need
not consider.) Wisconsin’s Government Accountability
Board, which supervises campaigns and conducts elections,
likewise called for an investigation. District Attorneys in
four other counties made similar requests. Eventually a sin-‐‑
gle John Doe proceeding was established, with Gregory Pe-‐‑
terson as the judge and Francis Schmitz as the special prose-‐‑
cutor. Judge Peterson has been recalled to service following
his retirement from a post on the state’s court of appeals;
Schmitz, an attorney in private practice, used to be an Assis-‐‑
tant United States Attorney in Milwaukee.
At the behest of special prosecutor Schmitz, the court is-‐‑
sued subpoenas requiring their recipients to produce docu-‐‑
ments. One came to Eric O’Keefe, who manages Wisconsin
Club for Growth, Inc., an advocacy group that raises money
and engages in speech on issues such as whether Wisconsin
should limit collective bargaining in public employment, a
subject that has received considerable legislative attention
and sparked a recall election for the Governor. (Both the Su-‐‑
preme Court of Wisconsin and this court have held that the
legislation promoted by the Club for Growth is valid. Madi-‐‑
son Teachers, Inc. v. Walker, 2014 WI 99 (July 31, 2014); Labor-‐‑
ers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2014).) The sub-‐‑
poena issued to O’Keefe is extraordinarily broad, covering
essentially all of the group’s records for several years—
including records of contributors that O’Keefe believes are
covered by a constitutional right of anonymity.
O’Keefe moved to quash the subpoena, which he main-‐‑
tains is designed to punish his, and the Club’s, support for
controversial legislation, rather than to investigate a viola-‐‑
4 Nos. 14-‐‑1822 et al.
tion of state law. He contended that revealing to the state
lists of contributors would harm the organization’s ability to
raise funds—and this even though all information is covered
by a broad secrecy order. Judge Peterson quashed the sub-‐‑
poena, ruling that the evidence is not necessary to the inves-‐‑
tigation. One of his reasons is that Schmitz has not estab-‐‑
lished any solid reason to believe that a violation of state law
has occurred.
That was in January 2014. Schmitz asked the Wisconsin
Court of Appeals for a supervisory writ. Two other people
involved in the investigation asked the Supreme Court of
Wisconsin to grant review, bypassing the Court of Appeals.
Before either the Court of Appeals or the Supreme Court
could act, however, O’Keefe and the Club filed this federal
suit, asking for an injunction that would halt the investiga-‐‑
tion permanently, whether or not the prosecutor could estab-‐‑
lish a violation of Wisconsin law. O’Keefe also requested
damages against five defendants: Schmitz plus the District
Attorney for Milwaukee County, two of his assistants, and
an investigator. (Judge Peterson is the sixth defendant.)
The district court held that the First Amendment to the
Constitution (applied to the states through the Fourteenth)
forbids not only penalties for coordination between political
committees and groups that engage in issue advocacy, but
also any attempt by the state to learn just what kind of coor-‐‑
dination has occurred. 2014 U.S. Dist. LEXIS 63066 (E.D. Wis.
May 6, 2014). It issued this injunction:
The Defendants must cease all activities related to the investiga-‐‑
tion, return all property seized in the investigation from any in-‐‑
dividual or organization, and permanently destroy all copies of
information and other materials obtained through the investiga-‐‑
tion. Plaintiffs and others are hereby relieved of any and every
Nos. 14-‐‑1822 et al. 5
duty under Wisconsin law to cooperate further with Defendants’
investigation. Any attempt to obtain compliance by any Defend-‐‑
ant or John Doe Judge Gregory Peterson is grounds for a con-‐‑
tempt finding by this Court.
Id. at *36–37. The court scheduled proceedings on plaintiffs’
request for damages and rejected defendants’ argument that
they enjoy qualified, if not absolute, immunity. We immedi-‐‑
ately stayed the portion of the injunction requiring docu-‐‑
ments to be returned or destroyed and set the case for expe-‐‑
dited briefing and argument.
The issuance of injunctive relief directly against Judge
Peterson is hard to justify in light of the Anti-‐‑Injunction Act,
and the district court did not try to do so. The Anti-‐‑
Injunction Act embodies a fundamental principle of federal-‐‑
ism: state courts are free to conduct their own litigation,
without ongoing supervision by federal judges, let alone
threats by federal judges to hold state judges in contempt.
The scope given to state litigation is especially great in the
realm of criminal investigations and prosecutions, a princi-‐‑
ple that led to Younger, which requires a federal court to ab-‐‑
stain even if an injunction would be justified under normal
principles, except in rare situations. See Sprint Communica-‐‑
tions, Inc. v. Jacobs, 134 S. Ct. 584 (2013), which discusses the
current state of Younger’s abstention doctrine.
Courts of appeals have disagreed about the extent to
which Younger compels abstention when states are conduct-‐‑
ing grand-‐‑jury investigations (which John Doe proceedings
are like). Compare Craig v. Barney, 678 F.2d 1200, 1202 (4th
Cir. 1982), and Texas Association of Business v. Earle, 388 F.3d
515, 519–20 (5th Cir. 2004), with Monaghan v. Deakins, 798
F.2d 632, 637–38 (3d Cir. 1986), vacated in part on other
grounds, 484 U.S. 193 (1988), and with Kaylor v. Fields, 661
6 Nos. 14-‐‑1822 et al.
F.2d 1177, 1182 (8th Cir. 1981). We need not take sides, be-‐‑
cause principles of equity, comity, and federalism (Mitchum,
407 U.S. at 243) counsel against a federal role here. See also
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7
(2008) (standards for preliminary injunction).
One important question is whether the plaintiff suffers
irreparable injury. O’Keefe and the Club say yes, because
donations have dried up, but that’s not the right temporal
perspective. We must ask whether the injury would be ir-‐‑
reparable if the federal court were to stay its hand. And it is
hard to see that kind of injury, because plaintiffs obtained
effective relief from Judge Peterson before the federal judge
acted—indeed, before filing this suit. True, uncertainty will
continue pending appellate review within the Wisconsin ju-‐‑
diciary, and this may well affect donations, but the com-‐‑
mencement of this federal suit also produces uncertainty,
because it entails review by a district judge, three or more
appellate judges, and potentially the Supreme Court of the
United States. The state case might be over today had the
district judge allowed it to take its course.
A second important question is whether the plaintiff has
adequate remedies at law (which is to say, without the need
for an injunction). That Judge Peterson entertained and
granted the motion to quash shows that the answer is yes.
A third important question is whether federal relief is
appropriate in light of normal jurisprudential principles,
such as the rule against unnecessary constitutional adjudica-‐‑
tion. Courts must strive to resolve cases on statutory rather
than constitutional grounds. See, e.g., New York City Transit
Authority v. Beazer, 440 U.S. 568, 582 (1979). Yet the district
court waded into a vexed field of constitutional law need-‐‑
Nos. 14-‐‑1822 et al. 7
lessly. Judge Peterson had already concluded that the inves-‐‑
tigation should end as a matter of state law, because prose-‐‑
cutor Schmitz lacks evidence that state law has been violat-‐‑
ed. The result is an injunction unnecessary at best, advisory
at worst.
Declaring “X violates the Constitution” is advisory if the
state does not use rule X to begin with. The Supreme Court
of Wisconsin may disagree with Judge Peterson, and prose-‐‑
cutor Schmitz argues that state law is on his side, see Wiscon-‐‑
sin Coalition for Voter Participation, Inc. v. Wisconsin Elections
Board, 231 Wis. 2d 670 (Wis. App. 1999), so we cannot yet
know whether the federal injunction is advisory, but we are
confident that it is imprudent. Sometimes district judges
must abstain to allow state courts to resolve issues of state
law, see Texas Railroad Commission v. Pullman Co., 312 U.S.
496 (1941), but as with Younger we are not invoking a man-‐‑
datory-‐‑abstention command but instead are asking whether
normal principles of equity support the district court’s ap-‐‑
proach.
Younger and its successors, including Sprint Communica-‐‑
tions, do show, however, that the policy against federal inter-‐‑
ference in state litigation is especially strong when the state
proceedings are criminal in nature. That’s a fourth important
subject militating against a federal injunction.
Mitchum held that a judge may use §1983 to support an
anti-‐‑suit injunction, notwithstanding §2283, only when justi-‐‑
fied in light of “the principles of equity, comity, and federal-‐‑
ism that must restrain a federal court when asked to enjoin a
state court proceeding.” 407 U.S. at 243. Yet the district court
gave those principles no weight. The court did say that an
injunction is appropriate because the defendants have acted
8 Nos. 14-‐‑1822 et al.
“in bad faith” but did not hold a hearing, so that the court
must have meant bad faith objectively rather than subjective-‐‑
ly—in other words, the federal judge must have thought that
no reasonable person could have believed that the John Doe
proceeding could lead to a valid conviction. See Mitchum,
407 U.S. at 230–31, relying on Younger, 401 U.S. at 53, and Pe-‐‑
rez v. Ledesma, 401 U.S. 82, 85 (1971).
One version of objective bad faith was the one on which
we relied in Mulholland v. Marion County Election Board, 746
F.3d 811 (7th Cir. 2014), when holding that a district judge
properly issued an injunction to prevent state law-‐‑
enforcement personnel from prosecuting a supposed viola-‐‑
tion of Indiana’s election laws. No reasonable person could
have thought that the proceeding would lead to a valid con-‐‑
viction, because the defendants were prohibited by a federal
injunction, issued a decade earlier, from penalizing those
very tactics. That injunction had been issued when no state
prosecution was pending; that’s the right time for federal
courts to determine the validity of state campaign regula-‐‑
tions. See, e.g., Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334 (2014); Wisconsin Right to Life, Inc. v. Barland, 751 F.3d
804 (7th Cir. 2014); Center for Individual Freedom v. Madigan,
697 F.3d 464 (7th Cir. 2012). We held that defendants could
not shelter behind Younger to avoid an outstanding federal
resolution. Nothing of the kind happened in this investiga-‐‑
tion; until the district court’s opinion in this case, neither a
state nor a federal court had held that Wisconsin’s (or any
other state’s) regulation of coordinated fund-‐‑raising and is-‐‑
sue advocacy violates the First Amendment.
Starting with Buckley v. Valeo, 424 U.S. 1, 46–47, 78 (1976),
the Supreme Court has stated repeatedly that, although the
Nos. 14-‐‑1822 et al. 9
First Amendment protects truly independent expenditures
for political speech, the government is entitled to regulate
coordination between candidates’ campaigns and purport-‐‑
edly independent groups. See also, e.g., FEC v. Colorado Re-‐‑
publican Federal Campaign Committee, 533 U.S. 431, 447 (2001);
McConnell v. FEC, 540 U.S. 93, 202–03, 219–23 (2003), over-‐‑
ruled in part on other grounds by Citizens United v. FEC, 558
U.S. 310 (2010). This is so because Buckley held that the Con-‐‑
stitution allows limits on how much one person can contrib-‐‑
ute to a politician’s campaign. If campaigns tell potential
contributors to divert money to nominally independent
groups that have agreed to do the campaigns’ bidding, these
contribution limits become porous, and the requirement that
politicians’ campaign committees disclose the donors and
amounts becomes useless.
The Supreme Court has yet to determine what “coordina-‐‑
tion” means. Is the scope of permissible regulation limited to
groups that advocate the election of particular candidates, or
can government also regulate coordination of contributions
and speech about political issues, when the speakers do not
expressly advocate any person’s election? What if the speech
implies, rather than expresses, a preference for a particular
candidate’s election? If regulation of coordination about
pure issue advocacy is permissible, how tight must the link
be between the politician’s committee and the advocacy
group? Uncertainty is a powerful reason to leave this litiga-‐‑
tion in state court, where it may meet its end as a matter of
state law without any need to resolve these constitutional
questions.
The district court thought that the Supreme Court will
overrule what remains of Buckley, as some Justices have pro-‐‑
10 Nos. 14-‐‑1822 et al.
posed. See, e.g., Colorado Republican Federal Campaign Com-‐‑
mittee v. FEC, 518 U.S. 604, 635–40 (1996) (Thomas, J., dissent-‐‑
ing in part). If the Constitution forbids all regulation of cam-‐‑
paign contributions, there is no basis for regulating coordi-‐‑
nation either. After all, the rationale for regulating coordina-‐‑
tion has been to prevent evasion of contribution limits and
ensure the public identification of persons who contribute to
politicians’ war chests. Yet although the Court’s views about
the proper limits of campaign-‐‑finance regulation continue to
change, see Citizens United (overruling part of McConnell)
and McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (overruling a
portion of Buckley that dealt with aggregate contribution lim-‐‑
its across multiple candidates), it has yet to disapprove the
portion of Buckley holding that some regulation of contribu-‐‑
tions to candidates is permissible. Justice Thomas wrote sep-‐‑
arately in McCutcheon, 134 S. Ct. at 1462–65 (concurring in
the judgment), precisely because a majority was unwilling to
revisit that aspect of Buckley.
The district court’s belief that a majority of the Court
eventually will see things Justice Thomas’s way may or may
not prove correct, but as the Supreme Court’s doctrine
stands it is not possible to treat as “bad faith” a criminal in-‐‑
vestigation that reflects Buckley’s interpretation of the First
Amendment. Nor does it help plaintiffs to accuse defendants
of “retaliation”. That just restates the point that campaign-‐‑
finance regulation concerns speech; it does not help to de-‐‑
cide whether a particular kind of regulation is forbidden. Cf.
Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009).
What we have said shows not only that an injunction was
an abuse of discretion but also that all defendants possess
qualified immunity from liability in damages. Public officials
Nos. 14-‐‑1822 et al. 11
can be held liable for violating clearly established law, but
not for choosing sides on a debatable issue. See, e.g., Wilson
v. Layne, 526 U.S. 603, 618 (1999) (“If judges … disagree on a
constitutional question, it is unfair to subject police to money
damages for picking the losing side of the controversy.”).
The district court thought the law clearly established be-‐‑
cause, after all, the First Amendment has been with us since
1791. But the right question is what the Constitution means,
concretely, applied to a dispute such as this. The Justices for-‐‑
bid the use of a high level of generality and insist that law is
not “clearly established” until “existing precedent [has]
placed the statutory or constitutional question beyond de-‐‑
bate.” Ashcroft v. al-‐‑Kidd, 131 S. Ct. 2074, 2083 (2011). See al-‐‑
so, e.g., Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Wood v.
Moss, 134 S. Ct. 2056 (2014).
Plaintiffs’ claim to constitutional protection for raising
funds to engage in issue advocacy coordinated with a politi-‐‑
cian’s campaign committee has not been established “be-‐‑
yond debate.” To the contrary, there is a lively debate among
judges and academic analysts. The Supreme Court regularly
decides campaign-‐‑finance issues by closely divided votes.
No opinion issued by the Supreme Court, or by any court of
appeals, establishes (“clearly” or otherwise) that the First
Amendment forbids regulation of coordination between
campaign committees and issue-‐‑advocacy groups—let alone
that the First Amendment forbids even an inquiry into that
topic. The district court broke new ground. Its views may be
vindicated, but until that day public officials enjoy the bene-‐‑
fit of qualified immunity from liability in damages. This
makes it unnecessary for us to consider whether any de-‐‑
fendant also enjoys the benefit of absolute prosecutorial im-‐‑
munity, which depends on the capacities in which they may
12 Nos. 14-‐‑1822 et al.
have acted at different times. See Buckley v. Fitzsimmons, 509
U.S. 259 (1993).
Finally, we must address a dispute between the litigants
and several intervenors, who asked the district judge to dis-‐‑
close (the Reporters Committee for Freedom of the Press,
among others) or conceal (Unnamed Intervenors No. 1 and
No. 2) documents that have been gathered during the John
Doe proceeding and filed in federal court. The district judge
ordered eight particular documents to remain under seal
and reserved decision on others. 2014 U.S. Dist. LEXIS 83456
(E.D. Wis. June 19, 2014). The Reporters Committee ap-‐‑
pealed. Our jurisdiction, based on the collateral-‐‑order doc-‐‑
trine, see United States v. Blagojevich, 612 F.3d 558, 560 (7th
Cir. 2010); Grove Fresh Distributors, Inc. v. Everfresh Juice Co.,
24 F.3d 893, 895–96 (7th Cir. 1994), is limited to those eight
documents.
The Reporters Committee invokes the presumption of
public access to all documents that may have influenced a
federal court’s decision. See, e.g., Greenville v. Syngenta Crop
Protection, LLC, No. 13-‐‑1626 (7th Cir. Aug. 20, 2014); Baxter
International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir.
2002). The Unnamed Intervenors, who are subjects of the
John Doe inquiry, invoke the presumption that documents
gathered as part of a grand jury investigation remain confi-‐‑
dential, see United States v. Sells Engineering, Inc., 463 U.S. 418
(1983); Douglas Oil Co. of California v. Petrol Stops Northwest,
441 U.S. 211 (1979), and with good reason they treat a John
Doe proceeding as functionally equivalent to a federal grand
jury investigation. Plaintiffs O’Keefe and Club for Growth
invoke the rule that private advocacy organizations and
their contributors often are entitled to anonymity, lest public
Nos. 14-‐‑1822 et al. 13
disfavor unduly raise the cost of speech. See NAACP v. Ala-‐‑
bama, 357 U.S. 449, 462–63 (1958); Perry v. Schwarzenegger, 591
F.3d 1147, 1160 (9th Cir. 2009).
The analogy to grand jury proceedings is the strongest of
these three. The Supreme Court wrote in Sells Engineering:
“We consistently have recognized that the proper function-‐‑
ing of our grand jury system depends upon the secrecy of
grand jury proceedings. … [I]f preindictment proceedings
were made public, many prospective witnesses would be
hesitant to come forward voluntarily, knowing that those
against whom they testify would be aware of that testimony.
Moreover, witnesses who appeared before the grand jury
would be less likely to testify fully and frankly, as they
would be open to retribution.” 463 U.S. at 424, quoting from
Douglas Oil. But we do not think that any of the three analo-‐‑
gies is dispositive.
Once again, federalism supplies the reason. The docu-‐‑
ments that the litigants want to disclose, or conceal, were
gathered as part of a state proceeding. Wisconsin, not the
federal judiciary, should determine whether, and to what
extent, documents gathered in a John Doe proceeding are
disclosed to the public. See Socialist Workers Party v. Grubisic,
619 F.2d 641, 643 (7th Cir. 1980) (“federal common law …
accords at least a qualified privilege to the records of state
grand jury proceedings”). Otherwise the very fact that
someone chose to complain, in federal court, about the con-‐‑
duct of an ongoing state investigation would defeat the state
interest in secrecy, even if the federal court concludes—as
we have done in this opinion—that the controversy does not
belong in federal court. It is easy to file complaints and drop
documents into the federal record, but overcoming a state-‐‑
14 Nos. 14-‐‑1822 et al.
law privilege for investigative documents requires more
than that. Otherwise state rules would be at every litigant’s
mercy.
The state court entered a comprehensive order regulating
disclosure of documents in the John Doe proceeding. (It also
issued a gag order, forbidding subpoenaed parties to talk
about what was happening, but no one has challenged that
order, and we do not address its propriety.) Wisconsin’s ju-‐‑
diciary must decide whether particular documents gathered
in the investigation should be disclosed. The district court
should ensure that sealed documents in the federal record
stay sealed, as long as documents containing the same in-‐‑
formation remain sealed in the state-‐‑court record.
The injunction is reversed. The district court’s order re-‐‑
jecting the immunity defense is reversed. The district court’s
order maintaining eight documents under seal is affirmed.
The case is remanded with instructions to dismiss the suit,
leaving all further proceedings to the courts of Wisconsin.