### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No s

. 14

- 1822, 14

- 1888, 14

- 1899, 14

- 2006, 14

- 2012, 14

- 2023 & 14

- 2585
E RIC O’K EEFE and W ISCONSIN C LUB FOR G ROWTH , I NC

. , Plaintiffs

- Appellees
,

v.
J OHN T. C HISHOLM , et al

. , Defendants

- Appellants

. F RANCIS S CHMITZ , Defen dant

- Appellant / Cross

- Appellee

. R EPORTERS C OMMITTEE FOR F REEDOM OF THE P RESS , et al
., Intervenors

- Appellants.

U NNAMED I NTERVENORS N O

. 1 AND N O

. 2 , Intervenors

- Appellees.

____________________ Appeal s from the Unit ed States District Court for the Eastern District of Wisconsin

. No. 14

- C

- 139

— Rudolph T. Randa
, Judge

.

____________________
A RGUED S EPTEMBER 9, 2014

— D ECIDED S EPTEMBER 24, 2014

____________________2 Nos. 14

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Before W OOD , Chief Judge , and B AUER and E A STERBROOK , Circuit Judges

. E ASTERBROOK , Circuit Judge

. A federal district judge i ssued an injunction that blocks the State of Wisconsin from conducting a judicially supervised criminal investigation i nto 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 jurisdi ction, or to protect or effectuate its judgments. ” Mitchum v. Foster , 407 U.S. 225 (1972), holds that 42 U.S.C. §1983 autho rizes anti

- suit injunc tions but adds that principles of “equity, comity, and federa lism” (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 pre sent a situation in which state proceedings may be displaced

. The ongoing criminal investigation is being supervis ed by a judge, in lieu of a grand jury. Wis. Stat. §968.26. Pros ecutors in Wisconsin can ask the state’s courts to conduct th ese inquiries, which go by the name “John Doe proceeding s ” because they may begin without any particular target. The District A ttor ney for Milwaukee County made such a r equest 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 parti cular i ssues. (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

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Whether, and if so how, this group and the campaign co mmittee have coordinated their activities is a subject we need not consider.) Wisconsin’s Govern ment Accountability Board, which supervises campaigns and conducts elections, likewise called for an investigation. District Attorneys in four other counties made similar requests. Eve ntually a si ngle John Doe proceed ing was established , with Gregory P eterson as the judge and Francis Schmitz as the special pros ecutor. Judge Peterson has been recalled to service following his retirement from a post on the state’s court of appeals; Schmit z, an attorney in private practice, used to be an Assi stant United States Attorney in Milwaukee

. At the behest of special prosecutor Schmitz, the court i ssued subpoenas requiring their recipients to produce doc uments . 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 spark ed a recall election for the Governor. (Both the S upreme Court of Wisconsin and this court have held that the legislation promoted by the Club for Growth is valid. Mad ison Teachers, Inc. v. Walker , 2014 WI 99 (July 31, 2014); Labo rers Local 236 v. Walker
, 749 F.3d 628 (7th Cir. 2014) .) The su bpoena 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 anony mity. O’Keefe moved to qua sh the subpoena, which he mai ntains is designed to punish his, and the Club’s, support for controversial legislation, rather than to investigate a viol a-4 Nos. 14

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tion of state law. He contended that revealing to the state lists of contribut ors would harm the organization’s ability to raise funds

— and this even though all information is covered by a broad secrecy or der

. Judge Peterson quashed the su bpoena, ruling that the evidence is not necessary to the inve stigation. One of his reasons is th at Schmitz has not esta blished 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 S upreme Court of Wisconsin to grant review, bypassing the Court of Appeals. Before e ither 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 investig ation permanently, whether or not the prosecutor could esta blish 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 Pet erson 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 advo cacy, but also any attempt by the state to learn just what kind of coo rdination has occurred. 2014 U.S. Dist. L EXIS 63066 (E.D. Wis. May 6, 2014). It issued this injunction:
The Defendants must cease all activities related to the investig ation, return all property seized in the investigation from any i ndividual or organization, and permanently destroy all copies of information and other materials obtained through the investig ation. Plaintiffs and others are hereby relieved of any and everyNos. 14

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duty under Wiscon sin law to co operate further with Defendants’ investigation. Any attempt to obtain compliance by any Defen dant or John Doe Judge Gr egory Peterson is grounds for a co ntempt 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 immed iately stayed the portion of the injunction requiring doc uments to be returned or destroyed and set the case for exp edited briefing and arg ument. 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 federa lism : state cour ts 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 investigation s and prosecutions, a princ iple that led to Younger , which requires a federal court to a bstain even if an injunction would be justified under normal principles, except in rare situations. See Sprint Communic ations, Inc. v. Jacobs , 134 S. Ct. 584 (2013), wh ich 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 conduc ting grand

- jury investigations (which John Doe proceedings are like) . Compare Crai g 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 wi th Kaylor v. Fields , 6616 Nos. 14

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F.2d 1177 , 1182 (8th Cir. 1981)

. We need not take sides, b ecause 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 quest ion 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 a sk whether the injury would be i rreparable 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 sui t. True, uncertainty will continue pending appellate review within the Wisconsin j udiciary, and this may well affect donations, but the co mmencement of this federal suit also pro duces uncertainty, because it entails review by a district judge, three or mor e 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,

s uch as the rule against unnecessary constitutional adjudic ation. C ourts 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 wad ed into a vexed fie ld of constitutional law nee d-Nos. 14

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lessly

. Judge Peterson had already concluded that the inve stigation should end as a matter of state law, because pros ecutor Schmitz lacks evidence that state law has been viola ted. The result is an injunction unnecessa ry 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 pros ecutor Schmitz argues that state law is on his side, see Wisco nsin 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

mu st 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 ma ndatory

- abstention command but instead are asking whether normal principles of equity support the district court’s a pproach. Younger and its successors, including Sprint Communic ations , do show, however, that the policy against federal inte rference 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 just ified in light of “the principles of equity, com ity, and federa lism that must restrain a federal court when asked to enjoin a state court proceeding.” 407 U.S. at 243. Yet the district court gave tho se principles no weight. The court did say that an injunction is appropriate because the defendants have acted8 Nos. 14

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“in bad faith ” but did not hold a hearing, so that the court must have mean t bad faith objectively rather than subjectiv ely

— 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 P erez 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 viol ation of Indiana’s election laws. No reasonable person could have thought that the proceeding woul d lead to a valid co nviction , 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 regul ations. 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 investig ation; until the district court’s opinion in this case, neit her a state nor a federal court had held that Wisconsin’s (or any other state’s) regulation of coordinated fund

- raising and i ssue adv ocacy violates the First Amendment. Starting with Buckley v. Valeo , 424 U.S. 1, 46

– 47, 78 (1976), the Supreme Court has sta ted repeatedly that, al though theNos. 14

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First Amendment protects truly independent expenditures for political speech, the government is entitled to regulate coordination between candidates’ campaigns and purpor tedly independent groups. See also , e.g., FEC v. Col orado R epublican Federal Campaign Committee , 533 U.S. 431, 447 (2001) ; McConnell v. FEC , 540 U.S. 93, 202

– 03 , 219

– 23 (2003 ), ove rruled in part on other grounds by Citizens United v. FEC , 558 U.S. 310 (2010). This is so because Buckley held that the Co nstit ution allows limits on how much one person can contri bute 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 p orous, and the requirement that politicians’ campaign committees disclose the donors and amounts become s useless

. The Supreme Court has yet to determine what “co ordin ation” 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 i mplies, rather t han 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 litig ation in state court, where it may meet its end as a mat ter of state law without any need to resolve these constitutional question s

. The district court thought that the Supreme Court will overrule what remains of Buckle y , as some Justices have pr o-10 Nos. 14

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posed. See , e.g., Colorado Republican Federal Campaign Co mmittee v. FEC , 518 U.S. 604, 635

– 40 (1996) (Thomas, J., dissen ting in part) . If the Constitution forbids all regulation of ca mpaign contributions, there is no basis for r egulating coord ination either. After all, the rationale for regulating coordin ation 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 li mits acro ss multiple candidates), it has yet to disapprove the portion of Buckley holding that some regulation of contrib utions to candidates is permissible. Justice Thomas wrote se parately in McCutcheon , 134 S. Ct. at 1462

– 65 (concurring in the judgment), precisel y 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 no t possible to treat as “bad faith” a criminal i nvestigation that reflects Buckley ’s interpretation of the First Amendment. Nor does it help plaintiffs to accuse defe ndants of “retaliation”. That just restates the point that campaign

finance regulation concerns speech; it does not help to d ecide 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 officialsNos. 14

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can be held liable for violating clearly established law, but not for choosing sides on a debatable issue. See, e.g., Wilson v. Layn e , 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 b ecause, after all, t he First Amend ment 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 fo rbid the use of a high level of generality and insist that law is not “clearly established” until “ existing precedent [has] placed the statu tory or constitutional question beyond d ebate.” Ashcroft v. al

- Kidd , 131 S. Ct. 2074, 2083 (2011). See a lso, e.g., Plumhoff v. Rickard , 134 S. Ct. 2012 (2014); Wood v. Moss , 134 S. Ct. 2056 (2014).
Plaintiff s’ claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a polit ician’s campaign committee has not been established “b eyond debate.” To the contrary, there is a lively debate among judges and ac ademic analyst s. T he 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 betwee n 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 ben efit of qualified immunity from liability in damages. This makes it unnecessary for us to consider whether any d efendant also enjoy s the benefit of absolute prosecutorial i mmunity, which depends on the capacities in which they may12 Nos. 14

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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 di sclose (the Reporters Committee for Freedom of the Press, among others) or conceal (Unnamed Intervenor s 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. L EXIS 83456 (E.D. Wi s. June 19, 2014). The Reporters Committee a ppealed. Our jurisdi ction, based on the collateral

- order do ctrine, 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 investigati on remain conf idential, 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 fu nctionally equivalent to a f ederal 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 publicNos. 14

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disfavor unduly raise the cost of speech. See NAACP v. Al abama
, 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 functio ning 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 test ify 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 ret ribution. ” 463 U.S. at 424 , quoting from Douglas Oil . But we do not think that any o f the three anal ogies is dispositive. Once again, federalism supplies the reason. The doc uments that the litigants want to disclose, or conceal, were gathered as part of a state proceeding. Wisconsin, not the federal judiciary, should determine whether, an d 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 gran d jury proceedings ”). Otherwise the very fact that someone chose to complain, in federal court, about the co nduct of an ongoing state investigation would defeat the state interest in secrecy , even if the federal court concludes

— as we have done in this opin ion

— that the controversy does not belong in federal court. It is easy to file com plaints and drop documents into the federal record, but overcoming a state

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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 j udiciary must decide whether particular documents gathered in the investigati on should be disclosed. The district court should ensure that sealed documents in the federal record stay sealed, as long as documents containing the same i nformation remain sealed in the state

- court record. The injunction is reversed. The district court’s order r ejecting 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.