Court can review John Doe judge

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The court of appeals has jurisdiction to issue a supervisory writ to a John Doe judge, the Wisconsin Supreme Court held on May 1.

The court further held that a John Doe judge has the authority to disqualify counsel for a witness, and that when documents are submitted under seal to the court of appeals from a secret John Doe proceeding, the court must conduct an in camera review of those documents prior to continuing the seal.

Caucus Investigation

A John Doe proceeding was begun in 2001 before Dane County Circuit Court Judge Sarah B. O’Brien to investigate possibly illegal campaign activity by the partisan caucuses of the Wisconsin Senate and Wisconsin Assembly, as well as various state employees and legislators. The proceeding is subject to a secrecy order.

Three unnamed persons were subpoenaed to testify. The district attorney moved that two of the persons’ attorneys be disqualified because of conflicts of interest related to prior representation by their firms of other witnesses in the investigation.

Because the secrecy order precluded disclosure of those witnesses’ names, the conflicts could not be cured, and the judge granted the motions to disqualify. Both witnesses filed petitions for supervisory writs asking the court of appeals to issue a writ precluding the John Doe judge from disqualifying their attorneys.

The third witness moved that the district attorney be disqualified because of an impermissible conflict of interest, but the John Doe judge denied the motion.

The court of appeals certified the petitions to the Wisconsin Supreme Court, which held that the court of appeals has supervisory authority over a John Doe judge, in a per curiam opinion. Chief Justice Shirley S. Abrahamson wrote a concurring opinion, and Justice Diane S. Sykes dissented.

Jurisdiction

The court of appeals’ jurisdiction is set forth in Article VII, Section 5(3) of the Wisconsin Constitution, which provides: “The appeals court shall have such appellate jurisdiction in the district, including jurisdiction to review administrative proceedings, as the legislature may provide by law, but shall have no original jurisdiction other than by prerogative writ. The appeals court may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts in the district.”

The court found two reasonable interpretations of the provision: (1) because a John Doe judge is not a “court,” the court of appeals lacks jurisdiction; or (2) because the provision is a broad grant of authority to the court of appeals, it has jurisdiction, nevertheless. Accordingly, the court turned to extrinsic factors, and concluded that the history supports a broad construction.

Before creation of the court of appeals in 1978, actions of a John Doe judge were subject to review by the circuit court, which had appellate jurisdiction of “all inferior courts and tribunals.” The constitutional amendment, however, transferred most of the appellate functions of circuit courts to the court of appeals.

The court acknowledged that the failure to include the word “tribunal” in Article VII, Section 5(3), makes it unclear whether the authority to review John Doe proceedings was vested with the court of appeals.

However, Rule 809.51(1), enacted contemporaneously with the creation of the court of appeals, provides, “A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum.

The court acknowledged that the statute cannot expand the court’s jurisdiction beyond that which Article VII, Section 5(3) provides. Nevertheless, the court concluded, “this provision was enacted contemporaneous with the reorganization of the court system and we are of the opinion it reflects the court of appeals’ broad authority to issue a supervisory writ over an ‘other person or body’ over which it has supervisory jurisdiction, including a John Doe judge.”

The court cited previous cases interpreting the reference to “court” or “other person or body” to include a Register in Probate, and a clerk of the circuit court.

Furthermore, in State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 571 N.W.2d 385 (1997), the court upheld a supervisory writ issued by the court of appeals to a John Doe judge, implicitly approving the court of appeals’ jurisdiction.

The court acknowledged the anomaly that the court of appeals has supervisory jurisdiction over John Doe judges, but cannot review a John Doe judge’s final determinations. Dismissing the anomaly, the court stated, “we note that all that
can issue from a John Doe proceeding is a complaint. The validity of such a complaint will be scrutinized in the circuit court. For example, probable cause to bind over for arraignment and trial may be tested in a preliminary examination in the circuit court.

In this sense, then, the final determination of a John Doe proceeding is subject to review.”

The court then distinguished the case of State ex rel. Swan v. Elections Board, 133 Wis. 2d 87, 394 N.W.2d 732 (1986). In Swan, the Supreme Court held that the court of appeals has no jurisdiction to issue a writ to the Wisconsin Elections Board.

Swan is distinguishable, the court concluded, because the Elections Board is an administrative agency, and state statutes expressly provide for review of such decisions in the circuit courts, while no such authority exists for John Doe proceedings.

Disqualification

Turning to the merits, the court held that John Doe judges have the authority to disqualify attorneys for conflicts of interest.

The court acknowledged that the John Doe statute, sec. 968.26, provides, “counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge.” Nevertheless, the court concluded, “While the John Doe judge may impose limits on counsel’s right of advocacy, this provision should not be interpreted to preclude the John Doe judge from entertaining argument when necessary to ensure procedural fairness. This is consistent with the practice of many John Doe tribunals. … (cites omitted).”

The court found the ability to disqualify counsel likewise necessary to ensure procedural fairness, concluding, “Denying a John Doe judge the ability to disqualify counsel would seriously reduce the ability of the John Doe judge to carry out his or her responsibilities with respect to the proper conduct of John Doe proceedings.”

The court added, however, that John Doe judges must create an adequate record for review. The court stated, “We appreciate that the John Doe judge could conclude that the terms of the secrecy order may preclude a disclosure of the factual basis for the disqualification orders to the petitioners and their counsel. However, our system of justice demands that there be some basis set forth to facilitate review. If necessary to preserve the integrity of a secret John Doe proceeding, the details concerning the grant or denial of such a motion need not be recited in open court. The facts comprising the basis for the disqualification order may be sealed and, in the event of further review, submitted directly to the reviewing court for in camera review. Such a procedure protects the integrity of the underlying John Doe proceeding, and also protects the excluded parties from arbitrary or capricious decisions.”

In the case at bar, however, the John Doe judge had subsequently vacated the disqualification orders that were at issue. Accordingly, the court decided it need not consider whether the orders were a proper exercise of discretion.

Secrecy

Finally, the court held that the court of appeals has authority to seal the appellate record. The court reasoned, “The John Doe statute, Wis. Stat. sec. 968.26, which authorizes secrecy in John Doe proceedings, is a clear statement of legislative policy and constitutes a specific exception to
the public records law. It is critical that when a John Doe judge issues a secrecy order pursuant to Wis. Stat. sec. 968.26, the judge must be assured that secrecy will be preserved when and if the matter reaches an appellate court. Seeking review in the court of appeals must not become a vehicle to undermine the secrecy or integrity of a John Doe proceeding.”

The Concurrence

Chief Justice Abrahamson wrote separately, “to point out that the majority opinion again takes a significant step towards overruling Swan. Rather than leaving Swan to be overturned in small measures by dubious judicial distinctions, I would embrace the inevitable now by expressly overruling Swan and adopting my dissent in Swan as the interpretation of the constitutional provision granting jurisdiction to the court of appeals.”

The Dissent

Justice Sykes dissented, arguing that review of actions of a John Doe judge belongs in the circuit court, rather than the court of appeals, stating, “The scope of the court of appeals’ supervisory jurisdiction is constitutionally limited to actions and proceedings in courts (emphasis in original).” Because a John Doe judge does not act as a court, but as an investigator, she concluded that the court of appeals lacks jurisdiction.

Sykes also rejected the majority’s reliance on Rule 809.51(1) to extend the jurisdiction of the court of appeals beyond that provided in the constitution.

Citing Marbury v. Madison, 5 U.S. 137 (1803), Sykes wrote, “Although the case is obviously most revered for its forceful articulation of the judicial review power, the underlying question that precipitated that declaration of principle was jurisdictional: whether the Judiciary Act of 1789 could confer upon the Supreme Court a form of jurisdiction not included in the constitutional jurisdictional grant. The Supreme Court, of course, said no. (cites omitted).”

Sykes distinguished Reimann by noting that the court did not address the court of appeals’ jurisdiction, but merely assumed without consideration that it was present.

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Sykes also rejected the majority’s conclusion that a John Doe judge can disqualify counsel and permit argument by counsel, noting the absolute prohibition on argument by counsel in sec. 968.26.

Sykes cited State v. Washington, 83 Wis.2d 808, 266 N.W.2d 597 (1978), for its holding, “The John Doe judge should act with a view toward issuing a complaint or determining that no crime has occurred. To the extent that the judge exceeds this limitation, there is an abuse of discretion.”

Sykes concluded, “Because an attorney may be present but may not examine witnesses or argue before the judge, the statute obviously does not contemplate that the John Doe judge, as a John Doe judge, would adjudicate motions affecting the rights of targets or witnesses, as this would necessarily require at least some semblance of adversarial process, such as the opportunity for counsel to be heard, which the statute otherwise prohibits. A prosecutor’s motion to disqualify counsel would qualify as an adversarial adjudicative matter, unless we are willing to say that a judge can legitimately disqualify an attorney based upon argument from a prosecutor alone.”

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David Ziemer can be reached by email.