If a John Doe complaint alleges all the elements of a criminal offense, the judge must refer it to the district attorney for investigation.
The court cannot refuse to refer it based on extrinsic facts, such as the complainant’s history of filing unsubstantiated complaints.
“[E]ven a litigant who has abused the legal process in the past may find himself to be the victim of an actual crime,” Judge Gary E. Sherman wrote for the Wisconsin Court of Appeals on Sept. 9.
A state prisoner, Hakim Naseer filed two John Doe complaints.
In the first, he alleged that a prison guard committed a criminal act by denying him a full course meal or an adequate serving of a hot meal.
Columbia County Circuit Court Judge James Miller referred the complaint to the district attorney, who declined to prosecute. Judge Miller then determined no further proceedings were necessary because the facts alleged did not constitute a criminal act, even if true.
In the second case, Naseer alleged that a prison guard committed a criminal act by squeezing his neck, for no legitimate purpose, to the point that he was gasping for oxygen.
Grant County Circuit Court Judge Craig R. Day refused to refer the complaint to the district attorney because of Nasser’s history of abusing the legal process.
Nasser petitioned the Court of Appeals for mandamus in both cases. The court consolidated the petitions, and granted the petition in the Grant County case; in the Columbia County case, it denied the petition.
Under the recently amended John Doe statute, a judge “shall” refer a John Doe complaint to the district attorney whenever a person claims to have “reason to believe that a crime has been committed within the judge’s jurisdiction.” Section 968.26(2)(am).
If the district attorney declines to prosecute, the judge shall convene a hearing if the judge finds it is necessary to determine if a crime has been committed. If the judge then finds sufficient credible evidence to warrant prosecution, it may issue a criminal complaint.
The court concluded, “a judge has a mandatory duty to refer a John Doe complaint to the district attorney only if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge’s jurisdiction.”
Applying the standard to the Columbia County case, the court concluded that Judge Miller had no obligation to refer the case to the prosecutor in the first instance, much less convene a hearing after the district attorney declined to prosecute.
Judge Sherman found, “Naseer’s complaint provides no information that would establish that he was in any way malnourished from the single, objectionable meal, or that there was any ongoing pattern of depriving him of nutritionally adequate meals. Because Judge Miller was not obligated to refer Naseer’s complaint to the district attorney in the first instance, he was certainly not obligated to conduct further proceedings.”
But the court held that the Grant County case should have been referred to the district attorney.
“Critical to our analysis is the requirement that the initial evaluation be limited to the four corners of the complaint,” the court emphasized. “Judge Day erred by considering Naseer’s history of filing unsubstantiated John Doe complaints, information that is extrinsic to the complaint.”
The court acknowledged that the complainant’s litigation history may be relevant later in the proceedings. But the court found it cannot be used to determine whether the alleged facts suffice to warrant initial referral to the district attorney.
David Ziemer can be reached at email@example.com
What the court held
Issues: Can a judge look outside the four corners of a John Doe complaint in deciding whether to refer it to the district attorney for prosecution?
Holdings: No. During the initial step in the process, information extrinsic to the complaint cannot be considered.
Attorneys: For Petitioner: pro se; for Respondents: Kevin C. Potter; David C. Rice, Gregory M. Weber, Madison