John Doe Proceeding – Motion for Reconsideration

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WI Supreme Court

Case Name: Francis D. Schmitz et al v. Honorable Gregory A. Peterson

Case No. 2013AP2504-W to 2013 AP 2508-W; 2014AP296-OA; 2014AP417-W to 2014AP421-W

Practice Area: John Doe Proceeding – Motion for Reconsideration

Attorney no longer possesses authority to act a special prosecutor – motion for reconsideration denied

“The fact that the court confined its legal ruling to affirming the court of appeals’ denial of the supervisory writ petition that was the subject of its review due to the applicable standard does not mean that Attorney Schmitz should be able to continue to act as the special prosecutor in all respects as if his appointment were valid. That would ignore the reality shown in Justice Prosser’s concurrence that a majority of the justices of this court conclude that his appointment was invalid. That legal conclusion of four justices set forth in Justice Prosser’s concurrence remains regardless of any subsequent actions or inactions by Attorney Schmitz or anyone else. Attorney Schmitz, however, has chosen to continue to act as the special prosecutor by filing his current motions for reconsideration and a stay in this court. Moreover, he has specifically made a continuing claim in his filings that, because of the denial of the supervisory writ filed by the Three Unnamed Petitioners, he retains complete authority to act as the special prosecutor going forward, despite the writings issued by this court on July 16, 2015. Because we are presented with his continued filings brought in his capacity as the appointed special prosecutor, we now must address the underlying legal question of Attorney Schmitz’s authority to act as the special prosecutor under the appointment orders issued by the initial John Doe II judge. If Attorney Schmitz lacks the authority to act as the special prosecutor because his appointment was invalid, then his motions could be dismissed simply on that ground without considering the arguments made in those motions. For the reasons set forth in Justice Prosser’s July 16, 2015 concurring opinion, we hold that Attorney Schmitz’s appointment as the special prosecutor in the John Doe II proceedings pending in each of the five counties was invalid. Two Unnamed Petitioners, 363 Wis. 2d 1, ¶¶203-39 (Prosser, J., concurring). With three justices having already declared agreement with Justice Prosser’s reasoning, there is no reason to repeat that reasoning here.”

ABRAHAMSON, J., concurs and dissents. (Opinion Filed)

A.W. BRADLEY, R.G. BRADLEY, J.J., did not participate.

N. PATRICK CROOKS, Jr., passed away while these motions were pending and prior to their final resolution by the court.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.