*1 Proceeding In the Matter of a John Doe Com July 25, 2001: menced Affidavit Dated State Wisconsin rel. Unnamed Person No.1, ex
Petitioner, State of Wisconsin rel. Unnamed Person No.2, ex
Petitioner, State of Wisconsin ex rel. Unnamed Person No.3,
Petitioner, v.
State of Wisconsin and the Honorable B. Sarah presiding, Respondents,
O'Brien, City- McCrea, Ron Capital Company, Times Capital Editor of the Journal Times, Sentinel, Maley, Inc. and Mark State News Editor for the Milwaukee Journal Intervenors. Sentinel,
Supreme Court 01-3220-W, argument Oral Nos. 02-0446-W 02-0831-W. 1,
September May 2002. Decided 30WI (Also 260.) reported in 660 N.W.2d *6 petitioner, 1, there Person No. Unnamed For the Reilly, by Franklyn Gimbel, M. Gimbel were briefs by argument and oral Brown, Milwaukee, & Guerin Franklyn M. Gimbel. petitioner, there Person No. Unnamed
For the Morgan, by Stephen Lee, and Suzanne L. were briefs argument Murphy Desmond, S.C., and oral Madison, & Morgan. by Stephen L. petitioner, 3, there Person No. Unnamed
For the Nagel, Goldman, F. Robert Lisa C. were briefs argu- Nagel, Madison, and oral Robert Law Offices of ment Lisa C. Goldman. respondent, Wisconsin, the cause State of
For the *7 attorney general, by argued Lee, Alan assistant was Doyle, attorney was James E. on the brief with whom general. respondent, O'Brien, B. Honorable Sarah For the by Nancy Knuteson, E. there was a brief Wheeler Wheeler,S.C., Racine, and Robert E. Hankel Powers & argument S.C., Hankel, Racine, and oral E. and Robert by Robert E. Hankel. by Robert J. there were briefs
For the intervenors Godfrey Dreps, Stadler, & and LaFollette Katherine argument Kahn, Katherine Sta- Madison, and oral dler. ques- certified 1. PER CURIAM. We review supervisory relating petitions for writ to three
tions pending proceeding a John Doe filed in connection with County Dane O'Brien, B. the Honorable Sarah before judge. In by a John Doe See the Matter Circuit Court of July Proceeding 25, dated Commenced Affidavit 02-0831-W, 2001; 02-0446-W, Certi- 01-3220-W, Nos. (Wis. 2002). App. July Mem. fication Ct. Three testify witnesses summoned to in the secret Doe proceeding separate petitions supervisory filed for appeals, challenging in the court of each certain actions asking appeals of the John Doe the court of to supervisory authority respect exercise its with to those appeals actions. The court of records, sealed the then certified these matters to this court of because concerns jurisdiction appeals as to whether the court of had supervisory judge presiding issue a writ to a a John over proceeding. appeals of court also asked for regard scope secrecy clarification in to the of an appellate proceeding. accepted record in such a We granted certification and a motion filed the Journal Capital (Newspapers) Sentinel, Inc. and The Times Co. respect scope to intervene with to the issue of the secrecy appellate proceeding. of an record in a John Doe appeals
¶ 2. We now conclude court of supervisory has to issue a writ to a John judge. We conclude further that a John Doe disqualify has the counsel for a witness a John Doe but must ensure that there ais Finally, record of that decision for review. hold that we when documents are submitted under seal connec- petition tion a with writ that stems proceeding, from a secret John Doe must conduct an in camera review of those documents prior issuing sealing an order that continues *8 applying documents, such the criteria herein. set forth underlying ¶ The 3. John Doe involves investigation by County Attorney an Dane District possible illegal activity campaign Brian Blanchard into by partisan legislative caucuses of the Wisconsin Assembly, Senate and Wisconsin as well as various state
661 underlying investiga- legislators.1 employees The by secrecy subject the John order entered to a tion is July amended order dated 27, 2001, as Doe on August 6, 2003. dated March 17, 2001 and order separate petitioners individu-
¶ three 4. The are underlying testify subpoenaed in the to als who were proceeding. filed in the were After these writs sponte appeals, ordered sua the court of court of As a result of matters sealed. all the files in these three Newspapers intervene, filed a motion to action, the this accepted granted when it which, noted, as July 29, order dated 2002. certification underly- By nature of the 5. virtue of the secret ing proceedings, this court the record before John Doe sparse. these are writ Indeed, because is somewhat proceedings appeals, do in the court of we commenced underlying John to the record of the not have access presented proceeding. this court re- The facts Doe garding petitions are as follows: each of the three PERSON NO. UNNAMED represented by Unnamed Person No. Reilly, & Brown. In the Gimbel, firm of Guerin law attorney proceeding, the district course of the disqualify Per- counsel for Unnamed filed a motion to attorney alleged grounds, 1. As the district son No. lawyers represented other firm had different at this pro- testify subpoenaed in the John witnesses ceeding. lawyers the usual waivers could not obtain secrecy clients and consents from their because disclosing precluded names of their clients. order County Attorney E. Michael McCann Milwaukee District handling investigation special prosecutor as the has served relating Democratic Caucus. Senate *9 presented 7. Based on information the Dane County Attorney, judge District the John Doe issued a disqualifying non-final order Unnamed Person No. I's alleged counsel based on the conflict of interest which subject secrecy was deemed not to waiver due to the petition super- order. Unnamed Person 1No. filed a for visory asking appeals writ2 the court of to issue a writ precluding judge disqualifying the John Doe from his or part petition, her counsel. As of this Unnamed Person challenged 1No. of the John Doe disqualify counsel in this manner. Subsequently,
¶ 8. the State moved to dismiss as moot the writ filed Unnamed Person No. indicat- ing subpoenaing that it has "no current intention" of petitioner responded Unnamed Person No. 1. The the matter is not moot because the State has not objection withdrawn its to his or her counsel and has open subpoenaing "left the door" to him or her in the future. May 30, 2002, On before the court of
acted on the motion to dismiss, the John Doe vacating disqualifying issued an order her earlier order Notwithstanding Unnamed Person No. I's counsel.3 order, this Unnamed Person 1 No. maintains that the emphasizing question matter moot, is not that the of a judge's authority disqualify counsel should be resolved. The matter was certified to this court with pending the motion to dismiss still before the court of appeals.
2 Initially, Unnamed Person No. 1 filed a motion for leave to appeal order, a non-final which the State moved to dismiss. The appeals eventually granted court of petitioner's motion to construe the a petition motion as writ. 3 May 31, 2002, On the State supplement moved to record hereby grant with this order. We that motion. 2NO. PERSON
UNNAMED *10 background procedural to Un- relevant ¶ 10. The that of Unnamed 2 is similar to Person No. named attorney to filed a motion 1. The district No. Person disqualify 2, Person No. who for Unnamed counsel Murphy represented & Desmond. the law firm of disqualification an Again, on motion was based represen- involving alleged the firm's of interest conflict proceed- multiple in the John Doe tation of ing. witnesses 1, the John ¶ Unnamed Person No. 11. As with disqualifying judge counsel based an order issued County presented Dane District on information Attorney. 2 contends that Person No. Unnamed judge private in a to the was disclosed information petitioner and the that excluded both session Accordingly, petitioner's Person No. Unnamed counsel. asking supervisory petition the court for writ4 2 filed a precluding appeals the John Doe a to issue writ disqualifying her his or counsel. from May moved to dismiss 2, 2002, the State 12. On indicating it that moot, 2's writ as Person No. Unnamed peti- subpoenaing intention" of "no current has May an John Doe issued 30, 2002, the tioner. On disqualifying vacating counsel.5 Un- the order order oppose the motion to 2 did not named Person No. to this court before matter was certified dismiss but the Accordingly, on the motion. ruled the court 4 appeal a a dual motion for leave to Petitioner No. filed writ. petition supervisory a for order as well as non-final clarify filing amended the Petitioner No. later sought. was supervisory for writ petition record supplement also filed a motion The State hereby grant the motion. order. We with this the State's motion to dismiss Unnamed Person No. 2's petition supervisory pending. for writ is still
UNNAMED PERSON NO. 3 petition 13. Unnamed Person No. 3 filed a for alleging different facts. Unnamed Per- employee Assembly 3, son No. a former Demo- subpoenaed testify Caucus, cratic was in connection underlying proceeding. with the Unnamed appeared Person No. 3 at the John Doe on March 2002 and exercised his or her Fifth Amend- rights respect questions. day ment with to several appear again, before he or she was ordered to on March petition 25, 2002, Unnamed Person filed No. 3 *11 seeking writ, a motion relief from the subpoena, stay proceeding. and a of the entire John Doe request stay Subsequently, for a was denied. Un- granted immunity open named Person No. 3 was in subpoena. court, testified and was released from the ¶ petition 14. Unnamed Person No. 3's for a writ County Attorney involved the claim that Dane District impermissible Brian Blanchard an had conflict of inter- est, such that he should not have remained involved in investigation generally, the John Doe petitioner's subpoena or in this questioning, specifically. Un- named Person No. 3 claims further that the John Doe by failing misused her discretion to exclude Attorney alleged District Blanchard because of this petitioner conflict. This asserts that the entire John grounds should be halted on the that it impermissibly Attorney tainted District Blanchard's involvement. alleged 15. As evidence of the conflict of inter- press
est, Unnamed Person No. 3 references a release Attorney District Blanchard 7, issued on June Attorney that he Blanchard disclosed which District indi- from an had certain limited assistance received early in his at Democratic Caucus vidual the Senate "[t]o press campaign. release, he In that stated own today appearance I am interest, of conflict of avoid Attorney naming County E. District Milwaukee special prosecutor as to handle inves- Michael McCann any prosecution relating tigation to," decisions of, and the Senate Democratic Caucus. Per- 16. The court denied Unnamed stay proceed-
son No. motion to the entire 3's ing. Person No. later renewed that motion Unnamed appeals again also denied it.6 The court jurisdictional parties to we directed the brief the issue herein.7 will address petition
¶ 17. No. was While Unnamed Person 3's judge, pending on court, this the John Doe before Attorney September granted 6, 2002, District alleged request investigation for an into his Blanchard's hearing, open A which to the conflict interest. was day public, September 17, 2002, on one was conducted argument September case. On before oral argument 2002, after the in this matter few hours oral finding an concluded, the John issued order impermissible that involving there no conflict of interest was Attorney District Blanchard. *12 question
¶ 18. consider The first we is whether petitions supervisory respective are the three for 6 No. this at oral Unnamed Person 3 renewed motion argument. deny stay We motion to entire John proceeding.
7 The also asked Unnamed Person No. 1 to brief court question jurisdiction.
moot. It is well settled that case is moot when a sought which, determination is aon matter when any practical legal upon rendered, cannot have effect an existing controversy. Rajchel, v. Stahovic Wis. 2d (1984). 370, 374, 363 N.W.2d243 appears may blush, 19. At first it these matters requests well be moot. bases for the writ from Unnamed No. and 2 stem Persons No. from judge's disqualifying the John Doe orders their counsel. subsequently Each of orders these was vacated. The request super- basis for Unnamed Person 3's for a No. visory allegations regarding writ stems from his or her Attorney Blanchard, District which have now been proceeding. addressed in Moreover, Un- named Person No. 3 has been released from his or her subpoena. However, if an issue moot, even this court (1) may great public address the issue if: the issue is of (2) importance; frequently the situation occurs so necessary guide a definitive decision is courts; circuit (3) likely again the issue is to arise and a decision the (4) uncertainty; court would alleviate or the issue will likely repeated, appellate be but evades review because appellate process completed review cannot be practical even undertaken in time have a effect on parties. Hensley Endicott, ex rel. v. State 2001 WI 5, 607, 245 Wis. 629 N.W.2d686. Regardless ¶ 20. of whether these matters are present they moot, we conclude that issues that are likely repeated may to be but evade review. We believe great public importance, that the are of and that issues a definitive decision from would alleviate uncertainty provide guidance to the lower courts. Accordingly, question we will address certified *13 a to issue the court of has appeals
whether Doe over a John judge presiding supervisory Doe will consider whether a John We also proceeding.8 for a counsel judge authority disqualify has the in a John Doe we will proceeding. Finally, witness of in a secrecy of an record scope appellate address stemming from a secret John petition proceeding. 21. The whether of question appeals issue a writ over has the in a John arises judge actions of a Doe proceeding nature of Doe proceedings. of the unusual John because The John Doe is an sanctioned institution and this state. usage general recognition long Washington, State v. 808, n.2, 266 83 Wis. 2d (1978).9 N.W.2d 597 candidly certifying appeals In of question, the court it in its
acknowledges that has been inconsistent treatment See, unpublished e.g., ex rel. this issue orders. State (Wis. Court, L'Minggio App. v. Circuit No. 99-2689-W Ct. Nov. 1999) 9, (concluding jurisdiction); court of has no State (Wis. Court, App. rel. No. ex Pierce v. Circuit 98-3029-W Ct. (no Court, 22,1999) jurisdiction); State Lee v. Apr. ex rel. Circuit (Wis. 2001) (not 15, addressing App. No. 01-2440-W Nov. Ct. Court, jurisdiction); State ex rel. Mentek v. Circuit No. (Wis. 2001) (not 9, addressing juris Ct. Nov. App. 01-2434—W diction). state, history proceedings in this which development at date back to least 808, 266 explained Washington, statute are in State v. 83 Wis. (1978). N.W.2d597 (1999-2000), statute, The "John Doe" Wis. Stat. 968.26 provides: complains person If a that he to a or she has reason to believe jurisdiction, crime has been within his or her committed any complainant examine under oath and witnesses shall produced by may, request him or her and at the the district *14 22. A intended an proceeding
¶ is as investigatory tool to independent,, used ascertain a crime been whether has and if so, committed by Ct., 605, whom. State ex rel. Reimann v. 214 Cir. Wis. 2d (1997) (citations omitted). 571 621, N.W.2d 385 It is "designed to innocent protect citizens from frivolous groundless and Id. prosecutions." 23. when a circuit court Typically, judge renders record, a decision a court of decision that may be the appealed directly to court of appeals pursuant to § Stat. By contrast, Wis. 808.03. a John Doe proceeding judge, is a who the by acts as tribunal. See commenced Noble, v. 64, 206, State 253 WI Wis. 646 N.W.2d attorney shall, subpoena and examine other witnesses to ascertain by a crime whether has been committed whom and committed. judge may proceed The extent to which the the examination is judge's may adjourned within the The discretion. examination be may Any may and be secret. witness examined under section present have the counsel at examination counsel but the shall not client, be allowed to his or her examine cross-examine other argue judge. appears probable witnesses or If before it from the testimony given a that crime has and been committed who it, complaint may writing signed committed be reduced to and verified; thereupon a and warrant shall for the issue arrest of 971.23, Subject proceeding secret, the accused. s. if to is proceeding testimony open record of the and the shall not taken be inspection by anyone except attorney to the district it unless is by prosecution hearing preliminary used at the or the trial of only court, the accused and then to the is so A extent that it used. attorney, may person compel testify on motion of a district a (1). produce person s. or evidence under 972.08 is immune prosecution (1), provided subject from in s. as 972.08 to the restrictions under s. 972.085. subsequent All to the references Wisconsin Statutes are to the 1999-2000 version otherwise unless indicated. in a John Therefore, an order issued
38. judgment order of a circuit court. not a or is Washington, n.2; see 2d at 814 also Wis. Stat. 83 Wis. 967.02(7) 967.02(6) § (defining (defining "judge") § "court"). judge's that a John Doe it is well settled Thus, directly appealable the court of are actions appeals not order a John Doe an issued because "circuit "court of record." not an order of a court" "[a]ppeal"); (defining § Stat. 808.01 See Wis. Stat. appeals"); ("[a]ppeals to the court of see also 808.03 Coffey, v. 18 Wis. 2d ex rel. Jackson State (1963). N.W.2d background, the na- we consider With appeals' jurisdiction scope
ture and *15 jurisdiction appeals the court of has evaluate whether supervisory a over the actions of John to issue judge. appeals' scope of the 25. The nature and court jurisdiction original appellate, supervisory, are and set in the the statutes. Wisconsin forth constitution and 5(3) provides: VII, Article Section Constitution, appeals appellate jurisdiction The shall have such district, including jurisdiction in the review admin- proceedings, legislature may provide as the istrative law, jurisdiction no than original but shall have other may The all by prerogative appeals court issue writ. have necessary jurisdiction in aid of its and shall writs supervisory proceedings over all actions and in the in the courts district. Heil, 752.01;10 also 230
Id.; see Stat. Petition Wis. (1939). 428, 42 284 N.W. 10 provides: § 752.01 Wisconsin Stat. (1) jurisdiction appeals appellate provided has as court of
law. question ¶ 26. resolve To the whether the court of has issue writ to a judge presiding proceeding, over a we must interpret 5(3), VII, Article Section as as well related statutory provisions. interprets provisions
¶ 27. This court of the Wis- County consin Constitution de Polk novo. v. State Pub. (1994). Defender, 674, 2d 665, 188 Wis. N.W.2d interpreting provision, In a constitutional the court determining provision's turns to three sources in meaning: plain meaning of the in the words context practices used; the constitutional and debates writing existence at time of of the constitution; interpretation provision by and the earliest legislature passed as manifested in the first law follow- ing adoption. 674; Beno, Id. at v. 122, State 2dWis. (1984). 123-37, 341 N.W.2d668 interpretation ap 28. The of a and statute its plication questions to a set of are facts also law that Reyes Greatway Co., we review de novo. v. Ins. 227 Wis. (1999); 357, 364-65, 597 N.W.2d 687 Landis v. Physicians Co., ¶86, 1, Ins. 2001 WI 245 Wis. 2d statutory language provision If the 628 N.W.2d893. of a unambiguous, clearly legislative sets forth the beyond language intent, we do not look itself *16 simply apply statutory provision the to the case at ¶ Landis, hand. 86, If, however, 14. WI language ambiguous, of a statute is we must look (2) appeals jurisdiction original only The court of has to issue
prerogative writs. (3) appeals may necessary The court of issue all writs in aid of its jurisdiction. things
beyond language its examine as its and such history, subject purpose, scope, to context, matter, and legislature. UFE, Inc. v. the intent of the determine (1996); Landis, 274, LIRC, 548 N.W.2d57 201 Wis. ambiguous ¶ if A reasonable 15. statute is WI meaning. UFE, Inc., 201 differ as to its minds could at Wis. 2d 5(3) might VII, be read nar- 29. Article Section appeals
rowly lacks mean the court of and taken to jurisdiction supervisory the actions of a John because That is how the Doe are not of "court." actions it. It have us construe State and dissent would authority might grant to a broad also be taken reflect appeals, which includes the the court supervisory of a writ the actions John issue a over petitioners judge. That is how the are it. Both constructions would have us construe VII, and we conclude that Article Section reasonable 5(3) grants ambiguous respect to whether it is with appeals jurisdiction supervisory to issue a writ court of proceeding. Therefore, we turn to over a John Doe history including the of the constitu- factors, extrinsic statutory contemporaneous en- enactment and tional provi- actments, the relevant constitutional evaluate sion. 5(3) sup- history VII, of Article Section 30. The
ports a construction that would imbue court to a with to issue proceeding. analy- judge presiding over a John Doe Our reorganization inextricably with sis intertwined system, in 1977, which of the Wisconsin court enacted appeals. reform, Prior to the court created system comprised Wisconsin's court was Wiscon- county Supreme Court, courts, sin circuit courts Jay Grenig municipal 4See E. & Nathan Fish- courts. *17 Practice, bach, Forms, Civil Wisconsin Procedure (1999). §§ 1.6-1.11 Before creation of the court of subject appeals, of a actions were to proceedings review initiated in a court, circuit pursuant vested the circuit court Const, § VII, Wisconsin Constitution. Wis. art. 8 (1975);11 Niedziejko Coffey, also State see ex rel. v. 22 (1964); 392, Wis. 2d 126 N.W.2d rel. 96 State ex Kow (1949). Ct., 363, aleski 254 v. Dist. Wis. 36 N.W.2d419 apparently dispute There was no that a appellate authority county circuit court's over "inferior pro other courts" and "tribunals" included John Doe ceedings, judicial because a John tribu App Noble, nal. v. 145, 22, See State 246 2001 WI Wis. 317; 2d N.W.2d State 629 ex rel. Freemon v. (1968). Cannon, 489, 493, 40 162 Wis. N.W.2d32 system ¶ 32. Effective in 1978, Wisconsin's court County completely was overhauled. courts abol- were merged county courts; ished and into circuit jurisdiction judges and were transferred circuit Bablitch, A. courts. See William Court 1977: Reform Supreme Later, The Wisconsin Court Ten Years 72 provided In the Wisconsin in relevant Constitution part: original jurisdiction The circuit courts' shall have in all state, excepted and criminal matters civil within this not constitution, law; prohibited by appellate and not hereafter and tribunals, supervi- all and courts and a inferior from sory They power control over the same. shall also have the to issue mandamus, injunction, warranto, corpus, quo writs of habeas certiorari, necessary carry all and other writs their into effect orders, decrees, give general judgments them a control jurisdictions. over courts and inferior Const, (1975) added). VII, (emphasis art. *18 (1988);12 4 & Grenig E. Nathan
Marq. Jay L. Rev. The Practice at 1.9. four districts Fishbach, Wisconsin were created and Appeals the Court of of Wisconsin in authority the set forth specifically granted were (1977) 5(3) VII, Article Section Constitution Wisconsin 752.02, Stats. at sections 752.01 and codified (1977). amending the Constitution to process The Wisconsin by reorganization was detailed Justice Bablitch:
achieve court judiciary accomplished reorganization The could not be the amending required the This without Wisconsin Constitution. agreed by proposed each of the the amendments be house Following legislature agreement, sessions. such in two consecutive the proposed were then vote of the amendments submitted people. 1977, April proposed In amendments were submitted to the overwhelmingly people for ratification. The amendments were 229,316. adopted by 455,350 to All that to be a vote of remained (footnotes omitted). enabling legislation done was the Legislature, agreed It is clear that the Wisconsin which amendments, directly language was involved It in these constitutional enactments. also process that resulted enabling legislation. enacted the Legislative special created a The Council committee on reorganization enabling legislation for the of a to draft creation Flynn Allis, by appeals. Senator court of Chaired James West special Bill committee drafted introduced Senate legislature special which was enacted in a session 1977, subsequently as of 1977 ch. Laws of November incorporated into Statutes as ch. 752. Wisconsin reorganization, ¶ 33. Consistent with this Wisconsin Constitution was amended to delete the having jurisdiction appellate reference to circuit courts of "all inferior courts and tribunals."13
¶ 34. Pursuant to the constitutional enactment, appellate previously most of the function exercised assigned newly circuit courts was to the created court of appeals. reorganization It is unclear whether the was intended to transfer the to review John Doe proceedings appeals, to the court of because the consti- tutional enactment failed to include the word "tribunal" grant in the constitutional to the court of appeals. legislative history provides no evidence *19 the constitutional enactment was intended to long-standing practice permitting deviate from the of review of the decisions of a John Doe tribunal. Dan See Working Fernbach, Document # 2: Jurisdiction the of (Wisconsin Appeals Legislative Intermediate Court of Reports; Special Reorga- Counsel Committee on Court nization) 1977); (May 16, Robert J. Martineau & Rich- Malmgren, Appellate ard R. Practice, Wisconsin 2901 (1978) ("The Appeals Court of can exercise control over any proceeding any any action or in court or before agency public body administrative or official or to protect legal rights petitioner."). the Indeed, traditionally, we have assumed that there must be some
13 respect With jurisdiction, circuit court the Wisconsin provides Constitution in part: now relevant "Except as other provided law, wise the circuit original court shall have jurisdiction in all matters civil and criminal within this state appellate jurisdiction and such in the legislature circuit as the may prescribe by law. may circuit court all issue writs Const, jurisdiction." in aid its necessary VII, § art. of (1977) added). (emphasis actions a John Doe review of the of
mechanism for ("We Washington, judge. e.g., See, at 828 83 Wis. 2d persons can accused be that witnesses believe pro- by appellate protected review of John Doe court ceedings an orders which are out- and of the court Niedziejko, proceedings."); growth 22 Wis. at of those (if judge the the show has extended facts beyond scope or the reasonable in duration improperly or has otherwise intendment of statute proceedings, he or she can be restrained conducted the discretion); Op. prohibition of abuse 1987) ("The (Sept. Att'y acts of the Gen. 87 conducting judicial quasi-judicial John Doe are subject prohibition."). to a Had the nature legislature writ of right an
intended curtail individual's proceed- in a John Doe review of an order issued seek expressly question, ing, then, it so. The could have said appropriately reviews the actions of a is which court ques- proceeding. To in a resolve this appropriate to the context in which tion, it is consider creating constitutional enactment appeals arose. legislature previously, was ex 35. As noted
tensively ap in the creation the court involved scope jurisdiction. April including peals, In of its by over a 1977, the voters of endorsed Wisconsin *20 margin court the establishment of a of two-thirds legisla appeals referendum, the and in that authorized jurisdiction appeals, to decide the of the court of as ture judges, in as the of the districts which the well number judges elected, and the districts for venue would be Appeals purposes. Wisconsin, In Re Court 82 See of of (1978). legislature The 369, 263 was N.W.2d appeals operational by directed have the court August 1, 1978. Id. Legislative 36. To directive, achieve that the appointed special reorga-
Council committee on court prepare nization. Id. This committee was directed to legislation setting up appeals. the court of The legislature proposals special considered the of the com- special mittee at a session in November 1977, and Chapter 187 of the Laws of 1977 was enacted establish- ing appeals. the court of Id. at 370. light legislature's
¶ 37. In of the involvement with approved the court reform in 1977 and in effective contemporaneous statutory 1978, we also consider en- clarify grant actments, which made 5(3) appeals by to the court of VII, Article Section of the 808.03(2) Wisconsin Constitution. Wisconsin Stat. legislature year was enacted in 1977, the same as provides the constitutional amendment, and an instruc- analogy. procedure tive seeking It sets forth the discretionary appellate review nonfinal in orders appeals.14 gives court of appeals jurisdiction This section court up doing
to take a matter if will, so clarify proceedings its exercise of discretion, further litigation. legislative in the council's comments 808.03(2) Wisconsin Stat. "Appeals By is entitled Permis provides sion" and that: judgment A or order not appealable as a right matter of (1) may
under sub. appealed be to the court of advance of a judgment final or upon granted by order leave if it appeal determines that an will: (a) Materially advance the litigation termination clarify proceedings further in the litigation;
(b) petitioner Protect from substantial or irreparable injury; or
(c) Clarify an general importance issue of in the adminis- justice. tration of *21 provision supply intended to stan-
indicate this was appeals determining of should when court dards judg- grant permission of an intermediate for review provision a non-final order. While this obvi- ment or aspect ously court with a different of the of deals jurisdiction today, appeals' it demon- than before us may light scope on the that certain shed strates statutes jurisdiction grant constitutional court of of the legislature appeals. It also that the wanted to be shows authority had clear sure that court necessary clarify for the administration of issues when justice. (Rule) 809.51(1), § which 38. Wisconsin Stat. July adopted 1, 1978 with effective to coincide
was beginning appeals, supports our of the of appeals conclu- jurisdiction that the court of has con- sion supervisory to exercise its sider whether judge. provides: a John Doe It over may supervi- court to its person request A exercise original jurisdiction to issue a sory jurisdiction or its judge, presiding a court prerogative writ over by filing petition support- person body, other or ing memorandum. added). (Rule) 809.51(1) (emphasis Stat.
Wis. correctly "[t]he statute, course, State asserts beyond appeals' jurisdiction expand cannot the court 5(3) provides." VII, Article Section State's that which provision enacted contem However, Br. at was reorganization system poraneous of the court with the appeals' opinion it reflects court of and we are supervisory writ over an to issue broad body" person or over which it has "other judge. jurisdiction, including a John Doe Reise v. Cf. App Morlen, 472, 2002 WI N.W.2d *22 ("the person body' reference to 'court' or 'other in 809.51(1) Register Probate"); Rule includes a in State ex Resheske, rel. S.M.O. v. 2d 447, 110 Wis. 329 N.W.2d275 (Ct. (court 1982) App. supervisory authority has over court). the clerk of the circuit
¶ 39. Our in decision State ex rel. Reimann v. County, Circuit Court Dane Wis. 2d 625-26, for (1997), 571 N.W.2d385 is consistent with the conclusion today. Reimann, we reach peripherally, In touched, this court albeit question appeals'
on the of the court of jurisdiction proceedings. to issue writs over John Doe petition seeking Reimann had filed a in circuit court a proceeding pursuant § John Doe to Wis. Stat. 968.26 (1995-96), petition but the was denied without a hear ing. petitioned appeals Reimann the court of for a (Rule) supervisory pursuant § to Wis. Stat. 809.51 (1995-96). appeals granted The court of the writ and ordered the John Doe to examine Reimann and accepted his witnesses. Id. at 612-13. This court petition for on the review issue of whether Wis. Stat. (1995-96) § requires 968.26 a to examine a com plainant Ultimately, under oath. this court modified the implicitly approved supervisory writ, but the use of a § writ issued the court of under 809.51 (1995-96) in its review of the actions of a John Doe judge. recognize appeals' 40. We concern, court of expressed
as in its certification memorandum:
If the statement
in
accurately
Reimann
reflects
Supreme Court's
appeals]
[the
view that
court of
has
supervisory
to review John
proceed-
Doe
ings, we would be left with
incongruity
that we
could
rulings by
review
a
judge by
John Doe
writ but
could not
final
review
determinations
John Doe
proceedings
appeal. Such a construction would also
meanings
to
to the term "court" as
appear
give different
§§
and 752.02.
used Wis. Stat.
808.03
Mem. at 5-6.
Certification
judge's
¶ 41.
It is true that a John
decisions
proceeding
are
made in the context of
not
subject
appeal pursuant
808.03,
to Wis. Stat.
direct
of a
are
because
decisions
not
or a
of a "circuit court"
"court
record."
decisions
However,
subject
have
actions are
we
concluded
such
pursuant
petition
review
appeals'
*23
respect to the court of
concern that
writ. With
proceeding
final
in a
is
determination
not
subject
appeal,
to direct
note that all that can issue
we
proceeding
complaint.
validity
a John Doe
is a
The
from
complaint
a
in
of such
will be scrutinized
the circuit
probable
example,
For
cause
over
court.
arraignment
to bind
for
may
preliminary
and trial
be tested in a
Doe,
examination
the circuit court. See State v.
78
(1977).
165-66,
In
161,
254 N.W.2d
this
sense, then,
the final determination of a John subject
to review.
Board,
42.
ex rel.
v.
State
Swan
Elections
(1986),
require
2dWis.
¶ 43. We view Swan as a unusual highly fact-specific case. In her dissent from that predicted decision, now Chief Justice Abrahamson this "spawn exploring decision would numerous cases appeals' jurisdic- 'supervisory boundaries of the court of concept easily open tion,' a less defined and more (Abra- jurisdiction.'" 'appellate textured than Id. at 106 dissenting). presently hamson, J., theAs matters before prediction pass. attest, the court has come to opinion However, we are of the that Swan is procedurally distinguishable. First, it involved an ad- agency. ministrative dissent calls this "distinction disagree. Swan, without a difference" but we In when petition appeals, the writ was filed in the court of it was clear that the circuit court had to review *24 right the decision of the Elections Board with a appeal judgment from a final of the circuit court to the 227.16(l)(a) §§ appeals pursuant to Wis. Stat. Consequently, holding and 227.21. the Swan court's was part "jurisdic- perceived in based on the fact that it no underpinning" appeals' tional for the court of By contrast, to issue the writ. here we have concluded that the involved, constitutional drafters as well as the Legislature, give Wisconsin to intended court of jurisdiction of a appeals supervisory the actions over jurisdic- proceeding, a there is so in a John super- appeals to issue for the court tional basis visory writ. distinguishable in that it is
¶
Swan is further
45.
nature of John
Doe"
The unusual
not a "John
proceedings
case.
readily
proceedings
are not
such that the
is
proceedings.
comparison
It
different
with
amenable to
despite
unlikely
highly
court,
its
Swan
that
is
scope
expansive
on the
discussion
somewhat
appeals'jurisdiction,
even considered
court of
ruling
proceedings
on that case.
when
heavily
relied
¶
addition,
Swan decision
In
Gilboy
reasoning
Court
rel.
v. Circuit
of State ex
on the
County,
27,
¶ 50. turn Wenow to certain petitions. raised these The first is whether a John disqualify has the counsel in a proceeding, as occurred in the matters of Unnamed Persons No. and No. Resolution of this significant implications rights issue has for the proceeding. witnesses a John Doe proceedings ¶ 51. In John Doe conducted in Wis persons investigation consin, witnesses and under have rights process protections. substantial and due State v. (1977). Doe, 161, 165, 78 Wis. 2d 254 N.W.2d210 One of rights present during question those ing. is to have counsel provide The John Doe statute does that "counsel shall not be allowed to examine client, his her argue cross-examine other witnesses or before the judge." Wis. Stat. 968.26. We construe this limitation apply counsel, such that counsel not entitled to typically advocate on his or her client's behalf as occurs proceeding. in the context of a circuit court While *26 right judge may impose on counsel's limits Doe John interpreted advocacy, provision not be should entertaining argu- judge preclude from John Doe the procedural necessary fairness. ensure ment when many practice John Doe the consistent with This is Washington, e.g., 2d at See, 83 818-19 Wis. tribunals. argument); judge permitted (noting Noble, 253 that 2d at 215. Wis. with the broad
¶ conclusion is consistent 52. This judge. granted powers well settled John Doe It is the judge to determine has broad discretion that a John Doe proceedings. Niedz of John Doe the nature and extent iejko, respon judge final 2d also has 22 Wis. 392. proceedings. sibility proper Doe conduct of John for the O'Connor, 261, 284, 252 671 2d N.W.2d State v. 77 Wis. (1977) obligation judge's (stating Doe that it is the John powers her at his or that the considerable "to ensure disposal regard with due are at all times exercised rights public, and those whose witnesses, subject investigation"). may activities be grants ¶ end, To that Wis. Stat. 968.26 53. authority extraordinary judge to convene John Doe proceedings proceedings, secret, to order the Doe John complaint complaints as a result of the and to issue proceeding. Reimann, 2d 214 Wis. 605. Doe See John judge to exercise A is also entitled John judicial authority her office. See inherent in his or Family Counseling State, 2d Serv. v. 95 Wis. In re Wis. 1980). (Ct. App. such, As 631 670, 675-76, 291 N.W.2d authority subpoenas, to issue has pos adjourn proceedings, take witnesses, examine adjudicate probable subpoenaed records, session of e.g., See, State v. and seal warrants. cause, and issue 684 Cummings, 721, 735-36, 2d 199 Wis. N.W.2d (1996) (holding has to seal despite express statutory lack of au search warrant thority); Kielisch, 125, 131, State v. 123 Wis. (Ct. 1985).15 N.W.2d App. grant juris- presumed 55. We have judges powers to John Doe "includes those
diction
necessary
jurisdictional mandate."
to fulfill the
See
Cummings, 199
2d at 736. It is the John Doe
judge's responsibility
procedural fairness, and
to ensure
attorney
may
*27
as
conflicts of interest
matters such
procedural
particularly
fairness,
indeed interfere with
subject
may
in a matter where a conflict
not be
to
commentary
secrecy
waiver because of a
order.
to
regarding attorney
20:1.7,
interest,
conflicts of
SCR
support
cited
the dissent to
the assertion that a John
judge
authority
disqualify
lacks the
to
counsel.
Doe
commentary
opposing
that
However, the same
observes
"[w]here
may
question of a
counsel
raise the
conflict
clearly
question
as
to call in
the fair or
conflict is such
justice
. . . ." Comment to
efficient administration
(2002). Accordingly,
we conclude that
SCR 20:1.7
disqualify
judge
to
John Doe
must have
may
argument by
permit
counsel when
counsel, 15
however,
not,
enjoy
statutory
judge
A John Doe
does
Coffey,
rel. Jackson v.
2d
court. See State ex
18 Wis.
powers of
(1963).
529, 536,
examples
In the
cited
necessary procedural fairness. State v. Wash- to ensure (1978) ington, 808, 823, 2d 266 N.W.2d 83 Wis. (citing O'Connor, 261, 284, 252 11 Wis. 2d State v. (1977)). Doe, v. See also State N.W.2d 671 (1977). Denying a John Doe 161, 165, 254 N.W.2d seriously judge ability disqualify counsel would ability carry out his the responsibilities of the John reduce proper respect to the con- her with proceedings. of John Doe duct required, however, to review the 56. Were we judge's matters, of discretion in these exercise any greatly hampered by the absence we would be court, In the briefs filed in this record for our review. judge explained length her at reasons the John disqualifying 1 and for Unnamed Persons No. counsel simply are no the fact remains that there But, No. 2. findings, record, on the other conclusions or reasons briefs, for court to review to determine than the properly her did, fact, exercise whether here. discretion judges We, therefore, remind John Doe to be judicial rendering decisions in the that,
mindful when they proceeding, must create a of a John Doe context 72.01(26) (govern- possible See SCR record for review. *28 ing record created in a John Doe retention of the judge proceeding). appreciate that the John Doe We secrecy may of the order could conclude that terms preclude for the dis- a disclosure of the factual basis qualification petitioners and their counsel. orders to the justice system demands that there be However, our of necessary facilitate review. If some basis set forth to proceeding, preserve integrity a Doe secret John concerning grant or denial of such a the details open need not be recited in court. State ex rel. motion 686 County, Newspapers, Inc. v. Cir. Ct. 65 Milwaukee for (1974); 66, 72, rel. Wis. 2d N.W.2d 894 State ex Coffey, 2d 529, 536, Jackson v. 18 Wis. 118 N.W.2d939 (1963). comprising disquali The facts the basis for the may and, fication order be sealed in the event of further directly reviewing review, submitted to the court for in procedure protects integrity camera Such a review. underlying proceeding, pro of the John Doe and also parties arbitrary capricious the excluded from tects decisions. happens judge
¶ 58. It so the John Doe disqualification vacated the orders that were the sub- ject petitions appeals. filed in the court of judge Therefore, we need not consider whether the erroneously disqualifying exercised her discretion in for Unnamed 1 and 2 in these counsel Persons No. No. matters.16 Finally,
¶ 59.
we address whether the court of
may,
sponte,
appellate
sua
seal the
record in an
involving
petition
a
stem-
action
proceeding.
ming from a
It
clear that
secret John
judge
designate
has
a John Doe
appropriate
as secret and to issue
orders to
proceedings
question
also raise a
about the author
These
ity
regarding
orders
issue
an issue while
proceeding involving
pending
a writ
the same issue is
in an
rule,
appellate
general
court. As a
in the context of a direct
808.03,
§
appeal pursuant
to Wis. Stat.
service of a notice of
jurisdiction regarding
of all
appeal strips
circuit court
case, except
specific grant
authority permit
where there is a
Marriage
In
re
ting
808.075;
the trial court to act. Wis. Stat.
(Ct.
Hengel Hengel,
v.
App.
120 Wis. 2d
that effect. proceed- "[T]he provides part: record of the in relevant open ing testimony not be and the taken shall attorney by anyone except inspection the district unless hearing prosecution preliminary is used at the it only the extent or the trial of the accused and then used." that it is so recognized that it is some- Indeed, we have proceedings to be carried
times desirable for John secrecy. e.g., Newspapers, See, 72; 2d at out in 65 Wis. secrecy (upholding Jackson, 18 2d 529 see also against challenge). are constitutional There a orders why secrecy may very vital to the number of reasons be proceeding. include: effectiveness of These (1) keeping knowledge from an unarrested defendant encourage escape; could which (2) collecting preventing perjured the defendant from trial; testimony for the
(3) thwarting the in- preventing those interested quiry tampering prosecutive testimony from with or evidence; secreting
(4)
disclosures;
rendering
more free in their
witnesses
(5)
testimony
may be
preventing
which
mistaken
becoming public.
untrue or irrelevant from
Cummings,
721, 736,
State v.
199 Wis.
N.W.2d
(1996) (citing
O'Connor,
State v.
77 Wis. 2d
(1977)).
279, 252 N.W.2d671
secrecy
precise scope
permissible
61. The
vary
proceed-
will,
course,
order
ing.
from
"[s]ecrecy
O'Connor,
However, as we observed in
*30
proceedings
John Doe
and the records thereof is not
policy
maintained for its own sake." Id. at
The
283.
underlying secrecy
promoting
is
directed
the effec-
investigation.
any
Therefore,
tiveness of the
Id. at 286.
secrecy
narrowly
"should
order
be drawn as
as is
reasonably
purposes."
commensurate
its
Id. An
with
allegation
secrecy
that a
order issued in a John Doe
proceeding
scope
statutory authority
exceeds the
of the
provided
subject
See,
in Wis. Stat. 968.26 is
to review.
e.g., Jackson,
¶ 62.
a
order issued
may
properly encompass
in a John Doe
concerning questions
information
asked, answers
given, transcripts
proceedings,
produced
of the
exhibits
during
proceedings,
the
or "other matters observed or
Proceeding."
heard in
a
the secret session at
John Doe
O'Connor,
Jackson,
See
279;
Wis. 2d at
Wis. 2d
at
545-47;
Kowaleski,
see also State ex rel.
254 Wis. at
(holding
secrecy
370-71
that a
exists,
order
witnesses).
part,
protect
the
¶
such,
63. As
a document that
as an
is not used
record,
actual exhibit or
question
is
entered into
but
used to
may
scope
witness,
a
be included within the
secrecy
order as
"matter observed or heard."
Similarly,
prosecutor
if a witness
that the
had
noticed
possession,
documents in his or her
but those docu-
question
witness,
ments were not used to
telling
precluded
anyone
still
witness would
be
from
prosecutor had
that the
had observed
that he or she
would consti-
those documents
records because
those
a "matter observed."17
tute
parties
Although
intimated
several
64.
underlying
secrecy
order in the
that
proceeding
ques-
application,
its
was overbroad
formally presented
review is whether
for our
tion
the record when
to seal
has
petition
from a
filed that derives
proceeding.
statutes
Wisconsin
secret John
(cid:127)
specifically
this issue.
not
address
case law do
Newspapers
contend that the court
*31
in
the record
these
to seal
had no
findings. They
making appropriate public
without
cases
emphasize
pre-
proceedings
are
and
that all records
only
they may
public,
closed
and assert that
be
sumed
hearing and the
determines, after
when the court
overwhelming public
findings,
making
explicit
that
of
justice
will
connected with the administration
values
public.
by making them
be subverted
agree
public
law,
records
Wis.
that the
66. We
§
applicable
reaffirm
to this issue and we
19.35, is
Stat.
not, however,
secrecy
prohibit a
John Doe
order would
A
about an incident
disclosing
from
what he or she knows
witness
Similarly,
appears
there
to be no
subject
inquiry.
the
or
persons
subpoenaed
as
compelling
for the names of
reason
testify
regarded
appear
not
to be
as
but who do
witnesses
secret,
judge
prosecutor
nor the
although neither
the John Doe
they
any
persons
subpoenaed,
whether
provide
must
list
prove
of that
information
could
testify or not
release
because
Family
In re
See
Wisconsin
proceeding.
the John Doe
inimical
to
State,
Counseling Servs. v.
670, 673,
291 N.W.2d
95 Wis.
(Ct.
1980)
("the
right
to
has never been
App.
public's
know
public
to
records
such unlimited
access
interpreted
provide
effectively
punish
prosecute
unable
that
the state is
society
ravaging").
criminals
criminal
protect
from
general presumption
public
all
that
records shall be
§§
open
public.
to the
Stat.
19.31-19.39. This
presumption
principle
people
reflects
basic
that the
workings
govern
must be informed
about
their
openness
government
ment, and
in
that
is essential to
strength
society.
maintain the
of our democratic
Id. We
recognized,
policy
open
have
however, that the
toward
although strong,
ness,
is not absolute. Milwaukee
Dirs.,
Teachers' Educ. Ass'n v. Bd.
Sch.
227 Wis. 2d
(1999).
779, 787,
¶ 67. end, To that records law requester right inspect any has a record "[e]xcept provided by as otherwise law." Wis. Stat. 19.35(1). § § statute, The John Doe 968.26, Wis. Stat. secrecy proceedings, which authorizes ais legislative policy clear statement of and constitutes a specific exception public to the records law. It is critical secrecy that when a John Doe pursuant issues order 968.26, to Wis. Stat. must be secrecy preserved assured that will be when and if the appellate Seeking matter an reaches court. review *32 appeals the court of must not become a vehicle to secrecy integrity undermine proceeding. or the of a John Doe petition ¶ Therefore, 68. on of a a review for writ stemming proceeding, from a secret John Doe the court appeals may parts comply of a seal record in order to secrecy existing with orders issued the John Doe judge. permissible secrecy may above, As noted a order properly encompass concerning questions information proceedings, given, transcripts of the
asked, answers during proceedings, produced or "other exhibits at a heard in the secret session matters observed Proceeding." O'Connor, 2d at 279. See 77 Wis. Doe John may appel- sealed information be Therefore, this protect on this information Indeed, failure to late court. investigations compromise Doe John review would by disgruntled requests encourage for review frivolous seeking expose of the under- to the details individuals lying proceeding. appeals a ¶ faced difficult Here, the court 69. separate presented predicament. three It was with deriving petitions supervisory from a secret writ for very proceeding little, which it knew about secrecy to be a order that there was was save strictly underlying The record of the entire observed. proceeding to the court of Doe was not available John appeals, indeed, court, it to this nor, was available particular needed to be documents evaluate whether integrity underlying protect John sealed to proceeding. dilemmas in the 70. In an effort to avoid such guide following procedure future, we outline supervisory petition for and the courts when counsel from a secret John Doe writ that derives appeals. filed in the court of seeking party The review of petition judge's file the decision shall together appeals, with a motion in the court of seeking any portions to file under seal leave scope petition of an or record that fall within existing petitioner secrecy order, deems but which petition. necessary prosecute or her The State his may respond can to that motion. *33 motion, then entertain the and conduct an in camera proposed of the to review documents be filed under seal. appear legitimately If fall the documents within the scope permissible secrecy may order, of a the court grant the motion and the documents will be filed under seal.18 Here, 72. the John Doe has advised the following already
court that the documents, which are part appellate record, of the must remain sealed be- subject secrecy cause each is to the in order issued underlying proceeding. Those are: documents Transcript
1. of John Doe included in Un- Appendix named Person No. l's filed in the Court of 3, Appeals on December 2001. July 27, 17,
2. August John Doe orders dated 2001 and 2001, Appendix included in Unnamed Person No. l's 3, 2001, filed in Appeals the Court of on December as Exhibit 10 to Unnamed Person No. 3's Memorandum Support of Petition for Supervisory Writ dated 25, March 2002. 21,
3. John order dated November 2002 included Appendix Unnamed Person No. l's filed in the Court 3, Appeals on December January
4. John Doe order dated 2002 included as Exhibit to Unnamed Person No. 2's Petition for Leave cases, petitions In certain as the Unnamed such filed relating judge's Persons 1 and No. 2 to the John Doe order No. counsel, disqualifying petitioner may granted not have been proceedings to the of the access record he she seeks challenge secrecy cases, peti of a In because order. such appeals may tioner shall so advise the court of directing issue an order the clerk of the circuit court to transmit seal, appeals, to the court of under so relevant documents that the court can conduct an in camera review relating judge's record decision. *34 alternative, Order, or in the Appeal Non-Final 13, Writ, February 2002. dated by Supervisory
review occurred describing examination which Affidavit 5. included as Exhibit during the John in Support Memorandum Person No. 3's to Unnamed 25, dated March 2002. Supervisory Writ Petition for Person Subpoena for Unnamed No. 6. John Doe No. 3's Exhibit 5 to Unnamed Person included as Supervisory Support of Petition for Memorandum 25, 2002. dated March Writ 30, April 2002 and John Doe John Doe motion dated 7. 30, attached to the State's April dated order on Supervisory Dismiss Petition for Writ Motion to 2,May 2002 in Case No. of Mootness dated Ground 1). (Unnamed 01-3220-W Person No. 30, April dated 2002 and John Doe 8. John Doe motion 30, April 2002 attached to the State's order dated Supervisory Petition for Writ on Motion to Dismiss 2,May 2002 in Case No. of Mootness dated Ground (Unnamed 2). Person No. 02-0446-W 30, May dated 2002 attached to 9. John Doe order May 31, Supplement the Record dated State's Motion to 1). (Unnamed Person No. in Case No. 01-3220-W 30,May 2002 attached to the 10. John Doe order dated 31,May Supplement the Record dated State's Motion 2). (Unnamed Person No. 2002 in Case No. 02-0446-W Resp't, O'Brien, B. at 7-8. Br. of the Honorable Sarah moot, these matters are we decline 73. Because appeals. the court of To the extent to remand them to request open any party pursue wishes to they appellate matters, are directed to record these appeals. The court of file a motion in the court of appeals an in camera review of the shall then conduct appellate records in each of these three matters to any comprise determine whether of the documents that appellate record should unsealed. To the be extent any scope permis- of the documents fall within the of a secrecy they order, sible shall remain sealed. shall issue an order to effect, summa-
rizing any the reasons documents must remain under seal. petitions doWe not reach the merits of the
filed Unnamed Persons 1No. and 2No. because the disqualification *35 John Doe vacated the orders that subject petitions were the filed in the court of appeals. We also decline to reach the merits of the petition by regarding filed Unnamed Person No. the alleged impermissible involving conflict of interest Dis- Attorney trict Blanchard. We need not resolve the question petitioner standing whether the had to file this petition light in of the fact that he or she had been discharged subpoena prior filing peti- from the to this supervisory tion for writ. We also need not resolve presented justiciable controversy whether this issue a procedural at the time it filed. was Whatever the posture petition by at the time filed, this was the time of argument judge the oral matter, the John Doe investigation public had initiated an and conducted a hearing regarding very presented the issue in Unnamed petition. regarding Questions Person No. 3's the order subsequently by Septem- issued John the Doe on argument 18, 2002, ber after oral before this court appeals would be left to the court of address, to if it is supervisory jurisdiction.19 asked to exercise its 19Unnamed No. 3 Person has also filed a motion to amend caption and a motion compel production of tran scripts. Each of these motions is denied. summary, the court of conclude that we In supervisory writ to a
appeals a to issue has judge. that a John Doe further We conclude disqualify for a counsel has proceeding, a record for but in a John witness Finally, hold that when created. we must be review in connection with under seal are submitted documents petition a secret that stems from a proceeding, conduct shall the court to ascertain documents review of those an in camera secrecy by permissible they encompassed are whether prior to the must occur in camera review order. This sealing of such that continues of an order issuance documents.
By Questions answered. the Court.— ABRAHAMSON,CHIEF JUS- ¶ 76. SHIRLEY S. agree (concurring). reached I with the result TICE point separately majority opinion. out I write significant step majority again opinion takes leaving overruling than Swan Swan.1 Rather towards judicial by dubious in small measures to be overturned now I embrace the inevitable distinctions, would my overruling adopting expressly dissent Swan provi- interpretation of the constitutional Swan as *36 appeals.2 jurisdiction granting court of to the sion (dissenting). ¶ SYKES, J. S. 77. DIANE jurisdiction types two Constitution confers Wisconsin legisla- appeals: appellate, such as the on the court may supervisory, provide over actions law; ture Const, proceedings art. in the lower courts. Wis. 1 Board, v. Elections ex rel. Swan State 394 133 Wis. (1986). 732 N.W.2d 2 Id. at 97 (Abrahamson, J., dissenting).
696 5(3). § specifically prohibits VII, The constitution appeals exercising any jurisdic original court of from except by prerogative provides tion, writ, and further may "necessary that the court issue writs that are in aid jurisdiction." definitively of its Id. This court has de original proceedings clared this to mean that writ in the court of are limited to those that have an appellate jurisdictional supervisory or basis. State ex Bd., rel. Swan v. Elections 87, 95-96, Wis. 2d Const, 5(3). (1986); § N.W.2d732 VII, Wis. art. original ¶ 78. This matter —an writ in appeals seeking the court of review of certain actions of judge, a John Doe not a court —does not fall within the appeals' appellate jurisdiction court of Accordingly, ap- under the constitution. the court of peals currently procedurally cannot entertain it as it is postured. Although original petition 79. an writ of this
type may appeals, may not be initiated the court of it brought be court, the circuit because the circuit court plenary original has over all matters civil including original and criminal under the constitution, Const, jurisdiction.1 V, 8; art. see also Petition (1939). of Heil, 428, 445-46, 230 Wis. 284 N.W.42 juris, publici may If the matter is this court elect to take original jurisdiction if asked to do so. Id. at 445-46. Finally, although a court has the disqualifying appropri- to enter an order in an counsel ate case, a John Doe does not. While a John Doe VII, Article Section 8 of the pro Wisconsin Constitution vides that "the circuit original jurisdiction court shall have in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by may law. The circuit court necessary issue all writs in aid of its jurisdiction." *37 judge
judge a John Doe record, of a court of must be investigation and a John Doe is a court not powers all the of a not authorized to exercise is Washington, 808, 822-24, 2d v. 83 court. State Wis. (1978); also State ex rel. 828-29, 266 597 see N.W.2d County, Newspapers, Ct. 65 Inc. v. Cir. Milwaukee (1974); 221 2d 894 Wis. Stat. 66, 72-73, 2d Wis. Wis. 967.02(6). judge presides §§ as a 968.26, The investigative judicial over an officer neutral —not Washington, proceeding. Wis. 2d at 83 adversarial — 822-23. adjudicative judge's role is lim The John Doe determining probable Id. ited to cause. arising To the extent that circumstances 81. adjudication require investigation
the John
affecting
orders
the substantial
adversarial motions or
targets
rights
compulsion orders, con
or witnesses —
immunity grants
privilege
tempt,
and
claims,
—the
contemplates,
caselaw has con
John Doe statute
and
sistently required,
judge convene
that the John Doe
Doe,
828-31; see
State v.
78
as a court. Id. at
also
act
(1977); Newspapers,
161,
210
65
2d
254 N.W.2d
Wis.
Coffey,
72-73;
2d at
ex rel. Jackson v.
Wis.
State
(1963);
Subpoena
529,
majority opinion our both constitution majority's regarding caselaw. The conclusion and our disqualify of a John Doe counsel required that has these conflicts with caselaw sorts they in the context of a matters, adversarial when arise *38 by judge acting be Doe, to heard and decided the Accordingly, aas court rather than a John Doe tribunal. respectfully I dissent. juris- appeals' On 83. the of the of matter court provides:
diction, the Wisconsin constitution appeals The court shall appellate juris- have such district, diction in the including jurisdiction to review proceedings, administrative legislature may as the pro- law, by vide but original jurisdiction shall have no other than prerogative appeals writ. The court may issue all necessary jurisdiction writs in aid of its and shall supervisory authority have proceed- over all actions and ings in the courts the district. of Const, 5(3) added). (emphasis VII, art. This provision juris- plainly constitutional contains both a jurisdictional grant dictional and certain restrictions general appeals appel- and exclusions. The court of has jurisdiction legislature may provide. late as the The appeals general supervisory jurisdic- court of also has proceedings tion, "over all actions and in the courts." Id. scope appeals' appellate Thus, the of the court of jurisdiction depends upon language legislative the of scope appeals' supervi- enactments. of court sory jurisdiction constitutionally is limited to actions proceedings in courts. Original jurisdiction appeals
¶ 84. in court of strictly limited the constitution: of appeals original jurisdiction "shall have no other than by prerogative writ." Id. The constitution authorizes appeals language the court issue "all writs"—this clearly prerogative includes in the writs mentioned immediately "necessary prior sentence aid its —if jurisdiction." jurisdiction Id. a whole, then, Read as jurisdiction prohibits original clause in the court of appeals, exception prerogative with limited writ juris- prerogative original
original jurisdiction; but available, is limited to that which is diction, while appellate necessary appeals' in aid of the court jurisdiction. If there is no basis for the supervisory jurisdiction, appellate its exercise of original preroga- an court of cannot entertain tive writ action.2 holding years Swan, This over 15 was
ago, scope asked to determine the when court was appeals' VII, of the court of under Article *39 5(3). question of There the was the court Section appeals' jurisdiction of to an
to issue writ mandamus agency, specifically, Board, administrative Elections publici juris. alleged in an matter that was to be election pursuant legislature, The to the constitu- 86. 5(3), VII, in tional Article Section has defined directive jurisdiction appeals' appellate scope of court of "by appeal encompassing as or writ of error . . . review judgment of a circuit court." Stat. order of 808.01(1) added). § (emphasis appel- Therefore, direct jurisdiction statutorily appeals of is late in the court judgments review or orders of circuit limited to of jurisdiction appeals' supervisory court is courts. The of constitutionally proceedings in limited to "actions and 5(3). Const, Accordingly, VTI, art. be- courts." Wis. agency cause is neither a "circuit an administrative purposes appeals' appellate court" for of the court of jurisdiction purposes supervisory nor a "court" for of its jurisdiction, upon in Swan was called court scope appeals' original pre- decide the of the court of rogative jurisdiction. writ certiorari, corpus, Dictionary Black's Law lists habeas
mandamus, prohibition and as of examples prerogative writs. (7th 1999). Dictionary See Law at 1602-03 ed. Black's Tracing relevant constitutional lan- and a treatise on guage, consulting appellate Wisconsin by drafters the 1977 court practice reorganiza- amendments,3 tion the Swan court con- ultimately cluded as follows:
The foregoing persuade considerations us that the limited, appeals court of a court of rather is than general, jurisdiction. writ references the consti- appellate supervisory jurisdiction tution to limit power appeals and define the of the court of to issue prerogative The issuance a prerogative writs. writ the court of an original jurisdic- exercise of However, tion. not an it is exercise independent of court's appellate powers. The of appeals has power decide questions publici juris brought which are to it appeal or which it considers under its supervisory jurisdiction. It not power does have the to issue a prerogative solely importance writ based on the presented question any jurisdictional without other underpinning. brought
It should be remembered that a any appellate the purpose exercising superin- court for *40 tending powers action, i.e., supervisory original or is an designed litigants a new action to affect or the control in respect or to a matter then at issue or subject a . to the action of lower . court.. appeals
We conclude that the court of does not have an jurisdiction original to entertain action unrelated to supervisory appellate authority its or over the circuit Original jurisdiction court. the sense intended petition of Monroe Swan for the determination ab initio 3 See Malmgren, Robert J. Martineau & Richard R. Wiscon (1978). Appellate sin Practice
701 only juris under the constitution lies publici aof matter in the court or in court. circuit Swan, 2dWis. at 95-97. jurisdictional dispositive
¶ Swan is 88. question court. held that Article before this Swan now 5(3) precludes appeals of from the court VII, Section appropri- original petitions entertaining an absent appellate or the court's ate supervisory exercise basis jurisdiction. majority attempts distinguish Swan The agency,
by saying
an
not
that it involved
administrative
judge. Majority op., ¶¶ 42-43.
action of a John Doe
a
As discussed
a
without
difference.
This is distinction
jurisdiction
appellate
above,
of the court of
judgments
statutorily
and
of circuit
limited to
orders
is
courts;
tionally
is constitu-
the court's
proceedings
An
to actions
courts.
limited
agency
obviously
a
Simi-
is
not
court.
administrative
judge
larly,
judge,
court of
a
while a
a
John
majority must,
record,
court,
not act as a
as
does
Majority op., ¶ 23.
does,
and
concede.4
repeatedly distinguished
court has
be-
90. This
judge
a
"A
a
and court.
tween John
equivalent
court,
a
and
not the
a John Doe
"
com
provides
person
[iff
Doe statute
that
a
that he or she has reason
a
plains
believe
jurisdiction,
her
committed within his or
crime has been
complainant
any
under
and
judge shall examine the
oath
§
him or
968.26
produced
her...." Wis. Stat.
witnesses
added).
(emphasis
separate
The criminal code contains
'judge"
and "court." See Wis. Stat.
distinct definitions
(7) (in
967.02(6)
967-79, "judge"
"judge
Chapters
means
court");
"court"
a "circuit
see also
.of a court of record" and
means
n.15,
proceeding is a not in a court of record." Washington, "[A] judge 83 at Wis. 2d 828. John Doe does statutory powers not have the aof court." State v. (1996) Cummings, 721, 199 Wis. 2d 546 N.W.2d406 (emphasis original); Newspapers, in see also 65 2dWis. Jackson, 71; at appeals 2dWis. at 534-35. The court Schober,
has echoed this distinction. v. State ("the (Ct. 1992) App. 371, 379, Wis. 2d 481 N.W.2d689 acting John Doe tribunal is not a 'court,' as a but as 'judge' [and] [t]here express . . . is an be distinction court"); Maroney, tween a and a Gavcus v. (Ct. ("[A]n 1985) App. Wis. 2d 69, 70-71, 377 N.W. 2d200 by judge [John Doe] proceeding [is] order a issued a court."). not an order made a I will 91. admit that this distinction between John Doe and a court is somewhat But abstract. procedural it is based on valid concerns about the investigations between differences John Doe and court proceedings. any ¶¶ 101-107, See event, In it is a infra. consistently distinction that has been maintained in majority willing caselaw. Unless the to overrule this authority, interpret unbroken line of it cannot Article 5(3) vesting VII, Section as court with original supervisory prerogative jurisdiction over judges, actions because the constitution explicitly appeals' juris- supervisory limits the court of proceedings diction to "actions and in courts." Wis. Const, 5(3). § VII, art. majority attempts get around this
inescapable reality by interpreting Article VII, Section 5(3) "together language with Stat. Wis. (Rule) 808.03(2), § 809.51(1)," and in Stat. which provides "[a] person may request original juris- exercise its itsor prerogative diction to issue a writ over court and the *42 body."Majority op., judge, person, presiding or other or 809.51(1). (Rule) majority § ac- ¶ 48; Stat. The Wis. principle knowledges cannot that statute the basic beyond expand jurisdiction that which the constitution proceeds majority op., provides, ¶ 38, but then Majority doing precisely interpret as that. the statute ("[W]e op., Constitution, ¶ Wisconsin 48 conclude that 5(3), together lan- with the VII, Section read Article 808.03(2), § guage in in and Wis. Stat. Wis. Stat. 809.51(1) body' including § person 'other is suffi- appeals ciently scope permit court of broad jurisdiction of a over actions exercise proceeding."). judge presiding Doe over a John analysis approach ¶ was to constitutional 93. This rejected by no than Chief Justice John less an Supreme Marshall, for United States a unanimous (1 Cranch) Marbury Madison, 137 v. 5 U.S. Court (1803). Although obviously most for the case is revered judicial power, the its forceful articulation of the underlying review question precipitated that that declaration Judiciary jurisdictional: principle whether the of was Supreme upon confer Court a Act of 1789 could , jurisdiction not in the form of included constitutional jurisdictional grant. Marbury, 5 at 173-74. The U.S. Supreme course, no. Id. at 180. Court, said § suggesting I that Stat. 809.51 94. am not Wis. only it unconstitutional, that cannot be read to jurisdiction beyond expand appeals' the court of grant. in the And that which is contained constitutional majority has is what the done. majority claims that its conclusion is ex Reimann v. Court
consistent with State rel. Circuit County, 385 Dane N.W.2d (1997), in which this court affirmed a writ mandamus stemming granted appeals from a John judge's petition denial of a without a hearing. Reimann, however, did not address the issue of appeals' supervisory the court of writ under merely constitution, but assumed further without procedures discussion that Wis. Stat. 809.51 were applicable. Reimann, 214 2dWis. at 625-26. majority history
¶ 96. The asserts that 5(3), particularly VII, Article Section reorganization system, "supports of the Wisconsin court *43 a that construction would imbue the jurisdiction judge with presiding to issue a to a proceeding." Majority op.,
over majority prior reorgani- ¶ 30. The notes that to court § zation, VII, 8, Article the vested circuit courts with appellate jurisdiction over "all inferior courts and tri- judges. Majority op., bunals," which included John Doe reorganization language ¶ 30, n.ll. Court altered the § deleting of Article 8 VII, somewhat, the reference to retaining "inferior courts tribunals" but for the appellate circuit courts "such in the circuit legislature may prescribe by Majority op., as the law." ¶ 33, n.13. history, majority
¶ 97. Based on this concludes "[plursuant enactment, to the constitutional most appellate by previously function exercised assigned newly circuit courts was to created court of appeals." Majority op., majority ¶ The does 34. not identify VII, which "constitutional enactment" —Article § 5(3), provision— VII, some Article or other accomplished purported "reassignment" of the cir- "appellate majority cuit court's cites no function." authority sweeping conclusion; for this text of 5(3) §§ certainly support VII, Article and 8 do not it. majority ¶ 98. The has also concluded that a John disqualify Doe "must have the to coun-
705 argument may permit when neces- counsel sel, and Majority op., sary ¶ procedural 55. ensure fairness." to long- squared cannot be with These conclusions standing Doe rewrites the John caselaw; the latter statute. adjudicate which Adversarial motions rights persons Doe called before John
substantial compel, contempt investigations e.g., to mo- motions — immunity grants privilege and assertions of tions, —are judge sitting as decided heard and Washington, at Wis. 2d 828-30 court. See (same); (compulsion/contempt); Doe, Wis. 2d at 164 immunity (grant Newspapers, at 72-73 Wis. privilege); upon determination self-incrimination (same); Subpoena In re Jackson, at 18 Wis. 2d 535-37 (motion quash Tecum, on 2d at 185 Duces privilege). of self-incrimination assertion held that while the John 100. This court has "grants judge power issue Doe subpoenas the John Doe statute specifically [ the John it does not authorize compliance subpoena with force Washington, punish non-compliance." at 829 83 Wis. 2d adjudicative adversarial, matters are outside n.17. Such *44 they investigative scope and, Doe, the of a John when sitting judge is the as a court. This arise, are heard judge's authority the a John Doe is limited because purposes proceeding: is a John Doe of the judge's investigative, adversarial, and the John Doe not adjudicative probable only function is determine Id. at 821-22. cause. comprehensive state- court's most This authority judge of a is
ment the role and following, Washington: the from upon the John Doe [John Doe]
The statute confers the of the exami- judge power the to determine extent nation, as well as power the to determine whether the examination will be secret. The John investigation essentially is subject limited to the matter of the complaint upon which the John Doe is commenced. The judge John Doe has no to ferret out crime wherever he or she it might thinks exist.
By invoking the formal John Doe investigative
proceeding, law enforcement officers are able to obtain
the
powers
benefit of
not otherwise
them,
available to
i.e.,
power
subpoena witnesses,
to take testimony
oath,
under
compel
the testimony of a reluctant
witness. Although the judge's subpoena power
impor
tant to
prosecution
judge
and the
has broad discre
in conducting
tion
investigation,
reject [the
we
defendant's] characterization
judge
inevitably
as
the 'chief investigator' or as an arm or tool of the
prosecutor's office. We do
judge
not view the
as orches
trating
investigation.
The
judge
John Doe
is a
judicial officer who serves an essentially judicial func
tion. The judge
testimony
considers the
presented. It is
the responsibility of the
judge
John Doe
to utilize his or
her training in constitutional and criminal
and in
law
procedure
courtroom
in determining the need to sub
poena
requested
witnesses
by the
attorney,
district
presiding at
witnesses,
examination of
and in
determining probable cause. It is
judge's
responsi
bility to
procedural
O'Connor,
ensure
fairness. State v.
(1977).
261, 284,
77 Wis. 2d
¶ 104. Thus itself, the John Doe statute and the require above, cases cited the John Doe to con- adjudicate vene and act as a in order to an disqualify adversarial matter as a to such motion coun- during investigation. sel a John Doe This conclusion (the provides procedural opportunity basic fairness to important rights adjudicated), be heard before are completely also creates a record for which review, is lacking here. majority any
¶ 105. The notes that review of the disqualification they orders, had not withdrawn, been greatly hampered by any "would be the of absence op., Majority record for our review." 56. This elo- quently problem. merely understates the Review is not "greatly hampered" impossible. record; a it without is why judge disqualified We have no idea attorneys the generic the in matter, this than a other claim stemming previous represen- of conflict of interest from problem tation Here, of other witnesses. "no the record" only, apparent is theoretical of because the mootness commentary attorney The regarding- to SCR 20:1.7 con regarding charged flicts of interest carries caution conflict by an opposing party disqualify in a motion to counsel: Resolving questions primarily conflict is the of of interest responsibility lawyer undertaking representation. In the the litigation, may question a court there raise when is reason lawyer neglected responsibility. infer that the has In a criminal case, by inquiry generally required lawyer the court when a represents multiple defendants. Where the conflict is such as clearly question call in the fair or efficient administration
justice, may opposing properly question. an counsel raise Such objection however, caution, should be with viewed for it can be technique misused as of harassment. judge's brought the John Doe withdrawal about problem question; case, will another the orders real. be majority gets around caselaw rewriting statutory language simply the statute: judge" argue before the not be allowed
"counsel shall may argue judge." How- now "counsel before reads permitted argument under counsel, while now ever, *47 may terribly majority's statute, not the rewrite of the be meaningful. majority "remind[s] John Doe While the judicial rendering judges that, when to be mindful proceeding, they in context of a John Doe decisions the possible majority review," must create a record for the judge [s] "appreciate John Doe could con- also that the secrecy may preclude terms the order clude that the of disqualification of the factual basis for the a disclosure petitioners Majority orders to and their counsel." the prosecutor why op., ¶ If counsel is not told the and 57. disqualified, possibly "argue judge he want him how can judge" and can matter, on the how he before supervisory prosecute a credible writ formulate appeals? in court of action interesting during note that It is to argument in matter, we oral same week that heard judge argument and heard the John Doe took evidence prosecutor ought on the of whether the John Doe issue grounds. disqualified on conflict interest She did to be presiding judge tribunal, not as a over a John Doe so open a in She issued as circuit court session. then but captioned 11-page of Wiscon- an written decision "State County, bearing Court, 16," Branch sin, Dane Circuit finding signature line Court, 16," "Circuit Branch no proce- The decision that this conflict interest. states law is settled in dure was followed "because the not power has a John Wisconsin whether regarding attorneys make orders a conflict of interest appearing in Order, the John Doe." Decision Dane County September Circuit Court Case dated 01JD6, No. any event, 2002. In there is a court record and a order. court adjudicates
¶ 108. a Thus, when John Doe these sorts motions as court rather than a John Doe appellate tribunal, then direct or in review proceeding the court of produces is available because judge. an order from a court, not a brings juris- circle, This me full back to the threshold question. dictional
¶ 109. The constitution and the caselaw are clear
judge's
may
by
order
be reviewed
an
(which
original
writ
in the
circuit
appeals),
in the
turn
reviewable
court of
an
original
juris
publici
if
action
this court
the matter is
it,
and
appeals
court chooses
hear
but not
the court of
original supervisory
in an
action.
Wis.
Const,
§§
VII,
3, 8; Swan,
art.
95-97;
at
disqualify
Heil,
A
230 Wis. at
motion
445-46.
counsel
investigation,
just
contempt
in a John Doe
like a
*48
compel,
privilege
motion, a motion
or a
claim
grant
immunity,
judge sitting
must be heard
as
Washington,
a court rather than
John Doe tribunal.
Doe,
n.17;
¶ 110. The VII, rewrites Article 5(3) Constitution, Section as well Wisconsin as plainly appli- statute; the John Doe refuses to follow expands precedents; of a John cable judge beyond either the statute that which join opinion. I cannot caselaw allow.