¶ 14. (dissenting). " 'Absent a constitutional infirmity, courts must apply statutes as they are written, unless to do so would lead to an absurd result that did not reflect the legislature's intent.'" Cavey v. Walrath, 229 Wis. 2d 105, 111, 598 N.W.2d 240, 243 (Ct. App. 1999) (quoted source omitted). In my view, the statutory provisions here are clear, and accordingly, I respectfully dissent.
¶ 15. Wisconsin Stat. § 5.05(l)(b) permits the Elections Board "upon notice to the party or parties being investigated, [to] subpoena and bring before it any person in the state and require the production of any papers, books or other records relevant to an investigation." The section also provides that the Board "may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court." Unlike the circuit court and the majority, I believe that this latter sentence incorporates the provisions of Wis. Stat. § 804.05, so as to permit "the party or parties being investigated" (that is, the targets of the Board's investigation) to be present at the deposition and to cross-examine the witness or witnesses being deposed — subject to the circuit court's entry of a protective order. "Notice" without a concomitant right to protect one's interests in a way authorized by law would serve no purpose other than the inducement of disquietude. Cf. Wis. Stat. § 805.07(2)(b) (notice of third-party subpoena to those affected).
¶ 16. Significantly, Wis. Stat. § 5.05(l)(b) was enacted by the legislature, and legislators — unlike most persons in our society — have a special reason to be wary of star-chamber investigations of election activity. In my view, a legislator reading the phrase "may cause the deposition of witnesses to be taken in *192the manner prescribed for taking depositions in civil actions in circuit court" would be heartened that one. of the protections in the civil-deposition rule is the right of a party to be present at the deposition and to cross-examine. Indeed, it is a fight that the legislators have a personal interest in securing to themselves, and, in my view, they did precisely that by incorporating the provision of Wis. Stat. § 804.05 into § 5.05(l)(b).
¶ 17. Wisconsin Stat. § 804.05(4)(a), which, as noted, is incorporated by reference into Wis. Stat. § 5.05(l)(b), provides, as material here: "Examination and cross-examination of deponents may proceed as permitted at the trial." This, of course, is merely the general rule, because Wis. Stat. § 804.05(5) also recognizes that there may be circumstances that require something different, and provides, as relevant here: "At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending . . . may limit the scope and manner of the taking of the deposition as provided in s. 804.01(3)." WISCONSIN Stat. § 804.01(3) is the protective-order part of the discovery chapter, and, insofar as the Board's desire for secrecy is concerned, subdivision 5 of § 804.01(3)(a) empowers the circuit court to direct that a deposition "be conducted with no one present except persons designated by the court."
¶ 18. There is no doubt but that Wisconsin's civil-deposition rule, which is derived from the Federal Rules of Civil Procedure, permits parties to not only cross-examine deponents, but also permits, via Wis. Stat. § 906.15, the exclusion of witnesses, but not parties. See, e.g., Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451, *193452-453 (M.D. Ga. 1987) (applying Rule 615 of the Federal Rules of Evidence to Rule 30(c) of the Federal Rules of Civil Procedure — the federal analogues to Wis. Stat. §§ 906.15 and 804.05(4) respectively) (decided before a 1993 amendment to Rule 30(c) of the Federal Rules of Civil Procedure that overturned the then universal interpretation that FRE 615 applied to depositions, see In re: Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998)). I also believe that under extraordinary circumstances a circuit court could enter a protective order under WlS. STAT. § 804.01(3)(a)5, via Wis. Stat. § 804.05(5), to exclude a party from a deposition. But, and this is important, the rule in federal court places on the party seeking the protective order the burden of demonstrating that the exclusion of a witness or a party is required. See Terra Int'l, 134 F.3d at 306. It seems to me that Wis. Stat. § 804.01(3)(a)5, which permits the entry of a protective order "upon motion," thus also places the burden of proof on the party seeking the relief. See Anderson v. Anderson, 147 Wis. 2d 83, 88, 432 N.W.2d 923, 926 (Ct. App. 1988) (party seeking relief has the burden of proving that such relief is warranted). Although I agree that the circuit court has discretion as to whether a protective order should be entered, a discretionary decision founded upon a wrong view of the law is erroneous. See Cavey, 229 Wis. 2d at 109, 598 N.W.2d at 243. Here, the circuit court placed the burden on the target of the Board's investigation to show why he should be permitted to attend, rather than on the Board to show why he should not be permitted to attend. This, in my view, was not consistent with established legal principles and was error. Accordingly, I would reverse and remand this matter to the circuit court for its consideration of whether, on the Board's motion for a protective *194order (if it should make such a motion), the extraordinary relief of barring a party from a deposition in a matter that concerns that party is warranted.1
Although I am sympathetic with the Board's desire to conduct in secret its investigation into possible illegality, it has, apparently, eschewed two possible avenues that would permit such secrecy: having its investigators interview witnesses, and seeking a John Doe proceeding under Wis. Stat. § 968.26. Although the former method could not compel witnesses to give evidence, the latter avenue would, and would also permit the Board to seek an order casting a cloak of secrecy on the proceedings.