¶ 4. (dissenting). The State, supported by an amicus brief filed by the Wisconsin District Attorneys Association, does not ask the court to change its ultimate conclusions of law or its mandate. Rather, the State and amicus argue that in the court's discussion of subpoenas duces tecum, the reference to the Fourth Amendment and the reference to the probable cause language of Wis. Stat. § 968.135 should be removed. In the alternative, the State and the District Attorneys Association ask for at least an opportunity to brief the applicability of the Fourth Amendment and § 968.135 to John Doe subpoenas.
¶ 5. Neither the Fourth Amendment nor Wis. Stat. § 968.135 was argued or briefed by the parties. Nevertheless the court's decision gratuitously opined on these issues. Maybe something was in the air, or water, but on several occasions1 in the spring of 2004 this court played the roles of both counsel and court and ignored the usual and uncontroversial appellate practice of requesting supplemental briefs.
¶ 6. The court should grant the State's reasonable requests: Delete the unnecessary references to the Fourth Amendment and Wis. Stat. § 968.135 or order briefs on these issues. I do not join the majority's rewriting of the opinion. The majority merely continues *80on an erroneous path, compounding the harm that results from an unwise practice of constructing opinions without giving the parties the opportunity to brief the issues. This erroneous appellate practice results, as one might expect, in erroneous and confusing substantive law in the present case.
¶ 7. Fourth Amendment. The State agrees with the court's decision that a John Doe subpoena duces tecum cannot he unreasonably overbroad. The State argues that relying on Fourth Amendment jurisprudence for this proposition, rather than relying on State v. Washington,2 is unnecessary and raises significant questions about the petitioner's standing to assert someone else's Fourth Amendment rights. I agree. The overbreadth issue should be decided on non-constitutional grounds. If the court is to rely on the Fourth Amendment, the petitioner's standing becomes an open, unanswered question.
¶ 8. Wisconsin Stat. § 968.135. The State persuasively argues on the basis of the plain language of Wis. Stat. § 968.135 and the legislative history that the probable cause standard in § 968.135 does not apply to a John Doe subpoena duces tecum. Equally important, applying a probable cause standard to a John Doe subpoena just doesn't make sense. A probable cause requirement frustrates the core purpose of a John Doe proceeding, namely to determine whether probable cause exists to believe a crime has been committed.
¶ 9. The rewrite stubbornly continues to rely on Wis. Stat. § 968.135 and now defines "probable cause" as used in § 968.135 without analyzing the State's argument and without the benefit of briefs. As I have *81previously written, "probable cause" has many meanings, depending on the particular proceeding.3 The rewrite, however, gives the words "probable cause" a peculiar, unexpected meaning, significantly different from its meaning in other proceedings. Moreover, the result of the rewrite is that under the same statute, oné definition of "probable cause" arises for purposes of John Doe proceedings and apparently another definition of "probable cause" arises for other proceedings. Such a statutory interpretation is contrary to commonly understood rules of statutory interpretation.4
¶ 10. As a result of its stubborn and erroneous reliance on Wis. Stat. § 968.135, the rewrite insists on a probable cause standard, but winds up defining the probable cause standard as relevance. It would have been simpler, as the State requested, to delete the reference to probable cause and § 968.135 and adhere to the relevancy test for subpoenas duces tecum as clearly adopted in State v. Washington. The Washington court stated quite simply: "The John Doe judge, and the court ordering production of the documents, have to determine whether the documents sought are relevant to the topic of inquiry. The test is whether the information sought is in some manner connected with the suspected criminal activity under investigation."5 Approaching the issue relying on the precedent of Washington allows the court to avoid a contortionist position of bending § 968.135 and itself out of all recognizable shape.
*82¶ 11. For the reasons set forth, I do not join the rewrite.
¶ 12. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.See Maurin v. Hall, 2004 WI 129, ¶¶ 4-8, 276 Wis. 2d 18, 688 N.W.2d 655 (Abrahamson, C.J., dissenting on reconsideration); Beecher v. LIRC, 2004 WI 131, ¶¶ 3-8, 276 Wis. 2d 21, 688 N.W.2d 654 (Abrahamson, C.J., dissenting on reconsideration).
State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (1978).
See County of Jefferson v. Renz, 231 Wis. 2d 293, 317-27, 603 N.W.2d 541 (1999) (Abrahamson, C.J., concurring).
See, e.g., State v. Charles, 180 Wis. 2d 155, 159-60, 509 N.W.2d 85 (Ct. App. 1993) ("[T]he rule of statutory construction! 1 [is] that words or phrases appearing in the same statute shall be given the same meaning." (citation omitted)).
Washington, 83 Wis. 2d at 843.