State Ex Rel. Unnamed Person No.1 v. State

DIANE S. SYKES, J.

¶ 77. (dissenting). The Wisconsin Constitution confers two types of jurisdiction on the court of appeals: appellate, such as the legislature may provide by law; and supervisory, over actions and proceedings in the lower courts. Wis. Const, art. *697VII, § 5(3). The constitution specifically prohibits the court of appeals from exercising any original jurisdiction, except by prerogative writ, and further provides that the court may issue writs that are "necessary in aid of its jurisdiction." Id. This court has definitively declared this to mean that original writ proceedings in the court of appeals are limited to those that have an appellate or supervisory jurisdictional basis. State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 95-96, 394 N.W.2d 732 (1986); Wis. Const, art. VII, § 5(3).

¶ 78. This matter — an original writ proceeding in the court of appeals seeking review of certain actions of a John Doe judge, not a court — does not fall within the court of appeals' appellate or supervisory jurisdiction under the constitution. Accordingly, the court of appeals cannot entertain it as it is currently procedurally postured.

¶ 79. Although an original writ petition of this type may not be initiated in the court of appeals, it may be brought in the circuit court, because the circuit court has plenary original jurisdiction over all matters civil and criminal under the constitution, including original writ jurisdiction.1 Wis. Const, art. V, § 8; see also Petition of Heil, 230 Wis. 428, 445-46, 284 N.W. 42 (1939). If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so. Id. at 445-46.

¶ 80. Finally, although a court has the authority to enter an order disqualifying counsel in an appropriate case, a John Doe judge does not. While a John Doe *698judge must be a judge of a court of record, a John Doe investigation is not a court proceeding and a John Doe judge is not authorized to exercise all the powers of a court. State v. Washington, 83 Wis. 2d 808, 822-24, 828-29, 266 N.W.2d 597 (1978); see also State ex rel. Newspapers, Inc. v. Cir. Ct. for Milwaukee County, 65 Wis. 2d 66, 72-73, 221 Wis. 2d 894 (1974); Wis. Stat. §§ 968.26, 967.02(6). The John Doe judge presides as a neutral judicial officer over an investigative — not adversarial — proceeding. Washington, 83 Wis. 2d at 822-23. The John Doe judge's adjudicative role is limited to determining probable cause. Id.

¶ 81. To the extent that circumstances arising in the John Doe investigation require the adjudication of adversarial motions or orders affecting the substantial rights of targets or witnesses — compulsion orders, contempt, privilege claims, and immunity grants — the John Doe statute contemplates, and caselaw has consistently required, that the John Doe judge convene and act as a court. Id. at 828-31; see also State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977); Newspapers, 65 Wis. 2d at 72-73; State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 118 N.W.2d 939 (1963); In re Subpoena Duces Tecum Issued to B.M. v. State, 113 Wis. 2d 183, 335 N.W.2d 420 (Ct. App. 1983). This sets up conventional and fully constitutional appellate or supervisory review in the court of appeals.

¶ 82. The jurisdictional regime established by the majority opinion is contrary to both our constitution and our caselaw. The majority's conclusion regarding the authority of a John Doe judge to disqualify counsel conflicts with caselaw that has required these sorts of adversarial matters, when they arise in the context of a *699John Doe, to be heard and decided by the judge acting as a court rather than a John Doe tribunal. Accordingly, I respectfully dissent.

¶ 83. On the matter of the court of appeals' jurisdiction, the Wisconsin constitution provides:

The appeals court shall have such appellate jurisdiction in the district, including jurisdiction to review administrative proceedings, as the legislature may provide by law, but shall have no original jurisdiction other than by prerogative writ. The appeals court may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts of the district.

Wis. Const, art. VII, § 5(3) (emphasis added). This constitutional provision plainly contains both a jurisdictional grant and certain jurisdictional restrictions and exclusions. The court of appeals has general appellate jurisdiction as the legislature may provide. The court of appeals also has general supervisory jurisdiction, "over all actions and proceedings in the courts." Id. Thus, the scope of the court of appeals' appellate jurisdiction depends upon the language of legislative enactments. The scope of the court of appeals' supervisory jurisdiction is constitutionally limited to actions and proceedings in courts.

¶ 84. Original jurisdiction in the court of appeals is strictly limited by the constitution: the court of appeals "shall have no original jurisdiction other than by prerogative writ." Id. The constitution authorizes the court of appeals to issue "all writs" — this language clearly includes the prerogative writs mentioned in the sentence immediately prior — if "necessary in aid of its jurisdiction." Id. Read as a whole, then, the jurisdiction clause prohibits original jurisdiction in the court of appeals, with the limited exception of prerogative writ *700original jurisdiction; but prerogative writ original jurisdiction, while available, is limited to that which is necessary in aid of the court of appeals' appellate and supervisory jurisdiction. If there is no basis for the exercise of its appellate or supervisory jurisdiction, the court of appeals cannot entertain an original prerogative writ action.2

¶ 85. This was the holding in Swan, over 15 years ago, when this court was asked to determine the scope of the court of appeals' jurisdiction under Article VII, Section 5(3). There the question was the court of appeals' jurisdiction to issue a writ of mandamus to an administrative agency, specifically, the Elections Board, in an election matter that was alleged to be publici juris.

¶ 86. The legislature, pursuant to the constitutional directive in Article VII, Section 5(3), has defined the scope of the court of appeals' appellate jurisdiction as encompassing review "by appeal or writ of error . . . of a judgment or order of a circuit court." Wis. Stat. § 808.01(1) (emphasis added). Therefore, direct appellate jurisdiction in the court of appeals is statutorily limited to review of judgments or orders of circuit courts. The court of appeals' supervisory jurisdiction is constitutionally limited to "actions and proceedings in courts." Wis. Const, art. VTI, § 5(3). Accordingly, because an administrative agency is neither a "circuit court" for purposes of the court of appeals' appellate jurisdiction nor a "court" for purposes of its supervisory jurisdiction, this court in Swan was called upon to decide the scope of the court of appeals' original prerogative writ jurisdiction.

*701¶ 87. Tracing the relevant constitutional language, and consulting a treatise on Wisconsin appellate practice by the drafters of the 1977 court reorganization amendments,3 the Swan court ultimately concluded as follows:

The foregoing considerations persuade us that the court of appeals is a court of limited, rather than general, writ jurisdiction. The references in the constitution to appellate and supervisory jurisdiction limit and define the power of the court of appeals to issue prerogative writs. The issuance of a prerogative writ by the court of appeals is an exercise of original jurisdiction. However, it is not an exercise of jurisdiction independent of the court's appellate and supervisory powers. The court of appeals has power to decide questions publici juris which are brought to it by appeal or which it considers under its supervisory jurisdiction. It does not have the power to issue a prerogative writ based solely on the importance of the question presented without any other jurisdictional underpinning.
It should be remembered that a writ brought in any appellate court for the purpose of exercising superintending or supervisory powers is an original action, i.e., a new action designed to affect or control the litigants or the court in respect to a matter then at issue or subject to the action of a lower court.. . .
We conclude that the court of appeals does not have jurisdiction to entertain an original action unrelated to its supervisory or appellate authority over the circuit court. Original jurisdiction in the sense intended by the petition of Monroe Swan for the determination ab initio *702of a matter publici juris under the constitution lies only in the circuit court or in this court.

Swan, 133 Wis. 2d at 95-97.

¶ 88. Swan is dispositive of the jurisdictional question now before this court. Swan held that Article VII, Section 5(3) precludes the court of appeals from entertaining original writ petitions absent an appropriate basis for the exercise of the court's appellate or supervisory jurisdiction.

¶ 89. The majority attempts to distinguish Swan by saying that it involved an administrative agency, not the action of a John Doe judge. Majority op., ¶¶ 42-43. This is a distinction without a difference. As discussed above, the appellate jurisdiction of the court of appeals is statutorily limited to judgments and orders of circuit courts; the court's supervisory jurisdiction is constitutionally limited to actions or proceedings in courts. An administrative agency is obviously not a court. Similarly, a John Doe judge, while a judge of a court of record, does not act as a court, as the majority must, and does, concede.4 Majority op., ¶ 23.

¶ 90. This court has repeatedly distinguished between a John Doe judge and a court. "A John Doe judge is not the equivalent of a court, and a John Doe *703proceeding is not a proceeding in a court of record." Washington, 83 Wis. 2d at 828. "[A] John Doe judge does not have the statutory powers of a court." State v. Cummings, 199 Wis. 2d 721, 738, 546 N.W.2d 406 (1996) (emphasis in original); see also Newspapers, 65 Wis. 2d at 71; Jackson, 18 Wis. 2d at 534-35. The court of appeals has echoed this distinction. State v. Schober, 167 Wis. 2d 371, 379, 481 N.W.2d 689 (Ct. App. 1992) ("the John Doe tribunal is not acting as a 'court,' but as a 'judge' . . . [and] [t]here is an express distinction between a judge and a court"); Gavcus v. Maroney, 127 Wis. 2d 69, 70-71, 377 N.W. 2d 200 (Ct. App. 1985) ("[A]n order issued by a judge in a [John Doe] proceeding [is] not an order made by a court.").

¶ 91. I will admit that this distinction between a John Doe judge and a court is somewhat abstract. But it is based on valid concerns about the procedural differences between John Doe investigations and court proceedings. See ¶¶ 101-107, infra. In any event, it is a distinction that has been consistently maintained in the caselaw. Unless the majority is willing to overrule this unbroken line of authority, it cannot interpret Article VII, Section 5(3) as vesting the court of appeals with original supervisory prerogative writ jurisdiction over the actions of John Doe judges, because the constitution explicitly limits the court of appeals' supervisory jurisdiction to "actions and proceedings in courts." Wis. Const, art. VII, § 5(3).

¶ 92. The majority attempts to get around this inescapable reality by interpreting Article VII, Section 5(3) "together with the language in Wis. Stat. § 808.03(2), and in Wis. Stat. § (Rule) 809.51(1)," which provides that "[a] person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the *704presiding judge, or other person, or body." Majority op., ¶ 48; Wis. Stat. § (Rule) 809.51(1). The majority acknowledges the basic principle that a statute cannot expand jurisdiction beyond that which the constitution provides, majority op., ¶ 38, but then proceeds to interpret the statute as doing precisely that. Majority op., ¶ 48 ("[W]e conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2), and in Wis. Stat. § 809.51(1) including 'other person or body' is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding.").

¶ 93. This approach to constitutional analysis was rejected by no less an authority than Chief Justice John Marshall, for a unanimous United States Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Although the case is obviously most revered for its forceful articulation of the judicial review power, the underlying question that precipitated that declaration of principle was jurisdictional: whether the Judiciary Act of 1789 could confer upon the Supreme Court a form of jurisdiction , not included in the constitutional jurisdictional grant. Marbury, 5 U.S. at 173-74. The Supreme Court, of course, said no. Id. at 180.

¶ 94. I am not suggesting that Wis. Stat. § 809.51 is unconstitutional, only that it cannot be read to expand the court of appeals' jurisdiction beyond that which is contained in the constitutional grant. And that is what the majority has done.

¶ 95. The majority claims that its conclusion is consistent with State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 571 N.W.2d 385 (1997), in which this court affirmed a writ of mandamus granted by the court of appeals stemming from a John *705Doe judge's denial of a John Doe petition without a hearing. Reimann, however, did not address the issue of the court of appeals' supervisory writ jurisdiction under the constitution, but merely assumed without further discussion that Wis. Stat. § 809.51 writ procedures were applicable. Reimann, 214 Wis. 2d at 625-26.

¶ 96. The majority asserts that the history of Article VII, Section 5(3), and particularly the 1977 reorganization of the Wisconsin court system, "supports a construction that would imbue the court of appeals with jurisdiction to issue a supervisory writ to a judge presiding over a John Doe proceeding." Majority op., ¶ 30. The majority notes that prior to court reorganization, Article VII, § 8, vested the circuit courts with appellate jurisdiction over "all inferior courts and tribunals," which included John Doe judges. Majority op., ¶ 30, n.ll. Court reorganization altered the language of Article VII, § 8 somewhat, deleting the reference to "inferior courts and tribunals" but retaining for the circuit courts "such appellate jurisdiction in the circuit as the legislature may prescribe by law." Majority op., ¶ 33, n.13.

¶ 97. Based on this history, the majority concludes that "[plursuant to the constitutional enactment, most of the appellate function previously exercised by the circuit courts was assigned to the newly created court of appeals." Majority op., ¶ 34. The majority does not identify which "constitutional enactment" — Article VII, § 5(3), Article VII, § 8, or some other provision— accomplished this purported "reassignment" of the circuit court's "appellate function." The majority cites no authority for this sweeping conclusion; the text of Article VII, §§ 5(3) and 8 certainly do not support it.

¶ 98. The majority has also concluded that a John Doe judge "must have the authority to disqualify coun*706sel, and may permit argument by counsel when necessary to ensure procedural fairness." Majority op., ¶ 55. These conclusions cannot be squared with longstanding caselaw; the latter rewrites the John Doe statute.

¶ 99. Adversarial motions which adjudicate the substantial rights of persons called before John Doe investigations — e.g., motions to compel, contempt motions, assertions of privilege and immunity grants — are heard and decided by the John Doe judge sitting as a court. See Washington, 83 Wis. 2d at 828-30 (compulsion/contempt); Doe, 78 Wis. 2d at 164 (same); Newspapers, 65 Wis. 2d at 72-73 (grant of immunity upon determination of self-incrimination privilege); Jackson, 18 Wis. 2d at 535-37 (same); In re Subpoena Duces Tecum, 113 Wis. 2d at 185 (motion to quash on assertion of self-incrimination privilege).

¶ 100. This court has held that while the John Doe statute "grants the John Doe judge power to issue subpoenas [ it does not specifically authorize the John Doe judge to force compliance with the subpoena or punish non-compliance." Washington, 83 Wis. 2d at 829 n.17. Such adversarial, adjudicative matters are outside the investigative scope of a John Doe, and, when they arise, are heard by the judge sitting as a court. This is because a John Doe judge's authority is limited by the purposes of the proceeding: a John Doe proceeding is investigative, not adversarial, and the John Doe judge's only adjudicative function is to determine probable cause. Id. at 821-22.

¶ 101. This court's most comprehensive statement of the role and authority of a John Doe judge is the following, from Washington:

The [John Doe] statute confers upon the John Doe judge the power to determine the extent of the exami*707nation, as well as the power to determine whether the examination will be secret. The John Doe investigation is essentially limited to the subject matter of the complaint upon which the John Doe is commenced. The John Doe judge has no authority to ferret out crime wherever he or she thinks it might exist.
By invoking the formal John Doe investigative proceeding, law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness. Although the judge's subpoena power is important to the prosecution and the judge has broad discretion in conducting the investigation, we reject [the defendant's] characterization of the judge as inevitably the 'chief investigator' or as an arm or tool of the prosecutor's office. We do not view the judge as orchestrating the investigation. The John Doe judge is a judicial officer who serves an essentially judicial function. The judge considers the testimony presented. It is the responsibility of the John Doe judge to utilize his or her training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause. It is the judge's responsibility to ensure procedural fairness. State v. O'Connor, 77 Wis. 2d 261, 284, 252 N.W.2d 671 (1977).
The John Doe judge should act with a view toward issuing a complaint or determining that no crime has occurred. To the extent that the judge exceeds this limitation, there is an abuse of discretion. State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 545, 118 N.W.2d 939 (1963).

*708Washington, 83 Wis. 2d at 822-24 (footnotes omitted). This articulation of the John Doe judge's role allowed the court in Washington to sustain the John Doe statute against a claim that it violated separation of powers by merging judicial and executive authority. Id. at 825-26.

¶ 102. The John Doe statute permits witnesses to have counsel present during the examination but provides that "counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge." Wis. Stat. § 968.26 (emphasis added). While this language relegates the attorney to a largely consultative rather than adversarial role (important, nonetheless, given the stakes), it also indicates a limitation on the scope and purpose of the John Doe and the authority of the John Doe judge.

¶ 103. Because an attorney may be present but may not examine witnesses or argue before the judge, the statute obviously does not contemplate that the John Doe judge, as a John Doe judge, would adjudicate motions affecting the rights of targets or witnesses, as this would necessarily require at least some semblance of adversarial process, such as the opportunity for counsel to be heard, which the statute otherwise prohibits.5 A prosecutor's motion to disqualify counsel would qualify as an adversarial adjudicative matter, *709unless we are willing to say that a judge can legitimately disqualify an attorney based upon argument from a prosecutor alone.6

¶ 104. Thus the John Doe statute itself, and the cases cited above, require the John Doe judge to convene and act as a court in order to adjudicate an adversarial matter such as a motion to disqualify counsel during a John Doe investigation. This conclusion provides basic procedural fairness (the opportunity to be heard before important rights are adjudicated), and also creates a record for review, which is completely lacking here.

¶ 105. The majority notes that any review of the disqualification orders, had they not been withdrawn, "would be greatly hampered by the absence of any record for our review." Majority op., ¶ 56. This eloquently understates the problem. Review is not merely "greatly hampered" without a record; it is impossible. We have no idea why the John Doe judge disqualified the attorneys in this matter, other than a generic claim of conflict of interest stemming from previous representation of other witnesses. Here, the "no record" problem is theoretical only, because of the apparent mootness *710brought about by the John Doe judge's withdrawal of the orders in question; in another case, the problem will be real.

¶ 106. The majority gets around the caselaw and the statutory language by simply rewriting the statute: "counsel shall not be allowed to argue before the judge" now reads "counsel may argue before the judge." However, argument of counsel, while now permitted under the majority's rewrite of the statute, may not be terribly meaningful. While the majority "remind[s] John Doe judges to be mindful that, when rendering judicial decisions in the context of a John Doe proceeding, they must create a record for possible review," the majority also "appreciate [s] that the John Doe judge could conclude that the terms of the secrecy order may preclude a disclosure of the factual basis for the disqualification orders to the petitioners and their counsel." Majority op., ¶ 57. If counsel is not told why the prosecutor and judge want him disqualified, how can he possibly "argue before the judge" on the matter, and how can he formulate and prosecute a credible supervisory writ action in the court of appeals?

¶ 107. It is interesting to note that during the same week that we heard oral argument in this matter, the John Doe judge took evidence and heard argument on the issue of whether the John Doe prosecutor ought to be disqualified on conflict of interest grounds. She did so not as a judge presiding over a John Doe tribunal, but as a circuit court in open session. She then issued an 11-page written decision captioned "State of Wisconsin, Circuit Court, Dane County, Branch 16," bearing the signature line "Circuit Court, Branch 16," finding no conflict of interest. The decision states that this procedure was followed "because the law is not settled in Wisconsin whether a John Doe judge has the power to *711make orders regarding a conflict of interest of attorneys appearing in the John Doe." Decision and Order, Dane County Circuit Court Case No. 01JD6, dated September 18, 2002. In any event, there is a court record and a court order.

¶ 108. Thus, when a John Doe judge adjudicates these sorts of motions as a court rather than a John Doe tribunal, then direct appellate or supervisory review in the court of appeals is available because the proceeding produces an order from a court, not a John Doe judge. This brings me full circle, back to the threshold jurisdictional question.

¶ 109. The constitution and the caselaw are clear that a John Doe judge's order may be reviewed by an original writ proceeding in the circuit court (which in turn is reviewable in the court of appeals), or by an original action in this court if the matter is publici juris and the court chooses to hear it, but not by the court of appeals in an original supervisory writ action. Wis. Const, art. VII, §§ 3, 8; Swan, 133 Wis. 2d at 95-97; Heil, 230 Wis. at 445-46. A motion to disqualify counsel in a John Doe investigation, just like a contempt motion, a motion to compel, or a claim of privilege and grant of immunity, must be heard by the judge sitting as a court rather than a John Doe tribunal. Washington, 83 Wis. 2d at 829 n.17; Doe, 78 Wis. 2d at 164; Newspapers, 65 Wis. 2d at 72-73; Jackson, 18 Wis. 2d at 535-37; In re Subpoena Duces Tecum, 113 Wis. 2d at 185. An order emanating from such a hearing may be reviewed by the court of appeals pursuant to its appellate or supervisory jurisdiction under Article VII, Section 5(3) of the constitution.

¶ 110. The majority opinion rewrites Article VII, Section 5(3) of the Wisconsin Constitution, as well as the John Doe statute; refuses to follow plainly appli*712cable precedents; and expands the authority of a John Doe judge beyond that which either the statute or the caselaw allow. I cannot join this opinion.

Article VII, Section 8 of the Wisconsin Constitution provides that "the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law. The circuit court may issue all writs necessary in aid of its jurisdiction."

Black's Law Dictionary lists certiorari, habeas corpus, mandamus, and prohibition as examples of prerogative writs. See Black's Law Dictionary at 1602-03 (7th ed. 1999).

See Robert J. Martineau & Richard R. Malmgren, Wisconsin Appellate Practice (1978).

The John Doe statute provides that " [iff a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her...." Wis. Stat. § 968.26 (emphasis added). The criminal code contains separate and distinct definitions of 'judge" and "court." See Wis. Stat. § 967.02(6) and (7) (in Chapters 967-79, "judge" means a "judge .of a court of record" and "court" means a "circuit court"); see also State v. Washington, 83 Wis. 2d 808, 829 n.15, 266 N.W.2d 597 (1978).

The John Doe judge here may have permitted argument by counsel for Unnamed Persons No. 1 and No. 2, even though the John Doe statute precludes it, because the briefs refer to counsel as having requested further information and an opportunity to seek conflict waivers. We have no record by which to confirm this, however, because of the John Doe secrecy order.

The commentary to SCR 20:1.7 regarding- attorney conflicts of interest carries this caution regarding a conflict charged by an opposing party in a motion to disqualify counsel:

Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.