Unnamed Person No.1 v. State

CERTIFICATION of questions of law from the Court of Appeals. Certified questions answered.

¶1 PER CURIAM. We review certified questions relating to three petitions for supervisory writ filed in connection with a John Doe proceeding pending before the Honorable Sarah B. O'Brien, a Dane County Circuit Court judge. See In the Matter of a John Doe Proceeding Commenced by Affidavit dated July 25, 2001; Nos. 01-3220-W, 02-0446-W, 02-0831-W, Certification Mem. (Wis. Ct. App. July 5, 2002). Three witnesses summoned to testify in the secret John Doe proceeding filed separate petitions for supervisory writ in the court of appeals, each challenging certain actions of the John Doe judge and asking the court of appeals to exercise its supervisory authority with respect to those actions. The court of appeals sealed the records, then certified these matters to this court because of concerns as to whether the court of appeals had jurisdiction to issue a supervisory writ to a judge presiding over a John Doe proceeding. The court of appeals also asked for clarification in regard to the scope of secrecy of an appellate record in such a proceeding. We accepted certification and granted a motion filed by the Journal Sentinel, Inc. and The Capital Times Co. (Newspapers) to intervene with respect to the issue of the scope of secrecy of an appellate record in a John Doe proceeding.

¶2 We now conclude that the court of appeals has jurisdiction to issue a supervisory writ to a John Doe judge. We conclude further that a John Doe judge has the authority to disqualify counsel for a witness in a John Doe proceeding but must ensure that there is a record of that decision for review. Finally, we hold that when documents are submitted under seal in connection with a petition for supervisory writ that stems from a secret John Doe proceeding, the court of appeals must conduct an in camera review of those documents prior to issuing an order that continues the sealing of such documents, applying the criteria set forth herein.

¶3 The underlying John Doe proceeding involves an investigation by Dane County District Attorney Brian Blanchard into possible illegal campaign activity by the partisan legislative caucuses of the Wisconsin Senate and Wisconsin Assembly, as well as various state employees and legislators.[1] The underlying investigation is subject to a secrecy order entered by the John Doe judge on July 27, 2001, as amended by order dated August 17, 2001 and order dated March 6, 2003.

¶4 The petitioners are three separate individuals who were subpoenaed to testify in the underlying John Doe proceeding. After these writs were filed in the court of appeals, the court of appeals sua sponte ordered all the files in these three matters sealed. As a result of this action, the Newspapers filed a motion to intervene, which, as noted, this court granted when it accepted certification by order dated July 29, 2002.

¶5 By virtue of the secret nature of the underlying John Doe proceedings, the record before this court is somewhat sparse. Indeed, because these are writ proceedings commenced in the court of appeals, we do not have access to the record of the underlying John Doe proceeding. The facts presented to this court regarding each of the three petitions are as follows:

Unnamed Person No. 1

¶6 Unnamed Person No. 1 is represented by the law firm of Gimbel, Reilly, Guerin & Brown. In the course of the John Doe proceeding, the district attorney filed a motion to disqualify counsel for Unnamed Person No. 1. As grounds, the district attorney alleged that different lawyers at this firm had represented other witnesses subpoenaed to testify in the John Doe proceeding. The lawyers could not obtain the usual waivers and consents from their clients because the secrecy order precluded disclosing the names of their clients.

¶7 Based on information presented by the Dane County District Attorney, the John Doe judge issued a non-final order disqualifying Unnamed Person No. 1's counsel based on the alleged conflict of interest which was deemed not subject to waiver due to the secrecy order. Unnamed Person No. 1 filed a petition for supervisory writ[2] asking the court of appeals to issue a writ precluding the John Doe judge from disqualifying his or her counsel. As part of this petition, Unnamed Person No. 1 challenged the authority of the John Doe judge to disqualify counsel in this manner.

¶8 Subsequently, the State moved to dismiss as moot the writ filed by Unnamed Person No. 1, indicating that it has "no current intention" of subpoenaing Unnamed Person No. 1. The petitioner responded that the matter is not moot because the State has not withdrawn its objection to his or her counsel and has "left open the door" to subpoenaing him or her in the future.

¶9 On May 30, 2002, before the court of appeals acted on the motion to dismiss, the John Doe judge issued an order vacating her earlier order disqualifying Unnamed Person No. 1's counsel.[3] Notwithstanding this order, Unnamed Person No. 1 maintains that the matter is not moot, emphasizing that the question of a John Doe judge's authority to disqualify counsel should be resolved. The matter was certified to this court with the motion to dismiss still pending before the court of appeals.

Unnamed Person No. 2

¶10 The procedural background relevant to Unnamed Person No. 2 is similar to that of Unnamed Person No. 1. The district attorney filed a motion to disqualify counsel for Unnamed Person No. 2, who is represented by the law firm of Murphy & Desmond. Again, the disqualification motion was based on an alleged conflict of interest involving the firm's representation of multiple witnesses in the John Doe proceeding.

¶11 As with Unnamed Person No. 1, the John Doe judge issued an order disqualifying counsel based on information presented by the Dane County District Attorney. Unnamed Person No. 2 contends that the information was disclosed to the judge in a private session that excluded both the petitioner and the petitioner's counsel. Accordingly, Unnamed Person No. 2 filed a petition for supervisory writ[4] asking the court of appeals to issue a writ precluding the John Doe judge from disqualifying his or her counsel.

¶12 On May 2, 2002, the State moved to dismiss Unnamed Person No. 2's writ as moot, indicating that it has "no current intention" of subpoenaing this petitioner. On May 30, 2002, the John Doe judge issued an order vacating the order disqualifying counsel.[5] Unnamed Person No. 2 did not oppose the motion to dismiss but the matter was certified to this court before the court of appeals ruled on the motion. Accordingly, the State's motion to dismiss Unnamed Person No. 2's petition for supervisory writ is still pending.

Unnamed Person No. 3

¶13 Unnamed Person No. 3 filed a petition for supervisory writ alleging different facts. Unnamed Person No. 3, a former employee of the Assembly Democratic Caucus, was subpoenaed to testify in connection with the underlying John Doe proceeding. Unnamed Person No. 3 appeared at the John Doe proceeding on March 13, 2002 and exercised his or her Fifth Amendment rights with respect to several questions. The day before he or she was ordered to appear again, on March 25, 2002, Unnamed Person No. 3 filed a petition for supervisory writ, a motion seeking relief from the subpoena, and a stay of the entire John Doe proceeding. The request for a stay was denied. Subsequently, Unnamed Person No. 3 was granted immunity in open court, testified and was released from the subpoena.

¶14 Unnamed Person No. 3's petition for a writ involved the claim that Dane County District Attorney Brian Blanchard had an impermissible conflict of interest, such that he should not have remained involved in the John Doe investigation generally, or in this petitioner's subpoena or questioning, specifically. Unnamed Person No. 3 claims further that the John Doe judge misused her discretion by failing to exclude District Attorney Blanchard because of this alleged conflict. This petitioner asserts that the entire John Doe proceeding should be halted on the grounds that it is impermissibly tainted by District Attorney Blanchard's involvement.

¶15 As evidence of the alleged conflict of interest, Unnamed Person No. 3 references a press release District Attorney Blanchard issued on June 7, 2001 in which District Attorney Blanchard disclosed that he had received certain limited assistance from an individual at the Senate Democratic Caucus early in his own campaign. In that press release, he stated that "[t]o avoid the appearance of a conflict of interest, today I am naming Milwaukee County District Attorney E. Michael McCann as special prosecutor to handle investigation of, and any prosecution decisions relating to," the Senate Democratic Caucus.

¶16 The court of appeals denied Unnamed Person No. 3's motion to stay the entire John Doe proceeding. Unnamed Person No. 3 later renewed that motion and the court of appeals again denied it.[6] The court also directed the parties to brief the jurisdictional issue we will address herein.[7]

¶17 While Unnamed Person No. 3's petition was pending before this court, the John Doe judge, on September 6, 2002, granted District Attorney Blanchard's request for an investigation into his alleged conflict of interest. A hearing, which was open to the public, was conducted on September 17, 2002, one day before the oral argument in this case. On September 18, 2002, a few hours after the oral argument in this matter concluded, the John Doe judge issued an order finding that there was no impermissible conflict of interest involving District Attorney Blanchard.

¶18 The first question we consider is whether the three respective petitions for supervisory writ are moot. It is well settled that a case is moot when a determination is sought on a matter which, when rendered, cannot have any practical legal effect upon an existing controversy. Stahovic v. Rajchel, 122 Wis. 2d 370, 374, 363 N.W.2d 243 (1984).

¶19 At first blush, it appears these matters may well be moot. The bases for the requests for supervisory writ from Unnamed Persons No. 1 and No. 2 stem from the John Doe judge's orders disqualifying their counsel. Each of these orders was subsequently vacated. The basis for Unnamed Person No. 3's request for a supervisory writ stems from his or her allegations regarding District Attorney Blanchard, which have now been addressed in the John Doe proceeding. Moreover, Unnamed Person No. 3 has been released from his or her subpoena. However, even if an issue is moot, this court may address the issue if: (1) the issue is of great public importance; (2) the situation occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) the issue is likely to arise again and a decision of the court would alleviate uncertainty; or (4) the issue will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties. State ex rel. Hensley v. Endicott, 2001 WI 105, ¶5, 245 Wis. 2d 607, 629 N.W.2d 686.

¶20 Regardless of whether these matters are moot, we conclude that they present issues that are likely to be repeated but may evade review. We believe that the issues are of great public importance, and that a definitive decision from this court would alleviate uncertainty and provide guidance to the lower courts. Accordingly, we will address the certified question whether the court of appeals has jurisdiction to issue a supervisory writ to a judge presiding over a John Doe proceeding.[8] We will also consider whether a John Doe judge has the authority to disqualify counsel for a witness in a John Doe proceeding. Finally, we will address the scope of secrecy of an appellate record in a petition stemming from a secret John Doe proceeding.

¶21 The question whether the court of appeals has the authority to issue a supervisory writ over the actions of a judge in a John Doe proceeding arises because of the unusual nature of John Doe proceedings. The John Doe proceeding is an institution sanctioned by long usage and general recognition in this state. State v. Washington, 83 Wis. 2d 808, 814 n.2, 266 N.W.2d 597 (1978).[9]

¶22 A John Doe proceeding is intended as an independent, investigatory tool used to ascertain whether a crime has been committed and if so, by whom. State ex rel. Reimann v. Cir. Ct., 214 Wis. 2d 605, 621, 571 N.W.2d 385 (1997) (citations omitted). It is "designed to protect innocent citizens from frivolous and groundless prosecutions." Id.

¶23 Typically, when a circuit court judge renders a decision in a court of record, that decision may be appealed directly to the court of appeals pursuant to Wis. Stat. § 808.03. By contrast, a John Doe proceeding is commenced by a judge, who acts as the tribunal. See State v. Noble, 2002 WI 64, 253 Wis. 2d 206, 646 N.W.2d 38. Therefore, an order issued by a judge in a John Doe proceeding is not a judgment or order of a circuit court. Washington, 83 Wis. 2d at 814 n.2; see also Wis. Stat. § 967.02(6) (defining "judge") and § 967.02(7) (defining "court"). Thus, it is well settled that a John Doe judge's actions are not directly appealable to the court of appeals because an order issued by a John Doe judge is not an order of a "circuit court" or a "court of record." See Wis. Stat. § 808.01 (defining "[a]ppeal"); Wis. Stat. § 808.03 ("[a]ppeals to the court of appeals"); see also State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 118 N.W.2d 939 (1963).

¶24 With that background, we consider the nature and scope of the court of appeals' jurisdiction to evaluate whether the court of appeals has jurisdiction to issue a supervisory writ over the actions of a John Doe judge.

¶25 The nature and scope of the court of appeals' appellate, supervisory, and original jurisdiction are set forth in the constitution and the statutes. Wisconsin Constitution, Article VII, Section 5(3) 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 in the district.

Id.; see also Wis. Stat. § 752.01;[10] Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939).

¶26 To resolve the question whether the court of appeals has jurisdiction to issue a supervisory writ to a judge presiding over a John Doe proceeding, we must interpret Article VII, Section 5(3), as well as related statutory provisions.

¶27 This court interprets provisions of the Wisconsin Constitution de novo. Polk County v. State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389 (1994). In interpreting a constitutional provision, the court turns to three sources in determining the provision's meaning: the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption. Id. at 674; State v. Beno, 116 Wis. 2d 122, 123-37, 341 N.W.2d 668 (1984).

¶28 The interpretation of a statute and its application to a set of facts are also questions of law that we review de novo. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999); Landis v. Physicians Ins. Co., 2001 WI 86, ¶13, 245 Wis. 2d 1, 628 N.W.2d 893. If the language of a statutory provision is unambiguous, and clearly sets forth the legislative intent, we do not look beyond the language itself and simply apply the statutory provision to the case at hand. Landis, 2001 WI 86, ¶14. If, however, the language of a statute is ambiguous, we must look beyond its language and examine such things as its scope, history, context, subject matter, and purpose, to determine the intent of the legislature. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 548 N.W.2d 57 (1996); Landis, 2001 WI 86, ¶15. A statute is ambiguous if reasonable minds could differ as to its meaning. UFE, Inc., 201 Wis. 2d at 283.

¶29 Article VII, Section 5(3) might be read narrowly and taken to mean the court of appeals lacks supervisory jurisdiction because the actions of a John Doe judge are not actions of a "court." That is how the State and the dissent would have us construe it. It might also be taken to reflect a broad grant of authority to the court of appeals, which includes the authority to issue a supervisory writ over the actions of a John Doe judge. That is how the petitioners and the John Doe judge would have us construe it. Both constructions are reasonable and we conclude that Article VII, Section 5(3) is ambiguous with respect to whether it grants the court of appeals jurisdiction to issue a supervisory writ over a John Doe proceeding. Therefore, we turn to extrinsic factors, including the history of the constitutional enactment and contemporaneous statutory enactments, to evaluate the relevant constitutional provision.

¶30 The history of Article VII, Section 5(3) 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. Our analysis is inextricably intertwined with the reorganization of the Wisconsin court system, enacted in 1977, which created the court of appeals. Prior to the court reform, Wisconsin's court system was comprised of the Wisconsin Supreme Court, circuit courts, county courts and municipal courts. See 4 Jay E. Grenig & Nathan Fishbach, Wisconsin Practice, Civil Procedure Forms, §§ 1.6-1.11 (1999). Before the creation of the court of appeals, actions of a John Doe judge were subject to review by writ proceedings initiated in a circuit court, pursuant to the authority vested in the circuit court by the Wisconsin Constitution. Wis. Const. art. VII, § 8 (1975);[11] see also State ex rel. Niedziejko v. Coffey, 22 Wis. 2d 392, 126 N.W.2d 96 (1964); State ex rel. Kowaleski v. Dist. Ct., 254 Wis. 363, 36 N.W.2d 419 (1949).

¶31 There was apparently no dispute that a circuit court's appellate authority over "inferior county courts" and other "tribunals" included John Doe proceedings, because a John Doe judge is a judicial tribunal. See State v. Noble, 2001 WI App 145, ¶22, 246 Wis. 2d 533, 629 N.W.2d 317; State ex rel. Freemon v. Cannon, 40 Wis. 2d 489, 493, 162 N.W.2d 32 (1968).

¶32 Effective in 1978, Wisconsin's court system was completely overhauled. County courts were abolished and merged into circuit courts; county court jurisdiction and judges were transferred to circuit courts. See William A. Bablitch, Court Reform of 1977: The Wisconsin Supreme Court Ten Years Later, 72 Marq. L. Rev. 1 (1988);[12] 4 Jay E. Grenig & Nathan Fishbach, Wisconsin Practice at § 1.9. The four districts of the Wisconsin Court of Appeals were created and were specifically granted the authority set forth in Wisconsin Constitution Article VII, Section 5(3) (1977) codified at sections 752.01 and 752.02, Wis. Stats. (1977).

¶33 Consistent with this reorganization, the Wisconsin Constitution was amended to delete the reference to circuit courts having appellate jurisdiction of "all inferior courts and tribunals."[13]

¶34 Pursuant to the constitutional enactment, most of the appellate function previously exercised by circuit courts was assigned to the newly created court of appeals. It is unclear whether the reorganization was intended to transfer the authority to review John Doe proceedings to the court of appeals, because the constitutional enactment failed to include the word "tribunal" in the constitutional grant of jurisdiction to the court of appeals. </


Case No.:		01-3220-W, 02-0446-W, 02-0831-W

Complete Title:
		In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001: State of Wisconsin ex rel. Unnamed Person No.1, Petitioner, State of Wisconsin ex rel. Unnamed Person No.2, Petitioner, State of Wisconsin ex rel. Unnamed Person No.3, Petitioner, v. State of Wisconsin and the Honorable Sarah B. O'Brien, presiding, Respondents, The Capital Times Company, Ron McCrea, City Editor of the Capital Times, Journal Sentinel, Inc. and Mark Maley, State News Editor for the Milwaukee Journal Sentinel, Intervenors.

		ON CERTIFICATION FROM THE COURT OF APPEALS

Opinion Filed:		May 1, 2003
Submitted on Briefs:
Oral Argument:		September 18, 2002

Source of Appeal:
	Court:	Circuit
	County:	Dane
	Judge:	Sarah B. O'Brien

Justices:
	Concurred:	ABRAHAMSON, C.J., concurs (opinion filed).
	Dissented:	SYKES, J., dissents (opinion filed).
	Not Participating:

Attorneys:


STATE OF WISCONSIN :	IN SUPREME COURT

In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001: State of Wisconsin ex rel. Unnamed Person No.1, Petitioner, State of Wisconsin ex rel. Unnamed Person No.2, Petitioner, State of Wisconsin ex rel. Unnamed Person No.3, Petitioner, v. State of Wisconsin and the Honorable Sarah B. O'Brien, presiding, Respondents, The Capital Times Company, Ron McCrea, City Editor of the Capital Times, Journal Sentinel, Inc. and Mark Maley, State News Editor for the Milwaukee Journal Sentinel, Intervenors.		FILED MAY 1, 2003 Cornelia G. Clark Clerk of Supreme Court