Francis D. Schmitz v. Honorable Gregory A. Peterson ( 2015 )

2015 WI 85SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP296-OA & 2014AP417-W through 2014AP421-W &
2013AP2504-W through 2013AP2508-W
COMPLETE TITLE: State of Wisconsin ex rel. Two Unnamed Petitioners,
Petitioner,
v.
The Honorable Gregory A. Peterson, John Doe Judge and
Francis D. Schmitz, Special Prosecutor,
Respondents.
-------------------------------------------------
State of Wisconsin ex rel. Francis D. Schmitz,
Petitioner,
v.
Honorable Gregory A. Peterson, John Doe Judge,
Respondent,
Eight Unnamed Movants,
Interested Party.
--------------------------------------------------
In the Matter of John Doe Proceeding
State of Wisconsin ex rel. Three Unnamed Petitioners,
Petitioner,
v.
the Honorable Gregory A. Peterson, John Doe judge,
the Honorable Gregory Potter, Chief Judge and
Francis D. Schmitz, as Special Prosecutor,
Respondents.
ORIGINAL ACTION
------------------------------------------------------
PETITION FOR SUPERVISORY WRIT BEFORE THE SUPREME COURT,
APPEAL AND BYPASS TO THE SUPREME COURT FROM CIRCUIT
COURT ORDER
-------------------------------------------------------
PETITION FOR REVIEW BEFORE THE SUPREME COURT
OPINION FILED: July 16, 2015
SUBMITTED ON
BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee, Iowa, Dodge, Dane and Columbia
JUDGE: Gregory A. Peterson (Reserve)
JUSTICES:
CONCURRED: PROSSER, J., ROGGENSACK, C.J. (joining Sections IV and
V), ZIEGLER, J. (joining Section IV) and GABLEMAN, J.
(joining Section IV) concur (Opinion filed).
ZIEGLER, J. concurs (Opinion filed).
CONCUR/DISSENT: ABRAHAMSON, J. concurs and dissents (Opinion filed).
CROOKS, J. concurs and dissents (Opinion filed).
DISSENTED:
NOT
PARTICIPATING: BRADLEY, J., did not participate.
ATTORNEYS:
For the Petitioners (case nos. 2013AP2504-W through
2013AP2508-W and 2014AP296-OA) and Interested Parties (case nos.
2014AP417-W through 2014AP421-W) there were briefs by Attorney
Dean A. Strang, StrangBradley, LLC, Madison; Attorney Steven M.
Biskupic and Attorney Michelle L. Jacobs, Biskupic & Jacobs,
S.C., Mequon; Attorney Dennis P. Coffey, Mawicke & Goisman, SC,
Milwaukee; Attorney Matthew W. O’Neill, Fox O’Neill Shannon,
S.C., Milwaukee; Attorney James B. Barton, Hansen Reynolds
Dickinson Crueger LLC, Milwaukee; Attorney Eric J. Wilson,
Godfrey & Kahn, S.C., Madison; and Attorney Jeffrey James
Morgan, LeBell, Dobrowski & Morgan, LLP, Milwaukee.
For the Respondents (case nos. 2013AP2504-W through
2013AP2508-W, 2014AP417-W through 2014AP421-W and 2014AP296-OA)
there were briefs by Assistant Attorney General David C. Rice,
with whom on the briefs was Attorney General J. B. Van Hollen
(term of office ending December 31, 2014) and Attorney General
Brad Schimel (term of office commencing January 1, 2015) and
Special Prosecutor Francis D. Schmitz (Petitioner in case nos.
2014AP417-W through 2014AP421-W), Milwaukee.
Amici Curiae briefs were filed by Attorney Benjamin T. Barr
(pro hac vice), Cheyenne, WY and Attorney Stephen R. Klein (pro
hac vice), Cheyenne, WY on behalf of the Wyoming Liberty Group
2
with whom on the brief was Attorney Matthew M. Fernholz and
Cramer, Multhauf & Hammes, LLP, Waukesha; Attorney James Bopp,
Jr., Terre Haute, IN, on behalf of the James Madison Center for
Free Speech and on behalf of Wisconsin Right to Life, Inc. with
whom on the briefs was Attorney Michael D. Dean and Michael D.
Dean, LLC, Brookfield; Attorney James R. Troupis and Troupis Law
Office, LLC, Cross Plains, on behalf of the Ethics and Public
Policy Center; Attorney Adam J. White (pro hac vice),
Washington, D.C. and Boyden Gray & Associates, Washington, D.C.,
on behalf of Former Members of the Federal Election Commission
Lee Ann Elliot, David Mason, Hans von Spakovsky and Darryl Wold
with whom on the brief were Attorney James R. Troupis and
Attorney Paul M. Ferguson, Cross Plains; Attorney Jonathan
Becker, Attorney Nathan W. Judnic and Attorney Kevin J. Kennedy
on behalf of the Wisconsin Government Accountability Board,
Madison; Attorney Richard M. Esenberg, Attorney Brian W. McGrath
and the Wisconsin Institute for Law & Liberty, Milwaukee, on
behalf of The Hon. Bradley A. Smith, Center for Competitive
Politics, and Wisconsin Family Action; Attorney J. Gerald Hebert
(pro hac vice), Attorney Tara Malloy (pro hac vice), Attorney
Paul S. Ryan (pro hac vice), Attorney Megan P. McAllen (pro hac
vice) and The Campaign Legal Center, Washington D.C., Attorney
Fred Wertheimer (pro hac vice) and Democracy 21, Washington,
D.C. and Attorney Donald J. Simon (pro hac vice) and Sonosky,
Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C. on
behalf of Campaign Legal Center, Democracy 21, Common Cause in
Wisconsin and League of Women Voters of Wisconsin with whom on
the brief was Attorney Susan M. Crawford and Cullen Weston Pines
& Bach LLP, Madison; Attorney David B. Rivkin, Jr. (pro hac
vice), Attorney Lee A. Casey (pro hac vice), Attorney Mark W.
Delaquil (pro hac vice), Attorney Andrew M. Grossman (pro hac
vice), Attorney Richard B. Raile (pro hac vice) and Baker &
Hostetler LLP, Washington, D.C. on behalf of Citizens for
Responsible Government Advocates, Inc. with whom on the brief
3
was Attorney Christopher M. Meuler and Friebert Finerty & St.
John, S.C., Milwaukee; Attorney Matthew Menendez (pro hac vice),
Attorney Daniel I. Weiner (pro hac vice), Attorney Alicia L.
Bannon (pro hac vice) and Brennan Center for Justice at NYU
School of Law on behalf of Professors of Legal Ethics, with whom
on the brief was Attorney Thomas R. Cannon, Milwaukee.
4
2015 WI 85NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W &
2013AP2504-W through 2013AP2508-W
(L.C. No. 2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Two Unnamed
Petitioners,
Petitioner,
v. FILED
The Honorable Gregory A. Peterson, John Doe JUL 16, 2015
Judge and
Diane M. Fremgen
Francis D. Schmitz, Special Prosecutor, Clerk of Supreme Court
Respondents.
State of Wisconsin ex rel. Francis D. Schmitz,
Petitioner,
v.
Honorable Gregory A. Peterson, John Doe Judge,
Respondent,
Eight Unnamed Movants,
Interested Party.
In the Matter of John Doe Proceeding
State of Wisconsin ex rel. Three Unnamed
Petitioners,
Petitioner,
v.
the Honorable Gregory A. Peterson, John Doe
judge,
the Honorable Gregory Potter, Chief Judge and
Francis D. Schmitz, as Special Prosecutor,
Respondents.
ORIGINAL ACTION for declaratory judgment. Declaration of
rights; relief granted; John Doe investigation ordered closed.
PETITION for supervisory writ and appeal from an order of a
John Doe Judge for Milwaukee County, Iowa County, Dodge County,
Dane County, and Columbia County, Gregory A. Peterson, Reserve
Judge. Petition for supervisory writ denied and order affirmed.
PETITION for supervisory writ and review of a decision of
the Court of Appeals. Petition for supervisory writ denied and
decision affirmed.
¶1 MICHAEL J. GABLEMAN, J. These cases arise from a
John Doe proceeding originally initiated in Milwaukee County,
and subsequently expanded to four additional counties, Iowa
2
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
County, Dodge County, Dane County, and Columbia County. Though
not consolidated, these proceedings have been overseen by a
single John Doe judge and organized by a single special
prosecutor (Francis Schmitz). For the sake of clarity, we will
refer to all five proceedings as a single "John Doe
investigation." The investigation has been ongoing for several
years and has been the subject of much litigation. 1
¶2 According to the special prosecutor, the purpose of
the John Doe investigation is to root out allegedly illegal
campaign coordination between certain issue advocacy groups and
a candidate for elective office. To further the investigation,
the special prosecutor sought, and received, wide-ranging
subpoenas and search warrants for 29 organizations and
individuals, seeking millions of documents that had been created
over a period of several years. Various targets (collectively
"the Unnamed Movants") moved the John Doe judge to quash the
subpoenas and search warrants and to return any property seized
by the special prosecutor. The John Doe judge, the Hon. Gregory
A. Peterson, presiding, granted the motions to quash and ordered
the return of all property seized. Reserve Judge Peterson
1
We have granted the amicus briefs on the merits filed by:
Wisconsin Right to Life; Citizens for Responsible Government
Advocates, Inc.; The Wisconsin Government Accountability Board;
The Honorable Bradley A. Smith, Center for Competitive Politics,
and Wisconsin Family Action; Campaign Legal Center, Democracy
21, Common Cause in Wisconsin, and League of Women Voters of
Wisconsin; Former Federal Election Commission Members Lee Ann
Elliott, David Mason, Hans von Spakovsky, and Darryl Wold; and
Wyoming Liberty Group.
3
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
stayed the order, however, and also halted the John Doe
investigation pending our resolution of the cases before us.
¶3 The first case we address is an original action
brought by Unnamed Movants Nos. 6 and 7, State ex rel. Two
Unnamed Petitioners v. Peterson ("Two Unnamed Petitioners").
Unnamed Movants Nos. 6 and 7 seek a declaration of rights that
the special prosecutor's theory of the case is invalid under
Wisconsin law. Specifically, they ask that we declare that
coordinated issue advocacy of the kind alleged by the special
prosecutor is not regulated under Wis. Stat. Ch. 11 (2011-12), 2
Wisconsin's campaign finance law.
¶4 The second case we review is a petition brought by the
special prosecutor for a supervisory writ and an appeal of
Reserve Judge Peterson's decision and order quashing the
subpoenas and search warrants, State ex rel. Schmitz v. Peterson
("Schmitz v. Peterson"). The special prosecutor argues that
Reserve Judge Peterson improperly quashed the subpoenas and
search warrants because the records in the John Doe
investigation establish a reasonable belief that the Unnamed
Movants violated Wisconsin's campaign finance law. This case is
before us on the Unnamed Movants' petitions to bypass the court
of appeals pursuant to Wis. Stat. § 809.60 (2013-14).
¶5 The third case we address is a petition for a
supervisory writ and a review of a decision of the court of
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
4
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
appeals, State ex rel. Three Unnamed Petitioners v. Peterson
("Three Unnamed Petitioners"). This petition for supervisory
writ was brought by Unnamed Movants Nos. 2, 6, and 7, and
broadly challenges whether the John Doe investigation can be
initiated in five separate counties under a single John Doe
judge, and whether the special prosecutor was properly
appointed. The court of appeals denied the supervisory writ and
Unnamed Movants Nos. 2, 6, and 7 appealed that decision to this
court.
¶6 Our order granting and consolidating 3 each of these
cases identified 14 issues presented by the complex nature of
the cases. These issues related to the procedural nature of the
John Doe investigation, as well as whether the conduct alleged
by the special prosecutor is actually a violation of Ch. 11.
Subsequent briefing by the parties has revealed that the cases
can be resolved on much narrower grounds than those that were
originally submitted, and we have written this opinion
accordingly.
¶7 We can resolve the original action, Two Unnamed
Petitioners, by first examining whether the statutory
definitions of "committee," "contributions," "disbursements,"
and "political purposes" in Wis. Stat. §§ 11.01(4), (6), (7),
3
In our December 16, 2014, grant order we consolidated the
cases for the purpose of briefing and oral argument. We
subsequently consolidated these three cases into one opinion
because each case arises out of the same facts.
5
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
and (16) are limited to express advocacy 4 or whether they
encompass the conduct of coordination between a candidate or a
campaign committee and an independent organization that engages
in issue advocacy. Second, if the definitions extend to issue
advocacy coordination, what then constitutes prohibited
"coordination?" 5
¶8 Next, we can resolve the supervisory writ petition in
Schmitz v. Peterson by answering whether the evidence gathered
in the John Doe proceedings provides a reasonable belief that
Wisconsin law was violated by a campaign committee's
coordination with independent advocacy organizations that
engaged in express advocacy. 6
¶9 Finally, we can resolve the supervisory writ petition
in Three Unnamed Petitioners by examining: (1) Whether the
Director of State Courts ("Director") violated a plain legal
duty in appointing reserve judge, Barbara A. Kluka, as the John
Doe judge to preside over a multi-county John Doe proceeding;
(2) Whether the Chief Judge of the First Judicial District
violated a plain legal duty in appointing reserve judge, Gregory
A. Peterson, as the John Doe judge to preside over a multi-
4
Express advocacy is a communication that expressly
advocates for the election or defeat of a clearly identified
candidate.
5
This is issue seven from our December 16, 2014, grant
order.
6
This is issue ten from our December 16, 2014, grant order.
6
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
county John Doe proceeding; (3) Whether a John Doe judge
violated a plain legal duty by convening a John Doe proceeding
over multiple counties, which is then coordinated by the
district attorney of one of the counties; (4) Whether a John Doe
judge violated a plain legal duty by appointing a special
prosecutor to perform the functions of a district attorney in
multiple counties in a John Doe proceeding when (a) the district
attorney in each county requests the appointment; (b) but none
of the nine grounds for appointing a special prosecutor under
Wis. Stat. § 978.045(1r) apply; (c) no charges have yet been
issued; (d) the district attorney in each county has not refused
to continue the investigation or prosecution of any potential
charge; and (e) no certification that no other prosecutorial
unit was able to do the work for which the special prosecutor
was sought was made to the Department of Administration; and (5)
If, arguendo, there was a defect in the appointment of the
special prosecutor in the John Doe proceedings at issue in these
matters, what effect, if any, would such a defect have on the
competency of the special prosecutor to conduct the
investigation; or the competency of the John Doe judge to
conduct these proceedings? 7
I. HOLDINGS
A.
7
These are issues one through five from our December 16,
2014, grant order.
7
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
¶10 In Two Unnamed Petitioners, we hold that the
definition of "political purposes" in Wis. Stat. § 11.01(16) is
unconstitutionally overbroad and vague under the First Amendment
to the United States Constitution and Article 1, Section 3 of
the Wisconsin Constitution 8 because its language "'is so sweeping
that its sanctions may be applied to constitutionally protected
conduct which the state is not permitted to regulate.'" State
v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting
Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533(1987)). However, a readily available limiting construction
exists that we will apply and that will prevent the chilling of
otherwise protected speech; namely, "political purposes" is
limited to express advocacy and its functional equivalent 9 as
those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976),
and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S.
449 (2007) (WRTL II). With this limiting construction in place,
Chapter 11 does not proscribe any of the alleged conduct of any
of the Unnamed Movants. The special prosecutor has not alleged
8
See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶23 n.9,
358 Wis. 2d 1, 851 N.W.2d 337, reconsideration denied, 2015 WI
1, 360 Wis. 2d 178, 857 N.W.2d 620 (concluding that the freedom
of speech rights protected under the Wisconsin and United States
Constitutions are coextensive.) See also Kenosha Co. v. C&S
Management, Inc., 223 Wis. 2d 373, 389, 588 N.W.2d 236 (1999).
9
The functional equivalent of express advocacy occurs when
the "'ad is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.'"
Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 820 (7th Cir.
2014) (Barland II) (citing Fed. Election Comm'n v. Wis. Right to
Life, Inc., 551 U.S. 449, 469-70 (2007) (WRTL II)).
8
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
any express advocacy, and issue advocacy, whether coordinated or
not, is "beyond the reach of [Ch. 11]." Wis. Right to Life,
Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II).
Accordingly, we invalidate the special prosecutor's theory of
the case, and we grant the relief requested by the Unnamed
Movants.
¶11 To be clear, this conclusion ends the John Doe
investigation because the special prosecutor's legal theory is
unsupported in either reason or law. Consequently, the
investigation is closed. Consistent with our decision and the
order entered by Reserve Judge Peterson, we order that the
special prosecutor and the district attorneys involved in this
investigation must cease all activities related to the
investigation, return all property seized in the investigation
from any individual or organization, and permanently destroy all
copies of information and other materials obtained through the
investigation. All Unnamed Movants are relieved of any duty to
cooperate further with the investigation.
B.
¶12 In Schmitz v. Peterson, we hold that the special
prosecutor has failed to prove that Reserve Judge Peterson
violated a plain legal duty when he quashed the subpoenas and
search warrants and ordered the return of all property seized by
the special prosecutor. In quashing the subpoenas and search
warrants, Reserve Judge Peterson exercised his discretion under
the John Doe statute, Wis. Stat. § 968.26, to determine the
9
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
extent of the investigation. Because the purpose of a
supervisory writ does not include review of a judge's
discretionary acts, State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110,
the supervisory writ sought by the special prosecutor is denied,
and Reserve Judge Peterson's order is affirmed.
C.
¶13 Finally, in Three Unnamed Petitioners, we hold that
the Unnamed Movants have failed to prove that either Reserve
Judge Kluka or Reserve Judge Peterson violated a plain legal
duty by: (1) accepting an appointment as a reserve judge; (2)
convening a multi-county John Doe proceeding; or (3) appointing
a special prosecutor. Although the circumstances surrounding
the formation of the John Doe investigation raise serious
concerns, and although the appointment of the special prosecutor
may well have been improper, such concerns do not satisfy the
stringent preconditions for a supervisory writ. 10 Put another
way, were we to grant the supervisory writ in this case, we
would risk "transform[ing] the writ into an all-purpose
alternative to the appellate review process," which we cannot
do. Id. Accordingly, we deny the supervisory writ and affirm
the decision of the court of appeals.
10
See infra Section V.
10
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 11 12
¶14 In the spring of 2010, a John Doe proceeding (John Doe
I) was commenced for the purpose of investigating the alleged
misuse of public resources in the Milwaukee County Executive's
Office. This investigation resulted in criminal charges being
filed against four individuals——Tim Russell, Kevin Kavanaugh,
Kelly Rindfleisch, and Darlene Wink——in January 2012. 13
¶15 John Doe I also triggered a second John Doe proceeding
(John Doe II), the investigation at issue here. On August 10,
2012, Milwaukee County Assistant District Attorney David Robles
filed a petition for the commencement of John Doe II in the
11
In setting forth the facts, we respect the terms of the
secrecy order issued by Reserve Judge Kluka and thus our
majority opinion will set forth only the facts necessary for our
resolution of this case. See State ex rel. Niedziejko v.
Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964). However, we
can interpret the secrecy order and modify it to the extent
necessary for the public to understand our decision herein. If
a fact is necessary to include in order to render explicable a
justice's analysis of an issue presented, it is not precluded by
the secrecy order. We do not discuss the identity of the
Unnamed Movants or the specific allegations against them. We
do, however, discuss the actions of the prosecutors and the
judges involved.
12
We recognize that in the ordinary case our procedural
background would not be given with such exacting precision.
Conversely, we recognize that in the ordinary case without a
secrecy order, our factual background would be more precise, in
that we would, among other things, identify the parties. Be
that as it may, in the interest of as much transparency as
possible we set forth as many of the facts as we can.
13
Records from John Doe I have been released to the public
by the original John Doe judge and are no longer subject to any
secrecy order.
11
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
Milwaukee County circuit court. This petition sought leave to
investigate alleged campaign finance violations under Wis. Stat.
Ch. 11, and requested a secrecy order to cover the investigation
in anticipation that documents would be sought from the targeted
individuals. In support of his request, Robles' petition
referred to an affidavit by Investigator Robert Stelter.
¶16 Stelter's affidavit indicates that emails obtained in
response to a search warrant in John Doe I suggested that there
may have been coordination of fundraising between campaign
committees and other related, independent groups. Reserve Judge
Neal Nettesheim, the John Doe I judge, authorized the use of the
information obtained in John Doe I for the purpose of requesting
the commencement of John Doe II.
¶17 On August 23, 2012, the Chief Judge of the First
Judicial District, Jeffrey Kremers, assigned and forwarded the
John Doe petition to Reserve Judge Kluka. On September 5, 2012,
using a form titled "Application and Order for Specific Judicial
Assignment," Director of State Courts John Voelker (with then-
Chief Justice Shirley Abrahamson's name directly above) 14
assigned Reserve Judge Kluka to preside over the John Doe
proceeding in Milwaukee County. That same day, Reserve Judge
Kluka authorized the commencement of the John Doe proceeding and
also granted the requested secrecy order.
14
The actual text of the assignment orders read: "Shirley
Abrahamson Chief Justice By: Electronically signed by [sic] A.
John Voelker, Director of State Courts."
12
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
¶18 On September 6, 2012, Investigator Stelter filed an
affidavit in support of a request for search warrants and
subpoenas. The request covered a wide swath of desired
information, including emails, conference call records, and bank
records, dating from 2009 to 2012. In support of this request,
Investigator Stelter provided details of numerous emails between
a candidate committee and individuals and/or groups.
¶19 On December 13, 2012, Investigator Stelter filed
another affidavit in support of a request for further search
warrants and subpoenas. This affidavit provided additional
details about the parties and how they operated in coordination
with each other. The theory of the case, as put forward by the
special prosecutor, is two-fold: (1) that the independent groups
and the candidate committee worked "hand in glove" such that the
independent groups became mere subcommittees of the candidate's
committee, thus triggering reporting and disclosure requirements
under Wis. Stat. §§ 11.10(4); and (2) that the coordinated issue
advocacy amounted to an unlawful in-kind contribution to the
candidate committee under Wis. Admin. Code § GAB 1.20.
¶20 On January 18, 2013, Milwaukee County District
Attorney John Chisholm met with then-Attorney General J.B. Van
Hollen to discuss the ongoing investigation. District Attorney
Chisholm sought to determine whether, given the statewide nature
and gravity of the investigation, the Department of Justice
("DOJ") wished to become involved. On May 31, 2013, Attorney
General Van Hollen sent District Attorney Chisholm a letter
13
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
declining DOJ involvement in the investigation. Attorney
General Van Hollen cited, among other things, potential
conflicts of interest and the appearance of impropriety.
¶21 In July 2013, three more petitions to commence John
Doe proceedings were filed: District Attorney Jane Kohlwey filed
a petition in Columbia County circuit court on July 22, 2013;
District Attorney Larry Nelson filed a petition in Iowa County
circuit court on July 25, 2013; and District Attorney Kurt
Klomberg filed a petition in Dodge County circuit court on July
26, 2013.
¶22 On August 7, 2013, using a form titled "Application
and Order for Specific Judicial Assignment," Director Voelker
(with then-Chief Justice Shirley Abrahamson's name directly
above) assigned Reserve Judge Kluka to preside over the Iowa
County John Doe proceeding. On August 21, 2013, Reserve Judge
Kluka entered an order commencing the John Doe proceeding in
Iowa County and also entered a secrecy order.
¶23 Also on August 7, 2013, using a form titled
"Application and Order for Specific Judicial Assignment,"
Director Voelker (with then-Chief Justice Shirley Abrahamson's
name directly above) assigned Reserve Judge Kluka to preside
over the Dodge County John Doe proceeding. On August 21, 2013,
Reserve Judge Kluka entered an order commencing the Dodge County
John Doe proceeding and also entered a secrecy order.
¶24 On August 14, 2013, using a form titled "Application
and Order for Specific Judicial Assignment," Director Voelker
14
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
(with then-Chief Justice Shirley Abrahamson's name directly
above) assigned Reserve Judge Kluka to preside over the Columbia
County John Doe proceeding. On August 21, 2013, Reserve Judge
Kluka entered an order commencing the John Doe proceeding and
also entered a secrecy order.
¶25 On August 21, 2013, Dane County District Attorney
Ismael Ozanne filed a petition in Dane County circuit court to
commence a John Doe proceeding. On August 21, 2013, using a
form titled "Application and Order for Specific Judicial
Assignment," Director Voelker (with then-Chief Justice Shirley
Abrahamson's name directly above) assigned Reserve Judge Kluka
to preside over the Dane County John Doe proceeding. On August
21, 2013, Reserve Judge Kluka entered an order commencing the
Dane County John Doe proceeding and also entered a secrecy
order.
¶26 Also on August 21, 2013, the District Attorneys from
all five counties sent a joint letter to Reserve Judge Kluka
requesting the appointment of a special prosecutor to oversee
the entire investigation. The District Attorneys encouraged
Reserve Judge Kluka to appoint a special prosecutor on her own
motion and in the exercise of her inherent authority. Their
letter expressed concerns that it would be inefficient for five
district attorneys to handle one investigation and that there
may be a perception of bias given their partisan affiliations.
The letter recommended Francis Schmitz for the position.
15
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
2013AP2508-W
¶27 On August 23, 2013, Reserve Judge Kluka entered
separate, but identical, orders in all five John Doe proceedings
appointing Francis Schmitz as special prosecutor with
jurisdiction across the five counties. Mirroring the District
Attorneys' position on the matter, Reserve Judge Kluka cited, as
the basis of her appointment, concerns of efficiency and the
appearance of impropriety. Reserve Judge Kluka made the
appointment pursuant to her purported "authority" under State v.
Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, as
well as her purported "inherent authority" under State v.
Cummings, 199 Wis. 2d 721, 736, 546 N.W.2d 406 (1996). Each
order fixed the special prosecutor's rate of pay at $130 per
hour and stated that a copy should be sent to the Department of
Administration.
¶28 On October 1, 2013, Reserve Judge Kluka authorized 29
subpoenas duces tecum to, among others, Unnamed Movants Nos. 1,
2, 3, 4, 5, and 8, based on an affidavit submitted to her by
Investigator Stelter. These subpoenas compelled production of
documents evidencing the conduct of coordination among the
subpoenaed parties and a candidate committee, particularly the
interaction between Unnamed Movants Nos. 1 and 2. That same day
Reserve Judge Kluka authorized search warrants for the homes and
offices of Unnamed Movants Nos. 6 and 7. The search warrants
were executed at approximately 6:00 a.m. on October 3, 2013, in
pre-dawn, armed, paramilitary-style raids in which bright
floodlights were used to illuminate the targets' homes.
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¶29 The breadth of the documents gathered pursuant to
subpoenas and seized pursuant to search warrants is amazing.
Millions of documents, both in digital and paper copy, were
subpoenaed and/or seized. Deputies seized business papers,
computer equipment, phones, and other devices, while their
targets were restrained under police supervision and denied the
ability to contact their attorneys. The special prosecutor
obtained virtually every document possessed by the Unnamed
Movants relating to every aspect of their lives, both personal
and professional, over a five-year span (from 2009 to 2013).
Such documents were subpoenaed and/or seized without regard to
content or relevance to the alleged violations of Ch. 11. As
part of this dragnet, the special prosecutor also had seized
wholly irrelevant information, such as retirement income
statements, personal financial account information, personal
letters, and family photos.
¶30 Motions to quash the subpoenas were filed by Unnamed
Movant No. 1 on October 17, 2013, and by Unnamed Movants Nos. 2
and 3 on October 25, 2013. On October 29, 2013, before ruling
on the motions, Reserve Judge Kluka recused herself from the
Milwaukee County proceeding, citing only an unspecified
"conflict." The Milwaukee County proceeding was reassigned by
Chief Judge Kremers to Reserve Judge Gregory Peterson on October
29, 2013.
¶31 The next day, on October 30, 2013, Reserve Judge Kluka
disqualified herself from the remaining John Doe proceedings.
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On November 1, 2013, Chief Judge Potter of the Sixth Judicial
District assigned Reserve Judge Peterson to preside over the
John Doe proceedings in Columbia County and Dodge County. On
November 1, 2013, Chief Judge Duvall of the Seventh Judicial
District assigned Reserve Judge Peterson to preside over the
John Doe proceeding in Iowa County. On November 4, 2013, Chief
Judge Daley of the Fifth Judicial District assigned Reserve
Judge Peterson to preside over the John Doe proceeding in Dane
County. Thereafter, on November 4, 2013, Director Voelker (with
then-Chief Justice Shirley Abrahamson's name directly above)
assigned Reserve Judge Peterson to preside over the Milwaukee
County John Doe proceeding. On November 11, 2013, Director
Voelker (with then-Chief Justice Shirley Abrahamson's name
directly above) assigned Reserve Judge Peterson to preside over
the John Doe proceedings in Iowa County and Dane County. On
November 14, 2013, Director Volker (with then-Chief Justice
Shirley Abrahamson's name directly above) assigned Reserve Judge
Peterson to preside over the John Doe proceedings in Columbia
County and Dodge County.
¶32 Also on November 14, 2013, Unnamed Movants Nos. 2, 6,
and 7 filed with the court of appeals a petition for supervisory
writs of mandamus and prohibition directed at Reserve Judges
Kluka and Peterson (Three Unnamed Petitioners). The Unnamed
Movants alleged procedural defects involving the appointment of
a reserve judge to oversee a multi-county John Doe investigation
and the appointment of the special prosecutor. The Unnamed
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Movants asked the court of appeals to declare the John Doe
investigation void ab initio.
¶33 In an order dated November 22, 2013, the court of
appeals summarily dismissed what it deemed the Unnamed Movants'
"first and sixth claims," namely, that there is no statutory
authority to appoint or assign a reserve judge to preside over a
John Doe proceeding, and that the John Doe judge circumvented
the statutory functions of the clerks of court in five counties
by requiring certain documents be sent to a post office box.
Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished
order 6-7 (Wis. Ct. App. Nov. 22, 2013). Regarding the first
claim, the court of appeals reasoned that there is no statute
that limits the ability of reserve judges to oversee John Doe
investigations. Id. Moreover, the court of appeals noted that
the statute authorizing the appointment of reserve judges
explicitly states that reserve judges "shall perform the same
duties as other judges." Id. (citing Wis. Stat. § 753.075).
The court of appeals ordered the respondents to address the
remaining claims concerning the legality of a multi-county John
Doe proceeding, the legality of a special prosecutor handling a
multi-county John Doe proceeding, and the legality of the
special prosecutor's appointment under Wis. Stat. § 978.045.
Id.
¶34 While that case was pending at the court of appeals,
Unnamed Movant No. 6 also filed a petition in Dodge County
circuit court on December 4, 2013, for the return of the
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property taken pursuant to the October 1 search warrant. On
December 20, 2013, Unnamed Movant No. 7 filed a substantially
similar petition in Dane County circuit court. After a response
by the special prosecutor, Reserve Judge Peterson granted the
motions to quash the subpoenas and the petitions to return
property on January 10, 2014. Reserve Judge Peterson reasoned:
I conclude the subpoenas do not show probable cause
that the moving parties committed any violations of
the campaign finance laws. I am persuaded the
statutes only prohibit coordination by candidates and
independent organizations for a political purpose, and
political purpose, with one minor exception not
relevant here . . . requires express advocacy. There
is no evidence of express advocacy.
. . .
Before there is coordination there must be political
purposes; without political purposes, coordination is
not a crime.
. . .
As relevant here, acts are for political purposes when
they are made to influence the recall or retention of
a person holding office. Wis. Stat. § 11.01(16). If
the statute stopped here, the definition of political
purposes might well be unconstitutionally vague.
Buckley v. Valeo, 424 U.S. 1, 77 (1976). But the
definition continues: acts for political purposes
include, but are not limited to, making a
communication that expressly advocates the recall or
retention of a clearly identified candidate. Wis.
Stat. § 11.01(16)(a). In GAB 1.28, the GAB attempted
to flesh out other acts that would constitute
political purposes, but because of constitutional
challenges it has stated it will not enforce that
regulation. So the only clearly defined political
purpose is one that requires express advocacy.
The state is not claiming that any of the independent
organizations expressly advocated. Therefore, the
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subpoenas fail to show probable cause that a crime was
committed.
¶35 As for the search warrants executed on the homes and
offices of Unnamed Movants Nos. 6 and 7, Reserve Judge Peterson
reasoned:
The same legal conclusions should apply to all parties
who have raised challenges in this case. Therefore,
for the reasons stated above regarding the limitations
in the scope of the campaign finance laws, I conclude
that the warrants lack probable cause.
¶36 The special prosecutor requested a stay of the order,
which was granted on January 27, 2014. In his order granting
the stay, Reserve Judge Peterson also clarified that he was
incorrect in stating that the probable cause standard applied to
subpoenas. Nevertheless, he concluded that a subpoena is not
"valid when based on an invalid interpretation of the law." As
a condition of the stay, Reserve Judge Peterson ordered the
State not to examine any of the property seized pursuant to
search warrants.
¶37 On January 30, 2014, the court of appeals issued an
opinion and order in Three Unnamed Petitioners addressing the
remaining issues and denying the supervisory writ. Regarding
the legality of a multi-county John Doe proceeding, the court of
appeals reasoned that there were five separate proceedings in
five separate counties and that it is not unusual for courts to
hold joint proceedings or to issue joint orders in non-
consolidated cases that share a common factual basis, raise the
same legal issue, or involve overlapping parties. Three Unnamed
Petitioners, Nos. 2013AP2504-W-2508-W, unpublished slip op. &
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order 3-4 (Wis. Ct. App. Jan. 30, 2014). The court of appeals
used the same reasoning to justify the legality of a special
prosecutor handling multi-county John Doe proceedings. Id. at
4-7. As for the legality of the special prosecutor’s
appointment under Wis. Stat. § 978.045, the court of appeals
determined that the special prosecutor was appointed pursuant to
Reserve Judge Kluka's "authority" under Carlson, and "inherent
authority" under Cummings, not under Wis. Stat. § 978.045, the
special prosecutors statute. Id. On February 19, 2014, the
Unnamed Movants filed a petition for review in this court, which
we granted on December 16, 2014.
¶38 Meanwhile, on February 7, 2014, Unnamed Movants Nos. 6
and 7 filed a petition for leave to commence an original action
in the Wisconsin Supreme Court under Article VII, Section 3(2)
of the Wisconsin Constitution 15 (Two Unnamed Petitioners). The
original action sought a declaration confirming the ruling of
Reserve Judge Peterson in his January 10, 2014, order. The
special prosecutor filed a response to this petition on February
25, 2014. We granted the original action on December 16, 2014.
15
"The supreme court has appellate jurisdiction over all
courts and may hear original actions and proceedings. The
supreme court may issue all writs necessary in aid of its
jurisdiction." Wis. Const. art. VII, § 3(2).
"The supreme court limits its exercise of original
jurisdiction to exceptional cases in which a judgment by the
court significantly affects the community at large." Wis.
Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶4, 243
Wis. 2d 512, 627 N.W.2d 807. We exercised original jurisdiction
because this case meets that test.
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¶39 On February 21, 2014, the special prosecutor filed a
petition for a supervisory writ and a writ of mandamus in the
court of appeals (Schmitz v. Peterson). The special prosecutor
sought the supervisory writ in order to vacate Reserve Judge
Peterson's January 10, 2014, order and to direct Reserve Judge
Peterson to enforce the subpoenas and search warrants. Unnamed
Movants Nos. 1, 2, 3, 4, 5, 6, 7, and 8 filed responses to the
petition on March 31, 2014. Shortly thereafter, the Unnamed
Movants brought a petition to bypass the court of appeals. We
granted bypass on December 16, 2014.
¶40 Finally, on November 3, 2014, Unnamed Movants Nos. 6
and 7 filed a motion with Reserve Judge Peterson requesting an
order to show cause as to why the John Doe proceeding should not
be ended. Reserve Judge Peterson denied that motion but
concluded that if appellate courts agreed with his
interpretation of Ch. 11, the "consequence will no doubt be the
end of the John Doe investigation."
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III. TWO UNNAMED PETITIONERS
¶41 We turn first to Two Unnamed Petitioners, the original
action filed with the Wisconsin Supreme Court. This case
requires us to interpret Wisconsin's campaign finance law, Wis.
Stat. Ch. 11. By its very nature, this task involves
fundamental questions regarding the scope of the government's
ability to regulate political speech. To resolve this case, we
must engage in statutory interpretation of the phrase "political
purposes," which includes all activities "done for the purpose
of influencing [an] election." Wis. Stat. § 11.01(16). We
conclude, consistent with the First Amendment of the United
States Constitution and Article I, Section 3 of the Wisconsin
Constitution, that the plain language of "political purposes" in
Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague
if it is not given a limiting construction and applied to only
express advocacy and its functional equivalent. This conclusion
invalidates the special prosecutor's theory of the case and ends
the John Doe investigation. Therefore, we agree with the
Unnamed Movants and grant their requested relief.
A. Standard of Review
¶42 Statutory interpretation is a question of law, which
this court reviews de novo. Covenant Healthcare Sys., Inc. v.
City of Wauwatosa, 2011 WI 80, ¶21, 336 Wis. 2d 522, 800
N.W.2d 906. In this case, our statutory interpretation
implicates the constitutionality of specific provisions in
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Chapter 11, which is also a question of law which we review de
novo. Janssen, 219 Wis. 2d at 370.
¶43 Statutes are presumed to be constitutional, "and the
party seeking to overcome the presumption must prove the statute
unconstitutional beyond a reasonable doubt." Id. When the
statute implicates the exercise of First Amendment rights,
however, "[t]he burden shifts to the proponent of the statute."
Id. at 370-71. Here, the proponent is the special prosecutor.
B. The First Amendment and the Doctrines of Vagueness and
Overbreadth
i. First Amendment Principles
¶44 In addressing the scope of Wisconsin's campaign
finance law we are keenly aware that this task bears directly on
the ability of all citizens in our State to engage in the
democratic process. The special prosecutor's theories implicate
one of the foundational principles of our nation: the freedom of
speech, specifically, political speech. We therefore begin our
analysis with the words of the First Amendment: "Congress shall
make no law . . . abridging the freedom of speech." U.S. Const.
amend. I. 16 Article I, Section 3 of the Wisconsin Constitution
guarantees that: "Every person may freely speak, write and
publish his sentiments on all subjects, being responsible for
the abuse of that right, and no laws shall be passed to restrain
or abridge the liberty of speech or of the press."
16
The First Amendment is applicable to the States through
the Fourteenth Amendment.
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¶45 While the First Amendment protects a broad range of
speech and conduct, "there is practically universal agreement
that a major purpose of that Amendment was to protect the free
discussion of governmental affairs. . . . of course includ(ing)
discussions of candidates . . . ." Buckley, 424 U.S. at 14
(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Indeed,
"[t]he right of citizens to inquire, to hear, to speak, and to
use information to reach consensus is a precondition to
enlightened self-government and a necessary means to protect
it." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339
(2010). "In a republic [such as ours] where the people are
sovereign, the ability of the citizenry to make informed choices
among candidates for office is essential, for the identities of
those who are elected will inevitably shape the course that we
follow as a nation." Buckley, 424 U.S. at 14-15. These values
reflect our "profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-
open." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)
(emphasis added).
¶46 Our protection of the freedom of political speech
reflects our firm belief that "[d]iscussion of public issues and
debate on the qualifications of candidates are integral to the
operation of the system of government established by our
Constitution." Buckley, 424 U.S. at 14. "At the founding,
speech was open, comprehensive, and vital to society's
definition of itself; there were no limits on the sources of
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speech and knowledge." Citizens United, 558 U.S. at 353.
Therefore, "[t]he First Amendment affords the broadest
protection to [] political expression in order 'to assure (the)
unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.'" Buckley,
424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484
(1957)).
¶47 Accordingly, "the First Amendment 'has its fullest and
most urgent application precisely to the conduct of campaigns
for political office.'" McCutcheon v. Fed. Election Comm'n, 134
S. Ct. 1434, 1441 (2014) (quoting Monitor Patriot Co. v. Roy,
401 U.S. 265, 272 (1971)). There exists "no right more basic in
our democracy than the right to participate in electing our
political leaders." Id. at 1440-41. Political speech is thus a
fundamental right and is afforded the highest level of
protection. Indeed, freedom of speech, especially political
speech, is the right most fundamental to our democracy. To that
end, we must conduct a particularly "[c]lose examination of the
specificity of the statutory limitation . . . where, as here,
the legislation imposes criminal penalties in an area permeated
by First Amendment interests." Buckley, 424 U.S. at 40-41.
"The First Amendment does not permit laws that force speakers to
retain a campaign finance attorney, conduct demographic
marketing research, or seek declaratory rulings before
discussing the most salient political issues of our day. Prolix
laws chill speech for the same reason that vague laws chill
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speech: People 'of common intelligence must necessarily guess at
[the law's] meaning and differ as to its application.'"
Citizens United, 558 U.S. at 324 (quoting Connally v. Gen.
Constr. Co., 269 U.S. 385, 391 (1926)).
¶48 However, there are certain, limited circumstances in
which the government may regulate and impose burdens upon the
exercise of free speech. In the campaign finance context, these
include disclosure and reporting requirements, as well as
contribution limits to candidates. 17 The justification for
imposing such restrictions is to "prevent[] corruption and the
appearance of corruption." WRTL II, 551 U.S. at 478 (quotations
omitted). The interest in preventing the corruption of public
officials, however, does not justify the regulation of all
political speech. Rather, the United States Supreme Court has
drawn an important "distinction between discussion of issues and
candidates and advocacy of election or defeat of candidates."
Buckley, 424 U.S. at 42. The compelling governmental interest
that justifies the regulation of express advocacy (the
prevention of quid pro quo 18 corruption) "'might not apply to'"
the regulation of issue advocacy. WRTL II, 551 U.S. at 471
(quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 209
n.88 (2003)). Indeed, "[s]pending large sums of money in
17
See generally Barland II, 751 F.3d 804.
18
Quid pro quo is a Latin term meaning "what for whom" and
is defined as "[a]n action or thing that is exchanged for
another action or thing of more or less equal value." Black's
Law Dictionary 1367 (9th ed. 2009).
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connection with elections, but not in connection with an effort
to control the exercise of an officeholder's official duties,
does not give rise to such quid pro quo corruption."
McCutcheon, 134 S. Ct. at 1450. "Nor does the possibility that
an individual who spends large sums may garner 'influence over
or access to' elected officials or political parties." Id. at
1451 (quoting Citizens United, 558 U.S. at 359).
¶49 A key reason that issue advocacy is afforded greater
protection under the First Amendment is that "[f]reedom of
discussion, if it would fulfill its historic function in this
nation, must embrace all issues about which information is
needed or appropriate to enable the members of society to cope
with the exigencies of their period." Thornhill v. Alabama, 310
U.S. 88, 102 (1940). "Discussion of issues cannot be suppressed
simply because the issues may also be pertinent in an election."
WRTL II, 551 U.S. at 474.
¶50 In order to give the fullest protection possible to
the right to the exercise of political speech, "the government's
authority to regulate in this area extends only to money raised
and spent for speech that is clearly election related[, that is,
express advocacy]; ordinary political speech about issues,
policy, and public officials[, that is, issue advocacy,] must
remain unencumbered." Barland II, 751 F.3d at 810 (emphasis
added). Thus, in order to avoid a chilling effect on otherwise
protected speech, "when the regulatory scheme reaches beyond
candidates, their campaign committees, and political
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parties. . . . [the] government may regulate . . . only with
narrow specificity." Id. at 811 (quotations omitted). "In
short, [we] must give the benefit of any doubt to protecting
rather than stifling speech." WRTL II, 551 U.S. at 469; see
also McCutcheon, 134 S. Ct. at 1451 (quoting WRTL II, 551 U.S.
at 457) ("'[T]he First Amendment requires [courts] to err on the
side of protecting political speech rather than suppressing
it.'").
¶51 To that end, "in the domain of campaign-finance law,
the First Amendment requires a heightened degree of regulatory
clarity and a close fit between the government's means and its
end." Barland II, 751 F.3d at 808. This "close fit"
requirement is intended to prevent the dangerous chilling effect
an unclear or imprecise law has on protected speech. Id. at
835. To guard against inhibiting protected political speech,
courts use the overbreadth and vagueness doctrines. These
doctrines "reflect[] the conclusion that the possible harm to
society from allowing unprotected speech to go unpunished is
outweighed by the possibility that protected speech will be
muted." Janssen, 219 Wis. 2d at 372 (citation omitted).
ii. Overbreadth and Vagueness
¶52 "A statute is overbroad when its language, given its
normal meaning, is so sweeping that its sanctions may be applied
to constitutionally protected conduct which the state is not
permitted to regulate." Id. at 374 (citation omitted). The
overbreadth doctrine "recognize[s] that broadly written statutes
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substantially inhibiting free expression should be open to
attack even by a party whose own conduct remains unprotected
under the First Amendment." State v. Stevenson, 2000 WI 71,
¶11, 236 Wis. 2d 86, 613 N.W.2d 90. "The danger inherent in
overbroad statutes is that such statutes provide [the government
with] practically unbridled administrative and prosecutorial
discretion that may result in select[ive] prosecution based on
certain views deemed objectionable by law enforcement." Id.,
¶13. Thus, "[o]verbroad statutes may undesirably dissuade
persons from exercising their rights by 'chilling' their
protected speech or expression." Janssen, 219 Wis. 2d at 372
(citation omitted). In other words, the threat to free
expression created by overbroad statutes is that, by potentially
sweeping in constitutionally protected activity, individuals and
groups may self-censor out of fear of vindictive or selective
prosecution.
¶53 When faced with an overbroad statute, courts have
several options.
First, courts may apply a limiting construction to
rehabilitate the statute when such a narrowing and
validating construction is readily available. Second,
courts may cure the constitutional defect by severing
the unconstitutional provisions of a statute and
leaving the remainder of the legislation intact.
Finally, courts may determine that the statute is not
amenable to judicial limitation or severance and
invalidate the entire statute upon a determination
that it is unconstitutional on its face.
Stevenson, 236 Wis. 2d 86, ¶15 (internal citations omitted).
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¶54 Related to the overbreadth doctrine is the vagueness
doctrine, 19 which "requires legislatures to set reasonably clear
guidelines for law enforcement officials and triers of fact in
order to prevent 'arbitrary and discriminatory enforcement.'"
State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646,
657, 292 N.W.2d 807 (1980) (quoting Smith v. Goguen, 415 U.S.
566, 572-73 (1974)). A vague statute "is one which operates to
hinder free speech through the use of language which is so vague
as to allow the inclusion of protected speech in the prohibition
or to leave the individual with no clear guidance as to the
nature of the acts which are subject to punishment." Id. at
656. "Where First Amendment rights are involved, an even
'greater degree of specificity' is required." Buckley, 424 U.S.
at 77 (citations omitted). Thus, when a criminal statute
implicates First Amendment rights, the statutory language must
have the "utmost clarity and exactitude." Stevenson, 236
Wis. 2d 86, ¶30. Thus, the vagueness doctrine concerns the
imping[ement] upon three first amendment values: (1)
it does not provide individuals with fair warning of
19
"The problems of vagueness and overbreadth in statutes,
although raising separate problems, often arise together."
State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646,
656-57, 292 N.W.2d 807 (1980). "Where statutes have an
overbroad sweep, just as where they are vague, 'the hazard of
loss or substantial impairment of those precious [First
Amendment] rights may be critical,' since those covered by the
statute are bound to limit their behavior to that which is
unquestionably safe." Keyishian v. Bd. of Regents of Univ. of
State of N.Y., 385 U.S. 589, 609 (1967) (internal citation
omitted).
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what is prohibited; (2) lacking precise or articulated
standards, it allows for arbitrary or discriminatory
enforcement; and (3) it causes citizens to 'forsake
activity protected by the First Amendment for fear it
may be prohibited.'
State v. Thiel, 183 Wis. 2d 505, 521 n.9, 515 N.W.2d 847 (1994)
(quoting M.S. News Co. v. Casado, 721 F.2d 1281, 1290 (10th Cir.
1983)). In other words, "[b]ecause First Amendment freedoms
need breathing space to survive, government may regulate in
[this] area only with narrow specificity." Barland II, 751 F.3d
at 811 (quotations omitted).
C. The Definition of "Political Purposes" in Wis. Stat.
§ 11.01(16) is Overbroad and Vague Unless Limited to Express
Advocacy and Its Functional Equivalent.
¶55 The special prosecutor alleges that the Unnamed
Movants engaged in illegally coordinated issue advocacy.
However, the basis for his theory has evolved over the course of
the various legal challenges to his investigation, and he
appears unable to decide just how the Unnamed Movants have
broken the law. 20
¶56 Today, the special prosecutor alleges two theories of
illegal coordination: (1) that the coordination between the
Unnamed Movants is so extensive that the supposedly independent
groups became subcommittees for the candidate's campaign under
Wis. Stat. § 11.10(4); and (2) that the coordinated issue
20
The original complaint initiating John Doe II alleged
only coordinated fundraising between the Unnamed Movants. Over
time, the theory of coordination evolved to include coordinated
issue advocacy.
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advocacy amounts to an in-kind contribution under Wis. Admin.
Code § GAB 1.20. The special prosecutor's theories, if adopted
as law, would require an individual to surrender his political
rights to the government and retain campaign finance attorneys
before discussing salient political issues. See Citizens
United, 558 U.S. at 324. We find no support for the special
prosecutor's theories in Wis. Stat. Ch. 11. Chapter 11's
definition of "political purposes," which underlies Wisconsin's
campaign finance law, is both overbroad and vague and thus
unconstitutionally chills speech because people "'of common
intelligence must necessarily guess at [the law's] meaning and
differ as to its application.'" Id. (quoting Connally, 269 U.S.
at 391).
¶57 However, by limiting the definition of "political
purposes" to express advocacy and its functional equivalent, we
ensure that all issue advocacy will remain unencumbered. This
limiting construction 21 allows us to protect political speech, a
vital First Amendment right, and allows us to guard against the
theories of the special prosecutor and those who would rely on
overbroad and vague statutes to silence those with whom they
disagree.
21
Adopting a limiting construction is the only feasible
option because the statutory definition of "political purposes"
is not severable and because simply declaring the definition
unconstitutional without adopting a limiting construction would
effectively eliminate all of Wis. Stat. Ch. 11.
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i. The Definition and Scope of "Political Purposes" in Wis.
Stat. § 11.01(16) Must Be Limited to Only Express Advocacy.
¶58 We begin our analysis by noting that Wisconsin's
campaign finance law "is labyrinthian and difficult to decipher
without a background in this area of the law." Barland II, 751
F.3d at 808. Indeed, "[t]o a lay reader [Chapter 11] require[s]
almost any group that wants to say almost anything about a
candidate or election to register as a political committee."
Id. at 810 (citing Wis. Right to Life, Inc. v. Paradise, 138
F.3d 1183, 1184 (7th Cir. 1998)). However, in analyzing the
statutes, it becomes readily apparent that the entire regulatory
scheme depends on but a few key terms: "committee,"
"contribution," "disbursement," and "political purposes."
¶59 "Committee" is defined in Wis. Stat. § 11.01(4) as
"any person other than an individual and any combination of 2 or
more persons, permanent or temporary, which makes or accepts
contributions or makes disbursements, whether or not engaged in
activities which are exclusively political, except that a
'committee' does not include a political 'group' under this
chapter." As one can see from the statutory definition,
committee status under Wisconsin campaign finance law depends on
the definitions of "contributions" and "disbursements."
¶60 "Contribution" has a very lengthy definition, but the
relevant portion is contained in Wis. Stat. § 11.01(6)(a)1,
which states that "contribution" means
[a] gift, subscription, loan, advance, or deposit of
money or anything of value, except a loan of money by
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a commercial lending institution made by the
institution in accordance with applicable laws and
regulations in the ordinary course of business, made
for political purposes. In this subdivision "anything
of value" means a thing of merchantable value.
(emphasis added). The definition of "disbursement" largely
parallels the definition of "contribution," the relevant portion
of which states that a "disbursement" is
[a] purchase, payment, distribution, loan, advance,
deposit, or gift of money or anything of value, except
a loan of money by a commercial lending institution
made by the institution in accordance with applicable
laws and regulations in the ordinary course of
business, made for political purposes. In this
subdivision, "anything of value" means a thing of
merchantable value.
Wis. Stat. § 11.01(7)(a)1 (emphasis added). It is apparent from
the emphasized language that whether or not something is a
contribution or disbursement depends on the definition of
"political purposes."
¶61 "Political purposes" is defined, in relevant part, as
an act
done for the purpose of influencing the election or
nomination for election of any individual to state or
local office, for the purpose of influencing the
recall from or retention in office of an individual
holding a state or local office, for the purpose of
payment of expenses incurred as a result of a recount
at an election, or for the purpose of influencing a
particular vote at a referendum. In the case of a
candidate, or a committee or group which is organized
primarily for the purpose of influencing the election
or nomination for election of any individual to state
or local office, for the purpose of influencing the
recall from or retention in office of an individual
holding a state or local office, or for the purpose of
influencing a particular vote at a referendum, all
administrative and overhead expenses for the
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maintenance of an office or staff which are used
principally for any such purpose are deemed to be for
a political purpose.
(a) Acts which are for "political purposes" include
but are not limited to:
1. The making of a communication which expressly
advocates the election, defeat, recall or retention of
a clearly identified candidate or a particular vote at
a referendum.
Wis. Stat. § 11.01(16) (emphasis added).
¶62 Thus, the lynchpin of Wisconsin's campaign finance law
is whether an act is done for "political purposes." Chapter 11
regulates "disbursements" and "contributions," and the phrase
"political purposes" is used in the definition of each of those
words. See Wis. Stat. §§ 11.01(7) (defining "disbursement"),
11.01(6) (defining "contribution"). If an act is not done for
"political purposes," then it is not a disbursement or a
contribution, and it therefore is not subject to regulation
under Ch. 11.
¶63 The Seventh Circuit in Barland II held that the phrase
"political purposes," as defined in Wis. Stat. § 11.01, is both
vague and overbroad. Barland II, 751 F.3d at 833. The court
reasoned that the U.S. Supreme Court in Buckley held that the
phrase "influence an election," which also appears in the
definition of "political purposes," is vague and overbroad. Id.
at 833 ("The [Buckley] Court held that this kind of broad and
imprecise language risks chilling issue advocacy, which may not
be regulated; the same reasoning applies here."). Further, the
court concluded the phrase "include but are not limited to"
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renders the definition of "political purposes" vague and
overbroad because "[t]he 'not limited to' language holds the
potential for regulatory mischief." Id.; see also Elections Bd.
of State of Wis. v. Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 677,
597 N.W.2d 721 (1999) (WMC) (concluding that the express
advocacy standard under Wis. Stat. § 11.01(16)(a)1 must still be
consistent with Buckley, lest it become a trap for the innocent
and unwary.)
¶64 The special prosecutor has completely disregarded
these principles. The lack of clarity in Ch. 11, which the
special prosecutor relies upon, leads us to the unsettling
conclusion that it is left to government bureaucrats and/or
individual prosecutors to determine how much coordination
between campaign committees and independent groups is "too much"
coordination. In essence, under his theory, every candidate, in
every campaign in which an issue advocacy group participates,
would get their own John Doe proceeding and their own special
prosecutor to determine the extent of any coordination. This is
not, and cannot, be the law in a democracy.
¶65 More fundamentally, however, the fact that these
questions arise at all is proof that the definition of
"political purposes" "holds the potential for regulatory
mischief. Perhaps [the express advocacy language] was included
to leave room for regulation of the 'functional equivalent' of
express advocacy as that term was later explained in [WRTL II].
Beyond that, however, the language contains persistent vagueness
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and overbreadth." Barland II, 751 F.3d at 833. In fact, the
Government Accountability Board ("GAB") conceded this point in
Barland II and suggested a limiting construction to the Seventh
Circuit that would "confine the definitions [of "political
purposes"] to express advocacy and its functional equivalent."
Id. That is precisely the construction the Seventh Circuit
adopted, and we conclude that same limiting construction should
apply here as well.
¶66 To be clear, the reason that the definition of
"political purposes" in § 11.01(16) is unconstitutional is
because the phrase "influencing [an] election" is so broad that
it sweeps in protected speech, as well as speech that can be
subject to regulation. "Influencing [an] election" obviously
includes express advocacy, but without a limiting construction
it could just as easily include issue advocacy aired during the
closing days of an election cycle. This is precisely the kind
of overbroad language that the Supreme Court has repeatedly
rejected. "Discussion of issues cannot be suppressed simply
because the issues may also be pertinent in an election." WRTL
II, 551 U.S. at 474 (emphasis added). We must have clear rules
that protect political speech, and we must continue to reject
the idea that some protected speech may be chilled or restricted
simply because it is "difficult to distinguish from unprotected
speech." Id. at 494 (Scalia, J., concurring). "[L]aws
targeting political speech are the principal object of the First
Amendment guarantee. The fact that the line between electoral
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advocacy and issue advocacy dissolves in practice is an
indictment of the statute, not a justification of it." Id.
¶67 We therefore hold that the definition of "political
purposes" in Wis. Stat. § 11.01(16) is unconstitutionally
overbroad and vague. In order to cure this overbreadth and
vagueness, we adopt a construction of § 11.01(16) that limits
the definition of "political purposes" to include only express
advocacy and its functional equivalent, as those terms are
defined in Buckley and WRTL II. This construction is "readily
available" due to the Seventh Circuit's decision in Barland II.
See Stevenson, 236 Wis. 2d 86, ¶15; Barland II, 751 F.3d at 834
(explaining that "[t]he [Wisconsin Supreme Court] and []
Attorney General have acknowledged that when Chapter 11 is
applied beyond candidates, their committees, and political
parties, it must be narrowly construed to comply with Buckley's
express-advocacy limitation; the administration of the state's
campaign-finance system has generally reflected this
understanding for many decades."). 22 Given that Chapter 11's
requirements depend on whether an act is done for "political
22
Although Barland II did not involve an allegation of
coordination, that distinction is meaningless in determining
whether the definition of "political purposes" is vague or
overbroad. It may well be that the distinction between issue
and express advocacy is little more than "a line in the sand
drawn on a windy day." WRTL II, 551 U.S. at 499 (Scalia, J.,
concurring) (citation omitted). However, "'[p]rotected speech
does not become unprotected merely because it resembles the
latter. The Constitution requires the reverse.'" Id. at 475
(majority opinion) (quoting Ashcroft v. Free Speech Coal., 535
U.S. 234, 255 (2002)).
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purposes," the effect of this limiting construction places
"issue advocacy . . . beyond the reach of [Wisconsin's]
regulatory scheme." Barland II, 751 F.3d at 815.
ii. The Special Prosecutor's Theories of Coordination Depend on
Coordinated Issue Advocacy, Which Is Not Regulated Under Chapter
11.
¶68 Having reached our conclusion about the scope of
conduct regulated by Chapter 11, we now turn to the special
prosecutor's theories of coordination and whether the alleged
conduct is regulated under Wisconsin law. 23 The special
23
We note that in Wis. Coal. for Voter Participation, Inc.
v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct.
App. 1999) (WCVP), the court of appeals concluded that conduct
substantially identical to the subject of this investigation,
coordinated issue advocacy, is regulated under Wisconsin law.
The key language from that case upon which the special
prosecutor's theories rest, is that "the term 'political
purposes' is not restricted by the cases, the statutes or the
code to acts of express advocacy. It encompasses many acts
undertaken to influence a candidate's election . . . ." WCVP,
231 Wis. 2d at 680.
The court of appeals' statement regarding "political
purposes" is incorrect. It was incorrect when WCVP was decided
in 1999, and it is incorrect today. Just four months prior to
the WCVP decision, this court stated that
Buckley stands for the proposition that it is
unconstitutional to place reporting or disclosure
requirements on communications which do not 'expressly
advocate the election or defeat of a clearly
identified candidate.' Any standard of express
advocacy must be consistent with this principle in
order to avoid invalidation on grounds of vagueness
and/or overbreadth.
(continued)
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prosecutor has disregarded the vital principle that in our
nation and our state political speech is a fundamental right and
is afforded the highest level of protection. The special
prosecutor's theories, rather than "assur[ing] [the] unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people," Roth, 354 U.S. at 484,
instead would assure that such political speech will be
investigated with paramilitary-style home invasions conducted in
the pre-dawn hours and then prosecuted and punished. In short,
the special prosecutor completely ignores the command that, when
seeking to regulate issue advocacy groups, such regulation must
be done with "narrow specificity." Barland II, 751 F.3d at 811
(quotations omitted).
Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227
Wis. 2d 650, 669, 597 N.W.2d 721 (1999) (WMC) (citations
omitted). This should have been enough to "restrict" the
definition of "political purposes" in Chapter 11. If "it is
unconstitutional to place reporting or disclosure requirements
on communications which do not 'expressly advocate the election
or defeat of a clearly identified candidate,'" then "political
purposes" cannot extend as broadly as WCVP and the special
prosecutor claim. At the very least, WCVP ignores WMC and is
inconsistent with its explanation of Buckley.
In any event, even assuming that it was good law to begin
with, WCVP is no longer a correct interpretation of "political
purposes" in Chapter 11. As discussed above, recent case law
has clearly restricted the scope of permissible regulation in
campaign finance law to express advocacy and its functional
equivalent. See WRTL II, 551 U.S. 449; Citizens United v. Fed.
Election Comm'n, 558 U.S. 310 (2010); Barland II, 751 F.3d 804.
Therefore, to the extent that WCVP implies that the definition
of "political purposes" in Chapter 11 extends beyond express
advocacy and its functional equivalent, WCVP is overruled.
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¶69 The limiting construction that we apply makes clear
that the special prosecutor's theories are unsupportable in law
given that the theories rely on overbroad and vague statutes.
By limiting the definition of "political purposes" to express
advocacy and its functional equivalent, political speech
continues to be protected as a fundamental First Amendment
right.
¶70 The special prosecutor's first theory of illegal
coordination is that ostensibly independent, advocacy groups
operated "hand in glove" with the candidate's committee, which
made the independent groups subcommittees under Wis. Stat.
§ 11.10(4). The relevant part of this statute states that
[a]ny committee which is organized or acts with the
cooperation of or upon consultation with a candidate
or agent or authorized committee of a candidate, or
which acts in concert with or at the request or
suggestion of a candidate or agent or authorized
committee of a candidate is deemed a subcommittee of
the candidate's personal campaign committee.
Wis. Stat. § 11.10(4) (emphasis added). The special prosecutor
argues that coordinated issue advocacy is prohibited under this
provision because the statute itself only requires cooperation
between a candidate's committee and another committee and that
the statute does not require that such cooperation be limited to
express advocacy.
¶71 The first flaw in the special prosecutor's theory is
that it is left to the whim of each regulatory bureaucrat and/or
prosecutor to subjectively determine how much coordination is
"too much." Indeed, the special prosecutor, because he relies
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on vague and overbroad statutes, will be the only one to know
how much coordination is "too much." This cannot be; such an
interpretation of § 11.10(4) is unconstitutionally overbroad and
vague under the First Amendment. See Princess Cinema, 96
Wis. 2d at 657 (citations omitted) ("The void for vagueness
doctrine '. . . incorporates the notions of fair notice or
warning. . . . (i)t requires legislatures to set reasonably
clear guidelines for law enforcement officials and triers of
fact in order to prevent "arbitrary and discriminatory
enforcement."'").
¶72 However, there is another, more obvious flaw in the
special prosecutor's theory. Wisconsin Stat. § 11.10(4) refers
to a "committee" that coordinates with a candidate's committee
and in order to be a "committee," an entity must "make[] or
accept[] contributions or make[] disbursements." In order to
come within the purview of regulated acts both "contributions"
and "disbursements" must be "made for political purposes." Wis.
Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1. Applying the necessary
limiting construction to the phrase "for political purposes," we
conclude that in order to meet the statutory definition of
"committee," a committee must engage in express advocacy and its
functional equivalent. This conclusion is fatal to the special
prosecutor's subcommittee theory because he does not allege that
the Unnamed Movants engaged in express advocacy. Put simply,
because the Unnamed Movants did not engage in express advocacy,
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they could not be considered a "committee" subject to Chapter
11's regulation.
¶73 The special prosecutor's second theory of illegal
coordination is that the coordinated issue advocacy should have
been reported as "in-kind contributions" by the candidate's
committee. This "in-kind contribution" theory rests on the
assumption that any issue advocacy engaged in by the Unnamed
Movants was done for the benefit of the candidate and therefore
should have been reported. Once again, the special prosecutor's
theory fails.
¶74 An "in-kind contribution" is defined in the GAB's
regulations as "a disbursement by a contributor to procure a
thing of value or service for the benefit of a registrant who
authorized the disbursement." GAB 1.20(1)(e) (emphasis added).
By its plain language, the definition of an in-kind contribution
depends on the making of a "disbursement." As a result of the
limiting construction of "political purposes," there can be no
"disbursement" under Chapter 11, or the corresponding
regulations, without express advocacy or its functional
equivalent. Even assuming that the special prosecutor is
correct and the Unnamed Movants engaged in issue advocacy at the
specific request of the candidate or the candidate's committee,
those actions do not give rise to a reportable "in-kind
contribution" because under Ch. 11 issue advocacy cannot be a
"disbursement."
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¶75 In sum, we hold that, consistent with the First
Amendment to the United States Constitution and Article I,
Section 3 of the Wisconsin Constitution, the definition of
"political purposes" in Wis. Stat. § 11.01(16) is
unconstitutionally overbroad and vague because its language "is
so sweeping that its sanctions may be applied to
constitutionally protected conduct which the state is not
permitted to regulate." Janssen, 219 Wis. 2d at 374. However,
there is a readily available limiting construction that will
prevent the chilling of otherwise protected speech, and we hold
that "political purposes" is limited to express advocacy and its
functional equivalent as those terms are defined in Buckley and
WRTL II. With this limiting construction in place, Chapter 11
does not regulate the alleged conduct of the Unnamed Movants.
The special prosecutor has not alleged any express advocacy, and
issue advocacy, whether coordinated or not, is "beyond the reach
of the regulatory scheme." Barland II, 751 F.3d at 815.
Accordingly, we grant the relief requested by the Unnamed
Movants.
¶76 To be clear, this conclusion ends the John Doe
investigation because the special prosecutor's legal theory is
unsupported in either reason or law. Consequently, the
investigation is closed. Consistent with our decision and the
order entered by Reserve Judge Peterson, we order that the
special prosecutor and the district attorneys involved in this
investigation must cease all activities related to the
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investigation, return all property seized in the investigation
from any individual or organization, and permanently destroy all
copies of information and other materials obtained through the
investigation. All Unnamed Movants are relieved of any duty to
cooperate further with the investigation.
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IV. SCHMITZ V. PETERSON
¶77 We turn now to the second case presented for our
review, Schmitz v. Peterson. This case is before us on
petitions to bypass the court of appeals filed by the Unnamed
Movants. In this case, the special prosecutor seeks a
supervisory writ in order to reverse Reserve Judge Peterson's
decision to quash the subpoenas and search warrants issued by
Reserve Judge Kluka. The specific issue presented is whether
the evidence gathered in the John Doe proceedings provide a
reasonable belief that Wisconsin's campaign finance law was
violated by a campaign committee's coordination with independent
advocacy organizations.
¶78 We hold that the special prosecutor has failed to
prove that Reserve Judge Peterson violated a plain legal duty
when he quashed the subpoenas and search warrants and ordered
the return of all property seized by the special prosecutor. In
quashing the subpoenas and search warrants, Reserve Judge
Peterson exercised his discretion under the John Doe statute,
Wis. Stat. § 968.26, to determine the extent of the
investigation. Because the purpose of a supervisory writ does
not include review of a judge's discretionary acts, Kalal, 271
Wis. 2d 633, ¶24, the supervisory writ sought by the special
prosecutor is denied, and Reserve Judge Peterson's order is
affirmed.
A. Standard of Review
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¶79 The decisions of John Doe judges "are not subject to
direct appeal" 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.'" In re John Doe Proceeding, 2003 WI 30,
¶¶23, 41, 260 Wis. 2d 653, 660 N.W.2d 260. Nonetheless, a party
may seek review of a John Doe judge's actions "pursuant to a
petition for supervisory writ." Id., ¶41; see also Wis. Stat.
§ 809.51(1).
¶80 It is well settled that "[a] writ of supervision is
not a substitute for an appeal." Kalal, 271 Wis. 2d 633, ¶17
(quotations omitted). In order to prevail on a supervisory
writ, the petitioner must prove the following: "(1) an appeal is
an inadequate remedy; (2) grave hardship or irreparable harm
will result; (3) the duty of the trial court is plain and it
must have acted or intends to act in violation of that duty; and
(4) the request for relief is made promptly and speedily." Id.
(quoting Burnett v. Alt, 224 Wis. 2d 72, 96-97, 589 N.W.2d 21(1999)) (emphasis added). "A plain duty 'must be clear and
unequivocal and, under the facts, the responsibility to act must
be imperative.'" Id., ¶22 (quoting State ex rel. Kurkierewicz
v. Cannon, 42 Wis. 2d 368, 377–78, 166 N.W.2d 255 (1969)).
¶81 "A supervisory writ 'is considered an extraordinary
and drastic remedy that is to be issued only upon some grievous
exigency.'" Id., ¶17 (citation omitted). The obligation of a
judge to correctly find facts and apply the law is not the type
of plain legal duty contemplated by the supervisory writ
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procedure, "as it would extend supervisory jurisdiction to a
virtually unlimited range of decisions involving the finding of
facts and application of law." Id., ¶24. Instead,
[t]he obligation of judges to correctly apply the law
is general and implicit in the entire structure of our
legal system. The supervisory writ, however, serves a
narrow function: to provide for the direct control of
lower courts, judges, and other judicial officers who
fail to fulfill non-discretionary duties, causing harm
that cannot be remedied through the appellate review
process. To adopt [a contrary] interpretation of the
plain duty requirement in supervisory writ procedure
would transform the writ into an all-purpose
alternative to the appellate review process.
Id. (emphasis added) (citations omitted).
B. Nature of John Doe Proceedings
¶82 Before analyzing Reserve Judge Peterson's decision to
quash the subpoenas and search warrants, it is necessary for us
to provide background regarding the proper conduct of John Doe
proceedings, which have been in use in Wisconsin since its days
as a territory. In re Doe, 317 Wis. 2d 364, ¶13. This
discussion is necessary to educate the public on the nature of
this important investigatory tool, and also to provide guidance
to the lower courts on the proper conduct of John Doe
proceedings.
¶83 Wisconsin's John Doe proceeding, codified in Wis.
Stat. § 968.26, serves two important purposes. State ex rel.
Reimann v. Circuit Court for Dane Cnty., 214 Wis. 2d 605, 621,
571 N.W.2d 385 (1997). "First, and most obvious, a John Doe
proceeding is intended as an investigatory tool used to
ascertain whether a crime has been committed and if so, by whom.
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Second, the John Doe proceeding is designed to protect innocent
citizens from frivolous and groundless prosecutions." Id.
(citations omitted). In order to fulfill the dual purposes of
the John Doe statute, a John Doe judge
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. Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978)
(footnote omitted).
¶84 "Wisconsin Stat. § 968.26 outlines a four-step process
for John Doe proceedings." In re Doe, 317 Wis. 2d 364, ¶14.
"First, the judge must determine whether a complainant has
alleged 'objective, factual assertions sufficient to support a
reasonable belief that a crime has been committed.'" Id.
(citation omitted). Second, if the complainant meets this
burden, "the judge must proceed with a hearing at which 'the
judge shall examine the complainant under oath and any witnesses
produced by him or her.'" Id., ¶15 (quoting Wis. Stat. § 968.26
(2007-08)). Third, when this hearing is over, "a judge must
determine whether probable cause exists as to each essential
element of the alleged crime." Id., ¶16. "Finally, if the
judge determines that probable cause is present—that is, that a
crime probably has been committed—and who the perpetrator of the
alleged crime is, the judge may order that a criminal complaint
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be reduced to writing . . . ." Id., ¶17. This process gives a
John Doe judge "broad discretion to decide whether to file a
criminal complaint, even upon a finding of probable cause." Id.
¶85 In order to commence a John Doe proceeding, the
complainant, whether it be the district attorney or anyone else,
must demonstrate to the John Doe judge "that he has reason to
believe that a crime has been committed within the
jurisdiction." State v. Doe, 78 Wis. 2d 161, 165, 254
N.W.2d 210 (1977). If "the judge finds that the complainant has
failed to establish 'reason to believe[]' [that a crime has been
committed,] that judge may deny the John Doe petition without
conducting an examination." Reimann, 214 Wis. 2d at 625. Thus,
the John Doe judge must act as a gate-keeper and screen out
"petitions that are spurious, frivolous, or groundless." Id. at
624. "In determining whether the petition is worthy of further
treatment, a circuit court judge [presiding over a John Doe
proceeding] must act as a neutral and detached magistrate." Id.
at 625 (emphasis added).
¶86 Therefore, from the earliest stages of the proceeding,
to the conclusion of the investigation, "[t]he proceedings of
the John Doe are constantly under the scrutiny of a judge."
Doe, 78 Wis. 2d at 165. The John Doe judge does not act as
"chief investigator" or as a mere arm of the prosecutor.
Washington, 83 Wis. 2d at 823. Rather, the John Doe judge
serves as a check on the prosecutor and on the complainant to
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ensure that the subject(s) of the investigation receive(s) due
process of law. See Doe, 78 Wis. 2d at 164-65.
¶87 In this way, Wisconsin's John Doe proceeding is very
different than a grand jury, and when conducted appropriately,
provides much greater protections to the target of an
investigation. Id. at 165. This is due in no small part to the
role played by the John Doe judge, which is to ensure that the
investigation stays focused on the conduct alleged in the
petition to commence the John Doe proceeding. Washington, 83
Wis. 2d at 841-42. Further,
[a]nyone familiar with the functions of the grand jury
or who has dealt with it knows the hazards of a run-
away grand jury, which can go beyond the restraints of
the prosecutor, the executive, or of the judiciary.
Such hazards do not exist in the Wisconsin John Doe.
While John Doe proceedings can be abused, the document
produced by a John Doe does not ipso facto force the
defendant to trial. The complaint which emanates from
it is issued under the aegis of a judge but
nevertheless must subsequently stand the scrutiny of
an open court inspection in an adversary proceeding at
the preliminary examination as a prerequisite to the
filing of an information, arraignment, and trial.
Doe, 78 Wis. 2d at 170-71. Thus, "[a] John Doe
proceeding . . . serves both as an inquest into the discovery of
crime and as a screen to prevent 'reckless and ill-advised'
prosecutions." Reimann, 214 Wis. 2d at 621 (citation omitted).
¶88 The text of the John Doe statute gives the John Doe
judge broad powers. Within his discretion, the John Doe judge
is able to determine the extent of the investigation and whether
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the investigation is conducted in secret. Wis. Stat.
§ 968.26(3). 24 We have long recognized the need for secrecy in
John Doe proceedings and have identified several reasons that
justify such secrecy. Cummings, 199 Wis. 2d at 736.
These include: (1) keeping knowledge from an
unarrested defendant which could encourage escape; (2)
preventing the defendant from collecting perjured
testimony for the trial; (3) preventing those
interested in thwarting the inquiry from tampering
with prosecutive testimony or secreting evidence; (4)
rendering witnesses more free in their disclosures;
and (5) preventing testimony which may be mistaken or
untrue or irrelevant from becoming public.
Id. These reasons illustrate how important a John Doe
proceeding can be as an investigative tool. The secrecy orders
available to a John Doe proceeding serve to protect the
24
The full text of this subsection is:
The extent to which the judge may proceed in an
examination under sub. (1) or (2) is within the
judge's discretion. The examination may be adjourned
and may be secret. Any witness examined under this
section may have counsel present at the examination
but the counsel shall not be allowed to examine his or
her client, cross-examine other witnesses, or argue
before the judge. Subject to s. 971.23, if the
proceeding is secret, the record of the proceeding and
the testimony taken shall not be open to inspection by
anyone except the district attorney unless it is used
by the prosecution at the preliminary hearing or the
trial of the accused and then only to the extent that
it is so used. A court, on the motion of a district
attorney, may compel a person to testify or produce
evidence under s. 972.08 (1). The person is immune
from prosecution as provided in s. 972.08 (1), subject
to the restrictions under s. 972.085.
Wis. Stat. § 968.26(3).
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integrity of the investigation. 25 Such orders help encourage
witnesses who may be reluctant or fearful to testify by keeping
their testimony secret. The secrecy of a John Doe investigation
also protects innocent targets of the investigation by
preventing the disclosure of "testimony which may be mistaken or
untrue." Id.
¶89 Consistent with this broad authority, "[t]he John Doe
judge should act with a view toward issuing a complaint or
determining that no crime has occurred." Washington, 83
Wis. 2d at 823. Accordingly, the scope of any John Doe
investigation "is essentially limited to the subject matter of
the complaint upon which the John Doe is commenced." Id. at
822; see also In re Doe, 317 Wis. 2d 364, ¶23. "The John Doe
judge has no authority to ferret out crime wherever he or she
thinks it might exist." Washington, 83 Wis. 2d at 822 (emphasis
added). This final limitation is crucial to the fair
administration of a John Doe proceeding. Without it, John Doe
proceedings could easily devolve into judicially sanctioned
general warrants.
25
We do not disregard the secrecy order issued in the John
Doe proceeding. See Niedziejko, 22 Wis. 2d at 398. However, we
interpret and modify the secrecy order to the extent necessary
for the public to understand our decision herein. Consequently,
if a fact is necessary to include in order to render explicable
a justice's analysis of an issue presented, it is not precluded
by the secrecy order.
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¶90 The purpose of the Fourth Amendment to the United
States Constitution 26 and of Article I, Section 11 of the
Wisconsin Constitution 27 "was to abolish searches by general
warrants, which authorized searches in any place or for any
thing." State ex rel. City of Milwaukee v. Newman, 96 Wis. 258,
267, 71 N.W. 438 (1897). Such general warrants, also known as
Writs of Assistance, "were used in the American colonies to
search wherever government officials chose with nearly absolute
and unlimited discretion." State v. Tye, 2001 WI 124, ¶8, 248
Wis. 2d 530, 636 N.W.2d 473. "These early warrants lacked
specificity and allowed government officers in the late
eighteenth century to enter homes, shops, and other places, and
26
The Fourth Amendment provides that
[t]he right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
U.S. Const. amend. IV.
27
Article I, Section 11 provides that
[t]he right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized.
Wis. Const. art. I, § 11.
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in the event the officers encountered resistance, they could
break down doors and forcibly search closed trunks and chests."
In re John Doe Proceeding, 2004 WI 65, ¶36, 272 Wis. 2d 208, 680
N.W.2d 792. To combat such unchecked power, the Fourth
Amendment requires reasonable searches and mandates that
warrants "particularly describ[e] the place to be searched."
U.S. Const. amend. IV.
¶91 Reasonableness and particularity are not just
requirements of search warrants, however. Subpoenas issued by
courts, and by extension John Doe judges, must also satisfy
these requirements of the Fourth Amendment. In re John Doe
Proceeding, 272 Wis. 2d 208, ¶38. A John Doe proceeding, with
its broad investigatory powers, must never be allowed to become
a fishing expedition.
¶92 It is difficult, if not impossible, to overstate the
importance of the role of the John Doe judge. If he does not
conduct the investigation fairly, as a neutral and detached
magistrate, the risk of harm to innocent targets of the
investigation-and we remain mindful that all such targets are
presumed innocent-is too great. Through the use of a John Doe
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." Washington, 83
Wis. 2d at 822-23. Such powers, if not wielded with care and
skill may serve to transform a John Doe proceeding into an
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implement of harassment and persecution by a vengeful or
unethical prosecutor. Thus, John Doe judges must be mindful of
this danger and zealously guard the rights of all citizens
against over-reach.
¶93 The foregoing discussion emphasizes that John Doe
proceedings are a necessary investigative tool "to 'ascertain
whether [a] crime has been committed and by whom.'" Cummings,
199 Wis. 2d at 736 (quoting Wolke v. Fleming, 24 Wis. 2d 606,
613, 129 N.W.2d 841 (1964)). John Doe proceedings have been
utilized in Wisconsin since it was a territory and have no doubt
served our state well. But the simple fact that the John Doe
proceeding has a long and near constant use should not blind us
to the potential for abuse. We must be mindful of the purpose
of the John Doe proceeding and why it was originally instituted.
This purpose was aptly explained by this court more than 125
years ago:
When this statute was first enacted the common-law
practice was for the magistrate to issue the warrant
on a complaint of mere suspicion, and he was protected
in doing so. This was found to be a very unsafe
practice. Many arrests were made on groundless
suspicion, when the accused were innocent of the crime
and there was no testimony whatever against them. The
law delights as much in the protection of the innocent
as in the punishment of the guilty. This statute was
made to protect citizens from arrest and imprisonment
on frivolous and groundless suspicion. . . . 'Our
statute is framed so as to exclude in a great measure
the abuses to which such a practice might lead, and
undoubtedly was designed to throw the duty of judging,
in this respect, entirely upon the magistrate. It
should not regard mere allegations of suspicion, but
the grounds of the suspicion-the facts and
circumstances-must be laid before him, and these
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should be sufficient to make it appear that a crime
has been actually committed, and that there is
probable cause for charging the individual complained
of therewith.'
State v. Keyes, 75 Wis. 288, 294-95, 44 N.W. 13 (1889)
(citations omitted).
¶94 In sum, Wis. Stat. § 968.26 grants John Doe judges
broad authority to conduct an investigation into alleged crimes.
A John Doe judge is also given "those powers necessary" to carry
out this duty. Cummings, 199 Wis. 2d at 736. Nevertheless,
"[a]s to all aspects of the conduct of the judicial function,
the [John Doe] judge is the governor of the proceedings, and as
such is responsible for maintaining the good order, dignity, and
insofar as it is compatible with the administration of justice,
efficiency of those proceedings." In re Doe, 317 Wis. 2d 364,
¶22. This duty applies with equal force in all John Doe
proceedings, regardless of the target's station in life, or the
crime alleged, be it drug trafficking in the inner city,
malfeasance in the corporate boardroom, or corruption in the
halls of government.
C. Reserve Judge Peterson Did Not Violate a Plain Legal Duty
When He Quashed the Subpoenas and Search Warrants Issued in This
Case.
¶95 As is clear from the above discussion, John Doe judges
are given enormous discretion to control the scope and conduct
of a John Doe proceeding. With this important point in mind, we
now turn to the specific issue before us: whether Reserve Judge
Peterson violated a plain legal duty when he quashed the
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subpoenas and search warrants and ordered the return of all
seized property. He did not.
¶96 "A plain duty 'must be clear and unequivocal and,
under the facts, the responsibility to act must be imperative.'"
Kalal, 271 Wis. 2d 633, ¶22 (quoting Kurkierewicz, 42 Wis. 2d at
377–78). Although a supervisory writ is the proper vehicle for
the special prosecutor to seek review of Reserve Judge
Peterson's decision, the writ procedure serves a very narrow
function which is distinct from the normal appellate process.
Id., ¶24. The purpose of a supervisory writ is "to provide for
the direct control of lower courts, judges, and other judicial
officers who fail to fulfill non-discretionary duties, causing
harm that cannot be remedied through the appellate review
process." Id. (emphasis added).
¶97 Here, the special prosecutor argues that Reserve Judge
Peterson failed to comply with his duty to correctly apply the
law and erroneously concluded that Wisconsin campaign finance
law does not regulate the Unnamed Movants' alleged conduct. The
special prosecutor essentially argues that Reserve Judge
Peterson misapplied the law and prematurely ended the John Doe
investigation. This argument misses the point of the
supervisory writ procedure and asks us to adopt a standard of
review that we explicitly rejected in Kalal. See id., ¶¶23-24
("In essence, the Kalals argue that the judge . . . has a plain
duty to correctly find facts and apply the law. We cannot
accept this proposition, as it would extend supervisory
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jurisdiction to a virtually unlimited range of decisions
involving the finding of facts and application of law."). As
was the case in Kalal, if we were to adopt the special
prosecutor's understanding of a plain legal duty, we "would
transform the writ into an all-purpose alternative to the
appellate review process." Id., ¶24. This we will not do.
¶98 A John Doe judge is given the discretion to determine
the extent of the investigation. Wis. Stat. § 968.26(3). In
doing so, he or she "should act with a view toward issuing a
complaint or determining that no crime has occurred."
Washington, 83 Wis. 2d at 823. In his decision to quash the
subpoenas and search warrants, Reserve Judge Peterson concluded
that the subpoenas and search warrants do not provide a
reasonable belief that the Unnamed Movants "committed any
violations of the campaign finance laws." Reserve Judge
Peterson further concluded that "[t]he State is not claiming
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that any of the independent organizations expressly advocated. 28
Therefore the subpoenas 29 fail to show probable cause that a
crime was committed." In a subsequent order granting a stay of
his decision to quash, Reserve Judge Peterson clarified that,
although he mistakenly phrased his decision in the context of
whether the subpoenas showed probable cause, the subpoenas and
search warrants were premised "on an invalid interpretation of
28
The special prosecutor now claims that coordinated
express advocacy did in fact occur between Unnamed Movants 1 and
6 and two express advocacy groups, neither of which are parties
to the current lawsuits. The special prosecutor and the Unnamed
Movants presented Reserve Judge Peterson with the evidence of
coordination regarding the first express advocacy group.
Reserve Judge Peterson considered this evidence when deciding
whether or not to quash the subpoenas or order the return of
seized property. Reserve Judge Peterson definitively concluded
that "[t]here is no evidence of express advocacy." We will not
disturb that decision as, under the John Doe statute, it was
Reserve Judge Peterson's to make. More fundamentally, however,
as a member of the first express advocacy group, the candidate
at issue in this case and his agents had an absolute
constitutional right to interact with a political organization
of which he was a member, and improper coordination cannot be
presumed by such contacts. Colo. Republican Fed. Campaign Comm.
v. Fed. Eletion. Comm'n, 518 U.S. 604, 619 (1996). Further, the
special prosecutor chose not to present evidence pertaining to
the second express advocacy group to Reserve Judge Peterson.
Arguments not presented to the court in the first instance are
deemed waived. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d
501 (1997).
29
Although he refers only to the subpoenas issued in the
John Doe investigation, Reserve Judge Peterson later clarified
that "for the reasons stated above regarding the limitations on
the scope of the campaign finance laws, I conclude that
the . . . warrants [issued for Unnamed Movants Nos. 6 and 7]
lack probable cause."
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the law. That . . . was the underlying problem with the
subpoenas." 30
¶99 Reserve Judge Peterson's decision is consistent with
his discretion to determine the extent of the John Doe
investigation. In addition, "[i]t is within the discretion of
the trial court to quash a subpoena." State v. Horn, 126
Wis. 2d 447, 456, 377 N.W.2d 176 (Ct. App. 1985), aff'd, 139
Wis. 2d 473, 407 N.W.2d 854 (1987). Because supervisory writs
are not appropriate vehicles to review a judge's discretionary
acts, see Kalal, 271 Wis. 2d 633, ¶24, the special prosecutor
has failed to show that Reserve Judge Peterson violated a plain
legal duty by quashing the subpoenas and search warrants.
Therefore, the supervisory writ sought by the special prosecutor
is denied, and Reserve Judge Peterson's order is affirmed. 31
30
We note that as a result of our interpretation of Chapter
11 in Two Unnamed Petitioners, Reserve Judge Peterson's
interpretation is correct as a matter of law.
31
While we base our conclusion solely on Reserve Judge
Peterson's exercise of discretion under the John Doe statute, we
note that there are serious flaws with the subpoenas and search
warrants, which were originally issued by Reserve Judge Kluka.
As we explained above, a John Doe judge does not act as "chief
investigator" or as a mere arm of the prosecutor. State v.
Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978). Rather,
a John Doe judge serves as a check on the prosecutor and on the
complainant to ensure that the subject(s) of the investigation
receive(s) due process of law. See State v. Doe, 78
Wis. 2d 161, 164-65, 254 N.W.2d 210 (1977). This is an
important function that cannot be ignored. Judges cannot simply
assume that the prosecutor is always well-intentioned. Due to
the exceptionally broad nature of the subpoenas and search
warrants, it is doubtful that they should have ever been issued
in the first instance.
(continued)
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V. THREE UNNAMED PETITIONERS
¶100 Finally, we turn to Three Unnamed Petitioners, in
which the Unnamed Movants appeal an opinion and order of the
court of appeals denying their petition for a supervisory writ.
This case requires us to determine whether either Reserve Judge
Kluka or Peterson violated a plain legal duty by: (1) accepting
an appointment as a reserve judge; (2) convening a multi-county
John Doe proceeding; or (3) appointing a special prosecutor. 32
¶101 We affirm the decision of the court of appeals and
deny the Unnamed Movants' petition for a supervisory writ. We
hold that the Unnamed Movants have not met the burden of proof
required for a supervisory writ. Specifically, they have not
established that either Reserve Judge Kluka or Peterson violated
a plain legal duty by: (1) accepting an appointment as a reserve
The special prosecutor alleges that the Unnamed Movants
engaged in "illegal" coordination of issue advocacy sometime
between 2011 and 2012. The subpoenas and search warrants,
however, sought records-many of which were personal and had
nothing to do with political activity-and information ranging
from 2009 through 2013. If the illegal conduct took place
during a discrete timeframe in 2011 and 2012, as the special
prosecutor alleges, what possible relevance could documents from
a full two years prior have to the crime alleged? By
authorizing such sweeping subpoenas and search warrants, Reserve
Judge Kluka failed in her duty to limit the scope of the
investigation to the subject matter of the complaint. See In re
Doe, 2009 WI 46, ¶23, 317 Wis. 2d 364, 766 N.W.2d 542. These
subpoenas and search warrants also come dangerously close to
being general warrants of the kind which, in part, provoked our
forefathers to separate from the rule of Empire.
32
This case presents issues one through five in our
December 16, 2014 grant order. See supra ¶9.
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judge; (2) convening a multi-county John Doe proceeding; or (3)
appointing a special prosecutor. "The obligation of judges to
correctly apply the law is general and implicit in the entire
structure of our legal system." Kalal, 271 Wis. 2d 633, ¶24.
The Unnamed Movants' argument does not fit the purpose of a
supervisory writ, which requires a "clear and unequivocal" duty
to act on the part of the judge. Id., ¶22. If we were to adopt
the Unnamed Movants' argument, we "would transform the writ into
an all-purpose alternative to the appellate review process."
Id., ¶24. Because the Unnamed Movants have not identified a
violation of a plain legal duty, their petition for a
supervisory writ is denied.
A. Standard of Review
¶102 "[T]he authority of both judges and prosecutors in a
John Doe proceeding[] . . . are questions of statutory
interpretation which this court reviews de novo without
deference to the circuit court or court of appeals." Cummings,
199 Wis. 2d at 733. Thus, "[w]hether a John Doe judge has
exceeded his or her powers is a question of law that this court
determines independently." State ex rel. Individual Subpoenaed
to Appear at Waukesha Cnty. v. Davis, 2005 WI 70, ¶17, 281
Wis. 2d 431, 697 N.W.2d 803 (citing Cummings, 199 Wis. 2d at
733).
¶103 For a supervisory writ to issue, the petitioner for
the writ must establish that: "(1) an appeal is an inadequate
remedy; (2) grave hardship or irreparable harm will result; (3)
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the duty of the trial court is plain and it must have acted or
intends to act in violation of that duty; and (4) the request
for relief is made promptly and speedily." Kalal, 271
Wis. 2d 633, ¶17 (emphasis added).
¶104 A "'writ of supervision is not a substitute for an
appeal.'" Id. (citation committed). "A supervisory writ 'is
considered an extraordinary and drastic remedy that is to be
issued only upon some grievous exigency.'" Id. (citation
omitted).
¶105 Although a court exercises its discretion in deciding
whether or not to issue a writ, "[t]he exercise of that
discretion often involves . . . resolving questions of law in
order to determine whether the circuit court's duty is plain."
State ex rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008
WI App 120, ¶9, 313 Wis. 2d 508, 756 N.W.2d 573. "A plain duty
'must be clear and unequivocal and, under the facts, the
responsibility to act must be imperative.'" Kalal, 271
Wis. 2d 633, ¶22 (citation omitted). The obligation of a judge
to correctly find facts and apply the law is not the type of
plain legal duty contemplated by the supervisory writ procedure,
"as it would extend supervisory jurisdiction to a virtually
unlimited range of decisions involving the finding of facts and
application of law." Id., ¶24; see also supra ¶80.
¶106 Consequently, for a writ to issue in this case, the
Unnamed Movants must demonstrate that the John Doe judges
violated a plain legal duty, either in accepting an appointment
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as a reserve judge, in convening a John Doe proceeding over
multiple counties, or in appointing a special prosecutor.
B. The Unnamed Movants Have Failed to Prove the Violation of a
Plain Legal Duty.
i. No Violation of a Plain Legal Duty Occurred in the
Appointment and Assignment of Reserve Judge Kluka or Reserve
Judge Peterson to Preside Over a Multi-County John Doe
Proceeding.
¶107 We first discuss whether Reserve Judge Kluka or
Reserve Judge Peterson violated a plain legal duty either in
accepting an appointment as a reserve judge or in convening a
multi-county John Doe proceeding. We hold that the Unnamed
Movants failed to prove that Reserve Judge Kluka or Reserve
Judge Peterson violated a plain legal duty by accepting an
appointment as a reserve judge or in convening a John Doe
proceeding over multiple counties.
1. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in
Accepting Her Appointment as a Reserve Judge.
¶108 We begin our discussion of this issue by explaining
the distinction between the appointment and assignment of a
reserve judge. A former judge is appointed to be a reserve
judge by the Chief Justice. Once a former judge has been
appointed to be a reserve judge then that reserve judge can be
assigned to a particular case or to a particular circuit court
calendar.
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¶109 The Director of State Courts has the power to assign
reserve judges, but he does not have the power to appoint
reserve judges. See SCR 70.10 33; SCR 70.23. 34 The Chief Justice
is the sole individual with the power to both appoint and assign
reserve judges. See Wis. Const. art. VII, § 24(3) 35; Wis. Stat.
§ 753.075 36; SCR 70.23(1). 37
33
"The director of state courts shall have the
responsibility and authority regarding the assignment of reserve
judges and the interdistrict assignment of active judges at the
circuit court level where necessary to the ordered and timely
disposition of the business of the court."
34
"The director of state courts may make interdistrict
judicial assignments at the circuit court level." SCR 70.23(1).
"The director of state courts may also make a permanent
assignment to a judicial district of a reserve judge who can be
assigned by a chief judge in the same manner as an active
circuit judge under this section." SCR 70.23(2). "[I]f the
chief judge deems it necessary the chief judge shall call upon
the director of state courts to assign a judge from outside the
judicial administrative district or a reserve judge." SCR
70.23(4).
35
"A person who has served as a supreme court justice or
judge of a court of record may, as provided by law, serve as a
judge of any court of record except the supreme court on a
temporary basis if assigned by the chief justice of the supreme
court."
36
(1)Definitions. In this section:
(a)'Permanent reserve judge' means a judge appointed
by the chief justice to serve an assignment for a
period of 6 months. Permanent reserve judges shall
perform the same duties as other judges and may be
reappointed for subsequent periods.
(continued)
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¶110 The relevant orders in the record state that Reserve
Judge Kluka was assigned, not appointed, to serve as the John
Doe judge in each of the five counties. Once the Milwaukee
County District Attorney's Office filed a petition for the
commencement of a John Doe proceeding in Milwaukee County, Chief
Judge Kremers "assigned and forwarded" the petition to "Reserve
Judge Kluka" on August 23, 2012. Thereafter, on September 5,
2012, the Director of State Courts, with then-Chief Justice
Shirley Abrahamson's name directly above, assigned Reserve Judge
Kluka to preside over the matter using a form titled
"Application and Order for Specific Judicial Assignment." The
actions taken by Chief Judge Kremers and the Director of State
Courts suggest that Kluka possessed reserve judge status at the
time her assignments were made. However, nothing in the record
(b)'Temporary reserve judge' means a judge appointed
by the chief justice to serve such specified duties on
a day-by-day basis as the chief justice may direct.
(2)Eligibility. The chief justice of the supreme
court may appoint any of the following as a reserve
judge:
(a)Any person who has served a total of 6 or more
years as a supreme court justice, a court of appeals
judge or a circuit judge.
(b)Any person who was eligible to serve as a reserve
judge before May 1, 1992.
37
"The chief justice may assign active or reserve judges,
other than municipal judges, to serve temporarily in any court
or branch of a circuit court for such purposes and period of
time as the chief justice determines to be necessary."
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definitively establishes that the then-Chief Justice had
previously appointed Kluka as a reserve judge.
¶111 The absence of a record on this point is very likely
because no one disputes that Kluka was lawfully appointed as a
reserve judge. Indeed, the Unnamed Movants do not challenge
Reserve Judge Kluka's authority to preside over the Milwaukee
County John Doe proceeding. Rather, according to the Unnamed
Movants, "the problem arose later, when the Director of State
Courts extended that [assignment] to four more counties in one
functionally-consolidated proceeding or investigation." In
fact, in their reply brief, the Unnamed Movants state "the core
issue is not who appointed a reserve judge: it is whether the
five-county structure is lawful at all." Because the Unnamed
Movants have failed to show that Reserve Judge Kluka was not
lawfully appointed, it follows that they have failed to prove
that she violated a plain legal duty in accepting her
appointment as a reserve judge.
2. Reserve Judge Peterson Did Not Violate a Plain Legal Duty in
Accepting His Appointment as a Reserve Judge.
¶112 Similarly, the Unnamed Movants also have failed to
meet their burden with respect to Reserve Judge Peterson. On
October 29, 2013, Chief Judge Kremers assigned Reserve Judge
Peterson to serve as the John Doe judge in Milwaukee County,
after Reserve Judge Kluka withdrew, in an order titled:
"REASSIGNMENT AND EXCHANGE." The document also states:
"Reassigned to Reserve Judge Gregory A. Peterson according to
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the rules." See SCR 70.23 (providing that the chief judge can
request the assignment of a reserve judge by the Director of
State Courts). As explained above, only the Chief Justice has
the authority to appoint reserve judges.
¶113 Similar to the issue with Reserve Judge Kluka, the
Unnamed Movants do not question Reserve Judge Peterson's
authority to preside over the Milwaukee County John Doe
proceeding. Their contention is that it was unlawful for
Reserve Judge Peterson to accept assignment to four more
counties "in one functionally-consolidated proceeding or
investigation." Because the Unnamed Movants have failed to show
that Reserve Judge Peterson was not lawfully appointed, they
have failed to prove that Reserve Judge Peterson violated a
plain legal duty in accepting his appointment as a reserve
judge.
3. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in
Convening a Multi-County John Doe Proceeding.
¶114 The Unnamed Movants contend that no one may appoint or
assign a reserve judge to serve as a John Doe judge
simultaneously in five counties. The Unnamed Movants argue that
"the question properly is not whether anything in the enabling
statute 'prevents' or 'prohibits' what happened here. The right
question is whether anything in the statutes permits what
happened here." The Unnamed Movants emphatically state that
"[t]he answer to that question is no." However, in examining
this issue, we look to whether the John Doe statute clearly
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prohibits the procedural posture of this John Doe investigation.
The answer is no.
¶115 Pursuant to Wis. Stat. § 968.26(1) 38 five separate John
Doe proceedings were initiated by the district attorneys of the
five counties; however, it was for one investigation conducted
by a special prosecutor. The investigation was expanded because
the initial investigation in Milwaukee County suggested that
persons residing in four additional counties could be involved
with potential campaign finance violations and Wis. Stat.
§ 978.05(1) provides that a district attorney shall:
[p]rosecute all criminal actions before any court
within his or her prosecutorial unit and have sole
responsibility for prosecution of all criminal actions
arising from violations of chs. 5 to 12 . . . that are
alleged to be committed by a resident of his or her
prosecutorial unit. . . .
See also Wis. Stat. §§ 971.19(11)-(12) (providing that the venue
for a criminal proceeding under campaign finance laws shall be
the county of the defendant's residence unless the defendant
chooses to be tried in the county where the crime occurred).
The Director of State Courts, with then-Chief Justice Shirley
Abrahamson's name directly above, then executed five separate
orders assigning Reserve Judge Kluka to preside over the five
separate proceedings. While these five separate proceedings are
38
"If a district attorney requests a judge to convene a
proceeding to determine whether a crime has been committed in
the court's jurisdiction, the judge shall convene a proceeding
described under sub. (3) and shall subpoena and examine any
witnesses the district attorney identifies."
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a single investigation, they have not been consolidated.
Rather, the John Doe proceedings at issue have merely been
running parallel to one another.
¶116 Nothing in the John Doe statute prohibits the
initiation of five parallel John Doe proceedings. Put another
way, nothing in the John Doe statute explicitly told Reserve
Judge Kluka that she could not preside over five John Doe
proceedings. To initiate a John Doe proceeding, a district
attorney must simply make the request, which is exactly what
happened here. See Wis. Stat. § 968.26(1). Because nothing in
the John Doe statute expressly prohibits the initiation of five
parallel John Doe proceedings concerning a single investigation,
we cannot conclude that Reserve Judge Kluka violated a plain
legal duty in convening the five separate proceedings. As such,
a supervisory writ cannot issue.
¶117 The Unnamed Movants argue that they have shown a
violation of a plain legal duty. They argue that "[t]he
investigation was constituted in direct contravention of
Wisconsin statutes and without authority. The John Doe
judge . . . had a plain duty to comply with Wisconsin statutes
in the conduct of a statutorily-constituted investigation." We
rejected an identical argument in Kalal.
¶118 In Kalal, a circuit court judge ordered that a
criminal complaint be brought against the Kalals under Wis.
Stat. § 968.02(3), which allows a circuit judge to order a
criminal complaint be issued if a district attorney "refuses" to
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issue a complaint. Kalal, 271 Wis. 2d 633, ¶¶12-13. The Kalals
argued that "the circuit judge has a plain duty to correctly
determine the presence of this threshold refusal before
authorizing the issuance of a criminal complaint." Id., ¶23.
We held that this argument failed to establish the violation of
a plain legal duty. "To the extent that a circuit judge's
decision to permit the filing of a complaint under Wis. Stat.
§ 968.02(3) is legally or factually unsupported, the
defendant . . . may seek its dismissal in the circuit court
after it has been filed, and may pursue standard appellate
remedies thereafter." Id., ¶25. "But the statutory
prerequisite that the judge find a refusal to prosecute by the
district attorney does not impose upon the circuit judge a
plain, clear, non-discretionary, and imperative duty of the sort
necessary for a supervisory writ." Id.
¶119 We explained that, "[i]n essence, the Kalals argue
that the judge sitting ex parte in a hearing under Wis. Stat.
§ 968.02(3) has a plain duty to correctly find facts and apply
the law." Id., ¶23. "We cannot accept this proposition, as it
would extend supervisory jurisdiction to a virtually unlimited
range of decisions involving the finding of facts and
application of law." Id., ¶24. "The obligation of judges to
correctly apply the law is general and implicit in the entire
structure of our legal system." Id. "The supervisory writ,
however, serves a narrow function: to provide for the direct
control of lower courts . . . [that] fail to fulfill non-
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discretionary duties . . . ." Id. (citations omitted). "To
adopt the Kalals' interpretation of the plain duty requirement
in supervisory writ procedure would transform the writ into an
all-purpose alternative to the appellate review process." Id.
¶120 The Unnamed Movants have not identified a "plain,
clear, non-discretionary, and imperative duty of the sort
necessary for a supervisory writ." Id., ¶25. In this
supervisory writ action, the Unnamed Movants must do more than
point out the fact that the statutes do not explicitly authorize
the commencement of parallel John Doe proceedings in multiple
counties. Further, they must do more than argue that five
parallel investigations and proceedings were "implicitly"
prohibited by the statute. They must show that by commencing
five parallel John Doe proceedings Reserve Judge Kluka violated
a plain, clear, non-discretionary, and imperative duty of the
sort necessary for a supervisory writ. They have not even tried
to make such a showing.
¶121 We understand the Unnamed Movants' concerns and agree
that the kind of multi-county investigation that occurred here
does raise serious questions. Typically, statewide or multi-
county investigations are conducted by the Attorney General or
by the GAB. See Wis. Stat. §§ 165.50(1) (Attorney General),
5.05 (Government Accountability Board). However, Wis. Stat.
§ 968.26 is silent as to whether a John Doe judge can preside
over a multi-county John Doe. It is axiomatic that silence on
the point does not (and cannot) result in the creation of a
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plain legal duty. Here, Reserve Judge Kluka and the special
prosecutor initially ran the investigation and proceeding out of
a single post office box in Milwaukee controlled by the special
prosecutor. They also put the case names and numbers of all
five proceedings on every search warrant, subpoena, and order.
However, the concerns expressed by the Unnamed Movants are more
properly addressed to the legislature, not a court in a
supervisory writ petition. Should the legislature wish to
prohibit multi-county John Does, it is free to do so. We,
however, cannot "transform the writ into an all-purpose
alternative to the appellate review process" or announce new
rules for future cases as part of that process. Kalal, 271 Wis.
2d 633, ¶24. To do so would be an instance of judicial
overreach incompatible with the nature and purpose of a
supervisory writ.
¶122 Therefore, we hold that Reserve Judges Kluka and
Peterson did not violate a plain legal duty by: (1) accepting an
appointment as a reserve judge; or (2) convening a multi-county
John Doe proceeding, and thus we deny the Unnamed Movants'
petition for a supervisory writ.
ii. Reserve Judge Kluka Did Not Violate a Plain Legal Duty by
Appointing Francis Schmitz to be the Special Prosecutor.
¶123 We now turn to whether Reserve Judge Kluka violated a
plain legal duty in appointing the special prosecutor, and if
so, what effect that would have on the court and special
prosecutor's competency. We conclude that the Unnamed Movants
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have failed to prove that Reserve Judge Kluka violated a plain
legal duty in appointing the special prosecutor.
1. Under Carlson, Reserve Judge Kluka Reasonably Concluded that
She Had the Authority to Appoint the Special Prosecutor on Her
Own Motion.
¶124 In appointing the special prosecutor Reserve Judge
Kluka relied, in part, on Carlson. 39 Carlson concerned a court's
statutory authority to appoint a special prosecutor under Wis.
Stat. § 978.045. 40 In Carlson, the court of appeals explained
39
To be clear, we do not rely on State v. Carlson, 2002 WI
App 44, 250 Wis. 2d 562, 641 N.W.2d 563. There are certainly
distinctions to be made between the facts of Carlson and the
facts of the instant case. We discuss Carlson only as it
relates to the larger question of whether Reserve Judge Kluka
violated a plain legal duty at the time the appointment was
made.
40
Wisconsin Stat. § 978.045, the "special prosecutors"
statute, provides:
(1g)A court on its own motion may appoint a special
prosecutor under sub. (1r) or a district attorney may
request a court to appoint a special prosecutor under
that subsection. Before a court appoints a special
prosecutor on its own motion or at the request of a
district attorney for an appointment that exceeds 6
hours per case, the court or district attorney shall
request assistance from a district attorney, deputy
district attorney or assistant district attorney from
other prosecutorial units or an assistant attorney
general. A district attorney requesting the
appointment of a special prosecutor, or a court if the
court is appointing a special prosecutor on its own
motion, shall notify the department of administration,
on a form provided by that department, of the district
attorney's or the court's inability to obtain
assistance from another prosecutorial unit or from an
assistant attorney general.
(continued)
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(1r)Any judge of a court of record, by an order
entered in the record stating the cause for it, may
appoint an attorney as a special prosecutor to
perform, for the time being, or for the trial of the
accused person, the duties of the district attorney.
An attorney appointed under this subsection shall have
all of the powers of the district attorney. The judge
may appoint an attorney as a special prosecutor at the
request of a district attorney to assist the district
attorney in the prosecution of persons charged with a
crime, in grand jury proceedings or John Doe
proceedings under s. 968.26, in proceedings under ch.
980, or in investigations. The judge may appoint an
attorney as a special prosecutor if any of the
following conditions exists:
(a)There is no district attorney for the county.
(b)The district attorney is absent from the county.
(c)The district attorney has acted as the attorney for
a party accused in relation to the matter of which the
accused stands charged and for which the accused is to
be tried.
(d)The district attorney is near of kin to the party
to be tried on a criminal charge.
(e)The district attorney is physically unable to
attend to his or her duties or has a mental incapacity
that impairs his or her ability to substantially
perform his or her duties.
(f)The district attorney is serving in the U.S. armed
forces.
(g)The district attorney stands charged with a crime
and the governor has not acted under s. 17.11.
(h)The district attorney determines that a conflict of
interest exists regarding the district attorney or the
district attorney staff.
(i)A judge determines that a complaint received under
s. 968.26 (2) (am) relates to the conduct of the
(continued)
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that the plain language of the special prosecutors statute
"authorizes two distinct ways in which a court may appoint a
special prosecutor." Carlson, 250 Wis. 2d 562, ¶8. The first
is on the court's own motion. Id. The second is at the request
of a district attorney. Id. Where the appointment is on the
court's own motion, the court of appeals interpreted Wis. Stat.
§ 978.045(1r) as giving a court "unfettered authority" to make
the appointment, as long as the court entered an order "stating
the cause therefor." Id., ¶¶ 5, 9 (quotation omitted) ("In
short, if a court makes a special prosecutor appointment on its
own motion, it is constrained only in that it must enter an
order in the record stating the cause for the appointment.").
"[A]ny restriction, if one exists, is triggered only when the
appointment is made at the request of a district attorney, not
when the appointment is made by a court on its own motion."
Id., ¶8.
¶125 Carlson thus concluded that a court need satisfy only
one of the nine conditions listed under Wis. Stat. § 978.045(1r)
when the district attorney requests the appointment of a special
prosecutor, but when the court makes the appointment on its own
motion, it need only enter an order stating the cause therefor.
"A plain reading of the statute tells us that when a court makes
this appointment on its own motion, all that is required of the
court is that it enter an order in the record 'stating the cause
district attorney to whom the judge otherwise would
refer the complaint.
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therefor.'" Id., ¶9 (quoting Wis. Stat. § 978.045(1r) (1999-
2000) which addresses, in part, John Doe proceedings and a John
Doe judge's ability to appoint a special prosecutor for such
proceedings).
¶126 Reserve Judge Kluka relied on Carlson to appoint, on
her own motion, the special prosecutor. Thus, in order to
justify the appointment under Carlson, Reserve Judge Kluka was
simply required to enter an order "stating the cause therefor,"
which is exactly what she did in citing concerns of efficiency
and the appearance of impropriety.
¶127 We note that Carlson is problematic to the point of
being suspect. This is so because Carlson disregards the fact
that one of the nine conditions enumerated under Wis. Stat.
§ 978.045(1r) must exist for the appointment of a special
prosecutor, regardless of whether the appointment is made on the
court's own motion or at the district attorney's request. The
Carlson court's failure to import this language from the
governing statute is an inexplicable-and very likely fatal-
defect in its holding. While we agree with the Unnamed Movants'
interpretation of Wis. Stat. § 978.045, we do not take the
ultimate step of overruling Carlson because to do so would go
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further than the supervisory writ allows. 41 Simply put, despite
Carlson's questionable validity we cannot reasonably conclude
that Reserve Judge Kluka violated a plain legal duty in making
the appointment.
¶128 The issue presented also asks whether Reserve Judge
Kluka violated a plain legal duty in making the special
prosecutor appointment where no charges have yet been issued;
where the district attorney in each county has not refused to
continue the investigation or prosecution of any potential
charge; and where no certification that no other prosecutorial
unit was able to do the work for which the special prosecutor
was sought was made to the Department of Administration. Again,
Carlson gave the John Doe judge "unfettered authority" to
appoint the special prosecutor, so the absence of these
additional circumstances does not demonstrate that Reserve Judge
Kluka violated a plain legal duty in making the appointment.
2. Reserve Judge Kluka Also Relied on Her Inherent Authority in
Appointing the Special Prosecutor.
¶129 Reserve Judge Kluka also stated that she appointed the
special prosecutor pursuant to her "inherent authority" under
Cummings. The relevant issue in Cummings was whether a John Doe
41
The procedural posture of this case prevents us from
overruling Carlson. If this issue were to arise in a non-
supervisory writ case we may very well overrule Carlson.
However, the supervisory writ is not an "all-purpose alternative
to the appellate review process." State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633,
681 N.W.2d 110.
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judge has the ability to seal a search warrant. Id. at 733.
There the defendant argued that no statutory authority conferred
such power on John Doe judges. In rejecting the defendant's
argument, we reasoned:
[A] John Doe judge has been granted jurisdiction, the
legal right to exercise its authority, pursuant to
Wis. Stat. § 968.27. A grant of jurisdiction by its
very nature includes those powers necessary to fulfill
the jurisdictional mandate. The statutory
jurisdiction of a John Doe judge has been defined as
the authority of the judge to conduct a John Doe
investigation [in order to ascertain whether a crime
has been committed and by whom]. . . . The ability to
seal a search warrant is exactly that type of power
which a John Doe judge needs to fulfill [that]
jurisdictional mandate.
Id. at 736-37. Thus, while Cummings did not specifically
address a John Doe judge's inherent authority to appoint a
special prosecutor, it provides broad language supporting the
idea that a John Doe judge possesses inherent authority where it
is necessary to facilitate its jurisdictional mandate. Stated
otherwise, a John Doe judge's inherent authority is limited to
what is necessary to enable the judge to properly conduct a John
Doe proceeding. State ex rel. Individual Subpoenaed, 281
Wis. 2d 431, ¶26; see In re John Doe Proceeding, 272 Wis. 2d
208, ¶10.
¶130 The Unnamed Movants argue that the only cases invoking
a court's inherent authority to appoint a special prosecutor
have arisen after charges have been filed. See, e.g., State v.
Lloyd, 104 Wis. 2d 49, 56-57, 310 N.W.2d 617 (Ct. App. 1981).
We agree, but that is because no court has addressed whether a
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John Doe judge has inherent authority to appoint a special
prosecutor, which necessarily occurs before charging. That
there is an absence of case law addressing whether a John Doe
judge has inherent authority to appoint a special prosecutor
does not necessarily mean the John Doe judge in this case
violated a plain legal duty in doing so. 42
¶131 Arguably, the broad language in Cummings could be used
to support Reserve Judge Kluka's actions in this case. Because
no law expressly prohibits a John Doe judge from exercising his
inherent authority to appoint a special prosecutor, the Unnamed
Movants cannot prove that Reserve Judge Kluka violated a plain
legal duty in exercising that authority to appoint the special
prosecutor.
¶132 Due to the existing precedent, Reserve Judge Kluka's
legal duty was not plain, clear, and unequivocal with an
imperative responsibility to act under the facts. Because the
Unnamed Movants have not established that Reserve Judge Kluka
violated a plain legal duty in appointing the special
prosecutor, we deny their petition for a supervisory writ and
affirm the court of appeals. 43
42
While we do not endorse Reserve Judge Kluka's
interpretation of her inherent authority in this instance, we
cannot say her conduct of appointing a special prosecutor was
violative of a plain legal duty.
43
We need not address what effect an unlawful appointment
would have had because no violation of a plain legal duty
occurred.
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VI. CONCLUSION
¶133 Our lengthy discussion of these three cases can be
distilled into a few simple, but important, points. It is
utterly clear that the special prosecutor has employed theories
of law that do not exist in order to investigate citizens who
were wholly innocent of any wrongdoing. In other words, the
special prosecutor was the instigator of a "perfect storm" of
wrongs that was visited upon the innocent Unnamed Movants and
those who dared to associate with them. It is fortunate,
indeed, for every other citizen of this great State who is
interested in the protection of fundamental liberties that the
special prosecutor chose as his targets innocent citizens who
had both the will and the means to fight the unlimited resources
of an unjust prosecution. Further, these brave individuals
played a crucial role in presenting this court with an
opportunity to re-endorse its commitment to upholding the
fundamental right of each and every citizen to engage in lawful
political activity and to do so free from the fear of the
tyrannical retribution of arbitrary or capricious governmental
prosecution. Let one point be clear: our conclusion today ends
this unconstitutional John Doe investigation.
A.
¶134 In Two Unnamed Petitioners, we hold that the
definition of "political purposes" in Wis. Stat. § 11.01(16) is
unconstitutionally overbroad and vague under the First Amendment
to the United States Constitution and Article I, Section 3 of
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the Wisconsin Constitution because its language "'is so sweeping
that its sanctions may be applied to constitutionally protected
conduct which the state is not permitted to regulate.'"
Janssen, 219 Wis. 2d at 374 (quoting Bachowski, 139 Wis. 2d at
411). However, a readily available limiting construction exists
that we will apply and that will prevent the chilling of
otherwise protected speech; namely, that "political purposes" is
limited to express advocacy and its functional equivalent as
those terms are defined in Buckley and WRTL II. With this
limiting construction in place, Chapter 11 does not proscribe
any of the alleged conduct of any of the Unnamed Movants. The
special prosecutor has not alleged any express advocacy, and
issue advocacy, whether coordinated or not, is "beyond the reach
of [Ch. 11]." Barland II, 751 F.3d at 815. Accordingly, we
invalidate the special prosecutor's theory of the case, and we
grant the relief requested by the Unnamed Movants.
¶135 To be clear, this conclusion ends the John Doe
investigation because the special prosecutor's legal theory is
unsupported in either reason or law. Consequently, the
investigation is closed. Consistent with our decision and the
order entered by Reserve Judge Peterson, we order that the
special prosecutor and the district attorneys involved in this
investigation must cease all activities related to the
investigation, return all property seized in the investigation
from any individual or organization, and permanently destroy all
copies of information and other materials obtained through the
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investigation. All Unnamed Movants are relieved of any duty to
cooperate further with the investigation.
B.
¶136 In Schmitz v. Peterson, we hold that the special
prosecutor has failed to prove that Reserve Judge Peterson
violated a plain legal duty when he quashed the subpoenas and
search warrants and ordered the return of all property seized by
the special prosecutor. In quashing the subpoenas and search
warrants, Reserve Judge Peterson exercised his discretion under
the John Doe statute, Wis. Stat. § 968.26, to determine the
extent of the investigation. Because the purpose of a
supervisory writ does not include review of a judge's
discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory
writ sought by the special prosecutor is denied, and Reserve
Judge Peterson's order is affirmed.
C.
¶137 Finally, in Three Unnamed Petitioners, we hold that
the Unnamed Movants have failed to prove that either Reserve
Judge Kluka or Reserve Judge Peterson violated a plain legal
duty by: (1) accepting an appointment as a reserve judge; (2)
convening a multi-county John Doe proceeding; or (3) appointing
a special prosecutor. Although the circumstances surrounding
the formation of the John Doe investigation raise serious
concerns, and the appointment of the special prosecutor may well
have been improper, such concerns do not satisfy the stringent
standards of a supervisory writ. Put another way, if we were to
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grant the supervisory writ in this case, we would risk
"transform[ing] the writ into an all-purpose alternative to the
appellate review process," which we cannot do. Id.
Accordingly, we deny the supervisory writ and affirm the
decision of the court of appeals.
By the Court.—Declaration of rights; relief granted; John
Doe investigation ordered closed in Two Unnamed Petitioners.
By the Court.—Petition for supervisory writ denied and
order affirmed in Schmitz v. Peterson.
By the Court.—Petition for supervisory writ denied and
decision affirmed in Three Unnamed Petitioners.
¶138 ANN WALSH BRADLEY, J., did not participate.
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¶139 DAVID T. PROSSER, J. (concurring). The court is
confronted with three separate but overlapping cases related to
a John Doe investigation involving [————————————————————————————
————————————————————————————————————————————————————————], and a
substantial number of organizations and individuals who are
associates and political allies of [——————————————].
¶140 This is the second John Doe investigation initiated by
the Milwaukee County District Attorney's Office that has focused
on [——————————————] and [————] political circle. The present
investigation concerns alleged campaign finance violations, but
the scope of the investigation is sufficiently broad that it
amounts to a fishing expedition into the lives, work, and
thoughts of countless citizens.
¶141 For all practical purposes, the court has merged the
two writ cases 1 into the original action 2 and invited the parties
to submit briefs on all issues, even if an issue was not part of
the party's original case.
¶142 The consolidated case presents at least 14 issues.
Collectively they are complex and difficult. They also are
important to the people of Wisconsin. Many of these issues are
addressed in the majority opinion. I write separately to
provide my own analysis and perspective on the following issues:
1
State ex rel. Schmitz v. Peterson, 2014AP417-W through
2014AP421-W; State ex rel. Three Unnamed Petitioners v.
Peterson, 2013AP2504-W through 2013AP2508-W.
2
State ex rel. Two Unnamed Petitioners v. Peterson, No.
2014AP296-OA.
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(1) Issues 4 and 5 related to the appointment of the
special prosecutor.
(2) Issue 14 related to several search warrants. However,
the record in this matter requires discussion of search warrants
and subpoenas beyond the warrants identified in Issue 14.
(3) Issue 6 related to the application of Wis. Stat.
§ 11.26(13m) to contributions in recalls.
(4) Issues relating to several different provisions in
Chapter 11 of the Wisconsin Statutes.
¶143 This concurring opinion discusses issues arising out
of a John Doe investigation that is subject to multiple broad
secrecy orders. Full adherence to these secrecy orders in their
original breadth is impossible because full adherence would mean
that the court could not acknowledge what the John Doe is about
or discuss fully the numerous issues bearing on the scope,
conduct, and propriety of the investigation.
¶144 "Secrecy of John Doe proceedings and the records
thereof is not maintained for its own sake." State v. O'Connor,
77 Wis. 2d 261, 252 N.W.2d 671 (1977). Instead, "[t]he policy
underlying secrecy is directed to promoting the effectiveness of
the investigation. Therefore, any secrecy order 'should be
drawn as narrowly as is reasonably commensurate with its
purposes.'" State ex rel. Unnamed Person No. 1 v. State, 2003
WI 30, ¶61, 260 Wis. 2d 653, 660 N.W.2d 260 (quoting O'Connor,
77 Wis. 2d at 286). In making determinations about the scope of
a secrecy order, "[a] balance must be struck between the
public's right to be informed about the workings of its
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government and the legitimate need to maintain the secrecy of
certain John Doe proceedings." Id., ¶66.
¶145 It is important to protect the targets of a John Doe
investigation when it is determined that they have not committed
a crime. This protection extends to the identity of individual
people as well as the content of their private communications
and other records obtained in the course of the investigation.
Here, there is no similar interest in protecting the actions of
the John Doe judge or the special prosecutor. Because the
majority orders the John Doe investigation "closed," it cannot
be said that the continued secrecy of certain facts in this
matter——the scope and nature of the investigation, search
warrants, and subpoenas, for example——is necessary to protect
the integrity of this or a future John Doe investigation.
Accordingly, I conclude that discussion of these facts is not
inconsistent with the secrecy order.
¶146 Thus, this concurring opinion does not name
individuals or organizations, except the individuals and
organizations who initiated and conducted the John Doe
investigation. State and local government officials who
initiate sweeping criminal investigations of Wisconsin citizens
cannot expect to keep their conduct secret indefinitely, and
appellate courts reviewing state and local government conduct do
not provide the public with the full reasoning for their
decisions if they are unwilling or unable to discuss the facts
essential to these decisions. See majority op., ¶14 n.11, ¶88
n.25.
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¶147 My interpretation of the secrecy order is essential to
the discussion of certain procedural issues and is taken (1)
after discussion with the court, (2) with knowledge that much
information about the investigation has already been disclosed,
and (3) with experience that additional disclosure in the future
is likely.
¶148 In my view, all issues of law in this matter are
subject to de novo review.
¶149 I join Section III of the majority opinion, and I
concur in the result of Section IV. Although I agree with most
of the discussion in Section IV, I would reach the result as a
matter of law.
I
¶150 Scott Walker was elected governor of Wisconsin on
November 2, 2010. He was sworn in as governor on January 3,
2011.
¶151 On February 14, 2011, Governor Walker proposed a
Budget Repair Bill that was intended to deal with the state's
fiscal situation for the remaining months of the 2009-2011
biennium and for the 2011-2013 biennium beginning on July 1,
2011. Legislation to implement the governor's plan was
introduced in both the Senate and Assembly. The proposed
legislation included provisions requiring additional public
employee contributions for health care and pensions. The two
bills also included provisions curtailing collective bargaining
rights for most state and local public employees and making
appropriations.
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¶152 The history of this legislation——which became 2011
Wis. Act 10 (Act 10)——is discussed in State ex rel. Ozanne v.
Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, and
Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851
N.W.2d 337. See also Wis. Educ. Ass'n Council v. Walker, 705
F.3d 640 (7th Cir. 2013).
¶153 Act 10 was highly controversial. Intense opposition
in the legislature included more than 60 consecutive hours of
debate in the Assembly and the departure of all 14 Democratic
senators from the state for nearly a month to deprive the Senate
of a sufficient quorum to pass the original bill. Public
opposition to Act 10 included massive demonstrations at the
Wisconsin State Capitol. The demonstrations were so large that
they garnered national and international attention. There were
many smaller demonstrations throughout Wisconsin.
¶154 After its passage, the Act 10 legislation was
challenged in the Dane County Circuit Court on procedural
grounds to prevent its publication as an act. It was later
challenged again in both federal and state courts in an effort
to invalidate several of its provisions on constitutional
grounds. The main challenge to Act 10 was not resolved by this
court until mid-2014. Madison Teachers, 358 Wis. 2d 1.
¶155 The introduction and passage of Act 10 also led to
efforts (1) to defeat a supreme court justice in April 2011,
producing an exceptionally close election and the first
statewide candidate recount in Wisconsin history; (2) to recall
16 state senators in July and August 2011, nine of whom were
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forced to run for reelection; and (3) to recall the governor,
lieutenant governor, and five state senators in June 2012. Four
of the five senators had to run for reelection.
¶156 Two Republican state senators were defeated in 2011
and one Republican state senator was defeated in 2012. The
latter election shifted control of the state senate to the
Democrats. This was the second time in recent years that a
recall election in Wisconsin shifted control of the state senate
to the Democratic party. 3
¶157 The John Doe investigation under review is ostensibly
about alleged criminal activity by [——————————————], ———————————
———————————], and [——————————] during the multiple recall
elections described above. In an affidavit in support of the
petition for the John Doe proceeding in August 2012, an
investigator in the Milwaukee County District Attorney's office
wrote:
3. The purposes and goals of this John Doe
investigation would be to:
a. Determine the nature and extent of an
agreement or understanding related to the solicitation
by [————————————————————————————————], and [——————————
——————————————————], [————————————————————————————————
——————————————————] in the 2011 and 2012 recall
elections, for contributions to organizations
regulated by Title 26 U.S.C. 501(c)4 contrary to
3
The first Wisconsin legislator to be successfully recalled
was Senator George Petak (R-Racine), who lost a recall election
on June 4, 1996. In 1995 Senator Petak voted for a bill to
authorize financing for a new baseball stadium for the Milwaukee
Brewers. Senator Petak's recall shifted control of the Senate
to the Democratic Party.
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Wisconsin Stats sec. 11.10(4), 11.26, 11.27 and
11.61(1)(b);
b. Determine whether the circumstances
under which the solicitation and use of said campaign
contributions were to circumvent the provisions of
Wisconsin Stats sec. 11.26 and 11.27(1) by individuals
and others identified above, for a criminal purpose in
order to avoid the requirements of Wisconsin Stats.
Sec. 11.06(1) and 11.27(1).
¶158 In fact, however, the Milwaukee County District
Attorney's Office targeted [——————————————] circle for
investigation before [——————————————————————], and it has framed
the present investigation to include alleged campaign finance
violations dating from 2009 through the 2012 recall elections.
¶159 Almost immediately after the introduction of Governor
Walker's Budget Repair Bill, talk of his recall began to
surface. However, because Walker was elected in 2010 and did
not take office until January 3, 2011, he could not be recalled
under the constitution until 2012 "after the first year of the
term for which the incumbent was elected." Wis. Const. art.
XIII, § 12. Consequently, Walker's opponents focused their
attention in the short term on a pending race for the supreme
court and the recall of eight Republican state senators elected
in 2008: Robert Cowles (District 2); Alberta Darling (District
8); Sheila Harsdorf (District 10); Luther Olsen (District 14);
Randy Hopper (District 18); Glenn Grothman (District 20); Mary
Lazich (District 28); and Dan Kapanke (District 32). Formal
recall efforts for these senators began on March 2, 2011.
¶160 Opponents of Governor Walker and the senators who
voted for Act 10 succeeded in obtaining the required signatures
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to force recall elections for Senators Cowles, Darling,
Harsdorf, Olsen, Hopper, and Kapanke. They failed to obtain
sufficient signatures to force recall elections for Senators
Grothman and Lazich.
¶161 Supporters of Governor Walker attempted to recall
eight Democratic state senators, namely, Lena Taylor (District
4); Spencer Coggs (District 6); James Holperin (District 12);
Mark Miller (District 16); Robert Wirch (District 22); Julie
Lassa (District 24); Fred Risser (District 26); and Dave Hansen
(District 30). Their formal efforts began as early as February
22 (District 12). They succeeded in obtaining the required
number of signatures to force recall elections for Senators
Holperin, Wirch, and Hansen. They failed to obtain sufficient
signatures to force recall elections for Senators Taylor, Coggs,
Miller, Lassa, and Risser.
¶162 In the 2011 recall elections, Senators Randy Hopper
and Dan Kapanke were defeated. Senators Cowles, Darling,
Harsdorf, Holperin, Olsen, Wirch, and Hansen were reelected.
¶163 Opponents of Governor Walker sought to recall Walker
and Lieutenant Governor Rebecca Kleefisch and four Republican
state senators, namely, Scott Fitzgerald (District 13); Van
Wanggaard (District 21), Terry Moulton (District 23); and Pam
Galloway (District 29), in 2012. Supporters of Governor Walker
attempted to recall Senator Robert Jauch (District 25).
Insufficient signatures were submitted to recall Senator Jauch.
However, all the Republican targets faced recall elections in
2012, except Senator Galloway, who resigned on March 16, 2012.
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She was replaced by Representative Jerry Petrowski, who ran in
the recall general election.
¶164 The timing of the recall elections in 2011 and 2012
was complicated by multiple different filing dates for recall
petitions and a substantial number of primary elections. Recall
petitions were filed with the Government Accountability Board
(GAB) on April 1, 2011 (Senator Kapanke); April 7, 2011 (Senator
Hopper); April 18, 2011 (Senator Olsen); April 19, 2011 (Senator
Harsdorf); April 21, 2011 (Senators Darling, Holperin, Wirch,
and Hansen); and April 25, 2011 (Senator Cowles).
¶165 Primary elections were held on July 12, 2011, in
Senate Districts 2, 8, 10, 14, 18, and 32. Primary elections
were held on July 19, 2011, in Districts 12 and 22.
¶166 In 2011 the recall general elections were held on July
19, 2011 (District 30); August 9, 2011 (Districts 2, 8, 10, 14,
18, and 32); and August 16, 2011 (Districts 12 and 22).
¶167 In 2012 the primary elections for governor, lieutenant
governor, and the four senate seats in Districts 13, 21, 23, and
29 were held on May 8. The recall general elections were held
on June 5, 2012. Senator Van Wanggaard was defeated. Governor
Walker, Lieutenant Governor Kleefisch, and Senators Fitzgerald
and Moulton were reelected. Representative Petrowski was
elected as a Republican to succeed Senator Galloway.
¶168 The seemingly insignificant factual details of these
multiple elections are important to show the unprecedented,
unscheduled electoral activity in Wisconsin during 2011 and
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2012, and to relate these multiple elections to Wisconsin
campaign finance laws.
II
¶169 Wisconsin statutory law on recalls is contained
primarily in Wis. Stat. § 9.10. This section is intended "to
facilitate the operation of article XIII, section 12, of the
[Wisconsin] [C]onstitution," Wis. Stat. § 9.10(7), which
provides for the recall of "any incumbent elective officer after
the first year of the term for which the incumbent was elected."
Wis. Const. art. XIII, § 12.
¶170 "[A] petition for recall of an officer shall be signed
by electors equal to at least 25% of the vote cast for the
office of governor at the last election within the same district
or territory as that of the officeholder being recalled." Wis.
Stat. § 9.10(1)(b).
¶171 Wisconsin Stat. § 9.10(2) outlines the petition
requirements, including the design of recall petition forms.
Paragraph (2)(d) provides:
No petition may be offered for filing for the
recall of an officer unless the petitioner first files
a registration statement under s. 11.05(1) or (2) with
the filing officer with whom the petition is filed.
The petitioner shall append to the registration a
statement indicating his or her intent to circulate a
recall petition, the name of the officer for whom
recall is sought and, in the case of a petition for
the recall of a city, village, town, town sanitary
district, or school district officer, a statement of a
reason for the recall which is related to the official
responsibilities of the official for whom removal is
sought. . . . The last date that a petition for the
recall of an officer may be offered for filing is 5
p.m. on the 60th day commencing after
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registration. . . . No signature may be counted
unless the date of the signature is within the period
provided in this paragraph.
¶172 Paragraph (2)(d) is significant in several respects.
First, a recall effort cannot formally begin until a
registration statement is filed under Wis. Stat. § 11.05(1) or
(2). However, the organization of a recall campaign may begin
much earlier than the date of registration, and the planners and
organizers are not required to report any activity or
expenditure to launch the campaign except expenditures by
already-registered political committees.
¶173 Second, supporters of a recall campaign have 60 days
after registration to circulate and file their recall petitions.
However, organizers of the Scott Walker recall petition shrewdly
selected Tuesday, November 15, 2011, to register their recall
efforts. Under Wis. Stat. § 990.001(4)(a), which deals with how
time is computed under the Wisconsin Statutes, the first day is
excluded in counting the 60 days. Under Wis. Stat.
§ 990.001(4)(c), if the deadline for filing a document is on a
day when the filing office is closed, the filing "may be done on
the next succeeding day that is not a Sunday or a legal
holiday." The Walker recall petition was due on January 14,
2012. However, January 14 was a Saturday, which meant that the
petition did not have to be filed until Tuesday, January 17,
because January 16 was a legal holiday (Martin Luther King's
birthday). This gave the organizers 64 days to circulate and
file the Walker, Kleefisch, Fitzgerald, Wanggaard, Moulton, and
Galloway recall petitions.
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¶174 Third, Wis. Stat. § 9.10(2)(b) makes plain that no
stated reason is required to recall a state officer, as opposed
to a local official.
¶175 Wisconsin Stat. § 9.10(3)(b) provides that:
Within 10 days after the petition is offered for
filing, the officer against whom the petition is filed
may file a written challenge with the official,
specifying any alleged insufficiency. If a challenge
is filed, the petitioner may file a written rebuttal
to the challenge with the official within 5 days after
the challenge is filed. If a rebuttal is filed, the
officer against whom the petition is filed may file a
reply to any new matter raised in the rebuttal within
2 days after the rebuttal is filed. Within 14 days
after the expiration of the time allowed for filing a
reply to a rebuttal, the official shall file the
certificate or an amended certificate.
¶176 Subsection (3)(b) continues:
Within 31 days after the petition is offered for
filing, the official with whom the petition is offered
for filing shall determine by careful examination
whether the petition on its face is sufficient and so
state in a certificate attached to the petition. If
the official finds that the amended petition is
sufficient, the official shall file the petition and
call a recall election to be held on the Tuesday of
the 6th week commencing after the date of filing of
the petition.
(Emphasis added.)
¶177 Subsection (3)(f) provides that "If a recall primary
is required, the date specified under par. (b) shall be the date
of the recall primary and the recall election shall be held on
the Tuesday of the 4th week commencing after the recall primary
or, if that Tuesday is a legal holiday, on the first day after
that Tuesday which is not a legal holiday."
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¶178 Subsection (3), too, is important in this matter.
First, the statute builds in certain protections for a public
officer against whom a recall petition is filed. Consequently,
no recall primary or recall election may proceed until the
official with whom the petition is filed certifies the recall
and orders a recall election. The review process can be very
time consuming, especially if all available process is utilized.
¶179 In this case, recall elections were certified by the
Government Accountability Board as follows:
2011
Officer Recall Certified
District 2 (Robert Cowles) June 3, 2011
District 8 (Alberta Darling) June 3, 2011
District 10 (Sheila Harsdorf) June 3, 2011
District 12 (Jim Holperin) June 10, 2011
District 14 (Luther Olsen) June 3, 2011
District 18 (Randy Hopper) June 3, 2011
District 22 (Robert Wirch) June 10, 2011
District 30 (Dave Hansen) June 10, 2011
District 32 (Dan Kapanke) June 3, 2011
2012
Officer Recall Certified
Governor Scott Walker March 30, 2012
Lt. Governor Rebecca Kleefisch March 30, 2012
District 13 (Scott Fitzgerald) March 30, 2012
District 21 (Van Wanggaard) March 30, 2012
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District 23 (Terry Moulton) March 30, 2012
District 29 (Pam Galloway) March 30, 2012
¶180 Second, Wis. Stat. § 11.26 sets limits on
contributions, as defined in Wis. Stat. § 11.01(6). However,
subsection (13m) of § 11.26 contains two specific exceptions to
these contribution limits:
Contributions utilized for the following purposes
are not subject to limitation by this section:
(a) For the purpose of payment of legal fees and
other expenses incurred as a result of a recount at an
election.
(b) For the purpose of payment of legal fees and
other expenses incurred in connection with the
circulation, offer to file or filing, or with the
response to the circulation, offer to file or filing,
of a petition to recall an officer prior to the time a
recall primary or election is ordered, or after that
time if incurred in contesting or defending the order.
(Emphasis added.)
¶181 The plain language of Wis. Stat. § 11.26(13m) provides
that there is no limitation on contributions for payments made
for certain purposes from the date a recall campaign is
registered until the date a recall election is ordered. There
also is no limitation on contributions for payment of legal fees
and other expenses incurred as a result of a recount.
¶182 For the nine successful recall petitions in 2011, the
periods of exemption were as follows:
District 2 March 2, 2011—June 3, 2011 = 94 days
District 8 March 2, 2011—June 3, 2011 = 94 days
District 10 March 2, 2011—June 3, 2011 = 94 days
District 12 February 22, 2011—June 10, 2011 = 109 days
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District 14 March 2, 2011—June 3, 2011 = 94 days
District 18 March 2, 2011—June 3, 2011 = 94 days
District 22 February 24, 2011—June 10, 2011 = 107 days
District 30 February 25, 2011—June 10, 2011 = 106 days
District 32 March 2, 2011—June 3, 2011 = 94 days
¶183 For the six successful recall petitions for 2012, the
periods of exemption were as follows:
Governor November 15, 2011—March 30, 2012 = 137 days
Lt. Governor November 15, 2011—March 30, 2012 = 137 days
District 13 November 15, 2011—March 30, 2012 = 137 days
District 21 November 15, 2011—March 30, 2012 = 137 days
District 23 November 15, 2011—March 30, 2012 = 137 days
District 29 November 15, 2011—March 30, 2012 = 137 days
¶184 There were two recounts during the period under
review——the statewide recount of the 2011 supreme court election
and the recount in Senate District 21 in 2012.
¶185 During periods of exemption, individuals and
organizations that are permitted to make contributions to recall
campaigns may make unlimited contributions to support or oppose
a recall effort. If these individuals and organizations are
permitted to support or oppose recall efforts with unlimited
contributions during exempt periods, they are likewise permitted
to seek contributions during these periods and to make
contributions during these periods that will be lawful in
periods that are not exempt under Wis. Stat. § 11.26(13m).
¶186 In 2011 there were 156 exempt days between February 22
and December 31 related to recall elections. In 2012 there were
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90 exempt days between January 1 through March 30 related to
recall elections.
¶187 In sum, irrespective of any First Amendment or due
process limitations on the regulation of campaign finance,
Wisconsin campaign finance statutes were largely inapplicable
during 246 of the days under investigation, by virtue of Wis.
Stat. § 11.26(13m). This figure does not include exempt days
for fundraising and contributions to pay for the 2011 statewide
recount for the supreme court.
III
¶188 On June 5, 2012, Governor Walker won the recall
election with more than 53 percent of the vote. Walker was the
third governor in United States history to be recalled. He was
the first to be reelected.
¶189 Approximately two months later, on August 10, 2012, a
Milwaukee County assistant district attorney, David Robles,
filed a petition for commencement of this John Doe investigation
in Milwaukee County. The petition was filed in Milwaukee County
Circuit Court. The petition sought leave to investigate alleged
campaign finance violations and requested a secrecy order to
cover the investigation in anticipation that documents would be
sought from "[——————————————————————————————————————————————————
———————————————————————————————————————————————————————————————]
personal campaign committee . . . and . . . related
organizations."
¶190 The petition necessitated the appointment of a John
Doe judge. The judge appointed was Barbara Kluka, a prominent
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reserve judge from Kenosha County. Issues related to this
appointment are presently before the court. I am not persuaded
that there are defects in Judge Kluka's appointment.
¶191 On September 5, 2012, Judge Kluka granted the petition
and issued an order for commencement of the John Doe proceeding.
The same day, Judge Kluka granted a secrecy order.
¶192 The next day, the Milwaukee County District Attorney's
Office sought and received search warrants for the private e-
mail accounts of 13 individuals, including [——————————————].
The private e-mail accounts were obtained from [————————————————
————————————————]. The search warrants required the recipient
"electronic communication service providers" to produce
all communications stored in the account[s] including
all incoming and outgoing e-mail; subscriber names,
user names, screen names or other identities
associated with the account[s]; mailing addresses,
residential addresses, business addresses, other e-
mail addresses, telephone numbers or other contact or
identifying information for [these] account[s] (in
electronic or other form); billing records; contact
lists, information about length of service, types of
services or related information; connection logs and
records of user activity, and any information related
to sent and received communications, including any
"chat" or "instant messaging" or related information
for said account[s] . . . .
(Emphasis added.) The time frame for the search warrants was
from April 11, 2009, to July 1, 2012.
¶193 The district attorney's office also obtained either a
search warrant or a subpoena duces tecum for conference call
records from [——————————————————] and for three bank accounts
from a bank. All these search warrants and subpoenas were
subject to a secrecy order.
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¶194 On December 12, 2012, the Milwaukee District
Attorney's Office asked for additional search warrants and
subpoenas for the private e-mail accounts of 11 additional
individuals, as well as additional private accounts for five
previously named individuals, including [————————————]. These
accounts were obtained from [12 electronic communication service
providers]. E-mail accounts were sought from January 1, 2011,
through July 31, 2012. The office also sought bank account
records from [a bank] and conference call records from two
providers. All these search warrants and subpoenas were subject
to a secrecy order.
¶195 On January 18, 2013, Milwaukee County District
Attorney John Chisholm met with then-Attorney General J.B. Van
Hollen to discuss the ongoing investigation. District Attorney
Chisolm sought to determine whether, given the statewide nature
of the investigation, the Attorney General's office wished to
become involved in the investigation. On May 31, 2013, Attorney
General Van Hollen sent District Attorney Chisholm a letter
declining involvement in the investigation. Attorney General
Van Hollen cited, among other things, potential conflicts of
interest [——————————————————————————————————————————————————————
————————————————————————————].
¶196 On June 20, 2013, the Government Accountability Board
met in closed session in Madison to discuss the investigation.
The Board passed two motions [——————————————————————————————————
————————————————————————————————————————————————————————————————
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——————————————————] and one to hire special investigators to
assist with the investigation.
¶197 On July 16, 2013, Francis Schmitz was chosen as a
special investigator for the GAB.
¶198 In July 2013, three more petitions to commence John
Doe proceedings were filed: District Attorney Jane Kohlwey filed
a petition in Columbia County on July 22, District Attorney
Larry Nelson filed a petition in Iowa County on July 25, and
District Attorney Kurt Klomberg filed a petition in Dodge County
on July 26. On August 21, District Attorney Ismael Ozanne filed
a petition in Dane County to commence a John Doe proceeding.
All these petitions included a request that the proceedings be
subject to a secrecy order.
¶199 Also on August 21, 2013, the district attorneys from
the five counties involved (Milwaukee, Columbia, Iowa, Dodge,
and Dane) sent a letter to John Doe Judge Barbara Kluka
requesting the appointment of a special prosecutor to oversee
the entire investigation. The letter recommended Francis
Schmitz. On August 23, Judge Kluka appointed Schmitz to be the
special prosecutor for each of the five John Doe investigations.
¶200 On or about October 1, 2013, Special Prosecutor
Schmitz applied to Judge Kluka for additional subpoenas and
search warrants, supported by lengthy affidavits. The subpoena
applications sought information about 29 businesses and
organizations, including political party organizations, about a
large number of persons who were not candidates, and about all
candidates and campaign committees involved in 2011 and 2012
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recall elections. The application sought subpoenas for at least
21 businesses, organizations, and party organizations to
disclose information about and relationships with all the
enumerated businesses, organizations, and individuals noted
above. The special prosecutor issued more than 30 subpoenas.
¶201 There also were search warrant applications for
residences and/or offices of five individuals. These search
warrants were very broad in nature and covered the time period
from March 1, 2009 to the date the warrants were issued.
¶202 The search warrants and subpoenas authorized on or
about October 1 by Judge Kluka are at issue before the court.
IV
¶203 The first issue for discussion here is the legality of
the appointment of Francis Schmitz as the John Doe special
prosecutor. On August 21, 2013, district attorneys from the
five counties involved in the John Doe investigation sent a
letter to Judge Kluka requesting the appointment of a special
prosecutor to oversee the entire investigation. The letter
recommended the appointment of Francis Schmitz. On August 23,
Judge Kluka appointed Schmitz to be the special prosecutor, at a
rate of $130 per hour, for the John Doe investigation in each of
the five counties.
¶204 Wisconsin Stat. § 978.045, entitled "Special
prosecutors," constitutes most of the statutory authority for
the appointment of special prosecutors. 4 This section, which
4
See also Wis. Stat. §§ 978.03(3), 978.043.
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dates back to 1989, 5 has four subsections. The first two
subsections read, in part, as follows:
(1g) A court on its own motion may appoint a
special prosecutor under sub. (1r) or a district
attorney may request a court to appoint a special
prosecutor under that subsection. Before a court
appoints a special prosecutor on its own motion or at
the request of a district attorney for an appointment
that exceeds 6 hours per case, the court or district
attorney shall request assistance from a district
attorney, deputy district attorney or assistant
district attorney from other prosecutorial units or an
assistant attorney general. A district attorney
requesting the appointment of a special prosecutor, or
a court if the court is appointing a special
prosecutor on its own motion, shall notify the
department of administration, on a form provided by
that department, of the district attorney's or the
court's inability to obtain assistance from another
prosecutorial unit or from an assistant attorney
general.
(1r) Any judge of a court of record, by an order
entered in the record stating the cause for it, may
appoint an attorney as a special prosecutor to
perform, for the time being, or for the trial of the
accused person, the duties of the district attorney.
An attorney appointed under this subsection shall have
all of the powers of the district attorney. The judge
may appoint an attorney as a special prosecutor at the
request of a district attorney to assist the district
attorney in the prosecution of persons charged with a
crime, in grand jury proceedings or John Doe
proceedings under s. 968.26, in proceedings under ch.
980, or in investigations. The judge may appoint an
attorney as a special prosecutor if any of the
following conditions exist:
Wis. Stat. § 978.045(1g)-(1r).
5
1989 Wis. Act 117, § 5.
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¶205 At this point, the subsection lists nine "conditions"
that justify appointment of a special prosecutor:
(a) There is no district attorney for the
county.
(b) The district attorney is absent from the
county.
(c) The district attorney has acted as the
attorney for a party accused in relation to the matter
of which the accused stands charged and for which the
accused is to be tried.
(d) The district attorney is near of kin to the
party to be tried on a criminal charge.
(e) The district attorney is physically unable
to attend to his or her duties or has a mental
incapacity that impairs his or her ability to
substantially perform his or her duties.
(f) The district attorney is serving in the U.S.
armed forces.
(g) The district attorney stands charged with a
crime and the governor has not acted under s. 17.11.
(h) The district attorney determines that a
conflict of interest exists regarding the district
attorney or the district attorney staff.
(i) A judge determines that a complaint received
under s. 968.26(2)(am) relates to the conduct of the
district attorney to whom the judge otherwise would
refer the complaint.
Wis. Stat. § 978.045(1r).
¶206 Section 978.045 is clear. The court appoints special
prosecutors under these two subsections. The court can make an
appointment on its own motion or it can make an appointment upon
the request of a district attorney. When the court appoints on
its own motion, it appoints under the conditions in subsection
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(1r). When the court appoints upon the request of a district
attorney, it appoints "under that subsection," that is, under
the conditions of subsection (1r).
¶207 Section 978.045 spells out prerequisites for
appointments under (1g) and (1r). One of these prerequisites is
for the court or district attorney first to request assistance
from other prosecutors, including "an assistant attorney
general," before appointing a special prosecutor. Because the
Milwaukee County District Attorney made a request for assistance
to the Wisconsin Attorney General, this prerequisite arguably
was satisfied. 6 However, the assumption that the prerequisite
was satisfied is grounded on the proposition that if the
district attorney or court asks the Department of Justice for
assistance, they do not have to ask any other prosecutorial
unit. This may be a tenuous proposition.
¶208 A second prerequisite is found in the nine conditions
of subsection (1r). "The judge may appoint an attorney as a
6
It is not clear to the writer whether a court from one
county is required to make an appointment if a district
attorney, deputy district attorney, or assistant district
attorney from another county, or an assistant attorney general,
responds to a request for assistance from the court or from the
district attorney in the court's home county. Wis. Stat.
§ 978.045(1g). A district attorney may, on his own, appoint an
attorney to serve as a special prosecutor "without state
compensation." Wis. Stat. § 978.045(3)(a). A district attorney
from a large county also may appoint "temporary counsel as may
be authorized by the department of administration." Wis. Stat.
§ 978.03(3). Judicial appointment of a special counsel in these
situations would appear unnecessary but fully authorized if the
appointment is consistent with subsection (1r).
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special prosecutor if any of the following conditions exists."
(Emphasis added.) If none of the enumerated conditions exists,
the judge is not authorized to make an appointment under
subsections (1g) and (1r).
¶209 There are several reasons why one of the nine
conditions must exist in order for the court to make an
appointment. First, the Department of Administration is
required to pay for a special prosecutor who is properly
appointed under these subsections. Wis. Stat. § 978.045(2)(b)
("The department of administration shall pay the compensation
ordered by the court from the appropriation under s.
20.475(1)(d).") (emphasis added). The department does not
appear to have authority to reject payment for a properly
appointed special prosecutor. However, the legislature did
establish conditions for these appointments before requiring the
department of administration to pay.
¶210 Second, if the conditions in subsection (1r) did not
have to be followed, courts could grant requests from district
attorneys for an unlimited number of special prosecutors to
supplement district attorney staffs. 7 In other words, individual
7
According to one study, Wisconsin employed only two-thirds
of the number of prosecutors needed in 2012. See Eric Litke,
Wisconsin Needs 215 More Prosecutors, Study Says, Green Bay
Press-Gazette (Apr. 14, 2013), available at
http://archive.greenbaypressgazette.com/article/20130413/GPG0198
/304130026/Wisconsin-needs-215-more-prosecutors-study-says.
During the 2011-13 budget cycle, 42 of the 71 district attorneys
in the state requested funding for additional positions; none of
the requests was granted. Id.
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judges could effectively disregard the number of positions for
assistant district attorneys set out in statute. Cf. Wis. Stat.
§ 16.505. District attorneys in the state's largest counties
already may appoint "temporary counsel" as authorized by the
department of administration. Wis. Stat. § 978.03(3). Section
978.045 does not permit an alliance between a district attorney
and a judge to override statutory limitations on prosecutor
appointments.
¶211 Third, if the conditions in subsection (1r) did not
have to be followed, courts could appoint special prosecutors on
their own motion for "investigations" of interest to an
individual judge without any involvement by the local district
attorney. This would present a significant separation of powers
issue.
¶212 Fourth, courts could appoint special prosecutors with
"all the powers of the district attorney," without the
accountability of any checks on the special prosecutor's
conduct, except from the appointing court. A special prosecutor
appointed on the court's own motion would not necessarily be
overseen by a district attorney. The special prosecutor could
not be recalled or defeated for reelection, never having been
elected to the special prosecutor position. The special
prosecutor could be appointed by a reserve judge who would never
again face the electorate.
¶213 All these concerns are blunted if the court adheres to
the conditions in subsection (1r). None of these concerns is
addressed when the conditions are disregarded.
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¶214 In State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562,
641 N.W.2d 451, the court of appeals appeared to reach a
different conclusion. The court of appeals noted that Wis.
Stat. § 978.045 "authorizes two distinct ways in which a court
may appoint a special prosecutor." Id., ¶8. The court said:
Carlson directs us to the sentence in the statute that
authorizes the court's appointment of a special
prosecutor when it is at the request of a district
attorney. . . . We agree with Carlson that the part
of the statute that he relies upon for his argument
lists, and arguably restricts, the circumstances in
which a court may appoint a special prosecutor.[4]
However, any restriction, if one exists, is triggered
only when the appointment is made at the request of a
district attorney, not when the appointment is made by
a court on its own motion.
Id. (emphasis added).
¶215 Footnote 4 in the court's opinion reads as follows:
The part of the statute that Carlson relies upon
states: "The judge may appoint an attorney as a
special prosecutor at the request of a district
attorney to assist the district attorney in the
prosecution of persons charged with a crime, in grand
jury or John Doe proceedings or in investigations."
Wis. Stat. § 978.045(1r)[(1999-2000)].
Id., ¶8 n.4. The quoted statutory sentence has been broadened
to include "proceedings under ch. 980." Wis. Stat.
§ 978.045(1r).
¶216 The Carlson court's analysis is correct except for the
language "not when the appointment is made by a court on its own
motion." The court of appeals' interpretation of the "on its
own motion" language is mistaken because it reads out of
subsection (1r) the prerequisite that "[T]he judge may appoint
an attorney as a special prosecutor if any" of the nine
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conditions exists. (Emphasis added.) The court of appeals'
interpretation would provide courts, including reserve judges,
free rein to make special prosecutor appointments. In my view,
such an interpretation contradicts the plain language and the
obvious policy embedded in the statute.
¶217 The statutory history of the section supports this
interpretation. As noted previously, Wis. Stat. § 978.045 was
created by 1989 Wis. Act 117, § 5. The first version of the
section read in part as follows:
(1) If there is no district attorney for the
county, if the district attorney is absent from the
county, has acted as attorney for a party accused in
relation to the matter of which the accused stands
charged and for which he or she is to be tried, is
near of kin to the party to be tried on a criminal
charge, is unable to attend to his or her duties or is
serving in the armed forces of the United States, or
if the district attorney stands charged with a crime
and the governor has not acted under s. 17.11, any
judge of a court of record, by an order entered in the
record stating the cause therefor, may appoint some
suitable attorney to perform, for the time being, or
for the trial of the accused person, the duties of the
district attorney, and the attorney so appointed shall
have all the powers of the district attorney while so
acting.
¶218 This original subsection based judicial appointment of
a special prosecutor on the existence of one or more specified
conditions. The statutory history of § 978.045 shows that this
qualification has been carried forward consistently in each
revision of the statute.
¶219 It should also be noted that the original section
listed six conditions permitting judicial appointment. Since
1989 three more conditions have been added. Why would the
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legislature keep adding new justifications for the appointment
of a special prosecutor if the appointing court could simply
enter an order in the record "stating the cause" for the
appointment? A court must state the cause for an appointment in
its order so that the department of administration is informed
why it must pay for compensation.
¶220 Section 978.045(1g) reads in part: "A district
attorney requesting the appointment of a special prosecutor, or
a court if the court is appointing a special prosecutor on its
own motion, shall notify the department of administration, on a
form provided by that department, of the district attorney's or
the court's inability to obtain assistance from another
prosecutorial unit or from an assistant attorney general."
(Emphasis added.) In fact, the principal form used by courts
when they appoint a special prosecutor is CR-210, developed by
the Wisconsin Court Records Management Committee of the
Wisconsin Supreme Court. See Exhibit 1. The Department of
Administration approves this form.
¶221 Form CR-210 tracks Wis. Stat. § 978.045(1r). At the
bottom, Form CR-210 states: "This form shall not be modified.
It may be supplemented by additional material." (Emphasis
added.)
¶222 Five district attorneys asked Judge Kluka to appoint a
special prosecutor. They asked her to appoint Francis Schmitz.
They explained the reasoning for the appointment of a special
prosecutor. They advised her how to justify the appointment of
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a special prosecutor. They even explained the amount that
Attorney Schmitz would accept as compensation.
¶223 Two days later Judge Kluka made the requested
appointment of Francis Schmitz. The appointment order was
titled "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978."
The order disregarded CR-210 and created a new document
following the analysis in the district attorneys' letter. It
twice cited the letter and even repeated the unusual citation of
State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), and
the mis-citation of State v. Carlson in the letter.
¶224 Judge Kluka's order stated:
I make this appointment in light of the facts and
circumstances set forth in the August 21, 2013 letter
submitted by the District Attorneys for the counties
of Columbia, Dane, Dodge, Iowa and Milwaukee. I make
this appointment under my authority as expressed in
State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641
N.W.2d 562 [sic]. I find that a John Doe run by five
different local prosecutors, each with a partial
responsibility for what is and ought to be one overall
investigation and prosecution, is markedly inefficient
and ineffective. Consequently, I also make this
appointment as part of my inherent authority under
State v. Cummings, 199 Wis. 2d 721, 735, 546
N.W.2d 406, 411 (1996).
¶225 Inasmuch as Judge Kluka appointed a special prosecutor
for each of five counties two days after receiving a joint
letter signed by the district attorney in each of the five
counties, and inasmuch as the judge appointed the very person
the district attorneys recommended to be special prosecutor and
authorized precisely the amount of compensation the district
attorneys said their nominee would accept, and inasmuch as the
judge twice cited the letter of request from the district
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attorneys in her order, followed the letter's legal analysis,
utilized the cases contained in the letter, and even repeated a
mis-citation of a case in the letter, it is simply not possible
to contend that the court was acting on its own motion. Judge
Kluka did not check personally to see whether any other
prosecutorial units could assist in the John Doe. Instead, she
accepted as fact and law everything the district attorneys
presented to her. Thus, even under the half-correct decision in
Carlson, the special prosecutor appointment violated the
appointment statute if it did not satisfy one of the nine
"conditions" in subsection (1r).
¶226 Judge Kluka made a gesture to comply with the statute.
Her order stated: "The Attorney General and the District
Attorneys . . . all note that their individual status as
partisan elected prosecutors gives rise to the potential for the
appearance of impropriety. I find that the Special Prosecutor
will eliminate any appearance of impropriety."
¶227 This "finding" is plainly insufficient. The Milwaukee
County District Attorney's Office had been investigating [——————
————————————] since August 10, 2012, the day it petitioned for
the second John Doe, without concern for the "appearance of
impropriety." It obviously had been investigating [——————————]
even longer in light of the materials presented in the
affidavits supporting the petition for the John Doe and the
search warrants and subpoenas requested in 2012. This is
markedly different from the Department of Justice, which in 2013
[—————————————————————————————————————————————————].
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¶228 In any event, "the appearance of impropriety" is not
the same as "a conflict of interest" as set out in Wis. Stat.
§ 978.045(1r)(h). If this potential "appearance" were deemed a
conflict of interest, the five district attorneys and their
staffs should have withdrawn from the case. They did not.
¶229 Thus, Judge Kluka's order failed to satisfy any of the
nine conditions stated in subsection (1r). That is why the
judge disregarded CR-210 and submitted a different order.
¶230 That also is why the order attempts to sever the
relationship between the district attorneys and the court and to
claim that the judge was acting on her own motion. The problem
is twofold, beyond the implausibility of the claim. A court
acting on its own motion also must satisfy one or more of the
conditions in subsection (1r) if the judge is acting under Wis.
Stat. § 978.045. The court simply cannot read out these
conditions of the statute. Moreover, the statute itself links
district attorneys and the court's appointment of special
prosecutors for John Does. See also Wis. Stat. § 968.26.
¶231 The judge's second gambit to support the appointment
of the special prosecutor was to invoke "inherent authority"
under Cummings, 199 Wis. 2d at 735. This theory is completely
at odds with the title of the order: "APPOINTMENT OF SPECIAL
PROSECUTOR UNDER CHAPTER 978." Appointments made under the
"inherent authority" of the court, if such authority exists in
this matter, do not require payment by the Department of
Administration because they are not made in conformity with
Chapter 978.
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¶232 In my view, the Cummings case does not recognize
"inherent authority" to appoint a special prosecutor, especially
in a John Doe matter. In Cummings, the court stated the
relevant issues as follows: "(1) does a John Doe judge have the
power to issue a search warrant; (2) does a John Doe judge have
the power to seal a search warrant . . . ." Cummings, 199
Wis. 2d at 729. The court then observed:
Next, defendant asserts that a John Doe judge
does not have the authority to seal a search warrant.
It is true that there is no statutory authority in
Wisconsin granting judges this ability. However, a
John Doe judge has been granted jurisdiction, the
legal right to exercise its authority, pursuant to
Wis. Stat. § [968.26]. A grant of jurisdiction by its
very nature includes those powers necessary to fulfill
the jurisdictional mandate.
Id. at 735-36. "The ability to seal a search warrant is exactly
that type of power which a John Doe judge needs to fulfill the
above jurisdictional mandate." Id. at 736-37.
¶233 The same cannot be said about the "inherent authority"
to appoint a special prosecutor for a John Doe proceeding.
¶234 Judicial power to appoint a John Doe special
prosecutor is governed by statute, in the same way that John Doe
proceedings themselves have always been governed by statute.
State v. Washington, 83 Wis. 2d 808, 819, 266 N.W.2d 597 (1978).
¶235 One statute, Wis. Stat. § 978.045, has already been
discussed. It sets conditions for the appointment of a special
prosecutor paid for by the state, and those conditions have not
been satisfied here.
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¶236 The other statute is the John Doe statute, Wis. Stat.
§ 968.26. This statute reads in part:
(1) If a district attorney requests a judge to
convene a proceeding to determine whether a crime has
been committed in the court's jurisdiction, the judge
shall convene a proceeding described under sub. (3)
and shall subpoena and examine any witnesses the
district attorney identifies.
. . . .
(am) . . . [I]f a person who is not a district
attorney complains to a judge that he or she has
reason to believe that a crime has been committed
within the judge's jurisdiction, the judge shall refer
the complaint to the district attorney . . . .
(b) . . . [T]he district attorney [then] shall,
within 90 days of receiving the referral, issue
charges or refuse to issue charges. If the district
attorney refuses to issue charges . . . [t]he judge
shall convene a proceeding . . . if he or she
determines that a proceeding is necessary to determine
if a crime has been committed. . . .
(c) In [such] a proceeding . . . the judge shall
subpoena and examine under oath the complainant and
any witnesses that the judge determines to be
necessary and appropriate to ascertain whether a crime
has been committed and by whom committed. The judge
shall consider the credibility of testimony in support
of and opposed to the person's complaint.
(d) . . . [T]he judge may issue a criminal
complaint if the judge finds sufficient credible
evidence to warrant a prosecution of the
complaint. . . .
¶237 This statute suggests that a judge has authority to
proceed with a John Doe and, perhaps eventually, appoint a
special prosecutor (but not under Chapter 978) if "the district
attorney refuses to issue charges . . . ." Whatever the statute
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implies, it is inapplicable in this case because of the
proactive involvement of the district attorneys.
¶238 The Cummings case notes that "a John Doe judge does
not have the statutory powers of a court. . . . This
conclusion is indubitably correct. . . . [A] John Doe
judge . . . enjoys those powers conferred to all judges by
statute." Cummings, 199 Wis. 2d at 738.
¶239 Judicial power to appoint a special prosecutor is
governed by statute. If "inherent authority" were permitted to
trump the applicable statutes governing John Doe appointments,
the restrictions in these statutes would be rendered
meaningless. This court cannot permit that to happen. Cf.
State v. Henley, 2010 WI 97, ¶76, 328 Wis. 2d 544, 787
N.W.2d 350. Judge Kluka's appointment of the special prosecutor
was invalid.
V
¶240 The second issue for discussion is the validity of the
search warrants and subpoenas sought by the special prosecutor
on or about October 1, 2013. As noted above, the John Doe judge
approved extremely broad search warrants for five individuals
and at least 31 very broad subpoenas.
¶241 Motions to quash some of the subpoenas were filed on
October 17 and October 25, 2013. On October 29, Judge Kluka
recused herself from the entire proceeding, citing an
unspecified conflict. Thereafter, the John Doe was reassigned
to Reserve Judge Gregory Peterson of Eau Claire, who previously
served as a member of the Wisconsin Court of Appeals.
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¶242 Following various writ applications in the court of
appeals and petitions in two circuit courts, the new John Doe
judge granted the motions to quash the subpoenas and to return
property seized under the search warrants. The judge's decision
was issued on January 10, 2014. This court must determine
whether Judge Peterson's decision should be affirmed or
reversed.
¶243 Judge Peterson's decision is grounded in his
interpretation of Wisconsin election law as affected by the
First Amendment. He noted specifically that the "subpoenas
reach into the areas of First Amendment freedom of speech and
freedom of association. As a result, I must apply a standard of
exacting scrutiny and, in interpreting statutes, give the
benefit of any doubt to protecting speech and association."
¶244 The judge wrote:
I am granting the motions to quash and ordering
return of any property seized as a result of the
subpoenas. I conclude the subpoenas do not show
probable cause that the moving parties committed any
violations of the campaign finance laws. I am
persuaded the statutes only prohibit coordination by
candidates and independent organizations for a
political purpose, and political purpose, with one
minor exception not relevant here . . . requires
express advocacy. There is no evidence of express
advocacy.
¶245 Judge Peterson then wrote that "The subpoenaed parties
raise other issues in their briefs, some quite compellingly.
However, given the above decision, it is not necessary to
address those issues." This writing will address some of the
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issues related to the search warrants and subpoenas as Judge
Peterson's decision can be affirmed on additional grounds.
¶246 The Fourth Amendment to the United States Constitution
reads as follows:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
The equivalent provision in the Wisconsin Constitution is found
in Article I, Section 11. 8
¶247 These constitutional provisions are implemented in
Wisconsin by several statutes, including Wis. Stat. §§ 968.12
(Search warrant), 968.13 (Search warrant: property subject to
seizure), 968.14 (Use of force), 968.15 (Search warrants; when
executable), 968.16 (Detention and Search of persons on
premises), 968.17 (Return of search warrant), 968.18 (Receipt
for seized property), 968.19 (Custody of property seized),
968.20 (Return of property seized), 968.205 (Preservation of
certain evidence), 968.23 (Forms), 968.27 (Definitions), 968.28
(Application for court order to intercept communications),
968.29 (Authorization for disclosure and use of intercepted
wire, electronic or oral communications), 968.30 (Procedure for
interception of wire, electronic or oral communications), and
8
The Supreme Court has incorporated the Fourth Amendment
into the Fourteenth Amendment so that it applies to the states.
See Ker v. California, 374 U.S. 23, 33 (1963).
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968.375 (Subpoenas and warrants for records or communications of
customers of an electronic communication service or remote
computing service provider). Nestled among these search warrant
statutes is Wis. Stat. § 968.135, which deals with "Subpoena for
documents."
¶248 Judicial interpretation of the Fourth Amendment can
narrow application of the Wisconsin search warrant statutes.
The statutes, in turn, may provide limitations on warrants that
are not required by the Fourth Amendment.
¶249 Questions about the search warrants and subpoenas
arise here in the context of a John Doe proceeding. The nature
of such a proceeding must be understood.
¶250 The John Doe statute, as amended in 2009, 2009 Wis.
Act 24, reads in part as follows:
(1) If a district attorney requests a judge to
convene a proceeding to determine whether a crime has
been committed in the court's jurisdiction, the judge
shall convene a proceeding described under sub. (3)
and shall subpoena and examine any witnesses the
district attorney identifies.
. . . .
(3) The extent to which a judge may proceed in
an examination under sub. (1) or (2) is within the
judge's discretion. The examination may be adjourned
and may be secret. . . .
Wis. 2d 968.26(1), (3).
¶251 In Cummings, this court held that "a John Doe judge
may issue and seal a search warrant under appropriate
circumstances." Cummings, 199 Wis. 2d at 730. The court added:
"The John Doe statute need not specifically mention the issuance
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of search warrants for a John Doe judge to have such power."
Id. at 734-35. The court said:
[S]tatutes should be interpreted in a manner which
supports their underlying purpose. This court has
repeatedly held that the John Doe proceeding was
designed as an investigatory tool to be used as an
"inquest for the discovery of crime." Washington, 83
Wis. 2d at 822. Denying John Doe judges the ability
to issue search warrants would seriously reduce the
investigatory power of the John Doe proceeding.
Id. at 735 (citations omitted).
¶252 The fact that a John Doe judge may issue search
warrants and subpoenas for documents does not mean that the
Fourth Amendment has no application in a John Doe proceeding.
On the contrary, special vigilance on the part of a John Doe
judge may be required.
¶253 The documents initiating a John Doe investigation
"need not name a particular accused; nor need it set forth facts
sufficient to show that a crime has probably been committed.
The John Doe is, at its inception, not so much a procedure for
the determination of probable cause as it is an inquest for the
discovery of crime . . . ." Washington, 83 Wis. 2d at 822.
Because the threshold for commencing a John Doe investigation is
relatively low, a John Doe judge is responsible for limiting its
scope to prevent the investigation from getting out of hand.
This is why "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." Id. Likewise,
a district attorney's use of a John Doe is limited.
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¶254 This limitation on the scope of the John Doe is
particularly relevant to the scope of search warrants and
subpoenas. In Custodian of Records v. State, 2004 WI 65, ¶34,
272 Wis. 2d 208, 680 N.W.2d 792, a John Doe case, this court
observed:
[D]oes the issuance of a subpoena in a John Doe
proceeding, the sole purpose of such proceeding being
to investigate alleged criminal activity, have the
potential to affect Fourth Amendment rights? The
issue of whether the subpoena is overbroad and
oppressive, and thus unreasonable, was raised by [the
head of the Legislative Technology Services Bureau
(LTSB)]. This is a Fourth Amendment concern. Hale v.
Henkel, 201 U.S. 43, 71 (1906) (noting that a subpoena
duces tecum may implicate Fourth Amendment rights).
¶255 The court ultimately concluded, following the two-step
test set out in Katz v. United States, 389 U.S. 347 (1967), that
there was a reasonable expectation of privacy in the data stored
on backup tapes in the LTSB and thus the subpoena was overbroad.
Id., ¶43. The court added:
When we examine whether the Fourth Amendment was
violated, we determine whether the government
intrusion was reasonable. Overly broad subpoenas
typically are held unreasonable in that their lack of
specificity allows the government to go on an
indiscriminate fishing expedition, similar to that
provided by a general warrant. Marron v. United
States, 275 U.S. 192, 196 (1927); Boyd [v. United
States, 116 U.S. 616, 625-26 (1886)]. As the United
States Supreme Court has explained, a subpoena is
"equally [as] indefensible as a search warrant would
be if couched in similar [general] terms. Hale, 201
U.S. at 77.
Custodian of Records, 272 Wis. 2d 208, ¶50.
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¶256 This case involves multiple unnamed parties but it
also involves many, many additional organizations and
individuals. One unnamed party writes of its subpoena:
The scope of the subpoenas required——explicitly,
implicitly, or in effect——all material of any kind
that related in any way to the identified elections
and to the identified individuals or entities. Other
than naming organizations and individuals, there was
no attempt to limit or to filter the material
subpoenaed or to distinguish between potentially
regulated speech and unregulated speech.
¶257 Another unnamed party declared in its brief:
At no point does the subpoena seek to differentiate
materials and documents which relate to the subject of
the John Doe, to wit: the recall elections of 2011 and
2012, from other activities in which the movants were
engaged during that period. The broad sweeping
request demands production of all the specific items
in the possession of the movant organizations and
their representatives.
¶258 The subpoenas issued on or about October 1, 2013, are
actually narrower than the search warrants issued in 2012, as
described in the quoted material in ¶192 above.
¶259 To illustrate the breadth of the search warrants and
subpoenas, the special prosecutor now has possession of every
private e-mail sent by [———————————] or received by [——————————]
between April 11, 2009, and July 31, 2012, together with other
information demanded from certain internet service providers.
The special prosecutor has [————————————] private e-mails for
more than 20 months [——————————————————————————————————————————]
and 19 months [——————————————————————————————————]——as a result
of this John Doe investigation. This does not include
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information prosecutors obtained from government e-mail accounts
that are alluded to in the record.
¶260 The substance of the captured e-mails inevitably
includes communications with family members and personal
friends, public officials and members of [————————] staff, party
leaders and political strategists, fundraisers, contributors,
and other allies, lawyers, health care providers, and other
professional acquaintances. It is inconceivable that a public
official [————————] would not subjectively expect a reasonable
degree of privacy in his private e-mail accounts. 9
¶261 The issue before us involves much more than [—————————
—————] and the many other individuals and organizations directly
affected by the search warrants and subpoenas. The issue before
us is central to our time. How much information about our
people is government entitled to obtain——without people's
consent and perhaps without their knowledge?
¶262 The precedent set by this case has the potential to
affect the privacy rights of millions of Wisconsin citizens.
"Among online adults, 92% use email, with 61% using it on an
average day." 10 Cell phones and smart phones are, of course,
9
Cf. United States v. Warshak, 631 F.3d 266, 288 (6th Cir.
2010) ("[A] subscriber enjoys a reasonable expectation of
privacy in the contents of emails 'that are stored with, or sent
or received through, a commercial ISP.'") (citation omitted).
10
See Kristen Purcell, Search and Email Still Top the List
of Most Popular Online Activities, Pew Research Center Internet
Project (Aug. 9, 2011),
http://www.pewinternet.org/2011/08/09/search-and-email-still-
top-the-list-of-most-popular-online-activities.
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ubiquitous in our society, but countless numbers of people
communicate by e-mail and texting. The ability of government to
capture——without notice——the substance of our non-aural
communications is not dissimilar to government wiretaps that
record the substance of telephone conversations. The only
difference is that wiretaps disclose the content of telephone
conversations in real time. 11
¶263 Concerns about privacy are especially critical when
people engage in aspects of speech and association during
political campaigns, "an area of the most fundamental First
Amendment activities." Buckley v. Valeo, 424 U.S. 1, 14 (1976).
The Supreme Court provided guidance in Zurcher v. Stanford
Daily, 436 U.S. 547, 564 (1978), when it said:
[I]n issuing warrants and determining the
reasonableness of a search, state and federal
magistrates should be aware that "unrestricted power
of search and seizure could also be an instrument for
stifling liberty of expression." Marcus v. Search
Warrant, 367 U.S. 717, 729 (1961). Where the
materials sought to be seized may be protected by the
First Amendment, the requirements of the Fourth
Amendment must be applied with "scrupulous
exactitude." Stanford v. Texas, 379 U.S. [476, 485
11
Wisconsin Stat. § 968.28 limits the interception of
electronic communications without a court order under Wis. Stat.
§ 968.30. Court orders for interception may be obtained only
for specified offenses ranging from homicide, felony murder, and
kidnapping to soliciting a child for prostitution, Wis. Stat.
§ 968.28, and such orders may not exceed 30 days in duration
without specific judicial extension. Wis. Stat. § 968.30(5).
These statutory limitations and protections for interception do
not appear to apply when search warrants are issued for past
electronic communications that must be retrieved from electronic
storage.
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(1965)]. A seizure reasonable as to one type of
material in one setting may be unreasonable in a
different setting or with respect to another kind of
material." Roaden v. Kentucky, 413 U.S. 496, 501
(1973). Hence, in Stanford v. Texas, the Court
invalidated a warrant authorizing the search of a
private home for all books, records, and other
materials relating to the Communist Party, on the
ground that whether or not the warrant would have been
sufficient in other contexts, it authorized the
searchers to rummage among and make judgments about
books and papers and was the functional equivalent of
a general warrant, one of the principal targets of the
Fourth Amendment. Where presumptively protected
materials are sought to be seized, the warrant
requirement should be administered to leave as little
as possible to the discretion or whim of the officer
in the field.
¶264 The violation of Fourth Amendment rights requires
special attention when it has a chilling effect on First
Amendment freedoms. Cf. NAACP v. Alabama, 357 U.S. 449 (1958).
¶265 The search warrants and subpoenas in this case are so
broad and so extensive that they make the fruits of the
legendary Watergate break-in look insignificant by comparison. 12
After all, the special prosecutor has access to thousands and
12
On Memorial Day weekend in 1972, an intelligence
gathering team from Richard Nixon's Committee to ReElect the
President broke into the Democratic National Committee's (DNC)
headquarters at the Watergate complex in Washington, D.C. The
operatives wiretapped the telephones of the chairman of the DNC
and the executive director of the Association of State
Democratic Chairmen. A member of the team also photographed
certain documents. One phone tap did not work and the other
yielded little information. When the burglars returned for a
second visit, they were apprehended. Cf. Keith W. Olsen,
Watergate: The Presidential Scandal That Shook America (2003).
President Nixon was forced to resign, in part for attempting to
cover up a burglary to gain political intelligence that he did
not personally authorize.
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thousands of electronic communications about the 2010 election,
Act 10, the 2011-13 state budget, other legislation, all the
recall elections and the strategies and fundraising efforts
employed in them, [——————————], litigation, and the then-
upcoming 2012 general election. As the substance of this John
Doe leaks out, as it already has, the search warrants and
subpoenas have an eerie similarity to SLAPP suits in a civil
context. 13 SLAPP suits have the effect, whether intended or not,
to cost defendants tremendous amounts of money, to extract
privileged information from them, and to cause the defendants
and others to withdraw from the political process out of fear of
harassment.
¶266 The special prosecutor insists that he had probable
cause for all his investigative efforts. This is sharply
disputed. In any event, probable cause for a search warrant may
be wholly devoid of probable cause that the recipient of the
search warrant or subpoena or even the subject of the search
warrant or subpoena has committed any crime. Rather, the
supposed probable cause is that evidence that will aid in the
conviction of some crime will be found in the place to be
searched, particularly if the items to be seized include
13
"SLAPP is an acronym for Strategic Lawsuit Against Public
Participation. Vultaggio v. Yasko, 215 Wis. 2d 326, 359, 572
N.W.2d 450 (1998) (Bradley, J., dissenting); Briggs v. Eden
Council, 969 P.2d 564, 565 n.1 (Cal. 1999)." Lassa v. Rongstad,
2006 WI 105, ¶108 n.1, 294 Wis. 2d 187, 718 N.W.2d 673 (Prosser,
J., dissenting). See also id., ¶161 n.10.
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everything found at that place——here, the e-mail accounts of
people who have been targeted.
¶267 This sort of probable cause must be weighed against
the privacy being invaded by the search warrants and subpoenas.
The special prosecutor has not been targeting terrorists or
mobsters who impose an imminent danger to society. Covering up
the breathtaking extent of the John Doe investigation through
secrecy orders is highly problematic and cannot last. 14
¶268 I conclude the following:
1. The search warrants and subpoenas issued on or
about October 1, 2013, are invalid because they were presented
by a special prosecutor who had none of the powers of a district
attorney because his appointment was invalid.
2. The search warrants and subpoenas issued on or
about October 1, 2013, were unconstitutionally overbroad because
they covered a time period before recall elections were even
contemplated, thereby exceeding the subject matter of the
14
The precise scope of a permissible secrecy order
will . . . vary from proceeding to proceeding.
However, as we observed in [State v. O'Connor, 77
Wis. 2d 261, 252 N.W.2d 671 (1977)], "[s]ecrecy of
John Doe proceedings and the records thereof is not
maintained for its own sake." Id. at 283. The policy
underlying secrecy is directed to promoting the
effectiveness of the investigation. Id. at 286.
Therefore, any secrecy order "should be drawn as
narrowly as is reasonably commensurate with its
purposes."
State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶61,
260 Wis. 2d 653, 688-89, 660 N.W.2d 260.
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investigation; included all periods of exemption within the time
period——246 days——thereby permitting secret investigation of
lawful First Amendment activities; lacked the level of
particularity required as to those things that might lawfully be
seized; and improperly invaded the privacy of persons who were
not suspects by seeking information virtually without
limitation.
3. The search warrants and subpoenas issued in
September and December 2012 were unconstitutionally overbroad,
for the reasons stated in point 2, but especially because they
dated back more than 21 months before recalls were contemplated,
a period unrelated to the recall elections in 2011 and 2012, the
purported subject of the John Doe.
¶269 Consequently, I would affirm the decision of Judge
Peterson to quash the subpoenas and return seized property and
expand his ruling to cover the search warrants and subpoenas
issued in September and December of 2012.
VI
¶270 Chapter 11 of the Wisconsin Statutes is the source of
most Wisconsin statutory law on the regulation of campaign
finance. Much of the chapter was created in 1974, Chapter 334,
Laws of 1973, in the wake of the Watergate scandal. Various
provisions have been revised over the years, but the 2011-12
version of the statutes contains a number of provisions that are
suspect or unconstitutional. These will be discussed below.
A
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¶271 Section 11.01 sets out the definitions used in Chapter
11. Subsection (16) defines "political purpose," which Judge
Peterson and the majority opinion deem critical to the
interpretation and enforcement of the chapter.
¶272 Section 11.01(16) reads in part as follows:
(16) An act is for "political purposes" when it
is done for the purpose of influencing the election or
nomination for election of any individual to state or
local office, for the purpose of influencing the
recall from or retention in office of an individual
holding a state or local office, . . . or for the
purpose of influencing a particular vote at a
referendum. In the case of a candidate, or a committee
or group which is organized primarily for the purpose
of influencing the election or nomination for election
of any individual to state or local office, for the
purpose of influencing the recall from or retention in
office of an individual holding a state or local
office, or for the purpose of influencing a particular
vote at a referendum, all administrative and overhead
expenses for the maintenance of an office or staff
which are used principally for any such purpose are
deemed to be for a political purpose.
(a) Acts which are for "political purposes"
include but are not limited to:
1. The making of a communication which expressly
advocates the election, defeat, recall or retention of
a clearly identified candidate or a particular vote at
a referendum.
2. The conduct of or attempting to influence an
endorsement or nomination to be made at a convention
of political party members or supporters concerning,
in whole or in part, any campaign for state or local
office.
(b) A "political purpose" does not include
expenditures made for the purpose of supporting or
defending a person who is being investigated for,
charged with or convicted of a criminal violation of
state or federal law, or an agent or dependent of such
a person.
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¶273 "Political purpose" is a very imprecise term,
especially when it is defined by phrases such as "influencing
the recall from or retention in office of an individual."
(Emphasis added.) What does "influencing" mean?
¶274 Paragraph (a) provides that "Acts which are for
'political purposes' include but are not limited to: 1. The
making of a communication which expressly advocates the
election, defeat, recall or retention of a clearly identified
candidate . . . ." (Emphasis added.) Plainly, the statute
seeks to reach "acts" beyond express advocacy that "influence"
elections. Consequently, there are no bright lines in the
subsection, as drafted, leaving it so vague that it has the
potential of chilling constitutionally permissible activity that
permits no regulation.
¶275 The definition of "political purpose" has been
controversial for years. The original definition, dating back
to 1974, read, in part: "an act is for 'political purposes'
when, by its nature, intent or manner it directly or indirectly
influences or tends to influence voting at any election."
¶276 Attorney General Bronson La Follette was asked to
address this definition in an opinion. The Attorney General
wrote:
This section . . . evidences a legislative intent
to restrict and regulate a broad scope of political
activity, including that which may not be directly
related to the electoral process. This sweeping
effort to regulate First Amendment activity, in light
of Buckley, may be constitutionally overbroad unless
subject to narrow interpretation and application.
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. . . .
The Court adopted the standard of "express advocacy"
of the election or defeat of a particular candidate as
an acceptably narrow definition of activity subject to
regulation.
. . . .
I am of the opinion that the "express" advocacy
standard should be applied by the [State Elections]
Board to all phases of political activity regulated
under ch. 11.
65 Wis. Op. Att'y Gen. 145, 151-52 (1976).
¶277 The Elections Board ran into trouble in 1999 in
Elections Board v. Wisconsin Manufacturers & Commerce, 227
Wis. 2d 650, 597 N.W.2d 721 (1999), in a dispute about express
advocacy. The issue appeared again in Wisconsin Prosperity
Network v. Myse, 2012 WI 27, 339 Wis. 2d 243, 810 N.W.2d 356.
¶278 When the government enacts criminal penalties to
regulate First Amendment activities that do not constitute
express advocacy, it is standing on perilous ground.
B
¶279 The affidavit supporting the commencement of the John
Doe twice cited Wis. Stat. § 11.26, which is the statute
entitled "Limitations on contributions." This statute limits
individual contributions to the campaign committee of a
candidate for governor or lieutenant governor to $10,000,
§ 11.26(1)(a), and $1,000 to the committee of a candidate for
state senator, § 11.26(1)(b). The statute limits contributions
from a committee other than a political party or legislative
campaign committee to the committee of a candidate for governor
to 4% of the value of the disbursement level in the schedule
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under Wis. Stat. § 11.31. Wis. Stat. § 11.26(2)(a). This now
amounts to $43,128. Wis. Stat. § 11.31(1)(a). However, a
committee other than a party committee may contribute only
$1,000 to the committee of a candidate for state senator. Wis.
Stat. § 11.26(2)(b).
¶280 The individual contribution limits in the statute for
candidates for governor, lieutenant governor, and state senator
were exactly the same in 2011-2012 as they were in 1975. See
Wis. Stat. § 11.26(1)(a) and (b) (1975-76). If the limits on
individual contributions to the committees of these candidates
had kept pace with the buying power of our currency, the
contribution limits at the start of 2011 would have had to be
4.42 times higher——i.e., $44,201.67 for governor. Over the
years the limit on contributions from a committee to the
committee of a candidate for state senator increased from $500
in 1975 to $1,000 in 2011, provided the candidate in 1975 had no
primary. Wis. Stat. §§ 11.26(2)(b) and 11.31(1)(e). If the
1975 candidate had a primary, the maximum committee contribution
for the election was $800.
¶281 Individual contribution limits have been consistently
upheld beginning with Buckley, 424 U.S. at 23-35. Buckley
acknowledged, however, that given "the important role of
contributions in financing political campaigns, contribution
restrictions could have a severe impact on political dialogue if
the limitations prevent candidates and political committees from
amassing resources necessary for effective advocacy." Id. at
21. Inasmuch as static contribution limits render contributions
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today worth only 25 percent of their value 35 years ago, many
candidates are forced to look for support from expenditures
outside their own committees.
C
¶282 Subsection (9) of Wis. Stat. § 11.26 is critically
important in relation to the contribution limits. It provides:
(9)(a) No individual who is a candidate for state
or local office may receive and accept more than 65
percent of the value of the total disbursement level
determined under s. 11.31 for the office for which he
or she is a candidate during any primary and election
campaign combined from all committees subject to a
filing requirement, including political party and
legislative campaign committees.
(b) No individual who is a candidate for state or
local office may receive and accept more than 45
percent of the value of the total disbursement level
determined under s. 11.31 for the office for which he
or she is a candidate during any primary and election
campaign combined from all committees other than
political party and legislative campaign committees
subject to a filing requirement.
¶283 The practical effect of subsection (9) is that all
political party committees may contribute no more than $700,830
directly to the campaign committee of a candidate for governor,
nor more than $22,425 directly to the committee of a candidate
for state senator, except for exempt contributions under Wis.
Stat. § 11.26(13m). However, in all actual elections, including
recall elections, every dollar received from a non-party
committee reduces the amount that the candidate may receive from
a party committee.
¶284 Political action committees collectively may
contribute no more to a candidate for governor than 45 percent
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of the schedule in Wis. Stat. § 11.31, namely, $486,090, or to a
candidate for state senator, no more than $15,525, except for
exempt contributions under Wis. Stat. § 11.26(13m). The effect
of this law is obvious. Political party committees singularly
or collectively and political action committees collectively are
never permitted——at the same time——to give the maximum
contributions allowed by law for regular election expenses. In
fact, some political action committees may be precluded
altogether from making a direct contribution to the committee of
a candidate for governor or a candidate for state senator.
¶285 To illustrate, all non-party committees may contribute
only $15,525 to a state senate candidate. Thus, only 15
political action committees may make the maximum contribution of
$1,000 to the committee of a candidate for state senator. The
sixteenth committee is limited to $525. The seventeenth
committee and all other such committees cannot contribute at
all. The contributions of these non-party committees must be
reduced if party committees give more than $6,900.
¶286 Subsection (9) was challenged in the Wisconsin Supreme
Court in Gard v. Wisconsin State Elections Board, 156
Wis. 2d 28, 456 N.W.2d 809 (1990). John Gard, running in a 1987
special election to fill a vacancy in the Assembly, won a hotly
contested primary and a close general election. In the process,
he received $7,607.32 more from political party committees than
the total $11,213 from all committees permitted by subsection
(9). He was prosecuted by the state elections board. The
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petitioners argued that Wis. Stat. § 11.26(9)(a) was
unconstitutional on several grounds.
First, [petitioners] claim that the aggregate limit on
the amount of money committees may contribute to a
candidate's campaign violates committee members' first
amendment rights to political expression because it
completely bars some committees from making even a
symbolic expression of support evidenced by a
contribution once the aggregate limit has been
reached. Second, they argue that the aggregate limit
on committee contributions is, in effect, a limit on
the candidate's ability to spend, which impermissibly
burdens a candidate's freedom of speech guaranteed by
the first amendment under Buckley v. Valeo, 424 U.S.
1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Third, they
assert that the statute impermissibly burdens freedom
of association also guaranteed by the first amendment
by encouraging individuals to disassociate themselves
from committees. Fourth, petitioners argue that the
statute imposes a greater burden on the first
amendment rights of committees than it does on the
first amendment rights of individuals in violation of
the equal protection clauses of the United States and
Wisconsin Constitutions. Petitioners also assert that
the statute imposes a greater burden on the first
amendment rights of committees who contribute "late"
in a campaign than on committees who contribute
"early" in a campaign in violation of equal protection
guarantees.
Id. at 36.
¶287 This court upheld subsection (9) of the 1974 statute,
holding that the state had a compelling interest, namely, to
prevent corruption or the appearance of corruption, and that the
provision was narrowly tailored to accomplish this objective.
¶288 The effect of the Gard decision has been to weaken
political parties and to encourage non-party committees to
engage in issue advocacy spending on campaigns, instead of
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making direct, reportable contributions to candidates. This
dynamic has been recognized for decades.
¶289 More recently, however, subsection (9) has come under
significant scrutiny. In September 2014, United States District
Judge Rudolph Randa entered an order enjoining the GAB from
enforcing subsection (9). CRG Network v. Barland, 48 F. Supp.
3d 1191 (E.D. Wis. Sept. 5, 2014). Judge Randa noted that the
Supreme Court has demonstrated "increasing impatience" with the
type of "'prophylaxis-upon-prophylaxis' approach" created by
statutes such as Wis. Stat. § 11.26(9), and that the other
provisions in place to prohibit unlawful circumvention of the
base contribution limit rendered subsection (9) unnecessary and
unconstitutional. Id. at 1195-96. Following the issuance of
Judge Randa's order, the GAB issued a press release stating it
would not seek enforcement of subsection (9). Mike B.
Wittenwyler & Jodi E. Jensen, Decoding the Maze: Wisconsin's
Campaign Finance Laws, 87 Wis. Law. 22, 25 (Oct. 2014).
D
¶290 Subsection (4) of § 11.26 reads:
No individual may make any contribution or
contributions to all candidates for state and local
offices and to any individuals who or committees which
are subject to a registration requirement under s.
11.05, including legislative campaign committees and
committees of a political party, to the extent of more
than a total of $10,000 in any calendar year.
¶291 Statutes limiting total contributions, as opposed to
capping contributions to one candidate, were declared
unconstitutional in McCutcheon v. Federal Election Commission,
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134 S. Ct. 1434 (2014). In short, Wis. Stat. § 11.26(4) is
unconstitutional.
¶292 Many people have violated subsection (4), often
unintentionally, since its enactment. The State has pursued
some violators criminally. Cf. State v. Gardner, No. 2011CF137,
Washington Cnty., Wis., Cir. Ct. (Apr. 11, 2011).
¶293 Important for this review is the fact that the
Government Accountability Board insisted on enforcing Wis. Stat.
§§ 11.26(4) and 11.26(9) during the recall elections. See
MEMORANDUM from Kevin Kennedy to Interested Persons and
Committees Involved With Recall Efforts, March 15, 2011.
Kennedy's memo also sought to limit the exception to
contribution limits for certain recall expenses. Wis. Stat.
§ 11.26(13m).
E
¶294 The overall effect of Wisconsin's complicated,
confusing, outdated, and sometimes unconstitutional campaign
finance statutes is to compel candidates to depend increasingly
upon expenditures by 501(c)(4) committees that engage in issue
advocacy. 15
¶295 The special prosecutor concedes that without "the
authorization and consent of [a] candidate committee," an
expenditure is independent and constitutionally protected.
15
This was especially evident in the 2011 Wisconsin Supreme
Court election in which both candidates were bound by minimal
contribution limits and tight spending limits because they
accepted public funding.
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However, the special prosecutor contends that a committee's
"coordination" with a candidate committee eliminates many
constitutional protections, and that "there can never be
'coordinated' fundraising between a candidate and a truly
independent third party."
¶296 In view of the above, the pivotal concern with
application of Chapter 11's campaign finance laws is Wis. Stat.
§ 11.10(4). This subsection reads:
(4) No candidate may establish more than one
personal campaign committee. Such committee may have
subcommittees provided that all subcommittees have the
same treasurer, who shall be the candidate's campaign
treasurer. The treasurer shall deposit all funds
received in the campaign depository account. Any
committee which is organized or acts with the
cooperation of or upon consultation with a candidate
or agent or authorized committee of a candidate, or
which acts in concert with or at the request or
suggestion of a candidate or agent or authorized
committee of a candidate is deemed a subcommittee of
the candidate's personal campaign committee.
(Emphasis added.)
¶297 In evaluating the meaning of this provision, we must
understand the definition of "committee" in Wis. Stat.
§ 11.01(4):
"Committee" or "political committee" means any
person other than an individual and any combination of
2 or more persons, permanent or temporary, which makes
or accepts contributions or makes disbursements,
whether or not engaged in activities which are
exclusively political, except that a "committee" does
not include a political "group" under this chapter.
¶298 Put together, these two provisions are vague and
absurdly overbroad. Committees include political party
committees and legislative campaign committees. Committees
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include campaign committees of a candidate's fellow party
members. Committees include political action committees of
every description. The two sections create dire consequences
for candidates who exercise the most fundamental political
discourse with committees of the candidate's own party and with
the candidate's most ardent allies. By fundamental discourse, I
mean "cooperation," "consultation," "requests" for support, and
"suggestions."
¶299 Any person who believes that the statute does not
apply to coordination between a candidate and his state
political party must understand that the special prosecutor has
in his possession 39 months of emails from [————————————————————
———————————————————————————————————————————————], obtained by
secret search warrant. Anyone who believes that the special
prosecutor was not interested in coordination among the
Republican candidates in the state senate recalls would be
mistaken.
¶300 Turning to non-party committees, how does Wis. Stat.
§ 11.10(4) apply to a candidate who answers a candidate
questionnaire from a committee, which asks the candidate pointed
questions on issues, then asks whether the candidate will accept
an endorsement and campaign contributions? Surely, a non-
judicial candidate is permitted to ask for financial support.
¶301 The "coordination" statute cannot be constitutional as
written because it makes the candidate who behaves as a
perfectly normal candidate, meeting with organizations and
discussing plans, issues, and themes, run the intolerable risk
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of impairing a committee that does no more than engage in issue
advocacy. The committee is neutered if it is made a
subcommittee of the candidate's committee because it cannot
exceed the candidate's contribution limits. The committee is
disqualified because it cannot receive and spend corporate
dollars as a subcommittee of a candidate, and it cannot maintain
the anonymity of its donors, as permitted by law, if it engages
in issue advocacy that helps the candidate.
¶302 Under the statute as written, a candidate must
surrender his First Amendment freedom to communicate if he is to
prevent criminal liability.
¶303 A more carefully drafted statute might be able to pass
constitutional muster. But not this statute, in the
circumstances of this case. And no statute can vest government
regulators and special prosecutors with broad discretion to
decide whether First Amendment activities violate the law.
¶304 In my view, Wis. Stat. § 11.01(16) is unconstitutional
if it is not limited to express advocacy; Wis. Stat. § 11.10(4)
is unconstitutional as drafted; Wis. Stat. § 11.26(4) is
unconstitutional; Wis. Stat. § 11.26(9) is unconstitutional; and
Wis. Stat. § 11.26(13m) must be broadly interpreted under the
circumstances facing Wisconsin in 2011-2012. As a result, the
special prosecutor cannot sustain the theories of prosecutorion
that served as the foundation for his John Doe investigation.
¶305 For the foregoing reasons, I respectfully concur in
the decision to dismiss the John Doe investigation.
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¶306 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins Sections IV and V of this opinion, and
that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN
join Section IV of this opinion.
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¶307 ANNETTE KINGSLAND ZIEGLER, J. (concurring). During
pre-dawn darkness in October 2013, several armed law enforcement
officers wearing flak jackets, carrying battering rams, and
using bright floodlights executed secret John Doe search
warrants in the homes of Wisconsin residents. What was the
prosecution searching for? The prosecution was in search of
documents and electronic evidence, including personal computers
and cell phones, to support alleged violations of Wisconsin's
campaign finance law. The warrants sought evidence that had
been around for more than four years. The warrants were
executed shortly before morning, days after a judge signed them,
while it was still dark outside. Law enforcement certainly has,
and should have, a great deal of discretion when it comes to how
and when a warrant will be executed, but ultimately courts may
review the reasonableness of that execution. 1
¶308 Because these searches were executed in pre-dawn
darkness, they are essentially what courts and legal
commentators refer to as a nighttime search. 2 Because no
1
"'[I]t is generally left to the discretion of the
executing officers to determine the details of how best to
proceed with the performance of a search authorized by the
warrant——subject of course to the general Fourth Amendment
protection against unreasonable searches and seizures.'" State
v. Sveum, 2010 WI 92, ¶53, 328 Wis. 2d 369, 787 N.W.2d 317(alteration added in Sveum) (quoting Dalia v. United States, 441
U.S. 238, 257 (1979)) (internal quotation marks omitted).
2
For a more comprehensive discussion of the law regarding
nighttime searches, see Claudia G. Catalano, Annotation,
Propriety of Execution of Search Warrants at Nighttime, 41
A.L.R. 5th 171 (1996).
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Wisconsin law specifically addresses the legality of nighttime
searches of private homes, under the existing facts of this
case, these pre-dawn searches could raise questions as to
whether they would pass constitutional muster. I recognize that
because no challenge has been made to the execution of the
warrants, the record is without explanation as to why the search
warrants were executed as they were. I also recognize that the
State might have had a legitimate reason for executing the
search warrants pre-dawn in paramilitary fashion.
¶309 I join the majority opinion in all three cases. I
write separately to explain that, even if the search warrants
were lawfully issued, the execution of them could be subject to
the reasonableness analysis of the Fourth Amendment to the
United States Constitution and the Wisconsin Constitution's
counterpart. 3 A totality of the circumstances analysis could
include consideration of, among other things, the timing of the
issuance and execution of the warrants, the manner in which the
warrants were executed, whether public or officer safety
concerns justified the manner of execution, and what type of
evidence was being sought.
I. FUNDAMENTAL PRINCIPLES
3
"Even if a court determines that a search warrant is
constitutionally valid, the manner in which the warrant was
executed remains subject to judicial review." Sveum, 328
Wis. 2d 369, ¶53 (citing State v. Andrews, 201 Wis. 2d 383, 390,
549 N.W.2d 210 (1996)).
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¶310 The Fourth Amendment "contain[s] two separate clauses,
the first protecting the basic right to be free from
unreasonable searches and seizures and the second requiring that
warrants be particular and supported by probable cause." Payton
v. New York, 445 U.S. 573, 584 (1980). The Fourth Amendment's
second clause provides that "no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person
or things to be seized." U.S. Const. amend. IV. With respect
to the other clause, "[t]he Fourth Amendment to the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution protect '[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.'" State v. Robinson, 2010 WI 80, ¶24,
327 Wis. 2d 302, 786 N.W.2d 463 (quoting U.S. Const. amend. IV;
Wis. Const. art. 1, § 11). 4
4
The Fourth Amendment to the United States Constitution
provides in full:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
Article I, Section 11 of the Wisconsin Constitution states:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing
(continued)
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¶311 "'The touchstone of the Fourth Amendment is
reasonableness.'" State v. Tullberg, 2014 WI 134, ¶29, 359
Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S.
248, 250 (1991)). "'The Fourth Amendment does not proscribe all
state-initiated searches and seizures; it merely proscribes
those which are unreasonable.'" Id. (quoting Jimeno, 500 U.S.
at 250). "Constitutional reasonableness relates not only to the
grounds for a search or seizure but to the circumstances
surrounding the search or seizure's execution." State v.
Henderson, 2001 WI 97, ¶18, 245 Wis. 2d 345, 629 N.W.2d 613(citing Tennessee v. Garner, 471 U.S. 1, 8 (1985)). "The
determination of reasonableness is made by reference to the
particular circumstances of each individual case, and balances
the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion." Id.
(internal quotation marks omitted) (citations omitted). In
other words, "reasonableness" is "determined by balancing the
degree to which a challenged action intrudes on an individual's
privacy and the degree to which the action promotes a legitimate
government interest." Green v. Butler, 420 F.3d 689, 694 (7th
Cir. 2005) (citing United States v. Knights, 534 U.S. 112, 118-
19 (2001); Ohio v. Robinette, 519 U.S. 33, 39 (1996)). A court
determines whether a search was reasonably executed by
the place to be searched and the persons or things to
be seized.
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considering "the totality of the circumstances." United States
v. Banks, 540 U.S. 31, 35-36 (2003).
A. Constitutional Protection of a Home
¶312 "The people's protection against unreasonable search
and seizure in their 'houses' was drawn from the English common-
law maxim, 'A man's home is his castle.'" Minnesota v. Carter,
525 U.S. 83, 94 (1998) (Scalia, J., concurring). "Courts have
long extolled the importance of the home, noting that the
[Fourth Amendment] was drafted in part to codify 'the overriding
respect for the sanctity of the home that has been embedded in
our traditions since the origins of the Republic.'" State v.
Scull, 2015 WI 22, ¶19, 361 Wis. 2d 288, 862 N.W.2d 562 (quoting
Payton, 445 U.S. at 601). The United States Supreme Court has
noted that "the 'physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.'"
Payton, 445 U.S. at 585 (quoting United States v. United States
District Court, 407 U.S. 297, 313 (1972)). "The Fourth
Amendment protects the individual's privacy in a variety of
settings. In none is the zone of privacy more clearly defined
than when bounded by the unambiguous physical dimensions of an
individual's home——a zone that finds its roots in clear and
specific constitutional terms: 'The right of the people to be
secure in their . . . houses . . . shall not be violated.'" Id.
at 589 (ellipses added in Payton). "That language unequivocally
establishes the proposition that '[a]t the very core [of the
Fourth Amendment] stands the right of a man to retreat into his
own home and there be free from unreasonable governmental
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intrusion.'" Id. at 589-90 (alterations added in Payton)
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). 5
B. Nighttime Search of a Home
¶313 A nighttime search of a home conflicts with the fact
that "[a] home is entitled to special dignity and special
sanctity." Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626(1962). "Searches of the dwelling house were the special object
of this universal condemnation of official intrusion. Nighttime
search was the evil in its most obnoxious form." Monroe v.
Pape, 365 U.S. 167, 210 (1961) (Frankfurter, J., dissenting in
part). "The Supreme Court has consistently recognized that a
police search of a residence at night is a greater intrusion
upon an individual's privacy interest than an ordinary search."
United States v. Gibbons, 607 F.2d 1320, 1326 n.15 (10th Cir.
5
The Supreme Court has noted that a search of a cell phone
or personal computer could carry some of the implications of a
home search. The Court noted that "many [cell phones] are in
fact minicomputers that also happen to have the capacity to be
used as a telephone." Riley v. California, 573 U.S. ____, 134
S. Ct. 2473, 2489 (2014). Given the "storage capacity of cell
phones," "a cell phone search would typically expose to the
government far more than the most exhaustive search of a house:
A phone not only contains in digital form many sensitive records
previously found in the home; it also contains a broad array of
private information never found in a home in any form . . . ."
Id. at 2489, 2491. In fact, some courts have required warrants
to be more particular than just seeking all e-mails. See In re
Applications for Search Warrants for Info. Associated with
Target Email Accounts/Skype Accounts, No. 13-MJ-8163-JPO, 2013
WL 4647554, at *8 (D. Kan. Aug. 27, 2013) (holding that "the
warrants proposed by the government violate the Fourth
Amendment" because they did not particularly describe the e-
mails to be searched).
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1979). In Jones v. United States, the Supreme Court stated that
it was "difficult to imagine a more severe invasion of privacy
than the nighttime intrusion into a private home . . . ." Jones
v. United States, 357 U.S. 493, 498 (1958); see also Coolidge v.
New Hampshire, 403 U.S. 443, 477 (1971) (describing a "midnight
entry" of a home as an "extremely serious intrusion"); United
States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978) (citations
omitted) ("[T]he Fourth Amendment protects citizens' reasonable
expectations of privacy . . . [and] one's reasonable expectation
of privacy in the home is entitled to a unique sensitivity from
federal courts."); United States v. Martinez-Fuerte, 428 U.S.
543, 561 (1976) (citation omitted) (noting that "the sanctity of
private dwellings[ is] ordinarily afforded the most stringent
Fourth Amendment protection"). 6
¶314 "At common law, prior to the adoption of the Fourth
Amendment, there was a strong aversion to nighttime searches."
United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3d
Cir. 1968) (citations omitted). "This aversion was then and is
now primarily focused on intrusions into the home." United
6
"Because the fourth amendment's proscriptions against
unreasonable searches are virtually identical to those in art.
I, sec. 11 of the Wisconsin Constitution, state law of search
and seizure conforms to that developed under federal law."
State v. Long, 163 Wis. 2d 261, 266, 471 N.W.2d 248 (Ct. App.
1991) (citing State v. Reed, 156 Wis. 2d 546, 551, 457
N.W.2d 494 (Ct. App. 1990)). See also State v. Tullberg, 2014
WI 134, ¶29 n.17, 359 Wis. 2d 421, 857 N.W.2d 120.
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States v. Tucker, 313 F.3d 1259, 1263 (10th Cir. 2002) (citing
Gibbons, 607 F.2d at 1326). "Nighttime searches were regarded
with revulsion [at common law] because of the indignity of
rousing people from their beds." Com. v. Grimshaw, 595 N.E.2d
302, 304 (Mass. 1992) (citing Com. v. DiStefano, 495 N.E.2d 328,
332 (Mass. App. Ct. 1986)). "The significance of this aversion
of the common law to nighttime searches is underscored by the
Supreme Court's reminder that the search and seizure clause is
properly 'construed in the light of what was deemed an
unreasonable search and seizure when it was adopted.'" Boyance,
398 F.2d at 897 (quoting Carroll v. United States, 267 U.S. 132,
149 (1925)). When a home is invaded during pre-dawn darkness of
night, special protections should apply because of the sanctity
of a home. This is not to say that a home search can never
occur in pre-dawn darkness, but when it does, that timing could
be considered as a part of the totality of the circumstances
reasonableness analysis of the Fourth Amendment.
¶315 Although Wisconsin does not have a statute directing
that a judge must determine whether a nighttime search is
justified, 23 states have statutory protections that allow a
nighttime search only upon a "special showing and
authorization." Wayne R. LaFave, Search and Seizure § 4.7(b)
(5th ed. 2014). Similarly, the Federal Rules of Criminal
Procedure implement the essentials of the Fourth Amendment by
requiring that a warrant be served "during the daytime, unless
the judge, for good cause expressly authorizes execution at
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another time." Fed. R. Crim. P. 41(e)(2)(A)(ii). 7 The federal
rule and these 23 states recognize and codify Fourth Amendment
protections against unreasonable nighttime searches and
seizures. See United States v. Searp, 586 F.2d 1117, 1124 (6th
Cir. 1978) (holding that Federal Rule 41's "night search
provisions . . . explicate fundamental purposes of the Fourth
7
The Federal Rules of Criminal Procedure require special
justification for a nighttime search. Fed. R. Crim. P.
41(e)(2)(A)(ii). However, "'[d]aytime' means the hours between
6:00 a.m. and 10:00 p.m. according to local time." Fed. R.
Crim. P. 41(a)(2)(B). Although this Federal Rule may have been
technically complied with because the searches at issue might
have begun a few minutes after 6:00 a.m., technical compliance
with the Federal Rule does not automatically render these
searches immune from constitutional scrutiny in this state court
matter. While federal rules attempt to provide for consistency
from state to state, courts have often taken a practical
approach when defining "nighttime" for Fourth Amendment
purposes. See Claudia G. Catalano, Annotation, Propriety of
Execution of Search Warrants at Nighttime, 41 A.L.R. 5th 171(1996). See also United States v. Palmer, 3 F.3d 300, 303 (9th
Cir. 1993) (holding that Federal Rule of Criminal Procedure 41
did not apply because "[t]he investigation in this case was
initiated and controlled by the local law enforcement officials
involved"). In the case at issue, although the Special
Prosecutor is a former Federal Prosecutor, his investigation of
this matter was not in the federal system. This investigation
was initiated and controlled by local law enforcement officials.
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Amendment" (internal quotation marks omitted) (citation
omitted)). 8
¶316 When a court is confronted with a challenge to a
search that is conducted in the pre-dawn darkness of night, it
might consider whether the exigencies of the situation justify
the greater intrusiveness of a search at this time. A court
could look at factors including, but not limited to, the timing
of the issuance and execution of the warrants, the manner in
which the warrants were executed, whether public or officer
safety concerns justified the manner of execution, and what type
of evidence was being sought. Law enforcement is certainly
endowed with a great deal of discretion regarding how and when
to execute a warrant, but ultimately a court could be called
upon to review the reasonableness of that execution under a
totality of the circumstances analysis.
¶317 Certainly, the necessity of immediate police action
may be evident from the facts and circumstances of the
situation. Warrant execution in some criminal matters, such as
some human trafficking or drug cases, may militate in favor of a
warrant being executed at night or in a forceful manner because
8
A violation of these rules may result in suppression of
the evidence if the violation rises to constitutional
proportion. See, e.g., United States v. Bieri, 21 F.3d 811, 816
(8th Cir. 1994) (citation omitted) ("We apply the exclusionary
rule to violations of [the nighttime search provision of] Rule
41 only if a defendant is prejudiced or reckless disregard of
proper procedure is evident."); see also United States v. Berry,
113 F.3d 121, 123 (8th Cir. 1997) (noting that a violation of
Federal Rule of Criminal Procedure 41's nighttime search
provision can be "of constitutional magnitude").
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the criminal activity is likely occurring at night, evidence may
likely be lost if law enforcement waits, or dangerous activity
is afoot. "It has been held that the danger of destruction or
removal of the evidence is sufficient reason for nighttime
execution of a search warrant, in part because such
circumstances could even constitute exigent circumstances for a
search without a warrant." Tucker, 313 F.3d at 1265 (citations
omitted). See, e.g., United States v. Howard, 532 F.3d 755,
760-61 (8th Cir. 2008) (upholding a nighttime search because a
confidential informant advised police that drug trafficking
occurred in the home "during all hours of the night"); Fair v.
State, 664 S.E.2d 227, 235 (Ga. 2008) (upholding a 1:15 a.m.
search "because the officers knew from experience that the peak
time for drug dealers to conduct business was after midnight").
Law enforcement needs a wide berth when determining how and when
to execute a warrant, but under the totality of the
circumstances, the execution of the warrant must still be
reasonable in order to pass constitutional muster.
II. THE TOTALITY OF THE CIRCUMSTANCES
¶318 With Fourth Amendment principles in mind,
understanding that the record is not complete because no
challenge has been made to the warrant execution, the following
discussion will nonetheless endeavor to consider the timing of
the issuance and execution of the warrants, the manner of
execution, whether public or officer safety concerns existed,
and what type of evidence was being sought.
A. The Timing of the Issuance and Execution of the Warrants
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¶319 In the case at issue, Investigator Dean Nickel
obtained two secret John Doe warrants from Reserve Judge Barbara
Kluka to search the homes of Unnamed Movants Nos. 6 and 7. The
warrants were obtained in the course of a secret John Doe
investigation. 9 Those warrants and their supporting affidavit
did not set forth any particular time at which, or manner in
which, the warrants would be executed. Unlike many warrants
that must be executed at nighttime for fear of the evidence
being destroyed or removed from the location or because of
public or officer safety reasons, much of this evidence had been
sitting on computers and in cyberspace for years.
¶320 This was not, as sometimes occurs, a situation where a
judge was awoken in the middle of the night to issue a warrant
because law enforcement needs to execute it promptly in order to
seize the evidence. Reserve Judge Kluka signed the warrants at
11:30 a.m. on Monday, September 30, 2013. However, they were
not executed until Thursday, October 3, 2013, at approximately
9
A John Doe proceeding, known as "John Doe I," was
commenced in the spring of 2010 "for the purpose of
investigating the alleged misuse of public resources in the
Milwaukee County Executive's office." Majority op., ¶14. The
John Doe I investigation "triggered a second John Doe proceeding
(John Doe II), the investigation at issue here." Id., ¶15. On
August 10, 2012, Milwaukee County Assistant District Attorney
David Robles filed a petition for the commencement of John Doe
II in the Milwaukee County circuit court. Id. On September 5,
2012, "Reserve Judge Kluka authorized the commencement of the
John Doe [II] proceeding and also granted the requested secrecy
order." Id., ¶17.
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6:00 a.m. 10 "A search warrant must be executed and returned not
more than 5 days after the date of issuance." Wis. Stat.
§ 968.15(1). These warrants were executed three days after they
were issued. "The return of the search warrant shall be made
within 48 hours after execution . . . ." Wis. Stat.
§ 968.17(1). The warrants were returned on October 4, four days
after they were issued and one day after they were executed.
¶321 The warrants were executed in the pre-dawn darkness.
On October 3 civil twilight began in Madison at 6:29 a.m. and
sunrise began at 6:57 a.m. 11 For all practical purposes, each of
these searches was the equivalent of a nighttime search.
Because no challenge to the warrant execution has been made, the
record lacks any explanation as to why law enforcement did not
execute the warrants any time during the preceding 66.5 hours——
or more specifically, the 29.5 daylight hours——between issuance
and actual execution.
10
The return on the warrant to search Unnamed Movant No.
6's house, in a box titled "Recovery Date," reads "10/03/2013
06:15:00." Similarly, the return on the warrant to search
Unnamed Movant No. 7's house, in a box titled "Recovery Date,"
reads "10/03/2013 6:03:13." The record does not indicate to
what these times correspond. Media reports indicate that the
searches lasted two and a half hours. See, e.g., Kittle, infra
note 12. The record is unclear.
11
See U.S. Naval Observatory: Astronomical Applications
Department, Sun and Moon Data for One Day, available at
http://aa.usno.navy.mil/rstt/onedaytable?form=1&ID=AA&year=2013&
month=10&day=3&state=WI&place=Madison (last visited June 13,
2015).
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¶322 A nighttime search will often occur shortly after a
judge has issued the warrant, as there is some urgency in
needing to conduct the search in non-daylight hours. Courts
often consider "nighttime" as the time when it is "dark"
outside, between sunset and sunrise, between dusk and dawn, or
when most people are asleep. See Claudia G. Catalano,
Annotation, Propriety of Execution of Search Warrants at
Nighttime, 41 A.L.R. 5th 171 (1996). This record,
understandably, lacks any indication of why it was reasonable to
execute these warrants in this manner, especially since the
warrants had been issued three days earlier. The prosecution
might have obtained the same evidence in the daylight by waiting
a mere hour or two or by executing the warrants in any of the
preceding daylight hours. Why did law enforcement execute these
secret John Doe warrants days after obtaining them, in the pre-
dawn darkness, needing floodlights to illuminate the homes, and
with such forceful presence?
¶323 While there may be reasons why the warrants were
executed when they were, the current state of the record
provides no indication that the prosecution "felt some exigency"
so as to necessitate the execution of the warrants in the pre-
dawn darkness three days after the warrants were issued. See
United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997)
(upholding a 12:30 a.m. search for a large quantity of marijuana
because the officers "obviously felt some exigency"). See also
Harris, 324 F.3d at 606 (upholding a nighttime search performed
two hours and 15 minutes after the warrant was issued); Tucker,
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313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113
F.3d at 122 (same, 45 minutes); Boyance, 398 F.2d at 897
(holding that a nighttime search performed 90 minutes after
issuance of a warrant was unconstitutional because there was no
indication that "the evidence within the house would be removed,
hidden or destroyed before morning").
B. The Manner of Execution
¶324 Courts have also considered the specific manner in
which warrants are executed as part of the totality of the
circumstances. "The[se] search warrants were executed at
approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed,
paramilitary-style raids in which bright floodlights were used
to illuminate the targets' homes." Majority op., ¶28.
"Deputies seized business papers, computer equipment, phones,
and other devices, while their targets were restrained under
police supervision and denied the ability to contact their
attorneys." Id., ¶29. While there may be reasons why the
warrants were executed in the manner that they were, the record
lacks any such explanation as the execution was not challenged.
¶325 Although not critical to my analysis, it is worth
noting how some news outlets have described these searches. Had
a hearing been held on the manner in which these searches were
executed, it is uncertain whether the facts established in such
a hearing would be consistent with these news reports or whether
there is nonetheless "a legitimate government interest" in the
execution of the searches. See Green, 420 F.3d at 694.
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¶326 Reportedly, about an hour before sunrise, police
"surrounded" the homes of Unnamed Movants Nos. 6 and 7 and "hit
them with floodlights." 12 "Police didn't draw their guns. They
didn't have to. Garish light blinded the groggy targets of the
secret probe, startling neighbors. The uniforms, the lights,
the early hour got everybody's attention." 13 "One of the targets
[said] police threatened to use battering rams to break down the
front door, but the targets let them in." 14 Each of these pre-
dawn searches of the homes of Unnamed Movants Nos. 6 and 7
reportedly involved at least half a dozen sheriff's deputies and
at least one official from the Milwaukee County District
Attorney's Office. 15 It has been reported that deputies
"[s]hout[ed] [] at the front door" 16 and, once inside, continued
"yelling and running, into every room in the house." 17
12
M. D. Kittle, The day John Doe Rushed Through the Door,
WisconsinWatchdog.org, Oct. 3, 2014, available at
http://watchdog.org/174987/john-doe-raids-eric-okeefe.
13
Id.
14
Id.
15
The record is not clear as to why at least one
representative from the Milwaukee County District Attorney's
Office was on scene for the searches. The record is also
unclear as to whether it is typical protocol for a Milwaukee
County District Attorney's Office representative to be present
when a search warrant is executed.
16
Rich Lowry, Politicized Prosecution Run Amok in
Wisconsin, National Review, Apr. 21, 2015, available at
http://www.nationalreview.com/article/417207/politicized-
prosecution-run-amok-wisconsin-rich-lowry.
17
David French, Wisconsin's Shame: "I Thought It Was a Home
Invasion", National Review, Apr. 20, 2015, available at
(continued)
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¶327 Other media outlets described the searches as follows:
The early-morning paramilitary-style raids on
citizens' homes were conducted by law-enforcement
officers, sometimes wearing bulletproof vests and
lugging battering rams, pounding on doors and issuing
threats. Spouses were separated as the police seized
computers, including those of children still in
pajamas. Clothes drawers, including the children's,
were ransacked, cell phones were confiscated, and the
citizens were told it would be a crime to tell anyone
of the raids. 18
¶328 At least one person who was subjected to a pre-dawn
search of his or her residence reportedly described it as "a
home invasion." 19 The targets of the pre-dawn searches have
described these experiences as "terrifying" and "traumatic." 20
¶329 Due to the terms of the John Doe secrecy order itself,
the targets were instructed not to tell other people about the
searches. The search warrants stated: "This John Doe search
warrant is issued subject to a secrecy order. By order of the
court, pursuant to a secrecy order that applies to this
proceeding, you are hereby commanded and ordered not to disclose
to anyone, other than your attorney, the contents of this search
warrant and/or the fact that you have received this search
warrant. Violation of this secrecy order is punishable as
http://www.nationalreview.com/article/417155/wisconsins-shame-i-
thought-it-was-home-invasion-david-french.
18
George Will, Done in by John Doe, National Review, Oct.
25, 2014, available at http://www.nationalreview.com/
article/391130/done-john-doe-george-will.
19
French, supra note 17.
20
Id.
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contempt of court." Reportedly, "[m]ultiple
targets . . . received verbal instructions from investigators
about the secrecy order applying to every member of the
household." 21 Despite the language of the secrecy order, some
have otherwise averred that the targets "were told not to tell
their lawyers, or their friends, or their neighbors." 22
C. Public and Officer Safety Concerns
¶330 As part of the totality of the circumstances, courts
have also considered whether safety concerns of the public or
the officers justify the timing and the manner of a warrant's
execution. Although a paramilitary-style search in the darkness
is undoubtedly justified in some circumstances, the current
state of this record provides no indication that Unnamed Movants
Nos. 6 and 7 "posed an immediate threat to the safety of the
officers or others," were "actively resisting arrest or
attempting to evade arrest by flight," or were "themselves
violent or dangerous." See Estate of Smith v. Marasco, 430 F.3d
140, 150 (3d Cir. 2005) (holding that these facts are important
for determining whether a SWAT-type search was reasonable). In
the present case, executing the warrants in paramilitary fashion
during pre-dawn darkness arguably might have actually increased
the risk of injury to the public or the officers. See Bravo v.
21
M. D. Kittle, Warrants Command John Doe Targets to Remain
Silent, WisconsinWatchdog.org, May 14, 2015, available at
http://watchdog.org/218761/john-doe-warrants-raids/.
22
Lowry, supra note 16 (emphasis added).
18
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City of Santa Maria, 665 F.3d 1076, 1086 (9th Cir. 2011) ("SWAT
officers' nighttime searches . . . both constitute much greater
intrusions on one's privacy than ordinary daytime searches and
carry a much higher risk of injury to persons and property.").
¶331 A "nighttime police intrusion pose[s] a great threat
to privacy, violate[s] the sanctity of home, and endanger[s] the
police and slumbering citizens." Grimshaw, 595 N.E.2d at 304
(citing 2 W.R. LaFave, Search and Seizure § 4.7(b), at 266 (2d
ed. 1987)). In the present case, whether any public or officer
safety concern justified the pre-dawn searches is unknown
because the execution was not challenged. Cf. United States v.
Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (upholding a
nighttime search because of the defendant's "prior extensive
involvement with law enforcement, the expressed fear of a
concerned citizen that [the defendant] would retaliate
violently, and the presence of children in the vicinity" during
the daytime).
D. The Evidence
¶332 I turn now to the nature of the evidence being sought.
This case is not one where the alleged crime is occurring at
night during the search. This is not a drug or human
trafficking investigation where it is apparent that the evidence
of the crime may no longer be present at the search location if
the warrants are not executed promptly. The circumstances of
this case do not plainly suggest that waiting until daybreak
would have posed a safety risk to the public or officers.
19
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¶333 These pre-dawn searches sought, among other things,
electronic evidence, including e-mails and communications stored
on cell phones and personal computers. 23 The search warrants
sought information from March 1, 2009, to September 30, 2013,
the date that the warrants were issued. This evidence, which
seemingly had been around for years and likely otherwise exists
in cyberspace, did not appear to be "volatile" and no reason is
readily apparent to explain why executing the warrants in a more
traditional manner, by far less forceful means, would pose any
"risk of personal injuries and property damage." See Tucker,
313 F.3d at 1266 (upholding a nighttime search because "there
was not just risk of destruction of the evidence but also risk
of personal injuries and property damage due to the volatile
nature of the chemicals and the process of methamphetamine
manufacture").
¶334 While not jugular to the totality of the circumstances
analysis, it seems that this electronic evidence was not in
"danger of destruction or removal" from the homes before
morning. See id. at 1265. The process of erasing a file on a
personal computer "is time consuming and does not wipe out all
23
From Unnamed Movant No. 6's home, law enforcement
officers seized tax records, check stubs, invoices, a binder
containing documents, a box of documents, an external hard
drive, and a laptop computer. From Unnamed Movant No. 7's home,
officers seized three cell phones, three external hard drives,
two computer towers, two laptop computers, two Apple iPods, a
document folder, three compact discs, a thumb drive, a voice
recorder, bank stubs, personal pocket calendars, and financial
records.
20
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data." 24 A cell phone's files may likewise be difficult to
erase. "Smartphone forensics experts can retrieve just about
anything from any phone," "whether or not a user deleted it from
their phone." 25 In fact, the affidavit in support of the
warrants to search the homes of Unnamed Movants Nos. 6 and 7
seemed to recognize that the evidence was not at risk of being
destroyed, even if deleted. The affidavit itself declared that
"computer files or remnants of such files can be recovered
months or even years after they have been downloaded onto a
storage medium, deleted, or viewed via the Internet." (Emphases
added.)
¶335 Even if the computers and cell phones had been totally
destroyed, investigators still could have sought to obtain
Unnamed Movants Nos. 6's and 7's e-mail messages from third
parties, such as Internet service providers or e-mail service
providers. 26 Wisconsin law expressly authorizes subpoenas and
search warrants to be issued to such third parties. See Wis.
Stat. § 968.375. Milwaukee County prosecutors have used these
24
Christine Galves & Fred Galves, Ensuring the
Admissibility of Electronic Forensic Evidence and Enhancing Its
Probative Value at Trial, 19 Criminal Justice Magazine 1 (Spring
2004), available at http://www.americanbar.org/
publications/criminal_justice_magazine_home/crimjust_cjmag_19_1_
electronic.html.
25
David Goldman, How Police Can Find Your Deleted Text
Messages, CNN Money, May 22, 2013, available at
http://money.cnn.com/2013/05/22/technology/mobile/smartphone-
forensics/.
26
Galves, supra note 24.
21
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techniques in recent prosecutions of a somewhat similar nature.
See State v. Rindfleisch, 2014 WI App 121, 359 Wis. 2d 147, 857
N.W.2d 456 (holding that search warrants, which required Google
Inc. and Yahoo Inc. to provide evidence from the defendant's
personal e-mail messages, were sufficiently particular).
¶336 In fact, previously during this very John Doe
investigation, the State did obtain Unnamed Movants Nos. 6's and
7's e-mails from their e-mail service providers. Specifically,
on September 5, 2012, the same day that Reserve Judge Kluka
commenced this John Doe investigation, she signed a warrant
requiring Yahoo Inc. to supply information from Unnamed Movant
No. 6's Yahoo e-mail account. Also on September 5 Reserve Judge
Kluka signed a similar warrant requiring Charter Communications
Inc. to provide information from Unnamed Movant No. 7's Charter
e-mail account. Each of these warrants required the production
of, inter alia, "[t]he contents of all communications stored in
the E-mail accounts for the subscriber(s) . . . , including all
emails stored in the account, whether sent from or received in
the account, including any 'chat or instant messaging,' as well
as e-mails held in a 'Deleted' status," from April 1, 2009, to
July 1, 2012. Yahoo and Charter complied with the warrants
within six weeks and two weeks, respectively. Thus, at least
some of the evidence that the prosecution hoped to obtain by
searching the homes of Unnamed Movants Nos. 6 and 7 in October
2013 could very well have been duplicative of the e-mail
evidence that Yahoo and Charter produced pursuant to the
September 2012 search warrants.
22
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¶337 While not required, another avenue of obtaining
evidence may have existed through subpoenas duces tecum, which
could have been served on Unnamed Movants Nos. 6 and 7 as an
alternative to the pre-dawn, paramilitary-style searches of
their homes. See Wis. Stat. § 968.135. In fact, such subpoenas
were issued on other Unnamed Movants. Specifically, on the same
day that Reserve Judge Kluka issued the warrants to search the
homes of Unnamed Movants Nos. 6 and 7, she issued subpoenas
duces tecum to the other six Unnamed Movants. These subpoenas
duces tecum required the production of, inter alia, information
regarding Unnamed Movants Nos. 6 and 7. Although law
enforcement is not required to obtain information by subpoena
instead of a warrant, the type of evidence being sought and the
ways in which it may be obtained could possibly be of some
significance in the totality of the circumstances test of
reasonableness.
¶338 Milwaukee County Sheriff David A. Clarke, Jr. has been
vocal in explaining his belief that it was unreasonable and
unnecessary to execute these pre-dawn searches in the manner in
which they were executed. He said, "[a] simple knock on the
door by a couple of suit wearing investigators with . . . one
uniform back-up [officer] to verify who they were was all that
was necessary to execute this search warrant." 27
27
David French, Wisconsin's Shame: Sheriff Clarke Weighs
In, National Review, Apr. 23, 2015, available at
http://www.nationalreview.com/corner/417406/wisconsins-shame-
sheriff-clarke-weighs-david-french.
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III. CONCLUSION
¶339 "Constitutional reasonableness relates not only to the
grounds for a search or seizure but to the circumstances
surrounding the search or seizure's execution." Henderson, 245
Wis. 2d 345, ¶18 (citing Garner, 471 U.S. at 8). 28 "The
determination of reasonableness is made by reference to the
particular circumstances of each individual case, and balances
the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion." Id.
(internal quotation marks omitted) (citations omitted). "The
idea of the police unnecessarily forcing their way into the
homes in the middle of the night . . . rousing the residents out
of their beds, and forcing them to stand by in indignity in
their night clothes while the police rummage through their
belongings does indeed smack of a 'police state lacking in the
respect for . . . the right of privacy dictated by the U.S.
Constitution.'" Gooding v. United States, 416 U.S. 430, 462
(1974) (Marshall, J., dissenting) (quoting S. Rep. No. 91—538,
p. 12 (1969)).
28
See State v. Henderson, 2001 WI 97, ¶3, 245 Wis. 2d 345,
629 N.W.2d 613 (recognizing that the Fourth Amendment
reasonableness inquiry considers whether officers knocked and
announced their presence before entry); see also United States
v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (holding that
"a nighttime intrusion is one element in considering the
reasonableness of the search"); State v. Jackson, 742 N.W.2d
163, 177 (Minn. 2007) (holding that "the search of a home at
night is a factor to be considered in determining whether a
search is reasonable under the Fourth Amendment").
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¶340 I join the majority opinion in all three cases. I
write separately to explain that even if the search warrants
were lawfully issued, the execution of them could be subject to
the reasonableness analysis of the Fourth Amendment to the
United States Constitution and the Wisconsin Constitution's
counterpart. A totality of the circumstances analysis could
include consideration of, among other things, the timing of the
issuance and execution of the warrants, the manner in which the
warrants were executed, whether public or officer safety
concerns justified the manner of execution, and what type of
evidence was being sought.
¶341 For the foregoing reasons, I respectfully concur.
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¶342 SHIRLEY S. ABRAHAMSON, J. (concurring in part,
dissenting in part).
Nos. 2014AP296-OA: Original Action: Two Unnamed Petitioners v.
Peterson
2014AP417-421-W: Supervisory Writ & Appeal: Schmitz v.
Peterson
2013AP2504-2508-W: Supervisory Writ & Review: Three Unnamed
Petitioners v. Peterson
¶343 The majority opinion decides three different cases
related to John Doe proceedings underway in five different
counties. These John Doe proceedings share a common objective:
To investigate potential violations of Wisconsin's campaign
finance law, Wis. Stat. ch. 11 (2011-12). 1 The proceedings also
share a single John Doe judge, who was assigned to the
proceedings in all five counties, and a single Special
Prosecutor, who was appointed by the John Doe judge to conduct
the investigation in all five counties. 2
¶344 The John Doe cases were consolidated for purposes of
briefing and oral argument, but not for any other purpose. 3
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
See majority op., ¶¶17-27.
3
The order consolidating the cases for purposes of briefing
and oral argument is dated December 16, 2014, and is attached
hereto, along with my concurrence and that of Justice Prosser,
as Exhibit A.
1
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Briefs have been filed. The court, over dissent, canceled oral
argument. 4
¶345 The majority opinion and concurrences in these John
Doe cases resolve issues raised by the parties; issues raised by
the court in its December 16, 2014, order (attached hereto as
Exhibit A); and new issues not previously raised by the parties
or the court. These writings have far-reaching implications,
not just for the John Doe investigation underlying the instant
cases but also for this state's electoral process, future John
Doe proceedings, and criminal proceedings generally.
¶346 I begin by addressing the majority opinion.
¶347 Lest the length, convoluted analysis, and overblown
rhetoric of the majority opinion obscure its effect, let me
state clearly: The majority opinion adopts an unprecedented and
faulty interpretation of Wisconsin's campaign finance law and of
the First Amendment. In doing so, the majority opinion delivers
a significant blow to Wisconsin's campaign finance law and to
its paramount objectives of "stimulating vigorous campaigns on a
fair and equal basis" and providing for "a better informed
electorate." 5
¶348 Disregarding the statutory text that the majority
opinion professes to interpret, the majority opinion takes the
4
Oral argument was canceled in the three cases pursuant to
an order entered by this court on March 27, 2015. That order,
along with my dissent and that of Justice Prosser, is attached
hereto as Exhibit B.
5
Wis. Stat. § 11.001(1).
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absolutist position that Chapter 11 does not reach any issue
advocacy and that any manner of government regulation of any
issue advocacy contravenes the First Amendment. 6 Thus, within
the realm of issue advocacy, the majority opinion's theme is
"Anything Goes." 7
¶349 But it is not just the letter of Wisconsin's campaign
finance law that the majority opinion disregards. It also
disregards the spirit of the law. 8
¶350 The legislative declaration of policy set forth at
Wis. Stat. § 11.001(1) provides that "[w]hen the true source of
support or extent of support [for a candidate] is not fully
disclosed, or when a candidate becomes overly dependent upon
large private contributors, the democratic process is subjected
to potential corrupting influence." To prevent such corrupting
influence, the legislature has declared that "the state has a
6
See majority op., ¶¶10, 41, 50, 57, 66-67, 69.
Issue advocacy is speech that pertains to issues of public
concern and does not expressly advocate the election or defeat
of a candidate. Fed. Election Comm'n v. Wis. Right to Life,
Inc., 551 U.S. 449, 456 (2007). In contrast, express advocacy
is speech that expressly advocates the election or defeat of a
candidate. Id. at 453.
7
"Anything Goes" is a song written by Cole Porter for his
musical Anything Goes (1934). Many of the lyrics feature
humorous (but dated) references to various figures of scandal
and gossip in Depression-era high society. Many modern versions
of the song omit the outdated lyrics, replacing them with
present-day examples of social and political scandal.
8
For the importance of the spirit of the law, see Jackson
County v. DNR, 2006 WI 96, ¶32, 293 Wis. 2d 497, 717 N.W.2d 713;
State v. Dagnall, 2000 WI 82, ¶59, 236 Wis. 2d 339, 612
N.W.2d 680; Harrington v. Smith, 28 Wis. 43, 59 (1871).
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compelling interest in designing a system for fully disclosing
contributions and disbursements made on behalf of every
candidate for public office. . . ." 9
¶351 Despite these clear statements of legislative policy,
the majority opinion holds that disbursements made on behalf of
candidates need not be fully disclosed——indeed, they need not be
disclosed at all——if such disbursements are made for issue
advocacy. 10
¶352 In taking this absolutist position, the majority
opinion attempts to terminate the John Doe investigation
underlying the instant cases in its infancy. The majority
opinion's unsupported, ultra vires declaration that its
resolution of the original action brought by two of the eight
Unnamed Movants "ends the John Doe investigation" contradicts
other aspects of the majority opinion and reveals the majority
opinion's blatant attempt to reach its desired result by
whatever means necessary. 11
9
Wis. Stat. § 11.001(1) (emphasis added).
10
See majority op, ¶¶50, 57, 66-67.
11
See majority op., ¶¶11, 76.
The majority opinion fails to acknowledge that the Special
Prosecutor is pursuing multiple theories of criminal activity,
not all of which revolve around issue advocacy. For example,
the Special Prosecutor states that the John Doe investigation is
premised in part "on a reason to believe that certain express
advocacy groups who had filed sworn statements indicating they
acted independently of certain campaign committees" did not in
fact act independently. Despite the majority opinion's
invalidating the Special Prosecutor's issue-advocacy-based
theory of criminal activity, this express-advocacy-based theory
lives on.
(continued)
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¶353 According to the United States Court of Appeals for
the Seventh Circuit, no opinion of the United States Supreme
Court or a federal court of appeals has established that the
First Amendment forbids regulation of, or inquiry into,
coordination between a candidate's campaign committee and issue
advocacy groups. 12 In repeatedly and single-mindedly declaring a
rule that federal case law has declined to adopt, the majority
opinion betrays its result-oriented, agenda-driven approach.
¶354 If the majority opinion succeeds in terminating the
John Doe investigation, the majority opinion will deny the
people of this state the opportunity to determine once and for
The majority opinion also fails to acknowledge that the
original action was brought by only two Unnamed Movants. It
seems the Special Prosecutor's investigation of individuals and
organizations that are not parties to the original action is not
affected by this court's decision in the original action. See
Madison Teachers, Inc. v. Walker, 2013 WI 91, ¶20, 351
Wis. 2d 237, 839 N.W.2d 388 (holding that a declaratory judgment
was binding only insofar as the parties to the lawsuit were
concerned; a declaratory judgment is not the equivalent of an
injunction binding on the defendant state officers). Indeed,
the majority opinion and concurring opinions imply that the
original action does not bind the other Unnamed Movants by
deciding the second and third John Doe cases within the John Doe
trilogy. If the majority opinion's decision in the original
action disposes of the John Doe investigation in its entirety,
why address the other John Doe cases?
12
See O'Keefe v. Chisholm, 769 F.3d 936, 942 (7th Cir.
2014). For discussions of the constitutionality of regulating
coordinated issue advocacy, see Brent Ferguson, Beyond
Coordination: Defining Indirect Campaign Contributions for the
Super PAC Era, 42 Hastings Const. L.Q. 471 (2015); Richard
Briffault, Coordination Reconsidered, 113 Columbia L. Rev.
Sidebar 88 (2013); Bradley A. Smith, Super PACs and the Role of
"Coordination" in Campaign Finance Law, 49 Willamette L. Rev.
603 (2013).
5
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all whether the targets of the John Doe investigation are guilty
of systematically violating Wisconsin's campaign finance law
through undisclosed campaign coordination.
¶355 I write separately to provide an objective, precedent-
based analysis of the statutory and constitutional issues
presented in the John Doe cases.
¶356 I note at the outset that the statutory and
constitutional issues presented in the John Doe cases do not
include whether the subpoenas and search warrants issued by the
John Doe judge were unconstitutionally overbroad or executed in
an unconstitutional manner.
¶357 The parties did not raise these issues and this court
did not seek comment on them. 13 These issues have not been
briefed by some parties and have not been fully briefed by
others. Nevertheless, these issues are discussed at length in
the separate writings by Justices Prosser and Ziegler.
¶358 Justice Prosser declares that he is writing on Issue
14. Issue 14 addresses whether there was probable cause for the
search warrants issued in the John Doe proceedings. Issue 14
does not concern the breadth or execution of the search
warrants, does not concern subpoenas, and is limited to two
Unnamed Movants (not five individuals, as Justice Prosser states
in ¶201 of his concurrence). Issue 14 asks the parties to
address the following issue:
13
See items 1-14 in this court's order dated December 16,
2014 (attached hereto as Exhibit A), setting forth the questions
this court accepted for review.
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Whether the affidavits underlying the warrants issued
in the John Doe proceedings provided probable cause to
believe that evidence of a criminal violation of Wis.
Stat. §§ 11.27, 11.26(2)(a), 11.61(1), 939.31, and
939.05 would be found in the private dwellings and
offices of the two individuals whose dwellings and
offices were searched and from which their property
was seized. 14
¶359 Justice Ziegler makes no similar attempt to tether her
analysis to the issues this court accepted for review.
¶360 I turn now to my analysis of the three John Doe cases,
which I address in three separate sections of this writing. I
summarize my discussion and conclusions in each of the three
cases as follows:
¶361 The First Case. This case is an original action filed
by Unnamed Movants 6 and 7 against the John Doe judge and the
Special Prosecutor. 15 See ¶¶389-507, infra.
¶362 Two issues of law are presented in the original
action.
¶363 First is whether Chapter 11 requires a candidate's
campaign committee to report certain coordinated disbursements
as contributions received by the candidate or candidate's
campaign committee——namely, coordinated disbursements made for
issue advocacy purposes. Under Chapter 11, a disbursement is
coordinated if it is made by a third party "for the benefit of a
14
See this court's December 16, 2014, order, attached
hereto as Exhibit A (emphasis added).
15
I refer to the eight challengers to the John Doe
proceedings as Unnamed Movants because that has been the
parties' practice in briefing. In the case captions for two of
the three John Doe cases, the Unnamed Movants are referred to as
Unnamed Petitioners.
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candidate" and "with the authorization, direction or control of
or otherwise by prearrangement with the candidate or the
candidate's agent." 16
¶364 If Chapter 11 requires a candidate's campaign
committee to report coordinated disbursements for issue advocacy
as contributions received by the candidate or candidate's
campaign committee, then the second issue presented is whether
this reporting requirement is consistent with the state and
federal constitutions.
¶365 The majority opinion concludes that Chapter 11 does
not require a candidate's campaign committee to report any
coordinated disbursements for issue advocacy as contributions
received by the candidate or candidate's campaign committee.
The majority opinion further concludes that such a requirement
would be unconstitutional. 17
¶366 The majority opinion frequently refers to "independent
groups," "independent organizations," and "independent advocacy
organizations." I agree with the United States Court of Appeals
for the Seventh Circuit that the word "independent" should be
considered to be in quotation marks throughout the John Doe
16
Wis. Stat. § 11.06(4)(d). See also Wis. Stat. § 11.06(7)
(describing independent disbursements as disbursements made by a
committee or individual who "does not act in cooperation or
consultation with any candidate or authorized committee of a
candidate" and who "does not act in concert with, or at the
request or suggestion of, any candidate or agent or authorized
committee of a candidate").
17
See majority op., ¶¶50, 57, 66-67.
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cases "because the Special Prosecutor suspected that the group's
independence is ostensible rather than real." 18
¶367 I conclude that Chapter 11 does require a candidate's
campaign committee to report coordinated disbursements for issue
advocacy as contributions received by the candidate or
candidate's campaign committee. I further conclude this
reporting requirement is consistent with the First Amendment.
¶368 To be clear: I do not conclude that Chapter 11
regulates disbursements for issue advocacy made by truly
independent third parties. Chapter 11 does not reach
independent disbursements for issue advocacy, even when such
disbursements are intended to influence an election.
¶369 The Second Case. This case is a supervisory writ
petition filed by the Special Prosecutor in the court of appeals
against the John Doe judge and the eight Unnamed Movants. The
Special Prosecutor's writ petition seeks review of an order of
the John Doe judge quashing subpoenas and ordering the return of
property seized pursuant to search warrants. The order was
based on the John Doe judge's conclusion of law that Chapter 11
does not regulate coordinated disbursements for issue advocacy. 19
The writ petition is before this court on multiple petitions for
bypass. See ¶¶508-541, infra.
¶370 The majority opinion concludes that even if the John
Doe judge misinterpreted and misapplied Chapter 11 and the First
18
O'Keefe, 769 F.3d at 937.
19
See majority op., ¶¶34-36, 97.
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Amendment when exercising his discretion to quash subpoenas and
order the return of property seized pursuant to search warrants,
a supervisory writ is not warranted. The majority opinion
reasons that the Special Prosecutor has failed to prove that the
John Doe judge violated a plain legal duty.
¶371 I conclude that the majority opinion misinterprets and
misapplies the plain legal duty criterion for the issuance of a
supervisory writ. 20 I conclude that correctly interpreting and
applying the law is a plain legal duty. To properly exercise
his discretion, the John Doe judge was required to correctly
decide the question of law presented. This court can and
should, in the exercise of its discretion, issue a supervisory
writ to correct a John Doe judge's error of law when appellate
review would provide no relief (or inadequate relief) for the
harm caused by the error. Because the John Doe judge
misinterpreted and misapplied the law and appellate review is
not available, I would grant the Special Prosecutor's writ
petition.
¶372 The Third Case. This case is a review of a court of
appeals opinion and order denying a supervisory writ petition
filed by Unnamed Movants 2, 6, and 7 against the John Doe judge,
the chief judges of the counties in which the proceedings are
underway, and the Special Prosecutor. See ¶¶542-554, infra.
¶373 The petition for review raises questions of law
regarding the validity of the Special Prosecutor's appointment
20
See majority op., ¶97.
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and the competency of the Special Prosecutor to conduct the John
Doe investigation.
¶374 The majority opinion concludes that the court of
appeals properly denied the three Unnamed Movants' writ petition
because, like the Special Prosecutor in the second case, the
three Unnamed Movants have failed to prove that the John Doe
judge violated a plain legal duty. 21
¶375 I agree with the majority opinion's affirmance of the
court of appeals order denying the writ petition. I conclude,
however, that the court of appeals can, should, and did properly
decide the issues of law presented in the Unnamed Movants' writ
petition. To properly exercise his discretion, the John Doe
judge was required to correctly decide these questions of law. 22
¶376 Three Additional Issues. Finally, there are three
issues presented in this litigation that are relevant to the
John Doe trilogy as a whole. I discuss these three issues in my
analysis of the first case (the original action).
¶377 First, several motions to file amicus briefs on the
merits of the John Doe cases have been filed in this court. I
join the majority opinion's decision to grant them all.
¶378 Second, the Special Prosecutor filed a motion seeking
the recusal of certain named justices. Three motions to file
amicus briefs on the recusal issue have also been filed.
Neither the named justices nor the court as a whole has
21
See majority op., ¶13.
22
See majority op., ¶¶105-106.
11
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responded to the Special Prosecutor's recusal motion. The
recusal motion and the amicus motions remain pending, and the
due process concerns they raise remain unresolved.
¶379 Third, this court——over my dissent——ordered extensive
redactions and sealing in these John Doe cases. 23 Even if some
secrecy remains appropriate, the extent of the secrecy this
court has imposed is unwarranted.
¶380 Despite my numerous dissents objecting to the level of
secrecy imposed by this court in the John Doe trilogy, I have
endeavored to adhere to this court's sealing and redaction
orders. The same cannot be said for the majority opinion and
the concurrences authored by Justices Prosser and Ziegler.
¶381 The majority opinion declares that "we can interpret
the secrecy order and modify it to the extent necessary for the
public to understand our decision herein." See majority op.,
¶14 n.11. Justice Prosser's concurrence discusses the policy
reasons underlying secrecy in John Doe proceedings, concludes
that they are inapplicable to certain facts underlying the John
Doe trilogy, and thus determines that "discussion of these facts
is not inconsistent with the secrecy order." See Justice
Prosser's concurrence, ¶145.
¶382 The majority opinion and Justice Prosser's concurrence
decide that the secrecy order does not bind the justices of this
23
See this court's December 16, 2014, order and my
concurrence thereto (attached as Exhibit A) and this court's
March 27, 2015, order regarding redactions and my dissent
thereto (attached as Exhibit C).
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court. The secrecy order, in their view, binds only the parties
and the public.
¶383 Because the majority of this court disregards its own
secrecy order, Justice Prosser opines at length, without the
benefit of briefs or facts, about allegedly overbroad search
warrants and subpoenas. Moreover, he waxes eloquent about
privacy and the limits that should be placed on search warrants
seeking electronic material. But he has previously waxed
eloquent about privacy rights and has nevertheless upheld
searches of electronic material that he recognized raise
substantial privacy concerns. 24
¶384 Likewise, Justice Ziegler opines at length about the
allegedly unconstitutional manner in which the search warrants
were executed. She does so without the benefit of briefs or
facts.
¶385 Both justices opine about issues not previously raised
by the parties or the court without giving the parties an
opportunity to brief or argue the facts or law relevant to those
issues.
¶386 In my dissent to the court's redaction order dated
March 27, 2015, I explained at length why this court had the
power to disclose information that was ordered by the John Doe
judge to be concealed. See my dissent to this court's March 27,
2015, redaction order (attached hereto as Exhibit C). This
24
See State v. Subdiaz-Osorio, 2014 WI 87, ¶¶9-10, 357
Wis. 2d 41, 849 N.W.2d 748; State v. Tate, 2014 WI 89, 357
Wis. 2d 172, 849 N.W.2d 798.
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court disagreed, stating the following in its March 27, 2015,
redaction order:
The John Doe investigation that is the subject of the
several proceedings this court is reviewing remains an
open investigation. While that may complicate how
this court normally conducts its appellate review
functions, the convenience of this court and the
parties/counsel appearing before it does not provide a
sufficient basis on which to ignore the statutory
commands to maintain secrecy or the rules we have
already established for maintaining the secrecy of
John Doe materials.
¶387 It is unclear what has changed since this court issued
its March 27, 2015, redaction order that enables the court to
now exempt itself from the secrecy order.
¶388 For the reasons set forth, I write separately.
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No. 2014AP296-OA: Original Action: State of Wisconsin ex
rel. Two Unnamed Petitioners v. Gregory A. Peterson, John Doe
Judge, and Francis D. Schmitz, as Special Prosecutor
¶389 This original action was filed by Unnamed Movants 6
and 7, naming the Special Prosecutor and the John Doe judge as
defendants.
¶390 Unnamed Movants 6 and 7 seek a declaration that
Chapter 11 restricts campaign finance regulation to express
advocacy and regulation of issue advocacy violates the United
States and Wisconsin constitutions.
¶391 The majority opinion grants Unnamed Movants 6 and 7
their requested relief. I would not.
¶392 I conclude that coordinated disbursements for issue
advocacy constitute regulated contributions under Chapter 11 and
that such regulation does not violate the First Amendment. By
coordinated disbursements, I mean disbursements made by third
parties "for the benefit of a candidate" and "with the
authorization, direction or control of or otherwise by
prearrangement with the candidate or the candidate's agent." 25
By issue advocacy, I mean speech regarding issues of public
concern that does not expressly advocate the election or defeat
of a candidate. 26
25
See Wis. Stat. § 11.06(4)(d). See also § 11.06(7)
(describing independent disbursements as disbursements made by a
committee or individual who "does not act in cooperation or
consultation with any candidate or authorized committee of a
candidate" and who "does not act in concert with, or at the
request or suggestion of, any candidate or agent or authorized
committee of a candidate").
26
Wis. Right to Life, 551 U.S. at 456.
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¶393 Because I conclude that the Special Prosecutor has a
valid legal theory to support his investigation, I would allow
the John Doe proceedings to continue. Accordingly, I dissent.
¶394 I address the statutory and constitutional issues
presented in this original action as follows:
• In Part I, I describe the alleged election-related
activities of Unnamed Movants 6 and 7 that are the
subject of the John Doe investigation.
• In Part II, I determine that the Special Prosecutor's
theory of criminal activity is supported by Chapter
11. I disagree with the majority opinion's holding
that coordinated issue advocacy, like independent
issue advocacy, is beyond the reach of Chapter 11.
• In Part III, I conclude that the Special Prosecutor's
theory of criminal activity does not contravene the
state or federal constitution. I disagree with the
majority opinion's declarations that the Special
Prosecutor's interpretation of Chapter 11 renders
Chapter 11 unconstitutional and that a narrowing
construction must be applied to prevent Chapter 11's
invalidation.
¶395 In Part IV, I address three issues that are common to
the three cases before the court:
• In section A, I consider the motions to file amicus
briefs regarding the merits of the three cases. I
join the majority opinion's decision to grant them
all.
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• In section B, I discuss this court's insistence on
continued observance of the sweeping John Doe secrecy
order to which the three John Doe cases are subject.
In my view, the extent of secrecy mandated by the
court is not warranted.
• In section C, I consider the Special Prosecutor's
motion requesting the recusal of certain justices from
the John Doe cases. The recusal motion is still
pending (including any due process concerns), as are
three motions to file amicus briefs on the recusal
issue.
I
¶396 I cannot begin this writing with the usual recitation
of facts. There have been no findings of substantive fact by a
court or judge, nor stipulations of fact by the parties. 27 This
27
The only facts set forth in the petition and briefs filed
by Unnamed Movants 6 and 7 are procedural in nature, regarding
the appointment of the John Doe Judge and the Special Prosecutor
and the issuance and execution of subpoenas and search warrants.
Justice Ziegler's concurrence in the John Doe trilogy is
based solely on unsubstantiated allegations made in the parties'
briefs regarding the execution of the search warrants issued by
the John Doe judge. Although there have been no findings or
stipulations of fact regarding the execution of the search
warrants, Justice Ziegler nevertheless writes at length to
suggest that the execution of the search warrants rendered them
unconstitutional under the Fourth Amendment. She states:
"[E]ven if the search warrants were lawfully issued, the
execution of them could be subject to the reasonableness
analysis of the Fourth Amendment . . . ." Justice Ziegler's
concurrence, ¶¶309, 340. This issue has not been litigated and
is not, in my view, properly before this court.
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dearth of facts is in sharp contrast to the undisputed facts
underlying all prior original actions this court has accepted. 28
¶397 Although Unnamed Movants 6 and 7 claim that the
election-related activities alleged by the Special Prosecutor
are not regulated by Chapter 11, neither their petition for
leave to commence an original action nor their briefs in this
court specify the election-related activities to which they are
referring.
¶398 The Special Prosecutor's brief, on the other hand,
sets forth information he has gathered regarding the election-
related activities of Unnamed Movants 6 and 7, among others. On
the basis of this information, the Special Prosecutor asserts
that he has reason to believe that a particular candidate or
candidate's campaign committee coordinated with one or more
501(c) nonprofit entities; that these 501(c) nonprofit entities
made disbursements for issue ads in coordination with the
candidate or candidate's campaign committee; that the ads were
intended to benefit the candidate's campaign; and that the
candidate's campaign committee unlawfully failed to report these
28
See Wis. S. Ct. IOP II.B.3. (May 4, 2012), which provides
in relevant part as follows:
The Supreme Court is not a fact-finding tribunal, and
although it may refer issues of fact to a circuit
court or referee for determination, it generally will
not exercise its original jurisdiction in matters
involving contested issues of fact. Upon granting a
petition to commence an original action, the court may
require the parties to file pleadings and stipulations
of fact.
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coordinated disbursements as contributions received by the
candidate or candidate's campaign committee. 29
¶399 According to the Special Prosecutor, the candidate and
candidate's campaign committee coordinated with the 501(c)
nonprofit entities in large part through two political
operatives, namely Unnamed Movants 6 and 7. The Special
Prosecutor contends that Unnamed Movants 6 and 7 were paid by
the candidate's campaign committee and by one or more of the
29
The Special Prosecutor has a second and related theory
based on Wis. Stat. § 11.10(4). Section 11.10(4) provides that
a putatively separate committee that "acts with the cooperation
of or upon consultation with a candidate or agent or authorized
committee of a candidate, or which acts in concert with or at
the request or suggestion of a candidate or agent or authorized
committee of a candidate is deemed a subcommittee of the
candidate's personal campaign committee."
The Special Prosecutor asserts that coordination between
various 501(c) entities and the candidate's campaign committee
may have rendered one or more of the 501(c) entities statutory
subcommittees, whose receipt of contributions and disbursement
of funds are reportable by the candidate's campaign committee.
Under this theory, the candidate's campaign committee violated
Chapter 11 by failing to report issue advocacy disbursements
made by a subcommittee of the candidate's campaign committee.
The subcommittee theory is not as fully developed in the Special
Prosecutor's brief as the theory set forth above. Because I
conclude that the Special Prosecutor's primary theory is
sufficient to support the continuation of the John Doe
proceedings, it is unnecessary to decide whether the
subcommittee theory does so as well. Accordingly, I do not
address the subcommittee theory.
I note, as well, that the John Doe judge determined that
the Special Prosecutor offered no evidence of express advocacy.
The Special Prosecutor disagrees. I do not address this factual
dispute.
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501(c) nonprofit entities. Thus, Unnamed Movants 6 and 7 are
alleged to have acted in a dual capacity.
¶400 One of the Special Prosecutor's central allegations is
that Unnamed Movants 6 and 7 created and managed a particular
501(c) nonprofit organization to run issue ads for the benefit
of the candidate and the candidate's campaign, while the
candidate asked donors to contribute to the 501(c) nonprofit
organization instead of to the candidate's campaign committee in
a blatant attempt to avoid the regulations governing
contributions to candidates and their campaign committees.
Further, says the Special Prosecutor, while the 501(c) nonprofit
entities purchased the issue ads, the candidate——via Unnamed
Movants 6 and 7——controlled their content, timing, and
placement.
¶401 The "coordination" alleged by the Special Prosecutor
thus includes consultation between the candidate, the
candidate's campaign committee, Unnamed Movants 6 and 7, various
501(c) nonprofit entities, and associated individuals regarding
the content, timing, and placement of issue ads.
¶402 The Special Prosecutor contends that the objective
underlying this alleged coordination was to ensure that issue
ads purchased by the 501(c) nonprofit entities provided the
maximum benefit possible to the candidate's campaign. For
example, coordination would ensure correct and consistent
messaging in the issue ads purchased by the 501(c) nonprofit
entities.
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¶403 Such coordination could also serve to circumvent
Chapter 11's contribution restrictions and disclosure
requirements. Untold millions of dollars in undisclosed
contributions could be funneled into a 501(c) nonprofit entity
that purchases issue ads written or approved by a candidate or
the candidate's campaign manager. "If campaigns tell potential
contributors to divert money to nominally independent groups
that have agreed to do the campaigns' bidding, these
contribution limits become porous, and the requirement that
politicians' campaign committees disclose the donors and amounts
become useless." 30
¶404 The Special Prosecutor contends in the instant case
that coordination transformed the 501(c) nonprofit entities'
disbursements for issue advocacy into reportable contributions
to the candidate or candidate's campaign committee that the
candidate's campaign committee failed to report, violating
Chapter 11. 31
¶405 At this stage in the John Doe proceedings, the Special
Prosecutor need not prove that the 501(c) nonprofit entities in
fact made coordinated disbursements for issue advocacy that were
reportable by the candidate's campaign committee as
contributions received by the candidate or candidate's campaign
committee. Rather, this original action requires the court to
determine only whether the Special Prosecutor has a valid legal
30
O'Keefe, 769 F.3d at 941.
31
See Wis. Stat. §§ 11.27 and 11.61(1)(b).
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theory to support his investigation. If charges are eventually
filed, only then will a court face the question of whether the
alleged coordination took place.
¶406 According to the majority opinion, even if the alleged
coordination took place, Chapter 11 does not regulate it, and
thus the Special Prosecutor does not have a valid legal theory
to support his investigation. The majority opinion allows a
501(c) nonprofit entity to work hand-in-glove with a candidate
or candidate's campaign committee without violating Chapter 11
so long as the 501(c) nonprofit entity engages only in issue
advocacy.
¶407 I address the statutory and constitutional issues
presented in turn.
II
¶408 The first question presented is whether Chapter 11
requires a candidate's campaign committee to report certain
disbursements by 501(c) nonprofit entities as contributions
received by the candidate or candidate's campaign committee——
namely, disbursements for issue advocacy made in coordination
with the candidate or candidate's campaign committee. I
conclude that it does.
¶409 Chapter 11 is not easy to read or understand. It has
been described as "labyrinthian [sic] and difficult to decipher
without a background in this area of the law." 32 Nevertheless,
through careful reading and cognizance of certain fundamentals
32
Wis. Right to Life v. Barland (Barland II), 751 F.3d 804,
808 (7th Cir. 2014) (emphasis added).
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of campaign finance law, Chapter 11 can be and has been
deciphered. State and federal courts have successfully
interpreted and applied its provisions in a number of cases. 33
¶410 With that in mind, I turn to an examination of the
provisions of Chapter 11 at issue in this original action.
¶411 As an initial matter, there is no dispute that under
Wis. Stat. § 11.05(2g), a candidate's campaign committee is a
"registrant" for purposes of Chapter 11. It is also undisputed
that under Wis. Stat. § 11.06(1), "each registrant" must report
all "contributions received" and all "disbursements made."
¶412 But what constitutes a "contribution" or
"disbursement" under Chapter 11? Because the parties contest
the proper interpretation of these words (and thus the scope of
the reporting obligation to which a candidate's campaign
committee is subject), I turn to their statutory definitions.
¶413 "Contribution" is defined as, among other things, "[a]
gift, subscription, loan, advance, or deposit of money or
anything of value . . . made for political purposes." Wis.
Stat. § 11.01(6)(a) (emphasis added). 34 "Disbursement" is
33
See, e.g., id.
34
Section 11.01(6)(a) reads in relevant part as follows:
(6)(a) Except as provided in par. (b), "contribution"
means any of the following:
1. A gift, subscription, loan, advance, or deposit of
money or anything of value, except a loan of money by
a commercial lending institution made by the
institution in accordance with applicable laws and
regulations in the ordinary course of business, made
for political purposes. In this subdivision "anything
of value" means a thing of merchantable value.
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defined as, among other things, "[a] purchase, payment,
distribution, loan, advance, deposit, or gift of money or
anything of value . . . made for political purposes." Wis.
Stat. § 11.01(7)(a) (emphasis added). 35
¶414 An act done "for political purposes" is defined by
Wis. Stat. § 11.01(16) as an act "done for the purpose of
influencing the election or nomination for election of any
individual to state or local office . . . ." (Emphasis added.) 36
35
Section 11.01(7)(a) reads in relevant part as follows:
(7)(a) Except as provided in par. (b), "disbursement"
means any of the following:
1. A purchase, payment, distribution, loan, advance,
deposit, or gift of money or anything of value, except
a loan of money by a commercial lending institution
made by the institution in accordance with applicable
laws and regulations in the ordinary course of
business, made for political purposes. In this
subdivision, "anything of value" means a thing of
merchantable value.
36
Section 11.01(16) reads in full as follows:
(16) An act is for "political purposes" when it is
done for the purpose of influencing the election or
nomination for election of any individual to state or
local office, for the purpose of influencing the
recall from or retention in office of an individual
holding a state or local office, for the purpose of
payment of expenses incurred as a result of a recount
at an election, or for the purpose of influencing a
particular vote at a referendum. In the case of a
candidate, or a committee or group which is organized
primarily for the purpose of influencing the election
or nomination for election of any individual to state
or local office, for the purpose of influencing the
recall from or retention in office of an individual
holding a state or local office, or for the purpose of
influencing a particular vote at a referendum, all
administrative and overhead expenses for the
(continued)
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According to Unnamed Movants 6 and 7, the phrase "for the
purpose of influencing [an] election," and thus the phrase "for
political purposes," encompasses only express advocacy. The
Special Prosecutor, on the other hand, contends that the phrase
is broader and can encompass both express advocacy and issue
advocacy.
¶415 The statutory definition of the phrase "for political
purposes" specifically mentions express advocacy, stating: "Acts
which are for 'political purposes' include but are not limited
to . . . communication which expressly advocates the election,
defeat, recall or retention of a clearly identified
candidate . . . ." 37 Thus, there is no question that
maintenance of an office or staff which are used
principally for any such purpose are deemed to be for
a political purpose.
(a) Acts which are for "political purposes" include
but are not limited to:
1. The making of a communication which expressly
advocates the election, defeat, recall or retention of
a clearly identified candidate or a particular vote at
a referendum.
2. The conduct of or attempting to influence an
endorsement or nomination to be made at a convention
of political party members or supporters concerning,
in whole or in part, any campaign for state or local
office.
(b) A "political purpose" does not include
expenditures made for the purpose of supporting or
defending a person who is being investigated for,
charged with or convicted of a criminal violation of
state or federal law, or an agent or dependent of such
a person.
37
Wis. Stat. § 11.01(16)(a).
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disbursements made for express advocacy are made "for political
purposes" within the meaning of Chapter 11.
¶416 But the statutory definition of the phrase "for
political purposes" makes equally clear that its meaning is not
limited to express advocacy. Section 11.01(16) states that acts
for political purposes "include but are not limited to" express
advocacy. It further states that "[i]n the case of a
candidate . . . all administrative and overhead
expenses . . . are deemed to be for a political purpose." 38
Administrative and overhead expenses are not advocacy at all,
let alone express advocacy.
¶417 Thus, the contention by Unnamed Movants 6 and 7 and
the conclusion of the majority opinion that contributions and
disbursements are reportable under Chapter 11 only when they are
made for express advocacy purposes do not square with the
statutory language.
¶418 Nor does their position square with the function that
issue advocacy may play in elections. An issue ad may seek to
raise awareness about an issue generally or to inform voters of
a candidate's position on an issue. The latter category of
issue advocacy may influence voters' impressions of certain
38
Wis. Stat. § 11.01(16).
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candidates and may therefore influence elections. 39 Accordingly,
I conclude that the statutory definition of the phrase "for
political purposes" encompasses issue advocacy.
¶419 Not every issue ad, however, will benefit a particular
candidate's campaign——even if it is intended to do so. When
issue ads are developed independently of the candidate or the
candidate's campaign committee, the issue advocacy "might be
duplicative or counterproductive from a candidate's point of
view." 40
¶420 In contrast, when issue ads are developed in
coordination with the candidate or the candidate's campaign
committee, the disbursements made for such ads "are as useful to
the candidate as cash . . . ." 41 For this reason, the United
39
As the United States Supreme Court has explained,
"[c]andidates, especially incumbents, are intimately tied to
public issues involving legislative proposals and governmental
actions." Buckley v. Valeo, 424 U.S. 1, 42 (1976). See also
Wis. Right to Life, 551 U.S. at 456-57 (explaining that the
distinction between express advocacy and issue advocacy may
dissolve in practice because, as Buckley put it,
"[c]andidates . . . are intimately tied to public issues"
(quoting Buckley, 424 U.S. at 42)).
40
Fed. Election Comm'n v. Colo. Republican Fed. Campaign
Comm. (Colorado II), 533 U.S. 431, 446 (2001) (explaining why
independent disbursements made for issue advocacy are "poor
sources of leverage for a spender").
41
Id. at 446 (explaining why coordinated expenditures are
treated as contributions under federal law).
(continued)
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States Supreme Court has consistently treated coordinated
expenditures as regulated contributions. 42 The United States
Supreme Court has not differentiated between coordinated
expenditures made for issue advocacy purposes and coordinated
expenditures made for express advocacy purposes. The key factor
for the Court has been coordination.
¶421 This brings me to the next relevant provision within
Chapter 11: Wis. Stat. § 11.06(4). 43 This provision dictates
This is a point the United States Supreme Court has made
again and again. For example, in Buckley, 424 U.S. at 46, the
Court stated that "expenditures controlled by or coordinated
with the candidate and his campaign might well have virtually
the same value to the candidate as a contribution . . . ."
Similarly, in McConnell v. Fed. Election Comm'n, 540 U.S. 93,
221-22 (2003), overruled on other grounds by Citizens United v.
Fed. Election Comm'n, 558 U.S. 310 (2010), the Court explained
that "expenditures made after a 'wink or nod' often will be 'as
useful to the candidate as cash.'"
42
See, e.g., McConnell, 540 U.S. at 214-15 (explaining that
federal law "treats expenditures that are coordinated with a
candidate as contributions to that candidate"); Colo. Republican
Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 611
(1996) (stating that contribution limits in federal campaign
finance law apply not only to direct contributions but also to
"coordinated expenditures," that is, indirect contributions);
Buckley, 424 U.S. at 46 (providing that under federal law,
"controlled or coordinated expenditures are treated as
contributions rather than expenditures").
United States Supreme Court case law governing the
constitutionality of campaign finance statutes discusses
"expenditures," not "disbursements," because the word
"expenditure" is used in federal law. The word "disbursement"
is used in the Wisconsin statutes.
43
Section 11.06(4) provides in full as follows:
(4) When transactions reportable. (a) A contribution
is received by a candidate for purposes of this
chapter when it is under the control of the candidate
(continued)
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when contributions are reportable by registrants. Two
subsections are relevant here.
¶422 First, Wis. Stat. § 11.06(4)(a) declares as a general
matter that a contribution is received by a candidate "when it
is under the control of the candidate or campaign treasurer," or
the candidate or treasurer accepts the benefit thereof. When a
contribution is so received, it becomes reportable.
or campaign treasurer, or such person accepts the
benefit thereof. A contribution is received by an
individual, group or committee, other than a personal
campaign committee, when it is under the control of
the individual or the committee or group treasurer, or
such person accepts the benefit thereof.
(b) Unless it is returned or donated within 15 days of
receipt, a contribution must be reported as received
and accepted on the date received. This subsection
applies notwithstanding the fact that the contribution
is not deposited in the campaign depository account by
the closing date for the reporting period as provided
in s. 11.20(8).
(c) All contributions received by any person acting as
an agent of a candidate or treasurer shall be reported
by such person to the candidate or treasurer within 15
days of receipt. In the case of a contribution of
money, the agent shall transmit the contribution to
the candidate or treasurer within 15 days of receipt.
(d) A contribution, disbursement or obligation made or
incurred to or for the benefit of a candidate is
reportable by the candidate or the candidate's
personal campaign committee if it is made or incurred
with the authorization, direction or control of or
otherwise by prearrangement with the candidate or the
candidate's agent.
(e) Notwithstanding pars. (a) to (e), receipt of
contributions by registrants under s. 11.05(7) shall
be treated as received in accordance with that
subsection.
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¶423 Second, Wis. Stat. § 11.06(4)(d) declares that when a
disbursement is made "for the benefit of a candidate," it "is
reportable by the candidate or the candidate's personal campaign
committee if it is made . . . with the authorization, direction
or control of or otherwise by prearrangement with the candidate
or the candidate's agent." (Emphasis added.)
¶424 Although Wis. Stat. § 11.06(4)(d) fails to explicitly
state that coordinated disbursements are reportable by the
candidate's campaign committee as contributions to the candidate
or candidate's campaign committee, this interpretation is
compelled by the statutory context. All other subsections of
§ 11.06(4) explicitly govern the receipt and reporting of
contributions. The clear implication is that § 11.06(4)(d)
governs the receipt and reporting of contributions.
¶425 This interpretation is also supported by common sense.
Disbursements made in coordination with a candidate are as
valuable to the candidate as cash, according to the United
States Supreme Court, and are therefore treated as contributions
under federal law. 44 The same logic applies here: Disbursements
made "by prearrangement with the candidate or the candidate's
44
Buckley, 424 U.S. at 46.
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agent" are as valuable to the candidate as cash and are
therefore treated as contributions under Wisconsin law. 45
¶426 In contrast, a disbursement made without
prearrangement with a candidate or the candidate's agent is an
independent disbursement, not a contribution to the candidate or
candidate's campaign committee, and is governed by different
rules. 46
¶427 As this discussion makes clear, the words
"contribution" and "disbursement" have distinct but intertwined
meanings within Chapter 11. The Special Prosecutor's theory of
criminal activity in the instant case relies upon the connection
between the two. He argues that when a 501(c) nonprofit entity
makes disbursements for issue advocacy in coordination with a
candidate's campaign committee, such disbursements are
reportable by the candidate's campaign committee as
contributions received by the candidate or candidate's campaign
committee. He further argues that he has reason to believe a
45
Wis. Stat. § 11.06(4)(d). See also Wis. Coalition for
Voter Participation, Inc. v. State Elections Bd. (WCVP), 231
Wis. 2d 670, 681, 605 N.W.2d 654 (Ct. App. 1999) (explaining
that both federal campaign finance regulations and Chapter 11
"treat expenditures that are 'coordinated' with, or made 'in
cooperation with or with the consent of a candidate . . . or an
authorized committee' as campaign contributions" (emphasis
added)). The majority opinion apparently overrules WCVP to the
extent that WCVP implies that the definition of the phrase "for
political purposes" in Chapter 11 extends beyond express
advocacy and its functional equivalent. See majority op., ¶68
n.23.
46
See, e.g., Wis. Stat. § 11.06(2) (providing that
independent disbursements are reportable only if they are for
express advocacy purposes).
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particular candidate's campaign committee is guilty of violating
Chapter 11 by failing to fulfill this reporting obligation. 47
¶428 For the reasons set forth, the Special Prosecutor's
theory of criminal activity in the John Doe proceedings
underlying this original action has a sound basis in the
statutory text.
¶429 Because I agree with the Special Prosecutor that
Chapter 11 requires a candidate's campaign committee to report
coordinated disbursements for issue advocacy as contributions
received by the candidate or candidate's campaign committee, I
now consider whether this interpretation of Chapter 11 is
constitutionally permissible. As might be expected, the Special
Prosecutor says it is, while Unnamed Movants 6 and 7 and the
majority opinion say it is not.
III
¶430 Two constitutional questions are presented in this
original action. The first is whether Chapter 11's requirement
that a candidate's campaign committee report coordinated
disbursements for issue advocacy as contributions to the
candidate or candidate's campaign committee violates the First
Amendment. The second is whether the provisions of Chapter 11
that impose the reporting requirement at issue are
47
See Wis. Stat. § 11.27(1) (providing that "[n]o person
may prepare or submit a false report or statement to a filing
officer under this chapter"); Wis. Stat. § 11.61(1)(b) (stating
that "[w]hoever intentionally violates . . . 11.27(1) . . . is
guilty of a Class I felony if the intentional violation does not
involve a specific figure or if the intentional violation
concerns a figure which exceeds $100 in amount or value").
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unconstitutionally vague or overbroad. Whether the reporting
requirement at issue is contrary to the First Amendment and
whether the provisions imposing that requirement are
unconstitutionally vague or overbroad are interrelated
questions. 48 I address these questions in turn.
¶431 The absolutist constitutional position advanced by
Unnamed Movants 6 and 7 and adopted by the majority opinion
hook, line, and sinker is that the First Amendment bars the
State from regulating any issue advocacy in any manner. In
their view, the First Amendment protects against state
regulation of disbursements for issue advocacy regardless of
whether the disbursements are made independently or in
coordination with a candidate or candidate's campaign committee.
I disagree.
¶432 The majority opinion's rhetoric would lead the reader
to conclude that the case law provides a clear answer to the
First Amendment issue before the court, namely that the Unnamed
Movants' position is correct and that the Special Prosecutor's
position "is unsupported in either reason or law." 49 The
majority opinion's view contradicts the views expressed by both
the John Doe judge and the United States Court of Appeals for
the Seventh Circuit.
48
Center for Individual Freedom v. Madigan, 697 F.3d 464,
479 (7th Cir. 2012) ("In the First Amendment context, vagueness
and overbreadth are two sides of the same coin . . . .").
49
Majority op., ¶11.
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¶433 The John Doe judge observed that the First Amendment
question presented in this original action has "spawned
considerable litigation." 50 It is, he explained, "an important
question" that deserves, but does not yet have, "a definitive
answer." 51
¶434 Similarly, in O'Keefe v. Chisholm, 769 F.3d 936 (7th
Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015), the Seventh
Circuit Court of Appeals made it perfectly clear that the
Special Prosecutor's theory is rooted in a live legal issue.
The O'Keefe court stated that whether coordinated issue advocacy
disbursements are regulable under the First Amendment is far
from "beyond debate." 52 On the contrary, it explained: The
Special Prosecutor's theory of criminal activity in the John Doe
50
In his November 6, 2014, order denying the two Unnamed
Movants' motion to have the Special Prosecutor show cause why
the John Doe investigation should not be ended, the John Doe
judge stated:
[T]here is a strong public interest in having the
appellate courts answer the statutory question that is
at the heart of this litigation: when Wisconsin's
campaign finance laws prohibit coordination between
candidates and independent organizations for a
political purpose, does that political purpose require
express advocacy? This is an important question that
has spawned considerable litigation. The citizens of
this state need and deserve a definitive answer. They
will not get one if I grant the motion.
This order was not publicly released. Other portions of
the order refer to matters subject to the John Doe secrecy
order. The above-quoted portion does not.
51
See the John Doe judge's November 6, 2014, order.
52
O'Keefe, 769 F.3d at 942.
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investigation underlying this litigation "reflects Buckley's
interpretation of the First Amendment." 53 Indeed, the O'Keefe
court stated, "[n]o opinion issued by the Supreme Court, or by
any court of appeals, establishes ('clearly' or otherwise) that
the First Amendment forbids regulation of coordination between
campaign committees and issue-advocacy groups——let alone that
the First Amendment forbids even an inquiry into that topic." 54
¶435 This statement in O'Keefe is particularly telling
considering that the majority opinion relies heavily on a prior
opinion of the same federal court of appeals: Wisconsin Right
to Life, Inc. v. Barland (Barland II), 751 F.3d 804 (7th Cir.
2014). Barland II does not render this original action an open-
53
Id. at 941.
54
The relevant portion of the O'Keefe opinion provided in
full as follows:
Plaintiffs' claim to constitutional protection for
raising funds to engage in issue advocacy coordinated
with a politician's campaign committee [the same claim
asserted by Unnamed Movants 6 and 7 in this original
action] has not been established "beyond debate." To
the contrary, there is a lively debate among judges
and academic analysts. The Supreme Court regularly
decides campaign-finance issues by closely divided
votes. No opinion issued by the Supreme Court, or by
any court of appeals, establishes ("clearly" or
otherwise) that the First Amendment forbids regulation
of coordination between campaign committees and issue-
advocacy groups——let alone that the First Amendment
forbids even an inquiry into that topic.
O'Keefe, 769 F.3d at 942.
For discussion of whether coordinated issue advocacy is
constitutionally protected, see, e.g., Ferguson, supra note 12;
Briffault, supra note 12; Smith, supra note 12.
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and-shut case, much as the majority opinion would like us to
believe.
¶436 Like the John Doe judge and the Seventh Circuit Court
of Appeals, I conclude that the constitutional question
presented has not yet been definitively resolved. The answer
must be deduced through careful analysis of a complex body of
federal case law that has set forth principles governing the
constitutionality of campaign finance statutes. In my view,
this careful analysis reveals that Chapter 11's requirement that
a candidate's campaign committee report coordinated issue
advocacy disbursements as contributions received by the
candidate or candidate's campaign committee does not violate the
First Amendment.
¶437 The federal case law governing the constitutionality
of campaign finance statutes, much like Chapter 11, presents a
labyrinth that must be navigated. The starting point is Buckley
v. Valeo, 424 U.S. 1 (1976), a long and complex opinion that
considered whether various provisions of the Federal Election
Campaign Act of 1971, as amended in 1974, were consistent with
the First Amendment.
¶438 Buckley drew a distinction between contributions to
candidates and their campaign committees, on the one hand, and
independent expenditures for political expression, on the other
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hand. 55 It declared that under the First Amendment, ceilings may
be imposed on contributions but not on independent
expenditures. 56 The Buckley Court reached this conclusion by
scrutinizing the burdens imposed on political speech by
contributions and independent expenditure limits, respectively,
and by evaluating those burdens in light of the governmental
interests such limits serve. 57
¶439 The Buckley Court first determined that the burden
imposed on political speech by contribution limits is minimal:
"A limitation on the amount of money a person may give to a
candidate or campaign organization [] involves little direct
restraint on his political communication, for it permits the
symbolic expression of support evidenced by a contribution but
does not . . . infringe [on] the contributor's freedom to
discuss candidates and issues." 58 The Court then declared that
the government's interest in "the prevention of corruption and
the appearance of corruption spawned by the real or imagined
coercive influence of large financial contributions" provides a
55
See generally Buckley, 424 U.S. at 14-23. See also
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 345
(2010) ("The Buckley Court explained that the potential for quid
pro quo corruption distinguished direct contributions to
candidates from independent expenditures.").
56
Buckley, 424 U.S. at 23-59.
57
Id.
58
Id. at 21.
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"constitutionally sufficient justification" for this minimal
burden. 59
¶440 In contrast, the Buckley Court declared that
independent expenditure limits "impose direct and substantial
restraints on the quantity of political speech" that are not
justified by the government's anti-corruption interest. 60 Unlike
contributions, the Court explained,
independent expenditures may [] provide little
assistance to the candidate's campaign and indeed may
prove counterproductive. The absence of
prearrangement and coordination of an expenditure with
the candidate or his agent not only undermines the
value of the expenditure to the candidate, but also
alleviates the danger that expenditures will be given
as a quid pro quo for improper commitments from the
candidate. 61
¶441 After upholding contribution limits and striking down
independent expenditure limits, the Buckley Court turned to the
constitutionality of disclosure requirements. It concluded that
such requirements are constitutionally permissible as applied
both to contributions and to independent expenditures made for
express advocacy purposes, 62 reasoning that disclosure
59
Id. at 25-26.
60
Id. at 39.
61
Id. at 47.
62
As a matter of statutory interpretation (to avoid
invalidation on vagueness grounds), the Buckley Court determined
that the independent expenditure disclosure requirement applied
only to independent expenditures made for express advocacy
purposes, not to independent expenditures made for issue
advocacy purposes. Buckley, 424 U.S. at 78-80. The Court did
not so limit the contribution disclosure requirement. Id. at
78.
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requirements impose no ceiling on political speech and are an
effective anti-corruption measure. 63 Indeed, the Court
explained, disclosure requirements "appear to be the least
restrictive means of curbing the evils of campaign ignorance and
corruption that Congress found to exist." 64
¶442 In all three regulatory contexts——that is, with regard
to contribution limits, independent expenditure limits, and
disclosure requirements——the Buckley Court made one point
eminently clear: Coordinated expenditures constitute
contributions to the candidate or candidate's campaign committee
for purposes of federal law. More specifically, the Court held
that federal law treats expenditures as contributions received
by the candidate or candidate's campaign committee if the
expenditures are prearranged or coordinated with the candidate
or are "placed in cooperation with or with the consent of a
candidate." 65 After all, the Court explained, these expenditures
are in reality "disguised contributions." 66 Disguised
contributions are subject to the limitations and disclosure
requirements that govern all other contributions. 67
63
Buckley, 424 U.S. at 66.
64
Id. at 68.
65
Id. at 78.
66
Id. at 46-47. See also Ferguson, supra note 12, at 479
(explaining that the United States Supreme Court "continues to
clearly signal that the line between contributions and
expenditures depends on a spender's independence").
67
Buckley, 424 U.S. at 46-47.
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¶443 In declaring that coordinated expenditures constitute
disguised contributions to the candidate or candidate's campaign
committee, the Buckley Court did not specify whether it meant
all coordinated expenditures or only coordinated expenditures
made for express advocacy purposes. The Buckley Court's broad
statement that coordinated expenditures constitute disguised
contributions would seem to compel the conclusion that the type
of advocacy such expenditures implement is irrelevant; the
coordination is what matters. This is the approach taken by the
Special Prosecutor. Unnamed Movants 6 and 7, however, urge this
court to hold that only coordinated expenditures for express
advocacy constitute disguised contributions.
¶444 Subsequent case law sheds light on this issue. Post-
Buckley decisions have followed Buckley's holding that
coordinated expenditures are subject to the limitations and
disclosure requirements governing contributions. The case law
discussing coordinated expenditures has not distinguished
between coordinated expenditures for express advocacy and for
issue advocacy.
¶445 Federal Election Commission v. Colorado Republican
Federal Campaign Committee (Colorado II), 533 U.S. 431, 446
(2001), is illustrative. The Colorado II Court reaffirmed
Buckley's analysis of disguised contributions, explaining that
there is no difference between coordinated expenditures and
direct contributions to a candidate or candidate's campaign
committee that would justify treating the two differently. 68
68
Colorado II, 533 U.S. at 464-65.
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Coordinated expenditures, like contributions, might be given as
a quid pro quo for improper commitments from the candidate.
¶446 The Colorado II Court summarized Buckley's discussion
of disguised contributions as follows:
[In Buckley], the rationale for endorsing Congress's
equation of coordinated expenditures and contributions
was that the equation "prevent[s] attempts to
circumvent the Act through prearranged or coordinated
expenditures amounting to disguised contributions."
The idea was that coordinated expenditures are as
useful to the candidate as cash, and that such
"disguised contributions" might be given "as a quid
pro quo for improper commitments from the candidate"
(in contrast to independent expenditures, which are
poor sources of leverage for a spender because they
might be duplicative or counterproductive from a
candidate's point of view). In effect, therefore,
Buckley subjected limits on coordinated expenditures
by individuals and nonparty groups to the same
scrutiny it applied to limits on their cash
contributions. 69
69
Id. at 446 (citations omitted).
Later on, the Colorado II Court further stated that
[t]here is no significant functional difference
between a party's coordinated expenditure and a direct
party contribution to the candidate, and there is good
reason to expect that a party's right of unlimited
coordinated spending would attract increased
contributions to parties to finance exactly that kind
of spending. Coordinated expenditures of money
donated to a party are tailor-made to undermine
contribution limits. Therefore the choice here is
not, as in Buckley and Colorado I, between a limit on
pure contributions and pure expenditures. The choice
is between limiting contributions and limiting
expenditures whose special value as expenditures is
also the source of their power to corrupt.
Colorado II, 533 U.S. at 464-65.
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¶447 In Federal Election Commission v. Christian Coalition,
52 F. Supp. 2d 45, 87-88 (D.D.C. 1999), the D.C. District Court
rejected as untenable the notion that coordinated express
advocacy expenditures and coordinated issue advocacy
expenditures should be treated differently. 70 Both constitute
disguised contributions, the court held, and both should be
treated as such. 71
¶448 The Christian Coalition court made clear that issue
advocacy is not beyond the reach of a state's regulatory power
as a matter of constitutional law, explaining that the First
Amendment permits "only narrowly tailored restrictions on speech
that advance the Government's anti-corruption interest, but the
Coalition's position allows for no restrictions at all on
[coordinated issue advocacy] expenditures." 72 The Christian
Coalition court then declared that the distinction drawn in
Buckley between issue advocacy and express advocacy is of no
constitutional or statutory import in the realm of coordinated
expenditures:
[I]mporting the 'express advocacy' standard into [the
contribution regulation at issue] would misread
70
Federal Election Commission v. Christian Coalition, 52 F.
Supp. 2d 45 (D.D.C. 1999).has had a far-reaching impact on state
and federal regulation of campaign coordination. See Ferguson,
supra note 12, at 481.
71
Christian Coalition, 52 F. Supp. 2d at 88.
72
Christian Coalition, 52 F. Supp. 2d at 88. See also
McConnell, 540 U.S. at 190 ("[T]he express advocacy restriction
[imposed by Buckley] was an endpoint of statutory
interpretation, not a first principle of constitutional law.").
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Buckley and collapse the distinction between
contributions and independent expenditures in such a
way as to give short shrift to the government's
compelling interest in preventing real and perceived
corruption that can flow from large campaign
73
contributions.
¶449 Christian Coalition recognizes that distinguishing
between coordinated issue advocacy expenditures and coordinated
express advocacy expenditures would ignore the basic fact that
both can be "as useful to the candidate as cash." 74 Indeed, the
Christian Coalition court explained that
[c]oordinated expenditures for [communications that
spread a negative message about an opponent] would be
substantially more valuable than dollar-equivalent
contributions [to a candidate] because they come with
an 'anonymity premium' of great value to a candidate
running a positive campaign. Allowing such
coordinated expenditures would frustrate both the
anticorruption and disclosure goals of the Act. 75
¶450 In my opinion, Christian Coalition provides a
persuasive reading of the First Amendment principles set forth
73
Christian Coalition, 52 F. Supp. 2d at 88.
74
McConnell, 540 U.S. at 221.
75
Christian Coalition, 52 F. Supp. 2d at 88.
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in Buckley and its progeny. 76 It pays heed to the functionalist
approach the case law takes to distinguishing between
contributions to the candidate or candidate's campaign committee
and independent expenditures, 77 and it is careful not to extend
prior campaign finance holdings beyond their intended scope. It
is also supported by federal case law, which makes clear that
campaign finance disclosure requirements can constitutionally
reach beyond express advocacy and its functional equivalent and
76
The few Wisconsin authorities available on the subject of
coordinated disbursements track the reasoning of Christian
Coalition. See, e.g., Wis. Coalition for Voter Participation,
Inc. v. State Elections Bd. (WCVP), 231 Wis. 2d 670, 605
N.W.2d 654 (Ct. App. 1999) (addressing Chapter 11's regulation
of coordinated issue advocacy disbursements in Justice Jon
Wilcox's election campaign). In WCVP, the Wisconsin court of
appeals explained that although Buckley imposed limits on the
regulation of independent disbursements for issue ads, "neither
Buckley nor [Chapter 11] limit the state's authority to regulate
or restrict campaign contributions." Id. at 679. The WCVP
court further explained that Chapter 11 "treat[s] expenditures
that are 'coordinated' with, or made 'in cooperation with or
with the consent of a candidate . . . or an authorized
76
committee' as campaign contributions." Id. at 681 Under WCVP,
the mere fact that Chapter 11 regulates coordinated
disbursements for issue ads does not conflict with the
constitutional principles set forth in Buckley.
See also Wis. El. Bd. Op. 00-2 (reaffirmed Mar. 26, 2008)
adopting the Christian Coalition approach to examining the
conduct of the candidate and the entity disbursing funds and
explaining that "the Courts seemed to be willing to merge
express advocacy with issue advocacy if 'coordination' between
the spender and the campaign is sufficient."
77
See, e.g., McConnell, 540 U.S. at 221 (2003) ("[T]he
rationale for affording special protection to wholly independent
expenditures has nothing to do with the absence of agreement and
everything to do with the functional consequences of different
types of expenditures.").
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thus makes clear that the express/issue advocacy distinction is
not constitutionally relevant in all campaign finance contexts. 78
78
In Citizens United, 558 U.S. at 368-69, the Court
rejected the contention that "the disclosure requirements in
§ 201 [of the Bipartisan Campaign Reform Act of 2002] must be
confined to speech that is the functional equivalent of express
advocacy." Id. at 368. The distinction between issue advocacy
and express advocacy drawn by the Court in prior cases
considering restrictions on independent expenditures should not,
the Citizens United Court held, be imported into the realm of
disclosure requirements. By making clear that the express/issue
advocacy distinction is relevant only with regard to independent
expenditures, Citizens United corroborates Christian Coalition's
holding that the distinction is irrelevant to the limits and
disclosure requirements applicable to coordinated expenditures.
Madigan, 697 F.3d at 484, relies on this discussion in
Citizens United to support its conclusion that the express/issue
advocacy distinction is constitutionally irrelevant in the
context of disclosure requirements:
[M]andatory disclosure requirements are
constitutionally permissible even if ads contain no
direct candidate advocacy . . . . Whatever the status
of the express advocacy/issue discussion distinction
may be in other areas of campaign finance law,
Citizens United left no doubt that disclosure
requirements need not hew to it to survive First
Amendment scrutiny. With just one exception, every
circuit that has reviewed First Amendment challenges
to disclosure requirements since Citizens United has
concluded that such laws may constitutionally cover
more than just express advocacy and its functional
equivalents, and in each case the court upheld the
law.
(Citation omitted.)
(continued)
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¶451 I move on to Wisconsin Right to Life v. Barland
(Barland II), 751 F.3d 804 (7th Cir. 2014). Despite
implications to the contrary in the majority opinion, Barland II
is consistent with Christian Coalition. Barland II addresses
the regulation of independent spending under Chapter 11, while
Madigan cites and relies on other federal cases that reach
the same conclusion in light of Citizens United, including The
Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681
F.3d 544, 551 (4th Cir. 2012) (explaining that Citizens United
upheld disclosure requirements for communications "that are not
the functional equivalent of express advocacy"); Nat'l Org. for
Marriage v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011) ("We find
it reasonably clear, in light of Citizens United, that the
distinction between issue discussion and express advocacy has no
place in First Amendment review of these sorts of disclosure-
oriented laws."); and Human Life of Wash., Inc. v. Brumsickle,
624 F.3d 990, 1016 (9th Cir. 2010) ("Given the Court's analysis
in Citizens United, and its holding that the government may
impose disclosure requirements on speech, the position that
disclosure requirements cannot constitutionally reach issue
advocacy is unsupportable.").
Since Madigan was decided, additional federal cases have
interpreted Citizens United in the same manner, that is, as
declaring that campaign finance disclosure requirements can
cover more than express advocacy and its functional equivalent
without running afoul of the First Amendment. See Vt. Right to
Life Comm. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) ("In
Citizens United, the [United States] Supreme Court expressly
rejected the 'contention that the disclosure requirements must
be limited to speech that is the functional equivalent of
express advocacy,' because disclosure is a less restrictive
strategy for deterring corruption and informing the
electorate."); Iowa Right to Life Comm. v. Tooker, 717 F.3d 576,
591 n.1 (8th Cir. 2013) ("Disclosure requirements need not 'be
limited to speech that is the functional equivalent of express
advocacy.'" (quoting Citizens United); Independence Inst. v.
Fed. Election Comm'n, ___ F. Supp. 3d ___, 2014 WL 4959403(D.D.C. Oct. 6, 2014) (stating that the Citizens United Court
"in no uncertain terms . . . rejected the attempt to limit
[federal campaign finance law] disclosure requirements to
express advocacy and its functional equivalent").
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Christian Coalition tackles the regulation of coordinated
spending under federal law.
¶452 In Barland II, Wisconsin Right to Life (a 501(c)
nonprofit entity) and its state political action committee
challenged various provisions within Chapter 11 as
unconstitutional only insofar as those provisions
"trigger[ed] . . . restrictions and requirements for independent
groups not under the control of a candidate or candidate's
committee . . . ." 79 The Barland II court was careful to note
that Wisconsin Right to Life and its state PAC "operate[d]
independently of candidates and their campaign committees." 80
¶453 In contrast to the independent groups at issue in
Barland II, in the instant case the Special Prosecutor contends
that 501(c) nonprofit entities made disbursements for issue ads
in coordination with a candidate's campaign committee. The
disbursements at issue in the present case are not independent.
Barland II does not extend beyond the context of independent
political speech and is therefore not dispositive of the First
Amendment question presented in this original action.
¶454 Given this case law, I would hold that in the eyes of
both Chapter 11 and the First Amendment, coordinated
disbursements are disguised contributions regardless of whether
they are made for express advocacy or issue advocacy purposes.
Accordingly, in contrast to the majority opinion, I would hold
79
Barland II, 751 F.3d at 829 (emphasis added).
80
Id. at 809.
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that Chapter 11's requirement that a candidate's campaign
committee report coordinated issue advocacy disbursements as
contributions is consistent with the First Amendment.
¶455 Unnamed Movants 6 and 7 further contend, and the
majority opinion holds, that their interpretation of Chapter 11
is compelled by the doctrines of overbreadth and vagueness. I
turn to this argument now.
¶456 The Unnamed Movants' positions on overbreadth and
vagueness are twofold.
¶457 First, they urge that the phrase "for political
purposes," which is part of Chapter 11's definitions of the
words "contribution" 81 and "disbursement," 82 is unconstitutionally
vague and overbroad unless the phrase is read to mean "for
express advocacy purposes."
¶458 Second, Unnamed Movants 6 and 7 contend that the
concept of "coordination" within Chapter 11 is fatally
imprecise. In their view, the provisions of Chapter 11 that
ostensibly regulate coordination, including § 11.06(4)(d),
should be struck down as unconstitutionally vague and overbroad
or, at the very least, limited to express advocacy.
¶459 I address these arguments in turn. To address
overbreadth and vagueness arguments relating to the phrase "for
political purposes," I return to Buckley and Barland II.
Unnamed Movants 6 and 7 contend, and the majority opinion
81
See Wis. Stat. § 11.01(6)(a).
82
See Wis. Stat. § 11.01(7)(a).
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agrees, that an express-advocacy limiting construction must be
applied in the instant case based on Buckley and Barland II.
They misread the case law.
¶460 The Buckley Court applied an express-advocacy limiting
construction to two statutory provisions, one imposing a limit
on expenditures and one requiring that expenditures be reported.
¶461 The provision imposing a limit on expenditures stated
that "[n]o person may make any expenditure . . . relative to a
clearly identified candidate during a calendar year which, when
added to all other expenditures made by such person during the
year advocating the election or defeat of such
candidate, exceeds $1,000." 83 The challengers in Buckley argued
that the phrase "relative to a clearly identified candidate" is
unconstitutionally vague. The Buckley Court agreed.
¶462 The Buckley Court explained that the challenged
provision failed to clarify whether it covered both express
advocacy and issue advocacy expenditures. The Court decided,
however, that in the context of the provision as a whole, the
phrase "relative to a clearly identified candidate" could mean
"advocating the election or defeat of a candidate," that is,
could mean express advocacy. 84 The Court determined that this
reading would avoid vagueness concerns. Thus, it construed the
expenditure limit as applying only to express advocacy.
83
Buckley, 424 U.S. at 39 (emphasis added).
84
Id. at 42.
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¶463 The second provision to which the Buckley Court
applied an express-advocacy limiting construction required
expenditures to be disclosed. The word "expenditure" was
defined "in terms of the use of money or other valuable assets
'for the purpose of . . . influencing' the nomination or
election of candidates for federal office." 85 The Court
determined that vagueness concerns arose insofar as this
expenditure disclosure provision applied to individuals other
than candidates and political committees because the phrase "for
the purpose . . . of influencing [an election]" carries the
potential "for encompassing both issue discussion and advocacy
of a political result." 86
¶464 To avoid vagueness concerns, the Court again applied
an express-advocacy limiting construction, this time to the
phrase "for the purpose of . . . influencing [an election]."
The Court held that the expenditure disclosure provision
required expenditures by entities other than candidates and
political committees to be disclosed under only two
circumstances: (1) when the expenditures were authorized or
requested by a candidate or his agent (i.e., coordinated
expenditures); and (2) when the expenditures were for express
advocacy (i.e., independent express advocacy expenditures). 87
Independent issue advocacy expenditures were not required to be
disclosed.
85
Id. at 77.
86
Id. at 79.
87
Id. at 80.
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¶465 Importantly, the Buckley Court's application of these
express-advocacy limiting constructions was confined to the
realm of independent expenditures. As previously explained, the
Buckley Court considered coordinated expenditures to be
"disguised contributions." 88 Buckley expressly rejected the
argument that the statutory provisions imposing limits and
disclosure requirements on contributions were unconstitutionally
vague or overbroad. 89
¶466 Further, in applying express-advocacy limiting
constructions to the statutory provisions imposing limits and
disclosure requirements on independent expenditures, the Buckley
Court did not establish as a matter of constitutional law that
regulation of issue advocacy is impermissible. No United States
Supreme Court decision, and no decision of this court (until
today), has gone so far. 90
¶467 Although the majority opinion removes all issue
advocacy from state regulation, the United States Supreme Court
in McConnell v. Federal Election Commission, 540 U.S. 93, 190-91
88
Id. at 46-47. See also Colorado II, 533 U.S. at 463-64
(explaining that the imposition of a limiting construction on
provisions imposing expenditure limits in Buckley and subsequent
federal cases "ultimately turned on the understanding that the
expenditures at issue were not potential alter egos for
contributions, but were independent . . . . [T]he
constitutionally significant fact . . . was the lack of
coordination between the candidate and the source of the
expenditure" (internal quotation marks and citation omitted)
(emphasis added)).
89
See Buckley, 424 U.S. at 29-30, 78.
90
See O'Keefe, 769 F.3d at 942.
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(2003), overruled on other grounds by Citizens United v. Fed.
Election Comm'n, 558 U.S. 310 (2010), explicitly ruled that it
would be a "misapprehen[sion]" to read Buckley as holding that
there exists "a constitutionally mandated line between express
advocacy and so-called issue advocacy, and that speakers possess
an inviolable First Amendment right to engage in the latter
category of speech." 91 Rather, said the McConnell Court,
a plain reading of Buckley makes clear that the
express advocacy limitation, in both the expenditure
and the disclosure contexts, was the product of
statutory interpretation rather than a constitutional
command. In narrowly reading the [federal law]
provisions in Buckley to avoid problems of vagueness
and overbreadth, we nowhere suggested that a statute
that was neither vague nor overbroad would be required
to toe the same express advocacy line. 92
¶468 With this United States Supreme Court precedent in
mind, the Barland II court took up the issues of vagueness and
overbreadth within Chapter 11.
¶469 The statutory provision considered by the Barland II
court that is relevant to this original action is Wis. Stat.
§ 11.01(16), which (as explained previously) defines the phrase
"for political purposes."
¶470 Pursuant to § 11.01(16), an act is done "for political
purposes" when it is intended to influence an election. The
91
McConnell, 540 U.S. at 190.
92
Id. at 191-92 (footnote omitted).
See also Wis. Right to Life, 551 U.S. at 474 n.7 (Roberts,
C.J., controlling opinion) ("Buckley's intermediate step of
statutory construction on the way to its constitutional holding
does not dictate a constitutional test.").
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Barland II court considered the meaning of the "influence an
election" language in the context of reporting requirements and
other duties and restrictions applicable to the independent
political speakers at issue in that case.
¶471 The Barland II court announced that as applied to
independent political speakers, the phrase "for political
purposes" must be narrowly construed to cover only "express
advocacy and its functional equivalent." 93 The factual scenario
presented to this court in this original action was expressly
excluded from Barland II's express-advocacy limiting
construction. 94 Barland II does not require this court to apply
an express-advocacy limiting construction beyond the context of
the independent political speech involved in that case.
¶472 Keeping in mind the express-advocacy limiting
constructions applied in Buckley to the phrases "relative to a
clearly identified candidate" and "for the purposes
of . . . influencing . . . [an] election," and in Barland II to
the phrase "for the purpose of influencing [an] election," I
turn to the vagueness and overbreadth challenges advanced by
Unnamed Movants 6 and 7 and accepted by the majority opinion in
this original action.
93
Barland II, 751 F.3d at 834.
94
Barland II, 751 F.3d at 834 ("As applied to political
speakers other than candidates, their committees, and political
parties, the statutory definition of 'political
purposes' . . . [is] limited to express advocacy and its
functional equivalent . . . .") (emphasis added).
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¶473 The fundamental point to remember in deciding campaign
finance law cases is that context is key. When vagueness or
overbreadth concerns arise in the campaign finance context, they
arise with regard to particular conduct and specified political
speakers. When a limiting construction has been applied to a
campaign finance statute, it has been applied with regard to
particular conduct and specified political speakers. 95 Just
because a phrase is vague or overbroad in one context within
Chapter 11 does not mean it is vague or overbroad throughout the
Chapter.
¶474 The provision at issue in the instant case is the
requirement in Wis. Stat. § 11.06(1) that registrants report all
contributions received. The definition of "contribution" under
Chapter 11 comports with the definition of "contribution"
considered in Buckley: Anything of value given for the purposes
of influencing an election. The Buckley Court expressly
declined to apply an express-advocacy limiting construction to
the phrase "for the purpose of influencing [an] election" in the
definition of "contribution," finding no constitutional
infirmity:
The Act does not define the phrase "for the purpose of
influencing" an election that determines when a gift,
loan, or advance constitutes a contribution. Other
95
See Barland II, 751 F.3d at 837 ("The First Amendment
vagueness and overbreadth calculus must be calibrated to the
kind and degree of the burdens imposed on those who must comply
with the regulatory scheme."). See also United States v.
Williams, 553 U.S. 285, 293 (2008) ("[I]t is impossible to
determine whether a statute reaches too far without first
knowing what the statute covers.").
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courts have given that phrase a narrow meaning to
alleviate various problems in other contexts. The use
of the phrase presents fewer problems in connection
with the definition of a contribution because of the
limiting connotation created by the general
understanding of what constitutes a political
contribution. 96
¶475 I would adhere to Buckley and its progeny. I would
not construe Wis. Stat. § 11.06(1) as excluding coordinated
disbursements for issue advocacy from its general requirement
that "all contributions received" by a candidates or candidate's
campaign committee be reported by the candidate's campaign
committee.
96
Buckley, 424 U.S. at 23 n.24 (citations omitted). See
also id. at 78-80, which addresses the vagueness challenge
brought against disclosure and reporting requirements applicable
to contributions and expenditures. The Court denied the
challenge insofar as it reached contributions. With regard to
expenditures, the Court denied the challenge insofar as it
reached non-independent political speakers:
The general requirement that "political committees"
and candidates disclose their expenditures could raise
similar vagueness problems, for "political committee"
is defined only in terms of amount of annual
"contributions" and "expenditures," and could be
interpreted to reach groups engaged purely in issue
discussion. The lower courts have construed the words
"political committee" more narrowly. To fulfill the
purposes of the Act they need only encompass
organizations that are under the control of a
candidate or the major purpose of which is the
nomination or election of a candidate. Expenditures
of candidates and of "political committees" so
construed can be assumed to fall within the core area
sought to be addressed by Congress. They are, by
definition, campaign related.
Buckley, 424 U.S. at 79 (footnotes omitted).
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¶476 The second contention advanced by Unnamed Movants 6
and 7——that the concept of "coordination" is vague and overbroad
and thus must be limited to express advocacy or invalidated
altogether——also fails. 97
¶477 Unnamed Movants 6 and 7 do not tether their broader
argument to a particular statutory text. They claim that the
various provisions within Chapter 11 that might be interpreted
as regulating coordination (such as § 11.06(4)(d), which
provides that coordinated disbursements are reportable by a
candidate's campaign committee) fail to define sufficiently the
concept of coordination. Thus, Unnamed Movants 6 and 7 assert
that the provisions are unconstitutionally vague and overbroad.
¶478 In McConnell v. Federal Election Commission, 540 U.S.
93 (2003), overruled on other grounds by Citizens United v. Fed.
Election Comm'n, 558 U.S. 310 (2010), the United States Supreme
Court rejected a similar argument. The federal law under review
in McConnell provided that coordinated expenditures were
"expenditures made 'in cooperation, consultation, or concer[t]
with, or at the request or suggestion of' a candidate." 98 The
McConnell Court stated that this "longstanding definition of
coordination 'delineates its reach in words of common
97
For a discussion of state and federal campaign finance
statutes that regulate or define campaign coordination, see
Ferguson, supra note 12. This article argues not only that
campaign coordination can be regulated consistent with the First
Amendment but also that the coordination subject to regulation
should include third-party expenditures that a candidate deems
valuable, as evidenced by the candidate's conduct.
98
McConnell, 540 U.S. at 222 (2003).
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understanding.'" 99 Thus, the Court observed, it had "survived
without constitutional challenge for almost three decades." 100
The Court concluded that this "definition of coordination gives
'fair notice to those to whom [it] is directed,' and is not
unconstitutionally vague." 101
¶479 The language of Wis. Stat. § 11.06(4)(d) is similar,
though not identical, to the language at issue in McConnell. As
in McConnell, this language delineates the reach of Chapter 11's
concept of coordination "in words of common understanding." 102
¶480 Center for Individual Freedom v. Madigan, 697 F.3d 464(7th Cir. 2012) is also instructive. In Madigan, a 501(c)
nonprofit entity engaged in issue advocacy challenged the
disclosure regime in effect in Illinois as unconstitutionally
vague and overbroad on its face. 103
¶481 As under Chapter 11, the Illinois statutes required
contributions to be reported. The challengers took issue with
the definition of "contribution," which included "[an]
expenditure 'made in cooperation, consultation, or concert with
another political committee' . . . ." 104 The Illinois statutes
further provided that the word "contribution" included "any
99
Id. (quoted source omitted)
100
Id.
101
Id. at 223 (citation omitted).
102
Id. at 222 (internal quotation marks omitted).
103
Madigan, 697 F.3d at 470.
104
Id. at 494 (emphasis added).
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'electioneering communication made in concert or cooperation
with or at the request, suggestion, or knowledge of a candidate,
a political committee, or any of their agents.'" 105
¶482 According to the challengers, these provisions "are
vague because they do not specify the 'degree of actual
agreement required.'" 106 Citing McConnell, the Madigan court
observed that the challenged provisions are "no less clear than
the federal definition which has long passed muster in the
Supreme Court." 107 The Madigan court thus rejected the
challengers' claim, concluding that "the coordination language
of [Illinois' campaign finance law] is clear enough to provide a
reasonably intelligent person 'fair warning' of what sort of
conduct is covered." 108
¶483 I would adhere to McConnell and Madigan and would
decline to hold that the concept of "coordination" within
Chapter 11 is unconstitutionally vague or overbroad.
Accordingly, no limiting construction need be applied.
¶484 In sum, I conclude that Chapter 11's requirement that
a candidate's campaign committee report coordinated
disbursements for issue advocacy as contributions received by
the candidate or candidate's campaign committee does not violate
105
Id. at 495.
106
Id. at 496.
107
Id.
108
Id. at 497.
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the First Amendment and that the provisions of Chapter 11
imposing this requirement are neither vague nor overbroad.
¶485 In light of the statutory and constitutional validity
of the Special Prosecutor's interpretation of Chapter 11 and
given the strong policy against intervening in ongoing criminal
investigations, I conclude that the John Doe proceedings should
not be terminated.
IV
¶486 I now examine three issues that are common to all
three of the John Doe cases before the court.
A
¶487 This court has received several non-party motions to
file amicus briefs regarding the merits of the John Doe trilogy.
I join the majority opinion's decision to grant these motions.
A grant is consistent with the court's Internal Operating
Procedures and past practices.
¶488 Motions to submit amicus briefs addressing the merits
of the John Doe trilogy have been filed by the following: (1)
Wyoming Liberty Group; (2) the Wisconsin Government
Accountability Board; (3) various former members of the Federal
Election Commission; (4) the Honorable Bradley A. Smith, the
Center for Competitive Politics, and Wisconsin Family Action;
(5) Campaign Legal Center, Democracy 21, Common Cause in
Wisconsin, and League of Women Voters of Wisconsin; (6) Citizens
for Responsible Government Advocates, Inc.; and (7) Wisconsin
Right to Life.
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¶489 This court generally grants motions to file amicus
briefs "if it appears that the movant has special knowledge or
experience in the matter at issue in the proceedings so as to
render a brief from the movant of significant value to the
court." Wis. S. Ct. IOP II-B.6.c. (May 4, 2012). I conclude
that the movants listed above have special knowledge or
experience and thus that their views would be of significant
value to the court. Indeed, in a case of such profound public
importance, this court can use all the help that is offered.
B
¶490 The Special Prosecutor requested the recusal of
certain justices from the John Doe trilogy.
¶491 Non-party motions requesting to file amicus briefs on
the recusal issue were filed by the following: (1) the James
Madison Center for Free Speech; (2) the Ethics and Public Policy
Center; and (3) a group of professors of legal ethics.
¶492 On a motion to disqualify a justice, justices have, in
other cases, explained why they will participate 109 or why they
109
See, e.g., State v. Henley, 2010 WI 12, 322 Wis. 2d 1,
778 N.W.2d 853 (memorandum opinion by Justice Roggensack
explaining her decision not to disqualify herself).
(continued)
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will not. 110 The justices named in the recusal motion at issue
are obviously participating. They have provided no response to
the motion, however, choosing instead to remain silent.
¶493 The Special Prosecutor's recusal motion can be read in
multiple ways. It can easily be read as being directed only to
the named justices, seeking their self-disqualification. It can
also be read as directed to the court, seeking the court's
review of a Justice's statement that he or she need not self-
disqualify. No Justice has made such a statement in the instant
cases. Finally, the Special Prosecutor's recusal motion can be
read as seeking the court's review of due process considerations
should the named Justices choose not to self-disqualify.
¶494 The Special Prosecutor's recusal motion cites Caperton
v. A.T. Massey Coal Co., 556 U.S. 868 (2009). In Caperton, the
See also State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778
N.W.2d 863. In Allen, the defendant filed a motion before
Justice Gableman individually seeking his recusal. Justice
Gableman denied the motion without explanation on September 10,
2009. Id., ¶15. The defendant then filed a supplemental motion
addressed to the whole court, seeking review of whether Justice
Gableman had properly considered whether he could act
impartially or whether it appeared he could not act impartially.
Id., ¶16. On January 15, 2010, Justice Gableman then filed a
supplement to his September 10, 2009, order, explaining why he
had denied the recusal motion. Id., ¶17. On February 4, 2010,
he withdrew from participation in the court's consideration of
the recusal motion. Id., ¶18. The remaining members of the
court were evenly divided regarding whether to deny the
defendant's recusal motion or order briefs and oral argument on
the matter. Accordingly, the motion was not granted.
110
Early on in the instant litigation (long before any
recusal motion was filed), Justice Ann Walsh Bradley advised all
parties that she was not participating. Her statement of non-
participation is attached hereto as Exhibit D.
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plaintiff moved to disqualify a justice of the Supreme Court of
West Virginia on the grounds of bias resulting from campaign
contributions and expenditures. The justice denied the
plaintiff's motion, and the Supreme Court of West Virginia ruled
against the plaintiff on the merits of the case. The United
States Supreme Court reversed and remanded, ruling that due
process required recusal under the circumstances presented.
¶495 Caperton teaches that there are "circumstances 'in
which experience teaches that the probability of actual bias on
the part of the judge or decisionmaker is too high to be
constitutionally tolerable.'" 111
¶496 Caperton holds that "Due Process requires an objective
inquiry into whether the contributor's influence on the election
under all the circumstances 'would offer a possible temptation
to the average . . . judge to . . . lead him [or her] not to
hold the balance nice, clear and true.'" 112 See also Williams-
Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015) ("[E]ven if
judges were able to refrain from favoring donors, the mere
possibility that judges' decisions may be motivated by the
desire to repay campaign contributions is likely to undermine
the public's confidence in the judiciary.") (internal quotation
marks omitted).
¶497 According to the Caperton Court, the participation of
a justice who should have disqualified himself or herself
111
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877
(2009) (citations omitted).
112
Id. (citations omitted).
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violates a litigant's constitutional due process rights and
necessitates a do-over. 113 For a discussion of a justice's
recusal in Wisconsin , see State v. Herrmann, ___ WI ___, ___
Wis. 2d ___, ___ N.W.2d ___.
¶498 If the Special Prosecutor is presenting a due process
argument to the court as a whole——that is, if the Special
Prosecutor is asking the court to declare whether participation
by the justices named in the recusal motion violates due process
rights——such a motion should be made more clearly.
¶499 In any event, the Special Prosecutor's recusal motion
and the motions to file amicus briefs on the issue of recusal
remain unresolved.
C
¶500 Over the extended lives of the John Doe trilogy in
this court, the court has accepted the parties' filings under
seal for long periods without examining or ruling on the
validity of the parties' motions to seal. Since beginning to
examine the sealed documents, the court has kept too many
documents under seal and has allowed the parties to redact too
much information from their filings. 114
113
Id. at 885-87.
114
The Special Prosecutor claims that much of the
information the John Doe secrecy orders and this court's
redaction orders intended to conceal has been divulged through
media leaks. The Special Prosecutor pointedly wonders what the
court is going to do, if anything, about these alleged leaks.
(continued)
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¶501 The court's decisions on sealing and redaction up to
this point have been rooted entirely in the sweeping John Doe
secrecy orders that were issued by the John Doe judge many
months ago under very different circumstances. This court, in
my opinion, should have independently determined whether the
justifications for secrecy in John Doe proceedings still apply
to the John Doe trilogy in this court. Instead, the court has,
for the most part, continued to seal or redact all documents
that were sealed by the John Doe judge without making this
determination, concluding that its obligation is to abide by the
John Doe judge's secrecy order.
¶502 Although I have publicly disagreed with the court's
orders regarding sealing and redactions, 115 I have made every
effort to abide by those orders. Precedent requires me and this
court to abide by this court's secrecy orders. State ex rel.
I anticipate that a motion to open this court's records and
briefs regarding the John Doe trilogy will be filed when the
three cases are completed. The sealed and redacted material
will not be released, however, without a motion, opportunity to
be heard, and court order.
115
For a full discussion of my reasons for objecting to the
extensive sealing and redactions ordered by the court in these
cases, please see my dissents in each of the following three
orders issued by this court on March 27, 2015: (1) an order
denying the Milwaukee Journal Sentinel's motion to intervene in
the John Doe cases for the sole purpose of advocating for
increased public access (attached hereto as Exhibit E); (2) an
order canceling oral argument (attached hereto as Exhibit B);
and (3) an order relating to redaction (attached hereto as
Exhibit C).
See also my dissents to orders issued by this court on
April 1, 2015, and April 17, 2015, as well as a letter dated May
12, 2015 issued by Diane Fremgen, Clerk of Supreme Court.
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Niedziejko v. Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964),
relied on by this court's sealing and redaction orders, provides
that secrecy orders issued by a magistrate are binding on that
magistrate. In the instant case, this court is the magistrate
that issued the relevant secrecy orders. Thus, the secrecy
orders bind not just the parties, but also this court.
¶503 The court's March 27, 2015, redaction order recognizes
this principle, stating that "the fact that a John Doe
proceeding becomes the subject of review in an appellate
court . . . does not eliminate the secrecy of documents and
other information that are covered by a secrecy order issued by
a John Doe judge."
¶504 The majority opinion and Justice Prosser's concurrence
disregard this principle. 116 The majority opinion declares,
without citation to any authority, that "we can interpret the
secrecy order and modify it to the extent necessary for the
public to understand our decision herein." 117 Justice Prosser's
concurrence discusses the policy reasons underlying secrecy in
John Doe proceedings, concludes that they do not support
continued concealment of certain facts underlying the John Doe
trilogy, and then unilaterally determines that "those facts are
now outside the scope of the secrecy order." 118
116
See, for example, the quote set forth in ¶256 of Justice
Prosser's concurrence, pulled from an Unnamed Movant's brief.
This quote is redacted in its entirety in the Unnamed Movant's
redacted brief.
117
Majority op., ¶14 n.11.
118
Justice Prosser's concurrence, ¶145.
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¶505 The majority opinion and Justice Prosser's concurrence
not only defy this court's March 27, 2015, redaction order; they
also contradict that order's reasoning. The court's March 27,
2015, redaction order explicitly concludes that a John Doe
judge's secrecy order remains binding when the John Doe
proceedings subject to that order reach this court.
¶506 In sum: I have repeatedly dissented to the excessive
sealing and redactions this court has imposed in the John Doe
trilogy and I have repeatedly dissented to this court's position
that the John Doe secrecy order automatically binds this court,
but I nevertheless conclude that the secrecy orders issued by
this court (over my dissent) are binding on this court. As
explained above, it is settled law that a "magistrate" who
issues a secrecy order is bound by that secrecy order. The
majority opinion and Justice Prosser's concurrence improperly
ignore this principle.
* * * *
¶507 For the reasons set forth, I dissent to the majority
opinion's resolution of the original action.
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2014AP417-W through 2014AP421-W: Supervisory Writ & Appeal:
State of Wisconsin ex rel. Francis D. Schmitz v. Gregory A.
Peterson, John Doe Judge
¶508 In the second John Doe case before the court, the
Special Prosecutor petitioned the court of appeals for a
supervisory writ and writ of mandamus seeking review of a
decision and order of the John Doe judge dated January 10, 2014,
which quashed subpoenas and ordered the return of property
seized pursuant to search warrants.
¶509 The defendants are the John Doe judge and eight
Unnamed Movants. Several Unnamed Movants filed petitions to
bypass the court of appeals, which this court granted.
¶510 The John Doe judge's January 10, 2014, order was based
on his conclusion of law that the Wisconsin statutes do not
regulate disbursements for issue advocacy made by a 501(c)
nonprofit entity in coordination with a candidate or candidate's
campaign committee. 119 The John Doe judge appears to have
reached this conclusion of law based in part on First Amendment
principles.
¶511 This court must decide whether to issue a supervisory
writ reversing the John Doe judge's January 10, 2014, order.
The majority opinion holds that no supervisory writ shall issue
because the Special Prosecutor has not met one of the criteria
for the issuance of a supervisory writ. According to the
majority opinion, the Special Prosecutor has failed to prove
119
See majority op., ¶¶34-36, 75, 97.
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that the John Doe judge violated a plain legal duty when he
quashed subpoenas and ordered the return of property seized
pursuant to search warrants. 120
¶512 The majority opinion holds not that the John Doe
judge's interpretation of Wisconsin's campaign finance statutes
was correct (although the majority opinion's discussion of the
original action implies as much), but rather that the validity
of the John Doe judge's interpretation and application of
statutes is not a proper basis upon which this court can issue a
supervisory writ. 121 I strongly disagree with the majority
opinion.
¶513 The purpose of the supervisory writ sought by the
Special Prosecutor is to provide for "the direct control
of . . . judicial officers who fail to fulfill non-discretionary
duties, causing harm that cannot be remedied through the
appellate review process." 122
¶514 The John Doe judge had a non-discretionary legal duty
in the instant case to correctly interpret Wisconsin's campaign
finance statutes to determine whether and how they address
coordination between a candidate or candidate's campaign
committee and a 501(c) nonprofit entity engaged in issue
advocacy. For the reasons set forth in my dissent to the
120
See majority op., ¶12.
121
See majority op., ¶97.
122
See majority op., ¶81 (quoting State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110(emphasis added)).
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original action, I conclude that the John Doe judge violated
this nondiscretionary legal duty by misinterpreting and
misapplying the law. 123
¶515 A decision of a John Doe judge can be reviewed only by
means of a supervisory writ. A decision of a John Doe judge
cannot be reviewed by direct appeal. Because the John Doe judge
"fail[ed] to fulfill [a] non-discretionary dut[y], causing harm
that cannot be remedied through the appellate review process," I
would grant the Special Prosecutor's writ petition.
¶516 In contrast, the majority opinion reaches the
perplexing conclusion that although the foundation of the entire
legal system rests on a judge's obligation to correctly
interpret and apply the law, the John Doe judge's obligation to
correctly interpret and apply the law is not the type of plain
legal duty contemplated by the supervisory writ procedure. In
reaching this conclusion, the majority opinion relies on a
single conclusory sentence (devoid of citation to any authority)
that appears in State ex rel. Kalal v. Circuit Court, 2004 WI
58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110.
¶517 In Kalal, a supervisory writ case, the petitioner
argued that judges have a plain legal duty to correctly find the
facts and apply the law. 124 The Kalal court declared that it
123
My dissent in the instant case should be read in
conjunction with my dissent in the original action. See ¶¶368-
486, infra.
124
State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶23,
271 Wis. 2d 633, 681 N.W.2d 110.
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could not accept this proposition "as it would extend
supervisory jurisdiction to a virtually unlimited range of
decisions involving the finding of facts and application of
law." 125 The Kalal court explained its position as follows:
The obligation of judges to correctly apply the law is
general and implicit in the entire structure of our
legal system. The supervisory writ, however, serves a
narrow function: to provide for the direct control of
lower courts, judges, and other judicial officers who
fail to fulfill non-discretionary duties, causing harm
that cannot be remedied through the appellate review
process. To adopt the Kalals' interpretation of the
plain duty requirement in supervisory writ procedure
would transform the writ into an all-purpose
alternative to the appellate review process. 126
¶518 The majority opinion takes this discussion in Kalal
out of context, reading it without any meaningful understanding
of precedent or the nature of review by supervisory writ of a
John Doe judge's order. Indeed, the majority opinion's
interpretation of Kalal is so overbroad that Kalal and the
majority opinion are reduced to balderdash.
¶519 To understand Kalal and the plain legal duty criterion
in supervisory writ cases, one must harken back to the classic
expression of what constitutes a plain legal duty and then trace
the evolution of the concept in the context of supervisory writ
procedure. Kalal must be read and understood in historical
context, in light of supervisory writ cases preceding and
125
Id., ¶24.
126
Id. (emphasis added, citations omitted).
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subsequent to Kalal, and in recognition of a court's discretion
to grant or deny a requested supervisory writ.
¶520 The classic articulation of the plain legal duty
concept was set forth in In re Petition of Pierce-Arrow Motor
Car Co., 143 Wis. 282, 127 N.W. 998 (1910). In Pierce-Arrow,
the defendant sought to vacate service of a summons. The
defendant requested that this court exercise its "general
superintending control over all inferior courts" under Article
VII, Section 3 of the Wisconsin Constitution. 127
¶521 The Pierce-Arrow court concluded that the legal
validity of service "may well admit of different opinions by
equally able legal minds." 128 The court determined that because
the legal question of whether service was valid was debatable,
the circuit court had not violated a plain legal duty.
¶522 The Pierce-Arrow court explained:
127
In re Petition of Pierce-Arrow Motor Car Co., 143 Wis.
282, 285, 127 N.W. 998 (1910).
At the time the Pierce-Arrow case was decided, Article VII,
Section 3 of the Wisconsin Constitution stated in relevant part
as follows: "The supreme court shall have a general
superintending control over all inferior courts; it shall have
the power to issue writs of . . . mandamus, injunction . . . and
other original and remedial writs, and to hear and determine the
same."
Since 1978, Article VII, Section 3(1) of the Wisconsin
Constitution has provided that "[t]he supreme court shall have
superintending and administrative authority over all courts."
Section 3(2) states that "[t]he supreme court may issue all
writs necessary in aid of its jurisdiction."
128
Pierce-Arrow, 143 Wis. at 287.
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One of the cardinal rules is that the duty of the
court below must be plain. The situation must be such
that hardly more than a statement of the facts is
necessary to convince the legal mind as to the duty of
the court. Where there is no such clear and obvious
duty, based either upon common-law principles or upon
express statute, but where questions of law or fact or
both are involved of such difficulty that "a judge may
reasonably, proceeding considerately, commit judicial
error," the court will refuse to intervene under its
power of superintending control, but will leave the
parties to their remedy by appeal. 129
¶523 Pierce-Arrow represented the court's view of the plain
legal duty criterion for the issuance of a supervisory writ up
to 1921. 130 Thereafter, the court's view of what constitutes a
plain legal duty changed significantly. 131
¶524 In 1921, the court decided In re Inland Steel Co., 174
Wis. 140, 182 N.W. 917 (1921). In 1932, the court decided State
ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm,
208 Wis. 366, 370-71, 243 N.W. 763 (1932). In these two cases,
the court concluded that even though the question of law
presented may be subject to reasonable debate, the court may
exercise its original and supervisory power when an appeal would
not provide an adequate remedy.
129
Pierce-Arrow, 143 Wis. at 286 (emphasis added).
130
See John D. Wickhem, The Power of Superintending Control
of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 163
(1941). This article is generally viewed as the best
explanation of the Wisconsin constitutional provision regarding
superintending authority and writs.
131
John D. Wickhem, The Power of Superintending Control of
the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161 (1941).
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¶525 These cases make the following point clear: "[T]he
fact that the duty of the trial court in the premises can only
be determined by a careful consideration of the facts and the
law applicable to the situation is no barrier to the exercise of
th[e supervisory writ] power." 132
¶526 In 1941, Justice John D. Wickhem, who served on the
Wisconsin Supreme Court from 1930 to 1949, explained the
developing case law on the concept of plain legal duty as
follows:
The purpose of this [supervisory writ] jurisdiction is
to protect the legal rights of a litigant when the
ordinary processes of action, appeal and review are
inadequate to meet the situation, and where there is
need for such intervention to avoid grave hardship or
complete denial of these rights.
. . . .
The later cases hold that an exercise of the court's
superintending control may be justified in spite of
the fact that a determination of the duty of the
inferior court and the scope of the petitioner's
rights may present difficult and close questions of
law. 133
¶527 A supervisory writ has been issued in numerous cases
in which a ruling of a judge or a circuit court interpreting a
statute was challenged as erroneous——even though the proper
interpretation of the statute was not plain or raised a novel
132
See State ex rel. Hustisford Light, Power & Mfg. Co. v.
Grimm, 208 Wis. 366, 371, 243 N.W. 763 (1932).
133
John D. Wickhem, The Power of Superintending Control of
the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161, 164
(1941).
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question——and either no appeal was permitted or appellate review
would have come too late for effective redress. 134
¶528 For example, in a recent case entitled Madison
Metropolitan School District v. Circuit Court, 2011 WI 72, 336
Wis. 2d 95, 800 N.W.2d 442, the court of appeals transformed an
appeal into a supervisory writ. The issue before the court of
appeals was whether the circuit court had exceeded its authority
by interpreting the applicable statutes as allowing a circuit
court to direct a school district to provide a child with
alternative educational services. 135
¶529 The circuit court contended in Madison Metropolitan
School District that the supervisory writ should be denied,
arguing that "its duty was not plain, because it was faced with
a novel question of law requiring harmonization of several
statutory provisions." 136 In contrast, the school district
argued that a supervisory writ should be granted because "the
circuit court did not have authority, express or implied, to
order" the school district to provide the child with alternative
134
See, e.g., State ex rel. Ampco Metal, Inc. v. O'Neill,
273 Wis. 530, 535, 78 N.W.2d 921 (1956); Madison Metro. Sch.
Dist. v. Circuit Court, 2011 WI 72, 336 Wis. 2d 95, 800
N.W.2d 442.
135
Article VII, Section 5(3) of the Wisconsin Constitution
provides: "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."
136
Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶84.
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educational services. 137 The court of appeals sided with the
school district, granting the writ.
¶530 This court spent 34 paragraphs (13 pages in the
Wisconsin Reports) analyzing and interpreting the statutes at
issue in order to determine the powers of the circuit court and
school district. Obviously, the meaning of the statutes was not
plain; the case presented a novel issue of law. Nevertheless,
after a lengthy statutory analysis, this court affirmed the
court of appeals decision granting the writ.
¶531 In deciding that a supervisory writ was warranted, the
Madison Metropolitan School District court explained that "the
circuit court's duty was plain: to keep within the scope of its
statutory authority." 138 It then continued: "Because we have
concluded that the circuit court's duty to keep within the
bounds of its lawful authority was plain, its violation of that
duty was clear when it ordered the District to provide
educational resources . . . ." 139
¶532 Notably, Kalal was never mentioned in the majority
opinion in Madison Metropolitan School District, although the
court was well aware of Kalal. Kalal was argued in the briefs
and in the dissent.
¶533 Madison Metropolitan School District and numerous
other cases teach that Kalal does not mean that a supervisory
137
Id., ¶84.
138
Id.
139
Id., ¶85.
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writ cannot issue when a case presents a difficult or close
question of law. Rather, Kalal is best understood as
demonstrating that a reviewing court has discretion whether to
issue a supervisory writ, even when the trial court or judge
under review violated a plain legal duty. The reviewing court
considers several factors and equitable principles in deciding
whether to issue a supervisory writ. 140
¶534 Indeed, in an opinion issued just one year before
Kalal (and authored by then-Justice Sykes, who wrote Kalal),
this court stated in no uncertain terms that a court's decision
to issue a supervisory writ "is a discretionary determination
that is reviewed for an erroneous exercise of that
discretion." 141
¶535 Thus, properly understood, Kalal involved a
discretionary call. Kalal does not support the majority
opinion's view that a supervisory writ cannot be issued when the
legal issue presented is subject to reasonable debate.
¶536 If this court's interpretation of the applicable
statutes differs from that of the John Doe judge (that is, if
the John Doe judge misinterpreted the law), then the John Doe
140
See, for example, the following cases explaining that
the issuance of a supervisory writ involves the exercise of
discretion: Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶34;
Kalal, 271 Wis. 2d at 649; State ex rel. Kurkierewicz v. Cannon,
42 Wis. 2d 368, 375, 166 N.W.2d 255 (1969); State ex rel.
Dressler v. Circuit Court, 163 Wis. 2d 622, 630, 472 N.W.2d 532(Ct. App. 1991).
141
City of Madison v. DWD, 2003 WI 76, ¶10, 262
Wis. 2d 652, 664 N.W.2d 584. See also majority op., ¶105.
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judge erroneously exercised his discretion in issuing the
January 10, 2014, order, and a supervisory writ is appropriate.
Two examples illustrate this point.
¶537 Example 1. If the John Doe judge's order was based on
an erroneous view of Chapter 11 or the First Amendment but is
not reviewed by this court, no further review occurs and both
the Special Prosecutor and the public at large are deprived of
the enforcement of statutes intended to protect the integrity of
Wisconsin's elections. This result amounts to a virtual
nullification of a duly enacted law and imposes a serious
hardship on the people of this state.
¶538 Example 2. If the John Doe judge had ruled in favor
of the Special Prosecutor and the John Doe proceedings
continued, then unless a supervisory writ were available to the
Unnamed Movants, they could not challenge the John Doe judge's
ruling until criminal charges were filed. Such a situation,
Unnamed Movants 6 and 7 would surely claim, would impose a
serious hardship on them.
¶539 In sum, a supervisory writ is the proper procedure for
correcting a John Doe judge's erroneous application of the law
when an appeal is not available or would come too late for
effective redress. 142 The majority opinion errs in holding
otherwise.
142
Dressler, 163 Wis. 2d at 630; State ex rel. Storer
Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 347, 388 N.W.2d 633(Ct. App. 1986).
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¶540 For the reasons set forth, I conclude that the court
should decide whether the John Doe judge's January 10, 2014,
order was based on a misinterpretation of Wisconsin's campaign
finance statutes. Because I conclude that it was, I further
conclude that the Special Prosecutor has met the criteria for
the issuance of a supervisory writ. I would grant the writ
petition.
¶541 Accordingly, I dissent.
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Nos. 2013AP2504-W through 2013AP2508-W: Supervisory Writ &
Review State of Wisconsin ex rel. Three Unnamed Petitioners v.
Gregory A. Peterson, John Doe Judge; Gregory Potter, Chief
Judge; 143 and Francis D. Schmitz, as Special Prosecutor
¶542 In this third case, the final case in the John Doe
trilogy, Unnamed Movants 2, 6, and 7 seek review of an opinion
and order of the court of appeals that denied the three Unnamed
Movants' petition for supervisory writs of mandamus and
prohibition. The respondents are the John Doe judge, the chief
judges of the counties in which the cases are underway, and the
Special Prosecutor.
¶543 In their petition to the court of appeals seeking
supervisory writs, the three Unnamed Movants alleged, in
relevant part, the following errors of law in the John Doe
proceedings:
(1) The multi-county nature of the John Doe investigation
is contrary to Wisconsin law.
(2) The John Doe judge had no authority to appoint the
Special Prosecutor without satisfying the criteria
set forth in Wis. Stat. § 978.045(1r).
(3) The John Doe Judge had no authority to appoint a
special prosecutor to act in multiple counties.
¶544 These allegations raise multiple overlapping questions
of law regarding the procedural validity of the Special
Prosecutor's appointment, the competency of the Special
143
What I refer to as "the third case" comprises five
cases. One of the defendants in each case is the chief judge of
the county in which the case is pending.
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Prosecutor to conduct the John Doe investigation, and the
legitimacy of a multi-county John Doe investigation under
Wisconsin law.
¶545 The court of appeals rejected the arguments of the
three Unnamed Movants and denied their writ petition. The
majority opinion affirms the court of appeals order denying the
writ petition. The petition for review in this court did not
raise all the issues raised before the court of appeals or all
the issues this court raised in its December 16, 2014, order
(attached hereto as Exhibit A). I agree with the majority
opinion that the court of appeals order should be affirmed. I
reach this result, however, using significantly different
reasoning than the majority opinion.
¶546 The majority opinion concludes that the John Doe
judge's obligation to "correctly find facts and apply the law is
not the type of plain legal duty contemplated by the supervisory
writ procedure . . . ." 144 Because the majority opinion
determines that the three Unnamed Movants have failed to fulfill
the plain legal duty criterion, it declares that they have
failed to "satisfy the stringent preconditions for a supervisory
writ." 145
¶547 The majority opinion's discussion of the plain legal
duty criterion is reminiscent of its analysis in the second case
144
Majority op., ¶105.
145
Majority op., ¶13.
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in the John Doe trilogy. 146 For the reasons set forth in my
dissent in the second case in the John Doe trilogy (see ¶¶498-
521, supra), I take issue with the majority opinion's
explanation and application of the plain legal duty concept. I
will not repeat that discussion here.
¶548 I conclude that the court of appeals was required to
interpret and apply the applicable law to determine whether the
John Doe judge had violated a plain legal duty. The court of
appeals had discretion, however, whether to grant or deny the
three Unnamed Movants' writ petition.
¶549 I consider whether the court of appeals properly
exercised its discretion in denying the Unnamed Movants' writ
petition by correctly interpreting and applying the applicable
law. 147 I decide the underlying legal questions faced by the
court of appeals independently, but benefit from the court of
appeals' analysis. 148
146
See majority op., ¶¶95-99 (discussing the plain legal
duty issue presented in the second case within the John Doe
trilogy), ¶107-132 (discussing the plain legal duty issues
presented in the third case within the John Doe trilogy).
147
The court of appeals has discretion whether to issue a
supervisory writ. If the court of appeals misinterpreted or
misapplied applicable law, it erroneously exercised its
discretion. City of Madison v. DWD, 2003 WI 76, ¶10, 262
Wis. 2d 652, 664 N.W.2d 584. See also majority op., ¶102-106
(setting forth the standard of review applicable to the instant
supervisory writ case).
148
City of Madison v. DWD, 2003 WI 76, ¶10, 262
Wis. 2d 652, 664 N.W.2d 584.
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¶550 In determining that there were no procedural defects
in the John Doe proceedings and thus that a supervisory writ was
not warranted, the court of appeals relied on established case
law, including State v. Cummings, 199 Wis. 2d 721, 546
N.W.2d 406 (1996); State v. Carlson, 2002 WI App 44, 250
Wis. 2d 562, 641 N.W.2d 451; State ex rel. Friedrich v. Circuit
Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995); and State v. Bollig,
222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App 1998)). These cases
are persuasive.
¶551 I conclude that the court of appeals correctly decided
the questions of law presented in the three Unnamed Movants'
writ petition as follows:
(1) The initiation of multiple, parallel John Doe
proceedings related to a single criminal
investigation is permitted under Wisconsin law. This
is an effective and efficient way of proceeding.
(2) The John Doe judge did not rely on Wis. Stat.
§ 978.045(1r) to appoint the Special Prosecutor.
Rather, the John Doe judge made the appointment
pursuant to inherent judicial authority. The John
Doe judge had such authority regardless of whether
the statutory conditions set forth in Wis. Stat.
§ 978.045(1r) were met. Case law makes clear that a
John Doe judge's powers extend beyond the powers
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conferred by statute to include all powers necessary
to conduct the John Doe investigatory proceeding. 149
(3) The John Doe judge issued five separate orders
appointing the Special Prosecutor, one for each
county's John Doe proceeding. The same prosecutor
may serve multiple appointments in related
proceedings. Thus, a John Doe judge may lawfully
appoint the same special prosecutor to proceedings
underway in several counties. This is an effective
and efficient way of proceeding.
149
See State ex rel. Individual Subpoenaed v. Davis, 2005
WI 70, ¶¶23, 26, 281 Wis. 2d 431, 697 N.W.2d 803 ("A John Doe
judge's authority stems both from the statutes and from powers
inherent to a judge. . . . A John Doe judge's powers are not,
however, limited to those enumerated in Wis. Stat. § 968.26 [the
John Doe statute]. . . . A John Doe judge's inherent authority
stems from a John Doe judge's judicial office. . . . [A] John
Doe judge's inherent power encompasses all powers necessary for
the John Doe judge to 'carry out his or her responsibilities
with respect to the proper conduct of John Doe proceedings.'"
(quoted source omitted)); In re John Doe Proceeding, 2003 WI 30,
¶54, 260 Wis. 2d 653, 660 N.W.2d 260 ("A John Doe judge is also
entitled to exercise the authority inherent in his or her
judicial office."); State v. Cummings, 199 Wis. 2d 721, 736, 546
N.W.2d 406 (1996) ("A grant of jurisdiction by its very nature
includes those powers necessary to fulfill the jurisdictional
mandate.").
Although the legislature created John Doe proceedings, the
separation of powers doctrine bars the legislature from "unduly
burdening," "materially impairing," or "substantially
interfering" with the inherent powers of the judicial branch,
including the inherent powers of the John Doe judge in the
instant cases. See State v. Holmes, 106 Wis. 2d 31, 68-69, 315
N.W.2d 703 (1982). See also majority op., ¶127, and Justice
Prosser's concurrence, ¶¶208-210, 216, 239, both of which
improperly allow the legislature to trump the inherent judicial
powers of the John Doe judge.
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(4) Even if there were procedural errors in the Special
Prosecutor's appointment (and I do not believe there
were), the Special Prosecutor has competency to
proceed. 150
¶552 The court of appeals was not presented with argument
regarding the procedural validity of the John Doe judge's
appointment and the competency of the John Doe judge to conduct
the John Doe proceedings. That argument was, however, advanced
in this court. It is without merit, as the majority opinion
makes clear. 151
¶553 Because the court of appeals properly interpreted and
applied the applicable law, I conclude that it did not
erroneously exercise its discretion in denying the three Unnamed
Movants' writ petition. The court of appeals decision should be
affirmed.
¶554 In closing, I note that even if this court determined
that the John Doe proceedings were procedurally defective and
150
Whether the Special Prosecutor is deprived of competency
on account of a procedural defect in his appointment turns on
whether the defect was "central" to the purpose of Wis. Stat.
§ § 978.045(1r) (setting forth conditions for the appointment of
a special prosecutor).150 The court of appeals determined in In
re Commitment of Bollig, 222 Wis. 2d 558, 571, 587 N.W.2d 908(Ct. App. 1998), that the purpose of § 978.045(1r) is to control
costs, as the State pays an appointed special prosecutor for
work that would ordinarily be performed by a district attorney.
It seems implausible to suggest that the costs the State has
incurred on account of a single special prosecutor's appointment
are substantial enough to render the alleged defect in the
Special Prosecutor's appointment central to the cost-controlling
objective of § 978.045(1r).
151
See majority op., ¶¶108-113.
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that a supervisory writ is warranted, only those Unnamed Movants
who raised the objection before the John Doe judge may be
entitled to any relief. If not raised, these objections were
waived (forfeited). See Village of Trempealeau v. Mikrut, 2004
WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190 (stating that "the
common-law waiver [forfeiture] rule applies to challenges to the
circuit court's competency" and explaining that a competency
challenge is waived as a matter of right if raised for the first
time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558,
564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in
the appointment of a special prosecutor is waived (forfeited) if
raised for the first time on appeal).
¶555 For the reasons set forth, I write separately.
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EXHIBIT A
1
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2
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3
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4
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5
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6
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7
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8
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9
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10
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11
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12
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13
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14
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15
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16
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17
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18
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EXHIBIT B
19
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20
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21
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22
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23
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24
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25
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26
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27
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28
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29
No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa
30
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31
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32
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EXHIBIT C
33
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34
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35
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36
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37
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38
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39
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40
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41
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42
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43
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44
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45
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46
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47
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48
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49
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50
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51
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52
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53
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54
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55
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56
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EXHIBIT D
57
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58
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59
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60
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61
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EXHIBIT E
62
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63
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64
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65
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66
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67
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68
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69
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70
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71
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72
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73
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74
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75
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76
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77
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78
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79
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80
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81
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82
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83
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84
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85
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¶556 N. PATRICK CROOKS, J. (concurring in part,
dissenting in part). The United States Supreme Court has
recently acknowledged that "Judges are not politicians, even
when they come to the bench by way of the ballot." Williams-
Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015). Williams-
Yulee involved whether a judicial conduct rule prohibiting
judicial candidates from personally soliciting campaign funds
violated the First Amendment to the United States Constitution.
Id. In concluding that the First Amendment permits the
particular regulation of speech at issue, the Supreme Court
stressed:
In deciding cases, a judge is not to follow the
preferences of his supporters, or provide any special
consideration to his campaign donors. A judge instead
must "observe the utmost fairness," striving to be
"perfectly and completely independent, with nothing to
influence or controul him but God and his conscience."
Id. at 1667 (citing Address of John Marshall, in Proceedings and
Debates of the Virginia State Convention of 1829-1830, p. 616
(1830)).
¶557 These principles must serve as guideposts for all of
us as judges in the courts of Wisconsin, whether or not the case
or cases at issue involve significant political overtones, as
these John Doe cases do.
¶558 It is with these important tenets in mind that I write
separately.
¶559 By erroneously concluding that campaign committees do
not have a duty under Wisconsin's campaign-finance law, Wis.
1
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Stat. ch. 11 (2011-12), 1 to report receipt of in-kind
contributions in the form of coordinated spending on issue
advocacy, 2 the majority rejects the special prosecutor's primary
argument regarding criminal activity. Although the special
prosecutor advances a secondary argument of criminal activity
concerning coordinated express advocacy, the majority
inexplicably ignores that argument. These mistakes lead the
majority to terminate a valid John Doe 3 investigation in an
unprecedented fashion.
¶560 With respect to the special prosecutor's primary
argument, which is the focus of my writing, the majority
misapplies the related doctrines of overbreadth and vagueness.
Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is
neither overbroad nor vague in its requirement that campaign
committees report receipt of in-kind contributions. The
majority also makes the troubling pronouncement that an act is
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
In campaign-finance terminology, "issue advocacy" is
generally understood to mean speech about public issues, whereas
"express advocacy" refers to campaign or election-related
speech. Fed. Election Comm'n v. Wis. Right to Life, Inc., 551
U.S. 449, 456 (2007).
3
"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." In re John Doe Proceeding, 2003
WI 30, ¶22, 260 Wis. 2d 653, 660 N.W.2d 260. A John Doe
proceeding, by virtue of its secrecy, serves as an essential
investigative device that protects "'innocent citizens from
frivolous and groundless prosecutions.'" Id. (citation
omitted).
2
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not a regulable disbursement or contribution under Chapter 11
unless it involves express advocacy or its functional
equivalent. This is an erosion of Chapter 11 that will
profoundly affect the integrity of our electoral process. I
cannot agree with this result.
¶561 It is also imperative to note that the majority
conveniently overlooks the special prosecutor's secondary
argument of criminal activity in its effort to end this John Doe
investigation. Specifically, the special prosecutor seeks to
investigate whether particular express advocacy groups
coordinated their spending with candidates or candidate
committees in violation of their sworn statement of independence
under Wis. Stat. § 11.06(7). Despite the fact that the special
prosecutor utilizes a significant portion of his brief to
present evidence of such illegal coordination, the majority
determines, without explanation, that the John Doe investigation
is over.
¶562 Has the majority abused its power in reaching this
conclusion? The majority's rush to terminate this investigation
is reminiscent of the action taken by the United States District
Court for the Eastern District of Wisconsin in O'Keefe v.
Schmitz, 19 F. Supp. 3d 861 (E.D. Wis.) order clarified, No. 14-
C-139, 2014 WL 2446316 (E.D. Wis. May 30, 2014) (O'Keefe v.
Schmitz), an action that was both criticized and reversed by the
United States Court of Appeals for the Seventh Circuit in
O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014) cert. denied,
No. 14-872, 2015 WL 260296 (U.S. May 18, 2015). Although the
3
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focus of my writing lies elsewhere, the majority's error in this
regard cannot be overlooked.
¶563 For these reasons, I respectfully dissent in State ex.
rel. Two Unnamed Petitioners v. Peterson (Two Unnamed
Petitioners).
¶564 However, like the majority, I conclude that the
special prosecutor and certain Unnamed Movants have failed to
meet their heavy burden of establishing that the John Doe judge
violated a plain legal duty in either initiating these
proceedings or quashing various subpoenas and search warrants
related to the investigation. Accordingly, I concur with the
majority in State ex. rel. Schmitz v. Peterson (Schmitz v.
Peterson) and State ex. rel. Three Unnamed Petitioners v.
Peterson (Three Unnamed Petitioners). In concurring in Schmitz
v. Peterson, it is significant for me that when an appellate
court decides to issue a supervisory writ, it is a rare,
discretionary decision. Madison Metro. Sch. Dist. v. Circuit
Ct. for Dane Cnty., 2011 WI 72, ¶¶33-34, 336 Wis. 2d 95, 800
N.W.2d 442. Here, the John Doe judge also made a discretionary
decision in deciding a complex legal issue. Deference should be
given where there is such discretion.
¶565 The John Doe investigation should not be terminated
because the special prosecutor's primary argument regarding
criminal activity is supported by Chapter 11, and the United
States Supreme Court has not concluded that the First Amendment
to the United States Constitution prohibits the type of
regulation underlying that argument. See O'Keefe, 769 F.3d at
4
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942. 4 The special prosecutor seeks to investigate whether
certain campaign committees failed to comply with their
statutory obligation to report receipt of in-kind contributions
(in the form of coordinated spending on issue advocacy) in
connection with various recall elections. A campaign
committee's duty to report such in-kind contributions is
prescribed by Wis. Stat. § 11.06(1). 5
¶566 In Two Unnamed Petitioners, the majority holds that
the special prosecutor fails to advance a valid argument under
Wisconsin criminal law and rashly closes the John Doe
investigation. In reaching its conclusion, the majority does
not confront the plain language of Wis. Stat. § 11.06(1).
Instead, it focuses more generally on Chapter 11's definition of
4
It is noteworthy that the United States Supreme Court
denied certiorari review in O'Keefe v. Chisholm, 769 F.3d 936(7th Cir. 2014) cert. denied, No. 14-872, 2015 WL 260296 (U.S.
May 18, 2015), a case in which the United States Court of
Appeals for the Seventh Circuit determined that the Supreme
Court has not decided whether the First Amendment prohibits the
regulation of coordinated issue advocacy between a candidate or
campaign committee and an issue advocacy group. If the Supreme
Court eventually determines that the First Amendment allows that
type of regulation, the decision would validate the special
prosecutor's in-kind contribution argument. As discussed below,
it can be argued that Williams-Yulee v. Florida Bar, 135 S. Ct.
1656 (2015), supports the special prosecutor's position, but
that decision, while helpful, is certainly not definitive on the
issue.
5
Wisconsin Stat. § 11.06(1) provides, in relevant part:
"Except as provided in subs. (2), (3) and (3m) and ss. 11.05(2r)
and 11.19(2), each registrant under s. 11.05 shall make full
reports . . . of all contributions received, contributions or
disbursements made, and obligations incurred." (emphasis added).
5
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"political purposes," because in its view, "If an act is not
done for political purposes, then it is not a disbursement or a
contribution, and it therefore is not subject to regulation
under Ch. 11." 6
¶567 The majority determines that the definition of
"political purposes" in Wis. Stat. § 11.01(16) is
unconstitutionally overbroad and vague regardless of the context
in which it applies to regulate political speech under Chapter
11. 7 This is so, the majority reasons, primarily because the
definition encompasses an act done "for the purpose of
influencing" an election. 8 To support the notion that the phrase
"for the purpose of influencing" an election is hopelessly
overbroad and vague, even where it operates to regulate campaign
contributions, the majority purports to borrow pages from
Buckley v. Valeo, 424 U.S. 1 (1976), and Wis. Right to Life,
Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) (Barland II). It
then applies a narrowing construction to § 11.01(16) to confine
the definition of "political purposes" to express advocacy or
its functional equivalent, because that construction is
"'readily available' due to the Seventh Circuit's decision in
Barland II." 9 The upshot, according to the majority, is that an
6
Majority op., ¶62.
7
Majority op., ¶67.
8
Majority op., ¶66.
9
Majority op., ¶67.
6
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act is not a regulable disbursement or contribution under
Chapter 11 unless it involves express advocacy or its functional
equivalent. 10
¶568 Turning to the special prosecutor's arguments
regarding criminal activity, the majority summarily concludes:
"The limiting construction that we apply makes clear that the
special prosecutor's theories are unsupportable in law given
that the theories rely on overbroad and vague statutes." 11 The
majority must therefore dismiss the special prosecutor's in-kind
contribution argument on the basis that Wis. Stat. § 11.06(1)
contains the terms "contribution" and "disbursement," thereby
triggering the definition of "political purposes." It follows,
according to the majority's logic, that § 11.06(1) is
unconstitutionally overbroad and vague unless its reach is
limited to express advocacy or its functional equivalent. Since
the special prosecutor's in-kind contribution argument relies on
coordinated issue advocacy, not express advocacy, the majority
swiftly rejects that argument. 12
10
See majority op., ¶¶62, 67.
11
Majority op., ¶69.
12
While I disagree with the majority's dismissal of the
special prosecutor's in-kind contribution argument, I do agree
with the majority's criticism of some of the purported tactics
used in gathering evidence in this particular John Doe
investigation. As the majority identifies, some of these
methods certainly appear to be improper and open to severe
disagreement. See majority op., ¶¶28-29. At this point, the
actual facts concerning the tactics used have not been fully
established, but the allegations are very troubling.
7
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¶569 As previously mentioned, I conclude that Wis. Stat.
§ 11.06(1) is neither overbroad nor vague in its requirement
that campaign committees report receipt of in-kind
contributions. I recognize that under the special prosecutor's
argument a reportable in-kind contribution requires a "political
purpose," thus implicating the phrase "for the purpose of
influencing" an election that the majority finds so troubling.
However, in Buckley, the United States Supreme Court indicated
that this phrase is hardly problematic "in connection with the
definition of a contribution because of the limiting connotation
created by the general understanding of what constitutes a
political contribution." Buckley, 424 U.S. at 23 n.24. In
other words, it is common sense——not the retention of a
campaign-finance attorney——that tells people of ordinary
intelligence what is and is not a campaign contribution.
¶570 The majority disregards this important language in
Buckley, opting instead to justify its overbreadth and vagueness
determination with the Supreme Court's discussion of the phrase
"for the purpose of influencing" an election in a completely
different context: the regulation of independent political
expenditures. The majority's failure to perform a context
specific analysis of the subject phrase in reaching its blanket
conclusion that Chapter 11's definition of "political purposes"
is overbroad and vague represents a fundamental misunderstanding
of Buckley and its progeny, including Barland II. It further
ignores the principle that "The First Amendment vagueness and
overbreadth calculus must be calibrated to the kind and degree
8
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of the burdens imposed on those who must comply with the
regulatory scheme. The greater the burden on the regulated
class, the more acute the need for clarity and precision."
Barland II, 751 F.3d at 837.
¶571 The majority's errors in Two Unnamed Petitioners
(including its failure to address Wis. Stat. § 11.06(1) in
rejecting the special prosecutor's in-kind contribution
argument) serve to terminate a valid John Doe investigation.
They also work to limit the reach of Wisconsin's campaign-
finance law in a manner that will undermine the integrity of our
electoral process. I disagree with these consequences.
I. TWO UNNAMED PETITIONERS (ORIGINAL ACTION)
¶572 To support my position that the John Doe investigation
should move forward because the special prosecutor advances a
valid argument under Wisconsin criminal law, I begin by
identifying the relevant portions of Chapter 11 that support
that argument. Next, I discuss some important principles
pertaining to the related doctrines of overbreadth and
vagueness, as well as significant campaign-finance law decisions
embodying those principles. These general principles and
decisions lead me to determine that there are no overbreadth and
vagueness concerns with respect to the statute that supports the
special prosecutor's primary argument regarding criminal
activity. Finally, I discuss the question of whether the First
Amendment to the United States Constitution forbids regulation
of coordinated issue advocacy between a candidate or a campaign
committee and an issue advocacy group. I conclude that the
9
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absence of Supreme Court precedent regarding an issue that has
sparked "lively debate among judges and academic analysts" 13 is
an important factor as to why this John Doe investigation should
not be terminated.
A. Under Chapter 11, a Campaign Committee Must Report its
Receipt of In-Kind Contributions in the Form of Coordinated
Spending on Issue Advocacy.
¶573 In the special prosecutor's own words, the "non-
disclosure of reportable campaign contributions is at the heart
of this [John Doe] investigation." The following illustrates
the special prosecutor's in-kind contribution argument:
X is a nonprofit corporation that engages in political
speech on issues of public importance. Y is a
campaign committee 14 regulated under Ch. 11. When X
spends money on issue advocacy, it does not operate
independently of Y. Rather, X coordinates its
spending with Y, such that Y may be involved in the
timing, content, or placement of issue advocacy that
13
O'Keefe, 769 F.3d at 942.
14
Wis. Stat. § 11.01(15) defines a "personal campaign
committee" as:
A committee which is formed or operating for the
purpose of influencing the election or reelection of a
candidate, which acts with the cooperation of or upon
consultation with the candidate or the candidate's
agent or which is operating in concert with or
pursuant to the authorization, request or suggestion
of the candidate or the candidate's agent.
10
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is made for its benefit. Y has received an in-kind
contribution that must be reported under Chapter 11. 15
¶574 The special prosecutor's in-kind contribution argument
is rooted in Wis. Stat. § 11.06. That section, entitled
"Financial report information; application; funding procedure,"
generally requires Chapter 11 registrants 16 to "make full reports
. . . of all contributions received, contributions or
disbursements made, and obligations incurred." Wis. Stat.
§ 11.06(1) (emphasis added). Candidates and their campaign
committees have an absolute duty to register with the Government
Accountability Board (GAB) under Wis. Stat. § 11.05(2g), so
there appears to be no question that the general reporting
obligations prescribed by § 11.06(1) apply to those entities.
¶575 The term "contribution" is defined by Wis. Stat.
§ 11.01(6)(a). It includes "A gift, subscription, loan,
advance, or deposit of money or anything of value . . . made for
political purposes." Wis. Stat. § 11.01(6)(a)1. The definition
encompasses contributions that are received in cash, i.e., a
15
To be clear, the special prosecutor's main focus in this
investigation is on certain campaign committees' failure to
report receipt of in-kind contributions (in the form of
coordinated spending on issue advocacy), not on certain issue
advocacy groups' failure to report making such in-kind
contributions. So what the majority mistakenly refers to as
"illegal campaign coordination" is in reality a campaign
committee's failure to report its receipt of an in-kind
contribution.
16
Chapter 11 imposes registration requirements on political
speakers such as candidates, their campaign committees,
political committees, independent groups, and individuals. See
Wis. Stat. § 11.05.
11
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"gift . . . of money," and those that are received "in kind,"
i.e., "anything of value." See Wis. Coal. for Voter
Participation, Inc. v. State Elections Bd., 231 Wis. 2d 670,
680, 605 N.W.2d 654 (Ct. App. 1999) (WCVP). Wisconsin Admin.
Code § GAB 1.20(1)(e) defines an "in-kind contribution" as "a
disbursement by a contributor to procure a thing of value or
service for the benefit of a registrant who authorized the
disbursement." To constitute a cash or in-kind contribution,
money must be given or spent for "political purposes," which is
defined by Wis. Stat. § 11.01(16) to include an act done "for
the purpose of influencing" an election.
¶576 Reading the above definitions in conjunction with Wis.
Stat. § 11.06(1), it is clear that a campaign committee has a
duty to report its receipt of cash as contributions. It is
equally clear that a campaign committee has a duty to report its
receipt of services as contributions if it authorizes a third
party to pay for those services for the benefit of the campaign.
¶577 But what if a campaign committee does not necessarily
authorize or control a third party's spending on services for
the campaign's benefit, but instead prearranges that spending
with the third party? Chapter 11 instructs that under these
circumstances a candidate committee has received a reportable
contribution as well. See Wis. Stat. § 11.06(4)(d) ("A . . .
disbursement . . . made . . . for the benefit of a candidate is
reportable by the candidate or the candidate's personal campaign
committee if it is made or incurred with the authorization,
12
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direction or control of or otherwise by prearrangement with the
candidate or the candidate's agent.") (emphasis added).
¶578 As the foregoing discussion demonstrates, under
Chapter 11, "contributions to a candidate's campaign must be
reported whether or not they constitute express advocacy."
WCVP, 231 Wis. 2d at 679 (emphasis in original). There is
nothing in the plain language of Wis. Stat. § 11.06(1),
§ 11.01(6)(a)1, § 11.06(4)(d), or Wis. Admin. Code § GAB
1.20(1)(e) that limits receipt of reportable contributions to
express advocacy or its functional equivalent.
¶579 Returning to the illustration of the special
prosecutor's in-kind contribution argument, it is evident that
Chapter 11 supports that argument in one of two ways. First, Y,
the campaign committee, may have received a reportable in-kind
contribution if the nature of its coordination with X is such
that Y authorized or controlled X's spending on issue advocacy.
Second, Y may have received a reportable in-kind contribution if
the nature of its coordination with X is such that the two
entities prearranged X's spending on issue advocacy.
¶580 Thus, absent the majority's limiting construction that
confines the term "contribution" to express advocacy or its
function equivalent, the special prosecutor makes a valid
argument under Wisconsin criminal law. 17
17
The intentional failure to disclose contributions
received is a violation of criminal law. See Wis. Stat.
§§ 11.27(1) and 11.61(1)(b).
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B. The Key Inquiry in First Amendment Overbreadth and
Vagueness Analysis is Whether the Statute at Issue Reaches a
Substantial Amount of Constitutionally Protected Activity.
¶581 Having identified the portions of Chapter 11 that
support the special prosecutor's in-kind contribution argument,
I turn to the related doctrines of overbreadth and vagueness to
highlight some important principles that the majority opinion
overlooks. I also examine relevant campaign-finance decisions
that embody those principles.
i. Overbreadth and Vagueness
¶582 "According to our First Amendment overbreadth
doctrine, a statute is facially invalid if it prohibits a
substantial amount of protected speech." United States v.
Williams, 553 U.S. 285, 292 (2008) (emphasis added). The
Supreme Court in Williams explained:
The doctrine seeks to strike a balance between
competing social costs. On the one hand, the threat
of enforcement of an overbroad law deters people from
engaging in constitutionally protected speech,
inhibiting the free exchange of ideas. On the other
hand, invalidating a law that in some of its
applications is perfectly constitutional—particularly
a law directed at conduct so antisocial that it has
been made criminal—has obvious harmful effects. In
order to maintain an appropriate balance, we have
vigorously enforced the requirement that a statute's
overbreadth be substantial, not only in an absolute
sense, but also relative to the statute's plainly
legitimate sweep. Invalidation for overbreadth is
strong medicine that is not to be casually employed.
Id. (emphasis added) (internal citations and quotations
omitted). When engaging in overbreadth analysis, a court's
first step "is to construe the challenged statute; it is
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impossible to determine whether a statute reaches too far
without first knowing what the statute covers." Id. at 293
(emphasis added). Once a court interprets the statute at issue,
the second step is to determine whether it "criminalizes a
substantial amount of protected expressive activity." Id. at
297.
¶583 "Like the overbreadth doctrine, the void-for-vagueness
doctrine protects against the ills of a law that 'fails to
provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.'" Ctr. for
Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir.
2012) (quoted source and citation omitted). Where the statute
at issue implicates First Amendment rights, a greater degree of
precision and guidance is required. Id. at 479; see also
Buckley, 424 U.S. at 77 ("Where First Amendment rights are
involved, an even 'greater degree of specificity' is required.")
(quoted source and citation omitted). That said, "'perfect
clarity and precise guidance have never been required even of
regulations that restrict expressive activity.'" Williams, 553
U.S. at 304 (quoted source and citation omitted). Similar to
overbreadth analysis, a court engaging in First Amendment
vagueness analysis must interpret the statute at issue and
determine whether it restricts a substantial amount of
constitutionally protected activity. Madigan, 697 F.3d at 479.
If it does not, a facial challenge to the statute must fail.
Id.
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¶584 The takeaway is that "The First Amendment vagueness
and overbreadth calculus must be calibrated to the kind and
degree of the burdens imposed on those who must comply with the
regulatory scheme. The greater the burden on the regulated
class, the more acute the need for clarity and precision."
Barland II, 751 F.3d at 837.
ii. Relevant Campaign-Finance Decisions
¶585 That First Amendment overbreadth and vagueness
analysis is context specific is best exemplified by Buckley, the
case in which the United States Supreme Court created the
express-advocacy limitation that is at the heart of this case.
In Buckley, the Supreme Court considered various challenges to
the Federal Election Campaign Act of 1971's (FECA) restrictions
on contributions and independent expenditures. The main
provisions under review involved: (1) limitations on individual
and group political contributions; (2) limitations on
independent expenditures; and (3) disclosure requirements for
individual and group political contributions and independent
expenditures. Buckley, 424 U.S. at 7.
¶586 Prior to addressing the subject enactments, Buckley
discussed the kind and degree of burdens imposed on political
speakers through limitations on the giving and spending of money
in political campaigns. Regarding limitations on contributions,
the Supreme Court explained:
a limitation upon the amount that any one person or
group may contribute to a candidate or political
committee entails only a marginal restriction upon the
contributor's ability to engage in free communication.
A contribution serves as a general expression of
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support for the candidate and his views, but does not
communicate the underlying basis for the support
. . . . A limitation on the amount of money a person
may give to a candidate or campaign organization thus
involves little direct restraint on his political
communication, for it permits the symbolic expression
of support evidenced by a contribution but does not in
any way infringe the contributor's freedom to discuss
candidates and issues.
Id. at 20-21 (emphasis added). In comparison, limitations on
independent expenditures "represent substantial rather than
merely theoretical restraints on the quantity and diversity of
political speech." Id. at 19. This is because "A restriction
on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity
of expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience
reached." Id.
¶587 Bearing in mind the relative burdens on political
speech imposed by limitations on contributions and independent
expenditures, the Supreme Court turned to address constitutional
challenges to FECA's $1,000 limitation on individual and group
political contributions to any single candidate per election.
Under FECA, the term "contribution" was defined to include "a
gift, subscription, loan, advance, or deposit of money or
anything of value . . . made for the purpose of influencing" an
election. Id. at 182. The appellants did not challenge the
subject enactment as unconstitutionally overbroad and vague on
the basis that it incorporated the phrase "for the purpose of
influencing" an election. However, in a footnote, Buckley all
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but assured that the phrase poses little overbreadth and
vagueness concerns in the context of regulating contributions:
The Act does not define the phrase "for the purpose of
influencing" an election that determines when a gift,
loan, or advance constitutes a contribution. Other
courts have given that phrase a narrow meaning to
alleviate various problems in other contexts. . . .
The use of the phrase presents fewer problems in
connection with the definition of a contribution
because of the limiting connotation created by the
general understanding of what constitutes a political
contribution.
Id. at 23 n.24 (internal citations omitted).
¶588 Given the Supreme Court's recognition that limitations
on contributions impose marginal burdens on free speech, its
decision not to require a more precise definition of the term
"contribution" is entirely consistent with the context specific
inquiry that must take place when engaging in overbreadth and
vagueness analysis. Ultimately, Buckley upheld FECA's
limitation on individual and group political contributions,
finding a "sufficiently important interest" in preventing quid
pro quo corruption or the appearance thereof. Id. at 25-28.
¶589 The Supreme Court then considered FECA's $1,000
limitation on independent expenditures "relative to a clearly
identified candidate." Id. at 39. In that context, the
appellants successfully asserted a vagueness challenge to the
subject enactment's use of the above quoted phrase. Significant
to the Supreme Court's determination was the fact that the
limitation on independent expenditures posed a substantial
burden on political speech. See id. at 39-44. It reasoned that
the indefiniteness of the phrase "relative to a clearly
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identified candidate" "fails to clearly mark the boundary
between permissible and impermissible speech . . . ." Id. at
41. Thus, it searched for a narrowing construction to save the
statute from unconstitutionality.
¶590 The Supreme Court found that narrowing construction in
the text of the subject enactment itself:
The section prohibits any expenditure . . . relative
to a clearly identified candidate during a calendar
year which, when added to all other expenditures . . .
advocating the election or defeat of such candidate,
exceeds, $1,000. This context clearly permits, if
indeed it does not require, the phrase "relative to" a
candidate to be read to mean "advocating the election
or defeat of" a candidate.
Id. at 42 (internal quotations omitted). It then determined
that the readily apparent limiting construction simply
"refocuse[d] the vagueness question," Id., "[f]or the
distinction between discussion of issues and candidates and
advocacy of election or defeat of candidates may often dissolve
in practical application." Id. As a result, the Supreme Court
further narrowed FECA's limitation on independent expenditures
to "expenditures for communications that in express terms
advocate the election or defeat of a clearly identified
candidate for federal office." Id. at 44.
¶591 The express advocacy limitation created in Buckley was
therefore "an endpoint of statutory interpretation, not a first
principle of constitutional law." McConnell v. Fed. Election
Comm'n, 540 U.S. 93, 190 (2003), overruled on other grounds by
Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).
Ultimately, the Supreme Court determined that FECA's limitation
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on independent expenditures, even as narrowly construed,
impermissibly burdened the constitutional right of free
expression. Buckley, 424 U.S. at 47-51.
¶592 Perhaps most significant for purposes of the instant
action is Buckley's discussion of FECA's disclosure requirements
for contributions and independent expenditures. The enactment
at issue imposed reporting obligations on individuals and groups
that made contributions or independent expenditures aggregating
over $100 in a calendar year "other than by contribution to a
political committee or candidate." Id. at 74-75.
¶593 FECA defined the terms "contribution" and
"expenditure" to include anything of value made "for the purpose
of influencing" an election. Id. at 77. This time Buckley took
issue with that phrase, but only as it operated to regulate
independent expenditures. Id. at 77-80. 18 To avoid overbreadth
and vagueness concerns, the Supreme Court construed
"expenditure" for purposes of the subject enactment "to reach
only funds that expressly advocate the election or defeat of a
clearly identified candidate." Id. at 80. So construed, the
enactment withstood constitutional scrutiny, as Buckley found
disclosure to be "a reasonable and minimally restrictive method
of furthering First Amendment values by opening the basic
18
It is worth noting that Buckley found no overbreadth or
vagueness concerns with respect to FECA's definition of
"contribution" even though that definition included
"expenditures placed in cooperation with or with the consent of
a candidate, his agents, or an authorized committee of the
candidate." Buckley v. Valeo, 424 U.S. 1, 78 (1976).
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processes of our federal election system to public view." Id.
at 82.
¶594 The foregoing discussion reveals that the majority
misconstrues Buckley. Buckley's conclusion is that the phrase
"for the purpose of influencing" an election poses First
Amendment overbreadth and vagueness concerns in regard to
independent expenditures, not contributions received. 19
¶595 In the aftermath of Buckley, the Supreme Court has
continued to utilize the express advocacy limitation to curb
FECA restrictions on independent expenditures. For example, in
Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S.
238, 245-49 (1986) (MCFL), the Supreme Court applied Buckley's
19
This court previously examined Buckley for the purpose of
clarifying the meaning of the term "express advocacy" as used in
Wis. Stat. § 11.01(16). See Elections Bd. of State of Wis. v.
Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999)
(WMC). In WMC, a Wisconsin corporation sought and received
assurance from the Elections Board of the State of Wisconsin
(the Board) that certain advertisements it wanted to broadcast
prior to a general election did not qualify as express advocacy.
Id. at 653, 677 n.24. The Board later determined that the ads
that were broadcast constituted express advocacy under a
context-based approach toward defining the term. Id. at 678-79.
We turned to Buckley to decide whether the corporation had
fair warning that its ads constituted express advocacy,
ultimately concluding that it did not. Id. at 662-81. As part
of our discussion, we recognized that the United States Supreme
Court created the express advocacy limitation in Buckley to
avoid overbreadth and vagueness concerns with respect to FECA's
regulation of independent expenditures. See id. at 664-66. So
it would be a mistake to rely on WMC for the proposition that
the express advocacy limitation is necessary to cure
constitutional infirmities with respect to Chapter 11's
regulation of campaign contributions received. See majority
op., ¶68 n. 23.
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express advocacy limitation to FECA's prohibition on
corporations using treasury funds to make independent
expenditures in connection with any federal election. Tracking
Buckley's overbreadth and vagueness analysis with respect to
FECA's disclosure requirements on independent expenditures, the
Supreme Court in MCFL determined that FECA's broad definition of
the term "expenditure," i.e., anything of value made "for the
purposes of influencing" an election, posed overbreadth concerns
in the context of the "more intrusive provision that directly
regulate[d] independent spending." Id. at 246-49. Accordingly,
it held that the term "expenditure" in the subject provision was
limited to communications for express advocacy. Id. at 249.
¶596 That Buckley's express advocacy limitation was the
product of statutory interpretation designed to avoid
overbreadth and vagueness concerns solely with respect to the
statutory language at issue is confirmed by McConnell, 540 U.S.
at 191-93. There, the Supreme Court considered challenges to
the Bipartisan Campaign Reform Act of 2002 (BCRA). Id. at 189.
BCRA created a new term, "electioneering communication," 20 which
placed restrictions on communications for express advocacy as
well as issue advocacy. Id. The plaintiffs asserted
20
The term "electioneering communication" was defined to
encompass "any broadcast, cable, or satellite communication"
that "refers to a clearly identified candidate for Federal
office" and appears within 60 days of a federal general election
or 30 days of a federal primary election. McConnell v. Fed.
Election Comm'n, 540 U.S. 93, 189 (2003) overruled on other
grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310(2010).
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constitutional challenges to the new term as it applied to both
the expenditure and disclosure contexts. Id. at 190. In
essence, they argued that the term "electioneering
communication" must be limited to communications for express
advocacy because "Buckley drew a constitutionally mandated line
between express advocacy and so-called issue advocacy, and that
speakers possess an inviolable First Amendment right to engage
in the latter category of speech." Id.
¶597 McConnell patently rejected that contention,
reasoning:
a plain reading of Buckley makes clear that the
express advocacy limitation, in both the expenditure
and the disclosure contexts, was the product of
statutory interpretation rather than a constitutional
command. In narrowly reading the FECA provisions in
Buckley to avoid problems of vagueness and
overbreadth, we nowhere suggested that a statute that
was neither vague nor overbroad would be required to
toe the same express advocacy line. Nor did we
suggest as much in MCFL . . . in which we addressed
the scope of another FECA expenditure limitation and
confirmed the understanding that Buckley's express
advocacy category was a product of statutory
construction.
In short, the concept of express advocacy and the
concomitant class of magic words were born of an
effort to avoid constitutional infirmities. . . . We
have long rigidly adhered to the tenet never to
formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be
applied, . . . for [t]he nature of judicial review
constrains us to consider the case that is actually
before us, . . . Consistent with that principle, our
decisions in Buckley and MCFL were specific to the
statutory language before us; they in no way drew a
constitutional boundary that forever fixed the
permissible scope of provisions regulating campaign-
related speech.
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Id. at 191-93 (emphasis added) (internal citations and
quotations omitted). Thus, it would be error for a court to
rely on Buckley to narrow a statute's reach to express advocacy
where it does not pose the same overbreadth and vagueness
concerns that drove the Supreme Court's analysis in Buckley.
See id. at 194.
¶598 The Seventh Circuit's decision in Barland II is
entirely consistent with the notion that Buckley's express
advocacy limitation is context specific. There, Wisconsin Right
to Life (WRTL), a nonprofit tax-exempt corporation, "sued to
block enforcement of many state statutes and rules against
groups that spend money for political speech independently of
candidates and parties." Barland II, 751 F.3d at 807 (emphasis
added). Specifically, the complaint alleged "that the
challenged laws are vague and overbroad and unjustifiably burden
the free-speech rights of independent political speakers in
violation of the First Amendment." Id. (emphasis added). Lest
there be any confusion, the Seventh Circuit specified: "Neither
[WRTL] nor its state PAC contributes to candidates or other
political committees, nor are they connected with candidates,
their campaign committees, or political parties. That is to
say, they operate independently of candidates and their campaign
committees." Id. at 809.
¶599 So when the Seventh Circuit considered WRTL's
overbreadth and vagueness challenge to Chapter 11's definition
of "political purposes," it did so in the context of that term's
restrictions on independent expenditures, not contributions
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received. Any other reading contravenes the principle that
courts should not "formulate a rule of constitutional law
broader than is required by the precise facts to which it is to
be applied . . . ." McConnell, 540 U.S. at 193 (citation and
quotations omitted). To be clear, the GAB's concession in
Barland II was that Chapter 11's definition of "political
purposes" was overbroad and vague "in the sense meant by Buckley
. . . ." Barland II, 751 F.3d at 832. As demonstrated, Buckley
was concerned with the phrase "for the purpose of influencing"
an election where it operated to regulate independent
expenditures, not contributions. Thus, it is incorrect to rely
on Barland II to support the notion that the subject phrase
poses overbreadth and vagueness concerns in the context of
Chapter 11's regulation of contributions received. 21
¶600 In sum, the key inquiry in First Amendment overbreadth
and vagueness analysis is whether the statute at issue reaches a
substantial amount of constitutionally protected speech. As a
result, a court's analysis in this regard must be context
specific——"the greater the burden on the regulated class, the
more acute the need for clarity and precision." Id. at 837.
21
The majority states that "Although Barland II did not
involve an allegation of coordination, that distinction is
meaningless in determining whether the definition of 'political
purposes' is vague or overbroad." Majority op., ¶67 n.22.
Actually, it makes all the difference. Under Chapter 11,
coordinated disbursements are treated as contributions.
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Buckley embodies that principle in its disparate treatment of
contributions and independent expenditures under FECA. 22
C. There are No Overbreadth and Vagueness Concerns with
Respect to Wis. Stat. § 11.06(1).
¶601 Wisconsin Stat. § 11.06(1) is neither overbroad nor
vague in its requirement that campaign committees report receipt
of in-kind contributions in the form of coordinated spending on
issue advocacy.
¶602 As noted, the primary inquiry is whether Wis. Stat.
§ 11.06(1) reaches a substantial amount of constitutionally
protected speech. Madigan, 697 F.3d at 479. Of course, in
order to answer that question, it is necessary to examine the
plain language of the statute. Williams, 553 U.S. at 293.
¶603 Generally speaking, Wis. Stat. § 11.06(1) requires
registrants to "make full reports . . . of all contributions
received, contributions or disbursements made, and obligations
incurred." Registrants must file frequent and detailed reports
under § 11.06; Barland II summarized a variety of those
reporting obligations as follows:
For contributions received in excess of $20, the
report must include the date of the contribution, the
name and address of the contributor, and the
cumulative total contributions made by that
contributor for the calendar year. For contributions
22
For a thorough discussion that supports my interpretation
of Buckley's distinction between contributions and independent
expenditures, see generally Brent Ferguson, Beyond Coordination:
Defining Indirect Campaign Contributions for the Super PAC Era,
42 Hastings Const. L.Q. 471 (2015).
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received in excess of $100, the registrant must obtain
and report the name and address of the donor's place
of employment. All other income in excess of $20—
including transfers of funds, interest, returns on
investments, rebates, and refunds received—must be
listed and described.
Registrants must report all disbursements. For every
disbursement in excess of $20, the registrant must
include the name and address of the recipient, the
date of the disbursement, and a statement of its
purpose. Individuals and committees not primarily
organized for political purposes need only report
disbursements made for the purpose of expressly
advocat[ing] the election or defeat of a clearly
identified candidate. In other words, committees in
this category need not report general operating
expenses; for all other committees, administrative and
overhead expenses must be reported as disbursements.
All disbursements that count as contributions to
candidates or other committees must be reported.
Barland II, 751 F.3d at 814 (internal citations and quotations
omitted). "No person may prepare or submit a false report or
statement to a filing officer under [Chapter 11]." Wis. Stat.
§ 11.27(1). A registrant that intentionally violates § 11.27(1)
is subject to criminal penalty. See Wis. Stat. § 11.61(1)(b).
¶604 To understand Wis. Stat. § 11.06(1)'s full reach on
constitutionally protected speech, the terms "contribution" and
"disbursement" must be construed. 23 As previously noted, a
"contribution" includes a "gift . . . of money . . . or anything
23
Wisconsin Stat. § 11.06(1) includes the term "obligation"
as well. Under Chapter 11, "incurred obligation" is defined as
"every express obligation to make any contribution or
disbursement . . . for political purposes." Wis. Stat.
§ 11.01(11). Since that term relies on a promise to make a
"contribution" or "disbursement," it is unnecessary to
separately analyze it.
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of value . . . made for political purposes." Wis. Stat. §
11.01(6)(a)1. The definition encompasses a "disbursement by a
contributor to procure a thing of value or service for the
benefit of a registrant who authorized the disbursement." Wis.
Admin. Code § GAB 1.20(1)(e). A disbursement made for the
benefit of a candidate that is prearranged with the candidate or
the candidate's agent is treated as a contribution to the
candidate or the campaign committee that must be reported as a
contribution received. Wis. Stat. § 11.06(4)(d).
¶605 A "disbursement" includes "A purchase, payment,
distribution, loan, advance, deposit, or gift of money or
anything of value . . . made for political purposes." Wis.
Stat. § 11.01(7)(a)1.
¶606 A "contribution" and a "disbursement" must be made for
"political purposes." "Political purposes" is defined to
include an act done "for the purpose of influencing" an
election. Wis. Stat. § 11.01(16).
¶607 To reiterate, the phrase "for the purpose of
influencing" an election has caused overbreadth and vagueness
problems in the context of campaign-finance regulation where it
serves to restrict independent expenditures. See Buckley, 424
U.S. at 77-80; MCFL, 479 U.S. at 249; Barland II, 751 F.3d at
833. That is because restraints on independent expenditures
have the potential to encumber a substantial amount of protected
speech. Buckley, 424 U.S. at 19. At first blush, then, Wis.
Stat. § 11.06(1)'s reporting requirement for "disbursements"
raises the specter of unconstitutionality as far as independent
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spending is concerned. But Wis. Stat. § 11.06(2) solves that
dilemma, exempting from § 11.06(1)'s reporting requirement
independent disbursements that do not "expressly advocate the
election or defeat of a clearly identified candidate . . . ."
Thus, with respect to § 11.06(1)'s regulation of independent
disbursements, there are no overbreadth and vagueness concerns
in the sense meant by Buckley.
¶608 That leaves the question of whether the phrase "for
the purpose of influencing" an election, incorporated in Wis.
Stat. § 11.06(1) through the definition of "contribution,"
raises constitutional concerns in the sense meant by Buckley.
Clearly, the answer is "no."
¶609 For starters, restrictions on contributions pose
marginal as opposed to substantial burdens on speech. Id. at
20-21; see also Fed. Election Comm'n v. Colo. Republican Fed.
Campaign Comm., 533 U.S. 431, 440 (2001) (Colorado II)
("Restraints on expenditures generally curb more expressive and
associational activity than limits on contributions do."). The
main rationale is that restraints on contributions have little
direct impact on political communication, as they permit the
symbolic expression of support and leave the contributor free to
discuss candidates and issues. Buckley, 424 U.S. at 21.
Arguably, that justification might not apply with equal force to
contributions that take the form of coordinated issue advocacy,
since such contributions do "communicate the underlying basis
for the [contributor's] support." Id. But there is a simple
solution to that problem: stop coordinating. In the absence of
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coordination, the contributor is free to discuss candidates and
issues.
¶610 That restrictions on contributions impose marginal
burdens on free speech is especially true where the restriction
at issue involves disclosure rather than a ceiling on the amount
of money a person can give to a campaign. See Citizens United
v. Fed. Election Comm'n, 558 U.S. 310, 369 (2010) ("The Court
has explained that disclosure is a less restrictive alternative
to more comprehensive regulations of speech."). Even the
majority is forced to acknowledge the fact that disclosure
requirements pose less significant burdens on the exercise of
free speech. 24 So it is important to keep in mind that Wis.
Stat. § 11.06(1) requires disclosure of contributions made and
received.
¶611 In light of the more modest burdens that Wis. Stat.
§ 11.06(1) imposes on the free speech rights of those that make
and receive contributions, it is clear that less precision and
clarity is required with respect to what is regulated. See
Barland II, 751 F.3d at 837 ("The greater the burden on the
regulated class, the more acute the need for clarity and
precision."). That leads me to conclude that the phrase "for
the purpose of influencing" an election is not problematic where
it operates to regulate contributions under § 11.06(1). Indeed,
Buckley supports my position. See Buckley, 424 U.S. at 23 n.24
("The use of the phrase presents fewer problems in connection
24
Majority op., ¶48.
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with the definition of a contribution because of the limiting
connotation created by the general understanding of what
constitutes a political contribution.").
¶612 It is common sense that a gift of money to a candidate
or a campaign committee constitutes an act made for the purpose
of influencing an election. It is also common sense that money
spent on services for the benefit of a candidate or a campaign
committee that authorized the spending is an act done for the
purpose of influencing an election. Similarly, where a
candidate or a candidate's agent and a third party prearrange
the third party's spending for the benefit of the candidate,
common sense says the spending is done for the purpose of
influencing an election. The point is that the aforementioned
actions are connected with a candidate or his or her campaign.
¶613 Therefore, I conclude that Wis. Stat. § 11.06(1) is
neither overbroad nor vague in its requirement that candidate
committees report receipt of in-kind contributions in the form
of coordinated spending on issue advocacy.
¶614 The majority disagrees, although it does not address
Wis. Stat. § 11.06(1) in reaching its conclusion that the
special prosecutor fails to advance a valid argument under
Wisconsin criminal law. Rather, the majority dismisses the
special prosecutor's primary argument by analyzing the GAB's
definition of the term "in-kind contribution." 25 That approach
is inconsistent with First Amendment overbreadth and vagueness
25
See majority op., ¶74.
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analysis. See Williams, 553 U.S. at 293 ("The first step in
overbreadth analysis is to construe the challenged statute; it
is impossible to determine whether a statute reaches too far
without first knowing what the statute covers."); Madigan, 697
F.3d at 479 ("'In a facial challenge to the overbreadth and
vagueness of a law, a court's first task is to determine whether
the enactment reaches a substantial amount of constitutionally
protected conduct.'") (quoted source and citation omitted).
Wisconsin Admin. Code § GAB 1.20(1)(e), standing alone, does not
regulate protected speech——it is a definition.
¶615 Had the majority performed a context specific First
Amendment overbreadth and vagueness analysis, it presumably
would have concluded that Wis. Stat. § 11.06(1) is
unconstitutionally overbroad and vague in the sense meant by
Buckley because it contains the terms "contribution" and
"disbursement," thereby triggering "political purposes" and the
phrase "for the purpose of influencing" an election. 26 But a
correct reading of Buckley and its progeny leads to a conclusion
that there are no constitutional infirmities with respect to
§ 11.06(1).
¶616 The majority's contrary conclusion ignores the
legislature's intent in enacting Chapter 11. When searching for
a limiting construction to cure an overly broad or vague
statute, "we examine the language of the statute as well as its
legislative history to determine whether the legislature
26
See majority op., ¶¶66-67.
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intended the statute to be applied in its newly-construed form."
State v. Janssen, 219 Wis. 2d 362, 380, 580 N.W.2d 260 (1998).
By rejecting the special prosecutor's in-kind contribution
argument and holding that contributions received need not be
reported under Wis. Stat. § 11.06(1) unless they involve express
advocacy or its functional equivalent, the majority disregards
the legislature's declaration of policy in creating Chapter 11:
ensuring that the public is fully informed of the true source of
financial support to candidates for public office. Wis. Stat. §
11.001.
¶617 The majority's errors will have a detrimental effect
on the integrity of Wisconsin's electoral process, particularly
in the context of campaign contributions. Under the majority's
holding, an act is not a campaign contribution unless it
involves express advocacy or its functional equivalent. 27 The
majority claims that its limiting construction is necessary to
place issue advocacy beyond Chapter 11's reach, 28 but at what
cost? Surely gifts of money to a campaign trigger the same quid
pro quo corruption concerns that justify the regulation of
communications for express advocacy or its functional
equivalent, and yet gifts of money would not constitute
contributions under the majority's holding. Since Buckley, the
United States Supreme Court has consistently upheld restraints
on such campaign contributions. See O'Keefe, 769 F.3d at 941.
27
Majority op., ¶67.
28
Majority op., ¶¶66-67.
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Thus, I question the propriety of the majority's decision to
tear down those restraints.
¶618 In sum, I conclude that Chapter 11 supports the
special prosecutor's in-kind contribution argument. The
majority's contrary determination is the product of a
fundamental misunderstanding and misapplication of Buckley and
its progeny, including Barland II, as well as the First
Amendment overbreadth and vagueness principles that those
decisions embody.
D. The Question of Whether the First Amendment Prohibits
Regulation of Coordinated Issue Advocacy Should Not Prevent the
John Doe Investigation From Moving Forward.
¶619 Having concluded that the special prosecutor makes a
valid argument under Wisconsin criminal law, the question
remains whether the First Amendment to the United States
Constitution prohibits regulation of coordinated issue
advocacy. 29 This question should be addressed by the United
States Supreme Court because it has sparked "lively debate among
judges and academic analysts." Id. at 942.
29
Speech that is protected under the First Amendment is not
necessarily immune to governmental regulation. See Williams-
Yulee, 135 S. Ct. at 1667 ("[N]obody argues that solicitation of
campaign funds by judicial candidates is a category of
unprotected speech. As explained above, the First Amendment
fully applies to Yulee's speech. The question is instead whether
that Amendment permits the particular regulation of speech at
issue here."). This point appears lost on the majority. See,
e.g., majority op., ¶¶66-67.
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¶620 In O'Keefe, the plaintiffs filed suit seeking an
injunction that would halt this John Doe investigation
permanently, regardless of whether the special prosecutor could
demonstrate a violation of Wisconsin law. Id. at 938. In
addition, the complaint sought damages against five defendants,
including the special prosecutor and the Milwaukee County
District Attorney. Id. The United States District Court for
the Eastern District of Wisconsin "held that the First Amendment
to the Constitution (as applied to the states through the
Fourteenth) forbids not only penalties for coordination between
political committees and groups that engage in issue advocacy,
but also any attempt by the state to learn just what kind of
coordination has occurred." Id. As a result, the district
court rejected the defendants' argument that they enjoyed
qualified immunity. Id. at 939.
¶621 In reversing the district court's order that rejected
the defendants' qualified immunity defense, the Seventh Circuit,
in an opinion authored by Judge Easterbrook, reasoned:
No opinion issued by the Supreme Court, or by any
court of appeals, establishes ("clearly" or otherwise)
that the First Amendment forbids regulation of
coordination between campaign committees and issue-
advocacy groups—let alone that the First Amendment
forbids even an inquiry into that topic. The district
court broke new ground. Its views may be vindicated,
but until that day public officials enjoy the benefit
of qualified immunity from liability in damages.
Id. at 942.
¶622 It is important to note that the United States Supreme
Court has endorsed FECA's treatment of coordinated expenditures
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as contributions. As previously mentioned, in Buckley, the
Supreme Court upheld FECA's limitations on individual and group
political contributions notwithstanding the fact that
"contribution" was defined to include coordinated expenditures.
Buckley, 424 U.S. at 23-59. It also upheld FECA's disclosure
requirements on contributions so defined. Id. at 78. In
Colorado II, the Supreme Court upheld FECA's limitations on
coordinated expenditures between political parties and
candidates. Colorado II, 533 U.S. at 465. Also, in McConnell,
it upheld BCRA's treatment of coordinated disbursements for
electioneering communications as contributions, even though the
term "electioneering communication" was defined to include issue
advocacy. McConnell, 540 U.S. at 203.
¶623 The basic rationale underlying the Supreme Court's
endorsement of such restrictions is that coordinated
expenditures "are as useful to the candidate as cash . . . ."
Colorado II, 533 U.S. at 446. Thus, they are "disguised
contributions" that "might be given 'as a quid pro quo for
improper commitments from the candidate' (in contrast to
independent expenditures, which are poor sources of leverage for
a spender because they might be duplicative or counterproductive
from a candidate's point of view." Id. (citing Buckley, 424
U.S. at 47). Since the prevention of quid pro quo corruption or
its appearance remains a permissible goal justifying regulations
on political speech, McCutcheon v. Fed. Election Comm'n, 134 S.
Ct. 1434, 1441 (2014), it is certainly likely that the
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regulation of coordinated issue advocacy will withstand First
Amendment scrutiny.
¶624 Moreover, as noted previously, the Supreme Court
recently determined that the First Amendment permits the
regulation of judicial candidates' speech. Williams-Yulee, 135
S. Ct. at 1662. The Supreme Court reasoned that states have a
compelling interest in preserving public confidence in their
judges by preventing quid pro quo corruption or its appearance.
Id. at 1667-68. Thus, an argument can be made that Williams-
Yulee bolsters the special prosecutor's contention that the
First Amendment permits the regulation of coordinated issue
advocacy, since that is an area where corruption or its
appearance is a significant concern as well.
¶625 Because the special prosecutor makes a valid argument
under Wisconsin criminal law, and because the United States
Supreme Court has not concluded that the First Amendment
prohibits the regulation of coordinated issue advocacy, the John
Doe investigation should not be terminated. Not only do the
majority's errors serve to end a valid John Doe investigation,
they work to limit the reach of Wisconsin's campaign-finance law
in a manner that will undermine the integrity of our electoral
process. I disagree with these consequences and therefore
respectfully dissent in Two Unnamed Petitioners.
II. SCHMITZ v. PETERSON AND THREE UNNAMED PETITIONERS
¶626 The questions presented in Schmitz v. Peterson and
Three Unnamed Petitioners boil down to whether the John Doe
judge violated a plain legal duty in either initiating these
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proceedings or quashing various subpoenas and search warrants
related to the investigation. Both the special prosecutor in
Schmitz v. Peterson and the Unnamed Movants in Three Unnamed
Petitioners carry a heavy burden in this regard, as a
supervisory writ is an "extraordinary and drastic remedy that is
to be issued only upon some grievous exigency." State ex. rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶17, 271 Wis.
2d 633, 681 N.W.2d 110. I agree with the majority that neither
the special prosecutor nor the Unnamed Movants have established
the prerequisites for a writ to issue. 30
¶627 However, I wish to clarify that the majority's
decision in Schmitz v. Peterson should not be construed as
holding that the evidence gathered in the John Doe proceedings
fails to provide a reasonable belief that Wisconsin's campaign-
finance law was violated. The majority's decision to deny the
writ rests solely on the fact that Reserve Judge Gregory
Peterson made a discretionary decision to quash the subpoenas
and search warrants at issue. By the very nature of the
supervisory writ standard, the majority's conclusion takes no
position on the propriety of Reserve Judge Peterson's decision
in this regard.
III. CONCLUSION
¶628 By erroneously concluding that campaign committees do
not have a duty under Wisconsin's campaign-finance law to report
receipt of in-kind contributions in the form of coordinated
30
See majority op., ¶¶78, 101.
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spending on issue advocacy, the majority rejects the special
prosecutor's primary argument regarding criminal activity.
Although the special prosecutor advances a secondary argument of
criminal activity concerning coordinated express advocacy, the
majority inexplicably ignores that argument. These mistakes
lead the majority to terminate a valid John Doe investigation in
an unprecedented fashion.
¶629 With respect to the special prosecutor's primary
argument, which is the focus of my writing, the majority
misapplies the related doctrines of overbreadth and vagueness.
Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is
neither overbroad nor vague in its requirement that campaign
committees report receipt of in-kind contributions. The
majority also makes the troubling pronouncement that an act is
not a regulable disbursement or contribution under Ch. 11 unless
it involves express advocacy or its functional equivalent. This
is an erosion of Ch. 11 that will profoundly affect the
integrity of our electoral process. I cannot agree with this
result.
¶630 It is also imperative to note that the majority
conveniently overlooks the special prosecutor's secondary
argument of criminal activity in its effort to end this John Doe
investigation. Specifically, the special prosecutor seeks to
investigate whether particular express advocacy groups
coordinated their spending with candidates or candidate
committees in violation of their sworn statement of independence
under Wis. Stat. § 11.06(7). Despite the fact that the special
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prosecutor utilizes a significant portion of his brief to
present evidence of such illegal coordination, the majority
determines, without explanation, that the John Doe investigation
is over.
¶631 Has the majority abused its power in reaching this
conclusion? The majority's rush to terminate this investigation
is reminiscent of the action taken by the United States District
Court for the Eastern District of Wisconsin in O'Keefe v.
Schmitz, 19 F. Supp. 3d at 875, an action that was both
criticized and reversed by the United States Court of Appeals
for the Seventh Circuit in O'Keefe, 769 F.3d at 942. Although
the focus of my writing lies elsewhere, the majority's error in
this regard cannot be overlooked.
¶632 For these reasons, I respectfully dissent in State ex.
rel. Two Unnamed Petitioners v. Peterson (Two Unnamed
Petitioners).
¶633 However, because I agree that the special prosecutor
and certain Unnamed Movants have failed to meet their heavy
burden of establishing that the John Doe judge violated a plain
legal duty in either initiating these proceedings or quashing
various subpoenas and search warrants related to the
investigation, I respectfully concur with the majority in State
ex. rel. Schmitz v. Peterson (Schmitz v. Peterson) and State ex.
rel. Three Unnamed Petitioners v. Peterson (Three Unnamed
Petitioners). In concurring in Schmitz v. Peterson, it is
significant for me that when an appellate court decides to issue
a supervisory writ, it is a rare, discretionary decision.
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Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶33-34. Here, the
John Doe judge also made a discretionary decision in deciding a
complex legal issue. Deference should be given where there is
such discretion.
¶634 For the foregoing reasons, I concur in part and
dissent in part. To be clear, I agree with the majority's
decision to deny the petition for supervisory writ and affirm
Reserve Judge Gregory Peterson's order in Schmitz v. Peterson.
I also agree with the majority's decision to deny the petition
for supervisory writ and affirm the court of appeals' decision
in Three Unnamed Petitioners. However, contrary to the
majority, I would deny the relief sought in Two Unnamed
Petitioners and allow the John Doe investigation to continue.
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1