Three Unnamed v. Gregory A. Peterson

2015 WI 103
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2504-W through 2013AP2508-W, 2014AP296-OA &
2014AP417-W through 2014AP421-W
COMPLETE TITLE: 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.
-------------------------------------------------
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.
MOTION FOR RECONSIDERATION
OPINION FILED: December 2, 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:
CONCUR/DISSENT: ABRAHAMSON, J., concurs and dissents. (Opinion
Filed)
DISSENTED:
NOT A.W. BRADLEY, R.G. BRADLEY, J.J., did not
PARTICIPATING: participate.
N. PATRICK CROOKS, Jr., passed away while these
motions were pending and prior to their final
resolution by the court.
ATTORNEYS:
2
2015 WI 103
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
(L.C. Nos. 2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23)
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of John Doe Proceeding
State of Wisconsin ex rel. Three Unnamed
Petitioners,
Petitioner, FILED
v. DEC 2, 2015
The Honorable Gregory A. Peterson, John Doe Diane M. Fremgen
Judge, the Honorable Gregory Potter, Chief Clerk of Supreme Court
Judge and Francis D. Schmitz, as Special
Prosecutor,
Respondents.
_____________________________________________
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.
_____________________________________________
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
State of Wisconsin ex rel. Francis D. Schmitz,
Petitioner,
v.
Honorable Gregory A. Peterson, John Doe Judge,
Respondent,
Eight Unnamed Movants,
Interested Party.
MOTION for reconsideration of a decision of the Supreme
Court. Motion for reconsideration and motion for stay denied;
mandate clarified.
¶1 PER CURIAM. Attorney Francis Schmitz, who has been
designated as the special prosecutor representing the State of
Wisconsin throughout the proceedings in this court, has filed a
motion for reconsideration of a portion of this court's July 16,
2015 decision. Attorney Schmitz also asks this court to stay
its mandate regarding the documents and data gathered during the
investigation while the prosecution team determines whether to
seek federal review of our decision. In response, some of the
Unnamed Movants (as that term was defined in the July 16, 2015
majority opinion) challenge whether Attorney Schmitz retains any
authority to act as the special prosecutor. The Unnamed Movants
also argue that the motions should be denied because they fail
to meet the relevant standards for relief.
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¶2 We first address the question of Attorney Schmitz's
authority and hold that, as of the date of this opinion, with
the exception of the limited tasks explicitly imposed on him by
this opinion, Attorney Schmitz's authority to act as the special
prosecutor in what has become known as "John Doe II"1 is
terminated because his appointment was invalid. We further deny
both the motion for reconsideration and the motion for a stay.
As described below, we clarify the portion of the mandate in the
July 16, 2015 decision that required Attorney Schmitz to return
and destroy documents and electronic data obtained during the
John Doe II investigation.
¶3 Before we can address the substance of Attorney
Schmitz's motions, we must address whether his motions should be
dismissed because he lacks authority to continue acting as the
John Doe special prosecutor. One of the issues we asked the
parties to address in State ex rel. Three Unnamed Petitioners v.
Peterson, Case Nos. 2013AP2504-08-W, was whether Attorney
Schmitz's appointment as the special prosecutor was valid. Some
of the Unnamed Movants argue that in light of a legal conclusion
in Justice David T. Prosser's July 16, 2015 concurring opinion
1
We use the term "John Doe II" to refer to the John Doe
proceedings and the accompanying investigation in five counties
that was initially presided over by Reserve Judge Barbara A.
Kluka and since the fall of 2013 has been presided over by
Reserve Judge Gregory A. Peterson. We use the term "John Doe I"
to refer to the earlier John Doe proceeding and investigation in
Milwaukee County (Case No. 10JD7) that was presided over by
Reserve Judge Neal Nettesheim.
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that Attorney Schmitz's appointment was invalid, which was
joined by three other justices, Attorney Schmitz lacks standing
to pursue a motion for reconsideration or a motion for a stay of
this court's decision. On the other hand, Attorney Schmitz
argues that the legal ruling of this court in Three Unnamed
Petitioners, Case Nos. 2013AP2504-08-W, was an affirmance of the
court of appeals' decision denying the Three Unnamed
Petitioners' petition for a supervisory writ, which means that
he continues to have standing to act as the special prosecutor
in all respects, including by filing new motions and other
papers in this court. Resolving this issue requires that we
clarify the legal effect of the opinions we issued on July 16,
2015.
¶4 When we were addressing the merits of Three Unnamed
Petitioners, Case Nos. 2013AP2504-08-W, the court's task was to
determine whether the court of appeals had properly denied the
Three Unnamed Petitioners' petition for a supervisory writ.
Accordingly, we looked to the standard of review and the
standard for obtaining such a writ. In the July 16, 2015
majority opinion, this court determined that the Three Unnamed
Petitioners could not meet one of the requirements for the
issuance of a supervisory writ——namely, that the John Doe judge
at the time of Attorney Schmitz's appointment, Reserve Judge
Barbara Kluka, had violated a plain duty under then-existing law
in appointing Attorney Schmitz. Accordingly, this court
affirmed the court of appeals' decision denying the Three
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2014AP296-OA
2014AP417-W through 2014AP421-W
Unnamed Petitioners' petition for a supervisory writ. Given
that standard of review, the determination of no violation of a
plain legal duty was the extent of this court's legal ruling in
Case Nos. 2013AP2504-08-W with respect to the question of
whether the Three Unnamed Petitioners were entitled to the
supervisory writ they had requested from the court of appeals.
¶5 Indeed, because the issue was presented at that point
in time in the context of a supervisory writ petition and the
court determined that the writ standard had not been satisfied,
there was no need for the majority opinion to reach the issue of
whether Attorney Schmitz could continue to act as the special
prosecutor. See State ex rel. Two Unnamed Petitioners v.
Peterson, 2015 WI 85, ¶132 n.43, 363 Wis. 2d 1, 866 N.W.2d 165.
("We need not address what effect an unlawful appointment would
have had because no violation of a plain legal duty occurred.").
¶6 On the other hand, Justice Prosser's concurring
opinion proceeded to discuss the underlying legal issue——namely,
whether Attorney Schmitz's appointment as the special prosecutor
had been valid.2 Justice Prosser interpreted the special
2
This was not the first time that, despite the court having
denied a supervisory writ because the petitioner could not
demonstrate a violation of a plain legal duty, the court has
gone on to discuss the underlying legal issue. See, e.g., State
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶26,
271 Wis. 2d 633, 681 N.W.2d 110 ("Although the Kalals have
failed to establish the existence of a plain duty and are not
entitled to a supervisory writ, we will address the statutory
interpretation question presented by this case.").
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prosecutor statute, Wis. Stat. § 978.045, to contain two
prerequisites that must be satisfied in order for an appointment
of a special prosecutor to be valid: (1) the court or district
attorney seeking the appointment of a special prosecutor must
first seek assistance from other prosecutors, including from an
assistant attorney general, and (2) one of the nine conditions
set forth in Wis. Stat. § 978.045(1r) must apply to the
situation. Justice Prosser concluded that the appointment of
Attorney Schmitz as a special prosecutor for the John Doe II
proceedings in the five counties at issue had been invalid
because the appointment had not satisfied one of the nine
conditions in subsection (1r) of the special prosecutor statute.
¶7 Three other justices joined this portion of Justice
Prosser's concurring opinion. Two Unnamed Petitioners,
363 Wis. 2d 1, ¶306 (Prosser, J., concurring, joined as to
Section IV by Chief Justice Roggensack, Justice Ziegler, and
Justice Gableman). It should be noted, however, that there was
no mandate at the end of Justice Prosser's opinion.3 Indeed, as
3
There also was no part of the mandate at the end of the
majority opinion that addressed the legal conclusion in Justice
Prosser's concurring opinion that the appointment of Attorney
Schmitz as the special prosecutor had been invalid. The mandate
at the end of the majority opinion merely stated "Petition for
supervisory writ denied and decision affirmed in Three Unnamed
Petitioners." This tracked the holding set forth in the
majority opinion that the petition for supervisory writ must be
denied because the Three Unnamed Petitioners had not
demonstrated that the John Doe judge had violated a plain legal
duty.
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in the majority opinion, there was no discussion in Justice
Prosser's concurring opinion of the effect of the legal
determination that Attorney Schmitz's appointment as special
prosecutor was invalid. In essence, given the procedural
posture, while there were four justices who reached the same
conclusion about a question of law, there was no legal ruling by
the court at that point in time on the issue of Attorney
Schmitz's past or present authority as the John Doe II special
prosecutor.
¶8 The fact that the court confined its legal ruling to
affirming the court of appeals' denial of the supervisory writ
petition that was the subject of its review due to the
applicable standard does not mean that Attorney Schmitz should
be able to continue to act as the special prosecutor in all
respects as if his appointment were valid. That would ignore
the reality shown in Justice Prosser's concurrence that a
majority of the justices of this court conclude that his
appointment was invalid. That legal conclusion of four justices
set forth in Justice Prosser's concurrence remains regardless of
any subsequent actions or inactions by Attorney Schmitz or
anyone else. Attorney Schmitz, however, has chosen to continue
to act as the special prosecutor by filing his current motions
for reconsideration and a stay in this court. Moreover, he has
specifically made a continuing claim in his filings that,
because of the denial of the supervisory writ filed by the Three
Unnamed Petitioners, he retains complete authority to act as the
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special prosecutor going forward, despite the writings issued by
this court on July 16, 2015. Because we are presented with his
continued filings brought in his capacity as the appointed
special prosecutor, we now must address the underlying legal
question of Attorney Schmitz's authority to act as the special
prosecutor under the appointment orders issued by the initial
John Doe II judge. If Attorney Schmitz lacks the authority to
act as the special prosecutor because his appointment was
invalid, then his motions could be dismissed simply on that
ground without considering the arguments made in those motions.
¶9 For the reasons set forth in Justice Prosser's
July 16, 2015 concurring opinion, we hold that Attorney
Schmitz's appointment as the special prosecutor in the John Doe
II proceedings pending in each of the five counties was invalid.
Two Unnamed Petitioners, 363 Wis. 2d 1, ¶¶203-39 (Prosser, J.,
concurring). With three justices having already declared
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agreement with Justice Prosser's reasoning, there is no reason
to repeat that reasoning here.4
¶10 The next question, which was not addressed in the
July 16, 2015 opinions, is what is the effect of the
determination that Attorney Schmitz's appointment was invalid.
Because the appointment process and order did not comply with
the special prosecutor statute, was the appointment order
essentially a nullity from the beginning, rendering void all of
Attorney Schmitz's acts as the special prosecutor, or did
Attorney Schmitz lose his authority to act at a later time?
¶11 We conclude that the proper answer is that the
authority of someone who is appointed as a special prosecutor
ends at the point in time when a court makes a legal ruling that
the appointment was invalid and orders as a matter of law that
4
We note that over the last few months, the legislature has
passed and the governor has signed two pieces of legislation
that affect the conduct of John Doe proceedings in a number of
ways, including the appointment of special prosecutors. See
2015 Wis. Act 55 (the 2015 "Executive Budget Act") and
2015 Wis. Act 64. As a result of those enactments, it is now
clear that in order for an individual to be appointed as a
special prosecutor in a John Doe proceeding, one of the
conditions listed in the special prosecutor statute must exist.
Wis. Stat. § 978.045(cm) ("The judge may not appoint an attorney
as a special prosecutor to assist the district attorney in John
Doe proceedings under s. 968.26 unless a condition under
par. (bm)1. to 8. exists or unless the 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. This paragraph does not prohibit assistance
authorized by s. 978.05(8)."). This statutory revision is
consistent with the reasoning of Justice Prosser's July 16, 2015
concurring opinion.
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the individual's authority is terminated. While four justices
of this court reached a legal conclusion as part of the July 16,
2015 writings that Attorney Schmitz's appointment was invalid,
there was not a legal ruling from the court at that juncture and
no order that Attorney Schmitz cease acting as a special
prosecutor in the John Doe II proceedings. Given Attorney
Schmitz's continuing reliance on Judge Kluka's appointment
orders as the basis for continuing to act as the special
prosecutor, we now issue a legal ruling and order that, because
of the invalidity of his appointment, Attorney Schmitz must
cease taking any actions as the John Doe II special prosecutor
as of the date of this opinion and order, except for the actions
this court directs below to conclude the John Doe II
investigation.
¶12 We do not hold that because of the invalidity of
Attorney Schmitz's appointment, all of his actions as the
special prosecutor since his appointment, including his filing
of briefs, motions, memoranda, etc. before the John Doe judge,
the court of appeals, and this court, were nullities at the time
they were taken.5 Such a ruling would unfairly void actions
relied on by the special prosecutor, the lower courts, law
enforcement, and the individuals/entities that have been
5
Rather than voiding an appointed individual's authority to
act from the time of an invalid appointment, we hold that the
individual's authority to act as a special prosecutor is
prospectively voidable by a court.
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involved with the John Doe investigations and proceedings. A
John Doe judge did sign orders that appointed Attorney Schmitz
as the special prosecutor in each of the five John Doe II
proceedings. Both he and the John Doe judges relied on those
orders. As a result of that reliance, the John Doe judge issued
search warrants and took other actions. Nullifying those
actions now because of his invalid appointment would unfairly
upset that reliance without providing any countervailing benefit
to the administration of justice.
¶13 Moreover, making all of a special prosecutor's actions
void ab initio when an appointment order has failed to comply
with the special prosecutor statute would carry the potential
for grave mischief. If that were the law, a defendant who was
being criminally prosecuted by a special prosecutor could
potentially wait until after a judgment of conviction had been
entered and then obtain a ruling from the trial court (or even
an appellate court) that the conviction was invalid because the
special prosecutor's actions in filing the criminal complaint
and trying the case were legal nullities. Such a rule could
undo convictions that were otherwise valid in all respects
simply because the appointing judge failed to ensure that the
appointment process and order complied with the special
prosecutor statute. Where there are no other bases for
overturning what a special prosecutor has done, including
obtaining a criminal conviction, and no personal rights of the
defendant have been violated, justice would be thwarted by
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allowing a defendant to undo otherwise valid prosecutorial
actions.
¶14 The rule that we adopt, however, does not leave a
defendant (or a subject of a John Doe investigation) without any
remedy where a special prosecutor has been invalidly appointed.
Where the defendant learns of the grounds for the invalidity of
the appointment, the defendant has an incentive to bring that
issue to the attention of a court as soon as possible in order
to obtain a ruling on whether the appointment was invalid and
whether the special prosecutor may continue to act in that
capacity. A ruling on that issue would then provide clarity to
all as to whether and how the case may proceed.
¶15 Our ruling herein, that Attorney Schmitz's authority
to act as the special prosecutor in John Doe II terminates with
the release of this opinion (except to comply with the limited,
specified obligations imposed in this opinion), means that the
actions Attorney Schmitz has previously taken, including filing
the current motion for reconsideration and motion for a stay,
were within his authority at that time. Consequently, we do not
dismiss the current motions, as requested by some of the Unnamed
Movants.
¶16 Having now terminated Attorney Schmitz's authority to
act as the special prosecutor, we recognize that to this point
he has been the sole named party in these three John Doe
proceedings to appear on behalf of the prosecution. We note
that Attorney Schmitz has indicated in his recent filings that
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the prosecution intends to seek review of our July 16, 2015
decision in the United States Supreme Court. Our decision to
terminate Attorney Schmitz's authority is not meant to interfere
with the ability of the prosecution team to seek Supreme Court
review. We simply conclude that, where a court rules that an
individual has not been validly appointed to act as a special
prosecutor on behalf of the state, it would be illogical to
allow the individual to continue to file pleadings and briefs on
the state's behalf.6 To allow such ongoing conduct would render
meaningless the legal conclusion of an invalid appointment.
Nonetheless, in view of the fact that Attorney Schmitz has been
the only member of the prosecution team named as a party in
these matters, this ruling has the potential to create problems
with respect to who may act on behalf of the prosecution in this
court or elsewhere going forward.
¶17 We recognize that the five district attorneys have not
been named parties in the proceedings in this court. In fact,
this court denied a motion to add them as parties as part of its
December 16, 2014 order granting review of the three
proceedings. That motion, however, was not brought by the
district attorneys; it was a motion filed by the Three Unnamed
Petitioners at the time of the filing of their petition for
6
While we hold that a special prosecutor may not continue
to act on the merits in such a situation, we do not intend to
foreclose the special prosecutor from seeking reconsideration or
review of the decision terminating his/her authority, to the
extent it is otherwise available.
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review to forcibly add all five of the district attorneys as
parties in Case Nos. 2013AP2504-08-W. The district attorneys
did not express a desire to become named parties at that point.
Indeed, at that point in time there was no need to add the
district attorneys as parties because the prosecution was
represented by Attorney Schmitz as the special prosecutor.
¶18 The fact that the district attorneys were not named
parties to the proceedings in this court, however, does not mean
that none of them has been involved in the John Doe II
investigation and the proceedings in this court.7 To the
contrary, the district attorneys from the five counties and some
or all of their assistants have been admitted to participate in
7
The dissent criticizes the court for referring to the John
Doe II "prosecution team" in this opinion, implying that there
was no group of prosecutors, investigators, and others who
prosecuted the John Doe II investigation, and that Attorney
Schmitz worked alone in prosecuting the John Doe II. Although
the court will not disclose any of the specific individuals who
clearly worked with Attorney Schmitz on the John Doe II
investigation, as the dissent well knows, the John Doe record is
replete with prosecution documents that were signed by
individuals other than Attorney Schmitz. Given the size and
scope of the investigation and the voluminous filings in this
court, it would have been impossible for Attorney Schmitz to
pursue the investigation and the subsequent appellate
proceedings singlehandedly after he became the nominal leader of
the prosecution. Finally and most importantly, in his reply in
support of the current motions, Attorney Schmitz himself makes
multiple references to the "prosecution team" and asserts that,
while he consulted members of that team about various matters,
he exercised the final decision-making authority during the time
he acted as the special prosecutor. To claim that there has not
been and is not now a "prosecution team," when the dissent
clearly knows otherwise, is disingenuous.
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the John Doe II proceedings. It should be remembered that it
was the Milwaukee County District Attorney and his office that
initiated the John Doe II proceeding, led the prosecution for
the first year, and then sought the involvement of the four
other district attorneys.
¶19 While the court did not see a need to force all five
of the district attorneys into becoming named parties at the
time it granted review, the situation has now changed as a
result of the legal ruling in this opinion that Attorney Schmitz
will no longer be able to represent the prosecution as the
special prosecutor. Accordingly, one or more of the district
attorneys could seek to intervene in these actions, which would
allow for the prosecution to be represented in future
proceedings. Given the inability of Attorney Schmitz to
continue acting as the special prosecutor based on his invalid
appointment, such a motion to intervene by one or more of the
district attorneys would receive prompt review by this court.
¶20 We now turn to the substance of Attorney Schmitz's
motion for reconsideration. The court's Internal Operating
Procedures (IOPs) set forth the standard we have applied to such
motions:
Reconsideration, in the sense of a rehearing of
the case, is seldom granted. A change of decision on
reconsideration will ensue only when the court has
overlooked controlling legal precedent or important
policy considerations or has overlooked or
misconstrued a controlling or significant fact
appearing in the record.
Wis. S. Ct. IOP II.J.
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¶21 We conclude that Attorney Schmitz's motion does not
present any grounds to reconsider our prior decision.
¶22 The thrust of the motion for reconsideration is an
argument that this court erred by not allowing Attorney Schmitz
(or presumably the district attorneys) to continue the current
John Doe II investigation to the extent of investigating whether
there was coordination related to express advocacy.
¶23 We conclude that the argument that the previous search
warrants and subpoenas were valid because they sought evidence
of coordination of express advocacy has been forfeited. When
the Unnamed Movants filed motions with the John Doe judge for
the return of seized property and to quash subpoenas, they
argued that the state's theory of criminal liability on the
basis of coordination of issue advocacy was unsupported by
statutory and constitutional law. Attorney Schmitz's response
to those motions was a frontal counter-attack to the Unnamed
Movants' arguments regarding the ability of the state to
regulate the coordination of issue advocacy, both under the
relevant provisions in Chapter 11 of the Wisconsin Statutes and
under the federal and state constitutions. His response never
claimed that the subpoenas and search warrants that were the
subjects of the Unnamed Movants' motions were valid because they
were directed at finding evidence of coordination of express
advocacy and never provided any examples of evidence of such
express advocacy coordination. Indeed, in his January 10, 2014
order granting the Unnamed Movants' motions, the John Doe judge
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specifically concluded that "[t]he State is not claiming that
any of the independent organizations expressly advocated" and
"[t]here is no evidence of express advocacy." The John Doe
judge granted the motions for return of seized property and for
quashing subpoenas on the ground that the state's theory that
coordination of issue advocacy is regulated by Chapter 11 was
legally incorrect.
¶24 It is true that, after the John Doe judge rejected the
arguments Attorney Schmitz actually made to support the search
warrants and subpoenas, he then attempted to bring express
advocacy into the appellate writ case (State ex rel. Schmitz v.
Peterson, Case Nos. 2014AP417-21-W) by including a second issue
in his writ petition that asked whether "the record"8 provided a
reasonable belief that a campaign committee had violated
Wisconsin's campaign finance laws by coordinating with
independent disbursement committees that engaged in express
advocacy. Indeed, when the supervisory writ petition came to
this court via petitions for bypass, this court's December 16,
2014 order included this second issue in its list of issues to
be briefed. Attorney Schmitz's attempt to introduce express
advocacy coordination in the appellate court and this court's
initial inclusion of his new issue, however, do not change the
fact that he never raised this issue or made this argument
8
This would have to be the record that was before the John
Doe judge, namely, what the parties had presented to him in
their filings.
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before the John Doe judge. By failing to raise the issue and
argument in front of the John Doe judge, Attorney Schmitz
forfeited his ability to argue that the subpoenas and search
warrants at issue were valid because they were actually intended
to obtain evidence of coordination of express advocacy. See,
e.g., Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78,
¶83, 350 Wis. 2d 554, 835 N.W.2d 160 (where party attempted to
make fundamentally different argument on appeal than it had made
before the trial court, this court deemed the argument forfeited
and declined to address it); Tatera v. FMC Corp., 2010 WI 90,
¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 ("Arguments raised for
the first time on appeal are generally deemed forfeited.").
Accordingly, the argument was not addressed in the court's
July 16, 2015 decision.
¶25 Indeed, even if the court had reached the merits of
this issue, the nature of the matter before this court would
have required the same result as set forth in the court's
July 16, 2015 decision. It must be remembered that it was the
John Doe judge's January 10, 2014 order that this court was
asked to review in both the original action (Two Unnamed
Petitioners v. Peterson, Case No. 2014AP296-OA) and the writ
proceeding (State ex rel. Schmitz v. Peterson, Case Nos.
2014AP417-21-W). As noted above, the only means by which
Attorney Schmitz attempted to bring coordination of express
advocacy before any appellate court was his listing of express
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advocacy coordination as an issue in his petition for a
supervisory writ.
¶26 As was thoroughly explained in the July 16, 2015
majority opinion, in order to obtain a supervisory writ from an
appellate court ordering the John Doe judge to reverse his
January 10, 2014 order, Attorney Schmitz was required to prove
that: "(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." Kalal, 271 Wis. 2d 633, ¶17.
¶27 Attorney Schmitz could not meet this standard for the
issuance of a supervisory writ regarding investigation of
express advocacy. Given that he was asking this court to direct
the John Doe judge to reverse his January 10, 2014 order, how
could Attorney Schmitz show that the John Doe judge had violated
a plain legal duty by failing to rely on a theory that Attorney
Schmitz never presented to that judge? It simply cannot be
done. Thus, given the limited nature of the writ proceeding
that Attorney Schmitz initiated for review of the John Doe
judge's ruling and the standards that he was therefore obligated
to meet, the writ petition would have been denied even if the
19
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
express advocacy coordination argument had been considered on
the merits.9
¶28 We now turn to the issue of what should become of the
multitude of documents and electronic files that Attorney
Schmitz and the prosecution team amassed in the course of the
John Doe II investigation, including via subpoenas and search
warrants. Having been advised in the motion for reconsideration
that the prosecution team presently intends to seek review of
the July 16, 2015 decision in the United States Supreme Court
and in order to eliminate any confusion about what should happen
to the evidence collected during the John Doe II investigation,
we modify and clarify the portion of the July 16, 2015 mandate
relating to the return of property seized in the investigation
and the destruction of copies of documents and other materials
obtained through the investigation. The intent of this portion
of our mandate was to require that the prosecution team divest
itself of documents and data that were the product of an
investigation based on an invalid theory under Wisconsin's
campaign finance laws in order to ensure that the prosecution
9
The court also notes the very careful way in which
Attorney Schmitz has phrased his express advocacy argument. He
asserts that there is evidence (somewhere) of coordination
between a campaign committee and other organizations, which
happened to engage (at some point in time) in express advocacy.
He does not affirmatively assert that any particular piece of
express advocacy was the subject of specific coordination.
20
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
team would comply with the court's order to cease all activities
related to the John Doe II investigation.
¶29 We still hold to these results, but we modify the
means to accomplish them in order to avoid impeding in any way
the ability of the prosecution team to seek certiorari review in
the United States Supreme Court. It is for that reason that,
with certain exceptions, we do not impose an immediate deadline
for Attorney Schmitz and his prosecution team to complete the
obligations we impose below. Unless otherwise noted, all of
these obligations must be completed within 30 days following the
completion of proceedings in the U.S. Supreme Court on any
petition for certiorari review. If no petition for certiorari
review is filed, these actions must be completed within 30 days
after the deadline for filing a petition for certiorari review.
¶30 We do impose these obligations on Attorney Schmitz.
Although we have now held that he no longer possesses the
authority to act as the special prosecutor in conducting the
John Doe II investigation or filing documents on behalf of the
state, he must still be allowed to perform the tasks that this
court now assigns to him in order to rectify the results of the
investigation, which we have determined was based on a faulty
reading of the law. If Attorney Schmitz could not be required
to perform these tasks, there would be no party currently before
the court to whom these tasks could be assigned. Moreover, in
his reply in support of his motion for reconsideration, Attorney
Schmitz strongly contended that he was the person in charge of
21
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
the John Doe investigation and solely exercised final decision-
making authority. Given this assertion, it is appropriate that
this court requires him to ensure that certain actions are
performed (whether by him or by members of his prosecution team)
and to make representations that those required actions have
been completed.
¶31 We now turn to the specific tasks that must be
performed. First, we continue to require, to the extent it has
not already been done, that Attorney Schmitz and his prosecution
team return to the rightful owner any computer hardware and
other items of tangible personal property that were seized by
the prosecution team or law enforcement officers in the course
of executing search warrants or obtained in response to
subpoenas issued as part of the John Doe II investigation. This
must be completed within 30 days of the date of this decision.
The return of these items will not impede the preparation of a
petition for certiorari review because Attorney Schmitz and his
prosecution team will not be obligated to return any copy of
data that resided on any such computer hardware, although they
will be required at a later date to turn over all such copies to
the clerk of this court, as described below.
¶32 Second, we require that Attorney Schmitz gather all
documents and copies thereof (whether in hard copy or in digital
form) and all electronic data and copies thereof obtained as a
result of the John Doe II investigation from all persons who
worked for or were associated with him and the prosecution team
22
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
in the John Doe proceedings/investigations. The documents and
electronic data that must be gathered also include all copies of
documents and of electronic data that were obtained during the
John Doe I investigation but were authorized by Judge Nettesheim
in an August 10, 2012 order in Milwaukee County Case No. 10JD7
to be used in the subsequent John Doe II investigation.10 The
universe of individuals from whom such documents and electronic
data should be gathered must include all individuals, other than
the John Doe judge and the employees of the five offices of the
clerks of circuit court, who were granted access by the John Doe
judge to the documents and/or electronic data obtained or used
in the John Doe II investigation. (This would include
individuals who were granted access to the documents and
electronic data that were the subject of Judge Nettesheim's
August 10, 2012 order authorizing use of those documents in a
subsequent John Doe II proceeding and investigation.) The
documents and electronic data should be collected and organized
in a manner that allows the clerk of this court to retrieve
10
We do not require that Attorney Schmitz gather and submit
to the clerk of this court the work product generated by members
of the prosecution team. For example, he is not obligated to
gather and submit memoranda, notes, and email messages generated
by the prosecution team, even if those documents reference
materials gathered or used during the John Doe II investigation.
On the other hand, if there is a copy of a document or a
computer file containing a copy of electronic data obtained or
used during the course of the John Doe II investigation, the
copy of the document or the computer file must be detached from
the work product document and submitted to the clerk of this
court as set forth in this opinion.
23
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
specific documents or sets of electronic data, in the event that
such retrieval is subsequently ordered.
¶33 All of the documents and electronic data described
above and all of the copies of such documents and electronic
data shall be described on a written index. The index shall
describe, with reasonable specificity and consistent with the
organization described in the preceding paragraph, the documents
or electronic data that have been collected.
¶34 Third, we require that all of the documents and
electronic data (and all copies thereof) be submitted under seal
to the clerk of this court.11 Once this submission has occurred,
no document or piece of electronic data (or any copies thereof)
that was gathered in the course of the John Doe II investigation
or that was gathered in the John Doe I investigation but
11
In his reply in support of the motion for
reconsideration, Attorney Schmitz stated that the electronic
data obtained by the prosecution team in the course of the John
Doe II investigation was stored on a portable hard drive that
was in the possession of an investigator in the office of the
Milwaukee County district attorney. That portable hard drive
and any other portable storage devices containing such
electronic data must be included within the materials that are
submitted to the clerk of this court. If files containing
electronic data obtained in the course of the John Doe II
investigation are currently stored on the hard drives of
computers used by members of the prosecution team or other
individuals who were granted access to such data, Attorney
Schmitz shall ensure that such prosecution team members copy
such data to some form of portable memory (CD-ROM, portable hard
drive, flash drive, etc.), which shall be submitted to the clerk
of this court, and that the applicable data files are deleted
from the computer hard drives.
24
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
authorized to be used in the John Doe II investigation should
remain in the possession of Attorney Schmitz, any member of the
prosecution team, or anyone who was authorized by the John Doe
judge to have access to documents, materials, and electronic
data gathered in the course of the John Doe II investigation.
The prosecution team should be completely divested of all such
documents, materials, and electronic data. The clerk shall not
file them as part of the appellate record in this case, but
shall merely maintain them in a sealed and secure manner pending
further order of the court.
¶35 Fourth, at the time that the documents and electronic
data are submitted to the clerk of this court, Attorney Schmitz
shall file with the clerk of this court and with the John Doe
judge the index of the documents and electronic data described
above.
¶36 Fifth, in addition to filing the index, Attorney
Schmitz shall file an affidavit with both this court and the
John Doe judge in which he avers that, to the best of his
knowledge, he has collected and submitted to the clerk of this
court all originals and all copies of documents and electronic
data that were obtained in the course of the John Doe II
investigation and that were obtained during the John Doe I
investigation but were authorized to be used in the John Doe II
investigation. The affidavit shall also include an averment
that Attorney Schmitz has received written statements from all
members of the prosecution team and all individuals who were
25
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
granted access to John Doe II documents and electronic data that
those persons have turned over to him all such documents and
electronic data within their possession and that they no longer
possess any such documents or electronic data (or copies
thereof).
¶37 Finally, because we are not requiring Attorney Schmitz
and the prosecution team to return and destroy all documents and
electronic data immediately, we do require Attorney Schmitz,
within 30 days of the date of this decision, to provide written
notices to all individuals and organizations whose documents or
electronic data were obtained by the prosecution team in the
course of the John Doe II investigation or were obtained in the
course of the John Doe I investigation and were authorized to be
used in the John Doe II investigation.12 The notice should
describe, with particularity, the nature and scope of the
documents or electronic data that the prosecution team obtained,
and from whom the documents and/or electronic data were
obtained. It should also notify the individual or organization
that the documents and/or electronic data will be submitted to
12
For example, if the prosecution team served a subpoena on
Individual A's internet service provider that asked for all of
Individual A's emails during a specified time period, Attorney
Schmitz must notify Individual A that his/her emails from that
time period were obtained from the specific internet service
provider. Attorney Schmitz is not obligated to notify all of
the other individuals who are listed as recipients or senders of
Individual A's emails or are mentioned within the text of
Individual A's emails.
26
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
the clerk of this court pursuant to this court's order and that
the clerk of this court will maintain the documents and/or
electronic data under seal and in a secure manner until further
order of the court.
¶38 Having modified and clarified the mandate in our
July 16, 2015 decision, we turn to the motion for a stay filed
by Attorney Schmitz. In order to obtain a stay pending appeal,
Attorney Schmitz would be required to: (1) make a strong
showing that he or the prosecution team is likely to succeed on
the merits of any further appeal; (2) show that, unless a stay
is granted, he and the prosecution team will suffer irreparable
injury; (3) show that no substantial harm will come to other
interested parties; and (4) show that a stay will do no harm to
the public interest. State v. Gudenschwager, 191 Wis. 2d 431,
440, 529 N.W.2d 225 (1995). In light of our modification and
clarification of the court's mandate with respect to the
disposition of the documents and electronic data obtained in the
John Doe II investigation or authorized to be used in the John
Doe II investigation, we conclude that Attorney Schmitz cannot
show that he or the prosecution team will suffer irreparable
injury. The prosecution team will continue to possess all of
its work product and all of the evidence gathered in the
investigation, subject to the previous orders issued by the John
Doe judge, during the time that it would be preparing any
petition for U.S. Supreme Court review and until the conclusion
of proceedings in that Court. Thus, the prosecution team can
27
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
suffer no injury during that time. Even after that time, the
documents and electronic data will not be destroyed, but will be
stored by the clerk of this court in a sealed and secure manner
pending further order of this court. Thus, in the event that
the investigation would be allowed to proceed at some future
date, the documents and electronic data would still be
available. They could also potentially be available for use in
related civil proceedings, if there is a request and a
determination that such use is proper under the circumstances.
Consequently, while we have modified and clarified the court's
mandate in a manner that grants much of the relief sought by
Attorney Schmitz, we deny his motion for a stay.
¶39 For the foregoing reasons,
IT IS ORDERED that the motion for reconsideration and the
motion for stay are denied.
IT IS FURTHER ORDERED that the mandate of this court is
modified and clarified as set forth above.
IT IS FURTHER ORDERED that Attorney Francis Schmitz shall
immediately cease acting as the special prosecutor, except that
he shall perform the specific tasks imposed on him by the court
in this opinion.
By the Court.—The motion for reconsideration is denied, the
motion for stay is denied, and the mandate is clarified, as
described in the opinion.
¶40 ANN WALSH BRADLEY, J., and REBECCA G. BRADLEY, J., did
not participate.
28
Nos. 2013AP2504-W through 2013AP2508-W
2014AP296-OA
2014AP417-W through 2014AP421-W
¶41 N. PATRICK CROOKS, J., passed away while these motions
were pending and prior to their final resolution by the court.
29
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa
¶42 SHIRLEY S. ABRAHAMSON, J. (concurring in part and
dissenting in part). I agree with the per curiam that the July
16, 2015 majority opinion authored by Justice Gableman is
significantly flawed and must be modified.1 I do not, however,
join the per curiam denying the Special Prosecutor's motion for
reconsideration.2
¶43 In response to the motion for reconsideration, the per
curiam significantly modifies the July 16, 2015 majority opinion
by creative writing devoid of supporting legal authority.
Furthermore, events subsequent to the motion for reconsideration
have overtaken the per curiam.
¶44 Although professing to be even-handed in its treatment
of the Special Prosecutor and the Unnamed Movants, the per
curiam is anything but even-handed. The per curiam terminates
the Special Prosecutor's authority to act as Special Prosecutor
from this date forward and leaves the prosecution and State
totally unrepresented in future proceedings in the John Doe
trilogy. Yet the per curiam nonetheless assigns the Special
1
Throughout my writing, I will refer to Justice Gableman's
July 16, 2015 majority opinion as such, or as "the majority
opinion." The full citation to the majority opinion is State ex
rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363
Wis. 2d 1, 866 N.W.2d 165. I refer to today's per curiam
opinion denying the Special Prosecutor's motion for
reconsideration as "the per curiam."
2
For an example of the court granting rather than denying a
motion for reconsideration in order to clarify a previous
decision, see State v. Johnson, 2014 WI 16, 353 Wis. 2d 119, 846
N.W.2d 1. See also Wis. S. Ct. IOP II. J. (governing
reconsideration).
1
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Prosecutor new tasks and new deadlines without providing the
Special Prosecutor (a private practitioner) any compensation or
assistance.
¶45 The per curiam appears to derail any meaningful review
of the July 16, 2015 majority opinion, to stop any and all
further investigation, and to prevent the release of information
obtained during the investigation.
¶46 In sum, the per curiam embraces confusing and
conflicting positions, all the while leaving many important
issues unresolved, including those posed by events subsequent to
the motion for reconsideration.
¶47 Specifically, the per curiam fails to address six
events that have occurred since Justice Gableman's July 16, 2015
majority opinion and the Special Prosecutor's August 4, 2015
motion for reconsideration. These intervening events
significantly and immediately affect a response to the motion
for reconsideration. But the per curiam ignores the intervening
events.
¶48 The six intervening events in chronological order are
as follows:
1. The legislature enacted 2015 Wis. Act 55 (effective July
14, 2015) and 2015 Wis. Act 64 (effective October 25,
2015), revising the John Doe statutes. The current, as-
revised statutes are attached hereto as Attachment B.
The statutory revisions address, among other matters, the
authority of reserve judges to preside over John Doe
proceedings, secrecy orders, return of seized material,
2
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa
and notice to persons with an interest in seized
materials.
2. On October 28, 2015, Unnamed Movant No. 2 filed a
document labelled a "notice of statutory changes." In
essence, the "notice" is a motion seeking relief. The
motion asserts that Act 64 affects, among other things,
existing John Doe secrecy orders and the continued
authority of reserve judges who were appointed John Doe
Judges before Act 64 was enacted. The position of
Unnamed Movant No. 2 appears to be that one of the
statutory revisions terminates existing secrecy orders in
John Doe I and John Doe II as to everyone except a judge,
district attorney, other prosecutor, law enforcement
officer, interpreter, or court reporter.3 Unnamed Movant
No. 2 also contends that various other statutory
revisions affect the John Doe I and John Doe II
investigations going forward. As a result, Unnamed
Movant No. 2 argues this court should grant the Unnamed
Movants relief according to the terms of the statutory
revisions.
3. On October 29, 2015, counsel for the Reserve Judge
appointed to preside over John Doe II proceedings advised
the court that the Reserve Judges appointed to preside
over the John Doe I and John Doe II proceedings will take
3
See Wis. Stat. § 968.26(4)(a) (2015); 2015 Wis. Act 64,
§ 12j.
3
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa
no further action unless and until this court determines
that it is appropriate for them to proceed.
4. On November 11, 2015, the Special Prosecutor filed a
response to Unnamed Movant No. 2's motion, arguing that
the statutory revisions are inapplicable to the instant
cases; and that if the revised statutes are applicable to
the instant cases they interfere with existing court
orders and are unconstitutional violations of the
separation of powers doctrine.
5. On November 12, 2015, a district attorney and two
assistant district attorneys filed a supplemental
memorandum in support of their petition for limited
intervention seeking to preserve documents from
destruction. These petitioners for limited intervention
argue that Unnamed Movant No. 2's filing (which they
consider a motion) improperly seeks to expand the scope
of Justice Gableman's July 16, 2015 majority opinion to
require the destruction of not only materials obtained in
the John Doe II investigation but also materials acquired
in the John Doe I investigation and that limited
intervention is required to afford the petitioners
procedural and substantive due process.
6. On November 19, 2015, Unnamed Movant No. 2 filed a "reply
regarding notice of statutory change." The filing of a
reply further demonstrates that Unnamed Movant No. 2's
"notice of statutory changes" is really a motion. Among
other things, the reply clarifies Unnamed Movant No. 2's
4
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa
position regarding the effect of the statutory revisions
on the John Doe I and John Doe II investigations and
responds to the Special Prosecutor's argument that the
application of the revised statutes to the instant cases
unconstitutionally violates the separation of powers
doctrine.
¶49 In short, these intervening events raise the issue of
whether recently-enacted statutory revisions effective July 14
and October 25, 2015, apply to the John Doe proceedings
commenced prior to the effective date of the revised statutes.
¶50 These intervening events make clear that the per
curiam is too little, too late. The per curiam fails to come to
grips with the present circumstances in which the court and
parties find themselves. The court leaves these and other
important issues for another day, although they are of immediate
significance and ripe for decision, having been fully briefed.
¶51 The per curiam is too little: It does not address the
effect of the revised John Doe statutes on the majority opinion,
the per curiam, and the pending John Doe proceedings commenced
prior to the effective date of the revised statutes. It merely
references the recently revised John Doe statutes once, in
footnote 4,4 and ignores the other filings relating to the
revised statute.
4
Per curiam, ¶9 n.4. The per curiam's reference to 2015
Act 64 is ambiguous. Does it mean that the per curiam views Act
64 as applying (or not applying) to John Doe II?
(continued)
5
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¶52 The per curiam is too late: As a result of these six
intervening events, the per curiam is responding to pre-October
28, 2015 circumstances, not present circumstances. Therefore,
the per curiam is an interim, temporary document that will have
to be modified and clarified. The court is dealing with the
John Doe trilogy in a piecemeal fashion. Thus, each opinion or
order will be short-lived, requiring expeditious revision. The
per curiam's piecemeal approach creates more work for the
litigants, the lawyers, and this court.
¶53 I would grant the motion for reconsideration, order
oral argument on the issues raised in the motion for
reconsideration and the effect of the revised John Doe statutes,
and then issue a decision. Oral argument would allow the court
and the public to consider the numerous issues raised by the
parties and the six intervening events in the crucible of an
open, adversary proceeding.
¶54 I turn now to the substance of the too-little-too-late
per curiam.
¶55 The per curiam is confronted with five sealed motions
(and responses thereto):
1. A motion for reconsideration filed by the Special
Prosecutor.
In addition to 2015 Wis. Act 64, which Unnamed Movant 2
discusses in its motion, the per curiam also cites 2015 Wis. Act
55 (effective July 13, 2015), which modifies the Special
Prosecutor statute. See Wis. Stat. § 978.045(1r)(bm) (2015).
6
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2. Three motions for limited intervention. One was filed
by two investigators; a second was filed by a law
enforcement officer. A third was filed by a district
attorney and two assistant district attorneys, but is
not addressed by the court. This third motion is
substantially similar to the other two motions for
limited intervention and received the same response
from the Unnamed Movants.
3. A motion filed by Unnamed Movants Nos. 4 and 5 for
immediate remand to John Doe Judge Gregory Peterson.
¶56 Today four justices deny four of the five sealed
motions in the per curiam and two separate orders.
¶57 The motion for reconsideration is denied in the per
curiam, but Justice Gableman's July 16, 2015 majority opinion is
significantly modified.
¶58 Two of the three motions for limited intervention are
denied in a separate order. No explanation is offered for the
denial.
¶59 The per curiam ignores the third motion for limited
intervention by a district attorney and assistant district
attorneys. It is still pending before the court. No
explanation is offered for not responding to the motion. (Is the
court holding this motion to try to induce the district attorney
and two assistant district attorneys to seek full intervention
so the prosecution and State are represented hereafter?)
7
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¶60 The motion to remand matters to John Doe Reserve Judge
Peterson is denied in a second order. No explanation is offered
for the denial.
¶61 My separate writings about the per curiam and two
orders, one denying limited intervention and the other denying
the remand to the John Doe Judge, should be read together.5
¶62 In this writing, I address the per curiam denying the
Special Prosecutor's motion for reconsideration.
¶63 Lest the reader get lost in the per curiam's thicket,
let me begin by summarizing the per curiam's salient
modifications of the majority opinion.
¶64 First, the per curiam does not modify the majority
opinion's misguided conclusion that the State cannot
constitutionally regulate coordinated issue advocacy at all.6
The Special Prosecutor has called the court's attention to a
recent decision of the United States Court of Appeals for the
Third Circuit that is contrary to the July 16, 2015 majority
opinion. The Third Circuit recognized on July 16, 2015, that
the United States Supreme Court has consistently held that
5
The order denying limited intervention and my separate
writing is attached hereto as Attachment D. The order denying
the motion to remand matters to John Doe Judge Peterson and my
separate writing is attached hereto as Attachment E.
6
"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 v.
Chisholm, 769 F.3d 936, 942 (7th Cir. 2014), cert. denied, 135
S. Ct. 2311 (2015).
8
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disclosure requirements are not constitutionally limited to
express advocacy; "there is not a 'rigid barrier between express
advocacy and so-called issue advocacy.'"7
¶65 Second, the per curiam does modify the majority
opinion's mandate regarding the validity of the appointment and
continuing authority of the Special Prosecutor.8
¶66 The per curiam modifies the majority opinion's mandate
by "order[ing] as a matter of law that the [Special
Prosecutor's] authority is terminated" from this date forward.9
Thus the prosecution and State are left totally unrepresented
hereafter. If the Special Prosecutor is not permitted to
represent the prosecution's and State's interests, then who may?
7
Del. Strong Families v. Att'y Gen., 793 F.3d 304, 308 (3d
Cir. 2015) (quoting McConnell v. FEC, 540 U.S. 93, 193 (2003))
(emphasis added); see also Lyle Denniston, Constitution Check:
What's the Next Big Controversy on Campaign Finance,
Constitution Daily (July 21, 2015),
http://blog.constitutioncenter.org/2015/07/constitution-check-
whats-the-next-big-controversy-on-campaign-finance/ (last
visited Nov. 5, 2015) (describing the Third Circuit's decision
and the Wisconsin John Doe trilogy as conflicting).
8
The majority opinion affirmed the court of appeals'
decision, leaving the Special Prosecutor's appointment and
authority intact. Majority op., ¶132 ("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."); see also majority op., ¶137.
9
Per curiam, ¶11. The Special Prosecutor's authority to
act as special prosecutor "is prospectively voidable . . . ."
Per curiam, ¶12 n.5.
The per curiam intimates that the Special Prosecutor may
seek reconsideration or review of this aspect of the per curiam
decision terminating his authority. Per curiam, ¶16 n.6.
9
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¶67 The per curiam has painted itself into a corner
without a way out by eliminating representation for the
prosecution and State in John Doe II proceedings from today on.
And there are many matters to be decided in the John Doe II
proceedings still before the court.
¶68 In February 2014, Three Unnamed Petitioners alerted
the court that if the Unnamed Petitioners prevailed on their
argument that the Special Prosecutor's appointment was invalid,
the five district attorneys would need to be parties in order to
continue proceedings in the Special Prosecutor's absence.10 A
copy of the Three Unnamed Petitioners' motion to add the five
district attorneys as parties is attached hereto as Attachment
C.
¶69 The four justices joining the per curiam ignored the
Three Unnamed Petitioners' admonitions and denied the motion
without explanation on December 16, 2014.11
¶70 Now, more than a year and a half after the motion was
made, almost one year after the motion was denied, and more than
four months after the July 16, 2015 majority opinion ordered the
investigation closed, the per curiam is desperately trying to
find someone other than the Special Prosecutor who can represent
the State's interests so the court can conduct adversarial
10
See Attachment C, attached, at 4.
11
See December 16, 2014 order granting review, at 7; see
also December 16, 2014 order granting review, at ¶4 (Abrahamson,
C.J., concurring) ("[T]he five district attorneys . . . , in my
opinion, should be made parties as requested.").
10
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proceedings on the many remaining issues. The per curiam has
thus far failed in this endeavor.
¶71 Third, the per curiam modifies the majority opinion's
mandate, by eliminating the "search and destroy" mission that
the majority opinion ordered.12
¶72 The majority opinion directed the "special prosecutor
and the district attorneys involved in this investigation [to]
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."13
¶73 The "search and destroy" mandate in the majority
opinion is so broad and difficult to understand and implement
that parties on both sides of the "v." have proposed a variety
of ways of clarifying and modifying the mandate or remanding the
implementation of the majority opinion to the John Doe Judge.
¶74 The per curiam modifies the majority opinion by
ordering the Special Prosecutor to undertake a "clear and hold"
mission.14 Thus, the per curiam modifies the Special
12
Per curiam, ¶¶28-29.
13
Majority op., ¶135.
14
During the Vietnam War, United States forces employed two
counterinsurgency strategies. The first involved "search and
destroy" missions, whereby forces would be inserted into hostile
territory to search out the enemy, attack them and their
supplies, and quickly withdraw. The second strategy involved
efforts to "clear and hold." They focused on maintaining
control of important agricultural areas and population centers.
See Gordon L. Rottman, Vietnam Infantry Tactics 61-62 (2011).
11
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Prosecutor's rules of engagement. The Special Prosecutor and
the "prosecution team" must divest themselves of the documents
and electronic files from the John Doe investigations and submit
them under seal to the Clerk of the Supreme Court.15
¶75 The per curiam constructs the new "clear and hold"
mandate out of whole cloth, without sufficient information about
what and where the materials are to be "cleared and held." The
per curiam is entering an order in a factual vacuum. The four
justices joining the per curiam do not know the full extent and
nature of the items and material gathered in the course of the
investigation. Moreover, the four justices joining the per
curiam do not know whether this mandate can be implemented
within the times they allotted.16 Simply put, the four justices
are issuing the per curiam mandate in the dark.
¶76 Consequently, implementing the per curiam's mandate
will pose difficulties. Moreover, after the per curiam is
15
Per curiam, ¶¶28-37.
16
The per curiam sets forth specific times by which the
Special Prosecutor must implement various aspects of the new
"clear and hold" mandate.
Computer hardware and other items of "tangible personal
property" are to be returned to their owners within 30 days of
the per curiam's release. Per curiam, ¶31. Written notice must
also be provided within 30 days of the per curiam "to all
individuals and organizations whose documents or electronic data
were obtained by the prosecution . . . ." Per curiam, ¶37. The
remainder of the per curiam's "clear and hold" mandate must be
implemented within 30 days of the completion of proceedings in
the United States Supreme Court or 30 days after the deadline to
file a petition for writ of certiorari, if no petition is filed.
Per curiam, ¶29.
12
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released many issues remain unresolved and will dominate this
court's work for a long time to come.
¶77 Fourth, by modifying the majority opinion's mandate,
the per curiam effectively grants the Special Prosecutor's
motion for a stay of the majority opinion's "search and destroy"
mandate, at least pending review by the United States Supreme
Court.17 In modifying the majority opinion, the per curiam
provides that documents and electronic data will not be
destroyed until further order of the court.18 But the four
justices joining the per curiam say nothing about when such an
order might be issued and what it might say.
¶78 I concur in the concept of a stay. The stay the per
curiam grants does not, however, appear to preserve John Doe
materials to use in future criminal prosecutions. Nor does the
per curiam assure that the materials will be preserved and
available for use by the Special Prosecutor and others in their
defense of presently pending civil litigation relating to the
John Doe trilogy.19
17
Per curiam, ¶29.
18
Per curiam, ¶37.
19
The John Doe investigations have spawned a number of
lawsuits alleging, among other things, civil rights violations
by the prosecutors and law enforcement officers, and unlawful
activities by the Government Accountability Board. See, e.g.,
O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014), cert. denied,
135 S. Ct. 2311 (2015); Archer v. Chisholm, No. 15-cv-922-LA
(E.D. Wis.); O'Keefe v. Wis. Gov't Accountability Bd., No.
2014CV1139 (Waukesha Cnty. Cir. Ct.).
13
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¶79 The per curiam states that materials "could also
potentially be available for use in related civil proceedings,
if there is a request and a determination that such use is
proper under the circumstances."20 This cryptic aside does not
assure that the materials will actually be available for use in
related litigation, let alone that the materials will be
preserved until the relevant statutes of limitations on civil
litigation have run. Nor does the per curiam explain how the
Special Prosecutor or others may access the materials except
through a "request," or what uses are "proper under the
circumstances."21 According to various reports, similar future
litigation has been threatened.22
¶80 Fifth, the per curiam modifies the functions of the
Special Prosecutor from this date forward. The per curiam
terminates the authority of the Special Prosecutor to act as
special prosecutor and assigns him new tasks without giving the
20
Per curiam, ¶38.
21
The per curiam does not explain whether making materials
available for use in related litigation is consistent with the
revised John Doe statutes. See Wis. Stat. § 968.26(4)(a)-(b)
(2015). Unnamed Movant No. 2's motion argues that Wis. Stat.
§ 968.26(4)(b) bars at least John Doe Judges Peterson and
Nettesheim from authorizing the disclosure of materials going
forward. Nonetheless, Unnamed Movant No. 2's motion also
suggests that this court may allow the use and production of
certain materials, like investigators' notes or memoranda, in
civil litigation.
22
See, e.g., Collin Levy, The Wisconsin Targets Tell Their
Story, Wall St. J., July 22, 2015; M.D. Kittle, John Doe Horror
Stories: 'I felt completely helpless in my own home,'
WisconsinWatchdog.org, July 23, 2015, available at
http://watchdog.org/230683/john-doe-deborah-jordahl-raids/.
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Special Prosecutor (who is a private practitioner), any
resources or payment for his services.23
¶81 The John Doe investigation is based in large part on
the idea of "follow the money."24 Here, it is unclear where the
money to support the per curiam's orders will come from. The
four justices have imposed an "unfunded mandate" on someone.
But on whom? The Special Prosecutor personally? The State? A
county? Which one?
¶82 Sixth, as stated previously, the per curiam is silent
regarding what modifications, if any, will be needed to the July
16, 2015 majority opinion and to the per curiam in light of the
recent statutory revisions to the John Doe statutes and the
related filings.25 For example, one non-statutory provision of
2015 Wis. Act 64, Section 12j, states that John Doe secrecy
orders "in effect on the effective date of this subsection may
apply only to" John Doe judges, district attorneys, other
prosecuting attorneys, law enforcement personnel, interpreters
and court reporters.26 Under Section 12j, secrecy orders
23
Per curiam, ¶¶28-36.
24
See All the President's Men (Warner Bros. 1976).
25
See 2015 Wis. Act 64; 2015 Wis. Act 55.
This part of the revisions of the John Doe statutes raises
the question of whether Section 12j terminates the secrecy
orders entered in John Doe I and John Doe II, and if so, whether
Section 12j violates the separation of powers doctrine.
26
2015 Wis. Act 64, Section 12j states in full:
"A secrecy order entered under section 968.26 of the
statutes that is in effect on the effective date of
(continued)
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covering other individuals are "terminated on the effective date
of this subsection."27 The effective date of 2015 Wis. Act 64 is
October 25, 2015. The court leaves these and other important
issues for another day although they are fully briefed and of
immediate significance.
¶83 I turn now to examining the flaws in the per curiam in
the following order:
1. The motion for reconsideration is veiled in secrecy. The
per curiam may be open to challenge on First Amendment
and state grounds. The per curiam also does not address
leaks of sealed information. See ¶¶84-91, infra.
2. The per curiam overreaches to terminate the Special
Prosecutor's authority to act as special prosecutor from
this date forward. See ¶¶92-109, infra.
3. In terminating the authority of the Special Prosecutor,
the per curiam unfairly leaves the prosecution and the
State unrepresented from this date forward and deprives
the Special Prosecutor, prosecutors, and law enforcement
of the opportunity to preserve materials from
destruction. See ¶¶110-125, infra.
this subsection may apply only to persons listed in
section 968.26(4)(a) of the statutes, as created by
this act. A secrecy order covering persons not listed
in section 968.26(4)(a) of the statutes, as created by
this act, is terminated on the effective date of this
subsection."
See also Wis. Stat. § 968.26(4)(a).
27
2015 Wis. Act 64, § 12j.
16
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4. The question remains whether the per curiam is impeding
review by the United States Supreme Court by terminating
the authority of the Special Prosecutor. See ¶¶126-130,
infra.
5. Based on its erroneous conclusion that the Special
Prosecutor never presented evidence of illegally
coordinated express advocacy to the John Doe Judge, the
per curiam erroneously concludes that the investigation
into coordinated express advocacy cannot continue. See
¶¶131-144, infra.
6. The per curiam constructs the "clear and hold" mandate in
a factual vacuum and the mandate will require further
clarification. Indeed the Unnamed Movants do not agree
in their recommendations to the court about the
disposition of the materials. See ¶¶145-149, infra.
7. The per curiam is unclear about whom it binds. See ¶150,
infra.
8. The per curiam ignores the Special Prosecutor's argument
that evidence obtained through the subpoenas and search
warrants should be retained under the good faith
exception in Fourth Amendment suppression jurisprudence.
See ¶¶151-152, infra.
9. The per curiam leaves many foreseeable questions
unanswered. See ¶¶153-155, infra.
* * * *
1. The motion for reconsideration is veiled in secrecy. The
per curiam may be open to challenge on First Amendment and state
17
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grounds. The per curiam also does not address leaks of sealed
information.
¶84 Thirty-three filings, including the motion for
reconsideration (and responses) and nearly every other filing in
this court since July 16, 2015, are sealed. For a listing of
the 33 sealed filings since July 16, 2015, see Attachment A,
attached.28 Thus, the parties' factual and legal arguments are
closed to the public.29
¶85 Why the secrecy? And by whose order? All the filings
were automatically sealed, without any review by this court and
without any instruction or order from this court.
¶86 To illustrate the excessive sealing of material since
July 16, 2015, I note two particularly egregious examples.30
¶87 First, both the complaint and amended complaint in the
federal case entitled Archer v. Chisholm, No. 15-cv-922-LA (E.D.
28
The only documents not under seal are Justice Prosser's
separate writing explaining his rationale for denying a motion
for his recusal, and documents that I filed.
In addition to the new filings placed under seal, some
redactions relating to documents filed before July 16, 2015,
still remain unresolved, even after the court released many
other redacted documents in the lead-up to the July 16, 2015
opinions.
29
At least redacted versions of the parties' briefs and
other documents were publicly available relating to the July 16,
2015 majority opinion.
30
Another example is the Special Prosecutor's motion for
reconsideration. The motion makes predominantly legal arguments
and does not disclose the identity of the Unnamed Movants, the
specific contents of any document or information obtained in the
John Doe investigation, or any information that appears
objectionable to either the prosecution or the Unnamed Movants.
18
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Wis.) are appended to proposed intervenors' sealed motions. The
Archer complaints are not under seal in the federal court. How
can this court justify the sealing of complaints that are open
in federal court? It cannot.
¶88 Second, the Special Prosecutor filed a letter stating
that he intends to respond to Unnamed Movant 2's "notice of
statutory changes." Although the letter explicitly stated that
it was not being filed under seal; that it does not contain any
confidential information; and that no redactions are needed, the
letter was automatically sealed without any review by the court
and without any instruction or order from the court.
¶89 The general rule is that court filings are
presumptively open for public inspection. Placing filings under
seal is the exception to the rule.31 In the face of virtually
total secrecy of filings since July 16, 2015, the public cannot
understand the basis for the four justices' decisions. "The
crucial prophylactic aspects of the administration of justice
cannot function in the dark; no community catharsis can occur if
justice is 'done in a corner [or] in any covert manner.'"32
31
See, e.g., Press-Enters. Co. v. Superior Court, 464
U.S. 501, 508-10 (1984); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 580 & n.17 (1980); In re Providence Journal Co.,
293 F.3d 1, 13 (1st Cir. 2002); Grove Fresh Distrib., Inc. v.
Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); Brown &
Williamson Tobacco Corp. v. Fed. Trade Comm'n, 710 F.2d 1165,
1177-81 (6th Cir. 1983).
32
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571
(1980) (quotation omitted) (alteration in original).
19
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¶90 The automatic sealing of virtually all filings since
July 16, 2015 without explanation raises significant First
Amendment, state constitutional, statutory, and common law
issues, and may be challenged as erroneous.33 Any need to
maintain the secrecy of portions of any filings should have been
addressed promptly by the participating justices and material
redacted for the public if necessary.
¶91 My primary concern to this point has been that this
court continues to seal too much from public view. The court
has failed to release documents that need not be sealed or that
are already publicly available.34 At the same time, the court's
failure to enforce its sealing orders has, unfortunately,
allowed a growing tide of leaks, flouting the court's orders
without fear of consequences.35 This situation does not engender
33
See Brown & Williamson Tobacco Corp. v. Fed. Trade
Comm'n, 710 F.2d 1165, 1176 (6th Cir. 1983) ("[W]e conclude that
the District Court erred by failing to state findings or
conclusions which justify nondisclosure to the public. The
order of the District Court sealing the documents in the case
is, therefore, vacated.").
34
Unnamed Movant No. 2's filing points out that much of the
material filed under seal has been released by court orders and
suggests that a substantial amount of the materials under seal
in this court may be unsealed consistent with concerns about
revealing the names of the Unnamed Movants or others who were
investigated. See also my concurrence/dissent to the majority
op., ¶¶501-506.
35
See, e.g., Jason Stein & Mary Spicuzza, More Documents
Leaked in John Doe Case, Milwaukee J. Sentinel (Sept. 17, 2015);
Molly Beck, Emails raise questions of impartiality, suggest
Scott Walker was target of John Doe, Wis. State J. (Aug. 29,
2015); Editorial, We 'the Sheeple', Wall St. J. (Aug. 27, 2015).
20
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confidence in the transparency or sealing of the proceedings, in
the rule of law, or in this court's ability or willingness to
enforce its orders.
2. The per curiam overreaches to terminate the Special
Prosecutor's authority to act as special prosecutor from
this date forward.
¶92 The per curiam immediately goes astray when it states
that "[b]ecause we are presented with [the Special Prosecutor's]
continued filings . . . we now must address the underlying legal
question of [the Special Prosecutor's] authority to act as the
special prosecutor . . . ."36 "Now?" "Must?" Really? The
issue of the Special Prosecutor's authority was addressed by the
court of appeals and this court in the supervisory writ action
by three Unnamed Movants.
¶93 Addressing the issue of the Special Prosecutor's
appointment and authority, the July 16, 2015 majority opinion
affirmed the court of appeals, holding that John Doe Judge
Kluka's appointment of the Special Prosecutor did not violate a
plain legal duty.37 Thus, the Special Prosecutor's authority
remained intact.
¶94 A majority of the justices joined the part of Justice
Prosser's concurrence concluding that "Judge Kluka's appointment
of the Special Prosecutor was invalid."38
36
Per curiam, ¶8.
37
Majority op., ¶¶132, 137.
38
Justice Prosser's concurrence to majority op., ¶239.
21
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¶95 The per curiam is correct that Justice Gableman's
majority opinion controls.39
¶96 By joining both Justice Gableman's majority opinion
and Justice Prosser's concurrence, four justices created at
least two sets of votes that logically do not align: The four
justices held that the Special Prosecutor's appointment was
simultaneously valid and invalid. Compare majority op., ¶¶132
n.43, 137, Justice Ziegler's concurrence to majority op., ¶¶309,
340, and Justice Prosser's concurrence to majority op., ¶¶149,
239, 306.
¶97 The four justices attempt to mask this logical
inconsistency. The per curiam creates an artificial distinction
between the "legal ruling" in Justice Gableman's July 16, 2015
majority opinion that John Doe Judge Kluka's appointment of the
Special Prosecutor did not violate a plain legal duty and the
"reality shown" by the "legal conclusion" in Justice Prosser's
concurrence that the Special Prosecutor's appointment was
invalid.40 These labels, "legal ruling," "legal conclusion," and
"reality shown," are devoid of any meaning and should not
obscure the fact that in the opinions issued on July 16, 2015,
four justices voted that the Special Prosecutor's appointment
was simultaneously valid and invalid, or that the per curiam
reverses the July 16, 2015 majority opinion's conclusion
regarding the validity of the Special Prosecutor's appointment
and authority.
39
Per curiam, ¶7 & n.3.
40
See per curiam, ¶¶7-9.
22
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¶98 These conflicting votes of the four justices resulted,
I believe, from a change in this court's internal operating
procedures for processing and mandating opinions. Since the
change was adopted in September 2014, the court no longer
discusses draft opinions in conference unless a majority of
justices votes to do so.41 From September 2014 to June 2015, no
in person court conference was held on any draft opinion,
including the drafts in the John Doe trilogy.
¶99 Thoughtful discussion and careful collegial review of
the draft opinions in the John Doe trilogy would have revealed
the internally contradictory nature of the several opinions
joined in different parts by four justices.
¶100 Although the July 16, 2015 majority opinion applied
the correct, limited standard of review for a writ proceeding,42
the per curiam does an about-face. The per curiam overreaches
and "makes a legal ruling"43 that the Special Prosecutor lacks
authority to act as special prosecutor from the date of the per
curiam forward.44
41
The procedure adopted in September 2014 for processing
opinions is set forth in full in State v. Gonzalez, 2014 WI 124,
¶30-31, 359 Wis. 2d 1, 856 N.W.2d 580 (Abrahamson, C.J.,
concurring).
42
Majority op., ¶¶127-28 & n.41.
43
Per curiam, ¶12.
44
Per curiam, ¶¶2, 11. In contrast, the per curiam relies
on the limited standard of review in writ proceedings to hold
that the Special Prosecutor could not prevail on his argument
that the John Doe investigation should proceed as to coordinated
express advocacy. Per curiam, ¶27.
23
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¶101 This conclusion is misguided for several reasons.
¶102 First, the per curiam reargues an issue already argued
and considered. A motion for reconsideration "is not intended
to be an opportunity to reargue issues already argued and
considered. Rather, the primary purpose [of reconsideration] is
to alert the court to errors or omissions in its decision."45
The per curiam does not assert that any error or omission
appears in the majority opinion's conclusion that the Special
Prosecutor's appointment remains intact.
¶103 Second, under the per curiam's logic, the Special
Prosecutor's authority to proceed would still be intact if he
had not brought a motion for reconsideration.46 Does this make
sense? Not to me.
¶104 Third, only Unnamed Movants 2, 6, and 7 challenged the
appointment and authority of the Special Prosecutor.47 The other
Unnamed Movants did not raise this issue. Why does the per
curiam not hold that the other Unnamed Movants forfeited the
argument that the Special Prosecutor lacked authority? The per
curiam does not even consider this question. In contrast, the
per curiam is quick to hold that the Special Prosecutor
45
See Michael S. Heffernan, Appellate Practice and
Procedure in Wisconsin § 22.4 (2014).
46
See per curiam, ¶16.
47
See my concurrence/dissent to the majority op., ¶¶542,
554.
24
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forfeited his argument that the John Doe II investigation should
continue into investigating coordinated express advocacy.48
¶105 Fourth, the per curiam applies two different rules to
the two petitions for supervisory writs. In the petition
brought by three Unnamed Movants for a supervisory writ
invalidating the appointment and authority of the Special
Prosecutor, the per curiam "'transform[s] the writ into an all-
purpose alternative to the appellate review process . . . .'"49
by concluding that the Special Prosecutor's appointment is
invalid without regard to the limited nature of this court's
review of a decision on a supervisory writ.
¶106 In contrast, relying on the limited nature of the writ
proceeding,50 the per curiam bars relief to the Special
48
Per curiam, ¶¶23-24.
49
Majority op., ¶137 (quoting State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681
N.W.2d 110).
The per curiam relies on Kalal to justify its decision on
the underlying legal issue, namely that the appointment of the
Special Prosecutor was invalid. Kalal is inapposite. The Kalal
court held that the Kalals failed to establish the existence of
a plain legal duty and were not entitled to a supervisory writ.
271 Wis. 2d at ¶26. The Kalal court went on to discuss the
statutory interpretation question presented but did not change
its result, that is, the court's conclusion remained that the
Kalals were not entitled to a supervisory writ because no plain
legal duty existed. 271 Wis. 2d at ¶57.
In the instant case, the July 16, 2015 majority opinion
declared that the parties were not entitled to a supervisory
writ because no plain legal duty existed. Majority op., ¶137.
The per curiam decides the underlying legal issue and now
reverses the majority opinion's denial of the supervisory writ.
50
Per curiam, ¶27.
25
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Prosecutor on his petition for a supervisory writ to reverse the
John Doe Judge's decision to quash the subpoenas and search
warrants.
¶107 These two approaches seem inconsistent and result-
oriented.
¶108 In addition to faulty "analysis," the per curiam fails
to provide any assistance, resources, or compensation to the
Special Prosecutor when he is implementing the new "clear and
hold" mandate and fulfilling his new functions. The four
justices impose an unfunded mandate on someone, but we do not
know who that someone is. The record is unclear whether the
Special Prosecutor has been compensated for all his work and
whether he is now being compensated.
¶109 In sum, the per curiam's rationale simply seems
invented to justify the pre-ordained desired result.
3. In terminating the authority of the Special
Prosecutor, the per curiam unfairly leaves the prosecution
and the State unrepresented from this date forward and
deprives the Special Prosecutor, prosecutors, and law
enforcement officers of the opportunity to preserve
materials from destruction.
¶110 The per curiam recognizes that its ruling that the
Special Prosecutor cannot continue to act in his official
capacity "has the potential to create problems with respect to
who may act on behalf of the prosecution in this court or
elsewhere going forward."51 The four justices should have seen
51
Per curiam, ¶16.
26
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this problem coming, but they did not. Now, the per curiam does
next to nothing to resolve it.
¶111 The per curiam suggests that one or more of the five
district attorneys whose petitions to commence John Doe
proceedings started this investigation might seek to intervene
to represent the prosecution and State in future proceedings.52
The per curiam assures the reader that such a motion to
intervene would receive prompt attention, but does not assure
that such a motion would be granted.53
¶112 The four justices have already explicitly denied a
motion to add the five district attorneys as parties, even
though the Three Unnamed Petitioners warned more than a year and
a half ago that if the five district attorneys were not joined
and the court concluded that the Special Prosecutor could not
continue to act in his official capacity, the prosecution would
be left entirely unrepresented.54 As the Three Unnamed
Petitioners wrote (see Attachment C), the five district
attorneys had an interest in the outcome of the John Doe trilogy
and would incur significant expenses depending on the outcome:
[I]f the petitioners are correct on the merits, the
appointment of the special prosecutor was improper at
the outset and is unsustainable now. Each of the five
52
Per curiam, ¶19.
53
Per curiam, ¶19.
54
See December 16, 2014 order granting review, at 7
(denying a motion to make the district attorneys parties); see
also December 16, 2014 order granting review, at ¶4 (Abrahamson,
C.J., concurring) ("[T]he five district attorneys . . . in my
opinion, should be made parties as requested.").
27
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district attorneys would have to proceed without him
and without the state Department of Administration
shouldering much of the prosecutorial costs of these
proceedings. Accordingly, these five district
attorneys necessarily have an actual and non-
speculative interest in the outcome of this case.
That interest is distinct from the interests of all
other parties.55
¶113 Now, despite the Three Unnamed Petitioners' clear
warnings, the per curiam engages in revisionist history, stating
that "at that point in time there was no need to add the
district attorneys as parties because the prosecution was
represented by . . . the special prosecutor."56 But the need was
clear and the problem was foreseeable. Now, at this late date,
after the majority opinion has terminated the investigation,
even if one or more of the district attorneys were allowed to
intervene, an overwhelming amount of materials would have to be
scrutinized and absorbed in order for a district attorney to get
up to speed on this legally and factually complex case. The
learning curve to assume responsibility for challenging past
orders and opinions of this court and for representing the State
in all future legal proceedings would be steep and time
consuming. Such intervention might impose significant expenses
on the counties.
¶114 Even though no one represents the prosecution and
state going forward, an order issued today (in which I dissent)
refuses to allow investigators and a law enforcement officer to
55
See Petitioners' Motion to Add Five Respondents 4 (Feb.
19, 2014).
56
Per curiam, ¶17.
28
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intervene for the limited purpose of preserving certain
materials from the John Doe investigations from destruction.57 A
third motion to intervene for the same limited purpose filed by
a district attorney and two assistant district attorneys is
being ignored, without explanation.
¶115 The per curiam errs in denying the motions for limited
intervention.
¶116 Limited intervention is required to protect rights.
Denying the motions for limited intervention, especially when
the Special Prosecutor cannot continue acting as such,
demonstrates hostility to the Special Prosecutor, the
"prosecution team," and the State on the part of the four
justices. The July 16, 2015 majority opinion is critical of the
conduct of the Special Prosecutor, prosecutors, and law
enforcement officers, including their conduct in execution of
the search warrants. The criticism is piled on even though
there is no evidence or factual findings in the record to
support this criticism or to describe the execution of the
search warrants.58 Baseless attacks by this court on the Special
Prosecutor, prosecutors, and law enforcement officers (or on
anyone else) are, in my opinion, inexcusable.
57
See the order of even date denying motions for limited
intervention.
58
The majority opinion and Justice Ziegler's concurrence to
the majority opinion relied on facts that were not in the
record, citing blogs and media reports as authoritative sources
on how the search warrants were executed. See, e.g., majority
op., ¶¶28, 68; Justice Ziegler's concurrence to the majority
op., ¶¶320 & n.10, 326-29 & nn.12-22.
29
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¶117 Since July 16, 2015, these attacks in the majority
opinion have been cited as verifying that the Special
Prosecutor, prosecutors, and law enforcement officers in the
John Doe investigations were engaged in misconduct. For
example, the Amended Complaint in Archer v. Chisholm, No. 15-cv-
922-LA (E.D. Wis.), Docket No. 17, describes the July 16, 2015
majority opinion as "finding" and "holding" that the Special
Prosecutor, prosecutors, and law enforcement officers
"instigated 'a perfect storm of wrongs that was visited upon the
innocent' targets 'and those who dared to associate with
them.'"59
¶118 The Amended Archer Complaint, under the heading "The
Wisconsin Supreme Court's Repudiation of the Investigation,"
also alleges that the July 16, 2015 majority opinion "found that
the targets of the investigation were victims of 'the tyrannical
retribution of arbitrary or capricious government prosecution'"60
and "found" that they "subjected targets to 'paramilitary-style
home invasions conducted in the pre-dawn hours' in retaliation
for their free speech . . . ."61
59
Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.), Dkt.
No. 17, at ¶96 (internal quotation marks omitted) (quoting
majority op., ¶133).
60
Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.), Dkt.
No. 17, at ¶¶95-96 (internal quotation marks omitted) (quoting
majority op., ¶133).
61
Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.), Dkt.
No. 17, at ¶97 (internal quotation marks omitted) (quoting
majority op., ¶68).
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¶119 In contrast, the material released from John Doe files
apparently has proved helpful to prosecutors and law enforcement
officers in cases in which their conduct has been challenged.
See, e.g., O'Keefe v. Schmitz, No. 14-C-139, 2014 WL 1379934, at
*8 (E.D. Wis. Apr. 8, 2014), rev'd in part sub nom. O'Keefe v.
Chisholm, 769 F.3d 936 (7th Cir. 2014), cert. denied, 135 S. Ct.
2311 (2015) (citing sealed material from John Doe II in
discussing immunity under 42 U.S.C. § 1983).
¶120 The use of released John Doe I materials in the Archer
case has apparently caused a modification of the claims of
abusive behavior by those who executed the search warrants.62
¶121 Now, the very same four justices who criticized the
prosecutors and law enforcement officers for their participation
in the John Doe II investigation deny the movants (who are
government officers and employees) the opportunity to intervene
for the limited purpose of preserving materials, including audio
recordings, that they assert reveal the truth about the John Doe
II investigation, including execution of the search warrants.
¶122 Instead, the per curiam suggests that the materials to
be held by the Clerk of the Supreme Court "could also
62
See Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.),
Dkt. No. 17; Daniel Bice, Audio of John Doe Raid Contradicts
Claims by Longtime Scott Walker Aide, Milwaukee J. Sentinel,
Aug. 4, 2015, available at
http://www.jsonline.com/blogs/news/320568172.html; Scott Bauer,
Audio contradicts Scott Walker aide's description of raid, Wis.
State J., Aug. 5, 2015, available at
http://host.madison.com/wsj/news/local/govt-and-politics/audio-
contradicts-scott-walker-aide-s-description-of-
raid/article_64e5ec3a-3b65-57e8-bc2c-f9a0dc37e505.html.
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potentially be available for use in related civil proceedings,
if there is a request and a determination that such use is
proper under the circumstances."63 This aside is yet another
"too little, too late" aspect of the per curiam.
¶123 The per curiam's aside is too little: it gives no
assurance that the materials to be held by the Clerk will be
available for prosecutors and law enforcement officers' defenses
in civil proceedings stemming from the John Doe investigations
at all, let alone that they will be preserved until the
applicable statutes of limitations have run. The per curiam
also gives too little direction to non-parties on how to request
access to the materials and what requests would be "proper under
the circumstances."64
¶124 The per curiam is too late: Now that the prosecution
is totally unrepresented in future proceedings in these cases,
and limited intervention has been denied, nobody is left to
advocate for the preservation of these materials for use in
proceedings stemming from the John Doe investigations.
¶125 Will this aspect of the per curiam be subject to
challenge as due process gone awry?
4. The question remains whether the per curiam is impeding
review by the United States Supreme Court by terminating the
authority of the Special Prosecutor.
63
Per curiam, ¶38.
64
Per curiam, ¶38.
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¶126 On another topic relating to the termination of the
authority of the Special Prosecutor, the per curiam explicitly
addresses the issue of who may seek review in the United States
Supreme Court. The per curiam declares that its "decision to
terminate [the Special Prosecutor's] authority is not meant to
interfere with the ability of the prosecution team to seek
Supreme Court review."65 Who is the "prosecution team?" The per
curiam uses the phrase "prosecution team" 32 times. The phrase
is never defined. Isn't the Special Prosecutor a member of the
"prosecution team," and thus eligible to seek Supreme Court
review under the per curiam's approach?
¶127 The per curiam recasts my point about the inability to
identify members of the prosecution team as "implying that there
was no group of prosecutors, investigators and others who
prosecuted the John Doe II investigation, and that [the Special
Prosecutor] worked alone in prosecuting the John Doe II."66
Clearly there were prosecutors, investigators, and others
involved in the John Doe II investigation. Obviously the
Special Prosecutor did not work alone. However, the
"prosecution team" is nowhere depicted as a static group of
people. Didn't people serve with the Special Prosecutor and
then leave the task? Didn't new people periodically join the
Special Prosecutor? The per curiam does not say who the members
of the prosecution team are or who may replace the Special
65
Per curiam, ¶16 (emphasis added).
66
Per curiam, ¶18 n.7.
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Prosecutor for numerous purposes, including United States
Supreme Court review.
¶128 The per curiam further declares that it wants to
"avoid[] impeding in any way the ability of the prosecution team
to seek certiorari review in the United States Supreme Court."67
Nevertheless, the Special Prosecutor is the only person named in
the John Doe trilogy as representing the prosecution.
¶129 I agree with the four justices joining the per curiam
that in the interests of federalism, comity, and the supremacy
of federal law,68 the per curiam should not place roadblocks in
the way of federal review of the decisions in the John Doe
trilogy.
¶130 What a mess this court has wrought!
5. Based on its erroneous conclusion that the Special
Prosecutor never presented evidence of illegally coordinated
express advocacy to the John Doe Judge, the per curiam
erroneously concludes that the investigation into coordinated
express advocacy cannot continue.
¶131 The Special Prosecutor's motion for reconsideration
seeks an order permitting the John Doe investigation to continue
as to coordinated express advocacy——a valid legal theory even
under the majority opinion's flawed, absolutist interpretation
that "Anything Goes" with regard to issue advocacy.69
67
Per curiam, ¶29 (emphasis added).
68
U.S. Const. art. VI, cl. 2.
69
See my concurring/dissenting opinion to the majority op.,
¶348.
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¶132 The late Justice N. Patrick Crooks and I dissented
from the July 16, 2015 majority opinion, in part because the
majority opinion failed to consider this evidence.70 The per
curiam, like the majority opinion, avoids addressing this issue,
this time hiding behind the doctrine of forfeiture and applying
a limited standard of review to the Special Prosecutor's
petition for a supervisory writ.71
¶133 The record demonstrates that the investigation of
coordinated express advocacy should proceed. Unlawful
coordination, not merely unlawful coordinated issue advocacy,
has been the focus of the John Doe investigation from the very
beginning.
¶134 For example, on May 31, 2013, Wisconsin Attorney
General J.B. Van Hollen wrote to the Milwaukee County District
Attorney declining to participate in the John Doe investigation.
The letter describes the John Doe investigation as "relating to
potential campaign finance violations involving campaign
coordination."72 The letter explains elsewhere that the specific
area of campaign finance law that may be applicable to the
70
See Justice Crooks' concurrence/dissent to the majority
opinion, ¶¶559-63; see also my concurrence/dissent to the
majority op., ¶352 n.11.
71
See per curiam, ¶¶25-26. In contrast, this very limited
standard of review is ignored, as I have stated, by the per
curiam in terminating the Special Prosecutor's appointment and
authority from this date forward. Per curiam, ¶¶6, 7.
72
See App'x to Response Brief of Special Prosecutor, vol.
1, at 090 (emphasis added).
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investigation is "coordination."73 No reference is made in this
letter to either issue advocacy or express advocacy. Rather,
coordination is the prominent theme of the letter discussing the
investigation.
¶135 Another example showing that coordination, not merely
coordinated issue advocacy, was the focus of the investigation
is the August 10, 2012 petition to commence the John Doe
proceedings. The petition focuses on coordination, and is not
limited to express or issue advocacy. The petition states that
the investigation will focus on violations of Wis. Stat. ch. 11,
and in particular on the coordination of personal political
campaign committees and '501(c)(4)' organizations to circumvent
the restrictions of ch. 11.74
¶136 Likewise, the affidavits underlying search warrants
and subpoenas addressed evidence of coordination, not limited to
evidence of coordinated issue advocacy or coordinated express
advocacy.75
73
See App'x to Response Brief of Special Prosecutor, vol.
1, at 090.
74
A 501(c)(4) is described in the record as an organization
able to involve itself in express advocacy, provided that
"supporting or opposing candidates" does not become the
organization's primary purpose.
75
Affidavits for search warrants and subpoenas state that
the use of the 501(c)(4)s was alleged to be for the purpose of
circumventing the reporting and contribution provisions of Wis.
Stat. §§ 11.10(4), 11.06(1), and 11.27(1), which would
constitute a violation of Wis. Stat. §§ 11.26, 11.27, and
11.61(1)(b).
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¶137 That no distinction was made between coordinated
express advocacy and coordinated issue advocacy in these
documents is not surprising. The emphasis on investigating
coordination, regardless of whether the coordination was of
issue advocacy or express advocacy, was supported by federal and
Wisconsin law at the time. The law did not establish an
inflexible distinction or set up a rigid barrier between
coordinated issue advocacy and coordinated express advocacy for
all purposes.76
¶138 In granting review in the John Doe trilogy, this court
asked the parties to address "[w]hether the records in the John
Doe proceedings provide a reasonable belief that Wisconsin law
was violated by a campaign committee's coordination with
independent advocacy organizations that engaged in express
advocacy speech. If so, which records support such a reasonable
belief?"77
76
See, e.g., McConnell v. FEC, 540 U.S. 93, 193 (2003)
(stating there is no "rigid barrier between express advocacy and
so-called issue advocacy"); Wis. Coalition for Voter
Participation v. State Elections Bd., 231 Wis. 2d 670, 682, 605
N.W.2d 654 (Ct. App. 1999) (stating "we think the [State
Elections] Board was correct in observing . . . that '[i]f the
mailing and the message were done in consultation with or
coordination with the Justice Wilcox campaign, the [content of
the message] is immaterial") (quotation omitted) (some
alterations in original).
It is the majority opinion that erroneously erected a rigid
barrier between coordinated issue advocacy and express advocacy
on July 16, 2015, long after the investigation began.
77
See December 16, 2014 order granting review at #10.
(continued)
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¶139 According to the record, evidence of coordinated
express advocacy on which the Special Prosecutor relies was
presented both to the John Doe Judge and to this court. The per
curiam errs in concluding that the Special Prosecutor forfeited
his argument that the search warrants and subpoenas were valid
because they sought evidence of coordinated express advocacy.78
¶140 I agree with the following statements in Justice
Crooks' concurring and dissenting opinion to the July 16, 2015
majority opinion, stating at ¶561 as follows:
It is also imperative to note that the majority
conveniently overlooks the special prosecutor's
secondary argument of criminal activity in [the
majority's] 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
Care must be taken when reading the word "independent" in
such phrases as "independent organizations," "independent
disbursement committees," or "independent advocacy organization"
in the December 16, 2014 court order granting review, the July
16, 2015 majority opinion and the per curiam. The word
"independent" should be considered to be in quotation marks
"because the Special Prosecutor suspected that the group's
independence is ostensible rather than real." O'Keefe v.
Chisholm, 769 F.3d 936, 937 (7th Cir. 2014), cert. denied, 135
S. Ct. 2311 (2015).
78
Moreover, even if a party forfeits an issue by failing to
raise it first in a prior proceeding, "we have discretion to
disregard alleged forfeiture or waiver and consider the merits
of any issue because the rules of forfeiture and waiver are
rules of 'administration and not of power.'" State v. Beamon,
2013 WI 47, ¶49, 347 Wis. 2d 559, 830 N.W.2d 681 (quoting State
v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983)).
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of such illegal coordination, the majority [opinion]
determines, without explanation, that the John Doe
investigation is over.
¶141 The John Doe Judge made clearly erroneous factual
findings when he stated that the "State is not claiming that any
of the independent organizations expressly advocated,"79 and
"[t]here is no evidence of express advocacy"80 justifying the
issuance of a supervisory writ.
¶142 After the John Doe Judge accepted the Unnamed Movants'
arguments distinguishing between coordinated express advocacy
and coordinated issue advocacy, the Special Prosecutor raised
the issue of coordinated express advocacy in his court of
appeals petition for supervisory writ. This court granted
bypass to review the issue.81
¶143 The legal arguments and evidence the Special
Prosecutor presented to the John Doe Judge and to this court
provide "reason to believe" a crime was committed by coordinated
express advocacy. The Special Prosecutor need not prove a
criminal violation at the inception of the John Doe
investigation and need not demonstrate probable cause at the
outset. All that the Special Prosecutor must demonstrate is a
"reason to believe" a crime was committed.82 He has done so.
79
Majority op., ¶34.
80
Majority op., ¶34.
81
See December 16, 2014 order granting review on the issue
of express advocacy, #10.
82
State ex rel. Reimann v. Circuit Court, 214 Wis. 2d 605,
623, 571 N.W.2d 385 (1997) (citing Wis. Stat. § 968.26).
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¶144 Accordingly, reconsideration should be granted and the
investigation into coordinated express advocacy should continue.
6. The per curiam constructs the "clear and hold" mandate
in a factual vacuum and the mandate will require further
clarification. Indeed the Unnamed Movants do not agree in
their recommendations to the court about the disposition of
the materials.
¶145 The per curiam's "clear and hold" mandate is built on
a shaky foundation. It will not hold up under the stress of
implementation. The per curiam constructs its new mandate out
of whole cloth by piecing together information about what
investigative materials exist and their location from the
parties' filings, without any guarantee that these facts and
arguments are correct or exhaustive. Simply put, the four
justices do not have the facts. They are writing in a factual
vacuum, issuing the per curiam mandate in the dark.
¶146 The per curiam compounds this error by crafting its
new mandate without notice to the parties and without giving
them an opportunity to address what materials should be
"cleared" and how they should be "held."
¶147 Ignoring the Special Prosecutor's admonition about the
risks of issuing an order not fully understanding the items and
materials at issue, the per curiam offers explicit instructions
for different types of materials.
¶148 The court does not have access to all these materials
and lacks full knowledge about each of them or their value to
the Special Prosecutor, the "prosecution team," the Unnamed
40
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Movants, or the "universe of individuals" of which the per
curiam writes. Especially significant is that the Unnamed
Movants do not agree in their recommendations to the court about
what should be done with different kinds of materials. Parties
on both sides of the "v." disagree about the materials involved.
¶149 Given this disagreement and uncertainty about the
materials involved, it is likely that the per curiam's "clear
and hold" mandate, like the July 16, 2015 majority opinion's
"search and destroy" mandate, cannot be implemented without
further interpretation, clarification, and modification.
7. The per curiam is unclear about whom it binds.
¶150 The per curiam imposes obligations not only on the
Special Prosecutor but also on unnamed persons, including the
undefined "prosecution team."83 As I have stated previously, the
per curiam uses the undefined phrase "prosecution team" 32
times. To what extent does the majority opinion or per curiam
bind anyone other than the two Unnamed Movants who filed the
original action or the eight Unnamed Movants and the Special
Prosecutor? Not clear!84
8. The per curiam ignores the Special Prosecutor's argument
that evidence obtained through the subpoenas and search warrants
83
See, e.g., per curiam, ¶¶31-32, 34, 36.
84
The original action was brought by Two Unnamed Movants.
A question arises whether the Special Prosecutor's investigation
of individuals and organizations that are not parties to the
original action is affected by the majority opinion and per
curiam. See my concurrence/dissent to the majority op., ¶352
n.11; Madison Teachers, Inc. v. Walker, 2013 WI 91, ¶20, 351
Wis. 2d 237, 839 N.W.2d 388 (limiting the scope of a judgment).
41
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should be retained under the good faith exception in Fourth
Amendment suppression jurisprudence.
¶151 The per curiam recognizes that the Special
Prosecutor's authority was intact when the subpoenas and search
warrants were issued.85 The subpoenas and search warrants were
based on the campaign finance laws existing at that time
regulating coordinated advocacy.86
¶152 The per curiam does not address the Special
Prosecutor's reliance on the "good faith exception" in Fourth
Amendment suppression jurisprudence to support retention of John
Doe evidence that need not be suppressed in subsequent criminal
proceedings.
9. The per curiam leaves many foreseeable questions
unanswered.
¶153 Some of the foreseeable but unanswered questions are
as follows:
• How will the parties and interested non-parties be able to
access the materials to be maintained under seal by the
Clerk of the Supreme Court?87
• At least one federal civil rights lawsuit arising out of
the John Doe investigations is currently pending and others
85
Per curiam, ¶13.
86
See, e.g., Wis. Coalition for Voter Participation, Inc.
v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct.
App. 1999); Wis. El. Bd. Op. 00-2 (reaffirmed Mar. 26, 2008).
87
Per curiam, ¶38.
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will likely be filed in the future.88 How will the court
address the interests of persons involved in these lawsuits
if they seek access to or use of these materials? Will
these materials be preserved until the applicable statutes
of limitations have run? What effect, if any, do the
recent statutory revisions to the John Doe statutes have on
these questions?89
• What continuing authority, if any, do the two John Doe
Judges have? May materials continue to be filed before the
John Doe Judges or only in this court? What is the
authority of the John Doe Judge over materials, including
motions, filed with the John Doe Judge after the records
were sent to this court in January 2015?90 May the John Doe
judge continue to issue orders authorizing the release of
88
See, e.g., Archer v. Chisholm, No. 15-cv-922-LA (E.D.
Wis.).
The authority of the Government Accountability Board is
also being challenged in a proceeding arising out of these
investigations. See O'Keefe v. Wis. Gov't Accountability Bd.,
No. 2014CV1139 (Waukesha Cnty. Cir. Ct.).
89
See Wis. Stat. § 968.26(1b)(b).
90
Records filed with the John Doe Judge after the records
were transmitted to this court in January 2015 were ordinarily
not transmitted to this court. For example, a motion was filed
by Unnamed Movants with the John Doe Judge on July 17, 2015 (the
day after the majority opinion was released) seeking relief from
the John Doe Judge. The motion included confidential material
that Waukesha County Circuit Court Judge Lee Dreyfus (presiding
in O'Keefe v. Wisconsin Government Accountability Board, No.
2014CV1139 (Waukesha Cnty. Cir. Ct.)) apparently authorized to
be released to the John Doe Judge. This confidential material
has been filed under seal in this court.
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materials seized in the investigations for use in the
defense of pending lawsuits? What effect, if any, do the
recent statutory revisions to the John Doe statutes have on
these questions?91
• To what extent does the majority opinion or per curiam bind
anyone other than the two Unnamed Movants who filed the
original action or the eight Unnamed Movants and the
Special Prosecutor?
• What is the significance of the secrecy and record
inspection provisions of Wis. Stat. § 968.26(3) (2013-14)
in these proceedings?
• How will the court address present and future matters
before the court (of which there are many) in the absence
of any representation for the prosecution and State?
¶154 These questions are not merely hypothetical or
conjectural; they are immediately relevant to the majority
opinion, the per curiam, and motions and other filings currently
pending before the court. The per curiam's attempts to resolve
issues are piecemeal, superficial, and temporary. The per
curiam ensures that the John Doe trilogy will continue to
dominate the court's work immediately and for a long time to
come.
¶155 I repeat, in response to the motion for
reconsideration, the per curiam significantly modifies the July
16, 2015 majority opinion by creative writing devoid of
91
See Wis. Stat. § 968.26(1b)(b).
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supporting legal authority. Furthermore, events subsequent to
the motion for reconsideration have overtaken the per curiam.
In sum, the per curiam embraces confusing and conflicting
positions, all the while leaving many important issues
unresolved, including those posed by events subsequent to the
motion for reconsideration.
¶156 For the reasons set forth, I concur in part, dissent
in part, and write separately.
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ATTACHMENT A: All Sealed Filings After 7/16/15
1
Party or Document Date
Sender Filed
1. Special Motion for 8/4/15
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Prosecutor reconsideration,
stay, or
clarification of
mandate
2. Unnamed Movant Letter to court 8/6/15
2
3. Unnamed Movant Letter to Chief 8/7/15
2 Justice
4. Chief Justice E-mail exchange 8/7/15
5. Unnamed Movant Letter to Chief 8/7/15
7 Justice
6. Judge Neal Letter to Chief 8/10/15
Nettesheim Justice
7. Unnamed Letter to Chief 8/10/15
Movants 4 and Justice
5
8. Unnamed Movant Letter to Chief 8/10/15
7 (joined by Justice
Unnamed Movant
2)
9. Special Letter to Supreme 8/11/15
Prosecutor Court Clerk
10. Unnamed Movant E-mail to Chief 8/12/15
2 Justice
11. Judge Gregory E-mail to counsel 8/12/15
Peterson for Unnamed Movant
2
12. Judge Neal E-mail to Chief 8/12/15
Nettesheim Justice
13. Unnamed Movant Response to motion 8/13/15
1 for reconsideration
14. Judge Neal E-mail to Chief 8/13/15
Nettesheim Justice
15. Special Letter to Justices 8/14/15
Prosecutor of Supreme Court
16. Unnamed Movant Letter to Justices 8/14/15
7 of Supreme Court
17. Unnamed Response to motion 8/14/15
Movants 2, 3, for reconsideration
6, 7, & 8
18. Unnamed Response to motion 8/14/15
Movants 4 & 5 for reconsideration
19. Investigators Motion for limited 8/19/15
intervention
20. Special Motion to strike 8/25/15
Prosecutor portions of Unnamed
Movants 2, 3, 6, 7,
& 8's response to
the motion for
reconsideration or,
2
alternatively, for
leave to file a
reply
21. Unnamed Movant Response to motion 8/28/15
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ATTACHMENT B
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3
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ATTACHMENT C
4
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5
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6
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7
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ATTACHMENT D
8
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9
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ATTACHMENT E
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1