Citation Numbers: 76 Op. Att'y Gen. 217
Judges: DONALD J. HANAWAY, Attorney General
Filed Date: 9/1/1987
Status: Precedential
Modified Date: 7/6/2016
ROBERT D. ZAPF, District Attorney Kenosha County
You have asked two questions based on the following factual scenario. A private individual petitioned a trial court judge to convene a John Doe proceeding. The judge declined; however, he referred the petition to the intake judge.
The intake judge, on his own motion, scheduled the matter for a John Doe hearing and began to subpoena witnesses. The judge indicated that he would conduct all the questioning and, if he felt it necessary, would appoint a special prosecutor to handle any resultant prosecutions. It should be noted that the John Doe complaint alleged that members of the Kenosha County Sheriff's Department may have committed the crime of misconduct in public office in the investigation of a then-pending first-degree murder prosecution.
You ask what, if any, are the limits of the judge's authority in presiding over or conducting a John Doe proceeding, and whether section
Section
If a person complains to a judge that he has reason to believe that a crime has been committed within his jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed. The extent to which the judge may proceed in such examination is within his discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but such counsel shall not be allowed to examine his client, cross-examine other witnesses or argue before the judge. If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint shall be reduced to writing and *Page 218 signed and verified; and thereupon a warrant shall issue for the arrest of the accused. Subject to s.
971.23 , the record of such proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used.
The first reported case dealing with the John Doe proceeding isState ex rel. Long and another v. Keyes,
Upon complaint made to any such magistrate that a criminal offense has been committed, he shall examine on oath the complainant and any witnesses produced by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed, the court or justice shall issue a warrant reciting the substance of the accusation, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before the said court or justices, or before some other court or magistrate of the county, to be dealt with according to law . . . .
In all likelihood, this statute was derived from the statutes of New York of 1828. The statute was first enacted when the common law permitted a magistrate to issue a warrant on a complaint upon mere suspicion. This statute protected the citizen from arrest and imprisonment on frivolous and groundless suspicion. The thrust of the opinion was that the magistrate enjoyed the authority to subpoena and examine witnesses, and this statutory power was created for the protection of the individual.
The extent of the judge's authority in conducting a John Doe proceeding has been discussed on numerous occasions since 1889. In State ex rel. Kowaleski v. District Court,
The powers of the circuit judge conducting a John Doe proceeding are not unlimited. A circuit judge or other magistrate conducting a John Doe proceeding does not have the power to compel self-incriminating testimony and thereby grant immunity.State ex rel. Jackson v. Coffey,
The John Doe judge's duty to enforce the secrecy provisions is subject to his or her discretion, and it is a valid exercise of that discretion to permit or deny the request of the attorney for the state for the presence and assistance of another public official with law enforcement responsibilities. Unless the judge is persuaded that the officer will make a material contribution to the investigation, his or her presence should ordinarily not be allowed.
Our Supreme Court has summarized the authority and overall obligation of the John Doe judge as follows:
[F]inal responsibility for the proper conduct of such proceedings rests with the presiding judge, whose obligation it is to ensure that the considerable powers at his or her disposal are at all times exercised with due regard for the rights of the witnesses, the public, and those whose activities may be subject to investigation.
State v. O'Connor,
The most comprehensive discussion of a judge's duty and authority in conducting a John Doe as well as discussing the constitutional question of separation of powers may be found inState v. Washington,
We do not view the judge as orchestrating the investigation. The John Doe judge is a judicial officer who serves an essentially judicial function. The judge considers the testimony presented. It is the responsibility of the John Doe judge to utilize his or he training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause. It is the judge's responsibility to ensure procedural fairness.
Washington,
The judge conducting a John Doe proceeding is expected to ensure that the proceeding be conducted in an orderly and expeditious manner which does not impair his or her ability to make an independent determination of probable cause. Thus, the central theme that evolves from the case law is that the judge may exercise discretion and, as long as he or she does not abuse that discretion, the judge is granted great latitude.
With respect to the question of separation of powers, the supreme court clearly finds no problems to exist in either the statutory scheme or the procedural application of the John Doe hearing.
Viewing the role of the John Doe judge as we do, we do not believe that the John Doe statute should fall on the ground that it vests nonjudicial powers in the judiciary. Although the doctrine of separation of powers is a fundamental principle, it is neither possible nor practicable to categorize all governmental action as exclusively legislative, executive or judicial. The doctrine of separation of powers must be viewed as a general principle to be applied to maintain the balance between the three branches of government, to preserve their respective independence and integrity, and to prevent concentration of unchecked power in the hands of any one branch
The contemporaneous and practical interpretation of the state constitution supports the conclusion that a John Doe proceeding does not contravene the constitution's mandate of separation of powers. State ex rel. Owen v. Donald,
160 Wis. 21 ,111-112 ,151 N.W. 331 (1915). As noted previously, John Doe proceedings in this state date back to at least 1889, forty-one years after the adoption of the Wisconsin Constitution. The John Doe is an institution which has been sanctioned by long usage and general recognition.
Washington,
The statute in question does not impinge upon the prosecutor's discretionary role as does section
Traditionally, judges have recognized the importance of a prosecutor actually conducting the John Doe proceeding and it has never been suggested that the judge would participate in preparing, drafting or filing a criminal complaint. The importance of the prosecutor's presence and contribution was recognized in State ex rel. Kurkierewicz v. Cannon,
The statute struck down in Connors was significantly different from section
In summary, the authority of the John Doe judge is not without limitation; however, the discretion of the judge is vast and, unless abused, will likely be upheld. There may be some blurring of the distinction between executive and judicial functioning in section
Finally, I would comment that judicial functions are generally inconsistent with essentially investigatory and prosecutorial functions. Whenever possible, a John Doe proceeding should be conducted *Page 223 with the participation of the district attorney or someone lawfully standing in his stead.
DJH:SDE *Page 224
United States v. Matthew Crumble , 331 F.2d 228 ( 1964 )
State v. O'CONNOR , 77 Wis. 2d 261 ( 1977 )
State Ex Rel. Newspapers, Inc. v. Circuit Court for ... , 65 Wis. 2d 66 ( 1974 )
State Ex Rel. Kurkierewicz v. Cannon , 42 Wis. 2d 368 ( 1969 )
State v. Washington , 83 Wis. 2d 808 ( 1978 )
Ryan v. State , 79 Wis. 2d 83 ( 1977 )
State v. Brady , 118 Wis. 2d 154 ( 1984 )
State Ex Rel. Niedziejko v. Coffey , 22 Wis. 2d 392 ( 1964 )
State Ex Rel. Kowaleski v. District Court , 254 Wis. 363 ( 1949 )