2015 WI 85

Supreme Court of Wisconsin

 

 

Case No.:		2013AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W
Complete Title:		State of Wisconsin ex rel. Two Unnamed Petitioners, Petitioner, v. The Honorable Gregory A. Peterson, John Doe Judge and Francis D. Schmitz, Special Prosecutor, Respondents.   -------------------------------------------------   State of Wisconsin ex rel. Francis D. Schmitz, Petitioner, v. Honorable Gregory A. Peterson, John Doe Judge, Respondent, Eight Unnamed Movants, Interested Party.   --------------------------------------------------   In the Matter of John Doe Proceeding   State of Wisconsin ex rel. Three Unnamed Petitioners, Petitioner, v. the Honorable Gregory A. Peterson, John Doe judge, the Honorable Gregory Potter, Chief Judge and Francis D. Schmitz, as Special Prosecutor, Respondents.
		ORIGINAL ACTION ------------------------------------------------------ PETITION FOR SUPERVISORY WRIT BEFORE THE SUPREME COURT, APPEAL AND BYPASS TO THE SUPREME COURT FROM CIRCUIT COURT ORDER ------------------------------------------------------- PETITION FOR REVIEW BEFORE THE SUPREME COURT
Opinion Filed:		July 16, 2015
Submitted on Briefs:
Oral Argument:
Source of Appeal:
	Court:	Circuit
	County:	Milwaukee, Iowa, Dodge, Dane and Columbia
	Judge:	Gregory A. Peterson (Reserve)
Justices:
	Concurred:         Concur/Dissent:   Dissented:	PROSSER, J., ROGGENSACK, C.J. (joining Sections IV and V), ZIEGLER, J. (joining Section IV) and GABLEMAN, J. (joining Section IV) concur (Opinion filed). ZIEGLER, J. concurs (Opinion filed). ABRAHAMSON, J. concurs and dissents (Opinion filed). CROOKS, J. concurs and dissents (Opinion filed). ccccc
	Not Participating:	BRADLEY, J., did not participate.
Attorneys:

For the Petitioners (case nos. 2013AP2504-W through 2013AP2508-W and 2014AP296-OA) and Interested Parties (case nos. 2014AP417-W through 2014AP421-W) there were briefs by Attorney Dean A. Strang, StrangBradley, LLC, Madison; Attorney Steven M. Biskupic and Attorney Michelle L. Jacobs, Biskupic & Jacobs, S.C., Mequon; Attorney Dennis P. Coffey, Mawicke & Goisman, SC, Milwaukee; Attorney Matthew W. O’Neill, Fox O’Neill Shannon, S.C., Milwaukee; Attorney James B. Barton, Hansen Reynolds Dickinson Crueger LLC, Milwaukee; Attorney Eric J. Wilson, Godfrey & Kahn, S.C., Madison; and Attorney Jeffrey James Morgan, LeBell, Dobrowski & Morgan, LLP, Milwaukee.

 

For the Respondents (case nos. 2013AP2504-W through 2013AP2508-W, 2014AP417-W through 2014AP421-W and 2014AP296-OA) there were briefs by Assistant Attorney General David C. Rice, with whom on the briefs was Attorney General J. B. Van Hollen (term of office ending December 31, 2014) and Attorney General Brad Schimel (term of office commencing January 1, 2015) and Special Prosecutor Francis D. Schmitz (Petitioner in case nos. 2014AP417-W through 2014AP421-W), Milwaukee.

 

Amici Curiae briefs were filed by Attorney Benjamin T. Barr (pro hac vice), Cheyenne, WY and Attorney Stephen R. Klein (pro hac vice), Cheyenne, WY on behalf of the Wyoming Liberty Group with whom on the brief was Attorney Matthew M. Fernholz and Cramer, Multhauf & Hammes, LLP, Waukesha; Attorney James Bopp, Jr., Terre Haute, IN, on behalf of the James Madison Center for Free Speech and on behalf of Wisconsin Right to Life, Inc. with whom on the briefs was Attorney Michael D. Dean and Michael D. Dean, LLC, Brookfield; Attorney James R. Troupis and Troupis Law Office, LLC, Cross Plains, on behalf of the Ethics and Public Policy Center; Attorney Adam J. White (pro hac vice), Washington, D.C. and Boyden Gray & Associates, Washington, D.C., on behalf of Former Members of the Federal Election Commission Lee Ann Elliot, David Mason, Hans von Spakovsky and Darryl Wold with whom on the brief were Attorney James R. Troupis and Attorney Paul M. Ferguson, Cross Plains; Attorney Jonathan Becker, Attorney Nathan W. Judnic and Attorney Kevin J. Kennedy on behalf of the Wisconsin Government Accountability Board, Madison; Attorney Richard M. Esenberg, Attorney Brian W. McGrath and the Wisconsin Institute for Law & Liberty, Milwaukee, on behalf of The Hon. Bradley A. Smith, Center for Competitive Politics, and Wisconsin Family Action; Attorney J. Gerald Hebert (pro hac vice), Attorney Tara Malloy (pro hac vice), Attorney Paul S. Ryan (pro hac vice), Attorney Megan P. McAllen (pro hac vice) and The Campaign Legal Center, Washington D.C., Attorney Fred Wertheimer (pro hac vice) and Democracy 21, Washington, D.C. and Attorney Donald J. Simon (pro hac vice) and Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C. on behalf of Campaign Legal Center, Democracy 21, Common Cause in Wisconsin and League of Women Voters of Wisconsin with whom on the brief was Attorney Susan M. Crawford and Cullen Weston Pines & Bach LLP, Madison; Attorney David B. Rivkin, Jr. (pro hac vice), Attorney Lee A. Casey (pro hac vice), Attorney Mark W. Delaquil (pro hac vice), Attorney Andrew M. Grossman (pro hac vice), Attorney Richard B. Raile (pro hac vice) and Baker & Hostetler LLP, Washington, D.C. on behalf of Citizens for Responsible Government Advocates, Inc. with whom on the brief was Attorney Christopher M. Meuler and Friebert Finerty & St. John, S.C., Milwaukee; Attorney Matthew Menendez (pro hac vice), Attorney Daniel I. Weiner (pro hac vice), Attorney Alicia L. Bannon (pro hac vice) and Brennan Center for Justice at NYU School of Law on behalf of Professors of Legal Ethics, with whom on the brief was Attorney Thomas R. Cannon, Milwaukee.

 

 

 

 

2015 WI 85

notice

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W

(L.C. No.	2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23)
STATE OF WISCONSIN :		IN SUPREME COURT
State of Wisconsin ex rel. Two Unnamed Petitioners,   Petitioner,   v.   The Honorable Gregory A. Peterson, John Doe Judge and   Francis D. Schmitz, Special Prosecutor,   Respondents.			FILED   JUL 16, 2015   Diane M. Fremgen Clerk of Supreme Court
State of Wisconsin ex rel. Francis D. Schmitz,   Petitioner,   v.   Honorable Gregory A. Peterson, John Doe Judge,   Respondent,   Eight Unnamed Movants,   Interested Party.
In the Matter of John Doe Proceeding       State of Wisconsin ex rel. Three Unnamed Petitioners,   Petitioner,   v.   the Honorable Gregory A. Peterson, John Doe judge,   the Honorable Gregory Potter, Chief Judge and   Francis D. Schmitz, as Special Prosecutor,   Respondents.

 

ORIGINAL ACTION for declaratory judgment. Declaration of rights; relief granted; John Doe investigation ordered closed.

PETITION for supervisory writ and appeal from an order of a John Doe Judge for Milwaukee County, Iowa County, Dodge County, Dane County, and Columbia County, Gregory A. Peterson, Reserve Judge. Petition for supervisory writ denied and order affirmed.

PETITION for supervisory writ and review of a decision of the Court of Appeals. Petition for supervisory writ denied and decision affirmed.

 

¶1 MICHAEL J. GABLEMAN, J.   These cases arise from a John Doe proceeding originally initiated in Milwaukee County, and subsequently expanded to four additional counties, Iowa County, Dodge County, Dane County, and Columbia County. Though not consolidated, these proceedings have been overseen by a single John Doe judge and organized by a single special prosecutor (Francis Schmitz). For the sake of clarity, we will refer to all five proceedings as a single "John Doe investigation." The investigation has been ongoing for several years and has been the subject of much litigation.[1]

¶2 According to the special prosecutor, the purpose of the John Doe investigation is to root out allegedly illegal campaign coordination between certain issue advocacy groups and a candidate for elective office. To further the investigation, the special prosecutor sought, and received, wide-ranging subpoenas and search warrants for 29 organizations and individuals, seeking millions of documents that had been created over a period of several years. Various targets (collectively "the Unnamed Movants") moved the John Doe judge to quash the subpoenas and search warrants and to return any property seized by the special prosecutor. The John Doe judge, the Hon. Gregory A. Peterson, presiding, granted the motions to quash and ordered the return of all property seized. Reserve Judge Peterson stayed the order, however, and also halted the John Doe investigation pending our resolution of the cases before us.

¶3 The first case we address is an original action brought by Unnamed Movants Nos. 6 and 7, State ex rel. Two Unnamed Petitioners v. Peterson ("Two Unnamed Petitioners"). Unnamed Movants Nos. 6 and 7 seek a declaration of rights that the special prosecutor's theory of the case is invalid under Wisconsin law. Specifically, they ask that we declare that coordinated issue advocacy of the kind alleged by the special prosecutor is not regulated under Wis. Stat. Ch. 11 (2011-12),[2] Wisconsin's campaign finance law.

¶4 The second case we review is a petition brought by the special prosecutor for a supervisory writ and an appeal of Reserve Judge Peterson's decision and order quashing the subpoenas and search warrants, State ex rel. Schmitz v. Peterson ("Schmitz v. Peterson"). The special prosecutor argues that Reserve Judge Peterson improperly quashed the subpoenas and search warrants because the records in the John Doe investigation establish a reasonable belief that the Unnamed Movants violated Wisconsin's campaign finance law. This case is before us on the Unnamed Movants' petitions to bypass the court of appeals pursuant to Wis. Stat. § 809.60 (2013-14).

¶5 The third case we address is a petition for a supervisory writ and a review of a decision of the court of appeals, State ex rel. Three Unnamed Petitioners v. Peterson ("Three Unnamed Petitioners"). This petition for supervisory writ was brought by Unnamed Movants Nos. 2, 6, and 7, and broadly challenges whether the John Doe investigation can be initiated in five separate counties under a single John Doe judge, and whether the special prosecutor was properly appointed. The court of appeals denied the supervisory writ and Unnamed Movants Nos. 2, 6, and 7 appealed that decision to this court.

¶6 Our order granting and consolidating[3] each of these cases identified 14 issues presented by the complex nature of the cases. These issues related to the procedural nature of the John Doe investigation, as well as whether the conduct alleged by the special prosecutor is actually a violation of Ch. 11. Subsequent briefing by the parties has revealed that the cases can be resolved on much narrower grounds than those that were originally submitted, and we have written this opinion accordingly.

¶7 We can resolve the original action, Two Unnamed Petitioners, by first examining whether the statutory definitions of "committee," "contributions," "disbursements," and "political purposes" in Wis. Stat. §§ 11.01(4), (6), (7), and (16) are limited to express advocacy[4] or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. Second, if the definitions extend to issue advocacy coordination, what then constitutes prohibited "coordination?"[5]

¶8 Next, we can resolve the supervisory writ petition in Schmitz v. Peterson by answering whether the evidence gathered in the John Doe proceedings provides a reasonable belief that Wisconsin law was violated by a campaign committee's coordination with independent advocacy organizations that engaged in express advocacy.[6]

¶9 Finally, we can resolve the supervisory writ petition in Three Unnamed Petitioners by examining: (1) Whether the Director of State Courts ("Director") violated a plain legal duty in appointing reserve judge, Barbara A. Kluka, as the John Doe judge to preside over a multi-county John Doe proceeding; (2) Whether the Chief Judge of the First Judicial District violated a plain legal duty in appointing reserve judge, Gregory A. Peterson, as the John Doe judge to preside over a multi-county John Doe proceeding; (3) Whether a John Doe judge violated a plain legal duty by convening a John Doe proceeding over multiple counties, which is then coordinated by the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county requests the appointment; (b) but none of the nine grounds for appointing a special prosecutor under Wis. Stat. § 978.045(1r) apply; (c) no charges have yet been issued; (d) the district attorney in each county has not refused to continue the investigation or prosecution of any potential charge; and (e) no certification that no other prosecutorial unit was able to do the work for which the special prosecutor was sought was made to the Department of Administration; and (5) If, arguendo, there was a defect in the appointment of the special prosecutor in the John Doe proceedings at issue in these matters, what effect, if any, would such a defect have on the competency of the special prosecutor to conduct the investigation; or the competency of the John Doe judge to conduct these proceedings?[7]

I. HOLDINGS

A.

¶10 In Two Unnamed Petitioners, we hold that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution[8] because its language "'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'" State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987)). However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, "political purposes" is limited to express advocacy and its functional equivalent[9] as those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976), and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (WRTL II). With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is "beyond the reach of [Ch. 11]." Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II). Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

¶11 To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

B.

¶12 In Schmitz v. Peterson, we hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.

C.

¶13 Finally, in Three Unnamed Petitioners, we hold that the Unnamed Movants have failed to prove that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and although the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent preconditions for a supervisory writ.[10] Put another way, were we to grant the supervisory writ in this case, we would risk "transform[ing] the writ into an all-purpose alternative to the appellate review process," which we cannot do. Id. Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY[11] [12]

¶14 In the spring of 2010, a John Doe proceeding (John Doe I) was commenced for the purpose of investigating the alleged misuse of public resources in the Milwaukee County Executive's Office. This investigation resulted in criminal charges being filed against four individuals——Tim Russell, Kevin Kavanaugh, Kelly Rindfleisch, and Darlene Wink——in January 2012.[13]

¶15 John Doe I also triggered a second John Doe proceeding (John Doe II), the investigation at issue here. On August 10, 2012, Milwaukee County Assistant District Attorney David Robles filed a petition for the commencement of John Doe II in the Milwaukee County circuit court. This petition sought leave to investigate alleged campaign finance violations under Wis. Stat. Ch. 11, and requested a secrecy order to cover the investigation in anticipation that documents would be sought from the targeted individuals. In support of his request, Robles' petition referred to an affidavit by Investigator Robert Stelter.

¶16 Stelter's affidavit indicates that emails obtained in response to a search warrant in John Doe I suggested that there may have been coordination of fundraising between campaign committees and other related, independent groups. Reserve Judge Neal Nettesheim, the John Doe I judge, authorized the use of the information obtained in John Doe I for the purpose of requesting the commencement of John Doe II.

¶17 On August 23, 2012, the Chief Judge of the First Judicial District, Jeffrey Kremers, assigned and forwarded the John Doe petition to Reserve Judge Kluka. On September 5, 2012, using a form titled "Application and Order for Specific Judicial Assignment," Director of State Courts John Voelker (with then-Chief Justice Shirley Abrahamson's name directly above)[14] assigned Reserve Judge Kluka to preside over the John Doe proceeding in Milwaukee County. That same day, Reserve Judge Kluka authorized the commencement of the John Doe proceeding and also granted the requested secrecy order.

¶18 On September 6, 2012, Investigator Stelter filed an affidavit in support of a request for search warrants and subpoenas. The request covered a wide swath of desired information, including emails, conference call records, and bank records, dating from 2009 to 2012. In support of this request, Investigator Stelter provided details of numerous emails between a candidate committee and individuals and/or groups.

¶19 On December 13, 2012, Investigator Stelter filed another affidavit in support of a request for further search warrants and subpoenas. This affidavit provided additional details about the parties and how they operated in coordination with each other. The theory of the case, as put forward by the special prosecutor, is two-fold: (1) that the independent groups and the candidate committee worked "hand in glove" such that the independent groups became mere subcommittees of the candidate's committee, thus triggering reporting and disclosure requirements under Wis. Stat. §§ 11.10(4); and (2) that the coordinated issue advocacy amounted to an unlawful in-kind contribution to the candidate committee under Wis. Admin. Code § GAB 1.20.

¶20 On January 18, 2013, Milwaukee County District Attorney John Chisholm met with then-Attorney General J.B. Van Hollen to discuss the ongoing investigation. District Attorney Chisholm sought to determine whether, given the statewide nature and gravity of the investigation, the Department of Justice ("DOJ") wished to become involved. On May 31, 2013, Attorney General Van Hollen sent District Attorney Chisholm a letter declining DOJ involvement in the investigation. Attorney General Van Hollen cited, among other things, potential conflicts of interest and the appearance of impropriety.

¶21 In July 2013, three more petitions to commence John Doe proceedings were filed: District Attorney Jane Kohlwey filed a petition in Columbia County circuit court on July 22, 2013; District Attorney Larry Nelson filed a petition in Iowa County circuit court on July 25, 2013; and District Attorney Kurt Klomberg filed a petition in Dodge County circuit court on July 26, 2013.

¶22 On August 7, 2013, using a form titled "Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Iowa County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the John Doe proceeding in Iowa County and also entered a secrecy order.

¶23 Also on August 7, 2013, using a form titled "Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Dodge County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the Dodge County John Doe proceeding and also entered a secrecy order.

¶24 On August 14, 2013, using a form titled "Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Columbia County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the John Doe proceeding and also entered a secrecy order.

¶25 On August 21, 2013, Dane County District Attorney Ismael Ozanne filed a petition in Dane County circuit court to commence a John Doe proceeding. On August 21, 2013, using a form titled "Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Dane County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the Dane County John Doe proceeding and also entered a secrecy order.

¶26 Also on August 21, 2013, the District Attorneys from all five counties sent a joint letter to Reserve Judge Kluka requesting the appointment of a special prosecutor to oversee the entire investigation. The District Attorneys encouraged Reserve Judge Kluka to appoint a special prosecutor on her own motion and in the exercise of her inherent authority. Their letter expressed concerns that it would be inefficient for five district attorneys to handle one investigation and that there may be a perception of bias given their partisan affiliations. The letter recommended Francis Schmitz for the position.

¶27 On August 23, 2013, Reserve Judge Kluka entered separate, but identical, orders in all five John Doe proceedings appointing Francis Schmitz as special prosecutor with jurisdiction across the five counties. Mirroring the District Attorneys' position on the matter, Reserve Judge Kluka cited, as the basis of her appointment, concerns of efficiency and the appearance of impropriety. Reserve Judge Kluka made the appointment pursuant to her purported "authority" under State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, as well as her purported "inherent authority" under State v. Cummings, 199 Wis. 2d 721, 736, 546 N.W.2d 406 (1996). Each order fixed the special prosecutor's rate of pay at $130 per hour and stated that a copy should be sent to the Department of Administration.

¶28 On October 1, 2013, Reserve Judge Kluka authorized 29 subpoenas duces tecum to, among others, Unnamed Movants Nos. 1, 2, 3, 4, 5, and 8, based on an affidavit submitted to her by Investigator Stelter. These subpoenas compelled production of documents evidencing the conduct of coordination among the subpoenaed parties and a candidate committee, particularly the interaction between Unnamed Movants Nos. 1 and 2. That same day Reserve Judge Kluka authorized search warrants for the homes and offices of Unnamed Movants Nos. 6 and 7. The search warrants were executed at approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets' homes.

¶29 The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.

¶30 Motions to quash the subpoenas were filed by Unnamed Movant No. 1 on October 17, 2013, and by Unnamed Movants Nos. 2 and 3 on October 25, 2013. On October 29, 2013, before ruling on the motions, Reserve Judge Kluka recused herself from the Milwaukee County proceeding, citing only an unspecified "conflict." The Milwaukee County proceeding was reassigned by Chief Judge Kremers to Reserve Judge Gregory Peterson on October 29, 2013.

¶31 The next day, on October 30, 2013, Reserve Judge Kluka disqualified herself from the remaining John Doe proceedings. On November 1, 2013, Chief Judge Potter of the Sixth Judicial District assigned Reserve Judge Peterson to preside over the John Doe proceedings in Columbia County and Dodge County. On November 1, 2013, Chief Judge Duvall of the Seventh Judicial District assigned Reserve Judge Peterson to preside over the John Doe proceeding in Iowa County. On November 4, 2013, Chief Judge Daley of the Fifth Judicial District assigned Reserve Judge Peterson to preside over the John Doe proceeding in Dane County. Thereafter, on November 4, 2013, Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the Milwaukee County John Doe proceeding. On November 11, 2013, Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the John Doe proceedings in Iowa County and Dane County. On November 14, 2013, Director Volker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the John Doe proceedings in Columbia County and Dodge County.

¶32 Also on November 14, 2013, Unnamed Movants Nos. 2, 6, and 7 filed with the court of appeals a petition for supervisory writs of mandamus and prohibition directed at Reserve Judges Kluka and Peterson (Three Unnamed Petitioners). The Unnamed Movants alleged procedural defects involving the appointment of a reserve judge to oversee a multi-county John Doe investigation and the appointment of the special prosecutor. The Unnamed Movants asked the court of appeals to declare the John Doe investigation void ab initio.

¶33 In an order dated November 22, 2013, the court of appeals summarily dismissed what it deemed the Unnamed Movants' "first and sixth claims," namely, that there is no statutory authority to appoint or assign a reserve judge to preside over a John Doe proceeding, and that the John Doe judge circumvented the statutory functions of the clerks of court in five counties by requiring certain documents be sent to a post office box. Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished order 6-7 (Wis. Ct. App. Nov. 22, 2013). Regarding the first claim, the court of appeals reasoned that there is no statute that limits the ability of reserve judges to oversee John Doe investigations. Id. Moreover, the court of appeals noted that the statute authorizing the appointment of reserve judges explicitly states that reserve judges "shall perform the same duties as other judges." Id. (citing Wis. Stat. § 753.075). The court of appeals ordered the respondents to address the remaining claims concerning the legality of a multi-county John Doe proceeding, the legality of a special prosecutor handling a multi-county John Doe proceeding, and the legality of the special prosecutor's appointment under Wis. Stat. § 978.045. Id.

¶34 While that case was pending at the court of appeals, Unnamed Movant No. 6 also filed a petition in Dodge County circuit court on December 4, 2013, for the return of the property taken pursuant to the October 1 search warrant. On December 20, 2013, Unnamed Movant No. 7 filed a substantially similar petition in Dane County circuit court. After a response by the special prosecutor, Reserve Judge Peterson granted the motions to quash the subpoenas and the petitions to return property on January 10, 2014. Reserve Judge Peterson reasoned:

I conclude the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws. I am persuaded the statutes only prohibit coordination by candidates and independent organizations for a political purpose, and political purpose, with one minor exception not relevant here . . . requires express advocacy. There is no evidence of express advocacy.

. . . 

Before there is coordination there must be political purposes; without political purposes, coordination is not a crime.

. . . 

As relevant here, acts are for political purposes when they are made to influence the recall or retention of a person holding office. Wis. Stat. § 11.01(16). If the statute stopped here, the definition of political purposes might well be unconstitutionally vague. Buckley v. Valeo, 424 U.S. 1, 77 (1976). But the definition continues: acts for political purposes include, but are not limited to, making a communication that expressly advocates the recall or retention of a clearly identified candidate. Wis. Stat. § 11.01(16)(a). In GAB 1.28, the GAB attempted to flesh out other acts that would constitute political purposes, but because of constitutional challenges it has stated it will not enforce that regulation. So the only clearly defined political purpose is one that requires express advocacy.

The state is not claiming that any of the independent organizations expressly advocated. Therefore, the subpoenas fail to show probable cause that a crime was committed.

¶35 As for the search warrants executed on the homes and offices of Unnamed Movants Nos. 6 and 7, Reserve Judge Peterson reasoned:

The same legal conclusions should apply to all parties who have raised challenges in this case. Therefore, for the reasons stated above regarding the limitations in the scope of the campaign finance laws, I conclude that the warrants lack probable cause.

¶36 The special prosecutor requested a stay of the order, which was granted on January 27, 2014. In his order granting the stay, Reserve Judge Peterson also clarified that he was incorrect in stating that the probable cause standard applied to subpoenas. Nevertheless, he concluded that a subpoena is not "valid when based on an invalid interpretation of the law." As a condition of the stay, Reserve Judge Peterson ordered the State not to examine any of the property seized pursuant to search warrants.

¶37 On January 30, 2014, the court of appeals issued an opinion and order in Three Unnamed Petitioners addressing the remaining issues and denying the supervisory writ. Regarding the legality of a multi-county John Doe proceeding, the court of appeals reasoned that there were five separate proceedings in five separate counties and that it is not unusual for courts to hold joint proceedings or to issue joint orders in non-consolidated cases that share a common factual basis, raise the same legal issue, or involve overlapping parties. Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished slip op. & order 3-4 (Wis. Ct. App. Jan. 30, 2014). The court of appeals used the same reasoning to justify the legality of a special prosecutor handling multi-county John Doe proceedings. Id. at 4-7. As for the legality of the special prosecutor’s appointment under Wis. Stat. § 978.045, the court of appeals determined that the special prosecutor was appointed pursuant to Reserve Judge Kluka's "authority" under Carlson, and "inherent authority" under Cummings, not under Wis. Stat. § 978.045, the special prosecutors statute. Id. On February 19, 2014, the Unnamed Movants filed a petition for review in this court, which we granted on December 16, 2014.

¶38 Meanwhile, on February 7, 2014, Unnamed Movants Nos. 6 and 7 filed a petition for leave to commence an original action in the Wisconsin Supreme Court under Article VII, Section 3(2) of the Wisconsin Constitution[15] (Two Unnamed Petitioners). The original action sought a declaration confirming the ruling of Reserve Judge Peterson in his January 10, 2014, order. The special prosecutor filed a response to this petition on February 25, 2014. We granted the original action on December 16, 2014.

¶39 On February 21, 2014, the special prosecutor filed a petition for a supervisory writ and a writ of mandamus in the court of appeals (Schmitz v. Peterson). The special prosecutor sought the supervisory writ in order to vacate Reserve Judge Peterson's January 10, 2014, order and to direct Reserve Judge Peterson to enforce the subpoenas and search warrants. Unnamed Movants Nos. 1, 2, 3, 4, 5, 6, 7, and 8 filed responses to the petition on March 31, 2014. Shortly thereafter, the Unnamed Movants brought a petition to bypass the court of appeals. We granted bypass on December 16, 2014.

¶40 Finally, on November 3, 2014, Unnamed Movants Nos. 6 and 7 filed a motion with Reserve Judge Peterson requesting an order to show cause as to why the John Doe proceeding should not be ended. Reserve Judge Peterson denied that motion but concluded that if appellate courts agreed with his interpretation of Ch. 11, the "consequence will no doubt be the end of the John Doe investigation."

 

 

 

 

 

 

 

 

 

III. TWO UNNAMED PETITIONERS

¶41 We turn first to Two Unnamed Petitioners, the original action filed with the Wisconsin Supreme Court. This case requires us to interpret Wisconsin's campaign finance law, Wis. Stat. Ch. 11. By its very nature, this task involves fundamental questions regarding the scope of the government's ability to regulate political speech. To resolve this case, we must engage in statutory interpretation of the phrase "political purposes," which includes all activities "done for the purpose of influencing [an] election." Wis. Stat. § 11.01(16). We conclude, consistent with the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, that the plain language of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague if it is not given a limiting construction and applied to only express advocacy and its functional equivalent. This conclusion invalidates the special prosecutor's theory of the case and ends the John Doe investigation. Therefore, we agree with the Unnamed Movants and grant their requested relief.

A. Standard of Review

¶42 Statutory interpretation is a question of law, which this court reviews de novo. Covenant Healthcare Sys., Inc. v. City of Wauwatosa, 2011 WI 80, ¶21, 336 Wis. 2d 522, 800 N.W.2d 906. In this case, our statutory interpretation implicates the constitutionality of specific provisions in Chapter 11, which is also a question of law which we review de novo. Janssen, 219 Wis. 2d at 370.

¶43 Statutes are presumed to be constitutional, "and the party seeking to overcome the presumption must prove the statute unconstitutional beyond a reasonable doubt." Id. When the statute implicates the exercise of First Amendment rights, however, "[t]he burden shifts to the proponent of the statute." Id. at 370-71. Here, the proponent is the special prosecutor.

B. The First Amendment and the Doctrines of Vagueness and Overbreadth

i. First Amendment Principles

¶44 In addressing the scope of Wisconsin's campaign finance law we are keenly aware that this task bears directly on the ability of all citizens in our State to engage in the democratic process. The special prosecutor's theories implicate one of the foundational principles of our nation: the freedom of speech, specifically, political speech. We therefore begin our analysis with the words of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I.[16] Article I, Section 3 of the Wisconsin Constitution guarantees that: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press."

¶45 While the First Amendment protects a broad range of speech and conduct, "there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. . . . of course includ(ing) discussions of candidates . . . ." Buckley, 424 U.S. at 14 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Indeed, "[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010). "In a republic [such as ours] where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation." Buckley, 424 U.S. at 14-15. These values reflect our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (emphasis added).

¶46 Our protection of the freedom of political speech reflects our firm belief that "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution." Buckley, 424 U.S. at 14. "At the founding, speech was open, comprehensive, and vital to society's definition of itself; there were no limits on the sources of speech and knowledge." Citizens United, 558 U.S. at 353. Therefore, "[t]he First Amendment affords the broadest protection to [] political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

¶47 Accordingly, "the First Amendment 'has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" McCutcheon v. Fed. Election Comm'n, 134 S. Ct. 1434, 1441 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). There exists "no right more basic in our democracy than the right to participate in electing our political leaders." Id. at 1440-41. Political speech is thus a fundamental right and is afforded the highest level of protection. Indeed, freedom of speech, especially political speech, is the right most fundamental to our democracy. To that end, we must conduct a particularly "[c]lose examination of the specificity of the statutory limitation . . . where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests." Buckley, 424 U.S. at 40-41. "The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People 'of common intelligence must necessarily guess at [the law's] meaning and differ as to its application.'" Citizens United, 558 U.S. at 324 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

¶48 However, there are certain, limited circumstances in which the government may regulate and impose burdens upon the exercise of free speech. In the campaign finance context, these include disclosure and reporting requirements, as well as contribution limits to candidates.[17] The justification for imposing such restrictions is to "prevent[] corruption and the appearance of corruption." WRTL II, 551 U.S. at 478 (quotations omitted). The interest in preventing the corruption of public officials, however, does not justify the regulation of all political speech. Rather, the United States Supreme Court has drawn an important "distinction between discussion of issues and candidates and advocacy of election or defeat of candidates." Buckley, 424 U.S. at 42. The compelling governmental interest that justifies the regulation of express advocacy (the prevention of quid pro quo[18] corruption) "'might not apply to'" the regulation of issue advocacy. WRTL II, 551 U.S. at 471 (quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 209 n.88 (2003)). Indeed, "[s]pending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption." McCutcheon, 134 S. Ct. at 1450. "Nor does the possibility that an individual who spends large sums may garner 'influence over or access to' elected officials or political parties." Id. at 1451 (quoting Citizens United, 558 U.S. at 359).

¶49 A key reason that issue advocacy is afforded greater protection under the First Amendment is that "[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 102 (1940). "Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election." WRTL II, 551 U.S. at 474.

¶50 In order to give the fullest protection possible to the right to the exercise of political speech, "the government's authority to regulate in this area extends only to money raised and spent for speech that is clearly election related[, that is, express advocacy]; ordinary political speech about issues, policy, and public officials[, that is, issue advocacy,] must remain unencumbered." Barland II, 751 F.3d at 810 (emphasis added). Thus, in order to avoid a chilling effect on otherwise protected speech, "when the regulatory scheme reaches beyond candidates, their campaign committees, and political parties. . . . [the] government may regulate . . . only with narrow specificity." Id. at 811 (quotations omitted). "In short, [we] must give the benefit of any doubt to protecting rather than stifling speech." WRTL II, 551 U.S. at 469; see also McCutcheon, 134 S. Ct. at 1451 (quoting WRTL II, 551 U.S. at 457) ("'[T]he First Amendment requires [courts] to err on the side of protecting political speech rather than suppressing it.'").

¶51 To that end, "in the domain of campaign-finance law, the First Amendment requires a heightened degree of regulatory clarity and a close fit between the government's means and its end." Barland II, 751 F.3d at 808. This "close fit" requirement is intended to prevent the dangerous chilling effect an unclear or imprecise law has on protected speech. Id. at 835. To guard against inhibiting protected political speech, courts use the overbreadth and vagueness doctrines. These doctrines "reflect[] the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted." Janssen, 219 Wis. 2d at 372 (citation omitted).

ii. Overbreadth and Vagueness

¶52 "A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Id. at 374 (citation omitted). The overbreadth doctrine "recognize[s] that broadly written statutes substantially inhibiting free expression should be open to attack even by a party whose own conduct remains unprotected under the First Amendment." State v. Stevenson, 2000 WI 71, ¶11, 236 Wis. 2d 86, 613 N.W.2d 90. "The danger inherent in overbroad statutes is that such statutes provide [the government with] practically unbridled administrative and prosecutorial discretion that may result in select[ive] prosecution based on certain views deemed objectionable by law enforcement." Id., ¶13. Thus, "[o]verbroad statutes may undesirably dissuade persons from exercising their rights by 'chilling' their protected speech or expression." Janssen, 219 Wis. 2d at 372 (citation omitted). In other words, the threat to free expression created by overbroad statutes is that, by potentially sweeping in constitutionally protected activity, individuals and groups may self-censor out of fear of vindictive or selective prosecution.

¶53 When faced with an overbroad statute, courts have several options.

First, courts may apply a limiting construction to rehabilitate the statute when such a narrowing and validating construction is readily available. Second, courts may cure the constitutional defect by severing the unconstitutional provisions of a statute and leaving the remainder of the legislation intact. Finally, courts may determine that the statute is not amenable to judicial limitation or severance and invalidate the entire statute upon a determination that it is unconstitutional on its face.

Stevenson, 236 Wis. 2d 86, ¶15 (internal citations omitted).

¶54 Related to the overbreadth doctrine is the vagueness doctrine,[19] which "requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'" State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 657, 292 N.W.2d 807 (1980) (quoting Smith v. Goguen, 415 U.S. 566, 572-73 (1974)). A vague statute "is one which operates to hinder free speech through the use of language which is so vague as to allow the inclusion of protected speech in the prohibition or to leave the individual with no clear guidance as to the nature of the acts which are subject to punishment." Id. at 656. "Where First Amendment rights are involved, an even 'greater degree of specificity' is required." Buckley, 424 U.S. at 77 (citations omitted). Thus, when a criminal statute implicates First Amendment rights, the statutory language must have the "utmost clarity and exactitude." Stevenson, 236 Wis. 2d 86, ¶30. Thus, the vagueness doctrine concerns the

imping[ement] upon three first amendment values: (1) it does not provide individuals with fair warning of what is prohibited; (2) lacking precise or articulated standards, it allows for arbitrary or discriminatory enforcement; and (3) it causes citizens to 'forsake activity protected by the First Amendment for fear it may be prohibited.'

State v. Thiel, 183 Wis. 2d 505, 521 n.9, 515 N.W.2d 847 (1994) (quoting M.S. News Co. v. Casado, 721 F.2d 1281, 1290 (10th Cir. 1983)). In other words, "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity." Barland II, 751 F.3d at 811 (quotations omitted).

C. The Definition of "Political Purposes" in Wis. Stat. § 11.01(16) is Overbroad and Vague Unless Limited to Express Advocacy and Its Functional Equivalent.

¶55 The special prosecutor alleges that the Unnamed Movants engaged in illegally coordinated issue advocacy. However, the basis for his theory has evolved over the course of the various legal challenges to his investigation, and he appears unable to decide just how the Unnamed Movants have broken the law.[20]

¶56 Today, the special prosecutor alleges two theories of illegal coordination: (1) that the coordination between the Unnamed Movants is so extensive that the supposedly independent groups became subcommittees for the candidate's campaign under Wis. Stat. § 11.10(4); and (2) that the coordinated issue advocacy amounts to an in-kind contribution under Wis. Admin. Code § GAB 1.20. The special prosecutor's theories, if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues. See Citizens United, 558 U.S. at 324. We find no support for the special prosecutor's theories in Wis. Stat. Ch. 11. Chapter 11's definition of "political purposes," which underlies Wisconsin's campaign finance law, is both overbroad and vague and thus unconstitutionally chills speech because people "'of common intelligence must necessarily guess at [the law's] meaning and differ as to its application.'" Id. (quoting Connally, 269 U.S. at 391).

¶57 However, by limiting the definition of "political purposes" to express advocacy and its functional equivalent, we ensure that all issue advocacy will remain unencumbered. This limiting construction[21] allows us to protect political speech, a vital First Amendment right, and allows us to guard against the theories of the special prosecutor and those who would rely on overbroad and vague statutes to silence those with whom they disagree.

i. The Definition and Scope of "Political Purposes" in Wis. Stat. § 11.01(16) Must Be Limited to Only Express Advocacy.

¶58 We begin our analysis by noting that Wisconsin's campaign finance law "is labyrinthian and difficult to decipher without a background in this area of the law." Barland II, 751 F.3d at 808. Indeed, "[t]o a lay reader [Chapter 11] require[s] almost any group that wants to say almost anything about a candidate or election to register as a political committee." Id. at 810 (citing Wis. Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1184 (7th Cir. 1998)). However, in analyzing the statutes, it becomes readily apparent that the entire regulatory scheme depends on but a few key terms: "committee," "contribution," "disbursement," and "political purposes."

¶59 "Committee" is defined in Wis. Stat. § 11.01(4) as "any person other than an individual and any combination of 2 or more persons, permanent or temporary, which makes or accepts contributions or makes disbursements, whether or not engaged in activities which are exclusively political, except that a 'committee' does not include a political 'group' under this chapter." As one can see from the statutory definition, committee status under Wisconsin campaign finance law depends on the definitions of "contributions" and "disbursements."

¶60 "Contribution" has a very lengthy definition, but the relevant portion is contained in Wis. Stat. § 11.01(6)(a)1, which states that "contribution" means

[a] gift, subscription, loan, advance, or deposit of money or anything of value, except a loan of money by a commercial lending institution made by the institution in accordance with applicable laws and regulations in the ordinary course of business, made for political purposes. In this subdivision "anything of value" means a thing of merchantable value.

(emphasis added). The definition of "disbursement" largely parallels the definition of "contribution," the relevant portion of which states that a "disbursement" is

[a] purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, except a loan of money by a commercial lending institution made by the institution in accordance with applicable laws and regulations in the ordinary course of business, made for political purposes. In this subdivision, "anything of value" means a thing of merchantable value.

Wis. Stat. § 11.01(7)(a)1 (emphasis added). It is apparent from the emphasized language that whether or not something is a contribution or disbursement depends on the definition of "political purposes."

¶61 "Political purposes" is defined, in relevant part, as an act

done for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, for the purpose of payment of expenses incurred as a result of a recount at an election, or for the purpose of influencing a particular vote at a referendum. In the case of a candidate, or a committee or group which is organized primarily for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, or for the purpose of influencing a particular vote at a referendum, all administrative and overhead expenses for the maintenance of an office or staff which are used principally for any such purpose are deemed to be for a political purpose.

(a) Acts which are for "political purposes" include but are not limited to:

1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.

Wis. Stat. § 11.01(16) (emphasis added).

¶62 Thus, the lynchpin of Wisconsin's campaign finance law is whether an act is done for "political purposes." Chapter 11 regulates "disbursements" and "contributions," and the phrase "political purposes" is used in the definition of each of those words. See Wis. Stat. §§ 11.01(7) (defining "disbursement"), 11.01(6) (defining "contribution"). If an act is not done for "political purposes," then it is not a disbursement or a contribution, and it therefore is not subject to regulation under Ch. 11.

¶63 The Seventh Circuit in Barland II held that the phrase "political purposes," as defined in Wis. Stat. § 11.01, is both vague and overbroad. Barland II, 751 F.3d at 833. The court reasoned that the U.S. Supreme Court in Buckley held that the phrase "influence an election," which also appears in the definition of "political purposes," is vague and overbroad. Id. at 833 ("The [Buckley] Court held that this kind of broad and imprecise language risks chilling issue advocacy, which may not be regulated; the same reasoning applies here."). Further, the court concluded the phrase "include but are not limited to" renders the definition of "political purposes" vague and overbroad because "[t]he 'not limited to' language holds the potential for regulatory mischief." Id.; see also Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 677, 597 N.W.2d 721 (1999) (WMC) (concluding that the express advocacy standard under Wis. Stat. § 11.01(16)(a)1 must still be consistent with Buckley, lest it become a trap for the innocent and unwary.)

¶64 The special prosecutor has completely disregarded these principles. The lack of clarity in Ch. 11, which the special prosecutor relies upon, leads us to the unsettling conclusion that it is left to government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is "too much" coordination. In essence, under his theory, every candidate, in every campaign in which an issue advocacy group participates, would get their own John Doe proceeding and their own special prosecutor to determine the extent of any coordination. This is not, and cannot, be the law in a democracy.

¶65 More fundamentally, however, the fact that these questions arise at all is proof that the definition of "political purposes" "holds the potential for regulatory mischief. Perhaps [the express advocacy language] was included to leave room for regulation of the 'functional equivalent' of express advocacy as that term was later explained in [WRTL II]. Beyond that, however, the language contains persistent vagueness and overbreadth." Barland II, 751 F.3d at 833. In fact, the Government Accountability Board ("GAB") conceded this point in Barland II and suggested a limiting construction to the Seventh Circuit that would "confine the definitions [of "political purposes"] to express advocacy and its functional equivalent." Id. That is precisely the construction the Seventh Circuit adopted, and we conclude that same limiting construction should apply here as well.

¶66 To be clear, the reason that the definition of "political purposes" in § 11.01(16) is unconstitutional is because the phrase "influencing [an] election" is so broad that it sweeps in protected speech, as well as speech that can be subject to regulation. "Influencing [an] election" obviously includes express advocacy, but without a limiting construction it could just as easily include issue advocacy aired during the closing days of an election cycle. This is precisely the kind of overbroad language that the Supreme Court has repeatedly rejected. "Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election." WRTL II, 551 U.S. at 474 (emphasis added). We must have clear rules that protect political speech, and we must continue to reject the idea that some protected speech may be chilled or restricted simply because it is "difficult to distinguish from unprotected speech." Id. at 494 (Scalia, J., concurring). "[L]aws targeting political speech are the principal object of the First Amendment guarantee. The fact that the line between electoral advocacy and issue advocacy dissolves in practice is an indictment of the statute, not a justification of it." Id.

¶67 We therefore hold that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague. In order to cure this overbreadth and vagueness, we adopt a construction of § 11.01(16) that limits the definition of "political purposes" to include only express advocacy and its functional equivalent, as those terms are defined in Buckley and WRTL II. This construction is "readily available" due to the Seventh Circuit's decision in Barland II. See Stevenson, 236 Wis. 2d 86, ¶15; Barland II, 751 F.3d at 834 (explaining that "[t]he [Wisconsin Supreme Court] and [] Attorney General have acknowledged that when Chapter 11 is applied beyond candidates, their committees, and political parties, it must be narrowly construed to comply with Buckley's express-advocacy limitation; the administration of the state's campaign-finance system has generally reflected this understanding for many decades.").[22] Given that Chapter 11's requirements depend on whether an act is done for "political purposes," the effect of this limiting construction places "issue advocacy . . . beyond the reach of [Wisconsin's] regulatory scheme." Barland II, 751 F.3d at 815.

ii. The Special Prosecutor's Theories of Coordination Depend on Coordinated Issue Advocacy, Which Is Not Regulated Under Chapter 11.

¶68 Having reached our conclusion about the scope of conduct regulated by Chapter 11, we now turn to the special prosecutor's theories of coordination and whether the alleged conduct is regulated under Wisconsin law.[23] The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor's theories, rather than "assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished. In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with "narrow specificity." Barland II, 751 F.3d at 811 (quotations omitted).

¶69 The limiting construction that we apply makes clear that the special prosecutor's theories are unsupportable in law given that the theories rely on overbroad and vague statutes. By limiting the definition of "political purposes" to express advocacy and its functional equivalent, political speech continues to be protected as a fundamental First Amendment right.

¶70 The special prosecutor's first theory of illegal coordination is that ostensibly independent, advocacy groups operated "hand in glove" with the candidate's committee, which made the independent groups subcommittees under Wis. Stat. § 11.10(4). The relevant part of this statute states that

[a]ny committee which is organized or acts with the cooperation of or upon consultation with a candidate or agent or authorized committee of a candidate, or which acts in concert with or at the request or suggestion of a candidate or agent or authorized committee of a candidate is deemed a subcommittee of the candidate's personal campaign committee.

Wis. Stat. § 11.10(4) (emphasis added). The special prosecutor argues that coordinated issue advocacy is prohibited under this provision because the statute itself only requires cooperation between a candidate's committee and another committee and that the statute does not require that such cooperation be limited to express advocacy.

¶71 The first flaw in the special prosecutor's theory is that it is left to the whim of each regulatory bureaucrat and/or prosecutor to subjectively determine how much coordination is "too much." Indeed, the special prosecutor, because he relies on vague and overbroad statutes, will be the only one to know how much coordination is "too much." This cannot be; such an interpretation of § 11.10(4) is unconstitutionally overbroad and vague under the First Amendment. See Princess Cinema, 96 Wis. 2d at 657 (citations omitted) ("The void for vagueness doctrine '. . . incorporates the notions of fair notice or warning. . . . (i)t requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent "arbitrary and discriminatory enforcement."'").

¶72 However, there is another, more obvious flaw in the special prosecutor's theory. Wisconsin Stat. § 11.10(4) refers to a "committee" that coordinates with a candidate's committee and in order to be a "committee," an entity must "make[] or accept[] contributions or make[] disbursements." In order to come within the purview of regulated acts both "contributions" and "disbursements" must be "made for political purposes." Wis. Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1. Applying the necessary limiting construction to the phrase "for political purposes," we conclude that in order to meet the statutory definition of "committee," a committee must engage in express advocacy and its functional equivalent. This conclusion is fatal to the special prosecutor's subcommittee theory because he does not allege that the Unnamed Movants engaged in express advocacy. Put simply, because the Unnamed Movants did not engage in express advocacy, they could not be considered a "committee" subject to Chapter 11's regulation.

¶73 The special prosecutor's second theory of illegal coordination is that the coordinated issue advocacy should have been reported as "in-kind contributions" by the candidate's committee. This "in-kind contribution" theory rests on the assumption that any issue advocacy engaged in by the Unnamed Movants was done for the benefit of the candidate and therefore should have been reported. Once again, the special prosecutor's theory fails.

¶74 An "in-kind contribution" is defined in the GAB's regulations as "a disbursement by a contributor to procure a thing of value or service for the benefit of a registrant who authorized the disbursement." GAB 1.20(1)(e) (emphasis added). By its plain language, the definition of an in-kind contribution depends on the making of a "disbursement." As a result of the limiting construction of "political purposes," there can be no "disbursement" under Chapter 11, or the corresponding regulations, without express advocacy or its functional equivalent. Even assuming that the special prosecutor is correct and the Unnamed Movants engaged in issue advocacy at the specific request of the candidate or the candidate's committee, those actions do not give rise to a reportable "in-kind contribution" because under Ch. 11 issue advocacy cannot be a "disbursement."

¶75 In sum, we hold that, consistent with the First Amendment to the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague because its language "is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Janssen, 219 Wis. 2d at 374. However, there is a readily available limiting construction that will prevent the chilling of otherwise protected speech, and we hold that "political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley and WRTL II. With this limiting construction in place, Chapter 11 does not regulate the alleged conduct of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is "beyond the reach of the regulatory scheme." Barland II, 751 F.3d at 815. Accordingly, we grant the relief requested by the Unnamed Movants.

¶76 To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IV. SCHMITZ V. PETERSON

¶77 We turn now to the second case presented for our review, Schmitz v. Peterson. This case is before us on petitions to bypass the court of appeals filed by the Unnamed Movants. In this case, the special prosecutor seeks a supervisory writ in order to reverse Reserve Judge Peterson's decision to quash the subpoenas and search warrants issued by Reserve Judge Kluka. The specific issue presented is whether the evidence gathered in the John Doe proceedings provide a reasonable belief that Wisconsin's campaign finance law was violated by a campaign committee's coordination with independent advocacy organizations.

¶78 We hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.

A. Standard of Review

¶79 The decisions of John Doe judges "are not subject to direct appeal" to the court of appeals "because an order issued by a John Doe judge is not an order of a 'circuit court' or a 'court of record.'" In re John Doe Proceeding, 2003 WI 30, ¶¶23, 41, 260 Wis. 2d 653, 660 N.W.2d 260. Nonetheless, a party may seek review of a John Doe judge's actions "pursuant to a petition for supervisory writ." Id., ¶41; see also Wis. Stat. § 809.51(1).

¶80 It is well settled that "[a] writ of supervision is not a substitute for an appeal." Kalal, 271 Wis. 2d 633, ¶17 (quotations omitted). In order to prevail on a supervisory writ, the petitioner must prove the following: "(1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will result; (3) the duty of the trial court is plain and it must have acted or intends to act in violation of that duty; and (4) the request for relief is made promptly and speedily." Id. (quoting Burnett v. Alt, 224 Wis. 2d 72, 96-97, 589 N.W.2d 21 (1999)) (emphasis added). "A plain duty 'must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.'" Id., ¶22 (quoting State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 377–78, 166 N.W.2d 255 (1969)).

¶81 "A supervisory writ 'is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency.'" Id., ¶17 (citation omitted). The obligation of a judge to correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure, "as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." Id., ¶24. Instead,

[t]he obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system. The supervisory writ, however, serves a narrow function: to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process. To adopt [a contrary] interpretation of the plain duty requirement in supervisory writ procedure would transform the writ into an all-purpose alternative to the appellate review process.

Id. (emphasis added) (citations omitted).

B. Nature of John Doe Proceedings

¶82 Before analyzing Reserve Judge Peterson's decision to quash the subpoenas and search warrants, it is necessary for us to provide background regarding the proper conduct of John Doe proceedings, which have been in use in Wisconsin since its days as a territory. In re Doe, 317 Wis. 2d 364, ¶13. This discussion is necessary to educate the public on the nature of this important investigatory tool, and also to provide guidance to the lower courts on the proper conduct of John Doe proceedings.

¶83 Wisconsin's John Doe proceeding, codified in Wis. Stat. § 968.26, serves two important purposes. State ex rel. Reimann v. Circuit Court for Dane Cnty., 214 Wis. 2d 605, 621, 571 N.W.2d 385 (1997). "First, and most obvious, a John Doe proceeding is intended as an investigatory tool used to ascertain whether a crime has been committed and if so, by whom. Second, the John Doe proceeding is designed to protect innocent citizens from frivolous and groundless prosecutions." Id. (citations omitted). In order to fulfill the dual purposes of the John Doe statute, a John Doe judge

serves an essentially judicial function. The judge considers the testimony presented. It is the responsibility of the John Doe judge to utilize his or her training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause. It is the judge's responsibility to ensure procedural fairness.

State v. Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978) (footnote omitted).

¶84 "Wisconsin Stat. § 968.26 outlines a four-step process for John Doe proceedings." In re Doe, 317 Wis. 2d 364, ¶14. "First, the judge must determine whether a complainant has alleged 'objective, factual assertions sufficient to support a reasonable belief that a crime has been committed.'" Id. (citation omitted). Second, if the complainant meets this burden, "the judge must proceed with a hearing at which 'the judge shall examine the complainant under oath and any witnesses produced by him or her.'" Id., ¶15 (quoting Wis. Stat. § 968.26 (2007-08)). Third, when this hearing is over, "a judge must determine whether probable cause exists as to each essential element of the alleged crime." Id., ¶16. "Finally, if the judge determines that probable cause is present—that is, that a crime probably has been committed—and who the perpetrator of the alleged crime is, the judge may order that a criminal complaint be reduced to writing . . . ." Id., ¶17. This process gives a John Doe judge "broad discretion to decide whether to file a criminal complaint, even upon a finding of probable cause." Id.

¶85 In order to commence a John Doe proceeding, the complainant, whether it be the district attorney or anyone else, must demonstrate to the John Doe judge "that he has reason to believe that a crime has been committed within the jurisdiction." State v. Doe, 78 Wis. 2d 161, 165, 254 N.W.2d 210 (1977). If "the judge finds that the complainant has failed to establish 'reason to believe[]' [that a crime has been committed,] that judge may deny the John Doe petition without conducting an examination." Reimann, 214 Wis. 2d at 625. Thus, the John Doe judge must act as a gate-keeper and screen out "petitions that are spurious, frivolous, or groundless." Id. at 624. "In determining whether the petition is worthy of further treatment, a circuit court judge [presiding over a John Doe proceeding] must act as a neutral and detached magistrate." Id. at 625 (emphasis added).

¶86 Therefore, from the earliest stages of the proceeding, to the conclusion of the investigation, "[t]he proceedings of the John Doe are constantly under the scrutiny of a judge." Doe, 78 Wis. 2d at 165. The John Doe judge does not act as "chief investigator" or as a mere arm of the prosecutor. Washington, 83 Wis. 2d at 823. Rather, the John Doe judge serves as a check on the prosecutor and on the complainant to ensure that the subject(s) of the investigation receive(s) due process of law. See Doe, 78 Wis. 2d at 164-65.

¶87 In this way, Wisconsin's John Doe proceeding is very different than a grand jury, and when conducted appropriately, provides much greater protections to the target of an investigation. Id. at 165. This is due in no small part to the role played by the John Doe judge, which is to ensure that the investigation stays focused on the conduct alleged in the petition to commence the John Doe proceeding. Washington, 83 Wis. 2d at 841-42. Further,

[a]nyone familiar with the functions of the grand jury or who has dealt with it knows the hazards of a run-away grand jury, which can go beyond the restraints of the prosecutor, the executive, or of the judiciary. Such hazards do not exist in the Wisconsin John Doe. While John Doe proceedings can be abused, the document produced by a John Doe does not ipso facto force the defendant to trial. The complaint which emanates from it is issued under the aegis of a judge but nevertheless must subsequently stand the scrutiny of an open court inspection in an adversary proceeding at the preliminary examination as a prerequisite to the filing of an information, arraignment, and trial.

Doe, 78 Wis. 2d at 170-71. Thus, "[a] John Doe proceeding . . . serves both as an inquest into the discovery of crime and as a screen to prevent 'reckless and ill-advised' prosecutions." Reimann, 214 Wis. 2d at 621 (citation omitted).

¶88 The text of the John Doe statute gives the John Doe judge broad powers. Within his discretion, the John Doe judge is able to determine the extent of the investigation and whether the investigation is conducted in secret. Wis. Stat. § 968.26(3).[24] We have long recognized the need for secrecy in John Doe proceedings and have identified several reasons that justify such secrecy. Cummings, 199 Wis. 2d at 736.

These include: (1) keeping knowledge from an unarrested defendant which could encourage escape; (2) preventing the defendant from collecting perjured testimony for the trial; (3) preventing those interested in thwarting the inquiry from tampering with prosecutive testimony or secreting evidence; (4) rendering witnesses more free in their disclosures; and (5) preventing testimony which may be mistaken or untrue or irrelevant from becoming public.

Id. These reasons illustrate how important a John Doe proceeding can be as an investigative tool. The secrecy orders available to a John Doe proceeding serve to protect the integrity of the investigation.[25] Such orders help encourage witnesses who may be reluctant or fearful to testify by keeping their testimony secret. The secrecy of a John Doe investigation also protects innocent targets of the investigation by preventing the disclosure of "testimony which may be mistaken or untrue." Id.

¶89 Consistent with this broad authority, "[t]he John Doe judge should act with a view toward issuing a complaint or determining that no crime has occurred." Washington, 83 Wis. 2d at 823. Accordingly, the scope of any John Doe investigation "is essentially limited to the subject matter of the complaint upon which the John Doe is commenced." Id. at 822; see also In re Doe, 317 Wis. 2d 364, ¶23. "The John Doe judge has no authority to ferret out crime wherever he or she thinks it might exist." Washington, 83 Wis. 2d at 822 (emphasis added). This final limitation is crucial to the fair administration of a John Doe proceeding. Without it, John Doe proceedings could easily devolve into judicially sanctioned general warrants.

¶90 The purpose of the Fourth Amendment to the United States Constitution[26] and of Article I, Section 11 of the Wisconsin Constitution[27] "was to abolish searches by general warrants, which authorized searches in any place or for any thing." State ex rel. City of Milwaukee v. Newman, 96 Wis. 258, 267, 71 N.W. 438 (1897). Such general warrants, also known as Writs of Assistance, "were used in the American colonies to search wherever government officials chose with nearly absolute and unlimited discretion." State v. Tye, 2001 WI 124, ¶8, 248 Wis. 2d 530, 636 N.W.2d 473. "These early warrants lacked specificity and allowed government officers in the late eighteenth century to enter homes, shops, and other places, and in the event the officers encountered resistance, they could break down doors and forcibly search closed trunks and chests." In re John Doe Proceeding, 2004 WI 65, ¶36, 272 Wis. 2d 208, 680 N.W.2d 792. To combat such unchecked power, the Fourth Amendment requires reasonable searches and mandates that warrants "particularly describ[e] the place to be searched." U.S. Const. amend. IV.

¶91 Reasonableness and particularity are not just requirements of search warrants, however. Subpoenas issued by courts, and by extension John Doe judges, must also satisfy these requirements of the Fourth Amendment. In re John Doe Proceeding, 272 Wis. 2d 208, ¶38. A John Doe proceeding, with its broad investigatory powers, must never be allowed to become a fishing expedition.

¶92 It is difficult, if not impossible, to overstate the importance of the role of the John Doe judge. If he does not conduct the investigation fairly, as a neutral and detached magistrate, the risk of harm to innocent targets of the investigation-and we remain mindful that all such targets are presumed innocent-is too great. Through the use of a John Doe proceeding, "law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness." Washington, 83 Wis. 2d at 822-23. Such powers, if not wielded with care and skill may serve to transform a John Doe proceeding into an implement of harassment and persecution by a vengeful or unethical prosecutor. Thus, John Doe judges must be mindful of this danger and zealously guard the rights of all citizens against over-reach.

¶93 The foregoing discussion emphasizes that John Doe proceedings are a necessary investigative tool "to 'ascertain whether [a] crime has been committed and by whom.'" Cummings, 199 Wis. 2d at 736 (quoting Wolke v. Fleming, 24 Wis. 2d 606, 613, 129 N.W.2d 841 (1964)). John Doe proceedings have been utilized in Wisconsin since it was a territory and have no doubt served our state well. But the simple fact that the John Doe proceeding has a long and near constant use should not blind us to the potential for abuse. We must be mindful of the purpose of the John Doe proceeding and why it was originally instituted. This purpose was aptly explained by this court more than 125 years ago:

When this statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so. This was found to be a very unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them. The law delights as much in the protection of the innocent as in the punishment of the guilty. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion. . . .  'Our statute is framed so as to exclude in a great measure the abuses to which such a practice might lead, and undoubtedly was designed to throw the duty of judging, in this respect, entirely upon the magistrate. It should not regard mere allegations of suspicion, but the grounds of the suspicion-the facts and circumstances-must be laid before him, and these should be sufficient to make it appear that a crime has been actually committed, and that there is probable cause for charging the individual complained of therewith.'

State v. Keyes, 75 Wis. 288, 294-95, 44 N.W. 13 (1889) (citations omitted).

¶94 In sum, Wis. Stat. § 968.26 grants John Doe judges broad authority to conduct an investigation into alleged crimes. A John Doe judge is also given "those powers necessary" to carry out this duty. Cummings, 199 Wis. 2d at 736. Nevertheless, "[a]s to all aspects of the conduct of the judicial function, the [John Doe] judge is the governor of the proceedings, and as such is responsible for maintaining the good order, dignity, and insofar as it is compatible with the administration of justice, efficiency of those proceedings." In re Doe, 317 Wis. 2d 364, ¶22. This duty applies with equal force in all John Doe proceedings, regardless of the target's station in life, or the crime alleged, be it drug trafficking in the inner city, malfeasance in the corporate boardroom, or corruption in the halls of government.

C. Reserve Judge Peterson Did Not Violate a Plain Legal Duty When He Quashed the Subpoenas and Search Warrants Issued in This Case.

¶95 As is clear from the above discussion, John Doe judges are given enormous discretion to control the scope and conduct of a John Doe proceeding. With this important point in mind, we now turn to the specific issue before us: whether Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all seized property. He did not.

¶96 "A plain duty 'must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.'" Kalal, 271 Wis. 2d 633, ¶22 (quoting Kurkierewicz, 42 Wis. 2d at 377–78). Although a supervisory writ is the proper vehicle for the special prosecutor to seek review of Reserve Judge Peterson's decision, the writ procedure serves a very narrow function which is distinct from the normal appellate process. Id., ¶24. The purpose of a supervisory writ is "to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process." Id. (emphasis added).

¶97 Here, the special prosecutor argues that Reserve Judge Peterson failed to comply with his duty to correctly apply the law and erroneously concluded that Wisconsin campaign finance law does not regulate the Unnamed Movants' alleged conduct. The special prosecutor essentially argues that Reserve Judge Peterson misapplied the law and prematurely ended the John Doe investigation. This argument misses the point of the supervisory writ procedure and asks us to adopt a standard of review that we explicitly rejected in Kalal. See id., ¶¶23-24 ("In essence, the Kalals argue that the judge . . . has a plain duty to correctly find facts and apply the law. We cannot accept this proposition, as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law."). As was the case in Kalal, if we were to adopt the special prosecutor's understanding of a plain legal duty, we "would transform the writ into an all-purpose alternative to the appellate review process." Id., ¶24. This we will not do.

¶98 A John Doe judge is given the discretion to determine the extent of the investigation. Wis. Stat. § 968.26(3). In doing so, he or she "should act with a view toward issuing a complaint or determining that no crime has occurred." Washington, 83 Wis. 2d at 823. In his decision to quash the subpoenas and search warrants, Reserve Judge Peterson concluded that the subpoenas and search warrants do not provide a reasonable belief that the Unnamed Movants "committed any violations of the campaign finance laws." Reserve Judge Peterson further concluded that "[t]he State is not claiming that any of the independent organizations expressly advocated.[28] Therefore the subpoenas[29] fail to show probable cause that a crime was committed." In a subsequent order granting a stay of his decision to quash, Reserve Judge Peterson clarified that, although he mistakenly phrased his decision in the context of whether the subpoenas showed probable cause, the subpoenas and search warrants were premised "on an invalid interpretation of the law. That . . . was the underlying problem with the subpoenas."[30]

¶99 Reserve Judge Peterson's decision is consistent with his discretion to determine the extent of the John Doe investigation. In addition, "[i]t is within the discretion of the trial court to quash a subpoena." State v. Horn, 126 Wis. 2d 447, 456, 377 N.W.2d 176 (Ct. App. 1985), aff'd, 139 Wis. 2d 473, 407 N.W.2d 854 (1987). Because supervisory writs are not appropriate vehicles to review a judge's discretionary acts, see Kalal, 271 Wis. 2d 633, ¶24, the special prosecutor has failed to show that Reserve Judge Peterson violated a plain legal duty by quashing the subpoenas and search warrants. Therefore, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.[31]

V. THREE UNNAMED PETITIONERS

¶100 Finally, we turn to Three Unnamed Petitioners, in which the Unnamed Movants appeal an opinion and order of the court of appeals denying their petition for a supervisory writ. This case requires us to determine whether either Reserve Judge Kluka or Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor.[32]

¶101 We affirm the decision of the court of appeals and deny the Unnamed Movants' petition for a supervisory writ. We hold that the Unnamed Movants have not met the burden of proof required for a supervisory writ. Specifically, they have not established that either Reserve Judge Kluka or Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. "The obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system." Kalal, 271 Wis. 2d 633, ¶24. The Unnamed Movants' argument does not fit the purpose of a supervisory writ, which requires a "clear and unequivocal" duty to act on the part of the judge. Id., ¶22. If we were to adopt the Unnamed Movants' argument, we "would transform the writ into an all-purpose alternative to the appellate review process." Id., ¶24. Because the Unnamed Movants have not identified a violation of a plain legal duty, their petition for a supervisory writ is denied.

A. Standard of Review

¶102 "[T]he authority of both judges and prosecutors in a John Doe proceeding[] . . . are questions of statutory interpretation which this court reviews de novo without deference to the circuit court or court of appeals." Cummings, 199 Wis. 2d at 733. Thus, "[w]hether a John Doe judge has exceeded his or her powers is a question of law that this court determines independently." State ex rel. Individual Subpoenaed to Appear at Waukesha Cnty. v. Davis, 2005 WI 70, ¶17, 281 Wis. 2d 431, 697 N.W.2d 803 (citing Cummings, 199 Wis. 2d at 733).

¶103 For a supervisory writ to issue, the petitioner for the writ must establish that: "(1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will result; (3) the duty of the trial court is plain and it must have acted or intends to act in violation of that duty; and (4) the request for relief is made promptly and speedily." Kalal, 271 Wis. 2d 633, ¶17 (emphasis added).

¶104 A "'writ of supervision is not a substitute for an appeal.'" Id. (citation committed). "A supervisory writ 'is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency.'" Id. (citation omitted).

¶105 Although a court exercises its discretion in deciding whether or not to issue a writ, "[t]he exercise of that discretion often involves . . . resolving questions of law in order to determine whether the circuit court's duty is plain." State ex rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008 WI App 120, ¶9, 313 Wis. 2d 508, 756 N.W.2d 573. "A plain duty 'must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.'" Kalal, 271 Wis. 2d 633, ¶22 (citation omitted). The obligation of a judge to correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure, "as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." Id., ¶24; see also supra ¶80.

¶106 Consequently, for a writ to issue in this case, the Unnamed Movants must demonstrate that the John Doe judges violated a plain legal duty, either in accepting an appointment as a reserve judge, in convening a John Doe proceeding over multiple counties, or in appointing a special prosecutor.

B. The Unnamed Movants Have Failed to Prove the Violation of a Plain Legal Duty.

i. No Violation of a Plain Legal Duty Occurred in the Appointment and Assignment of Reserve Judge Kluka or Reserve Judge Peterson to Preside Over a Multi-County John Doe Proceeding.

¶107 We first discuss whether Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty either in accepting an appointment as a reserve judge or in convening a multi-county John Doe proceeding. We hold that the Unnamed Movants failed to prove that Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by accepting an appointment as a reserve judge or in convening a John Doe proceeding over multiple counties.

1. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in Accepting Her Appointment as a Reserve Judge.

¶108 We begin our discussion of this issue by explaining the distinction between the appointment and assignment of a reserve judge. A former judge is appointed to be a reserve judge by the Chief Justice. Once a former judge has been appointed to be a reserve judge then that reserve judge can be assigned to a particular case or to a particular circuit court calendar.

¶109 The Director of State Courts has the power to assign reserve judges, but he does not have the power to appoint reserve judges. See SCR 70.10[33]; SCR 70.23.[34] The Chief Justice is the sole individual with the power to both appoint and assign reserve judges. See Wis. Const. art. VII, § 24(3)[35]; Wis. Stat. § 753.075[36]; SCR 70.23(1).[37]

¶110 The relevant orders in the record state that Reserve Judge Kluka was assigned, not appointed, to serve as the John Doe judge in each of the five counties. Once the Milwaukee County District Attorney's Office filed a petition for the commencement of a John Doe proceeding in Milwaukee County, Chief Judge Kremers "assigned and forwarded" the petition to "Reserve Judge Kluka" on August 23, 2012. Thereafter, on September 5, 2012, the Director of State Courts, with then-Chief Justice Shirley Abrahamson's name directly above, assigned Reserve Judge Kluka to preside over the matter using a form titled "Application and Order for Specific Judicial Assignment." The actions taken by Chief Judge Kremers and the Director of State Courts suggest that Kluka possessed reserve judge status at the time her assignments were made. However, nothing in the record definitively establishes that the then-Chief Justice had previously appointed Kluka as a reserve judge.

¶111 The absence of a record on this point is very likely because no one disputes that Kluka was lawfully appointed as a reserve judge. Indeed, the Unnamed Movants do not challenge Reserve Judge Kluka's authority to preside over the Milwaukee County John Doe proceeding. Rather, according to the Unnamed Movants, "the problem arose later, when the Director of State Courts extended that [assignment] to four more counties in one functionally-consolidated proceeding or investigation." In fact, in their reply brief, the Unnamed Movants state "the core issue is not who appointed a reserve judge: it is whether the five-county structure is lawful at all." Because the Unnamed Movants have failed to show that Reserve Judge Kluka was not lawfully appointed, it follows that they have failed to prove that she violated a plain legal duty in accepting her appointment as a reserve judge.

2. Reserve Judge Peterson Did Not Violate a Plain Legal Duty in Accepting His Appointment as a Reserve Judge.

¶112 Similarly, the Unnamed Movants also have failed to meet their burden with respect to Reserve Judge Peterson. On October 29, 2013, Chief Judge Kremers assigned Reserve Judge Peterson to serve as the John Doe judge in Milwaukee County, after Reserve Judge Kluka withdrew, in an order titled: "REASSIGNMENT AND EXCHANGE." The document also states: "Reassigned to Reserve Judge Gregory A. Peterson according to the rules." See SCR 70.23 (providing that the chief judge can request the assignment of a reserve judge by the Director of State Courts). As explained above, only the Chief Justice has the authority to appoint reserve judges.

¶113 Similar to the issue with Reserve Judge Kluka, the Unnamed Movants do not question Reserve Judge Peterson's authority to preside over the Milwaukee County John Doe proceeding. Their contention is that it was unlawful for Reserve Judge Peterson to accept assignment to four more counties "in one functionally-consolidated proceeding or investigation." Because the Unnamed Movants have failed to show that Reserve Judge Peterson was not lawfully appointed, they have failed to prove that Reserve Judge Peterson violated a plain legal duty in accepting his appointment as a reserve judge.

3. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in Convening a Multi-County John Doe Proceeding.

¶114 The Unnamed Movants contend that no one may appoint or assign a reserve judge to serve as a John Doe judge simultaneously in five counties. The Unnamed Movants argue that "the question properly is not whether anything in the enabling statute 'prevents' or 'prohibits' what happened here. The right question is whether anything in the statutes permits what happened here." The Unnamed Movants emphatically state that "[t]he answer to that question is no." However, in examining this issue, we look to whether the John Doe statute clearly prohibits the procedural posture of this John Doe investigation. The answer is no.

¶115 Pursuant to Wis. Stat. § 968.26(1)[38] five separate John Doe proceedings were initiated by the district attorneys of the five counties; however, it was for one investigation conducted by a special prosecutor. The investigation was expanded because the initial investigation in Milwaukee County suggested that persons residing in four additional counties could be involved with potential campaign finance violations and Wis. Stat. § 978.05(1) provides that a district attorney shall:

[p]rosecute all criminal actions before any court within his or her prosecutorial unit and have sole responsibility for prosecution of all criminal actions arising from violations of chs. 5 to 12 . . . that are alleged to be committed by a resident of his or her prosecutorial unit. . . .

See also Wis. Stat. §§ 971.19(11)-(12) (providing that the venue for a criminal proceeding under campaign finance laws shall be the county of the defendant's residence unless the defendant chooses to be tried in the county where the crime occurred). The Director of State Courts, with then-Chief Justice Shirley Abrahamson's name directly above, then executed five separate orders assigning Reserve Judge Kluka to preside over the five separate proceedings. While these five separate proceedings are a single investigation, they have not been consolidated. Rather, the John Doe proceedings at issue have merely been running parallel to one another.

¶116 Nothing in the John Doe statute prohibits the initiation of five parallel John Doe proceedings. Put another way, nothing in the John Doe statute explicitly told Reserve Judge Kluka that she could not preside over five John Doe proceedings. To initiate a John Doe proceeding, a district attorney must simply make the request, which is exactly what happened here. See Wis. Stat. § 968.26(1). Because nothing in the John Doe statute expressly prohibits the initiation of five parallel John Doe proceedings concerning a single investigation, we cannot conclude that Reserve Judge Kluka violated a plain legal duty in convening the five separate proceedings. As such, a supervisory writ cannot issue.

¶117 The Unnamed Movants argue that they have shown a violation of a plain legal duty. They argue that "[t]he investigation was constituted in direct contravention of Wisconsin statutes and without authority. The John Doe judge . . . had a plain duty to comply with Wisconsin statutes in the conduct of a statutorily-constituted investigation." We rejected an identical argument in Kalal.

¶118 In Kalal, a circuit court judge ordered that a criminal complaint be brought against the Kalals under Wis. Stat. § 968.02(3), which allows a circuit judge to order a criminal complaint be issued if a district attorney "refuses" to issue a complaint. Kalal, 271 Wis. 2d 633, ¶¶12-13. The Kalals argued that "the circuit judge has a plain duty to correctly determine the presence of this threshold refusal before authorizing the issuance of a criminal complaint." Id., ¶23. We held that this argument failed to establish the violation of a plain legal duty. "To the extent that a circuit judge's decision to permit the filing of a complaint under Wis. Stat. § 968.02(3) is legally or factually unsupported, the defendant . . . may seek its dismissal in the circuit court after it has been filed, and may pursue standard appellate remedies thereafter." Id., ¶25. "But the statutory prerequisite that the judge find a refusal to prosecute by the district attorney does not impose upon the circuit judge a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ." Id.

¶119 We explained that, "[i]n essence, the Kalals argue that the judge sitting ex parte in a hearing under Wis. Stat. § 968.02(3) has a plain duty to correctly find facts and apply the law." Id., ¶23. "We cannot accept this proposition, as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." Id., ¶24. "The obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system." Id. "The supervisory writ, however, serves a narrow function: to provide for the direct control of lower courts . . . [that] fail to fulfill non-discretionary duties . . . ." Id. (citations omitted). "To adopt the Kalals' interpretation of the plain duty requirement in supervisory writ procedure would transform the writ into an all-purpose alternative to the appellate review process." Id.

¶120 The Unnamed Movants have not identified a "plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ." Id., ¶25. In this supervisory writ action, the Unnamed Movants must do more than point out the fact that the statutes do not explicitly authorize the commencement of parallel John Doe proceedings in multiple counties. Further, they must do more than argue that five parallel investigations and proceedings were "implicitly" prohibited by the statute. They must show that by commencing five parallel John Doe proceedings Reserve Judge Kluka violated a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ. They have not even tried to make such a showing.

¶121 We understand the Unnamed Movants' concerns and agree that the kind of multi-county investigation that occurred here does raise serious questions. Typically, statewide or multi-county investigations are conducted by the Attorney General or by the GAB. See Wis. Stat. §§ 165.50(1) (Attorney General), 5.05 (Government Accountability Board). However, Wis. Stat. § 968.26 is silent as to whether a John Doe judge can preside over a multi-county John Doe. It is axiomatic that silence on the point does not (and cannot) result in the creation of a plain legal duty. Here, Reserve Judge Kluka and the special prosecutor initially ran the investigation and proceeding out of a single post office box in Milwaukee controlled by the special prosecutor. They also put the case names and numbers of all five proceedings on every search warrant, subpoena, and order. However, the concerns expressed by the Unnamed Movants are more properly addressed to the legislature, not a court in a supervisory writ petition. Should the legislature wish to prohibit multi-county John Does, it is free to do so. We, however, cannot "transform the writ into an all-purpose alternative to the appellate review process" or announce new rules for future cases as part of that process. Kalal, 271 Wis. 2d 633, ¶24. To do so would be an instance of judicial overreach incompatible with the nature and purpose of a supervisory writ.

¶122 Therefore, we hold that Reserve Judges Kluka and Peterson did not violate a plain legal duty by: (1) accepting an appointment as a reserve judge; or (2) convening a multi-county John Doe proceeding, and thus we deny the Unnamed Movants' petition for a supervisory writ.

ii. Reserve Judge Kluka Did Not Violate a Plain Legal Duty by Appointing Francis Schmitz to be the Special Prosecutor.

¶123 We now turn to whether Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor, and if so, what effect that would have on the court and special prosecutor's competency. We conclude that the Unnamed Movants have failed to prove that Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor.

1. Under Carlson, Reserve Judge Kluka Reasonably Concluded that She Had the Authority to Appoint the Special Prosecutor on Her Own Motion.

¶124 In appointing the special prosecutor Reserve Judge Kluka relied, in part, on Carlson.[39] Carlson concerned a court's statutory authority to appoint a special prosecutor under Wis. Stat. § 978.045.[40] In Carlson, the court of appeals explained that the plain language of the special prosecutors statute "authorizes two distinct ways in which a court may appoint a special prosecutor." Carlson, 250 Wis. 2d 562, ¶8. The first is on the court's own motion. Id. The second is at the request of a district attorney. Id. Where the appointment is on the court's own motion, the court of appeals interpreted Wis. Stat. § 978.045(1r) as giving a court "unfettered authority" to make the appointment, as long as the court entered an order "stating the cause therefor." Id., ¶¶ 5, 9 (quotation omitted) ("In short, if a court makes a special prosecutor appointment on its own motion, it is constrained only in that it must enter an order in the record stating the cause for the appointment."). "[A]ny restriction, if one exists, is triggered only when the appointment is made at the request of a district attorney, not when the appointment is made by a court on its own motion." Id., ¶8.

¶125 Carlson thus concluded that a court need satisfy only one of the nine conditions listed under Wis. Stat. § 978.045(1r) when the district attorney requests the appointment of a special prosecutor, but when the court makes the appointment on its own motion, it need only enter an order stating the cause therefor. "A plain reading of the statute tells us that when a court makes this appointment on its own motion, all that is required of the court is that it enter an order in the record 'stating the cause therefor.'" Id., ¶9 (quoting Wis. Stat. § 978.045(1r) (1999-2000) which addresses, in part, John Doe proceedings and a John Doe judge's ability to appoint a special prosecutor for such proceedings).

¶126 Reserve Judge Kluka relied on Carlson to appoint, on her own motion, the special prosecutor. Thus, in order to justify the appointment under Carlson, Reserve Judge Kluka was simply required to enter an order "stating the cause therefor," which is exactly what she did in citing concerns of efficiency and the appearance of impropriety.

¶127 We note that Carlson is problematic to the point of being suspect. This is so because Carlson disregards the fact that one of the nine conditions enumerated under Wis. Stat. § 978.045(1r) must exist for the appointment of a special prosecutor, regardless of whether the appointment is made on the court's own motion or at the district attorney's request. The Carlson court's failure to import this language from the governing statute is an inexplicable-and very likely fatal-defect in its holding. While we agree with the Unnamed Movants' interpretation of Wis. Stat. § 978.045, we do not take the ultimate step of overruling Carlson because to do so would go further than the supervisory writ allows.[41] Simply put, despite Carlson's questionable validity we cannot reasonably conclude that Reserve Judge Kluka violated a plain legal duty in making the appointment.

¶128 The issue presented also asks whether Reserve Judge Kluka violated a plain legal duty in making the special prosecutor appointment where no charges have yet been issued; where the district attorney in each county has not refused to continue the investigation or prosecution of any potential charge; and where no certification that no other prosecutorial unit was able to do the work for which the special prosecutor was sought was made to the Department of Administration. Again, Carlson gave the John Doe judge "unfettered authority" to appoint the special prosecutor, so the absence of these additional circumstances does not demonstrate that Reserve Judge Kluka violated a plain legal duty in making the appointment.

2. Reserve Judge Kluka Also Relied on Her Inherent Authority in Appointing the Special Prosecutor.

¶129 Reserve Judge Kluka also stated that she appointed the special prosecutor pursuant to her "inherent authority" under Cummings. The relevant issue in Cummings was whether a John Doe judge has the ability to seal a search warrant. Id. at 733. There the defendant argued that no statutory authority conferred such power on John Doe judges. In rejecting the defendant's argument, we reasoned:

[A] John Doe judge has been granted jurisdiction, the legal right to exercise its authority, pursuant to Wis. Stat. § 968.27. A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate. The statutory jurisdiction of a John Doe judge has been defined as the authority of the judge to conduct a John Doe investigation [in order to ascertain whether a crime has been committed and by whom]. . . . The ability to seal a search warrant is exactly that type of power which a John Doe judge needs to fulfill [that] jurisdictional mandate.

Id. at 736-37. Thus, while Cummings did not specifically address a John Doe judge's inherent authority to appoint a special prosecutor, it provides broad language supporting the idea that a John Doe judge possesses inherent authority where it is necessary to facilitate its jurisdictional mandate. Stated otherwise, a John Doe judge's inherent authority is limited to what is necessary to enable the judge to properly conduct a John Doe proceeding. State ex rel. Individual Subpoenaed, 281 Wis. 2d 431, ¶26; see In re John Doe Proceeding, 272 Wis. 2d 208, ¶10.

¶130 The Unnamed Movants argue that the only cases invoking a court's inherent authority to appoint a special prosecutor have arisen after charges have been filed. See, e.g., State v. Lloyd, 104 Wis. 2d 49, 56-57, 310 N.W.2d 617 (Ct. App. 1981). We agree, but that is because no court has addressed whether a John Doe judge has inherent authority to appoint a special prosecutor, which necessarily occurs before charging. That there is an absence of case law addressing whether a John Doe judge has inherent authority to appoint a special prosecutor does not necessarily mean the John Doe judge in this case violated a plain legal duty in doing so.[42]

¶131 Arguably, the broad language in Cummings could be used to support Reserve Judge Kluka's actions in this case. Because no law expressly prohibits a John Doe judge from exercising his inherent authority to appoint a special prosecutor, the Unnamed Movants cannot prove that Reserve Judge Kluka violated a plain legal duty in exercising that authority to appoint the special prosecutor.

¶132 Due to the existing precedent, Reserve Judge Kluka's legal duty was not plain, clear, and unequivocal with an imperative responsibility to act under the facts. Because the Unnamed Movants have not established that Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor, we deny their petition for a supervisory writ and affirm the court of appeals.[43]

VI. CONCLUSION

¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a "perfect storm" of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

A.

¶134 In Two Unnamed Petitioners, we hold that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article I, Section 3 of the Wisconsin Constitution because its language "'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'" Janssen, 219 Wis. 2d at 374 (quoting Bachowski, 139 Wis. 2d at 411). However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, that "political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley and WRTL II. With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is "beyond the reach of [Ch. 11]." Barland II, 751 F.3d at 815. Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

¶135 To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

B.

¶136 In Schmitz v. Peterson, we hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.

C.

¶137 Finally, in Three Unnamed Petitioners, we hold that the Unnamed Movants have failed to prove that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent standards of a supervisory writ. Put another way, if we were to grant the supervisory writ in this case, we would risk "transform[ing] the writ into an all-purpose alternative to the appellate review process," which we cannot do. Id. Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.

By the Court.—Declaration of rights; relief granted; John Doe investigation ordered closed in Two Unnamed Petitioners.

By the Court.—Petition for supervisory writ denied and order affirmed in Schmitz v. Peterson.

By the Court.—Petition for supervisory writ denied and decision affirmed in Three Unnamed Petitioners.

¶138 ANN WALSH BRADLEY, J., did not participate.

¶139 DAVID T. PROSSER, J.   (concurring). The court is confronted with three separate but overlapping cases related to a John Doe investigation involving [————————————————————————————————————————————————————————————————————————————————————], and a substantial number of organizations and individuals who are associates and political allies of [——————————————].

¶140 This is the second John Doe investigation initiated by the Milwaukee County District Attorney's Office that has focused on [——————————————] and [————] political circle. The present investigation concerns alleged campaign finance violations, but the scope of the investigation is sufficiently broad that it amounts to a fishing expedition into the lives, work, and thoughts of countless citizens.

¶141 For all practical purposes, the court has merged the two writ cases[44] into the original action[45] and invited the parties to submit briefs on all issues, even if an issue was not part of the party's original case.

¶142 The consolidated case presents at least 14 issues. Collectively they are complex and difficult. They also are important to the people of Wisconsin. Many of these issues are addressed in the majority opinion. I write separately to provide my own analysis and perspective on the following issues:

(1) Issues 4 and 5 related to the appointment of the special prosecutor.

(2) Issue 14 related to several search warrants. However, the record in this matter requires discussion of search warrants and subpoenas beyond the warrants identified in Issue 14.

(3) Issue 6 related to the application of Wis. Stat. § 11.26(13m) to contributions in recalls.

(4) Issues relating to several different provisions in Chapter 11 of the Wisconsin Statutes.

¶143 This concurring opinion discusses issues arising out of a John Doe investigation that is subject to multiple broad secrecy orders. Full adherence to these secrecy orders in their original breadth is impossible because full adherence would mean that the court could not acknowledge what the John Doe is about or discuss fully the numerous issues bearing on the scope, conduct, and propriety of the investigation.

¶144 "Secrecy of John Doe proceedings and the records thereof is not maintained for its own sake." State v. O'Connor, 77 Wis. 2d 261, 252 N.W.2d 671 (1977). Instead, "[t]he policy underlying secrecy is directed to promoting the effectiveness of the investigation. Therefore, any secrecy order 'should be drawn as narrowly as is reasonably commensurate with its purposes.'" State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶61, 260 Wis. 2d 653, 660 N.W.2d 260 (quoting O'Connor, 77 Wis. 2d at 286). In making determinations about the scope of a secrecy order, "[a] balance must be struck between the public's right to be informed about the workings of its government and the legitimate need to maintain the secrecy of certain John Doe proceedings." Id., ¶66.

¶145 It is important to protect the targets of a John Doe investigation when it is determined that they have not committed a crime. This protection extends to the identity of individual people as well as the content of their private communications and other records obtained in the course of the investigation. Here, there is no similar interest in protecting the actions of the John Doe judge or the special prosecutor. Because the majority orders the John Doe investigation "closed," it cannot be said that the continued secrecy of certain facts in this matter——the scope and nature of the investigation, search warrants, and subpoenas, for example——is necessary to protect the integrity of this or a future John Doe investigation. Accordingly, I conclude that discussion of these facts is not inconsistent with the secrecy order.

¶146 Thus, this concurring opinion does not name individuals or organizations, except the individuals and organizations who initiated and conducted the John Doe investigation. State and local government officials who initiate sweeping criminal investigations of Wisconsin citizens cannot expect to keep their conduct secret indefinitely, and appellate courts reviewing state and local government conduct do not provide the public with the full reasoning for their decisions if they are unwilling or unable to discuss the facts essential to these decisions. See majority op., ¶14 n.11, ¶88 n.25.

¶147 My interpretation of the secrecy order is essential to the discussion of certain procedural issues and is taken (1) after discussion with the court, (2) with knowledge that much information about the investigation has already been disclosed, and (3) with experience that additional disclosure in the future is likely.

¶148 In my view, all issues of law in this matter are subject to de novo review.

¶149 I join Section III of the majority opinion, and I concur in the result of Section IV. Although I agree with most of the discussion in Section IV, I would reach the result as a matter of law.

I

¶150 Scott Walker was elected governor of Wisconsin on November 2, 2010. He was sworn in as governor on January 3, 2011.

¶151 On February 14, 2011, Governor Walker proposed a Budget Repair Bill that was intended to deal with the state's fiscal situation for the remaining months of the 2009-2011 biennium and for the 2011-2013 biennium beginning on July 1, 2011. Legislation to implement the governor's plan was introduced in both the Senate and Assembly. The proposed legislation included provisions requiring additional public employee contributions for health care and pensions. The two bills also included provisions curtailing collective bargaining rights for most state and local public employees and making appropriations.

¶152 The history of this legislation——which became 2011 Wis. Act 10 (Act 10)——is discussed in State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, and Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337. See also Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640 (7th Cir. 2013).

¶153 Act 10 was highly controversial. Intense opposition in the legislature included more than 60 consecutive hours of debate in the Assembly and the departure of all 14 Democratic senators from the state for nearly a month to deprive the Senate of a sufficient quorum to pass the original bill. Public opposition to Act 10 included massive demonstrations at the Wisconsin State Capitol. The demonstrations were so large that they garnered national and international attention. There were many smaller demonstrations throughout Wisconsin.

¶154 After its passage, the Act 10 legislation was challenged in the Dane County Circuit Court on procedural grounds to prevent its publication as an act. It was later challenged again in both federal and state courts in an effort to invalidate several of its provisions on constitutional grounds. The main challenge to Act 10 was not resolved by this court until mid-2014. Madison Teachers, 358 Wis. 2d 1.

¶155 The introduction and passage of Act 10 also led to efforts (1) to defeat a supreme court justice in April 2011, producing an exceptionally close election and the first statewide candidate recount in Wisconsin history; (2) to recall 16 state senators in July and August 2011, nine of whom were forced to run for reelection; and (3) to recall the governor, lieutenant governor, and five state senators in June 2012. Four of the five senators had to run for reelection.

¶156 Two Republican state senators were defeated in 2011 and one Republican state senator was defeated in 2012. The latter election shifted control of the state senate to the Democrats. This was the second time in recent years that a recall election in Wisconsin shifted control of the state senate to the Democratic party.[46]

¶157 The John Doe investigation under review is ostensibly about alleged criminal activity by [——————————————], ——————————————————————], and [——————————] during the multiple recall elections described above. In an affidavit in support of the petition for the John Doe proceeding in August 2012, an investigator in the Milwaukee County District Attorney's office wrote:

3. The purposes and goals of this John Doe investigation would be to:

a. Determine the nature and extent of an agreement or understanding related to the solicitation by [————————————————————————————————], and [————————————————————————————], [——————————————————————————————————————————————————] in the 2011 and 2012 recall elections, for contributions to organizations regulated by Title 26 U.S.C. 501(c)4 contrary to Wisconsin Stats sec. 11.10(4), 11.26, 11.27 and 11.61(1)(b);

b. Determine whether the circumstances under which the solicitation and use of said campaign contributions were to circumvent the provisions of Wisconsin Stats sec. 11.26 and 11.27(1) by individuals and others identified above, for a criminal purpose in order to avoid the requirements of Wisconsin Stats. Sec. 11.06(1) and 11.27(1).

¶158 In fact, however, the Milwaukee County District Attorney's Office targeted [——————————————] circle for investigation before [——————————————————————], and it has framed the present investigation to include alleged campaign finance violations dating from 2009 through the 2012 recall elections.

¶159 Almost immediately after the introduction of Governor Walker's Budget Repair Bill, talk of his recall began to surface. However, because Walker was elected in 2010 and did not take office until January 3, 2011, he could not be recalled under the constitution until 2012 "after the first year of the term for which the incumbent was elected." Wis. Const. art. XIII, § 12. Consequently, Walker's opponents focused their attention in the short term on a pending race for the supreme court and the recall of eight Republican state senators elected in 2008: Robert Cowles (District 2); Alberta Darling (District 8); Sheila Harsdorf (District 10); Luther Olsen (District 14); Randy Hopper (District 18); Glenn Grothman (District 20); Mary Lazich (District 28); and Dan Kapanke (District 32). Formal recall efforts for these senators began on March 2, 2011.

¶160 Opponents of Governor Walker and the senators who voted for Act 10 succeeded in obtaining the required signatures to force recall elections for Senators Cowles, Darling, Harsdorf, Olsen, Hopper, and Kapanke. They failed to obtain sufficient signatures to force recall elections for Senators Grothman and Lazich.

¶161 Supporters of Governor Walker attempted to recall eight Democratic state senators, namely, Lena Taylor (District 4); Spencer Coggs (District 6); James Holperin (District 12); Mark Miller (District 16); Robert Wirch (District 22); Julie Lassa (District 24); Fred Risser (District 26); and Dave Hansen (District 30). Their formal efforts began as early as February 22 (District 12). They succeeded in obtaining the required number of signatures to force recall elections for Senators Holperin, Wirch, and Hansen. They failed to obtain sufficient signatures to force recall elections for Senators Taylor, Coggs, Miller, Lassa, and Risser.

¶162 In the 2011 recall elections, Senators Randy Hopper and Dan Kapanke were defeated. Senators Cowles, Darling, Harsdorf, Holperin, Olsen, Wirch, and Hansen were reelected.

¶163 Opponents of Governor Walker sought to recall Walker and Lieutenant Governor Rebecca Kleefisch and four Republican state senators, namely, Scott Fitzgerald (District 13); Van Wanggaard (District 21), Terry Moulton (District 23); and Pam Galloway (District 29), in 2012. Supporters of Governor Walker attempted to recall Senator Robert Jauch (District 25). Insufficient signatures were submitted to recall Senator Jauch. However, all the Republican targets faced recall elections in 2012, except Senator Galloway, who resigned on March 16, 2012. She was replaced by Representative Jerry Petrowski, who ran in the recall general election.

¶164 The timing of the recall elections in 2011 and 2012 was complicated by multiple different filing dates for recall petitions and a substantial number of primary elections. Recall petitions were filed with the Government Accountability Board (GAB) on April 1, 2011 (Senator Kapanke); April 7, 2011 (Senator Hopper); April 18, 2011 (Senator Olsen); April 19, 2011 (Senator Harsdorf); April 21, 2011 (Senators Darling, Holperin, Wirch, and Hansen); and April 25, 2011 (Senator Cowles).

¶165 Primary elections were held on July 12, 2011, in Senate Districts 2, 8, 10, 14, 18, and 32. Primary elections were held on July 19, 2011, in Districts 12 and 22.

¶166 In 2011 the recall general elections were held on July 19, 2011 (District 30); August 9, 2011 (Districts 2, 8, 10, 14, 18, and 32); and August 16, 2011 (Districts 12 and 22).

¶167 In 2012 the primary elections for governor, lieutenant governor, and the four senate seats in Districts 13, 21, 23, and 29 were held on May 8. The recall general elections were held on June 5, 2012. Senator Van Wanggaard was defeated. Governor Walker, Lieutenant Governor Kleefisch, and Senators Fitzgerald and Moulton were reelected. Representative Petrowski was elected as a Republican to succeed Senator Galloway.

¶168 The seemingly insignificant factual details of these multiple elections are important to show the unprecedented, unscheduled electoral activity in Wisconsin during 2011 and 2012, and to relate these multiple elections to Wisconsin campaign finance laws.

II

¶169 Wisconsin statutory law on recalls is contained primarily in Wis. Stat. § 9.10. This section is intended "to facilitate the operation of article XIII, section 12, of the [Wisconsin] [C]onstitution," Wis. Stat. § 9.10(7), which provides for the recall of "any incumbent elective officer after the first year of the term for which the incumbent was elected." Wis. Const. art. XIII, § 12.

¶170 "[A] petition for recall of an officer shall be signed by electors equal to at least 25% of the vote cast for the office of governor at the last election within the same district or territory as that of the officeholder being recalled." Wis. Stat. § 9.10(1)(b).

¶171 Wisconsin Stat. § 9.10(2) outlines the petition requirements, including the design of recall petition forms. Paragraph (2)(d) provides:

No petition may be offered for filing for the recall of an officer unless the petitioner first files a registration statement under s. 11.05(1) or (2) with the filing officer with whom the petition is filed. The petitioner shall append to the registration a statement indicating his or her intent to circulate a recall petition, the name of the officer for whom recall is sought and, in the case of a petition for the recall of a city, village, town, town sanitary district, or school district officer, a statement of a reason for the recall which is related to the official responsibilities of the official for whom removal is sought. . . .  The last date that a petition for the recall of an officer may be offered for filing is 5 p.m. on the 60th day commencing after registration. . . .  No signature may be counted unless the date of the signature is within the period provided in this paragraph.

¶172 Paragraph (2)(d) is significant in several respects. First, a recall effort cannot formally begin until a registration statement is filed under Wis. Stat. § 11.05(1) or (2). However, the organization of a recall campaign may begin much earlier than the date of registration, and the planners and organizers are not required to report any activity or expenditure to launch the campaign except expenditures by already-registered political committees.

¶173 Second, supporters of a recall campaign have 60 days after registration to circulate and file their recall petitions. However, organizers of the Scott Walker recall petition shrewdly selected Tuesday, November 15, 2011, to register their recall efforts. Under Wis. Stat. § 990.001(4)(a), which deals with how time is computed under the Wisconsin Statutes, the first day is excluded in counting the 60 days. Under Wis. Stat. § 990.001(4)(c), if the deadline for filing a document is on a day when the filing office is closed, the filing "may be done on the next succeeding day that is not a Sunday or a legal holiday." The Walker recall petition was due on January 14, 2012. However, January 14 was a Saturday, which meant that the petition did not have to be filed until Tuesday, January 17, because January 16 was a legal holiday (Martin Luther King's birthday). This gave the organizers 64 days to circulate and file the Walker, Kleefisch, Fitzgerald, Wanggaard, Moulton, and Galloway recall petitions.

¶174 Third, Wis. Stat. § 9.10(2)(b) makes plain that no stated reason is required to recall a state officer, as opposed to a local official.

¶175 Wisconsin Stat. § 9.10(3)(b) provides that:

Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official, specifying any alleged insufficiency. If a challenge is filed, the petitioner may file a written rebuttal to the challenge with the official within 5 days after the challenge is filed. If a rebuttal is filed, the officer against whom the petition is filed may file a reply to any new matter raised in the rebuttal within 2 days after the rebuttal is filed. Within 14 days after the expiration of the time allowed for filing a reply to a rebuttal, the official shall file the certificate or an amended certificate.

¶176 Subsection (3)(b) continues:

Within 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition. If the official finds that the amended petition is sufficient, the official shall file the petition and call a recall election to be held on the Tuesday of the 6th week commencing after the date of filing of the petition.

(Emphasis added.)

¶177 Subsection (3)(f) provides that "If a recall primary is required, the date specified under par. (b) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week commencing after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday."

¶178 Subsection (3), too, is important in this matter. First, the statute builds in certain protections for a public officer against whom a recall petition is filed. Consequently, no recall primary or recall election may proceed until the official with whom the petition is filed certifies the recall and orders a recall election. The review process can be very time consuming, especially if all available process is utilized.

¶179 In this case, recall elections were certified by the Government Accountability Board as follows:

2011

Officer Recall Certified

District 2 (Robert Cowles) June 3, 2011

District 8 (Alberta Darling) June 3, 2011

District 10 (Sheila Harsdorf) June 3, 2011

District 12 (Jim Holperin) June 10, 2011

District 14 (Luther Olsen) June 3, 2011

District 18 (Randy Hopper) June 3, 2011

District 22 (Robert Wirch) June 10, 2011

District 30 (Dave Hansen) June 10, 2011

District 32 (Dan Kapanke) June 3, 2011

2012

Officer Recall Certified

Governor Scott Walker March 30, 2012

Lt. Governor Rebecca Kleefisch March 30, 2012

District 13 (Scott Fitzgerald) March 30, 2012

District 21 (Van Wanggaard) March 30, 2012

District 23 (Terry Moulton) March 30, 2012

District 29 (Pam Galloway) March 30, 2012

¶180 Second, Wis. Stat. § 11.26 sets limits on contributions, as defined in Wis. Stat. § 11.01(6). However, subsection (13m) of § 11.26 contains two specific exceptions to these contribution limits:

Contributions utilized for the following purposes are not subject to limitation by this section:

(a) For the purpose of payment of legal fees and other expenses incurred as a result of a recount at an election.

(b) For the purpose of payment of legal fees and other expenses incurred in connection with the circulation, offer to file or filing, or with the response to the circulation, offer to file or filing, of a petition to recall an officer prior to the time a recall primary or election is ordered, or after that time if incurred in contesting or defending the order.

(Emphasis added.)

¶181 The plain language of Wis. Stat. § 11.26(13m) provides that there is no limitation on contributions for payments made for certain purposes from the date a recall campaign is registered until the date a recall election is ordered. There also is no limitation on contributions for payment of legal fees and other expenses incurred as a result of a recount.

¶182 For the nine successful recall petitions in 2011, the periods of exemption were as follows:

District 2 March 2, 2011—June 3, 2011 = 94 days

District 8 March 2, 2011—June 3, 2011 = 94 days

District 10 March 2, 2011—June 3, 2011 = 94 days

District 12 February 22, 2011—June 10, 2011 = 109 days

District 14 March 2, 2011—June 3, 2011 = 94 days

District 18 March 2, 2011—June 3, 2011 = 94 days

District 22 February 24, 2011—June 10, 2011 = 107 days

District 30 February 25, 2011—June 10, 2011 = 106 days

District 32 March 2, 2011—June 3, 2011 = 94 days

¶183 For the six successful recall petitions for 2012, the periods of exemption were as follows:

Governor November 15, 2011—March 30, 2012 = 137 days

Lt. Governor November 15, 2011—March 30, 2012 = 137 days

District 13 November 15, 2011—March 30, 2012 = 137 days

District 21 November 15, 2011—March 30, 2012 = 137 days

District 23 November 15, 2011—March 30, 2012 = 137 days

District 29 November 15, 2011—March 30, 2012 = 137 days

¶184 There were two recounts during the period under review——the statewide recount of the 2011 supreme court election and the recount in Senate District 21 in 2012.

¶185 During periods of exemption, individuals and organizations that are permitted to make contributions to recall campaigns may make unlimited contributions to support or oppose a recall effort. If these individuals and organizations are permitted to support or oppose recall efforts with unlimited contributions during exempt periods, they are likewise permitted to seek contributions during these periods and to make contributions during these periods that will be lawful in periods that are not exempt under Wis. Stat. § 11.26(13m).

¶186 In 2011 there were 156 exempt days between February 22 and December 31 related to recall elections. In 2012 there were 90 exempt days between January 1 through March 30 related to recall elections.

¶187 In sum, irrespective of any First Amendment or due process limitations on the regulation of campaign finance, Wisconsin campaign finance statutes were largely inapplicable during 246 of the days under investigation, by virtue of Wis. Stat. § 11.26(13m). This figure does not include exempt days for fundraising and contributions to pay for the 2011 statewide recount for the supreme court.

III

¶188 On June 5, 2012, Governor Walker won the recall election with more than 53 percent of the vote. Walker was the third governor in United States history to be recalled. He was the first to be reelected.

¶189 Approximately two months later, on August 10, 2012, a Milwaukee County assistant district attorney, David Robles, filed a petition for commencement of this John Doe investigation in Milwaukee County. The petition was filed in Milwaukee County Circuit Court. The petition sought leave to investigate alleged campaign finance violations and requested a secrecy order to cover the investigation in anticipation that documents would be sought from "[—————————————————————————————————————————————————————————————————————————————————————————————————————————————————] personal campaign committee . . . and . . . related organizations."

¶190 The petition necessitated the appointment of a John Doe judge. The judge appointed was Barbara Kluka, a prominent reserve judge from Kenosha County. Issues related to this appointment are presently before the court. I am not persuaded that there are defects in Judge Kluka's appointment.

¶191 On September 5, 2012, Judge Kluka granted the petition and issued an order for commencement of the John Doe proceeding. The same day, Judge Kluka granted a secrecy order.

¶192 The next day, the Milwaukee County District Attorney's Office sought and received search warrants for the private e-mail accounts of 13 individuals, including [——————————————]. The private e-mail accounts were obtained from [————————————————————————————————]. The search warrants required the recipient "electronic communication service providers" to produce

all communications stored in the account[s] including all incoming and outgoing e-mail; subscriber names, user names, screen names or other identities associated with the account[s]; mailing addresses, residential addresses, business addresses, other e-mail addresses, telephone numbers or other contact or identifying information for [these] account[s] (in electronic or other form); billing records; contact lists, information about length of service, types of services or related information; connection logs and records of user activity, and any information related to sent and received communications, including any "chat" or "instant messaging" or related information for said account[s] . . . .

(Emphasis added.) The time frame for the search warrants was from April 11, 2009, to July 1, 2012.

¶193 The district attorney's office also obtained either a search warrant or a subpoena duces tecum for conference call records from [——————————————————] and for three bank accounts from a bank. All these search warrants and subpoenas were subject to a secrecy order.

¶194 On December 12, 2012, the Milwaukee District Attorney's Office asked for additional search warrants and subpoenas for the private e-mail accounts of 11 additional individuals, as well as additional private accounts for five previously named individuals, including [————————————]. These accounts were obtained from [12 electronic communication service providers]. E-mail accounts were sought from January 1, 2011, through July 31, 2012. The office also sought bank account records from [a bank] and conference call records from two providers. All these search warrants and subpoenas were subject to a secrecy order.

¶195 On January 18, 2013, Milwaukee County District Attorney John Chisholm met with then-Attorney General J.B. Van Hollen to discuss the ongoing investigation. District Attorney Chisolm sought to determine whether, given the statewide nature of the investigation, the Attorney General's office wished to become involved in the investigation. On May 31, 2013, Attorney General Van Hollen sent District Attorney Chisholm a letter declining involvement in the investigation. Attorney General Van Hollen cited, among other things, potential conflicts of interest [——————————————————————————————————————————————————————————————————————————————————].

¶196 On June 20, 2013, the Government Accountability Board met in closed session in Madison to discuss the investigation. The Board passed two motions [————————————————————————————————————————————————————————————————————————————————————————————————————————————————————] and one to hire special investigators to assist with the investigation.

¶197 On July 16, 2013, Francis Schmitz was chosen as a special investigator for the GAB.

¶198 In July 2013, three more petitions to commence John Doe proceedings were filed: District Attorney Jane Kohlwey filed a petition in Columbia County on July 22, District Attorney Larry Nelson filed a petition in Iowa County on July 25, and District Attorney Kurt Klomberg filed a petition in Dodge County on July 26. On August 21, District Attorney Ismael Ozanne filed a petition in Dane County to commence a John Doe proceeding. All these petitions included a request that the proceedings be subject to a secrecy order.

¶199 Also on August 21, 2013, the district attorneys from the five counties involved (Milwaukee, Columbia, Iowa, Dodge, and Dane) sent a letter to John Doe Judge Barbara Kluka requesting the appointment of a special prosecutor to oversee the entire investigation. The letter recommended Francis Schmitz. On August 23, Judge Kluka appointed Schmitz to be the special prosecutor for each of the five John Doe investigations.

¶200 On or about October 1, 2013, Special Prosecutor Schmitz applied to Judge Kluka for additional subpoenas and search warrants, supported by lengthy affidavits. The subpoena applications sought information about 29 businesses and organizations, including political party organizations, about a large number of persons who were not candidates, and about all candidates and campaign committees involved in 2011 and 2012 recall elections. The application sought subpoenas for at least 21 businesses, organizations, and party organizations to disclose information about and relationships with all the enumerated businesses, organizations, and individuals noted above. The special prosecutor issued more than 30 subpoenas.

¶201 There also were search warrant applications for residences and/or offices of five individuals. These search warrants were very broad in nature and covered the time period from March 1, 2009 to the date the warrants were issued.

¶202 The search warrants and subpoenas authorized on or about October 1 by Judge Kluka are at issue before the court.

IV

¶203 The first issue for discussion here is the legality of the appointment of Francis Schmitz as the John Doe special prosecutor. On August 21, 2013, district attorneys from the five counties involved in the John Doe investigation sent a letter to Judge Kluka requesting the appointment of a special prosecutor to oversee the entire investigation. The letter recommended the appointment of Francis Schmitz. On August 23, Judge Kluka appointed Schmitz to be the special prosecutor, at a rate of $130 per hour, for the John Doe investigation in each of the five counties.

¶204 Wisconsin Stat. § 978.045, entitled "Special prosecutors," constitutes most of the statutory authority for the appointment of special prosecutors.[47] This section, which dates back to 1989,[48] has four subsections. The first two subsections read, in part, as follows:

(1g) A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection. Before a court appoints a special prosecutor on its own motion or at the request of a district attorney for an appointment that exceeds 6 hours per case, the court or district attorney shall request assistance from a district attorney, deputy district attorney or assistant district attorney from other prosecutorial units or an assistant attorney general. A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney's or the court's inability to obtain assistance from another prosecutorial unit or from an assistant attorney general.

(1r) Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exist:

Wis. Stat. § 978.045(1g)-(1r).

¶205 At this point, the subsection lists nine "conditions" that justify appointment of a special prosecutor:

(a) There is no district attorney for the county.

(b) The district attorney is absent from the county.

(c) The district attorney has acted as the attorney for a party accused in relation to the matter of which the accused stands charged and for which the accused is to be tried.

(d) The district attorney is near of kin to the party to be tried on a criminal charge.

(e) The district attorney is physically unable to attend to his or her duties or has a mental incapacity that impairs his or her ability to substantially perform his or her duties.

(f) The district attorney is serving in the U.S. armed forces.

(g) The district attorney stands charged with a crime and the governor has not acted under s. 17.11.

(h) The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff.

(i) A judge determines that a complaint received under s. 968.26(2)(am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint.

Wis. Stat. § 978.045(1r).

¶206 Section 978.045 is clear. The court appoints special prosecutors under these two subsections. The court can make an appointment on its own motion or it can make an appointment upon the request of a district attorney. When the court appoints on its own motion, it appoints under the conditions in subsection (1r). When the court appoints upon the request of a district attorney, it appoints "under that subsection," that is, under the conditions of subsection (1r).

¶207 Section 978.045 spells out prerequisites for appointments under (1g) and (1r). One of these prerequisites is for the court or district attorney first to request assistance from other prosecutors, including "an assistant attorney general," before appointing a special prosecutor. Because the Milwaukee County District Attorney made a request for assistance to the Wisconsin Attorney General, this prerequisite arguably was satisfied.[49] However, the assumption that the prerequisite was satisfied is grounded on the proposition that if the district attorney or court asks the Department of Justice for assistance, they do not have to ask any other prosecutorial unit. This may be a tenuous proposition.

¶208 A second prerequisite is found in the nine conditions of subsection (1r). "The judge may appoint an attorney as a special prosecutor if any of the following conditions exists." (Emphasis added.) If none of the enumerated conditions exists, the judge is not authorized to make an appointment under subsections (1g) and (1r).

¶209 There are several reasons why one of the nine conditions must exist in order for the court to make an appointment. First, the Department of Administration is required to pay for a special prosecutor who is properly appointed under these subsections. Wis. Stat. § 978.045(2)(b) ("The department of administration shall pay the compensation ordered by the court from the appropriation under s. 20.475(1)(d).") (emphasis added). The department does not appear to have authority to reject payment for a properly appointed special prosecutor. However, the legislature did establish conditions for these appointments before requiring the department of administration to pay.

¶210 Second, if the conditions in subsection (1r) did not have to be followed, courts could grant requests from district attorneys for an unlimited number of special prosecutors to supplement district attorney staffs.[50] In other words, individual judges could effectively disregard the number of positions for assistant district attorneys set out in statute. Cf. Wis. Stat. § 16.505. District attorneys in the state's largest counties already may appoint "temporary counsel" as authorized by the department of administration. Wis. Stat. § 978.03(3). Section 978.045 does not permit an alliance between a district attorney and a judge to override statutory limitations on prosecutor appointments.

¶211 Third, if the conditions in subsection (1r) did not have to be followed, courts could appoint special prosecutors on their own motion for "investigations" of interest to an individual judge without any involvement by the local district attorney. This would present a significant separation of powers issue.

¶212 Fourth, courts could appoint special prosecutors with "all the powers of the district attorney," without the accountability of any checks on the special prosecutor's conduct, except from the appointing court. A special prosecutor appointed on the court's own motion would not necessarily be overseen by a district attorney. The special prosecutor could not be recalled or defeated for reelection, never having been elected to the special prosecutor position. The special prosecutor could be appointed by a reserve judge who would never again face the electorate.

¶213 All these concerns are blunted if the court adheres to the conditions in subsection (1r). None of these concerns is addressed when the conditions are disregarded.

¶214 In State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, the court of appeals appeared to reach a different conclusion. The court of appeals noted that Wis. Stat. § 978.045 "authorizes two distinct ways in which a court may appoint a special prosecutor." Id., ¶8. The court said:

Carlson directs us to the sentence in the statute that authorizes the court's appointment of a special prosecutor when it is at the request of a district attorney. . . .  We agree with Carlson that the part of the statute that he relies upon for his argument lists, and arguably restricts, the circumstances in which a court may appoint a special prosecutor.^[4] However, any restriction, if one exists, is triggered only when the appointment is made at the request of a district attorney, not when the appointment is made by a court on its own motion.

Id. (emphasis added).

¶215 Footnote 4 in the court's opinion reads as follows:

The part of the statute that Carlson relies upon states: "The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings or in investigations." Wis. Stat. § 978.045(1r)[(1999-2000)].

Id., ¶8 n.4. The quoted statutory sentence has been broadened to include "proceedings under ch. 980." Wis. Stat. § 978.045(1r).

¶216 The Carlson court's analysis is correct except for the language "not when the appointment is made by a court on its own motion." The court of appeals' interpretation of the "on its own motion" language is mistaken because it reads out of subsection (1r) the prerequisite that "[T]he judge may appoint an attorney as a special prosecutor if any" of the nine conditions exists. (Emphasis added.) The court of appeals' interpretation would provide courts, including reserve judges, free rein to make special prosecutor appointments. In my view, such an interpretation contradicts the plain language and the obvious policy embedded in the statute.

¶217 The statutory history of the section supports this interpretation. As noted previously, Wis. Stat. § 978.045 was created by 1989 Wis. Act 117, § 5. The first version of the section read in part as follows:

(1) If there is no district attorney for the county, if the district attorney is absent from the county, has acted as attorney for a party accused in relation to the matter of which the accused stands charged and for which he or she is to be tried, is near of kin to the party to be tried on a criminal charge, is unable to attend to his or her duties or is serving in the armed forces of the United States, or if the district attorney stands charged with a crime and the governor has not acted under s. 17.11, any judge of a court of record, by an order entered in the record stating the cause therefor, may appoint some suitable attorney to perform, for the time being, or for the trial of the accused person, the duties of the district attorney, and the attorney so appointed shall have all the powers of the district attorney while so acting.

¶218 This original subsection based judicial appointment of a special prosecutor on the existence of one or more specified conditions. The statutory history of § 978.045 shows that this qualification has been carried forward consistently in each revision of the statute.

¶219 It should also be noted that the original section listed six conditions permitting judicial appointment. Since 1989 three more conditions have been added. Why would the legislature keep adding new justifications for the appointment of a special prosecutor if the appointing court could simply enter an order in the record "stating the cause" for the appointment? A court must state the cause for an appointment in its order so that the department of administration is informed why it must pay for compensation.

¶220 Section 978.045(1g) reads in part: "A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney's or the court's inability to obtain assistance from another prosecutorial unit or from an assistant attorney general." (Emphasis added.) In fact, the principal form used by courts when they appoint a special prosecutor is CR-210, developed by the Wisconsin Court Records Management Committee of the Wisconsin Supreme Court. See Exhibit 1. The Department of Administration approves this form.

¶221 Form CR-210 tracks Wis. Stat. § 978.045(1r). At the bottom, Form CR-210 states: "This form shall not be modified. It may be supplemented by additional material." (Emphasis added.)

¶222 Five district attorneys asked Judge Kluka to appoint a special prosecutor. They asked her to appoint Francis Schmitz. They explained the reasoning for the appointment of a special prosecutor. They advised her how to justify the appointment of a special prosecutor. They even explained the amount that Attorney Schmitz would accept as compensation.

¶223 Two days later Judge Kluka made the requested appointment of Francis Schmitz. The appointment order was titled "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978." The order disregarded CR-210 and created a new document following the analysis in the district attorneys' letter. It twice cited the letter and even repeated the unusual citation of State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), and the mis-citation of State v. Carlson in the letter.

¶224 Judge Kluka's order stated:

I make this appointment in light of the facts and circumstances set forth in the August 21, 2013 letter submitted by the District Attorneys for the counties of Columbia, Dane, Dodge, Iowa and Milwaukee. I make this appointment under my authority as expressed in State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 562 [sic]. I find that a John Doe run by five different local prosecutors, each with a partial responsibility for what is and ought to be one overall investigation and prosecution, is markedly inefficient and ineffective. Consequently, I also make this appointment as part of my inherent authority under State v. Cummings, 199 Wis. 2d 721, 735, 546 N.W.2d 406, 411 (1996).

¶225 Inasmuch as Judge Kluka appointed a special prosecutor for each of five counties two days after receiving a joint letter signed by the district attorney in each of the five counties, and inasmuch as the judge appointed the very person the district attorneys recommended to be special prosecutor and authorized precisely the amount of compensation the district attorneys said their nominee would accept, and inasmuch as the judge twice cited the letter of request from the district attorneys in her order, followed the letter's legal analysis, utilized the cases contained in the letter, and even repeated a mis-citation of a case in the letter, it is simply not possible to contend that the court was acting on its own motion. Judge Kluka did not check personally to see whether any other prosecutorial units could assist in the John Doe. Instead, she accepted as fact and law everything the district attorneys presented to her. Thus, even under the half-correct decision in Carlson, the special prosecutor appointment violated the appointment statute if it did not satisfy one of the nine "conditions" in subsection (1r).

¶226 Judge Kluka made a gesture to comply with the statute. Her order stated: "The Attorney General and the District Attorneys . . . all note that their individual status as partisan elected prosecutors gives rise to the potential for the appearance of impropriety. I find that the Special Prosecutor will eliminate any appearance of impropriety."

¶227 This "finding" is plainly insufficient. The Milwaukee County District Attorney's Office had been investigating [——————————————————] since August 10, 2012, the day it petitioned for the second John Doe, without concern for the "appearance of impropriety." It obviously had been investigating [——————————] even longer in light of the materials presented in the affidavits supporting the petition for the John Doe and the search warrants and subpoenas requested in 2012. This is markedly different from the Department of Justice, which in 2013 [—————————————————————————————————————————————————].

¶228 In any event, "the appearance of impropriety" is not the same as "a conflict of interest" as set out in Wis. Stat. § 978.045(1r)(h). If this potential "appearance" were deemed a conflict of interest, the five district attorneys and their staffs should have withdrawn from the case. They did not.

¶229 Thus, Judge Kluka's order failed to satisfy any of the nine conditions stated in subsection (1r). That is why the judge disregarded CR-210 and submitted a different order.

¶230 That also is why the order attempts to sever the relationship between the district attorneys and the court and to claim that the judge was acting on her own motion. The problem is twofold, beyond the implausibility of the claim. A court acting on its own motion also must satisfy one or more of the conditions in subsection (1r) if the judge is acting under Wis. Stat. § 978.045. The court simply cannot read out these conditions of the statute. Moreover, the statute itself links district attorneys and the court's appointment of special prosecutors for John Does. See also Wis. Stat. § 968.26.

¶231 The judge's second gambit to support the appointment of the special prosecutor was to invoke "inherent authority" under Cummings, 199 Wis. 2d at 735. This theory is completely at odds with the title of the order: "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978." Appointments made under the "inherent authority" of the court, if such authority exists in this matter, do not require payment by the Department of Administration because they are not made in conformity with Chapter 978.

¶232 In my view, the Cummings case does not recognize "inherent authority" to appoint a special prosecutor, especially in a John Doe matter. In Cummings, the court stated the relevant issues as follows: "(1) does a John Doe judge have the power to issue a search warrant; (2) does a John Doe judge have the power to seal a search warrant . . . ." Cummings, 199 Wis. 2d at 729. The court then observed:

Next, defendant asserts that a John Doe judge does not have the authority to seal a search warrant. It is true that there is no statutory authority in Wisconsin granting judges this ability. However, a John Doe judge has been granted jurisdiction, the legal right to exercise its authority, pursuant to Wis. Stat. § [968.26]. A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate.

Id. at 735-36. "The ability to seal a search warrant is exactly that type of power which a John Doe judge needs to fulfill the above jurisdictional mandate." Id. at 736-37.

¶233 The same cannot be said about the "inherent authority" to appoint a special prosecutor for a John Doe proceeding.

¶234 Judicial power to appoint a John Doe special prosecutor is governed by statute, in the same way that John Doe proceedings themselves have always been governed by statute. State v. Washington, 83 Wis. 2d 808, 819, 266 N.W.2d 597 (1978).

¶235 One statute, Wis. Stat. § 978.045, has already been discussed. It sets conditions for the appointment of a special prosecutor paid for by the state, and those conditions have not been satisfied here.

¶236 The other statute is the John Doe statute, Wis. Stat. § 968.26. This statute reads in part:

(1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies.

 . . . .

(am) . . . [I]f a person who is not a district attorney complains to a judge that he or she has reason to believe that a crime has been committed within the judge's jurisdiction, the judge shall refer the complaint to the district attorney . . . .

(b) . . . [T]he district attorney [then] shall, within 90 days of receiving the referral, issue charges or refuse to issue charges. If the district attorney refuses to issue charges . . . [t]he judge shall convene a proceeding . . . if he or she determines that a proceeding is necessary to determine if a crime has been committed. . . . 

(c) In [such] a proceeding . . . the judge shall subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom committed. The judge shall consider the credibility of testimony in support of and opposed to the person's complaint.

(d) . . . [T]he judge may issue a criminal complaint if the judge finds sufficient credible evidence to warrant a prosecution of the complaint. . . . 

¶237 This statute suggests that a judge has authority to proceed with a John Doe and, perhaps eventually, appoint a special prosecutor (but not under Chapter 978) if "the district attorney refuses to issue charges . . . ." Whatever the statute implies, it is inapplicable in this case because of the proactive involvement of the district attorneys.

¶238 The Cummings case notes that "a John Doe judge does not have the statutory powers of a court. . . .  This conclusion is indubitably correct. . . .  [A] John Doe judge . . . enjoys those powers conferred to all judges by statute." Cummings, 199 Wis. 2d at 738.

¶239 Judicial power to appoint a special prosecutor is governed by statute. If "inherent authority" were permitted to trump the applicable statutes governing John Doe appointments, the restrictions in these statutes would be rendered meaningless. This court cannot permit that to happen. Cf. State v. Henley, 2010 WI 97, ¶76, 328 Wis. 2d 544, 787 N.W.2d 350. Judge Kluka's appointment of the special prosecutor was invalid.

V

¶240 The second issue for discussion is the validity of the search warrants and subpoenas sought by the special prosecutor on or about October 1, 2013. As noted above, the John Doe judge approved extremely broad search warrants for five individuals and at least 31 very broad subpoenas.

¶241 Motions to quash some of the subpoenas were filed on October 17 and October 25, 2013. On October 29, Judge Kluka recused herself from the entire proceeding, citing an unspecified conflict. Thereafter, the John Doe was reassigned to Reserve Judge Gregory Peterson of Eau Claire, who previously served as a member of the Wisconsin Court of Appeals.

¶242 Following various writ applications in the court of appeals and petitions in two circuit courts, the new John Doe judge granted the motions to quash the subpoenas and to return property seized under the search warrants. The judge's decision was issued on January 10, 2014. This court must determine whether Judge Peterson's decision should be affirmed or reversed.

¶243 Judge Peterson's decision is grounded in his interpretation of Wisconsin election law as affected by the First Amendment. He noted specifically that the "subpoenas reach into the areas of First Amendment freedom of speech and freedom of association. As a result, I must apply a standard of exacting scrutiny and, in interpreting statutes, give the benefit of any doubt to protecting speech and association."

¶244 The judge wrote:

I am granting the motions to quash and ordering return of any property seized as a result of the subpoenas. I conclude the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws. I am persuaded the statutes only prohibit coordination by candidates and independent organizations for a political purpose, and political purpose, with one minor exception not relevant here . . . requires express advocacy. There is no evidence of express advocacy.

¶245 Judge Peterson then wrote that "The subpoenaed parties raise other issues in their briefs, some quite compellingly. However, given the above decision, it is not necessary to address those issues." This writing will address some of the issues related to the search warrants and subpoenas as Judge Peterson's decision can be affirmed on additional grounds.

¶246 The Fourth Amendment to the United States Constitution reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The equivalent provision in the Wisconsin Constitution is found in Article I, Section 11.[51]

¶247 These constitutional provisions are implemented in Wisconsin by several statutes, including Wis. Stat. §§ 968.12 (Search warrant), 968.13 (Search warrant: property subject to seizure), 968.14 (Use of force), 968.15 (Search warrants; when executable), 968.16 (Detention and Search of persons on premises), 968.17 (Return of search warrant), 968.18 (Receipt for seized property), 968.19 (Custody of property seized), 968.20 (Return of property seized), 968.205 (Preservation of certain evidence), 968.23 (Forms), 968.27 (Definitions), 968.28 (Application for court order to intercept communications), 968.29 (Authorization for disclosure and use of intercepted wire, electronic or oral communications), 968.30 (Procedure for interception of wire, electronic or oral communications), and 968.375 (Subpoenas and warrants for records or communications of customers of an electronic communication service or remote computing service provider). Nestled among these search warrant statutes is Wis. Stat. § 968.135, which deals with "Subpoena for documents."

¶248 Judicial interpretation of the Fourth Amendment can narrow application of the Wisconsin search warrant statutes. The statutes, in turn, may provide limitations on warrants that are not required by the Fourth Amendment.

¶249 Questions about the search warrants and subpoenas arise here in the context of a John Doe proceeding. The nature of such a proceeding must be understood.

¶250 The John Doe statute, as amended in 2009, 2009 Wis. Act 24, reads in part as follows:

(1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies.

. . . . 

(3) The extent to which a judge may proceed in an examination under sub. (1) or (2) is within the judge's discretion. The examination may be adjourned and may be secret. . . . 

Wis. 2d 968.26(1), (3).

¶251 In Cummings, this court held that "a John Doe judge may issue and seal a search warrant under appropriate circumstances." Cummings, 199 Wis. 2d at 730. The court added: "The John Doe statute need not specifically mention the issuance of search warrants for a John Doe judge to have such power." Id. at 734-35. The court said:

[S]tatutes should be interpreted in a manner which supports their underlying purpose. This court has repeatedly held that the John Doe proceeding was designed as an investigatory tool to be used as an "inquest for the discovery of crime." Washington, 83 Wis. 2d at 822. Denying John Doe judges the ability to issue search warrants would seriously reduce the investigatory power of the John Doe proceeding.

Id. at 735 (citations omitted).

¶252 The fact that a John Doe judge may issue search warrants and subpoenas for documents does not mean that the Fourth Amendment has no application in a John Doe proceeding. On the contrary, special vigilance on the part of a John Doe judge may be required.

¶253 The documents initiating a John Doe investigation "need not name a particular accused; nor need it set forth facts sufficient to show that a crime has probably been committed. The John Doe is, at its inception, not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime . . . ." Washington, 83 Wis. 2d at 822. Because the threshold for commencing a John Doe investigation is relatively low, a John Doe judge is responsible for limiting its scope to prevent the investigation from getting out of hand. This is why "The John Doe investigation is essentially limited to the subject matter of the complaint upon which the John Doe is commenced. The John Doe judge has no authority to ferret out crime wherever he or she thinks it might exist." Id. Likewise, a district attorney's use of a John Doe is limited.

¶254 This limitation on the scope of the John Doe is particularly relevant to the scope of search warrants and subpoenas. In Custodian of Records v. State, 2004 WI 65, ¶34, 272 Wis. 2d 208, 680 N.W.2d 792, a John Doe case, this court observed:

[D]oes the issuance of a subpoena in a John Doe proceeding, the sole purpose of such proceeding being to investigate alleged criminal activity, have the potential to affect Fourth Amendment rights? The issue of whether the subpoena is overbroad and oppressive, and thus unreasonable, was raised by [the head of the Legislative Technology Services Bureau (LTSB)]. This is a Fourth Amendment concern. Hale v. Henkel, 201 U.S. 43, 71 (1906) (noting that a subpoena duces tecum may implicate Fourth Amendment rights).

¶255 The court ultimately concluded, following the two-step test set out in Katz v. United States, 389 U.S. 347 (1967), that there was a reasonable expectation of privacy in the data stored on backup tapes in the LTSB and thus the subpoena was overbroad. Id., ¶43. The court added:

When we examine whether the Fourth Amendment was violated, we determine whether the government intrusion was reasonable. Overly broad subpoenas typically are held unreasonable in that their lack of specificity allows the government to go on an indiscriminate fishing expedition, similar to that provided by a general warrant. Marron v. United States, 275 U.S. 192, 196 (1927); Boyd [v. United States, 116 U.S. 616, 625-26 (1886)]. As the United States Supreme Court has explained, a subpoena is "equally [as] indefensible as a search warrant would be if couched in similar [general] terms. Hale, 201 U.S. at 77.

Custodian of Records, 272 Wis. 2d 208, ¶50.

¶256 This case involves multiple unnamed parties but it also involves many, many additional organizations and individuals. One unnamed party writes of its subpoena:

The scope of the subpoenas required——explicitly, implicitly, or in effect——all material of any kind that related in any way to the identified elections and to the identified individuals or entities. Other than naming organizations and individuals, there was no attempt to limit or to filter the material subpoenaed or to distinguish between potentially regulated speech and unregulated speech.

¶257 Another unnamed party declared in its brief:

At no point does the subpoena seek to differentiate materials and documents which relate to the subject of the John Doe, to wit: the recall elections of 2011 and 2012, from other activities in which the movants were engaged during that period. The broad sweeping request demands production of all the specific items in the possession of the movant organizations and their representatives.

¶258 The subpoenas issued on or about October 1, 2013, are actually narrower than the search warrants issued in 2012, as described in the quoted material in ¶192 above.

¶259 To illustrate the breadth of the search warrants and subpoenas, the special prosecutor now has possession of every private e-mail sent by [———————————] or received by [——————————] between April 11, 2009, and July 31, 2012, together with other information demanded from certain internet service providers. The special prosecutor has [————————————] private e-mails for more than 20 months [——————————————————————————————————————————] and 19 months [——————————————————————————————————]——as a result of this John Doe investigation. This does not include information prosecutors obtained from government e-mail accounts that are alluded to in the record.

¶260 The substance of the captured e-mails inevitably includes communications with family members and personal friends, public officials and members of [————————] staff, party leaders and political strategists, fundraisers, contributors, and other allies, lawyers, health care providers, and other professional acquaintances. It is inconceivable that a public official [————————] would not subjectively expect a reasonable degree of privacy in his private e-mail accounts.[52]

¶261 The issue before us involves much more than [——————————————] and the many other individuals and organizations directly affected by the search warrants and subpoenas. The issue before us is central to our time. How much information about our people is government entitled to obtain——without people's consent and perhaps without their knowledge?

¶262 The precedent set by this case has the potential to affect the privacy rights of millions of Wisconsin citizens. "Among online adults, 92% use email, with 61% using it on an average day."[53] Cell phones and smart phones are, of course, ubiquitous in our society, but countless numbers of people communicate by e-mail and texting. The ability of government to capture——without notice——the substance of our non-aural communications is not dissimilar to government wiretaps that record the substance of telephone conversations. The only difference is that wiretaps disclose the content of telephone conversations in real time.[54]

¶263 Concerns about privacy are especially critical when people engage in aspects of speech and association during political campaigns, "an area of the most fundamental First Amendment activities." Buckley v. Valeo, 424 U.S. 1, 14 (1976). The Supreme Court provided guidance in Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978), when it said:

[I]n issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that "unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." Marcus v. Search Warrant, 367 U.S. 717, 729 (1961). Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude." Stanford v. Texas, 379 U.S. [476, 485 (1965)]. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material." Roaden v. Kentucky, 413 U.S. 496, 501 (1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authorizing the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts, it authorized the searchers to rummage among and make judgments about books and papers and was the functional equivalent of a general warrant, one of the principal targets of the Fourth Amendment. Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.

¶264 The violation of Fourth Amendment rights requires special attention when it has a chilling effect on First Amendment freedoms. Cf. NAACP v. Alabama, 357 U.S. 449 (1958).

¶265 The search warrants and subpoenas in this case are so broad and so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.[55] After all, the special prosecutor has access to thousands and thousands of electronic communications about the 2010 election, Act 10, the 2011-13 state budget, other legislation, all the recall elections and the strategies and fundraising efforts employed in them, [——————————], litigation, and the then-upcoming 2012 general election. As the substance of this John Doe leaks out, as it already has, the search warrants and subpoenas have an eerie similarity to SLAPP suits in a civil context.[56] SLAPP suits have the effect, whether intended or not, to cost defendants tremendous amounts of money, to extract privileged information from them, and to cause the defendants and others to withdraw from the political process out of fear of harassment.

¶266 The special prosecutor insists that he had probable cause for all his investigative efforts. This is sharply disputed. In any event, probable cause for a search warrant may be wholly devoid of probable cause that the recipient of the search warrant or subpoena or even the subject of the search warrant or subpoena has committed any crime. Rather, the supposed probable cause is that evidence that will aid in the conviction of some crime will be found in the place to be searched, particularly if the items to be seized include everything found at that place——here, the e-mail accounts of people who have been targeted.

¶267 This sort of probable cause must be weighed against the privacy being invaded by the search warrants and subpoenas. The special prosecutor has not been targeting terrorists or mobsters who impose an imminent danger to society. Covering up the breathtaking extent of the John Doe investigation through secrecy orders is highly problematic and cannot last.[57]

¶268 I conclude the following:

1. The search warrants and subpoenas issued on or about October 1, 2013, are invalid because they were presented by a special prosecutor who had none of the powers of a district attorney because his appointment was invalid.

2. The search warrants and subpoenas issued on or about October 1, 2013, were unconstitutionally overbroad because they covered a time period before recall elections were even contemplated, thereby exceeding the subject matter of the investigation; included all periods of exemption within the time period——246 days——thereby permitting secret investigation of lawful First Amendment activities; lacked the level of particularity required as to those things that might lawfully be seized; and improperly invaded the privacy of persons who were not suspects by seeking information virtually without limitation.

3. The search warrants and subpoenas issued in September and December 2012 were unconstitutionally overbroad, for the reasons stated in point 2, but especially because they dated back more than 21 months before recalls were contemplated, a period unrelated to the recall elections in 2011 and 2012, the purported subject of the John Doe.

¶269 Consequently, I would affirm the decision of Judge Peterson to quash the subpoenas and return seized property and expand his ruling to cover the search warrants and subpoenas issued in September and December of 2012.

VI

¶270 Chapter 11 of the Wisconsin Statutes is the source of most Wisconsin statutory law on the regulation of campaign finance. Much of the chapter was created in 1974, Chapter 334, Laws of 1973, in the wake of the Watergate scandal. Various provisions have been revised over the years, but the 2011-12 version of the statutes contains a number of provisions that are suspect or unconstitutional. These will be discussed below.

A

¶271 Section 11.01 sets out the definitions used in Chapter 11. Subsection (16) defines "political purpose," which Judge Peterson and the majority opinion deem critical to the interpretation and enforcement of the chapter.

¶272 Section 11.01(16) reads in part as follows:

(16) An act is for "political purposes" when it is done for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, . . . or for the purpose of influencing a particular vote at a referendum. In the case of a candidate, or a committee or group which is organized primarily for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, or for the purpose of influencing a particular vote at a referendum, all administrative and overhead expenses for the maintenance of an office or staff which are used principally for any such purpose are deemed to be for a political purpose.

(a) Acts which are for "political purposes" include but are not limited to:

1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.

2. The conduct of or attempting to influence an endorsement or nomination to be made at a convention of political party members or supporters concerning, in whole or in part, any campaign for state or local office.

(b) A "political purpose" does not include expenditures made for the purpose of supporting or defending a person who is being investigated for, charged with or convicted of a criminal violation of state or federal law, or an agent or dependent of such a person.

¶273 "Political purpose" is a very imprecise term, especially when it is defined by phrases such as "influencing the recall from or retention in office of an individual." (Emphasis added.) What does "influencing" mean?

¶274 Paragraph (a) provides that "Acts which are for 'political purposes' include but are not limited to: 1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate . . . ." (Emphasis added.) Plainly, the statute seeks to reach "acts" beyond express advocacy that "influence" elections. Consequently, there are no bright lines in the subsection, as drafted, leaving it so vague that it has the potential of chilling constitutionally permissible activity that permits no regulation.

¶275 The definition of "political purpose" has been controversial for years. The original definition, dating back to 1974, read, in part: "an act is for 'political purposes' when, by its nature, intent or manner it directly or indirectly influences or tends to influence voting at any election."

¶276 Attorney General Bronson La Follette was asked to address this definition in an opinion. The Attorney General wrote:

This section . . . evidences a legislative intent to restrict and regulate a broad scope of political activity, including that which may not be directly related to the electoral process. This sweeping effort to regulate First Amendment activity, in light of Buckley, may be constitutionally overbroad unless subject to narrow interpretation and application.

 . . . .

The Court adopted the standard of "express advocacy" of the election or defeat of a particular candidate as an acceptably narrow definition of activity subject to regulation.

 . . . .

I am of the opinion that the "express" advocacy standard should be applied by the [State Elections] Board to all phases of political activity regulated under ch. 11.

65 Wis. Op. Att'y Gen. 145, 151-52 (1976).

¶277 The Elections Board ran into trouble in 1999 in Elections Board v. Wisconsin Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), in a dispute about express advocacy. The issue appeared again in Wisconsin Prosperity Network v. Myse, 2012 WI 27, 339 Wis. 2d 243, 810 N.W.2d 356.

¶278 When the government enacts criminal penalties to regulate First Amendment activities that do not constitute express advocacy, it is standing on perilous ground.

B

¶279 The affidavit supporting the commencement of the John Doe twice cited Wis. Stat. § 11.26, which is the statute entitled "Limitations on contributions." This statute limits individual contributions to the campaign committee of a candidate for governor or lieutenant governor to $10,000, § 11.26(1)(a), and $1,000 to the committee of a candidate for state senator, § 11.26(1)(b). The statute limits contributions from a committee other than a political party or legislative campaign committee to the committee of a candidate for governor to 4% of the value of the disbursement level in the schedule under Wis. Stat. § 11.31. Wis. Stat. § 11.26(2)(a). This now amounts to $43,128. Wis. Stat. § 11.31(1)(a). However, a committee other than a party committee may contribute only $1,000 to the committee of a candidate for state senator. Wis. Stat. § 11.26(2)(b).

¶280 The individual contribution limits in the statute for candidates for governor, lieutenant governor, and state senator were exactly the same in 2011-2012 as they were in 1975. See Wis. Stat. § 11.26(1)(a) and (b) (1975-76). If the limits on individual contributions to the committees of these candidates had kept pace with the buying power of our currency, the contribution limits at the start of 2011 would have had to be 4.42 times higher——i.e., $44,201.67 for governor. Over the years the limit on contributions from a committee to the committee of a candidate for state senator increased from $500 in 1975 to $1,000 in 2011, provided the candidate in 1975 had no primary. Wis. Stat. §§ 11.26(2)(b) and 11.31(1)(e). If the 1975 candidate had a primary, the maximum committee contribution for the election was $800.

¶281 Individual contribution limits have been consistently upheld beginning with Buckley, 424 U.S. at 23-35. Buckley acknowledged, however, that given "the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevent candidates and political committees from amassing resources necessary for effective advocacy." Id. at 21. Inasmuch as static contribution limits render contributions today worth only 25 percent of their value 35 years ago, many candidates are forced to look for support from expenditures outside their own committees.

C

¶282 Subsection (9) of Wis. Stat. § 11.26 is critically important in relation to the contribution limits. It provides:

(9)(a) No individual who is a candidate for state or local office may receive and accept more than 65 percent of the value of the total disbursement level determined under s. 11.31 for the office for which he or she is a candidate during any primary and election campaign combined from all committees subject to a filing requirement, including political party and legislative campaign committees.

(b) No individual who is a candidate for state or local office may receive and accept more than 45 percent of the value of the total disbursement level determined under s. 11.31 for the office for which he or she is a candidate during any primary and election campaign combined from all committees other than political party and legislative campaign committees subject to a filing requirement.

¶283 The practical effect of subsection (9) is that all political party committees may contribute no more than $700,830 directly to the campaign committee of a candidate for governor, nor more than $22,425 directly to the committee of a candidate for state senator, except for exempt contributions under Wis. Stat. § 11.26(13m). However, in all actual elections, including recall elections, every dollar received from a non-party committee reduces the amount that the candidate may receive from a party committee.

¶284 Political action committees collectively may contribute no more to a candidate for governor than 45 percent of the schedule in Wis. Stat. § 11.31, namely, $486,090, or to a candidate for state senator, no more than $15,525, except for exempt contributions under Wis. Stat. § 11.26(13m). The effect of this law is obvious. Political party committees singularly or collectively and political action committees collectively are never permitted——at the same time——to give the maximum contributions allowed by law for regular election expenses. In fact, some political action committees may be precluded altogether from making a direct contribution to the committee of a candidate for governor or a candidate for state senator.

¶285 To illustrate, all non-party committees may contribute only $15,525 to a state senate candidate. Thus, only 15 political action committees may make the maximum contribution of $1,000 to the committee of a candidate for state senator. The sixteenth committee is limited to $525. The seventeenth committee and all other such committees cannot contribute at all. The contributions of these non-party committees must be reduced if party committees give more than $6,900.

¶286 Subsection (9) was challenged in the Wisconsin Supreme Court in Gard v. Wisconsin State Elections Board, 156 Wis. 2d 28, 456 N.W.2d 809 (1990). John Gard, running in a 1987 special election to fill a vacancy in the Assembly, won a hotly contested primary and a close general election. In the process, he received $7,607.32 more from political party committees than the total $11,213 from all committees permitted by subsection (9). He was prosecuted by the state elections board. The petitioners argued that Wis. Stat. § 11.26(9)(a) was unconstitutional on several grounds.

First, [petitioners] claim that the aggregate limit on the amount of money committees may contribute to a candidate's campaign violates committee members' first amendment rights to political expression because it completely bars some committees from making even a symbolic expression of support evidenced by a contribution once the aggregate limit has been reached. Second, they argue that the aggregate limit on committee contributions is, in effect, a limit on the candidate's ability to spend, which impermissibly burdens a candidate's freedom of speech guaranteed by the first amendment under Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976). Third, they assert that the statute impermissibly burdens freedom of association also guaranteed by the first amendment by encouraging individuals to disassociate themselves from committees. Fourth, petitioners argue that the statute imposes a greater burden on the first amendment rights of committees than it does on the first amendment rights of individuals in violation of the equal protection clauses of the United States and Wisconsin Constitutions. Petitioners also assert that the statute imposes a greater burden on the first amendment rights of committees who contribute "late" in a campaign than on committees who contribute "early" in a campaign in violation of equal protection guarantees.

Id. at 36.

¶287 This court upheld subsection (9) of the 1974 statute, holding that the state had a compelling interest, namely, to prevent corruption or the appearance of corruption, and that the provision was narrowly tailored to accomplish this objective.

¶288 The effect of the Gard decision has been to weaken political parties and to encourage non-party committees to engage in issue advocacy spending on campaigns, instead of making direct, reportable contributions to candidates. This dynamic has been recognized for decades.

¶289 More recently, however, subsection (9) has come under significant scrutiny. In September 2014, United States District Judge Rudolph Randa entered an order enjoining the GAB from enforcing subsection (9). CRG Network v. Barland, 48 F. Supp. 3d 1191 (E.D. Wis. Sept. 5, 2014). Judge Randa noted that the Supreme Court has demonstrated "increasing impatience" with the type of "'prophylaxis-upon-prophylaxis' approach" created by statutes such as Wis. Stat. § 11.26(9), and that the other provisions in place to prohibit unlawful circumvention of the base contribution limit rendered subsection (9) unnecessary and unconstitutional. Id. at 1195-96. Following the issuance of Judge Randa's order, the GAB issued a press release stating it would not seek enforcement of subsection (9). Mike B. Wittenwyler & Jodi E. Jensen, Decoding the Maze: Wisconsin's Campaign Finance Laws, 87 Wis. Law. 22, 25 (Oct. 2014).

D

¶290 Subsection (4) of § 11.26 reads:

No individual may make any contribution or contributions to all candidates for state and local offices and to any individuals who or committees which are subject to a registration requirement under s. 11.05, including legislative campaign committees and committees of a political party, to the extent of more than a total of $10,000 in any calendar year.

¶291 Statutes limiting total contributions, as opposed to capping contributions to one candidate, were declared unconstitutional in McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014). In short, Wis. Stat. § 11.26(4) is unconstitutional.

¶292 Many people have violated subsection (4), often unintentionally, since its enactment. The State has pursued some violators criminally. Cf. State v. Gardner, No. 2011CF137, Washington Cnty., Wis., Cir. Ct. (Apr. 11, 2011).

¶293 Important for this review is the fact that the Government Accountability Board insisted on enforcing Wis. Stat. §§ 11.26(4) and 11.26(9) during the recall elections. See MEMORANDUM from Kevin Kennedy to Interested Persons and Committees Involved With Recall Efforts, March 15, 2011. Kennedy's memo also sought to limit the exception to contribution limits for certain recall expenses. Wis. Stat. § 11.26(13m).

E

¶294 The overall effect of Wisconsin's complicated, confusing, outdated, and sometimes unconstitutional campaign finance statutes is to compel candidates to depend increasingly upon expenditures by 501(c)(4) committees that engage in issue advocacy.[58]

¶295 The special prosecutor concedes that without "the authorization and consent of [a] candidate committee," an expenditure is independent and constitutionally protected. However, the special prosecutor contends that a committee's "coordination" with a candidate committee eliminates many constitutional protections, and that "there can never be 'coordinated' fundraising between a candidate and a truly independent third party."

¶296 In view of the above, the pivotal concern with application of Chapter 11's campaign finance laws is Wis. Stat. § 11.10(4). This subsection reads:

(4) No candidate may establish more than one personal campaign committee. Such committee may have subcommittees provided that all subcommittees have the same treasurer, who shall be the candidate's campaign treasurer. The treasurer shall deposit all funds received in the campaign depository account. Any committee which is organized or acts with the cooperation of or upon consultation with a candidate or agent or authorized committee of a candidate, or which acts in concert with or at the request or suggestion of a candidate or agent or authorized committee of a candidate is deemed a subcommittee of the candidate's personal campaign committee.

(Emphasis added.)

¶297 In evaluating the meaning of this provision, we must understand the definition of "committee" in Wis. Stat. § 11.01(4):

"Committee" or "political committee" means any person other than an individual and any combination of 2 or more persons, permanent or temporary, which makes or accepts contributions or makes disbursements, whether or not engaged in activities which are exclusively political, except that a "committee" does not include a political "group" under this chapter.

¶298 Put together, these two provisions are vague and absurdly overbroad. Committees include political party committees and legislative campaign committees. Committees include campaign committees of a candidate's fellow party members. Committees include political action committees of every description. The two sections create dire consequences for candidates who exercise the most fundamental political discourse with committees of the candidate's own party and with the candidate's most ardent allies. By fundamental discourse, I mean "cooperation," "consultation," "requests" for support, and "suggestions."

¶299 Any person who believes that the statute does not apply to coordination between a candidate and his state political party must understand that the special prosecutor has in his possession 39 months of emails from [———————————————————————————————————————————————————————————————————], obtained by secret search warrant. Anyone who believes that the special prosecutor was not interested in coordination among the Republican candidates in the state senate recalls would be mistaken.

¶300 Turning to non-party committees, how does Wis. Stat. § 11.10(4) apply to a candidate who answers a candidate questionnaire from a committee, which asks the candidate pointed questions on issues, then asks whether the candidate will accept an endorsement and campaign contributions? Surely, a non-judicial candidate is permitted to ask for financial support.

¶301 The "coordination" statute cannot be constitutional as written because it makes the candidate who behaves as a perfectly normal candidate, meeting with organizations and discussing plans, issues, and themes, run the intolerable risk of impairing a committee that does no more than engage in issue advocacy. The committee is neutered if it is made a subcommittee of the candidate's committee because it cannot exceed the candidate's contribution limits. The committee is disqualified because it cannot receive and spend corporate dollars as a subcommittee of a candidate, and it cannot maintain the anonymity of its donors, as permitted by law, if it engages in issue advocacy that helps the candidate.

¶302 Under the statute as written, a candidate must surrender his First Amendment freedom to communicate if he is to prevent criminal liability.

¶303 A more carefully drafted statute might be able to pass constitutional muster. But not this statute, in the circumstances of this case. And no statute can vest government regulators and special prosecutors with broad discretion to decide whether First Amendment activities violate the law.

¶304 In my view, Wis. Stat. § 11.01(16) is unconstitutional if it is not limited to express advocacy; Wis. Stat. § 11.10(4) is unconstitutional as drafted; Wis. Stat. § 11.26(4) is unconstitutional; Wis. Stat. § 11.26(9) is unconstitutional; and Wis. Stat. § 11.26(13m) must be broadly interpreted under the circumstances facing Wisconsin in 2011-2012. As a result, the special prosecutor cannot sustain the theories of prosecutorion that served as the foundation for his John Doe investigation.

¶305 For the foregoing reasons, I respectfully concur in the decision to dismiss the John Doe investigation.

¶306 I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK joins Sections IV and V of this opinion, and that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join Section IV of this opinion.

 

 

 

 

 

¶307 ANNETTE KINGSLAND ZIEGLER, J.   (concurring). During pre-dawn darkness in October 2013, several armed law enforcement officers wearing flak jackets, carrying battering rams, and using bright floodlights executed secret John Doe search warrants in the homes of Wisconsin residents. What was the prosecution searching for? The prosecution was in search of documents and electronic evidence, including personal computers and cell phones, to support alleged violations of Wisconsin's campaign finance law. The warrants sought evidence that had been around for more than four years. The warrants were executed shortly before morning, days after a judge signed them, while it was still dark outside. Law enforcement certainly has, and should have, a great deal of discretion when it comes to how and when a warrant will be executed, but ultimately courts may review the reasonableness of that execution.[59]

¶308 Because these searches were executed in pre-dawn darkness, they are essentially what courts and legal commentators refer to as a nighttime search.[60] Because no Wisconsin law specifically addresses the legality of nighttime searches of private homes, under the existing facts of this case, these pre-dawn searches could raise questions as to whether they would pass constitutional muster. I recognize that because no challenge has been made to the execution of the warrants, the record is without explanation as to why the search warrants were executed as they were. I also recognize that the State might have had a legitimate reason for executing the search warrants pre-dawn in paramilitary fashion.

¶309 I join the majority opinion in all three cases. I write separately to explain that, even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution's counterpart.[61] A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought.

I. Fundamental PRINCIPLES

¶310 The Fourth Amendment "contain[s] two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause." Payton v. New York, 445 U.S. 573, 584 (1980). The Fourth Amendment's second clause provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." U.S. Const. amend. IV. With respect to the other clause, "[t]he Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463 (quoting U.S. Const. amend. IV; Wis. Const. art. 1, § 11).[62]

¶311 "'The touchstone of the Fourth Amendment is reasonableness.'" State v. Tullberg, 2014 WI 134, ¶29, 359 Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). "'The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.'" Id. (quoting Jimeno, 500 U.S. at 250). "Constitutional reasonableness relates not only to the grounds for a search or seizure but to the circumstances surrounding the search or seizure's execution." State v. Henderson, 2001 WI 97, ¶18, 245 Wis. 2d 345, 629 N.W.2d 613 (citing Tennessee v. Garner, 471 U.S. 1, 8 (1985)). "The determination of reasonableness is made by reference to the particular circumstances of each individual case, and balances the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. (internal quotation marks omitted) (citations omitted). In other words, "reasonableness" is "determined by balancing the degree to which a challenged action intrudes on an individual's privacy and the degree to which the action promotes a legitimate government interest." Green v. Butler, 420 F.3d 689, 694 (7th Cir. 2005) (citing United States v. Knights, 534 U.S. 112, 118-19 (2001); Ohio v. Robinette, 519 U.S. 33, 39 (1996)). A court determines whether a search was reasonably executed by considering "the totality of the circumstances." United States v. Banks, 540 U.S. 31, 35-36 (2003).

A. Constitutional Protection of a Home

¶312 "The people's protection against unreasonable search and seizure in their 'houses' was drawn from the English common-law maxim, 'A man's home is his castle.'" Minnesota v. Carter, 525 U.S. 83, 94 (1998) (Scalia, J., concurring). "Courts have long extolled the importance of the home, noting that the [Fourth Amendment] was drafted in part to codify 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" State v. Scull, 2015 WI 22, ¶19, 361 Wis. 2d 288, 862 N.W.2d 562 (quoting Payton, 445 U.S. at 601). The United States Supreme Court has noted that "the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Payton, 445 U.S. at 585 (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)). "The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home——a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.'" Id. at 589 (ellipses added in Payton). "That language unequivocally establishes the proposition that '[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Id. at 589-90 (alterations added in Payton) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).[63]

B. Nighttime Search of a Home

¶313 A nighttime search of a home conflicts with the fact that "[a] home is entitled to special dignity and special sanctity." Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626 (1962). "Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Nighttime search was the evil in its most obnoxious form." Monroe v. Pape, 365 U.S. 167, 210 (1961) (Frankfurter, J., dissenting in part). "The Supreme Court has consistently recognized that a police search of a residence at night is a greater intrusion upon an individual's privacy interest than an ordinary search." United States v. Gibbons, 607 F.2d 1320, 1326 n.15 (10th Cir. 1979). In Jones v. United States, the Supreme Court stated that it was "difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home . . . ." Jones v. United States, 357 U.S. 493, 498 (1958); see also Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971) (describing a "midnight entry" of a home as an "extremely serious intrusion"); United States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978) (citations omitted) ("[T]he Fourth Amendment protects citizens' reasonable expectations of privacy . . . [and] one's reasonable expectation of privacy in the home is entitled to a unique sensitivity from federal courts."); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976) (citation omitted) (noting that "the sanctity of private dwellings[ is] ordinarily afforded the most stringent Fourth Amendment protection").[64]

¶314 "At common law, prior to the adoption of the Fourth Amendment, there was a strong aversion to nighttime searches." United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3d Cir. 1968) (citations omitted). "This aversion was then and is now primarily focused on intrusions into the home." United States v. Tucker, 313 F.3d 1259, 1263 (10th Cir. 2002) (citing Gibbons, 607 F.2d at 1326). "Nighttime searches were regarded with revulsion [at common law] because of the indignity of rousing people from their beds." Com. v. Grimshaw, 595 N.E.2d 302, 304 (Mass. 1992) (citing Com. v. DiStefano, 495 N.E.2d 328, 332 (Mass. App. Ct. 1986)). "The significance of this aversion of the common law to nighttime searches is underscored by the Supreme Court's reminder that the search and seizure clause is properly 'construed in the light of what was deemed an unreasonable search and seizure when it was adopted.'" Boyance, 398 F.2d at 897 (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)). When a home is invaded during pre-dawn darkness of night, special protections should apply because of the sanctity of a home. This is not to say that a home search can never occur in pre-dawn darkness, but when it does, that timing could be considered as a part of the totality of the circumstances reasonableness analysis of the Fourth Amendment.

¶315 Although Wisconsin does not have a statute directing that a judge must determine whether a nighttime search is justified, 23 states have statutory protections that allow a nighttime search only upon a "special showing and authorization." Wayne R. LaFave, Search and Seizure § 4.7(b) (5th ed. 2014). Similarly, the Federal Rules of Criminal Procedure implement the essentials of the Fourth Amendment by requiring that a warrant be served "during the daytime, unless the judge, for good cause expressly authorizes execution at another time." Fed. R. Crim. P. 41(e)(2)(A)(ii).[65] The federal rule and these 23 states recognize and codify Fourth Amendment protections against unreasonable nighttime searches and seizures. See United States v. Searp, 586 F.2d 1117, 1124 (6th Cir. 1978) (holding that Federal Rule 41's "night search provisions . . . explicate fundamental purposes of the Fourth Amendment" (internal quotation marks omitted) (citation omitted)).[66]

¶316 When a court is confronted with a challenge to a search that is conducted in the pre-dawn darkness of night, it might consider whether the exigencies of the situation justify the greater intrusiveness of a search at this time. A court could look at factors including, but not limited to, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought. Law enforcement is certainly endowed with a great deal of discretion regarding how and when to execute a warrant, but ultimately a court could be called upon to review the reasonableness of that execution under a totality of the circumstances analysis.

¶317 Certainly, the necessity of immediate police action may be evident from the facts and circumstances of the situation. Warrant execution in some criminal matters, such as some human trafficking or drug cases, may militate in favor of a warrant being executed at night or in a forceful manner because the criminal activity is likely occurring at night, evidence may likely be lost if law enforcement waits, or dangerous activity is afoot. "It has been held that the danger of destruction or removal of the evidence is sufficient reason for nighttime execution of a search warrant, in part because such circumstances could even constitute exigent circumstances for a search without a warrant." Tucker, 313 F.3d at 1265 (citations omitted). See, e.g., United States v. Howard, 532 F.3d 755, 760-61 (8th Cir. 2008) (upholding a nighttime search because a confidential informant advised police that drug trafficking occurred in the home "during all hours of the night"); Fair v. State, 664 S.E.2d 227, 235 (Ga. 2008) (upholding a 1:15 a.m. search "because the officers knew from experience that the peak time for drug dealers to conduct business was after midnight"). Law enforcement needs a wide berth when determining how and when to execute a warrant, but under the totality of the circumstances, the execution of the warrant must still be reasonable in order to pass constitutional muster.

II. The totality of the circumstances

¶318 With Fourth Amendment principles in mind, understanding that the record is not complete because no challenge has been made to the warrant execution, the following discussion will nonetheless endeavor to consider the timing of the issuance and execution of the warrants, the manner of execution, whether public or officer safety concerns existed, and what type of evidence was being sought.

A. The Timing of the Issuance and Execution of the Warrants

¶319 In the case at issue, Investigator Dean Nickel obtained two secret John Doe warrants from Reserve Judge Barbara Kluka to search the homes of Unnamed Movants Nos. 6 and 7. The warrants were obtained in the course of a secret John Doe investigation.[67] Those warrants and their supporting affidavit did not set forth any particular time at which, or manner in which, the warrants would be executed. Unlike many warrants that must be executed at nighttime for fear of the evidence being destroyed or removed from the location or because of public or officer safety reasons, much of this evidence had been sitting on computers and in cyberspace for years.

¶320 This was not, as sometimes occurs, a situation where a judge was awoken in the middle of the night to issue a warrant because law enforcement needs to execute it promptly in order to seize the evidence. Reserve Judge Kluka signed the warrants at 11:30 a.m. on Monday, September 30, 2013. However, they were not executed until Thursday, October 3, 2013, at approximately 6:00 a.m.[68] "A search warrant must be executed and returned not more than 5 days after the date of issuance." Wis. Stat. § 968.15(1). These warrants were executed three days after they were issued. "The return of the search warrant shall be made within 48 hours after execution . . . ." Wis. Stat. § 968.17(1). The warrants were returned on October 4, four days after they were issued and one day after they were executed.

¶321 The warrants were executed in the pre-dawn darkness. On October 3 civil twilight began in Madison at 6:29 a.m. and sunrise began at 6:57 a.m.[69] For all practical purposes, each of these searches was the equivalent of a nighttime search. Because no challenge to the warrant execution has been made, the record lacks any explanation as to why law enforcement did not execute the warrants any time during the preceding 66.5 hours——or more specifically, the 29.5 daylight hours——between issuance and actual execution.

¶322 A nighttime search will often occur shortly after a judge has issued the warrant, as there is some urgency in needing to conduct the search in non-daylight hours. Courts often consider "nighttime" as the time when it is "dark" outside, between sunset and sunrise, between dusk and dawn, or when most people are asleep. See Claudia G. Catalano, Annotation, Propriety of Execution of Search Warrants at Nighttime, 41 A.L.R. 5th 171 (1996). This record, understandably, lacks any indication of why it was reasonable to execute these warrants in this manner, especially since the warrants had been issued three days earlier. The prosecution might have obtained the same evidence in the daylight by waiting a mere hour or two or by executing the warrants in any of the preceding daylight hours. Why did law enforcement execute these secret John Doe warrants days after obtaining them, in the pre-dawn darkness, needing floodlights to illuminate the homes, and with such forceful presence?

¶323 While there may be reasons why the warrants were executed when they were, the current state of the record provides no indication that the prosecution "felt some exigency" so as to necessitate the execution of the warrants in the pre-dawn darkness three days after the warrants were issued. See United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997) (upholding a 12:30 a.m. search for a large quantity of marijuana because the officers "obviously felt some exigency"). See also Harris, 324 F.3d at 606 (upholding a nighttime search performed two hours and 15 minutes after the warrant was issued); Tucker, 313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113 F.3d at 122 (same, 45 minutes); Boyance, 398 F.2d at 897 (holding that a nighttime search performed 90 minutes after issuance of a warrant was unconstitutional because there was no indication that "the evidence within the house would be removed, hidden or destroyed before morning").

B. The Manner of Execution

¶324 Courts have also considered the specific manner in which warrants are executed as part of the totality of the circumstances. "The[se] search warrants were executed at approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets' homes." Majority op., ¶28. "Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys." Id., ¶29. While there may be reasons why the warrants were executed in the manner that they were, the record lacks any such explanation as the execution was not challenged.

¶325 Although not critical to my analysis, it is worth noting how some news outlets have described these searches. Had a hearing been held on the manner in which these searches were executed, it is uncertain whether the facts established in such a hearing would be consistent with these news reports or whether there is nonetheless "a legitimate government interest" in the execution of the searches. See Green, 420 F.3d at 694.

¶326 Reportedly, about an hour before sunrise, police "surrounded" the homes of Unnamed Movants Nos. 6 and 7 and "hit them with floodlights."[70] "Police didn't draw their guns. They didn't have to. Garish light blinded the groggy targets of the secret probe, startling neighbors. The uniforms, the lights, the early hour got everybody's attention."[71] "One of the targets [said] police threatened to use battering rams to break down the front door, but the targets let them in."[72] Each of these pre-dawn searches of the homes of Unnamed Movants Nos. 6 and 7 reportedly involved at least half a dozen sheriff's deputies and at least one official from the Milwaukee County District Attorney's Office.[73] It has been reported that deputies "[s]hout[ed] [] at the front door"[74] and, once inside, continued "yelling and running, into every room in the house."[75]

¶327 Other media outlets described the searches as follows:

The early-morning paramilitary-style raids on citizens' homes were conducted by law-enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children's, were ransacked, cell phones were confiscated, and the citizens were told it would be a crime to tell anyone of the raids.[76]

¶328 At least one person who was subjected to a pre-dawn search of his or her residence reportedly described it as "a home invasion."[77] The targets of the pre-dawn searches have described these experiences as "terrifying" and "traumatic."[78]

¶329 Due to the terms of the John Doe secrecy order itself, the targets were instructed not to tell other people about the searches. The search warrants stated: "This John Doe search warrant is issued subject to a secrecy order. By order of the court, pursuant to a secrecy order that applies to this proceeding, you are hereby commanded and ordered not to disclose to anyone, other than your attorney, the contents of this search warrant and/or the fact that you have received this search warrant. Violation of this secrecy order is punishable as contempt of court." Reportedly, "[m]ultiple targets . . . received verbal instructions from investigators about the secrecy order applying to every member of the household."[79] Despite the language of the secrecy order, some have otherwise averred that the targets "were told not to tell their lawyers, or their friends, or their neighbors."[80]

C. Public and Officer Safety Concerns

¶330 As part of the totality of the circumstances, courts have also considered whether safety concerns of the public or the officers justify the timing and the manner of a warrant's execution. Although a paramilitary-style search in the darkness is undoubtedly justified in some circumstances, the current state of this record provides no indication that Unnamed Movants Nos. 6 and 7 "posed an immediate threat to the safety of the officers or others," were "actively resisting arrest or attempting to evade arrest by flight," or were "themselves violent or dangerous." See Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005) (holding that these facts are important for determining whether a SWAT-type search was reasonable). In the present case, executing the warrants in paramilitary fashion during pre-dawn darkness arguably might have actually increased the risk of injury to the public or the officers. See Bravo v. City of Santa Maria, 665 F.3d 1076, 1086 (9th Cir. 2011) ("SWAT officers' nighttime searches . . . both constitute much greater intrusions on one's privacy than ordinary daytime searches and carry a much higher risk of injury to persons and property.").

¶331 A "nighttime police intrusion pose[s] a great threat to privacy, violate[s] the sanctity of home, and endanger[s] the police and slumbering citizens." Grimshaw, 595 N.E.2d at 304 (citing 2 W.R. LaFave, Search and Seizure § 4.7(b), at 266 (2d ed. 1987)). In the present case, whether any public or officer safety concern justified the pre-dawn searches is unknown because the execution was not challenged. Cf. United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (upholding a nighttime search because of the defendant's "prior extensive involvement with law enforcement, the expressed fear of a concerned citizen that [the defendant] would retaliate violently, and the presence of children in the vicinity" during the daytime).

D. The Evidence

¶332 I turn now to the nature of the evidence being sought. This case is not one where the alleged crime is occurring at night during the search. This is not a drug or human trafficking investigation where it is apparent that the evidence of the crime may no longer be present at the search location if the warrants are not executed promptly. The circumstances of this case do not plainly suggest that waiting until daybreak would have posed a safety risk to the public or officers.

¶333 These pre-dawn searches sought, among other things, electronic evidence, including e-mails and communications stored on cell phones and personal computers.[81] The search warrants sought information from March 1, 2009, to September 30, 2013, the date that the warrants were issued. This evidence, which seemingly had been around for years and likely otherwise exists in cyberspace, did not appear to be "volatile" and no reason is readily apparent to explain why executing the warrants in a more traditional manner, by far less forceful means, would pose any "risk of personal injuries and property damage." See Tucker, 313 F.3d at 1266 (upholding a nighttime search because "there was not just risk of destruction of the evidence but also risk of personal injuries and property damage due to the volatile nature of the chemicals and the process of methamphetamine manufacture").

¶334 While not jugular to the totality of the circumstances analysis, it seems that this electronic evidence was not in "danger of destruction or removal" from the homes before morning. See id. at 1265. The process of erasing a file on a personal computer "is time consuming and does not wipe out all data."[82] A cell phone's files may likewise be difficult to erase. "Smartphone forensics experts can retrieve just about anything from any phone," "whether or not a user deleted it from their phone."[83] In fact, the affidavit in support of the warrants to search the homes of Unnamed Movants Nos. 6 and 7 seemed to recognize that the evidence was not at risk of being destroyed, even if deleted. The affidavit itself declared that "computer files or remnants of such files can be recovered months or even years after they have been downloaded onto a storage medium, deleted, or viewed via the Internet." (Emphases added.)

¶335 Even if the computers and cell phones had been totally destroyed, investigators still could have sought to obtain Unnamed Movants Nos. 6's and 7's e-mail messages from third parties, such as Internet service providers or e-mail service providers.[84] Wisconsin law expressly authorizes subpoenas and search warrants to be issued to such third parties. See Wis. Stat. § 968.375. Milwaukee County prosecutors have used these techniques in recent prosecutions of a somewhat similar nature. See State v. Rindfleisch, 2014 WI App 121, 359 Wis. 2d 147, 857 N.W.2d 456 (holding that search warrants, which required Google Inc. and Yahoo Inc. to provide evidence from the defendant's personal e-mail messages, were sufficiently particular).

¶336 In fact, previously during this very John Doe investigation, the State did obtain Unnamed Movants Nos. 6's and 7's e-mails from their e-mail service providers. Specifically, on September 5, 2012, the same day that Reserve Judge Kluka commenced this John Doe investigation, she signed a warrant requiring Yahoo Inc. to supply information from Unnamed Movant No. 6's Yahoo e-mail account. Also on September 5 Reserve Judge Kluka signed a similar warrant requiring Charter Communications Inc. to provide information from Unnamed Movant No. 7's Charter e-mail account. Each of these warrants required the production of, inter alia, "[t]he contents of all communications stored in the E-mail accounts for the subscriber(s) . . . , including all emails stored in the account, whether sent from or received in the account, including any 'chat or instant messaging,' as well as e-mails held in a 'Deleted' status," from April 1, 2009, to July 1, 2012. Yahoo and Charter complied with the warrants within six weeks and two weeks, respectively. Thus, at least some of the evidence that the prosecution hoped to obtain by searching the homes of Unnamed Movants Nos. 6 and 7 in October 2013 could very well have been duplicative of the e-mail evidence that Yahoo and Charter produced pursuant to the September 2012 search warrants.

¶337 While not required, another avenue of obtaining evidence may have existed through subpoenas duces tecum, which could have been served on Unnamed Movants Nos. 6 and 7 as an alternative to the pre-dawn, paramilitary-style searches of their homes. See Wis. Stat. § 968.135. In fact, such subpoenas were issued on other Unnamed Movants. Specifically, on the same day that Reserve Judge Kluka issued the warrants to search the homes of Unnamed Movants Nos. 6 and 7, she issued subpoenas duces tecum to the other six Unnamed Movants. These subpoenas duces tecum required the production of, inter alia, information regarding Unnamed Movants Nos. 6 and 7. Although law enforcement is not required to obtain information by subpoena instead of a warrant, the type of evidence being sought and the ways in which it may be obtained could possibly be of some significance in the totality of the circumstances test of reasonableness.

¶338 Milwaukee County Sheriff David A. Clarke, Jr. has been vocal in explaining his belief that it was unreasonable and unnecessary to execute these pre-dawn searches in the manner in which they were executed. He said, "[a] simple knock on the door by a couple of suit wearing investigators with . . . one uniform back-up [officer] to verify who they were was all that was necessary to execute this search warrant."[85]

III. CONCLUSION

¶339 "Constitutional reasonableness relates not only to the grounds for a search or seizure but to the circumstances surrounding the search or seizure's execution." Henderson, 245 Wis. 2d 345, ¶18 (citing Garner, 471 U.S. at 8).[86] "The determination of reasonableness is made by reference to the particular circumstances of each individual case, and balances the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. (internal quotation marks omitted) (citations omitted). "The idea of the police unnecessarily forcing their way into the homes in the middle of the night . . . rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a 'police state lacking in the respect for . . . the right of privacy dictated by the U.S. Constitution.'" Gooding v. United States, 416 U.S. 430, 462 (1974) (Marshall, J., dissenting) (quoting S. Rep. No. 91—538, p. 12 (1969)).

¶340 I join the majority opinion in all three cases. I write separately to explain that even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution's counterpart. A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought.

¶341 For the foregoing reasons, I respectfully concur.

 

¶342 SHIRLEY S. ABRAHAMSON, J.   (concurring in part, dissenting in part).

 

Nos. 2014AP296-OA: Original Action: Two Unnamed Petitioners v. Peterson

 

2014AP417-421-W: Supervisory Writ & Appeal: Schmitz v. Peterson

 

2013AP2504-2508-W: Supervisory Writ & Review: Three Unnamed Petitioners v. Peterson

¶343 The majority opinion decides three different cases related to John Doe proceedings underway in five different counties. These John Doe proceedings share a common objective: To investigate potential violations of Wisconsin's campaign finance law, Wis. Stat. ch. 11 (2011-12).[87] The proceedings also share a single John Doe judge, who was assigned to the proceedings in all five counties, and a single Special Prosecutor, who was appointed by the John Doe judge to conduct the investigation in all five counties.[88]

¶344 The John Doe cases were consolidated for purposes of briefing and oral argument, but not for any other purpose.[89] Briefs have been filed. The court, over dissent, canceled oral argument.[90]

¶345 The majority opinion and concurrences in these John Doe cases resolve issues raised by the parties; issues raised by the court in its December 16, 2014, order (attached hereto as Exhibit A); and new issues not previously raised by the parties or the court. These writings have far-reaching implications, not just for the John Doe investigation underlying the instant cases but also for this state's electoral process, future John Doe proceedings, and criminal proceedings generally.

¶346 I begin by addressing the majority opinion.

¶347 Lest the length, convoluted analysis, and overblown rhetoric of the majority opinion obscure its effect, let me state clearly: The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment. In doing so, the majority opinion delivers a significant blow to Wisconsin's campaign finance law and to its paramount objectives of "stimulating vigorous campaigns on a fair and equal basis" and providing for "a better informed electorate."[91]

¶348 Disregarding the statutory text that the majority opinion professes to interpret, the majority opinion takes the absolutist position that Chapter 11 does not reach any issue advocacy and that any manner of government regulation of any issue advocacy contravenes the First Amendment.[92] Thus, within the realm of issue advocacy, the majority opinion's theme is "Anything Goes."[93]

¶349 But it is not just the letter of Wisconsin's campaign finance law that the majority opinion disregards. It also disregards the spirit of the law.[94]

¶350 The legislative declaration of policy set forth at Wis. Stat. § 11.001(1) provides that "[w]hen the true source of support or extent of support [for a candidate] is not fully disclosed, or when a candidate becomes overly dependent upon large private contributors, the democratic process is subjected to potential corrupting influence." To prevent such corrupting influence, the legislature has declared that "the state has a compelling interest in designing a system for fully disclosing contributions and disbursements made on behalf of every candidate for public office. . . ."[95]

¶351 Despite these clear statements of legislative policy, the majority opinion holds that disbursements made on behalf of candidates need not be fully disclosed——indeed, they need not be disclosed at all——if such disbursements are made for issue advocacy.[96]

¶352 In taking this absolutist position, the majority opinion attempts to terminate the John Doe investigation underlying the instant cases in its infancy. The majority opinion's unsupported, ultra vires declaration that its resolution of the original action brought by two of the eight Unnamed Movants "ends the John Doe investigation" contradicts other aspects of the majority opinion and reveals the majority opinion's blatant attempt to reach its desired result by whatever means necessary.[97]

¶353 According to the United States Court of Appeals for the Seventh Circuit, no opinion of the United States Supreme Court or a federal court of appeals has established that the First Amendment forbids regulation of, or inquiry into, coordination between a candidate's campaign committee and issue advocacy groups.[98] In repeatedly and single-mindedly declaring a rule that federal case law has declined to adopt, the majority opinion betrays its result-oriented, agenda-driven approach.

¶354 If the majority opinion succeeds in terminating the John Doe investigation, the majority opinion will deny the people of this state the opportunity to determine once and for all whether the targets of the John Doe investigation are guilty of systematically violating Wisconsin's campaign finance law through undisclosed campaign coordination.

¶355 I write separately to provide an objective, precedent-based analysis of the statutory and constitutional issues presented in the John Doe cases.

¶356 I note at the outset that the statutory and constitutional issues presented in the John Doe cases do not include whether the subpoenas and search warrants issued by the John Doe judge were unconstitutionally overbroad or executed in an unconstitutional manner.

¶357 The parties did not raise these issues and this court did not seek comment on them.[99] These issues have not been briefed by some parties and have not been fully briefed by others. Nevertheless, these issues are discussed at length in the separate writings by Justices Prosser and Ziegler.

¶358 Justice Prosser declares that he is writing on Issue 14. Issue 14 addresses whether there was probable cause for the search warrants issued in the John Doe proceedings. Issue 14 does not concern the breadth or execution of the search warrants, does not concern subpoenas, and is limited to two Unnamed Movants (not five individuals, as Justice Prosser states in ¶201 of his concurrence). Issue 14 asks the parties to address the following issue:

Whether the affidavits underlying the warrants issued in the John Doe proceedings provided probable cause to believe that evidence of a criminal violation of Wis. Stat. §§ 11.27, 11.26(2)(a), 11.61(1), 939.31, and 939.05 would be found in the private dwellings and offices of the two individuals whose dwellings and offices were searched and from which their property was seized.[100]

¶359 Justice Ziegler makes no similar attempt to tether her analysis to the issues this court accepted for review.

¶360 I turn now to my analysis of the three John Doe cases, which I address in three separate sections of this writing. I summarize my discussion and conclusions in each of the three cases as follows:

¶361 The First Case. This case is an original action filed by Unnamed Movants 6 and 7 against the John Doe judge and the Special Prosecutor.[101] See ¶¶389-507, infra.

¶362 Two issues of law are presented in the original action.

¶363 First is whether Chapter 11 requires a candidate's campaign committee to report certain coordinated disbursements as contributions received by the candidate or candidate's campaign committee——namely, coordinated disbursements made for issue advocacy purposes. Under Chapter 11, a disbursement is coordinated if it is made by a third party "for the benefit of a candidate" and "with the authorization, direction or control of or otherwise by prearrangement with the candidate or the candidate's agent."[102]

¶364 If Chapter 11 requires a candidate's campaign committee to report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee, then the second issue presented is whether this reporting requirement is consistent with the state and federal constitutions.

¶365 The majority opinion concludes that Chapter 11 does not require a candidate's campaign committee to report any coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee. The majority opinion further concludes that such a requirement would be unconstitutional.[103]

¶366 The majority opinion frequently refers to "independent groups," "independent organizations," and "independent advocacy organizations." I agree with the United States Court of Appeals for the Seventh Circuit that the word "independent" should be considered to be in quotation marks throughout the John Doe cases "because the Special Prosecutor suspected that the group's independence is ostensible rather than real."[104]

¶367 I conclude that Chapter 11 does require a candidate's campaign committee to report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee. I further conclude this reporting requirement is consistent with the First Amendment.

¶368 To be clear: I do not conclude that Chapter 11 regulates disbursements for issue advocacy made by truly independent third parties. Chapter 11 does not reach independent disbursements for issue advocacy, even when such disbursements are intended to influence an election.

¶369 The Second Case. This case is a supervisory writ petition filed by the Special Prosecutor in the court of appeals against the John Doe judge and the eight Unnamed Movants. The Special Prosecutor's writ petition seeks review of an order of the John Doe judge quashing subpoenas and ordering the return of property seized pursuant to search warrants. The order was based on the John Doe judge's conclusion of law that Chapter 11 does not regulate coordinated disbursements for issue advocacy.[105] The writ petition is before this court on multiple petitions for bypass. See ¶¶508-541, infra.

¶370 The majority opinion concludes that even if the John Doe judge misinterpreted and misapplied Chapter 11 and the First Amendment when exercising his discretion to quash subpoenas and order the return of property seized pursuant to search warrants, a supervisory writ is not warranted. The majority opinion reasons that the Special Prosecutor has failed to prove that the John Doe judge violated a plain legal duty.

¶371 I conclude that the majority opinion misinterprets and misapplies the plain legal duty criterion for the issuance of a supervisory writ.[106] I conclude that correctly interpreting and applying the law is a plain legal duty. To properly exercise his discretion, the John Doe judge was required to correctly decide the question of law presented. This court can and should, in the exercise of its discretion, issue a supervisory writ to correct a John Doe judge's error of law when appellate review would provide no relief (or inadequate relief) for the harm caused by the error. Because the John Doe judge misinterpreted and misapplied the law and appellate review is not available, I would grant the Special Prosecutor's writ petition.

¶372 The Third Case. This case is a review of a court of appeals opinion and order denying a supervisory writ petition filed by Unnamed Movants 2, 6, and 7 against the John Doe judge, the chief judges of the counties in which the proceedings are underway, and the Special Prosecutor. See ¶¶542-554, infra.

¶373 The petition for review raises questions of law regarding the validity of the Special Prosecutor's appointment and the competency of the Special Prosecutor to conduct the John Doe investigation.

¶374 The majority opinion concludes that the court of appeals properly denied the three Unnamed Movants' writ petition because, like the Special Prosecutor in the second case, the three Unnamed Movants have failed to prove that the John Doe judge violated a plain legal duty.[107]

¶375 I agree with the majority opinion's affirmance of the court of appeals order denying the writ petition. I conclude, however, that the court of appeals can, should, and did properly decide the issues of law presented in the Unnamed Movants' writ petition. To properly exercise his discretion, the John Doe judge was required to correctly decide these questions of law.[108]

¶376 Three Additional Issues. Finally, there are three issues presented in this litigation that are relevant to the John Doe trilogy as a whole. I discuss these three issues in my analysis of the first case (the original action).

¶377 First, several motions to file amicus briefs on the merits of the John Doe cases have been filed in this court. I join the majority opinion's decision to grant them all.

¶378 Second, the Special Prosecutor filed a motion seeking the recusal of certain named justices. Three motions to file amicus briefs on the recusal issue have also been filed. Neither the named justices nor the court as a whole has responded to the Special Prosecutor's recusal motion. The recusal motion and the amicus motions remain pending, and the due process concerns they raise remain unresolved.

¶379 Third, this court——over my dissent——ordered extensive redactions and sealing in these John Doe cases.[109] Even if some secrecy remains appropriate, the extent of the secrecy this court has imposed is unwarranted.

¶380 Despite my numerous dissents objecting to the level of secrecy imposed by this court in the John Doe trilogy, I have endeavored to adhere to this court's sealing and redaction orders. The same cannot be said for the majority opinion and the concurrences authored by Justices Prosser and Ziegler.

¶381 The majority opinion declares that "we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein." See majority op., ¶14 n.11. Justice Prosser's concurrence discusses the policy reasons underlying secrecy in John Doe proceedings, concludes that they are inapplicable to certain facts underlying the John Doe trilogy, and thus determines that "discussion of these facts is not inconsistent with the secrecy order." See Justice Prosser's concurrence, ¶145.

¶382 The majority opinion and Justice Prosser's concurrence decide that the secrecy order does not bind the justices of this court. The secrecy order, in their view, binds only the parties and the public.

¶383 Because the majority of this court disregards its own secrecy order, Justice Prosser opines at length, without the benefit of briefs or facts, about allegedly overbroad search warrants and subpoenas. Moreover, he waxes eloquent about privacy and the limits that should be placed on search warrants seeking electronic material. But he has previously waxed eloquent about privacy rights and has nevertheless upheld searches of electronic material that he recognized raise substantial privacy concerns.[110]

¶384 Likewise, Justice Ziegler opines at length about the allegedly unconstitutional manner in which the search warrants were executed. She does so without the benefit of briefs or facts.

¶385 Both justices opine about issues not previously raised by the parties or the court without giving the parties an opportunity to brief or argue the facts or law relevant to those issues.

¶386 In my dissent to the court's redaction order dated March 27, 2015, I explained at length why this court had the power to disclose information that was ordered by the John Doe judge to be concealed. See my dissent to this court's March 27, 2015, redaction order (attached hereto as Exhibit C). This court disagreed, stating the following in its March 27, 2015, redaction order:

The John Doe investigation that is the subject of the several proceedings this court is reviewing remains an open investigation. While that may complicate how this court normally conducts its appellate review functions, the convenience of this court and the parties/counsel appearing before it does not provide a sufficient basis on which to ignore the statutory commands to maintain secrecy or the rules we have already established for maintaining the secrecy of John Doe materials.

¶387 It is unclear what has changed since this court issued its March 27, 2015, redaction order that enables the court to now exempt itself from the secrecy order.

¶388 For the reasons set forth, I write separately.

No. 2014AP296-OA: Original Action: State of Wisconsin ex rel. Two Unnamed Petitioners v. Gregory A. Peterson, John Doe Judge, and Francis D. Schmitz, as Special Prosecutor

¶389 This original action was filed by Unnamed Movants 6 and 7, naming the Special Prosecutor and the John Doe judge as defendants.

¶390 Unnamed Movants 6 and 7 seek a declaration that Chapter 11 restricts campaign finance regulation to express advocacy and regulation of issue advocacy violates the United States and Wisconsin constitutions.

¶391 The majority opinion grants Unnamed Movants 6 and 7 their requested relief. I would not.

¶392 I conclude that coordinated disbursements for issue advocacy constitute regulated contributions under Chapter 11 and that such regulation does not violate the First Amendment. By coordinated disbursements, I mean disbursements made by third parties "for the benefit of a candidate" and "with the authorization, direction or control of or otherwise by prearrangement with the candidate or the candidate's agent."[111] By issue advocacy, I mean speech regarding issues of public concern that does not expressly advocate the election or defeat of a candidate.[112]

¶393 Because I conclude that the Special Prosecutor has a valid legal theory to support his investigation, I would allow the John Doe proceedings to continue. Accordingly, I dissent.

¶394 I address the statutory and constitutional issues presented in this original action as follows:

• In Part I, I describe the alleged election-related activities of Unnamed Movants 6 and 7 that are the subject of the John Doe investigation.

• In Part II, I determine that the Special Prosecutor's theory of criminal activity is supported by Chapter 11. I disagree with the majority opinion's holding that coordinated issue advocacy, like independent issue advocacy, is beyond the reach of Chapter 11.

• In Part III, I conclude that the Special Prosecutor's theory of criminal activity does not contravene the state or federal constitution. I disagree with the majority opinion's declarations that the Special Prosecutor's interpretation of Chapter 11 renders Chapter 11 unconstitutional and that a narrowing construction must be applied to prevent Chapter 11's invalidation.

¶395 In Part IV, I address three issues that are common to the three cases before the court:

• In section A, I consider the motions to file amicus briefs regarding the merits of the three cases. I join the majority opinion's decision to grant them all.

• In section B, I discuss this court's insistence on continued observance of the sweeping John Doe secrecy order to which the three John Doe cases are subject. In my view, the extent of secrecy mandated by the court is not warranted.

• In section C, I consider the Special Prosecutor's motion requesting the recusal of certain justices from the John Doe cases. The recusal motion is still pending (including any due process concerns), as are three motions to file amicus briefs on the recusal issue.

I

¶396 I cannot begin this writing with the usual recitation of facts. There have been no findings of substantive fact by a court or judge, nor stipulations of fact by the parties.[113] This dearth of facts is in sharp contrast to the undisputed facts underlying all prior original actions this court has accepted.[114]

¶397 Although Unnamed Movants 6 and 7 claim that the election-related activities alleged by the Special Prosecutor are not regulated by Chapter 11, neither their petition for leave to commence an original action nor their briefs in this court specify the election-related activities to which they are referring.

¶398 The Special Prosecutor's brief, on the other hand, sets forth information he has gathered regarding the election-related activities of Unnamed Movants 6 and 7, among others. On the basis of this information, the Special Prosecutor asserts that he has reason to believe that a particular candidate or candidate's campaign committee coordinated with one or more 501(c) nonprofit entities; that these 501(c) nonprofit entities made disbursements for issue ads in coordination with the candidate or candidate's campaign committee; that the ads were intended to benefit the candidate's campaign; and that the candidate's campaign committee unlawfully failed to report these coordinated disbursements as contributions received by the candidate or candidate's campaign committee.[115]

¶399 According to the Special Prosecutor, the candidate and candidate's campaign committee coordinated with the 501(c) nonprofit entities in large part through two political operatives, namely Unnamed Movants 6 and 7. The Special Prosecutor contends that Unnamed Movants 6 and 7 were paid by the candidate's campaign committee and by one or more of the 501(c) nonprofit entities. Thus, Unnamed Movants 6 and 7 are alleged to have acted in a dual capacity.

¶400 One of the Special Prosecutor's central allegations is that Unnamed Movants 6 and 7 created and managed a particular 501(c) nonprofit organization to run issue ads for the benefit of the candidate and the candidate's campaign, while the candidate asked donors to contribute to the 501(c) nonprofit organization instead of to the candidate's campaign committee in a blatant attempt to avoid the regulations governing contributions to candidates and their campaign committees. Further, says the Special Prosecutor, while the 501(c) nonprofit entities purchased the issue ads, the candidate——via Unnamed Movants 6 and 7——controlled their content, timing, and placement.

¶401 The "coordination" alleged by the Special Prosecutor thus includes consultation between the candidate, the candidate's campaign committee, Unnamed Movants 6 and 7, various 501(c) nonprofit entities, and associated individuals regarding the content, timing, and placement of issue ads.

¶402 The Special Prosecutor contends that the objective underlying this alleged coordination was to ensure that issue ads purchased by the 501(c) nonprofit entities provided the maximum benefit possible to the candidate's campaign. For example, coordination would ensure correct and consistent messaging in the issue ads purchased by the 501(c) nonprofit entities.

¶403 Such coordination could also serve to circumvent Chapter 11's contribution restrictions and disclosure requirements. Untold millions of dollars in undisclosed contributions could be funneled into a 501(c) nonprofit entity that purchases issue ads written or approved by a candidate or the candidate's campaign manager. "If campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns' bidding, these contribution limits become porous, and the requirement that politicians' campaign committees disclose the donors and amounts become useless."[116]

¶404 The Special Prosecutor contends in the instant case that coordination transformed the 501(c) nonprofit entities' disbursements for issue advocacy into reportable contributions to the candidate or candidate's campaign committee that the candidate's campaign committee failed to report, violating Chapter 11.[117]

¶405 At this stage in the John Doe proceedings, the Special Prosecutor need not prove that the 501(c) nonprofit entities in fact made coordinated disbursements for issue advocacy that were reportable by the candidate's campaign committee as contributions received by the candidate or candidate's campaign committee. Rather, this original action requires the court to determine only whether the Special Prosecutor has a valid legal theory to support his investigation. If charges are eventually filed, only then will a court face the question of whether the alleged coordination took place.

¶406 According to the majority opinion, even if the alleged coordination took place, Chapter 11 does not regulate it, and thus the Special Prosecutor does not have a valid legal theory to support his investigation. The majority opinion allows a 501(c) nonprofit entity to work hand-in-glove with a candidate or candidate's campaign committee without violating Chapter 11 so long as the 501(c) nonprofit entity engages only in issue advocacy.

¶407 I address the statutory and constitutional issues presented in turn.

II

¶408 The first question presented is whether Chapter 11 requires a candidate's campaign committee to report certain disbursements by 501(c) nonprofit entities as contributions received by the candidate or candidate's campaign committee——namely, disbursements for issue advocacy made in coordination with the candidate or candidate's campaign committee. I conclude that it does.

¶409 Chapter 11 is not easy to read or understand. It has been described as "labyrinthian [sic] and difficult to decipher without a background in this area of the law."[118] Nevertheless, through careful reading and cognizance of certain fundamentals of campaign finance law, Chapter 11 can be and has been deciphered. State and federal courts have successfully interpreted and applied its provisions in a number of cases.[119]

¶410 With that in mind, I turn to an examination of the provisions of Chapter 11 at issue in this original action.

¶411 As an initial matter, there is no dispute that under Wis. Stat. § 11.05(2g), a candidate's campaign committee is a "registrant" for purposes of Chapter 11. It is also undisputed that under Wis. Stat. § 11.06(1), "each registrant" must report all "contributions received" and all "disbursements made."

¶412 But what constitutes a "contribution" or "disbursement" under Chapter 11? Because the parties contest the proper interpretation of these words (and thus the scope of the reporting obligation to which a candidate's campaign committee is subject), I turn to their statutory definitions.

¶413 "Contribution" is defined as, among other things, "[a] gift, subscription, loan, advance, or deposit of money or anything of value . . . made for political purposes." Wis. Stat. § 11.01(6)(a) (emphasis added).[120] "Disbursement" is defined as, among other things, "[a] purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value . . . made for political purposes." Wis. Stat. § 11.01(7)(a) (emphasis added).[121]

¶414 An act done "for political purposes" is defined by Wis. Stat. § 11.01(16) as an act "done for the purpose of influencing the election or nomination for election of any individual to state or local office . . . ." (Emphasis added.)[122] According to Unnamed Movants 6 and 7, the phrase "for the purpose of influencing [an] election," and thus the phrase "for political purposes," encompasses only express advocacy. The Special Prosecutor, on the other hand, contends that the phrase is broader and can encompass both express advocacy and issue advocacy.

¶415 The statutory definition of the phrase "for political purposes" specifically mentions express advocacy, stating: "Acts which are for 'political purposes' include but are not limited to . . . communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate . . . ."[123] Thus, there is no question that disbursements made for express advocacy are made "for political purposes" within the meaning of Chapter 11.

¶416 But the statutory definition of the phrase "for political purposes" makes equally clear that its meaning is not limited to express advocacy. Section 11.01(16) states that acts for political purposes "include but are not limited to" express advocacy. It further states that "[i]n the case of a candidate . . . all administrative and overhead expenses . . . are deemed to be for a political purpose."[124] Administrative and overhead expenses are not advocacy at all, let alone express advocacy.

¶417 Thus, the contention by Unnamed Movants 6 and 7 and the conclusion of the majority opinion that contributions and disbursements are reportable under Chapter 11 only when they are made for express advocacy purposes do not square with the statutory language.

¶418 Nor does their position square with the function that issue advocacy may play in elections. An issue ad may seek to raise awareness about an issue generally or to inform voters of a candidate's position on an issue. The latter category of issue advocacy may influence voters' impressions of certain candidates and may therefore influence elections.[125] Accordingly, I conclude that the statutory definition of the phrase "for political purposes" encompasses issue advocacy.

¶419 Not every issue ad, however, will benefit a particular candidate's campaign——even if it is intended to do so. When issue ads are developed independently of the candidate or the candidate's campaign committee, the issue advocacy "might be duplicative or counterproductive from a candidate's point of view."[126]

¶420 In contrast, when issue ads are developed in coordination with the candidate or the candidate's campaign committee, the disbursements made for such ads "are as useful to the candidate as cash . . . ."[127] For this reason, the United States Supreme Court has consistently treated coordinated expenditures as regulated contributions.[128] The United States Supreme Court has not differentiated between coordinated expenditures made for issue advocacy purposes and coordinated expenditures made for express advocacy purposes. The key factor for the Court has been coordination.

¶421 This brings me to the next relevant provision within Chapter 11: Wis. Stat. § 11.06(4).[129] This provision dictates when contributions are reportable by registrants. Two subsections are relevant here.

¶422 First, Wis. Stat. § 11.06(4)(a) declares as a general matter that a contribution is received by a candidate "when it is under the control of the candidate or campaign treasurer," or the candidate or treasurer accepts the benefit thereof. When a contribution is so received, it becomes reportable.

¶423 Second, Wis. Stat. § 11.06(4)(d) declares that when a disbursement is made "for the benefit of a candidate," it "is reportable by the candidate or the candidate's personal campaign committee if it is made . . . with the authorization, direction or control of or otherwise by prearrangement with the candidate or the candidate's agent." (Emphasis added.)

¶424 Although Wis. Stat. § 11.06(4)(d) fails to explicitly state that coordinated disbursements are reportable by the candidate's campaign committee as contributions to the candidate or candidate's campaign committee, this interpretation is compelled by the statutory context. All other subsections of § 11.06(4) explicitly govern the receipt and reporting of contributions. The clear implication is that § 11.06(4)(d) governs the receipt and reporting of contributions.

¶425 This interpretation is also supported by common sense. Disbursements made in coordination with a candidate are as valuable to the candidate as cash, according to the United States Supreme Court, and are therefore treated as contributions under federal law.[130] The same logic applies here: Disbursements made "by prearrangement with the candidate or the candidate's agent" are as valuable to the candidate as cash and are therefore treated as contributions under Wisconsin law.[131]

¶426 In contrast, a disbursement made without prearrangement with a candidate or the candidate's agent is an independent disbursement, not a contribution to the candidate or candidate's campaign committee, and is governed by different rules.[132]

¶427 As this discussion makes clear, the words "contribution" and "disbursement" have distinct but intertwined meanings within Chapter 11. The Special Prosecutor's theory of criminal activity in the instant case relies upon the connection between the two. He argues that when a 501(c) nonprofit entity makes disbursements for issue advocacy in coordination with a candidate's campaign committee, such disbursements are reportable by the candidate's campaign committee as contributions received by the candidate or candidate's campaign committee. He further argues that he has reason to believe a particular candidate's campaign committee is guilty of violating Chapter 11 by failing to fulfill this reporting obligation.[133]

¶428 For the reasons set forth, the Special Prosecutor's theory of criminal activity in the John Doe proceedings underlying this original action has a sound basis in the statutory text.

¶429 Because I agree with the Special Prosecutor that Chapter 11 requires a candidate's campaign committee to report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee, I now consider whether this interpretation of Chapter 11 is constitutionally permissible. As might be expected, the Special Prosecutor says it is, while Unnamed Movants 6 and 7 and the majority opinion say it is not.

III

¶430 Two constitutional questions are presented in this original action. The first is whether Chapter 11's requirement that a candidate's campaign committee report coordinated disbursements for issue advocacy as contributions to the candidate or candidate's campaign committee violates the First Amendment. The second is whether the provisions of Chapter 11 that impose the reporting requirement at issue are unconstitutionally vague or overbroad. Whether the reporting requirement at issue is contrary to the First Amendment and whether the provisions imposing that requirement are unconstitutionally vague or overbroad are interrelated questions.[134] I address these questions in turn.

¶431 The absolutist constitutional position advanced by Unnamed Movants 6 and 7 and adopted by the majority opinion hook, line, and sinker is that the First Amendment bars the State from regulating any issue advocacy in any manner. In their view, the First Amendment protects against state regulation of disbursements for issue advocacy regardless of whether the disbursements are made independently or in coordination with a candidate or candidate's campaign committee. I disagree.

¶432 The majority opinion's rhetoric would lead the reader to conclude that the case law provides a clear answer to the First Amendment issue before the court, namely that the Unnamed Movants' position is correct and that the Special Prosecutor's position "is unsupported in either reason or law."[135] The majority opinion's view contradicts the views expressed by both the John Doe judge and the United States Court of Appeals for the Seventh Circuit.

¶433 The John Doe judge observed that the First Amendment question presented in this original action has "spawned considerable litigation."[136] It is, he explained, "an important question" that deserves, but does not yet have, "a definitive answer."[137]

¶434 Similarly, in O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015), the Seventh Circuit Court of Appeals made it perfectly clear that the Special Prosecutor's theory is rooted in a live legal issue. The O'Keefe court stated that whether coordinated issue advocacy disbursements are regulable under the First Amendment is far from "beyond debate."[138] On the contrary, it explained: The Special Prosecutor's theory of criminal activity in the John Doe investigation underlying this litigation "reflects Buckley's interpretation of the First Amendment."[139] Indeed, the O'Keefe court stated, "[n]o opinion issued by the Supreme Court, or by any court of appeals, establishes ('clearly' or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups——let alone that the First Amendment forbids even an inquiry into that topic."[140]

¶435 This statement in O'Keefe is particularly telling considering that the majority opinion relies heavily on a prior opinion of the same federal court of appeals: Wisconsin Right to Life, Inc. v. Barland (Barland II), 751 F.3d 804 (7th Cir. 2014). Barland II does not render this original action an open-and-shut case, much as the majority opinion would like us to believe.

¶436 Like the John Doe judge and the Seventh Circuit Court of Appeals, I conclude that the constitutional question presented has not yet been definitively resolved. The answer must be deduced through careful analysis of a complex body of federal case law that has set forth principles governing the constitutionality of campaign finance statutes. In my view, this careful analysis reveals that Chapter 11's requirement that a candidate's campaign committee report coordinated issue advocacy disbursements as contributions received by the candidate or candidate's campaign committee does not violate the First Amendment.

¶437 The federal case law governing the constitutionality of campaign finance statutes, much like Chapter 11, presents a labyrinth that must be navigated. The starting point is Buckley v. Valeo, 424 U.S. 1 (1976), a long and complex opinion that considered whether various provisions of the Federal Election Campaign Act of 1971, as amended in 1974, were consistent with the First Amendment.

¶438 Buckley drew a distinction between contributions to candidates and their campaign committees, on the one hand, and independent expenditures for political expression, on the other hand.[141] It declared that under the First Amendment, ceilings may be imposed on contributions but not on independent expenditures.[142] The Buckley Court reached this conclusion by scrutinizing the burdens imposed on political speech by contributions and independent expenditure limits, respectively, and by evaluating those burdens in light of the governmental interests such limits serve.[143]

¶439 The Buckley Court first determined that the burden imposed on political speech by contribution limits is minimal: "A limitation on the amount of money a person may give to a candidate or campaign organization [] involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not . . . infringe [on] the contributor's freedom to discuss candidates and issues."[144] The Court then declared that the government's interest in "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions" provides a "constitutionally sufficient justification" for this minimal burden.[145]

¶440 In contrast, the Buckley Court declared that independent expenditure limits "impose direct and substantial restraints on the quantity of political speech" that are not justified by the government's anti-corruption interest.[146] Unlike contributions, the Court explained,

independent expenditures may [] provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.[147]

¶441 After upholding contribution limits and striking down independent expenditure limits, the Buckley Court turned to the constitutionality of disclosure requirements. It concluded that such requirements are constitutionally permissible as applied both to contributions and to independent expenditures made for express advocacy purposes,[148] reasoning that disclosure requirements impose no ceiling on political speech and are an effective anti-corruption measure.[149] Indeed, the Court explained, disclosure requirements "appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist."[150]

¶442 In all three regulatory contexts——that is, with regard to contribution limits, independent expenditure limits, and disclosure requirements——the Buckley Court made one point eminently clear: Coordinated expenditures constitute contributions to the candidate or candidate's campaign committee for purposes of federal law. More specifically, the Court held that federal law treats expenditures as contributions received by the candidate or candidate's campaign committee if the expenditures are prearranged or coordinated with the candidate or are "placed in cooperation with or with the consent of a candidate."[151] After all, the Court explained, these expenditures are in reality "disguised contributions."[152] Disguised contributions are subject to the limitations and disclosure requirements that govern all other contributions.[153]

¶443 In declaring that coordinated expenditures constitute disguised contributions to the candidate or candidate's campaign committee, the Buckley Court did not specify whether it meant all coordinated expenditures or only coordinated expenditures made for express advocacy purposes. The Buckley Court's broad statement that coordinated expenditures constitute disguised contributions would seem to compel the conclusion that the type of advocacy such expenditures implement is irrelevant; the coordination is what matters. This is the approach taken by the Special Prosecutor. Unnamed Movants 6 and 7, however, urge this court to hold that only coordinated expenditures for express advocacy constitute disguised contributions.

¶444 Subsequent case law sheds light on this issue. Post-Buckley decisions have followed Buckley's holding that coordinated expenditures are subject to the limitations and disclosure requirements governing contributions. The case law discussing coordinated expenditures has not distinguished between coordinated expenditures for express advocacy and for issue advocacy.

¶445 Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431, 446 (2001), is illustrative. The Colorado II Court reaffirmed Buckley's analysis of disguised contributions, explaining that there is no difference between coordinated expenditures and direct contributions to a candidate or candidate's campaign committee that would justify treating the two differently.[154] Coordinated expenditures, like contributions, might be given as a quid pro quo for improper commitments from the candidate.

¶446 The Colorado II Court summarized Buckley's discussion of disguised contributions as follows:

[In Buckley], the rationale for endorsing Congress's equation of coordinated expenditures and contributions was that the equation "prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." The idea was that coordinated expenditures are as useful to the candidate as cash, and that such "disguised contributions" might be given "as a quid pro quo for improper commitments from the candidate" (in contrast to independent expenditures, which are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate's point of view). In effect, therefore, Buckley subjected limits on coordinated expenditures by individuals and nonparty groups to the same scrutiny it applied to limits on their cash contributions.[155]

¶447 In Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45, 87-88 (D.D.C. 1999), the D.C. District Court rejected as untenable the notion that coordinated express advocacy expenditures and coordinated issue advocacy expenditures should be treated differently.[156] Both constitute disguised contributions, the court held, and both should be treated as such.[157]

¶448 The Christian Coalition court made clear that issue advocacy is not beyond the reach of a state's regulatory power as a matter of constitutional law, explaining that the First Amendment permits "only narrowly tailored restrictions on speech that advance the Government's anti-corruption interest, but the Coalition's position allows for no restrictions at all on [coordinated issue advocacy] expenditures."[158] The Christian Coalition court then declared that the distinction drawn in Buckley between issue advocacy and express advocacy is of no constitutional or statutory import in the realm of coordinated expenditures:

[I]mporting the 'express advocacy' standard into [the contribution regulation at issue] would misread Buckley and collapse the distinction between contributions and independent expenditures in such a way as to give short shrift to the government's compelling interest in preventing real and perceived corruption that can flow from large campaign contributions.[159]

¶449 Christian Coalition recognizes that distinguishing between coordinated issue advocacy expenditures and coordinated express advocacy expenditures would ignore the basic fact that both can be "as useful to the candidate as cash."[160] Indeed, the Christian Coalition court explained that

[c]oordinated expenditures for [communications that spread a negative message about an opponent] would be substantially more valuable than dollar-equivalent contributions [to a candidate] because they come with an 'anonymity premium' of great value to a candidate running a positive campaign. Allowing such coordinated expenditures would frustrate both the anticorruption and disclosure goals of the Act.[161]

¶450 In my opinion, Christian Coalition provides a persuasive reading of the First Amendment principles set forth in Buckley and its progeny.[162] It pays heed to the functionalist approach the case law takes to distinguishing between contributions to the candidate or candidate's campaign committee and independent expenditures,[163] and it is careful not to extend prior campaign finance holdings beyond their intended scope. It is also supported by federal case law, which makes clear that campaign finance disclosure requirements can constitutionally reach beyond express advocacy and its functional equivalent and thus makes clear that the express/issue advocacy distinction is not constitutionally relevant in all campaign finance contexts.[164]

¶451 I move on to Wisconsin Right to Life v. Barland (Barland II), 751 F.3d 804 (7th Cir. 2014). Despite implications to the contrary in the majority opinion, Barland II is consistent with Christian Coalition. Barland II addresses the regulation of independent spending under Chapter 11, while Christian Coalition tackles the regulation of coordinated spending under federal law.

¶452 In Barland II, Wisconsin Right to Life (a 501(c) nonprofit entity) and its state political action committee challenged various provisions within Chapter 11 as unconstitutional only insofar as those provisions "trigger[ed] . . . restrictions and requirements for independent groups not under the control of a candidate or candidate's committee . . . ."[165] The Barland II court was careful to note that Wisconsin Right to Life and its state PAC "operate[d] independently of candidates and their campaign committees."[166]

¶453 In contrast to the independent groups at issue in Barland II, in the instant case the Special Prosecutor contends that 501(c) nonprofit entities made disbursements for issue ads in coordination with a candidate's campaign committee. The disbursements at issue in the present case are not independent. Barland II does not extend beyond the context of independent political speech and is therefore not dispositive of the First Amendment question presented in this original action.

¶454 Given this case law, I would hold that in the eyes of both Chapter 11 and the First Amendment, coordinated disbursements are disguised contributions regardless of whether they are made for express advocacy or issue advocacy purposes. Accordingly, in contrast to the majority opinion, I would hold that Chapter 11's requirement that a candidate's campaign committee report coordinated issue advocacy disbursements as contributions is consistent with the First Amendment.

¶455 Unnamed Movants 6 and 7 further contend, and the majority opinion holds, that their interpretation of Chapter 11 is compelled by the doctrines of overbreadth and vagueness. I turn to this argument now.

¶456 The Unnamed Movants' positions on overbreadth and vagueness are twofold.

¶457 First, they urge that the phrase "for political purposes," which is part of Chapter 11's definitions of the words "contribution"[167] and "disbursement,"[168] is unconstitutionally vague and overbroad unless the phrase is read to mean "for express advocacy purposes."

¶458 Second, Unnamed Movants 6 and 7 contend that the concept of "coordination" within Chapter 11 is fatally imprecise. In their view, the provisions of Chapter 11 that ostensibly regulate coordination, including § 11.06(4)(d), should be struck down as unconstitutionally vague and overbroad or, at the very least, limited to express advocacy.

¶459 I address these arguments in turn. To address overbreadth and vagueness arguments relating to the phrase "for political purposes," I return to Buckley and Barland II. Unnamed Movants 6 and 7 contend, and the majority opinion agrees, that an express-advocacy limiting construction must be applied in the instant case based on Buckley and Barland II. They misread the case law.

¶460 The Buckley Court applied an express-advocacy limiting construction to two statutory provisions, one imposing a limit on expenditures and one requiring that expenditures be reported.

¶461 The provision imposing a limit on expenditures stated that "[n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000."[169] The challengers in Buckley argued that the phrase "relative to a clearly identified candidate" is unconstitutionally vague. The Buckley Court agreed.

¶462 The Buckley Court explained that the challenged provision failed to clarify whether it covered both express advocacy and issue advocacy expenditures. The Court decided, however, that in the context of the provision as a whole, the phrase "relative to a clearly identified candidate" could mean "advocating the election or defeat of a candidate," that is, could mean express advocacy.[170] The Court determined that this reading would avoid vagueness concerns. Thus, it construed the expenditure limit as applying only to express advocacy.

¶463 The second provision to which the Buckley Court applied an express-advocacy limiting construction required expenditures to be disclosed. The word "expenditure" was defined "in terms of the use of money or other valuable assets 'for the purpose of . . . influencing' the nomination or election of candidates for federal office."[171] The Court determined that vagueness concerns arose insofar as this expenditure disclosure provision applied to individuals other than candidates and political committees because the phrase "for the purpose . . . of influencing [an election]" carries the potential "for encompassing both issue discussion and advocacy of a political result."[172]

¶464 To avoid vagueness concerns, the Court again applied an express-advocacy limiting construction, this time to the phrase "for the purpose of . . . influencing [an election]." The Court held that the expenditure disclosure provision required expenditures by entities other than candidates and political committees to be disclosed under only two circumstances: (1) when the expenditures were authorized or requested by a candidate or his agent (i.e., coordinated expenditures); and (2) when the expenditures were for express advocacy (i.e., independent express advocacy expenditures).[173] Independent issue advocacy expenditures were not required to be disclosed.

¶465 Importantly, the Buckley Court's application of these express-advocacy limiting constructions was confined to the realm of independent expenditures. As previously explained, the Buckley Court considered coordinated expenditures to be "disguised contributions."[174] Buckley expressly rejected the argument that the statutory provisions imposing limits and disclosure requirements on contributions were unconstitutionally vague or overbroad.[175]

¶466 Further, in applying express-advocacy limiting constructions to the statutory provisions imposing limits and disclosure requirements on independent expenditures, the Buckley Court did not establish as a matter of constitutional law that regulation of issue advocacy is impermissible. No United States Supreme Court decision, and no decision of this court (until today), has gone so far.[176]

¶467 Although the majority opinion removes all issue advocacy from state regulation, the United States Supreme Court in McConnell v. Federal Election Commission, 540 U.S. 93, 190-91 (2003), overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), explicitly ruled that it would be a "misapprehen[sion]" to read Buckley as holding that there exists "a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech."[177] Rather, said the McConnell Court,

a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command. In narrowly reading the [federal law] provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line.[178]

¶468 With this United States Supreme Court precedent in mind, the Barland II court took up the issues of vagueness and overbreadth within Chapter 11.

¶469 The statutory provision considered by the Barland II court that is relevant to this original action is Wis. Stat. § 11.01(16), which (as explained previously) defines the phrase "for political purposes."

¶470 Pursuant to § 11.01(16), an act is done "for political purposes" when it is intended to influence an election. The Barland II court considered the meaning of the "influence an election" language in the context of reporting requirements and other duties and restrictions applicable to the independent political speakers at issue in that case.

¶471 The Barland II court announced that as applied to independent political speakers, the phrase "for political purposes" must be narrowly construed to cover only "express advocacy and its functional equivalent."[179] The factual scenario presented to this court in this original action was expressly excluded from Barland II's express-advocacy limiting construction.[180] Barland II does not require this court to apply an express-advocacy limiting construction beyond the context of the independent political speech involved in that case.

¶472 Keeping in mind the express-advocacy limiting constructions applied in Buckley to the phrases "relative to a clearly identified candidate" and "for the purposes of . . . influencing . . . [an] election," and in Barland II to the phrase "for the purpose of influencing [an] election," I turn to the vagueness and overbreadth challenges advanced by Unnamed Movants 6 and 7 and accepted by the majority opinion in this original action.

¶473 The fundamental point to remember in deciding campaign finance law cases is that context is key. When vagueness or overbreadth concerns arise in the campaign finance context, they arise with regard to particular conduct and specified political speakers. When a limiting construction has been applied to a campaign finance statute, it has been applied with regard to particular conduct and specified political speakers.[181] Just because a phrase is vague or overbroad in one context within Chapter 11 does not mean it is vague or overbroad throughout the Chapter.

¶474 The provision at issue in the instant case is the requirement in Wis. Stat. § 11.06(1) that registrants report all contributions received. The definition of "contribution" under Chapter 11 comports with the definition of "contribution" considered in Buckley: Anything of value given for the purposes of influencing an election. The Buckley Court expressly declined to apply an express-advocacy limiting construction to the phrase "for the purpose of influencing [an] election" in the definition of "contribution," finding no constitutional infirmity:

The Act does not define the phrase "for the purpose of influencing" an election that determines when a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning to alleviate various problems in other contexts. The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution.[182]

¶475 I would adhere to Buckley and its progeny. I would not construe Wis. Stat. § 11.06(1) as excluding coordinated disbursements for issue advocacy from its general requirement that "all contributions received" by a candidates or candidate's campaign committee be reported by the candidate's campaign committee.

¶476 The second contention advanced by Unnamed Movants 6 and 7——that the concept of "coordination" is vague and overbroad and thus must be limited to express advocacy or invalidated altogether——also fails.[183]

¶477 Unnamed Movants 6 and 7 do not tether their broader argument to a particular statutory text. They claim that the various provisions within Chapter 11 that might be interpreted as regulating coordination (such as § 11.06(4)(d), which provides that coordinated disbursements are reportable by a candidate's campaign committee) fail to define sufficiently the concept of coordination. Thus, Unnamed Movants 6 and 7 assert that the provisions are unconstitutionally vague and overbroad.

¶478 In McConnell v. Federal Election Commission, 540 U.S. 93 (2003), overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), the United States Supreme Court rejected a similar argument. The federal law under review in McConnell provided that coordinated expenditures were "expenditures made 'in cooperation, consultation, or concer[t] with, or at the request or suggestion of' a candidate."[184] The McConnell Court stated that this "longstanding definition of coordination 'delineates its reach in words of common understanding.'"[185] Thus, the Court observed, it had "survived without constitutional challenge for almost three decades."[186] The Court concluded that this "definition of coordination gives 'fair notice to those to whom [it] is directed,' and is not unconstitutionally vague."[187]

¶479 The language of Wis. Stat. § 11.06(4)(d) is similar, though not identical, to the language at issue in McConnell. As in McConnell, this language delineates the reach of Chapter 11's concept of coordination "in words of common understanding."[188]

¶480 Center for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) is also instructive. In Madigan, a 501(c) nonprofit entity engaged in issue advocacy challenged the disclosure regime in effect in Illinois as unconstitutionally vague and overbroad on its face.[189]

¶481 As under Chapter 11, the Illinois statutes required contributions to be reported. The challengers took issue with the definition of "contribution," which included "[an] expenditure 'made in cooperation, consultation, or concert with another political committee' . . . ."[190] The Illinois statutes further provided that the word "contribution" included "any 'electioneering communication made in concert or cooperation with or at the request, suggestion, or knowledge of a candidate, a political committee, or any of their agents.'"[191]

¶482 According to the challengers, these provisions "are vague because they do not specify the 'degree of actual agreement required.'"[192] Citing McConnell, the Madigan court observed that the challenged provisions are "no less clear than the federal definition which has long passed muster in the Supreme Court."[193] The Madigan court thus rejected the challengers' claim, concluding that "the coordination language of [Illinois' campaign finance law] is clear enough to provide a reasonably intelligent person 'fair warning' of what sort of conduct is covered."[194]

¶483 I would adhere to McConnell and Madigan and would decline to hold that the concept of "coordination" within Chapter 11 is unconstitutionally vague or overbroad. Accordingly, no limiting construction need be applied.

¶484 In sum, I conclude that Chapter 11's requirement that a candidate's campaign committee report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee does not violate the First Amendment and that the provisions of Chapter 11 imposing this requirement are neither vague nor overbroad.

¶485 In light of the statutory and constitutional validity of the Special Prosecutor's interpretation of Chapter 11 and given the strong policy against intervening in ongoing criminal investigations, I conclude that the John Doe proceedings should not be terminated.

IV

¶486 I now examine three issues that are common to all three of the John Doe cases before the court.

A

¶487 This court has received several non-party motions to file amicus briefs regarding the merits of the John Doe trilogy. I join the majority opinion's decision to grant these motions. A grant is consistent with the court's Internal Operating Procedures and past practices.

¶488 Motions to submit amicus briefs addressing the merits of the John Doe trilogy have been filed by the following: (1) Wyoming Liberty Group; (2) the Wisconsin Government Accountability Board; (3) various former members of the Federal Election Commission; (4) the Honorable Bradley A. Smith, the Center for Competitive Politics, and Wisconsin Family Action; (5) Campaign Legal Center, Democracy 21, Common Cause in Wisconsin, and League of Women Voters of Wisconsin; (6) Citizens for Responsible Government Advocates, Inc.; and (7) Wisconsin Right to Life.

¶489 This court generally grants motions to file amicus briefs "if it appears that the movant has special knowledge or experience in the matter at issue in the proceedings so as to render a brief from the movant of significant value to the court." Wis. S. Ct. IOP II-B.6.c. (May 4, 2012). I conclude that the movants listed above have special knowledge or experience and thus that their views would be of significant value to the court. Indeed, in a case of such profound public importance, this court can use all the help that is offered.

B

¶490 The Special Prosecutor requested the recusal of certain justices from the John Doe trilogy.

¶491 Non-party motions requesting to file amicus briefs on the recusal issue were filed by the following: (1) the James Madison Center for Free Speech; (2) the Ethics and Public Policy Center; and (3) a group of professors of legal ethics.

¶492 On a motion to disqualify a justice, justices have, in other cases, explained why they will participate[195] or why they will not.[196] The justices named in the recusal motion at issue are obviously participating. They have provided no response to the motion, however, choosing instead to remain silent.

¶493 The Special Prosecutor's recusal motion can be read in multiple ways. It can easily be read as being directed only to the named justices, seeking their self-disqualification. It can also be read as directed to the court, seeking the court's review of a Justice's statement that he or she need not self-disqualify. No Justice has made such a statement in the instant cases. Finally, the Special Prosecutor's recusal motion can be read as seeking the court's review of due process considerations should the named Justices choose not to self-disqualify.

¶494 The Special Prosecutor's recusal motion cites Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). In Caperton, the plaintiff moved to disqualify a justice of the Supreme Court of West Virginia on the grounds of bias resulting from campaign contributions and expenditures. The justice denied the plaintiff's motion, and the Supreme Court of West Virginia ruled against the plaintiff on the merits of the case. The United States Supreme Court reversed and remanded, ruling that due process required recusal under the circumstances presented.

¶495 Caperton teaches that there are "circumstances 'in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'"[197]

¶496 Caperton holds that "Due Process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances 'would offer a possible temptation to the average . . . judge to . . . lead him [or her] not to hold the balance nice, clear and true.'"[198] See also Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015) ("[E]ven if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public's confidence in the judiciary.") (internal quotation marks omitted).

¶497 According to the Caperton Court, the participation of a justice who should have disqualified himself or herself violates a litigant's constitutional due process rights and necessitates a do-over.[199] For a discussion of a justice's recusal in Wisconsin , see State v. Herrmann, ___ WI ___, ___ Wis. 2d ___, ___ N.W.2d ___.

¶498 If the Special Prosecutor is presenting a due process argument to the court as a whole——that is, if the Special Prosecutor is asking the court to declare whether participation by the justices named in the recusal motion violates due process rights——such a motion should be made more clearly.

¶499 In any event, the Special Prosecutor's recusal motion and the motions to file amicus briefs on the issue of recusal remain unresolved.

C

¶500 Over the extended lives of the John Doe trilogy in this court, the court has accepted the parties' filings under seal for long periods without examining or ruling on the validity of the parties' motions to seal. Since beginning to examine the sealed documents, the court has kept too many documents under seal and has allowed the parties to redact too much information from their filings.[200]

¶501 The court's decisions on sealing and redaction up to this point have been rooted entirely in the sweeping John Doe secrecy orders that were issued by the John Doe judge many months ago under very different circumstances. This court, in my opinion, should have independently determined whether the justifications for secrecy in John Doe proceedings still apply to the John Doe trilogy in this court. Instead, the court has, for the most part, continued to seal or redact all documents that were sealed by the John Doe judge without making this determination, concluding that its obligation is to abide by the John Doe judge's secrecy order.

¶502 Although I have publicly disagreed with the court's orders regarding sealing and redactions,[201] I have made every effort to abide by those orders. Precedent requires me and this court to abide by this court's secrecy orders. State ex rel. Niedziejko v. Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964), relied on by this court's sealing and redaction orders, provides that secrecy orders issued by a magistrate are binding on that magistrate. In the instant case, this court is the magistrate that issued the relevant secrecy orders. Thus, the secrecy orders bind not just the parties, but also this court.

¶503 The court's March 27, 2015, redaction order recognizes this principle, stating that "the fact that a John Doe proceeding becomes the subject of review in an appellate court . . . does not eliminate the secrecy of documents and other information that are covered by a secrecy order issued by a John Doe judge."

¶504 The majority opinion and Justice Prosser's concurrence disregard this principle.[202] The majority opinion declares, without citation to any authority, that "we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein."[203] Justice Prosser's concurrence discusses the policy reasons underlying secrecy in John Doe proceedings, concludes that they do not support continued concealment of certain facts underlying the John Doe trilogy, and then unilaterally determines that "those facts are now outside the scope of the secrecy order."[204]

¶505 The majority opinion and Justice Prosser's concurrence not only defy this court's March 27, 2015, redaction order; they also contradict that order's reasoning. The court's March 27, 2015, redaction order explicitly concludes that a John Doe judge's secrecy order remains binding when the John Doe proceedings subject to that order reach this court.

¶506 In sum: I have repeatedly dissented to the excessive sealing and redactions this court has imposed in the John Doe trilogy and I have repeatedly dissented to this court's position that the John Doe secrecy order automatically binds this court, but I nevertheless conclude that the secrecy orders issued by this court (over my dissent) are binding on this court. As explained above, it is settled law that a "magistrate" who issues a secrecy order is bound by that secrecy order. The majority opinion and Justice Prosser's concurrence improperly ignore this principle.

* * * *

¶507 For the reasons set forth, I dissent to the majority opinion's resolution of the original action.

2014AP417-W through 2014AP421-W: Supervisory Writ & Appeal: State of Wisconsin ex rel. Francis D. Schmitz v. Gregory A. Peterson, John Doe Judge

¶508 In the second John Doe case before the court, the Special Prosecutor petitioned the court of appeals for a supervisory writ and writ of mandamus seeking review of a decision and order of the John Doe judge dated January 10, 2014, which quashed subpoenas and ordered the return of property seized pursuant to search warrants.

¶509 The defendants are the John Doe judge and eight Unnamed Movants. Several Unnamed Movants filed petitions to bypass the court of appeals, which this court granted.

¶510 The John Doe judge's January 10, 2014, order was based on his conclusion of law that the Wisconsin statutes do not regulate disbursements for issue advocacy made by a 501(c) nonprofit entity in coordination with a candidate or candidate's campaign committee.[205] The John Doe judge appears to have reached this conclusion of law based in part on First Amendment principles.

¶511 This court must decide whether to issue a supervisory writ reversing the John Doe judge's January 10, 2014, order. The majority opinion holds that no supervisory writ shall issue because the Special Prosecutor has not met one of the criteria for the issuance of a supervisory writ. According to the majority opinion, the Special Prosecutor has failed to prove that the John Doe judge violated a plain legal duty when he quashed subpoenas and ordered the return of property seized pursuant to search warrants.[206]

¶512 The majority opinion holds not that the John Doe judge's interpretation of Wisconsin's campaign finance statutes was correct (although the majority opinion's discussion of the original action implies as much), but rather that the validity of the John Doe judge's interpretation and application of statutes is not a proper basis upon which this court can issue a supervisory writ.[207] I strongly disagree with the majority opinion.

¶513 The purpose of the supervisory writ sought by the Special Prosecutor is to provide for "the direct control of . . . judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process."[208]

¶514 The John Doe judge had a non-discretionary legal duty in the instant case to correctly interpret Wisconsin's campaign finance statutes to determine whether and how they address coordination between a candidate or candidate's campaign committee and a 501(c) nonprofit entity engaged in issue advocacy. For the reasons set forth in my dissent to the original action, I conclude that the John Doe judge violated this nondiscretionary legal duty by misinterpreting and misapplying the law.[209]

¶515 A decision of a John Doe judge can be reviewed only by means of a supervisory writ. A decision of a John Doe judge cannot be reviewed by direct appeal. Because the John Doe judge "fail[ed] to fulfill [a] non-discretionary dut[y], causing harm that cannot be remedied through the appellate review process," I would grant the Special Prosecutor's writ petition.

¶516 In contrast, the majority opinion reaches the perplexing conclusion that although the foundation of the entire legal system rests on a judge's obligation to correctly interpret and apply the law, the John Doe judge's obligation to correctly interpret and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure. In reaching this conclusion, the majority opinion relies on a single conclusory sentence (devoid of citation to any authority) that appears in State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110.

¶517 In Kalal, a supervisory writ case, the petitioner argued that judges have a plain legal duty to correctly find the facts and apply the law.[210] The Kalal court declared that it could not accept this proposition "as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law."[211] The Kalal court explained its position as follows:

The obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system. The supervisory writ, however, serves a narrow function: to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process. To adopt the Kalals' interpretation of the plain duty requirement in supervisory writ procedure would transform the writ into an all-purpose alternative to the appellate review process.[212]

¶518 The majority opinion takes this discussion in Kalal out of context, reading it without any meaningful understanding of precedent or the nature of review by supervisory writ of a John Doe judge's order. Indeed, the majority opinion's interpretation of Kalal is so overbroad that Kalal and the majority opinion are reduced to balderdash.

¶519 To understand Kalal and the plain legal duty criterion in supervisory writ cases, one must harken back to the classic expression of what constitutes a plain legal duty and then trace the evolution of the concept in the context of supervisory writ procedure. Kalal must be read and understood in historical context, in light of supervisory writ cases preceding and subsequent to Kalal, and in recognition of a court's discretion to grant or deny a requested supervisory writ.

¶520 The classic articulation of the plain legal duty concept was set forth in In re Petition of Pierce-Arrow Motor Car Co., 143 Wis. 282, 127 N.W. 998 (1910). In Pierce-Arrow, the defendant sought to vacate service of a summons. The defendant requested that this court exercise its "general superintending control over all inferior courts" under Article VII, Section 3 of the Wisconsin Constitution.[213]

¶521 The Pierce-Arrow court concluded that the legal validity of service "may well admit of different opinions by equally able legal minds."[214] The court determined that because the legal question of whether service was valid was debatable, the circuit court had not violated a plain legal duty.

¶522 The Pierce-Arrow court explained:

One of the cardinal rules is that the duty of the court below must be plain. The situation must be such that hardly more than a statement of the facts is necessary to convince the legal mind as to the duty of the court. Where there is no such clear and obvious duty, based either upon common-law principles or upon express statute, but where questions of law or fact or both are involved of such difficulty that "a judge may reasonably, proceeding considerately, commit judicial error," the court will refuse to intervene under its power of superintending control, but will leave the parties to their remedy by appeal.[215]

¶523 Pierce-Arrow represented the court's view of the plain legal duty criterion for the issuance of a supervisory writ up to 1921.[216] Thereafter, the court's view of what constitutes a plain legal duty changed significantly.[217]

¶524 In 1921, the court decided In re Inland Steel Co., 174 Wis. 140, 182 N.W. 917 (1921). In 1932, the court decided State ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm, 208 Wis. 366, 370-71, 243 N.W. 763 (1932). In these two cases, the court concluded that even though the question of law presented may be subject to reasonable debate, the court may exercise its original and supervisory power when an appeal would not provide an adequate remedy.

¶525 These cases make the following point clear: "[T]he fact that the duty of the trial court in the premises can only be determined by a careful consideration of the facts and the law applicable to the situation is no barrier to the exercise of th[e supervisory writ] power."[218]

¶526 In 1941, Justice John D. Wickhem, who served on the Wisconsin Supreme Court from 1930 to 1949, explained the developing case law on the concept of plain legal duty as follows:

The purpose of this [supervisory writ] jurisdiction is to protect the legal rights of a litigant when the ordinary processes of action, appeal and review are inadequate to meet the situation, and where there is need for such intervention to avoid grave hardship or complete denial of these rights.

 . . . .

The later cases hold that an exercise of the court's superintending control may be justified in spite of the fact that a determination of the duty of the inferior court and the scope of the petitioner's rights may present difficult and close questions of law.[219]

¶527 A supervisory writ has been issued in numerous cases in which a ruling of a judge or a circuit court interpreting a statute was challenged as erroneous——even though the proper interpretation of the statute was not plain or raised a novel question——and either no appeal was permitted or appellate review would have come too late for effective redress.[220]

¶528 For example, in a recent case entitled Madison Metropolitan School District v. Circuit Court, 2011 WI 72, 336 Wis. 2d 95, 800 N.W.2d 442, the court of appeals transformed an appeal into a supervisory writ. The issue before the court of appeals was whether the circuit court had exceeded its authority by interpreting the applicable statutes as allowing a circuit court to direct a school district to provide a child with alternative educational services.[221]

¶529 The circuit court contended in Madison Metropolitan School District that the supervisory writ should be denied, arguing that "its duty was not plain, because it was faced with a novel question of law requiring harmonization of several statutory provisions."[222] In contrast, the school district argued that a supervisory writ should be granted because "the circuit court did not have authority, express or implied, to order" the school district to provide the child with alternative educational services.[223] The court of appeals sided with the school district, granting the writ.

¶530 This court spent 34 paragraphs (13 pages in the Wisconsin Reports) analyzing and interpreting the statutes at issue in order to determine the powers of the circuit court and school district. Obviously, the meaning of the statutes was not plain; the case presented a novel issue of law. Nevertheless, after a lengthy statutory analysis, this court affirmed the court of appeals decision granting the writ.

¶531 In deciding that a supervisory writ was warranted, the Madison Metropolitan School District court explained that "the circuit court's duty was plain: to keep within the scope of its statutory authority."[224] It then continued: "Because we have concluded that the circuit court's duty to keep within the bounds of its lawful authority was plain, its violation of that duty was clear when it ordered the District to provide educational resources . . . ."[225]

¶532 Notably, Kalal was never mentioned in the majority opinion in Madison Metropolitan School District, although the court was well aware of Kalal. Kalal was argued in the briefs and in the dissent.

¶533 Madison Metropolitan School District and numerous other cases teach that Kalal does not mean that a supervisory writ cannot issue when a case presents a difficult or close question of law. Rather, Kalal is best understood as demonstrating that a reviewing court has discretion whether to issue a supervisory writ, even when the trial court or judge under review violated a plain legal duty. The reviewing court considers several factors and equitable principles in deciding whether to issue a supervisory writ.[226]

¶534 Indeed, in an opinion issued just one year before Kalal (and authored by then-Justice Sykes, who wrote Kalal), this court stated in no uncertain terms that a court's decision to issue a supervisory writ "is a discretionary determination that is reviewed for an erroneous exercise of that discretion."[227]

¶535 Thus, properly understood, Kalal involved a discretionary call. Kalal does not support the majority opinion's view that a supervisory writ cannot be issued when the legal issue presented is subject to reasonable debate.

¶536 If this court's interpretation of the applicable statutes differs from that of the John Doe judge (that is, if the John Doe judge misinterpreted the law), then the John Doe judge erroneously exercised his discretion in issuing the January 10, 2014, order, and a supervisory writ is appropriate. Two examples illustrate this point.

¶537 Example 1. If the John Doe judge's order was based on an erroneous view of Chapter 11 or the First Amendment but is not reviewed by this court, no further review occurs and both the Special Prosecutor and the public at large are deprived of the enforcement of statutes intended to protect the integrity of Wisconsin's elections. This result amounts to a virtual nullification of a duly enacted law and imposes a serious hardship on the people of this state.

¶538 Example 2. If the John Doe judge had ruled in favor of the Special Prosecutor and the John Doe proceedings continued, then unless a supervisory writ were available to the Unnamed Movants, they could not challenge the John Doe judge's ruling until criminal charges were filed. Such a situation, Unnamed Movants 6 and 7 would surely claim, would impose a serious hardship on them.

¶539 In sum, a supervisory writ is the proper procedure for correcting a John Doe judge's erroneous application of the law when an appeal is not available or would come too late for effective redress.[228] The majority opinion errs in holding otherwise.

¶540 For the reasons set forth, I conclude that the court should decide whether the John Doe judge's January 10, 2014, order was based on a misinterpretation of Wisconsin's campaign finance statutes. Because I conclude that it was, I further conclude that the Special Prosecutor has met the criteria for the issuance of a supervisory writ. I would grant the writ petition.

¶541 Accordingly, I dissent.

Nos. 2013AP2504-W through 2013AP2508-W: Supervisory Writ & Review State of Wisconsin ex rel. Three Unnamed Petitioners v. Gregory A. Peterson, John Doe Judge; Gregory Potter, Chief Judge;[229] and Francis D. Schmitz, as Special Prosecutor

¶542 In this third case, the final case in the John Doe trilogy, Unnamed Movants 2, 6, and 7 seek review of an opinion and order of the court of appeals that denied the three Unnamed Movants' petition for supervisory writs of mandamus and prohibition. The respondents are the John Doe judge, the chief judges of the counties in which the cases are underway, and the Special Prosecutor.

¶543 In their petition to the court of appeals seeking supervisory writs, the three Unnamed Movants alleged, in relevant part, the following errors of law in the John Doe proceedings:

(1)    The multi-county nature of the John Doe investigation is contrary to Wisconsin law.

(2)    The John Doe judge had no authority to appoint the Special Prosecutor without satisfying the criteria set forth in Wis. Stat. § 978.045(1r).

(3)    The John Doe Judge had no authority to appoint a special prosecutor to act in multiple counties.

¶544 These allegations raise multiple overlapping questions of law regarding the procedural validity of the Special Prosecutor's appointment, the competency of the Special Prosecutor to conduct the John Doe investigation, and the legitimacy of a multi-county John Doe investigation under Wisconsin law.

¶545 The court of appeals rejected the arguments of the three Unnamed Movants and denied their writ petition. The majority opinion affirms the court of appeals order denying the writ petition. The petition for review in this court did not raise all the issues raised before the court of appeals or all the issues this court raised in its December 16, 2014, order (attached hereto as Exhibit A). I agree with the majority opinion that the court of appeals order should be affirmed. I reach this result, however, using significantly different reasoning than the majority opinion.

¶546 The majority opinion concludes that the John Doe judge's obligation to "correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure . . . ."[230] Because the majority opinion determines that the three Unnamed Movants have failed to fulfill the plain legal duty criterion, it declares that they have failed to "satisfy the stringent preconditions for a supervisory writ."[231]

¶547 The majority opinion's discussion of the plain legal duty criterion is reminiscent of its analysis in the second case in the John Doe trilogy.[232] For the reasons set forth in my dissent in the second case in the John Doe trilogy (see ¶¶498-521, supra), I take issue with the majority opinion's explanation and application of the plain legal duty concept. I will not repeat that discussion here.

¶548 I conclude that the court of appeals was required to interpret and apply the applicable law to determine whether the John Doe judge had violated a plain legal duty. The court of appeals had discretion, however, whether to grant or deny the three Unnamed Movants' writ petition.

¶549 I consider whether the court of appeals properly exercised its discretion in denying the Unnamed Movants' writ petition by correctly interpreting and applying the applicable law.[233] I decide the underlying legal questions faced by the court of appeals independently, but benefit from the court of appeals' analysis.[234]

¶550 In determining that there were no procedural defects in the John Doe proceedings and thus that a supervisory writ was not warranted, the court of appeals relied on established case law, including State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996); State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451; State ex rel. Friedrich v. Circuit Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995); and State v. Bollig, 222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App 1998)). These cases are persuasive.

¶551 I conclude that the court of appeals correctly decided the questions of law presented in the three Unnamed Movants' writ petition as follows:

(1) The initiation of multiple, parallel John Doe proceedings related to a single criminal investigation is permitted under Wisconsin law. This is an effective and efficient way of proceeding.

(2) The John Doe judge did not rely on Wis. Stat. § 978.045(1r) to appoint the Special Prosecutor. Rather, the John Doe judge made the appointment pursuant to inherent judicial authority. The John Doe judge had such authority regardless of whether the statutory conditions set forth in Wis. Stat. § 978.045(1r) were met. Case law makes clear that a John Doe judge's powers extend beyond the powers conferred by statute to include all powers necessary to conduct the John Doe investigatory proceeding.[235]

(3) The John Doe judge issued five separate orders appointing the Special Prosecutor, one for each county's John Doe proceeding. The same prosecutor may serve multiple appointments in related proceedings. Thus, a John Doe judge may lawfully appoint the same special prosecutor to proceedings underway in several counties. This is an effective and efficient way of proceeding.

(4) Even if there were procedural errors in the Special Prosecutor's appointment (and I do not believe there were), the Special Prosecutor has competency to proceed.[236]

¶552 The court of appeals was not presented with argument regarding the procedural validity of the John Doe judge's appointment and the competency of the John Doe judge to conduct the John Doe proceedings. That argument was, however, advanced in this court. It is without merit, as the majority opinion makes clear.[237]

¶553 Because the court of appeals properly interpreted and applied the applicable law, I conclude that it did not erroneously exercise its discretion in denying the three Unnamed Movants' writ petition. The court of appeals decision should be affirmed.

¶554 In closing, I note that even if this court determined that the John Doe proceedings were procedurally defective and that a supervisory writ is warranted, only those Unnamed Movants who raised the objection before the John Doe judge may be entitled to any relief. If not raised, these objections were waived (forfeited). See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190 (stating that "the common-law waiver [forfeiture] rule applies to challenges to the circuit court's competency" and explaining that a competency challenge is waived as a matter of right if raised for the first time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in the appointment of a special prosecutor is waived (forfeited) if raised for the first time on appeal).

¶555 For the reasons set forth, I write separately.

 

 

 

EXHIBIT A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT B

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT C

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT D

 

 

 

 

 

EXHIBIT E