Custodian of Records v. State, No. 02-3063-W.

• Court: United States State Supreme Court of Wisconsin
• Citation: 680 N.W.2d 792,2004 WI 65,272 Wis.2d 208
• Decision Date: 09 June 2004
• Parties: In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001: Custodian of Records for the Legislative Technology Services Bureau, Petitioner, v. State of Wisconsin and the Honorable Sarah B. O'Brien, presiding, Respondents.
• Docket Number: No. 02-3063-W.

272 Wis.2d 208
2004 WI 65
680 N.W.2d 792

In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001:
Custodian of Records for the Legislative Technology Services Bureau, Petitioner,
v.
State of Wisconsin¹ and the Honorable Sarah B. O'Brien, presiding, Respondents

No. 02-3063-W.

Supreme Court of Wisconsin.

Oral argument November 4, 2003.

Decided June 9, 2004.

272 Wis.2d 213

For the petitioner there were briefs by Peter J. Dykman and Legislative Reference Bureau, Madison, and Michael L. Reig and Legislative Technology Services Bureau, Madison, and oral argument by Peter J. Dykman.

For the respondent, State of Wisconsin, the cause was argued by Alan Lee, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

For the respondent, the Honorable Sarah B. O'Brien, there was a brief by Nancy E. Wheeler and Knuteson, Powers & Wheeler, S.C., Racine, and Robert E. Hankel and Robert E. Hankel, S.C., Racine, and oral argument by Robert E. Hankel.

¶ 1. PATIENCE D. ROGGENSACK, J.

This appeal arises out of a John Doe investigation, pursuant to Wis. Stat. § 968.26 (2001-02),² of certain legislators and legislative employees for what is suspected to be criminal conduct. Before us is a writ of assistance asking that the John Doe judge's subpoena be quashed. In support of the writ, five contentions are made: (1) that the documents sought are privileged due to the interaction of Wis. Stat. § 13.96 and Wis. Stat. § 905.01; (2) that the subpoena violates Article IV, Section 16 of the Wisconsin Constitution; (3) that the subpoena violates the common law separation of powers doctrine; (4) that the subpoena violates Article IV, Section 8 of the Wisconsin Constitution; and (5) that the subpoena is overly broad and therefore unreasonable. We conclude that all of the

272 Wis.2d 214

documents requested are not privileged; that on this record, we cannot determine how Article IV, Section 16 of the Wisconsin Constitution relates to the data sought by the subpoena duces tecum and that even when Section 16 does apply, it provides only use immunity and not secrecy for communications of government officials and employees; and that neither the separation of powers doctrine nor Article IV, Section 8 is sufficient to excuse compliance with a valid John Doe subpoena. However, because we also conclude that the subpoena is overly broad and therefore unreasonable, we grant the supervisory writ and quash the subpoena

I. BACKGROUND

¶ 2. This case arises out of a John Doe proceeding commenced in July of 2001 by the Dane County District Attorney to investigate the political caucuses that once existed for both parties in the Assembly and the Senate and to investigate whether the relationship of the caucuses to Wisconsin's senators and representatives, or the activities of certain legislators, contravened criminal laws. The matter currently before us is a challenge to a John Doe subpoena issued to the Legislative Technology Services Bureau (LTSB) for electronically stored communications³ within the possession of LTSB.

¶ 3. In 1997, as a response to its increasing use of technology, the legislature enacted Wis. Stat. § 13.96, thereby creating the LTSB. The LTSB maintains legislators', constituents' and service agency e-mails; Internet web page development and access; office programs

272 Wis.2d 215

such as Word, Excel and PowerPoint; bill drafting software; geographic information systems; publishing systems supportive of Wisconsin session laws, statutes and the Wisconsin Blue Book; hunting systems support; and production of audio and video materials for distribution via the Internet. The LTSB supports approximately 900 legislative in-house computers and approximately 160 legislative notebook computers. The LTSB also maintains 54 legislative servers. Legislative documents are created on the 1,060 computers and then saved to the Y-Drives or the S-Drives on one of the LTSB's 54 legislative servers. The drives on the servers are backed up on backup tapes that are routinely made in order to preserve data, should there be an electronic failure. The data on these backup tapes include all legislative data that existed on the 54 legislative servers that support the entire legislative branch of government at the moment in time when the backup tapes were made

¶ 4. In this action, the John Doe judge has ordered the LTSB to produce the backup tapes that were made on December 15, 2001 for all 54 servers, or in the alternative, to extract all "documents" for certain named legislators, their aides, and every person who worked in the Democratic and Republican caucuses for both the Senate and the Assembly. The subpoena duces tecum defined "document" as:

hard copies or electronic files and e-mails, drafts, revisions, attached "post-it" notes or other supplemental material, graphic images, photographic images, disks, video recordings, tapes, or written materials regardless of how kept or denominated, and without regard to whether you consider any document to be public or private material.

272 Wis.2d 216

¶ 5. Mark Wahl as director of the LTSB and custodian of its data is the person to whom the subpoena was directed, rather than the individual legislators, whose names have remained secret throughout these proceedings. It was Wahl who filed the motion to quash the subpoena. He raised claims of privilege, violations of two provisions of the Wisconsin Constitution, violation of the separation of powers doctrine and the overbroad scope of the subpoena, as defenses to the compulsion of the subpoena duces tecum. The John Doe judge denied the motion to quash; Wahl filed a petition for a supervisory writ in the court of appeals; the court of appeals certified the writ petition to us and we accepted certification

II. DISCUSSION

A. Standard of Review

¶ 6. Statutory interpretation, or the application of a statute to a known set of facts, presents questions of law that we review without deference to the circuit court. Deutsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 79-80, 591 N.W.2d 583 (1999). Similarly, we decide constitutional questions, both state and federal, de novo. See State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977).

B. The John Doe Proceeding

¶ 7. To properly analyze the claimed defenses to and arguments in support of the subpoena, we must first discuss the John Doe proceeding itself. It is an investigation created by Wis. Stat. § 968.26, which provides in relevant part:

272 Wis.2d 217

If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed.

¶ 8. The purpose of a John Doe proceeding is to ascertain if a crime has been committed and who likely committed it. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶ 22, 260 Wis. 2d 653, 660 N.W.2d 260; State ex. rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 621, 571 N.W.2d 385 (1997); Wolke v. Fleming, 24 Wis. 2d 606, 613, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912 (1965); Wisconsin Family Counseling Servs., Inc. v. State, 95 Wis. 2d 670, 676, 291 N.W.2d 631 (Ct. App. 1980). Though it involves the investigation of a crime, a John Doe proceeding need not be initiated on probable cause. Wisconsin Family Counseling Servs., 95 Wis. 2d at 674-75. However, the complainant must have "reason to believe" a crime has been committed, and must allege "objective, factual assertions sufficient to support a reasonable belief" that a crime has been committed, though the complainant does not have to name a particular accused. Reimann, 214 Wis. 2d at 623-24. The result of a John Doe proceeding may be a written complaint that is subject to the test of probable cause. Doe, 78 Wis. 2d at 165.

¶ 9. We have held that witnesses in John Doe proceedings need not be apprised of the scope of the investigation. State ex. rel. Jackson v. Coffey, 18 Wis. 2d

272 Wis.2d 218

529, 544, 118 N.W.2d 939 (1963). In addition, the secrecy aspect of a John Doe proceeding does not infringe upon a witness's First Amendment right of free speech, id. at 545-46, for the State has legitimate interests in the secrecy of the proceedings.⁴ Id. at 546; Wisconsin Family Counseling Servs., 95 Wis. 2d at 677.

¶ 10. A John Doe judge has broad, but not unlimited, powers. State v. Washington, 83 Wis. 2d 808, 822, 266 N.W.2d 597 (1978) (stating that a John Doe proceeding is "an inquest for the discovery of crime in which the judge has significant powers," but a judge has "no authority to ferret out crime wherever he or she thinks it might exist"). For example, a John Doe judge does not have the power to compel self-incriminating testimony or to grant immunity. Jackson, 18 Wis. 2d at 533; Wis. Stat. § 972.08. On the other hand, a John Doe judge does have the power to subpoena witnesses. Wis. Stat. § 968.26; Wisconsin Family Counseling Servs., 95 Wis. 2d at 675. We have held that when a judge exceeds his or her powers, it is an erroneous exercise of discretion. Washington, 83 Wis. 2d at 823-24; Jackson, 18

272 Wis.2d 219

Wis. 2d at 545. Within this framework, we begin our consideration of the parties' contentions.

C. Statutory Privilege

¶ 11. Wahl contends that Wis. Stat. § 13.96, as it interacts with Wis. Stat. § 905.01, creates a statutory privilege that, while not expressly stated, is implicit in LTSB's obligation to treat all information within its possession as confidential. Therefore, as the legal custodian of the information stored by the LTSB, he is not required to comply with the subpoena.⁵ The State⁶ contends that the confidentiality provision of § 13.96 prevents voluntary disclosure to one who does not have proper...