In Matter of John Doe Proceeding

Decision Date01 May 2003
Docket Number No. 02-0831-W., No. 01-3220-W, No. 02-0446-W
Citation660 N.W.2d 260,260 Wis.2d 653,2003 WI 30
PartiesIN the MATTER OF a JOHN DOE PROCEEDING COMMENCED BY AFFIDAVIT DATED JULY 25, 2001: STATE of Wisconsin EX REL. UNNAMED PERSON No.1, Petitioner, STATE of Wisconsin EX REL. UNNAMED PERSON No.2, Petitioner, STATE of Wisconsin EX REL. UNNAMED PERSON No.3, Petitioner, v. STATE of Wisconsin and the Honorable Sarah B. O'Brien, presiding, Respondents, The CAPITAL TIMES COMPANY, Ron McCrea, City Editor of the Capital Times, Journal Sentinel, Inc. and Mark Maley, State News Editor for the Milwaukee Journal Sentinel, Intervenors.
CourtWisconsin Supreme Court

For the petitioner, Unnamed Person No. 1, there were briefs by Franklyn M. Gimbel and Gimbel, Reilly, Guerin & Brown, Milwaukee, and oral argument by Franklyn M. Gimbel.

For the petitioner, Unnamed Person No. 2, there were briefs by Stephen L. Morgan, Suzanne Lee, and Murphy & Desmond, S.C., Madison, and oral argument by Stephen L. Morgan.

For the petitioner, Unnamed Person No. 3, there were briefs by Lisa C. Goldman, Robert F. Nagel, and Law Offices of Robert Nagel, Madison, and oral argument by Lisa C. Goldman.

For the respondent, State of Wisconsin, the cause was argued by Alan Lee, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the respondent, 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.

For the intervenors there were briefs by Robert J. Dreps, Katherine Stadler, and LaFollette Godfrey & Kahn, Madison, and oral argument by Katherine Stadler.

¶ 1. PER CURIAM.

We review certified questions relating to three petitions for supervisory writ filed in connection with a John Doe proceeding pending before the Honorable Sarah B. O'Brien, a Dane County Circuit Court judge. See In the Matter of a John Doe Proceeding Commenced by Affidavit dated July 25, 2001; Nos. 01-3220-W, 02-0446-W, 02-0831-W, Certification Mem. (Wis. Ct. App. July 5, 2002). Three witnesses summoned to testify in the secret John Doe proceeding filed separate petitions for supervisory writ in the court of appeals, each challenging certain actions of the John Doe judge and asking the court of appeals to exercise its supervisory authority with respect to those actions. The court of appeals sealed the records, then certified these matters to this court because of concerns as to whether the court of appeals had jurisdiction to issue a supervisory writ to a judge presiding over a John Doe proceeding. The court of appeals also asked for clarification in regard to the scope of secrecy of an appellate record in such a proceeding. We accepted certification and granted a motion filed by the Journal Sentinel, Inc. and The Capital Times Co. (Newspapers) to intervene with respect to the issue of the scope of secrecy of an appellate record in a John Doe proceeding.

¶ 2. We now conclude that the court of appeals has jurisdiction to issue a supervisory writ to a John Doe judge. We conclude further that a John Doe judge has the authority to disqualify counsel for a witness in a John Doe proceeding but must ensure that there is a record of that decision for review. Finally, we hold that when documents are submitted under seal in connection with a petition for supervisory writ that stems from a secret John Doe proceeding, the court of appeals must conduct an in camera review of those documents prior to issuing an order that continues the sealing of such documents, applying the criteria set forth herein.

¶ 3. The underlying John Doe proceeding involves an investigation by Dane County District Attorney Brian Blanchard into possible illegal campaign activity by the partisan legislative caucuses of the Wisconsin Senate and Wisconsin Assembly, as well as various state employees and legislators.1 The underlying investigation is subject to a secrecy order entered by the John Doe judge on July 27, 2001, as amended by order dated August 17, 2001 and order dated March 6, 2003.

¶ 4. The petitioners are three separate individuals who were subpoenaed to testify in the underlying John Doe proceeding. After these writs were filed in the court of appeals, the court of appeals sua sponte ordered all the files in these three matters sealed. As a result of this action, the Newspapers filed a motion to intervene, which, as noted, this court granted when it accepted certification by order dated July 29, 2002.

¶ 5. By virtue of the secret nature of the underlying John Doe proceedings, the record before this court is somewhat sparse. Indeed, because these are writ proceedings commenced in the court of appeals, we do not have access to the record of the underlying John Doe proceeding. The facts presented to this court regarding each of the three petitions are as follows:

UNNAMED PERSON NO. 1

¶ 6. Unnamed Person No. 1 is represented by the law firm of Gimbel, Reilly, Guerin & Brown. In the course of the John Doe proceeding, the district attorney filed a motion to disqualify counsel for Unnamed Person No. 1. As grounds, the district attorney alleged that different lawyers at this firm had represented other witnesses subpoenaed to testify in the John Doe proceeding. The lawyers could not obtain the usual waivers and consents from their clients because the secrecy order precluded disclosing the names of their clients. ¶ 7. Based on information presented by the Dane County District Attorney, the John Doe judge issued a non-final order disqualifying Unnamed Person No. 1's counsel based on the alleged conflict of interest which was deemed not subject to waiver due to the secrecy order. Unnamed Person No. 1 filed a petition for supervisory writ2 asking the court of appeals to issue a writ precluding the John Doe judge from disqualifying his or her counsel. As part of this petition, Unnamed Person No. 1 challenged the authority of the John Doe judge to disqualify counsel in this manner.

¶ 8. Subsequently, the State moved to dismiss as moot the writ filed by Unnamed Person No. 1, indicating that it has "no current intention" of subpoenaing Unnamed Person No. 1. The petitioner responded that the matter is not moot because the State has not withdrawn its objection to his or her counsel and has "left open the door" to subpoenaing him or her in the future.

¶ 9. On May 30, 2002, before the court of appeals acted on the motion to dismiss, the John Doe judge issued an order vacating her earlier order disqualifying Unnamed Person No. 1's counsel.3 Notwithstanding this order, Unnamed Person No. 1 maintains that the matter is not moot, emphasizing that the question of a John Doe judge's authority to disqualify counsel should be resolved. The matter was certified to this court with the motion to dismiss still pending before the court of appeals.

UNNAMED PERSON NO. 2

¶ 10. The procedural background relevant to Unnamed Person No. 2 is similar to that of Unnamed Person No. 1. The district attorney filed a motion to disqualify counsel for Unnamed Person No. 2, who is represented by the law firm of Murphy & Desmond. Again, the disqualification motion was based on an alleged conflict of interest involving the firm's representation of multiple witnesses in the John Doe proceeding.

¶ 11. As with Unnamed Person No. 1, the John Doe judge issued an order disqualifying counsel based on information presented by the Dane County District Attorney. Unnamed Person No. 2 contends that the information was disclosed to the judge in a private session that excluded both the petitioner and the petitioner's counsel. Accordingly, Unnamed Person No. 2 filed a petition for supervisory writ4 asking the court of appeals to issue a writ precluding the John Doe judge from disqualifying his or her counsel.

¶ 12. On May 2, 2002, the State moved to dismiss Unnamed Person No. 2's writ as moot, indicating that it has "no current intention" of subpoenaing this petitioner. On May 30, 2002, the John Doe judge issued an order vacating the order disqualifying counsel.5 Unnamed Person No. 2 did not oppose the motion to dismiss but the matter was certified to this court before the court of appeals ruled on the motion. Accordingly, the State's motion to dismiss Unnamed Person No. 2's petition for supervisory writ is still pending.

UNNAMED PERSON NO. 3

¶ 13. Unnamed Person No. 3 filed a petition for supervisory writ alleging different facts. Unnamed Person No. 3, a former employee of the Assembly Democratic Caucus, was subpoenaed to testify in connection with the underlying John Doe proceeding. Unnamed Person No. 3 appeared at the John Doe proceeding on March 13, 2002 and exercised his or her Fifth Amendment rights with respect to several questions. The day before he or she was ordered to appear again, on March 25, 2002, Unnamed Person No. 3 filed a petition for supervisory writ, a motion seeking relief from the subpoena, and a stay of the entire John Doe proceeding. The request for a stay was denied. Subsequently, Unnamed Person No. 3 was granted immunity in open court, testified and was released from the subpoena.

¶ 14. Unnamed Person No. 3's petition for a writ involved the claim that Dane County District Attorney Brian Blanchard had an impermissible conflict of interest, such that he should not have remained involved in the John Doe investigation generally, or in this petitioner's subpoena or questioning, specifically. Unnamed Person No. 3 claims further that the John Doe judge misused her discretion by failing to exclude District Attorney Blanchard because of this alleged conflict. This petitioner asserts that the entire John Doe proceeding should be halted on the grounds that it is impermissibly tainted by District Attorney Blanchard's involvement.

¶ 15. As evidence of the alleged conflict of interest, Unnamed Person No. 3 references a...

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