State ex rel. Jackson v. Coffey
| Decision Date | 08 January 1963 |
| Citation | 18 Wis.2d 529,118 N.W.2d 939 |
| Parties | STATE ex rel. Johnnle Mae JACKSON, Appellant, v. John L. COFFEY, Acting as Magistrate, etc., Respondent. STATE ex rel. Mildred SMITH, Appellant, v. John L. COFFEY, Acting as Magistrate, etc., Respondent. |
| Court | Wisconsin Supreme Court |
Dominic H. Frinzi and Nicholas C. Catania, Milwaukee, for appellants.
John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, for respondent.
Petitioners assert several grounds for challenging Judge Coffey's authority to commit them to jail in order to compel them to answer questions. It will be seen that our conclusion on the first ground requires that the writ of prohibition restraining Judge Coffey from compelling petitioners' testimony under sec. 325.34, Stats., (the immunity statute) be made absolute. The parties have, however, briefed and argued the other grounds, and it is reasonable to expect that if these questions are not now disposed of they will be raised repeatedly in the John Doe proceeding out of which these petitions stem. We therefore consider and decide all the grounds which have been argued to the extent that they are squarely presented by the record before us.
Sec. 325.34, Stats., 1 employs the immunity technique to offset the privilege against self incrimination. If a witness refuses to testify or produce evidence upon a valid claim that the testimony or evidence would incriminate him, this statute authorizes compelling the witness to testify or produce evidence nevertheless, and the statute grants the witness immunity from liability to forfeiture or penalty on account of any transaction concerning which he may testify or give evidence as a result of such compulsion. By virtue of the immunity conferred upon him, the testimony or evidence can no longer incriminate him, and thus the compulsion does not violate the constitutional privilege against self incrimination. 2
Sec. 325.34, Stats., applies whenever a person is required to give evidence 'in any criminal examination, hearing or prosecution.' The quoted language is not limited to testimony or evidence required in the course of trial of a criminal action, or of some other hearing in the presence of a court. It is broad enough to cover a John Doe examination such as we have here. It is broad enough to cover, as well, a preliminary examination under sec. 954.08, Stats., and an inquiry by a grand jury.
The section says, however, that the compulsion is to be 'by order of the court' and the testimony which determines the scope of the immunity is that which is given 'in obedience to the command of the court.'
Where a trial or other hearing in a criminal action is in progress before a court, that court has the power to compel testimony, conferred by sec. 325.34, Stats. A grand jury performs its work under the supervision of a court, 3 and it must be that court upon which sec. 325.34 confers the power to compel testimony before a grand jury.
The problem in these cases arises because a John Doe examination is not conducted by, nor under the supervision of any court. It is true that Judge Coffey is a circuit judge and, as such, has power to preside over a branch of the circuit court. But a John Doe proceeding is conducted by a magistrate, 4 who may be a court commissioner or justice of the peace as well as a judge of a court of record. 5
The law ordinarily makes a clear distinction between a magistrate and a court. The distinction exists even where the person who acts in the capacity of magistrate is also the judge of a court of record. 6 Petitioners rely on this distinction and suggest that since there is no court in a John Doe proceeding to compel testimony, sec. 325.34, Stats., can not apply to it. The attorney general argues that since a John Doe examination is a 'criminal examination' the legislature intended sec. 325.34 to apply, and in order to give effect to that intent, we must construe 'the court' to include 'the magistrate.'
Petitioners, it seems to us, would unduly restrict the general terms 'any criminal examination, hearing or prosecution' in order to give an exact meaning to the term 'the court' and respondent would unduly expand the meaning of 'the court' in order to give full meaning to 'any criminal examination, hearing or prosecution.'
It is doubtless important to the state to have the immunity technique available in a John Doe proceeding. Yet the public interest can be jeopardized by an unwise use of the statutory power. 7
Although the witness has no legal complaint against being compelled to testify when his testimony immunizes him, there are unpleasant consequences from which he can not be immunized, i. e., stating facts which degrade him, or facts which may subject him to prosecution by the United States or another state. The witness has an interest in a record which will establish with certainty the fact that he has gained immunity.
If the legislature used the word 'court' advisedly, we see no reason why the statute could not be made to operate in a John Doe proceeding (or in a preliminary examination) by an application to a court for an order compelling testimony notwithstanding the assertion of the privilege against self incrimination, the procedure being similar to that which would be employed if the refusal occurred before a grand jury.
We conclude that the term 'the court' in this statute is to be given its proper and ordinary meaning, and not stretched to cover magistrates. Although in the instant cases, the magistrate is a judge of a court of record, this need not be so in every case. Furthermore, certain procedural formalities are woven into action by a court, and these tend to insure the considered and responsible exercise of an important power. Although the sitting of the court for this purpose need not be public, 8 the judge is attended by court officials, the parties and their counsel while court is in session, 9 minutes are to be kept by the clerk, 10 and final orders are to be recorded. 11
We conclude that sec. 325.34, Stats., applies to a witness in a John Doe proceeding, but that the power in such case is to be exercised by a court. So construed, the statute remains ambiguous as to the identity of the court which has power to act. We deem the most reasonable construction to be that the power is vested in any court of record of the county. This interpretation, it seems to us, does less violence to the words of the statute, in the light of its purpose, than the interpretation contended for by either party.
The attorney general has relied upon a statement appearing in State ex rel. Kowaleski v. District Court, 12 as follows:
There seems to have been no printed brief on behalf of appellant in that case. From the brief of respondent, and the briefs of both parties on motion for rehearing, as well as the statement just quoted from the opinion, it appears that the contest was whether the district attorney had promised immunity and, if so, what effect such promises had on the John Doe proceeding. The parties assumed the magistrate could grant immunity, and did not brief the point. In so far as the quoted language upholds the power of the magistrate to compel testimony under sec. 325.34, Stats., it is withdrawn.
Our opinion is that Judge Coffey, acting as magistrate, had no power to compel testimony under sec. 325.34, Stats., and should be restrained from attempting to enforce against petitioners any order he made in reliance on that section. To that extent the alternative writ of prohibition should be made absolute.
The parties stipulated that the governor had written a letter to the attorney general stating that it constituted authority to appear for the state and prosecute the John Doe proceeding pending before Judge Coffey as magistrate. The letter also requested the attorney general to supervise the prosecution of any cases where criminal warrants may be issued as a result of the proceeding.
Sec. 325.34, Stats., requires that the order of the court compelling testimony be made 'on motion of the district attorney.' Petitioners contend that the motion of the assistant attorney general is insufficient.
The purpose of requiring the order to be made on motion of the district attorney is to make certain that the state's interest in possible prosecution of the witness be protected. If immunity is to be granted to one of several offenders in order to obtain conviction of the others, the state is interested in the selection of the offender to be immunized. The state is interested also that immunity not be granted if sufficient evidence is otherwise available. Ordinarily it is the duty of the district attorney to prosecute all criminal actions in the courts of his county. 13 On the other hand, no statute gives the attorney general power to appear and prosecute criminal actions generally except in the supreme court, and in this state the attorney general has no common-law powers or duties. 14
Sec. 14.53(1), Stats., however, requires that the attorney general shall 'when requested by the governor or...
To continue reading
Request your trial
-
State v. Washington
...crime has occurred. To the extent that the judge exceeds this limitation, there is an abuse of discretion. State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 545, 118 N.W.2d 939 (1963). If the facts show that the judge has extended the proceeding in duration or scope beyond the reasonable inte......
-
Hull v. State Farm Mut. Auto. Ins. Co.
...and litigants, we may consider additional issues which have been fully briefed and are likely to recur. See State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 532, 118 N.W.2d 939 (1963); Metropolitan Greyhound Mgt. Corp. v. Wisconsin Racing Bd., 157 Wis.2d 678, 693-94, 460 N.W.2d 802 (Ct.App.1......
-
State v. Cummings
...a John Doe judge's powers to those specifically enumerated in the statute. Finally, Cummings sets forth State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 118 N.W.2d 939, 942-43 (1963). However, the holding in Coffey, like that in Brady, was solely based upon the statutory language applicable ......
-
State v. Armstrong
...the interest of judicial economy where, as here, the issues were fully briefed and are likely to recur. See State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 532, 118 N.W.2d 939 (1963); Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938). ¶31 We note at the outset of our discussion that ......