State v. Unnamed Defendant

• Decision Date: 22 June 1989
• Docket Number: No. 87-2152-CR,87-2152-CR
• Citation: 441 N.W.2d 696,150 Wis.2d 352
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. UNNAMED DEFENDANT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 696

441 N.W.2d 696

150 Wis.2d 352

STATE of Wisconsin, Plaintiff-Respondent, v. UNNAMED DEFENDANT, Defendant-Appellant.

No. 87-2152-CR.

Supreme Court of Wisconsin.

Argued Jan. 5, 1989.

Decided June 22, 1989.

Dennis P. Coffey, argued, and Coffey, Coffey & Geraghty, on brief (in court of appeals), Milwaukee, for defendant-appellant.

David J. Becker, Asst. Atty. Gen., with whom on the brief (in court of appeals) was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

HEFFERNAN, Chief Justice.

This is a permissive appeal of an order of the circuit court, denying a motion to dismiss a criminal complaint issued after a John Doe proceeding under sec. 968.26, Stats. The court of appeals certified the appeal to this court pursuant to sec. (Rule) 809.61. We accepted the certification. We affirm Judge Danforth's order.

This case presents the question of whether sec. 968.26, Stats., ¹ the John Doe criminal proceeding provision, violates the constitutional doctrine of separation of powers.

This case arose as follows. The complainant alleged that she was sexually assaulted in Waukesha county by the unnamed defendant (hereinafter the defendant) in August of 1985. Both the complainant and the defendant were well known to members of the local legal community. The Waukesha county sheriff's department investigated the complaint and contacted the county district attorney's office.

The Waukesha county district attorney's office perceived a potential ethical problem in the matter because members of the office knew both the complainant and the defendant. Steven E. Tinker, an assistant district attorney for Dane county, was therefore brought in and appointed acting district attorney for Waukesha county in this matter. Tinker reviewed the investigative file of the sheriff's department. On about September 20, 1985, Tinker decided that he would not commence criminal proceedings against the defendant because he did not believe that he would be able to establish guilt beyond a reasonable doubt.

When Tinker refused to file charges, the complainant petitioned the Waukesha county circuit court pursuant to sec. 968.02(3), Stats., ² to initiate criminal proceedings. Because the judges of the Waukesha county circuit court personally knew the complainant and defendant, Judge Walter J. Swietlik of Ozaukee county was appointed to consider the complainant's petition. On February 19, 1986, Judge Swietlik heard evidence on the petition and directed Tinker to reevaluate his charging decision. On March 5, 1986, Tinker advised Judge Swietlik that, even after reconsideration, he would not change his decision not to file charges. Judge Swietlik then ordered the Waukesha county district attorney, or his designee, to file charges against the defendant.

Judge Swietlik's order was stayed pending appeal. This court's decision in State ex rel. Unnamed Petitioners v. Connors, 136 Wis.2d 118, 401 N.W.2d 782, issued on March 6, 1987, and declared sec. 968.02(3), Stats., unconstitutional because it violated the separation of powers doctrine by unduly impinging on the powers of the executive branch of the government. On May 6, 1987, the court of appeals issued a writ enjoining Judge Swietlik from proceeding in the matter.

The complainant avoided the effect of the Connors mandate by petitioning on March 26, 1987, the Waukesha county circuit court pursuant to 968.26, Stats., for commencement of a John Doe criminal proceeding. Judge Richard T. Becker of Washington county was appointed to consider the petition. Judge Becker held a hearing on the matter on May 6, 1987. Part of the hearing was closed to the public, and to the defendant's attorney. During the closed portion of the hearing, a special prosecutor elicited the complainant's testimony. Three weeks later Judge Becker signed and filed a complaint against the defendant. ³ With the filing of the complaint, the instant action was commenced. Section 968.02(2).

Judge John Danforth of Jefferson county was assigned the matter as judge for Waukesha county. Counsel for the defendant moved to have the action dismissed, arguing that the complaint had been issued pursuant to a statute that unconstitutionally gave executive powers to the judiciary. A hearing was held on October 16, 1987 on the motion. By order of November 5, 1987, Judge Danforth denied defendant's motion to dismiss, holding that the John Doe procedure for commencement of a criminal complaint was constitutional. The defendant petitioned and was granted permission to appeal Judge Danforth's order denying the motion to dismiss. The court of appeals then certified the matter to this court and we accepted the certification.

The defendant in this case relies heavily on the opinion in State v. Connors for the proposition that discretion to charge or not in a criminal case is exclusively an executive power. In Connors we held that the judicial charging procedure provided by sec. 968.02(3), Stats., a procedure somewhat similar to the procedure under scrutiny in this case, was an unconstitutional violation of the doctrine of separation of powers.

The state, however, argues that this case arising out of a John Doe proceeding is directly controlled by State v. Washington, 83 Wis.2d 808, 266 N.W.2d 597 (1978), which holds that the John Doe statute does not violate the doctrine of separation of powers. The state also argues that Connors was incorrectly decided and urges us to overrule that precedent.

We are thus confronted with a clash between the rationale of the Connors opinion and a practice that has been found to be constitutionally sound in Washington. We conclude that the premise of Connors--that initiation of criminal prosecution is an exclusively executive power in Wisconsin--is erroneous. We therefore overrule the precedent established in Connors and affirm the order of the circuit court in this case.

The John Doe criminal proceeding has a long history in Wisconsin. The proceeding has been used by courts, pursuant to statute, since 1839. State ex rel. Long v. Keyes, 75 Wis. 288, 292, 44 N.W. 13 (1889); Washington, 83 Wis.2d at 819, 266 N.W.2d 597. A John Doe proceeding requires a judge to assume two functions: investigation of alleged violations of the law and, upon a finding of probable cause, initiation of prosecution. Washington at 820. The proceedings are presumptively open, although the John Doe judge may in the exercise of discretion close the proceeding to the public for compelling reasons. State ex rel. Newspapers v. Circuit Court, 124 Wis.2d 499, 370 N.W.2d 209 (1985). The John Doe judge's discretion guides the extent of the inquiry. Section 968.26, Stats.

The defendant's attack on the constitutionality of sec. 968.26, Stats., the John Doe criminal proceeding provision, asserts that the procedure provided by the statute violates the doctrine of separation of powers. The defendant argues that the Washington opinion is limited by its dependence on the theory of judge and prosecutor cooperation. In the Connors opinion, defendant argues, this court validated the authority of Washington only insofar as it allowed cooperative blending or sharing of powers. Connors, 136 Wis.2d at 141, n. 9, 401 N.W.2d 782. The defendant points out that the opinion in Washington, 83 Wis.2d at 823, 266 N.W.2d 597, specifically rejects the notion of judicial orchestration of an investigation. Defendant contrasts the facts of this case with the justifying rationale in Washington. In this case, the John Doe judge orchestrated the prosecution. In this case, the prosecution was not, as in Washington, a joint executive and judicial undertaking: the Waukesha district attorney was not even consulted.

We recognize that the Washington case was concerned primarily with the investigative role of the judge under the John Doe statute, rather than the charging role. We also recognize, and reaffirm, the statements in Washington and State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 166 N.W.2d 255 (1969), that suggest that the John Doe is normally and preferably carried out in cooperation with the district attorney. As desirable as such cooperation may be, however, the John Doe statute itself requires no participation by the district attorney. We find that the separation of powers analysis employed in the Washington opinion is also applicable in this case.

The doctrine of separation of powers is not express but rather is "embodied in the clauses of the Wisconsin Constitution providing that the legislative power shall be vested in a senate and assembly (art. IV, sec. 1), the executive power in a governor and lieutenant governor (art. V, sec. 1) and the judicial power in the courts (art. VII, sec. 2)." State v. Washington, 83 Wis.2d at 816, 266 N.W.2d 597. The separation of powers doctrine is an implicit provision of the Wisconsin Constitution.

Separation of powers prevents one branch of government from exercising the powers granted to other branches. Davis v. Village of Menasha, 21 Wis. 497 (1867); Thoe v. Chicago M. & S.P.R. Co., 181 Wis. 456, 195 N.W. 407 (1923). Not all governmental powers, however, are exclusively committed to one branch of government by the Wisconsin Constitution. Rules of Court Case, 204 Wis. 501, 514, 236 N.W. 717 (1931). Those powers which are not exclusively committed may be exercised by other branches. Id. In areas of shared power, however, one branch of government may exercise power conferred on another only to an extent that does not unduly burden or substantially interfere with the other branch's essential role and powers. State v. Holmes, 106 Wis.2d 31, 44, 315 N.W.2d 703 (1982). The doctrine serves to maintain the balance between the three branches, preserve their independence and integrity, and to prevent the concentration of unchecked power in the hands of one branch. Washington 83 Wis.2d at 826, 266 N.W.2d 597.

This court has three primary sources for interpretation of provisions of the Wisconsin Constitution. State...