State v. Washington

• Decision Date: 06 June 1978
• Docket Number: No. 76-431,76-431
• Citation: 83 Wis.2d 808,266 N.W.2d 597
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Hazel WASHINGTON, Defendant-Appellant, John Doe and other persons unknown, Defendants.
• Court: Wisconsin Supreme Court

Page 597

266 N.W.2d 597

83 Wis.2d 808

STATE of Wisconsin, Plaintiff-Respondent, v. Hazel WASHINGTON, Defendant-Appellant John Doe and other persons unknown, Defendants.

No. 76-431.

Supreme Court of Wisconsin.

Argued Oct. 31, 1977.

Decided June 6, 1978.

Godfrey & Kahn, S. C., Milwaukee, and Michael Ash (argued), of counsel, Milwaukee, for defendant-appellant.

Frederick J. Erhardt, Asst. Atty. Gen. (argued) and Charles B. Schudson, Milwaukee County, Asst. Dist. Atty. (argued), with whom Bronson C. La Follette, Atty. Gen., and E. Michael McCann, Milwaukee County Dist. Atty., on brief, for plaintiff-respondent.

ABRAHAMSON, Justice.

This appeal is taken from an order of the trial court directing Hazel Washington to produce documents in a John Doe proceeding and from a further order finding her in civil contempt for refusing to obey the order to produce. We affirm both orders.

I.

On December 14, 1976, Hazel Washington, President of Family Outreach Social Services Agency, Inc. (Family Outreach), was served with a subpoena duces tecum signed by Judge Burns. The subpoena required her to produce documents belonging to Family Outreach at a John Doe proceeding presided over by Judge Burns. The John Doe proceeding was being conducted under sec. 968.26, Stats. ¹

Family Outreach provides doctor-prescribed psychotherapeutic services through professional social workers and is compensated primarily through federally financed medical assistance programs. By letters of December 17 and December 20, 1976, Washington informed Judge Burns that she would respectfully decline to produce the documents on the grounds, inter alia, that the subpoena called for the production of documents within the physician-patient privilege (sec. 905.04, Stats.) and that the subpoena violated Family Outreach's fourth amendment right to be secure from unreasonable searches and seizures. Judge Burns requested that Washington and the State brief and argue the various legal questions raised by Washington. Briefs were filed.

On January 7, 1977, Judge Burns convened a closed session hearing as part of the John Doe investigation and heard extensive argument by counsel. At the close of the hearing, Judge Burns indicated that he would sign an order requiring Washington to produce the documents in question. On January 18, 1977, Washington was served with Judge Burns' order requiring her to produce the documents on January 21, 1977. ² The State's brief on appeal and the record indicate that an informal conference was held on January 20, 1977, attended by Judge Burns and counsel for the State and for Washington. ³

On January 21, 1977, Judge Burns convened another secret session in the John Doe proceedings. Again, counsel argued the legal issues of the subpoena, and then Washington was called to the stand, advised of her rights against self-incrimination, and asked some preliminary questions which she answered. When asked whether she had brought the documents specified in the subpoena, she declined to produce them, saying she was relying on the "fifth amendment," as well as the legal arguments made by her counsel. The Assistant Attorney General then moved that the John Doe proceedings be adjourned and that a special proceeding be convened in open court pursuant to chapter 295 of the Wisconsin Statutes governing civil contempt. Up until that moment all proceedings had been in closed session, and all "orders" were subject to the secrecy order of the John Doe proceedings. Judge Burns granted the motion and a special proceeding of the court in open session was held, resulting in a court order directing Washington to produce the documents. Washington declined to obey the order, and the court found by a preponderance of the evidence that Washington's refusal constituted contempt of court under chapter 295, Stats. The court ordered that Washington be committed to the Milwaukee county jail for a period of six months or until such time as she complied with the order of the court or until the John Doe proceeding was concluded, whichever came first. Commitment was stayed pending appeal. Appeal was taken from the order of the John Doe judge served on January 18, 1977, and from the order made at the open court hearing on January 21, 1977, both orders requiring Washington to produce the corporate documents, and from the contempt order dated January 25, 1977.

II.

We shall consider first Washington's contention that sec. 968.26, Stats., which gives statutory authority for John Doe proceedings, violates the constitutional requirements concerning separation of powers.

The doctrine of separation of powers, a fundamental principle of American constitutional government, 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). We have construed these provisions to prohibit one branch of government from exercising the powers granted to the other branches. ⁴

In Washington's view, sec. 968.26, Stats., violates the Wisconsin Constitution by investing in the John Doe judge, a member of the judicial branch of government, an investigatory power which properly can be exercised only by members of the executive branch of government. The investigation of crime is part of the executive's duty to assure faithful execution of the laws. Art. V, sec. 4, Wis.Const. Washington asserts that the function of the John Doe judge merges with that of the prosecutor, a representative of the executive branch, as judge and prosecutor jointly search for evidence of criminal activity.

The role of a John Doe judge has not been described in detail in the statutes or the cases. The parties in the instant case portray that role in vastly different ways. ⁵

Washington's brief and oral argument characterize the John Doe judge as possessing the power to run a criminal investigation "in combination with prosecutors, policemen, and expert analysts." Washington's description of the John Doe process is, in part, as follows:

". . . Disagreements and unseemly conflicts can and, in Wisconsin, have arisen between judges and District Attorneys or other members of the executive branch concerning the proper outcome of John Doe investigations. When legislators have been targets, judges can and have become embroiled in controversy with the legislative branch over the zeal and methodology of the investigation.

"With the very real possibility of conflict developing between the representative of the judicial branch and the representative of the executive branch, a pattern of informal, secret consultation typically develops. Since conflict might jeopardize the investigation, the more usual result is agreement as to the common investigative enterprise. Thus, the judiciary becomes inextricably entwined with the executive and linked with executive functions. Judges become joint participants with prosecutors and policemen in exhaustive, lengthy searches for crime and criminals.

"John Doe proceedings as they have evolved in Wisconsin have become tremendous engines of inquiry. They may reach to multiple topics and extend for months or years. They typically operate in complete secrecy. They may utilize the combined resources of many executive branch agencies. The judge running such a proceeding commands an army of aides. . . ."

The state portrays the John Doe judge as a neutral detached magistrate whose duty it is to determine on the basis of the evidence presented whether someone will be charged with a crime. The State's brief sketches the John Doe judge as follows:

"Sec. 968.26 does not envisage a prosecutorial role for the judge. There is no language in the statute directing that the judge shall 'conduct' or 'command' an investigation or act as part of the prosecution. . . . (A) John Doe (judge) must act in a 'judicial' manner, and is not a part of the prosecution. . . . John Doe judges serve as neutral magistrates and not as the prosecutor's enforcer.

". . .

". . . A John Doe judge does not act as the field marshal in a sweeping campaign against crime. According to sec. 968.26, a John Doe judge may examine a witness but the witness is produced by the prosecution as is the other evidence presented. The bare fact that the judge may question a John Doe witness is not constitutionally objectionable because, at trial, a judge may interrogate witnesses as well as call them at his own motion. Section 906.14, Stats. The test at trial and in a John Doe is whether a judge conducts himself or herself in a fair and impartial manner.

". . .

"The defendant asserts that the closest parallel to John Does are investigative grand juries. Although the two are similar in some respects, the analogy should be rejected for a number of reasons relating to the disparate roles of the judge and the nature of the proceedings. In State v. Doe, 78 Wis.2d 161, 165, (254) N.W.2d (210) (1977), this court briefly compared the two proceedings and concluded that John Does 'afford substantially more protection to a potential accused than does a grand jury.' . . .

" "Furthermore, a witness at a John Doe is entitled to have counsel present during questioning and as shown by the record in this case, the judge may allow witness' counsel to argue before the judge. . . . Neither state nor federal law extends this privilege to grand jury witnesses. . . . (A) John Doe judge issues only a complaint which is in turn subject to attack at a preliminary hearing on probable cause grounds as well as a motion to dismiss. . . . In addition, a John Doe is of a more restricted scope than a grand jury, limited basically to the subject matter of the complaint upon which the John Doe is commenced. Indeed this last factor underscores the role of a John Doe judge as a neutral magistrate who decides legal and factual issues. That is, a John Doe ...