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State ex rel. Two Unnamed Petitioners v. Peterson

Supreme Court of Wisconsin

July 16, 2015

State of Wisconsin ex rel. Two Unnamed Petitioners, Petitioner,
v.
The Honorable Gregory A. Peterson, John Doe Judge and Francis D. Schmitz, Special Prosecutor, Respondents. State of Wisconsin ex rel. Francis D. Schmitz, Petitioner,
v.
Honorable Gregory A. Peterson, John Doe Judge, Respondent, Eight Unnamed Movants, Interested Party. In the Matter of John Doe Proceeding State of Wisconsin ex rel. Three Unnamed Petitioners, Petitioner,
v.
the Honorable Gregory A. Peterson, John Doe judge, the Honorable Gregory Potter, Chief Judge and Francis D. Schmitz, as Special Prosecutor, Respondents L.C. Nos. 2013JD11, 2013JD9, 2013JD6, 2013JD1, 2012JD23

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PETITION for supervisory writ and appeal from an order of a John Doe Judge for Milwaukee County, Iowa County, Dodge County, Dane County, and Columbia County, Gregory A, Peterson, Reserve Judge.

PETITION for supervisory writ and review of a decision of the Court of Appeals.

For the Petitioners (case nos. 2013AP2504-W through 2013AP2508-W and 2014AP296-OA) and Interested Parties (case nos. 2014AP417-W through 2014AP421-W) there were briefs by Attorney Dean A. Strang, StrangBradley, LLC, Madison; Attorney Steven M. Biskupic and Attorney Michelle L. Jacobs, Biskupic & Jacobs, S.C., Mequon; Attorney Dennis P. Coffey, Mawicke & Goisman, SC, Milwaukee; Attorney Matthew W. O'Neill, Fox O'Neill Shannon, S.C., Milwaukee; Attorney James B. Barton, Hansen Reynolds Dickinson Crueger LLC, Milwaukee; Attorney Eric J. Wilson, Godfrey & Kahn, S.C., Madison; and Attorney Jeffrey James Morgan, LeBell, Dobrowski & Morgan, LLP, Milwaukee.

For the Respondents (case nos. 2013AP2504-W through 2013AP2508-W, 2014AP417-W through 2014AP421-W and 2014AP296-OA) there were briefs by Assistant Attorney General David C. Rice, with whom on the briefs was Attorney General J. B. Van Hollen (term of office ending December 31, 2014) and Attorney General Brad Schimel (term of office commencing January 1, 2015) and Special Prosecutor Francis D. Schmitz (Petitioner in case nos. 2014AP417-W through 2014AP421-W), Milwaukee.

Amici Curiae briefs were filed by Attorney Benjamin T. Barr (pro hac vice), Cheyenne, WY and Attorney Stephen R. Klein (pro hac vice), Cheyenne, WY on behalf of the Wyoming Liberty Group with whom on the brief was Attorney Matthew M. Fernholz and Cramer, Multhauf & Hammes, LLP, Waukesha; Attorney James Bopp, Jr., Terre Haute, IN, on behalf of the James Madison Center for Free Speech and on behalf of Wisconsin Right to Life, Inc. with whom on the briefs was Attorney Michael D. Dean and Michael D. Dean, LLC, Brookfield; Attorney James R. Troupis and Troupis Law Office, LLC, Cross Plains, on behalf of the Ethics and Public Policy Center; Attorney Adam J. White (pro hac vice), Washington, D.C. and Boyden Gray & Associates, Washington, D.C., on behalf of Former Members of the Federal Election Commission Lee Ann Elliot, David Mason, Hans von Spakovsky and Darryl Wold with whom on the brief were Attorney James R. Troupis and Attorney Paul M. Ferguson, Cross Plains; Attorney Jonathan Becker, Attorney Nathan W. Judnic and Attorney Kevin J. Kennedy on behalf of the Wisconsin Government Accountability Board, Madison; Attorney Richard M. Esenberg, Attorney Brian W. McGrath and the Wisconsin Institute for Law & Liberty, Milwaukee, on behalf of The Hon. Bradley A. Smith, Center for Competitive Politics, and Wisconsin Family Action; Attorney J. Gerald Hebert (pro hac vice), Attorney Tara Malloy (pro hac vice), Attorney Paul S. Ryan (pro hac vice), Attorney Megan P.

McAllen (pro hac vice) and The Campaign Legal Center, Washington D.C., Attorney Fred Wertheimer (pro hac vice) and Democracy 21, Washington, D.C. and Attorney Donald J. Simon (pro hac vice) and Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C. on behalf of Campaign Legal Center, Democracy 21, Common Cause in Wisconsin and League of Women Voters of Wisconsin with whom on the brief was Attorney Susan M. Crawford and Cullen Weston Pines & Bach LLP, Madison; Attorney David B. Rivkin, Jr. (pro hac vice), Attorney Lee A. Casey (pro hac vice), Attorney Mark W. Delaquil (pro hac vice), Attorney Andrew M. Grossman (pro hac vice), Attorney Richard B. Raile (pro hac vice) and Baker & Hostetler LLP, Washington, D.C. on behalf of Citizens for Responsible Government Advocates, Inc. with whom on the brief was Attorney Christopher M. Meuler and Friebert Finerty & St. John, S.C., Milwaukee; Attorney Matthew Menendez (pro hac vice), Attorney Daniel I. Weiner (pro hac vice), Attorney Alicia L. Bannon (pro hac vice) and Brennan Center for Justice at NYU School of Law on behalf of Professors of Legal Ethics, with whom on the brief was Attorney Thomas R. Cannon, Milwaukee.

MICHAEL J. GABLEMAN, J. ANN WALSH BRADLEY, J., did not participate. DAVID T. PROSSER, J. (concurring). Chief Justice PATIENCE DRAKE ROGGENSACK joins Sections IV and V of this opinion, and that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join Section IV of this opinion. ANNETTE KINGSLAND ZIEGLER, J. (concurring). SHIRLEY S. ABRAHAMSON, J. (concurring in part, dissenting in part). N. PATRICK CROOKS, J. (concurring in part, dissenting in part).

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[363 Wis.2d 25] ORIGINAL ACTION for declaratory judgment.

MICHAEL J. GABLEMAN, J.

[¶1] These cases arise from a John Doe proceeding originally initiated in Milwaukee County, and subsequently expanded to four additional counties, Iowa County, Dodge County, Dane County, and Columbia County. Though not consolidated, these proceedings have been overseen by a single John Doe judge and organized by a

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single special prosecutor (Francis Schmitz). For the sake of clarity, we will refer to all five proceedings as a single " John Doe investigation." The investigation has been ongoing for several years and has been the subject of much litigation.[1]

[¶2] According to the special prosecutor, the purpose of the John Doe investigation is to root out [363 Wis.2d 26] allegedly illegal campaign coordination between certain issue advocacy groups and a candidate for elective office. To further the investigation, the special prosecutor sought, and received, wide-ranging subpoenas and search warrants for 29 organizations and individuals, seeking millions of documents that had been created over a period of several years. Various targets (collectively " the Unnamed Movants" ) moved the John Doe judge to quash the subpoenas and search warrants and to return any property seized by the special prosecutor. The John Doe judge, the Hon. Gregory A. Peterson, presiding, granted the motions to quash and ordered the return of all property seized. Reserve Judge Peterson stayed the order, however, and also halted the John Doe investigation pending our resolution of the cases before us.

[¶3] The first case we address is an original action brought by Unnamed Movants Nos. 6 and 7, State ex rel. Two Unnamed Petitioners v. Peterson (" Two Unnamed Petitioners" ). Unnamed Movants Nos. 6 and 7 seek a declaration of rights that the special prosecutor's theory of the case is invalid under Wisconsin law. Specifically, they ask that we declare that coordinated issue advocacy of the kind alleged by the special prosecutor is not regulated under Wis. Stat. Ch. 11 (2011-12),[2] Wisconsin's campaign finance law.

[¶4] The second case we review is a petition brought by the special prosecutor for a supervisory writ and an appeal of Reserve Judge Peterson's decision and order quashing the subpoenas and search [363 Wis.2d 27] warrants, State ex rel. Schmitz v. Peterson (" Schmitz v. Peterson" ). The special prosecutor argues that Reserve Judge Peterson improperly quashed the subpoenas and search warrants because the records in the John Doe investigation establish a reasonable belief that the Unnamed Movants violated Wisconsin's campaign finance law. This case is before us on the Unnamed Movants' petitions to bypass the court of appeals pursuant to Wis. Stat. § 809.60 (2013-14).

[¶5] The third case we address is a petition for a supervisory writ and a review of a decision of the court of appeals, State ex rel. Three Unnamed Petitioners v. Peterson (" Three Unnamed Petitioners" ). This petition for supervisory writ was brought by Unnamed Movants Nos. 2, 6, and 7, and broadly challenges whether the John Doe investigation can be initiated in five separate counties under a single John Doe judge, and whether the special prosecutor was properly appointed. The court of appeals denied the supervisory writ and Unnamed Movants Nos. 2, 6, and 7 appealed that decision to this court.

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[¶6] Our order granting and consolidating[3] each of these cases identified 14 issues presented by the complex nature of the cases. These issues related to the procedural nature of the John Doe investigation, as well as whether the conduct alleged by the special prosecutor is actually a violation of Ch. 11. Subsequent briefing by the parties has revealed that the cases can be resolved on much narrower grounds than those that were originally submitted, and we have written this opinion accordingly.

[363 Wis.2d 28] Doe [¶7] We can resolve the original action, Two Unnamed Petitioners, by first examining whether the statutory definitions of " committee," " contributions," " disbursements," and " political purposes" in Wis. Stat. § § 11.01(4), (6), (7), and (16) are limited to express advocacy[4] or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. Second, if the definitions extend to issue advocacy coordination, what then constitutes prohibited " coordination?" [5]

[¶8] Next, we can resolve the supervisory writ petition in Schmitz v. Peterson by answering whether the evidence gathered in the John Doe proceedings provides a reasonable belief that Wisconsin law was violated by a campaign committee's coordination with independent advocacy organizations that engaged in express advocacy.[6]

[¶9] Finally, we can resolve the supervisory writ petition in Three Unnamed Petitioners by examining: (1) Whether the Director of State Courts (" Director" ) violated a plain legal duty in appointing reserve judge, Barbara A. Kluka, as the John Doe judge to preside over a multi-county John Doe proceeding; (2) Whether the Chief Judge of the First Judicial District violated a plain legal duty in appointing reserve judge, Gregory A. Peterson, as the John Doe judge to preside over a multicounty John Doe proceeding; (3) Whether a John Doe [363 Wis.2d 29] judge violated a plain legal duty by convening a John Doe proceeding over multiple counties, which is then coordinated by the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county requests the appointment; (b) but none of the nine grounds for appointing a special prosecutor under Wis. Stat. § 978.045(1r) apply; (c) no charges have yet been issued; (d) the district attorney in each county has not refused to continue the investigation or prosecution of any potential charge; and (e) no certification that no other prosecutorial unit was able to do the work for which the special prosecutor was sought was made to the Department of Administration; and (5) If, arguendo, there was a defect in the appointment of the special prosecutor in the John Doe proceedings at issue in these matters, what effect, if any, would such a defect have on the competency of the special prosecutor to conduct the investigation; or the competency

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of the John Doe judge to conduct these proceedings?[7]

I. HOLDINGS

A.

[¶10] In Two Unnamed Petitioners, we hold that the definition of " political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution[8] [363 Wis.2d 30] Tbecause its language " 'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'" State v. Janssen, 219 Wis.2d 362, 374, 580 N.W.2d 260 (1998) (quoting Bachowski v. Salamone, 139 Wis.2d 397, 411, 407 N.W.2d 533 (1987)). However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, " political purposes" is limited to express advocacy and its functional equivalent[9] as those terms are defined in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (WRTL II). With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is " beyond the reach of [Ch. 11]." Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II). Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

[363 Wis.2d 31] [¶11] To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

B.

[¶12] In Schmitz v. Peterson, we hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26,

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to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 24, 271 Wis.2d 633, 681 N.W.2d 110, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.

C.

[¶13] Finally, in Three Unnamed Petitioners, we hold that the Unnamed Movants have failed to prove [363 Wis.2d 32] that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and although the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent preconditions for a supervisory writ.[10] Put another way, were we to grant the supervisory writ in this case, we would risk " transform[ing] the writ into an all-purpose alternative to the appellate review process," which we cannot do. Id. Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY[11][12]

[¶14] In the spring of 2010, a John Doe proceeding (John Doe I) was commenced for the purpose of investigating the alleged misuse of public resources in [363 Wis.2d 33] the Milwaukee County Executive's Office. This investigation resulted in criminal charges being filed against four individuals--Tim Russell, Kevin Kavanaugh, Kelly Rindfleisch, and Darlene Wink--in January 2012.[13]

[¶15] John Doe I also triggered a second John Doe proceeding (John Doe II), the investigation at issue here. On August 10, 2012, Milwaukee County Assistant District Attorney David Robles filed a petition for the commencement of John Doe II in the Milwaukee County circuit court. This petition sought leave to investigate alleged campaign finance violations under Wis. Stat. Ch. 11, and requested a secrecy order to cover the investigation in anticipation

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that documents would be sought from the targeted individuals. In support of his request, Robles' petition referred to an affidavit by Investigator Robert Stelter.

[¶16] Stelter's affidavit indicates that emails obtained in response to a search warrant in John Doe I suggested that there may have been coordination of fundraising between campaign committees and other related, independent groups. Reserve Judge Neal Nettesheim, the John Doe I judge, authorized the use of the information obtained in John Doe I for the purpose of requesting the commencement of John Doe II.

[363 Wis.2d 34] [¶17] On August 23, 2012, the Chief Judge of the First Judicial District, Jeffrey Kremers, assigned and forwarded the John Doe petition to Reserve Judge Kluka. On September 5, 2012, using a form titled " Application and Order for Specific Judicial Assignment," Director of State Courts John Voelker (with then-Chief Justice Shirley Abrahamson's name directly above)[14] assigned Reserve Judge Kluka to preside over the John Doe proceeding in Milwaukee County. That same day, Reserve Judge Kluka authorized the commencement of the John Doe proceeding and also granted the requested secrecy order.

[¶18] On September 6, 2012, Investigator Stelter filed an affidavit in support of a request for search warrants and subpoenas. The request covered a wide swath of desired information, including emails, conference call records, and bank records, dating from 2009 to 2012. In support of this request, Investigator Stelter provided details of numerous emails between a candidate committee and individuals and/or groups.

[¶19] On December 13, 2012, Investigator Stelter filed another affidavit in support of a request for further search warrants and subpoenas. This affidavit provided additional details about the parties and how they operated in coordination with each other. The theory of the case, as put forward by the special prosecutor, is two-fold: (1) that the independent groups and the candidate committee worked " hand in glove" such that the independent groups became mere subcommittees of the candidate's committee, thus triggering reporting and disclosure requirements under Wis. Stat. § § 11.10(4); and (2) that the coordinated issue [363 Wis.2d 35] advocacy amounted to an unlawful in-kind contribution to the candidate committee under Wis. Admin. Code § GAB 1.20.

[¶20] On January 18, 2013, Milwaukee County District Attorney John Chisholm met with then-Attorney General J.B. Van Hollen to discuss the ongoing investigation. District Attorney Chisholm sought to determine whether, given the statewide nature and gravity of the investigation, the Department of Justice (" DOJ" ) wished to become involved. On May 31, 2013, Attorney General Van Hollen sent District Attorney Chisholm a letter declining DOJ involvement in the investigation. Attorney General Van Hollen cited, among other things, potential conflicts of interest and the appearance of impropriety.

[¶21] In July 2013, three more petitions to commence John Doe proceedings were filed: District Attorney Jane Kohlwey filed a petition in Columbia County circuit court on July 22, 2013; District Attorney Larry Nelson filed a petition in Iowa County circuit court on July 25, 2013; and District Attorney Kurt Klomberg filed a petition in Dodge County circuit court on July 26, 2013.

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[¶22] On August 7, 2013, using a form titled " Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Iowa County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the John Doe proceeding in Iowa County and also entered a secrecy order.

[¶23] Also on August 7, 2013, using a form titled " Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's [363 Wis.2d 36] name directly above) assigned Reserve Judge Kluka to preside over the Dodge County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the Dodge County John Doe proceeding and also entered a secrecy order.

[¶24] On August 14, 2013, using a form titled " Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Columbia County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the John Doe proceeding and also entered a secrecy order.

[¶25] On August 21, 2013, Dane County District Attorney Ismael Ozanne filed a petition in Dane County circuit court to commence a John Doe proceeding. On August 21, 2013, using a form titled " Application and Order for Specific Judicial Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Kluka to preside over the Dane County John Doe proceeding. On August 21, 2013, Reserve Judge Kluka entered an order commencing the Dane County John Doe proceeding and also entered a secrecy order.

[¶26] Also on August 21, 2013, the District Attorneys from all five counties sent a joint letter to Reserve Judge Kluka requesting the appointment of a special prosecutor to oversee the entire investigation. The District Attorneys encouraged Reserve Judge Kluka to appoint a special prosecutor on her own motion and in the exercise of her inherent authority. Their letter expressed concerns that it would be inefficient for five district attorneys to handle one investigation and that [363 Wis.2d 37] there may be a perception of bias given their partisan affiliations. The letter recommended Francis Schmitz for the position.

[¶27] On August 23, 2013, Reserve Judge Kluka entered separate, but identical, orders in all five John Doe proceedings appointing Francis Schmitz as special prosecutor with jurisdiction across the five counties. Mirroring the District Attorneys' position on the matter, Reserve Judge Kluka cited, as the basis of her appointment, concerns of efficiency and the appearance of impropriety. Reserve Judge Kluka made the appointment pursuant to her purported " authority" under State v. Carlson, 2002 WI App. 44, 250 Wis.2d 562, 641 N.W.2d 451, as well as her purported " inherent authority" under State v. Cummings, 199 Wis.2d 721, 736, 546 N.W.2d 406 (1996). Each order fixed the special prosecutor's rate of pay at $130 per hour and stated that a copy should be sent to the Department of Administration.

[¶28] On October 1, 2013, Reserve Judge Kluka authorized 29 subpoenas duces tecum to, among others, Unnamed Movants Nos. 1, 2, 3, 4, 5, and 8, based on an affidavit submitted to her by Investigator Stelter. These subpoenas compelled production of documents evidencing the conduct of coordination among the subpoenaed parties and a candidate committee,

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particularly the interaction between Unnamed Movants Nos. 1 and 2. That same day Reserve Judge Kluka authorized search warrants for the homes and offices of Unnamed Movants Nos. 6 and 7. The search warrants were executed at approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets' homes.

[363 Wis.2d 38] [¶29] The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.

[¶30] Motions to quash the subpoenas were filed by Unnamed Movant No. 1 on October 17, 2013, and by Unnamed Movants Nos. 2 and 3 on October 25, 2013. On October 29, 2013, before ruling on the motions, Reserve Judge Kluka recused herself from the Milwaukee County proceeding, citing only an unspecified " conflict." The Milwaukee County proceeding was reassigned by Chief Judge Kremers to Reserve Judge Gregory Peterson on October 29, 2013.

[¶31] The next day, on October 30, 2013, Reserve Judge Kluka disqualified herself from the remaining John Doe proceedings. On November 1, 2013, Chief Judge Potter of the Sixth Judicial District assigned Reserve Judge Peterson [363 Wis.2d 39] to preside over the John Doe proceedings in Columbia County and Dodge County. On November 1, 2013, Chief Judge Duvall of the Seventh Judicial District assigned Reserve Judge Peterson to preside over the John Doe proceeding in Iowa County. On November 4, 2013, Chief Judge Daley of the Fifth Judicial District assigned Reserve Judge Peterson to preside over the John Doe proceeding in Dane County. Thereafter, on November 4, 2013, Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the Milwaukee County John Doe proceeding. On November 11, 2013, Director Voelker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the John Doe proceedings in Iowa County and Dane County. On November 14, 2013, Director Volker (with then-Chief Justice Shirley Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the John Doe proceedings in Columbia County and Dodge County.

[¶32] Also on November 14, 2013, Unnamed Movants Nos. 2, 6, and 7 filed with the court of appeals a petition for supervisory writs of mandamus and prohibition directed at Reserve Judges Kluka and Peterson (Three Unnamed Petitioners). The Unnamed Movants alleged procedural defects involving the appointment of a reserve judge to oversee a multi-county John Doe investigation and the appointment of the special prosecutor. The Unnamed Movants asked the court of appeals to declare the John Doe investigation void ab initio.

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[¶33] In an order dated November 22, 2013, the court of appeals summarily dismissed what it deemed the Unnamed Movants' " first and sixth claims," namely, that there is no statutory authority to appoint or assign a reserve judge to preside over a John Doe proceeding, and that the John Doe judge circumvented the statutory functions of the clerks of court in five [363 Wis.2d 40] counties by requiring certain documents be sent to a post office box. Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished order 6-7 (Wis. Ct.App. Nov. 22, 2013). Regarding the first claim, the court of appeals reasoned that there is no statute that limits the ability of reserve judges to oversee John Doe investigations. Id. Moreover, the court of appeals noted that the statute authorizing the appointment of reserve judges explicitly states that reserve judges " shall perform the same duties as other judges." Id. (citing Wis. Stat. § 753.075). The court of appeals ordered the respondents to address the remaining claims concerning the legality of a multi-county John Doe proceeding, the legality of a special prosecutor handling a multi-county John Doe proceeding, and the legality of the special prosecutor's appointment under Wis. Stat. § 978.045. Id.

[¶34] While that case was pending at the court of appeals, Unnamed Movant No. 6 also filed a petition in Dodge County circuit court on December 4, 2013, for the return of the property taken pursuant to the October 1 search warrant. On December 20, 2013, Unnamed Movant No. 7 filed a substantially similar petition in Dane County circuit court. After a response by the special prosecutor, Reserve Judge Peterson granted the motions to quash the subpoenas and the petitions to return property on January 10, 2014. Reserve Judge Peterson reasoned:

I conclude the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws. I am persuaded the statutes only prohibit coordination by candidates and independent organizations for a political purpose, and political purpose, with one minor exception not relevant [363 Wis.2d 41] here . . . requires express advocacy. There is no evidence of express advocacy.
. . .
Before there is coordination there must be political purposes; without political purposes, coordination is not a crime.
. . .
As relevant here, acts are for political purposes when they are made to influence the recall or retention of a person holding office. Wis. Stat. § 11.01(16). If the statute stopped here, the definition of political purposes might well be unconstitutionally vague. Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). But the definition continues: acts for political purposes include, but are not limited to, making a communication that expressly advocates the recall or retention of a clearly identified candidate. Wis. Stat. § 11.01(16)(a). In GAB 1.28, the GAB attempted to flesh out other acts that would constitute political purposes, but because of constitutional challenges it has stated it will not enforce that regulation. So the only clearly defined political purpose is one that requires express advocacy.
The state is not claiming that any of the independent organizations expressly advocated. Therefore, the subpoenas fail to show probable cause that a crime was committed.

[¶35] As for the search warrants executed on the homes and offices of Unnamed Movants Nos. 6 and 7, Reserve Judge Peterson reasoned:

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The same legal conclusions should apply to all parties who have raised challenges in this case. Therefore, for the reasons stated above regarding the limitations in the scope of the campaign finance laws, I conclude that the warrants lack probable cause.

[363 Wis.2d 42] [¶36] The special prosecutor requested a stay of the order, which was granted on January 27, 2014. In his order granting the stay, Reserve Judge Peterson also clarified that he was incorrect in stating that the probable cause standard applied to subpoenas. Nevertheless, he concluded that a subpoena is not " valid when based on an invalid interpretation of the law." As a condition of the stay, Reserve Judge Peterson ordered the State not to examine any of the property seized pursuant to search warrants.

[¶37] On January 30, 2014, the court of appeals issued an opinion and order in Three Unnamed Petitioners addressing the remaining issues and denying the supervisory writ. Regarding the legality of a multi-county John Doe proceeding, the court of appeals reasoned that there were five separate proceedings in five separate counties and that it is not unusual for courts to hold joint proceedings or to issue joint orders in non-consolidated cases that share a common factual basis, raise the same legal issue, or involve overlapping parties. Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished slip op. & order 3-4 (Wis. Ct.App. Jan. 30, 2014). The court of appeals used the same reasoning to justify the legality of a special prosecutor handling multi-county John Doe proceedings. Id. at 4-7. As for the legality of the special prosecutor's appointment under Wis. Stat. § 978.045, the court of appeals determined that the special prosecutor was appointed pursuant to Reserve Judge Kluka's " authority" under Carlson, and " inherent authority" under Cummings, not under Wis. Stat. § 978.045, the special prosecutors statute. Id. On February 19, 2014, the Unnamed Movants filed a petition for review in this court, which we granted on December 16, 2014.

[363 Wis.2d 43] [¶38] Meanwhile, on February 7, 2014, Unnamed Movants Nos. 6 and 7 filed a petition for leave to commence an original action in the Wisconsin Supreme Court under Article VII, Section 3(2) of the Wisconsin Constitution[15] (Two Unnamed Petitioners). The original action sought a declaration confirming the ruling of Reserve Judge Peterson in his January 10, 2014, order. The special prosecutor filed a response to this petition on February 25, 2014. We granted the original action on December 16, 2014.

[¶39] On February 21, 2014, the special prosecutor filed a petition for a supervisory writ and a writ of mandamus in the court of appeals (Schmitz v. Peterson). The special prosecutor sought the supervisory writ in order to vacate Reserve Judge Peterson's January 10, 2014, order and to direct Reserve Judge Peterson to enforce the subpoenas and search warrants. Unnamed Movants Nos. 1, 2, 3, 4, 5, 6, 7, and 8 filed responses to the petition on March 31, 2014. Shortly thereafter, the Unnamed Movants brought a petition to by

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pass the court of appeals. We granted bypass on December 16, 2014.

[¶40] Finally, on November 3, 2014, Unnamed Movants Nos. 6 and 7 filed a motion with Reserve Judge Peterson requesting an order to show cause as to why the John Doe proceeding should not be ended. [363 Wis.2d 44] Reserve Judge Peterson denied that motion but concluded that if appellate courts agreed with his interpretation of Ch. 11, the " consequence will no doubt be the end of the John Doe investigation."

III. TWO UNNAMED PETITIONERS

[¶41] We turn first to Two Unnamed Petitioners, the original action filed with the Wisconsin Supreme Court. This case requires us to interpret Wisconsin's campaign finance law, Wis. Stat. Ch. 11. By its very nature, this task involves fundamental questions regarding the scope of the government's ability to regulate political speech. To resolve this case, we must engage in statutory interpretation of the phrase " political purposes," which includes all activities " done for the purpose of influencing [an] election." Wis. Stat. § 11.01(16). We conclude, consistent with the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, that the plain language of " political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague if it is not given a limiting construction and applied to only express advocacy and its functional equivalent. This conclusion invalidates the special prosecutor's theory of the case and ends the John Doe investigation. Therefore, we agree with the Unnamed Movants and grant their requested relief.

A. Standard of Review

[¶42] Statutory interpretation is a question of law, which this court reviews de novo. Covenant Healthcare Sys., Inc. v. City of Wauwatosa, 2011 WI 80, P21, 336 Wis.2d 522, 800 N.W.2d 906. In this case, [363 Wis.2d 45] our statutory interpretation implicates the constitutionality of specific provisions in Chapter 11, which is also a question of law which we review de novo. Janssen, 219 Wis.2d at 370.

[¶43] Statutes are presumed to be constitutional, " and the party seeking to overcome the presumption must prove the statute unconstitutional beyond a reasonable doubt." Id. When the statute implicates the exercise of First Amendment rights, however, " [t]he burden shifts to the proponent of the statute." Id. at 370-71. Here, the proponent is the special prosecutor.

B. The First Amendment and the Doctrines of Vagueness and Overbreadth

i. First Amendment Principles

[¶44] In addressing the scope of Wisconsin's campaign finance law we are keenly aware that this task bears directly on the ability of all citizens in our State to engage in the democratic process. The special prosecutor's theories implicate one of the foundational principles of our nation: the freedom of speech, specifically, political speech. We therefore begin our analysis with the words of the First Amendment: " Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I.[16] Article I, Section 3 of the Wisconsin Constitution guarantees that: " Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press."

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[363 Wis.2d 46] [¶45] While the First Amendment protects a broad range of speech and conduct, " there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. . . . of course includ(ing) discussions of candidates . . . ." Buckley, 424 U.S. at 14 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). Indeed, " [t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). " In a republic [such as ours] where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation." Buckley, 424 U.S. at 14-15. These values reflect our " profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (emphasis added).

[¶46] Our protection of the freedom of political speech reflects our firm belief that " [d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution." Buckley, 424 U.S. at 14. " At the founding, speech was open, comprehensive, and vital to society's definition of itself; there were no limits on the sources of speech and knowledge." Citizens United, 558 U.S. at 353. Therefore, " [t]he First Amendment affords the broadest protection to [] political expression in order 'to assure [363 Wis.2d 47] (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).

[¶47] Accordingly, " the First Amendment 'has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" McCutcheon v. Fed. Election Comm'n, 134 S.Ct. 1434, 1441, 188 L.Ed.2d 468 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971)). There exists " no right more basic in our democracy than the right to participate in electing our political leaders." Id. at 1440-41. Political speech is thus a fundamental right and is afforded the highest level of protection. Indeed, freedom of speech, especially political speech, is the right most fundamental to our democracy. To that end, we must conduct a particularly " [c]lose examination of the specificity of the statutory limitation . . . where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests." Buckley, 424 U.S. at 40-41. " The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People 'of common intelligence must necessarily guess at [the law's] meaning and differ as to its application.'" Citizens United, 558 U.S. at 324 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).

[¶48] However, there are certain, limited circumstances in which the government may regulate and impose burdens upon the exercise of free speech. In

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the [363 Wis.2d 48] campaign finance context, these include disclosure and reporting requirements, as well as contribution limits to candidates.[17] The justification for imposing such restrictions is to " prevent[] corruption and the appearance of corruption." WRTL II, 551 U.S. at 478 (quotations omitted). The interest in preventing the corruption of public officials, however, does not justify the regulation of all political speech. Rather, the United States Supreme Court has drawn an important " distinction between discussion of issues and candidates and advocacy of election or defeat of candidates." Buckley, 424 U.S. at 42. The compelling governmental interest that justifies the regulation of express advocacy (the prevention of quid pro quo[18] corruption) " 'might not apply to'" the regulation of issue advocacy. WRTL II, 551 U.S. at 471 (quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 209 n.88, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)). Indeed, " [s]pending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption." McCutcheon, 134 S.Ct. at 1450. " Nor does the possibility that an individual who spends large sums may garner 'influence over or access to' elected officials or political parties." Id. at 1451 (quoting Citizens United, 558 U.S. at 359).

[¶49] A key reason that issue advocacy is afforded greater protection under the First Amendment is that " [f]reedom of discussion, if it would fulfill its [363 Wis.2d 49] historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). " Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election." WRTL II, 551 U.S. at 474.

[¶50] In order to give the fullest protection possible to the right to the exercise of political speech, " the government's authority to regulate in this area extends only to money raised and spent for speech that is clearly election related[, that is, express advocacy]; ordinary political speech about issues, policy, and public officials[, that is, issue advocacy,] must remain unencumbered." Barland II, 751 F.3d at 810 (emphasis added). Thus, in order to avoid a chilling effect on otherwise protected speech, " when the regulatory scheme reaches beyond candidates, their campaign committees, and political parties. . . . [the] government may regulate . . . only with narrow specificity." Id. at 811 (quotations omitted). " In short, [we] must give the benefit of any doubt to protecting rather than stifling speech." WRTL II, 551 U.S. at 469; see also McCutcheon, 134 S.Ct. at 1451 (quoting WRTL II, 551 U.S. at 457) (" '[T]he First Amendment requires [courts] to err on the side of protecting political speech rather than suppressing it.'" ).

[¶51] To that end, " in the domain of campaign-finance law, the First Amendment requires a heightened degree of regulatory clarity and a close fit between the government's means and its end." Barland II, 751 F.3d at 808. This " close fit" requirement is intended to prevent

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the dangerous chilling effect an [363 Wis.2d 50] unclear or imprecise law has on protected speech. Id. at 835. To guard against inhibiting protected political speech, courts use the overbreadth and vagueness doctrines. These doctrines " reflect[] the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted." Janssen, 219 Wis.2d at 372 (citation omitted).

ii. Overbreadth and Vagueness

[¶52] " A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Id. at 374 (citation omitted). The overbreadth doctrine " recognize[s] that broadly written statutes substantially inhibiting free expression should be open to attack even by a party whose own conduct remains unprotected under the First Amendment." State v. Stevenson, 2000 WI 71, P11, 236 Wis.2d 86, 613 N.W.2d 90. " The danger inherent in overbroad statutes is that such statutes provide [the government with] practically unbridled administrative and prosecutorial discretion that may result in select[ive] prosecution based on certain views deemed objectionable by law enforcement." Id., ¶ 13. Thus, " [o]verbroad statutes may undesirably dissuade persons from exercising their rights by 'chilling' their protected speech or expression." Janssen, 219 Wis.2d at 372 (citation omitted). In other words, the threat to free expression created by overbroad statutes is that, by potentially sweeping in constitutionally protected activity, individuals and groups may self-censor out of fear of vindictive or selective prosecution.

[363 Wis.2d 51] [¶53] When faced with an overbroad statute, courts have several options.

First, courts may apply a limiting construction to rehabilitate the statute when such a narrowing and validating construction is readily available. Second, courts may cure the constitutional defect by severing the unconstitutional provisions of a statute and leaving the remainder of the legislation intact. Finally, courts may determine that the statute is not amenable to judicial limitation or severance and invalidate the entire statute upon a determination that it is unconstitutional on its face.

Stevenson, 2000 WI 71, 236 Wis.2d 86, P15, 613 N.W.2d 90 (internal citations omitted).

[¶54] Related to the overbreadth doctrine is the vagueness doctrine,[19] which " requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'" State v. Princess Cinema of Milwaukee, Inc., 96 Wis.2d 646, 657, 292 N.W.2d 807 (1980) (quoting Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)). A vague statute " is one which operates to hinder free speech through the use of language which is so vague as to allow the inclusion

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of [363 Wis.2d 52] protected speech in the prohibition or to leave the individual with no clear guidance as to the nature of the acts which are subject to punishment." Id. at 656. " Where First Amendment rights are involved, an even 'greater degree of specificity' is required." Buckley, 424 U.S. at 77 (citations omitted). Thus, when a criminal statute implicates First Amendment rights, the statutory language must have the " utmost clarity and exactitude." Stevenson, 2000 WI 71, 236 Wis.2d 86, P30, 613 N.W.2d 90. Thus, the vagueness doctrine concerns the

imping[ement] upon three first amendment values: (1) it does not provide individuals with fair warning of what is prohibited; (2) lacking precise or articulated standards, it allows for arbitrary or discriminatory enforcement; and (3) it causes citizens to 'forsake activity protected by the First Amendment for fear it may be prohibited.'

State v. Thiel, 183 Wis.2d 505, 521 n.9, 515 N.W.2d 847 (1994) (quoting M.S. News Co. v. Casado, 721 F.2d 1281, 1290 (10th Cir. 1983)). In other words, " [b]ecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity." Barland II, 751 F.3d at 811 (quotations omitted).

C. The Definition of " Political Purposes" in Wis. Stat. § 11.01(16) is Overbroad and Vague Unless Limited to Express Advocacy and Its Functional Equivalent.

[¶55] The special prosecutor alleges that the Unnamed Movants engaged in illegally coordinated issue advocacy. However, the basis for his theory has evolved over the course of the various legal challenges to his [363 Wis.2d 53] investigation, and he appears unable to decide just how the Unnamed Movants have broken the law.[20]

[¶56] Today, the special prosecutor alleges two theories of illegal coordination: (1) that the coordination between the Unnamed Movants is so extensive that the supposedly independent groups became subcommittees for the candidate's campaign under Wis. Stat. § 11.10(4); and (2) that the coordinated issue advocacy amounts to an in-kind contribution under Wis. Admin. Code § GAB 1.20. The special prosecutor's theories, if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues. See Citizens United, 558 U.S. at 324. We find no support for the special prosecutor's theories in Wis. Stat. Ch. 11. Chapter 11's definition of " political purposes," which underlies Wisconsin's campaign finance law, is both overbroad and vague and thus unconstitutionally chills speech because people " 'of common intelligence must necessarily guess at [the law's] meaning and differ as to its application.'" Id. (quoting Connally, 269 U.S. at 391).

[¶57] However, by limiting the definition of " political purposes" to express advocacy and its functional equivalent, we ensure that all issue advocacy will remain unencumbered. This limiting construction[21] allows us to protect political speech, a vital

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First [363 Wis.2d 54] Amendment right, and allows us to guard against the theories of the special prosecutor and those who would rely on overbroad and vague statutes to silence those with whom they disagree.

i. The Definition and Scope of " Political Purposes" in Wis. Stat. § 11.01(16) Must Be Limited to Only Express Advocacy.

[¶58] We begin our analysis by noting that Wisconsin's campaign finance law " is labyrinthian and difficult to decipher without a background in this area of the law." Barland II, 751 F.3d at 808. Indeed, " [t]o a lay reader [Chapter 11] require[s] almost any group that wants to say almost anything about a candidate or election to register as a political committee." Id. at 810 (citing Wis. Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1184 (7th Cir. 1998)). However, in analyzing the statutes, it becomes readily apparent that the entire regulatory scheme depends on but a few key terms: " committee," " contribution," " disbursement," and " political purposes."

[¶59] " Committee" is defined in Wis. Stat. § 11.01(4) as " any person other than an individual and any combination of 2 or more persons, permanent or temporary, which makes or accepts contributions or makes disbursements, whether or not engaged in activities which are exclusively political, except that a 'committee' does not include a political 'group' under this chapter." As one can see from the statutory definition, committee status under Wisconsin campaign finance law depends on the definitions of " contributions" and " disbursements."

[¶60] " Contribution" has a very lengthy definition, but the relevant portion is contained in Wis. Stat. § 11.01(6)(a)1, which states that " contribution" means

[363 Wis.2d 55] [a] gift, subscription, loan, advance, or deposit of money or anything of value, except a loan of money by a commercial lending institution made by the institution in accordance with applicable laws and regulations in the ordinary course of business, made for political purposes. In this subdivision " anything of value" means a thing of merchantable value.

(emphasis added). The definition of " disbursement" largely parallels the definition of " contribution," the relevant portion of which states that a " disbursement" is

[a] purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, except a loan of money by a commercial lending institution made by the institution in accordance with applicable laws and regulations in the ordinary course of business, made for political purposes. In this subdivision, " anything of value" means a thing of merchantable value.

Wis. Stat. § 11.01(7)(a)1 (emphasis added). It is apparent from the emphasized language that whether or not something is a contribution or disbursement depends on the definition of " political purposes."

[¶61] " Political purposes" is defined, in relevant part, as an act

done for the purpose of influencing the election or nomination [363 Wis.2d 56] for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, for the purpose of payment of expenses incurred as a result of a recount at an election, or for the purpose of influencing a particular vote at a referendum. In the case of a candidate, or a committee or group which is organized primarily for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, or for the purpose of influencing a particular vote at a referendum,

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all administrative and overhead expenses for the maintenance of an office or staff which are used principally for any such purpose are deemed to be for a political purpose.
(a) Acts which are for " political purposes" include but are not limited to:
1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.

Wis. Stat. § 11.01(16) (emphasis added).

[¶62] Thus, the lynchpin of Wisconsin's campaign finance law is whether an act is done for " political purposes." Chapter 11 regulates " disbursements" and " contributions," and the phrase " political purposes" is used in the definition of each of those words. See Wis. Stat. § § 11.01(7) (defining " disbursement" ), 11.01(6) (defining " contribution" ). If an act is not done for " political purposes," then it is not a disbursement or a contribution, and it therefore is not subject to regulation under Ch. 11.

[¶63] The Seventh Circuit in Barland II held that the phrase " political purposes," as defined in Wis. Stat. § 11.01, is both vague and overbroad. Barland II, 751 F.3d at 833. The court reasoned that the U.S. Supreme Court in Buckley held that the phrase " influence an election," which also appears in the definition of " political purposes," is vague and overbroad. Id. at 833 (" The [Buckley] Court held that this kind of broad and imprecise language risks chilling issue advocacy, which may not be regulated; the same reasoning [363 Wis.2d 57] applies here." ). Further, the court concluded the phrase " include but are not limited to" renders the definition of " political purposes" vague and overbroad because " [t]he 'not limited to' language holds the potential for regulatory mischief." Id.; see also Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227 Wis.2d 650, 677, 597 N.W.2d 721 (1999) (WMC) (concluding that the express advocacy standard under Wis. Stat. § 11.01(16)(a)1 must still be consistent with Buckley, lest it become a trap for the innocent and unwary.)

[¶64] The special prosecutor has completely disregarded these principles. The lack of clarity in Ch. 11, which the special prosecutor relies upon, leads us to the unsettling conclusion that it is left to government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is " too much" coordination. In essence, under his theory, every candidate, in every campaign in which an issue advocacy group participates, would get their own John Doe proceeding and their own special prosecutor to determine the extent of any coordination. This is not, and cannot, be the law in a democracy.

[¶65] More fundamentally, however, the fact that these questions arise at all is proof that the definition of " political purposes" " holds the potential for regulatory mischief. Perhaps [the express advocacy language] was included to leave room for regulation of the 'functional equivalent' of express advocacy as that term was later explained in [WRTL II]. Beyond that, however, the language contains persistent vagueness and overbreadth." Barland II, 751 F.3d at 833. In fact, the Government Accountability Board (" GAB" ) conceded this point in Barland II and suggested a limiting [363 Wis.2d 58] construction to the Seventh Circuit that would " confine the definitions [of " political purposes" ] to express advocacy and its functional equivalent." Id. That is precisely the construction the Seventh Circuit adopted, and we conclude that same limiting construction should apply here as well.

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[¶66] To be clear, the reason that the definition of " political purposes" in § 11.01(16) is unconstitutional is because the phrase " influencing [an] election" is so broad that it sweeps in protected speech, as well as speech that can be subject to regulation. " Influencing [an] election" obviously includes express advocacy, but without a limiting construction it could just as easily include issue advocacy aired during the closing days of an election cycle. This is precisely the kind of overbroad language that the Supreme Court has repeatedly rejected. " Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election." WRTL II, 551 U.S. at 474 (emphasis added). We must have clear rules that protect political speech, and we must continue to reject the idea that some protected speech may be chilled or restricted simply because it is " difficult to distinguish from unprotected speech." Id. at 494 (Scalia, J., concurring). " [L]aws targeting political speech are the principal object of the First Amendment guarantee. The fact that the line between electoral advocacy and issue advocacy dissolves in practice is an indictment of the statute, not a justification of it." Id.

[¶67] We therefore hold that the definition of " political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague. In order to cure this overbreadth and vagueness, we adopt a construction of § 11.01(16) that limits the definition of " political purposes" [363 Wis.2d 59] to include only express advocacy and its functional equivalent, as those terms are defined in Buckley and WRTL II. This construction is " readily available" due to the Seventh Circuit's decision in Barland II. See Stevenson, 236 Wis.2d 86, ¶ 15; Barland II, 751 F.3d at 834 (explaining that " [t]he [Wisconsin Supreme Court] and [] Attorney General have acknowledged that when Chapter 11 is applied beyond candidates, their committees, and political parties, it must be narrowly construed to comply with Buckley's express-advocacy limitation; the administration of the state's campaign-finance system has generally reflected this understanding for many decades." ).[22] Given that Chapter 11's requirements depend on whether an act is done for " political purposes," the effect of this limiting construction places " issue advocacy . . . beyond the reach of [Wisconsin's] regulatory scheme." Barland II, 751 F.3d at 815.

ii. The Special Prosecutor's Theories of Coordination Depend on Coordinated Issue

Advocacy, Which Is Not Regulated Under Chapter 11.

[¶68] Having reached our conclusion about the scope of conduct regulated by Chapter 11, we now turn to the special prosecutor's theories of coordination and [363 Wis.2d 60] whether the alleged conduct is regulated under Wisconsin law.[23] The special prosecutor

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has disregarded [363 Wis.2d 61] the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor's theories, rather than " assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished. In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with " narrow specificity." Barland II, 751 F.3d at 811 (quotations omitted).

[¶69] The limiting construction that we apply makes clear that the special prosecutor's theories are unsupportable in law given that the theories rely on overbroad and vague statutes. By limiting the definition of " political purposes" to express advocacy and its functional equivalent, political speech continues to be protected as a fundamental First Amendment right.

[¶70] The special prosecutor's first theory of illegal coordination is that ostensibly independent, advocacy groups operated " hand in glove" with the candidate's committee, which made the independent groups subcommittees under Wis. Stat. § 11.10(4). The relevant part of this statute states that

[a]ny committee which is organized or acts with the cooperation of or upon consultation with [363 Wis.2d 62] a candidate or agent or authorized committee of a candidate, or which acts in concert with or at the request or suggestion of a candidate or agent or authorized committee of a candidate is deemed a subcommittee of the candidate's personal campaign committee.

Wis. Stat. § 11.10(4) (emphasis added). The special prosecutor argues that coordinated issue advocacy is prohibited under

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this provision because the statute itself only requires cooperation between a candidate's committee and another committee and that the statute does not require that such cooperation be limited to express advocacy.

[¶71] The first flaw in the special prosecutor's theory is that it is left to the whim of each regulatory bureaucrat and/or prosecutor to subjectively determine how much coordination is " too much." Indeed, the special prosecutor, because he relies on vague and overbroad statutes, will be the only one to know how much coordination is " too much." This cannot be; such an interpretation of § 11.10(4) is unconstitutionally overbroad and vague under the First Amendment. See Princess Cinema, 96 Wis.2d at 657 (citations omitted) (" The void for vagueness doctrine '. . . incorporates the notions of fair notice or warning. . . . (i)t requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent " arbitrary and discriminatory enforcement." '" ).

[¶72] However, there is another, more obvious flaw in the special prosecutor's theory. Wisconsin Stat. § 11.10(4) refers to a " committee" that coordinates with a candidate's committee and in order to be a " committee," an entity must " make[] or accept[] contributions or make[ disbursements." In order to come within the purview of regulated acts both " contributions" and " disbursements" must be " made for political purposes." [363 Wis.2d 63] Wis. Stat. § § 11.01(6)(a)1; 11.01(7)(a)1. Applying the necessary limiting construction to the phrase " for political purposes," we conclude that in order to meet the statutory definition of " committee," a committee must engage in express advocacy and its functional equivalent. This conclusion is fatal to the special prosecutor's subcommittee theory because he does not allege that the Unnamed Movants engaged in express advocacy. Put simply, because the Unnamed Movants did not engage in express advocacy, they could not be considered a " committee" subject to Chapter 11's regulation.

[¶73] The special prosecutor's second theory of illegal coordination is that the coordinated issue advocacy should have been reported as " in-kind contributions" by the candidate's committee. This " in-kind contribution" theory rests on the assumption that any issue advocacy engaged in by the Unnamed Movants was done for the benefit of the candidate and therefore should have been reported. Once again, the special prosecutor's theory fails.

[¶74] An " in-kind contribution" is defined in the GAB's regulations as " a disbursement by a contributor to procure a thing of value or service for the benefit of a registrant who authorized the disbursement." GAB 1.20(1)(e) (emphasis added). By its plain language, the definition of an in-kind contribution depends on the making of a " disbursement." As a result of the limiting construction of " political purposes," there can be no " disbursement" under Chapter 11, or the corresponding regulations, without express advocacy or its functional equivalent. Even assuming that the special prosecutor is correct and the Unnamed Movants engaged in issue advocacy at the specific request of the candidate or the candidate's committee, those actions do not give rise to [363 Wis.2d 64] a reportable " in-kind contribution" because under Ch. 11 issue advocacy cannot be a " disbursement."

[¶75] In sum, we hold that, consistent with the First Amendment to the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, the definition of " political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague because its language " is so

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sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Janssen, 219 Wis.2d at 374. However, there is a readily available limiting construction that will prevent the chilling of otherwise protected speech, and we hold that " political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley and WRTL II. With this limiting construction in place, Chapter 11 does not regulate the alleged conduct of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is " beyond the reach of the regulatory scheme." Barland II, 751 F.3d at 815. Accordingly, we grant the relief requested by the Unnamed Movants.

[¶76] To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials [363 Wis.2d 65] obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

IV. SCHMITZ V. PETERSON

[¶77] We turn now to the second case presented for our review, Schmitz v. Peterson. This case is before us on petitions to bypass the court of appeals filed by the Unnamed Movants. In this case, the special prosecutor seeks a supervisory writ in order to reverse Reserve Judge Peterson's decision to quash the subpoenas and search warrants issued by Reserve Judge Kluka. The specific issue presented is whether the evidence gathered in the John Doe proceedings provide a reasonable belief that Wisconsin's campaign finance law was violated by a campaign committee's coordination with independent advocacy organizations.

[¶78] We hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, Kalal, 271 Wis.2d 633, ¶ 24, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.

A. Standard of Review

[¶79] The decisions of John Doe judges " are not subject to direct appeal" to the court of appeals " because [363 Wis.2d 66] an order issued by a John Doe judge is not an order of a 'circuit court' or a 'court of record.'" In re John Doe Proceeding, 2003 WI 30, ¶ ¶ 23, 41, 260 Wis.2d 653, 660 N.W.2d 260. Nonetheless, a party may seek review of a John Doe judge's actions " pursuant to a petition for supervisory writ." Id., ¶ 41; see also Wis. Stat. § 809.51(1).

[¶80] It is well settled that " [a] writ of supervision is not a substitute for an appeal." Kalal, 271 Wis.2d 633, ¶ 17 (quotations omitted). In order to prevail on a supervisory writ, the petitioner must prove the following: " (1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will

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result; (3) the duty of the trial court is plain and it must have acted or intends to act in violation of that duty; and (4) the request for relief is made promptly and speedily." Id. (quoting Burnett v. Alt, 224 Wis.2d 72, 96-97, 589 N.W.2d 21 (1999)) (emphasis added). " A plain duty 'must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.'" Id., ¶ 22 (quoting State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 377-78, 166 N.W.2d 255 (1969)).

[¶81] " A supervisory writ 'is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency.'" Id., ¶ 17 (citation omitted). The obligation of a judge to correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure, " as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." Id., ¶ 24. Instead,

[363 Wis.2d 67] [t]he obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system. The supervisory writ, however, serves a narrow function: to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process. To adopt [a contrary] interpretation of the plain duty requirement in supervisory writ procedure would transform the writ into an all-purpose alternative to the appellate review process.

Id. (emphasis added) (citations omitted).

B. Nature of John Doe Proceedings

[¶82] Before analyzing Reserve Judge Peterson's decision to quash the subpoenas and search warrants, it is necessary for us to provide background regarding the proper conduct of John Doe proceedings, which have been in use in Wisconsin since its days as a territory. In re Doe, 317 Wis.2d 364, ¶ 13. This discussion is necessary to educate the public on the nature of this important investigatory tool, and also to provide guidance to the lower courts on the proper conduct of John Doe proceedings.

[¶83] Wisconsin's John Doe proceeding, codified in Wis. Stat. § 968.26, serves two important purposes. State ex rel. Reimann v. Circuit Court for Dane Cnty., 214 Wis.2d 605, 621, 571 N.W.2d 385 (1997). " First, and most obvious, a John Doe proceeding is intended as an investigatory tool used to ascertain whether a crime has been committed and if so, by whom. Second, the John Doe proceeding is designed to protect innocent citizens from frivolous and groundless prosecutions." Id. [363 Wis.2d 68] (citations omitted). In order to fulfill the dual purposes of the John Doe statute, a John Doe judge

serves an essentially judicial function. The judge considers the testimony presented. It is the responsibility of the John Doe judge to utilize his or her training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause. It is the judge's responsibility to ensure procedural fairness.

State v. Washington, 83 Wis.2d 808, 823, 266 N.W.2d 597 (1978) (footnote omitted).

[¶84] " Wisconsin Stat. § 968.26 outlines a four-step process for John Doe proceedings." In re Doe, 317 Wis.2d 364, ¶ 14. " First, the judge must determine whether a complainant has alleged 'objective, factual assertions sufficient to support a reasonable belief that a

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crime has been committed.'" Id. (citation omitted). Second, if the complainant meets this burden, " the judge must proceed with a hearing at which 'the judge shall examine the complainant under oath and any witnesses produced by him or her.'" Id., ¶ 15 (quoting Wis. Stat. § 968.26 (2007-08)). Third, when this hearing is over, " a judge must determine whether probable cause exists as to each essential element of the alleged crime." Id., ¶ 16. " Finally, if the judge determines that probable cause is present--that is, that a crime probably has been committed--and who the perpetrator of the alleged crime is, the judge may order that a criminal complaint be reduced to writing . . . ." Id., ¶ 17. This process gives a John Doe judge " broad discretion to decide whether to file a criminal complaint, even upon a finding of probable cause." Id.

[363 Wis.2d 69] [¶85] In order to commence a John Doe proceeding, the complainant, whether it be the district attorney or anyone else, must demonstrate to the John Doe judge " that he has reason to believe that a crime has been committed within the jurisdiction." State v. Doe, 78 Wis.2d 161, 165, 254 N.W.2d 210 (1977). If " the judge finds that the complainant has failed to establish 'reason to believe[]' [that a crime has been committed,] that judge may deny the John Doe petition without conducting an examination." Reimann, 214 Wis.2d at 625. Thus, the John Doe judge must act as a gate-keeper and screen out " petitions that are spurious, frivolous, or groundless." Id. at 624. " In determining whether the petition is worthy of further treatment, a circuit court judge [presiding over a John Doe proceeding] must act as a neutral and detached magistrate." Id. at 625 (emphasis added).

[¶86] Therefore, from the earliest stages of the proceeding, to the conclusion of the investigation, " [t]he proceedings of the John Doe are constantly under the scrutiny of a judge." Doe, 78 Wis.2d at 165. The John Doe judge does not act as " chief investigator" or as a mere arm of the prosecutor. Washington, 83 Wis.2d at 823. Rather, the John Doe judge serves as a check on the prosecutor and on the complainant to ensure that the subject(s) of the investigation receive(s) due process of law. See Doe, 78 Wis.2d at 164-65.

[¶87] In this way, Wisconsin's John Doe proceeding is very different than a grand jury, and when conducted appropriately, provides much greater protections to the target of an investigation. Id. at 165. [363 Wis.2d 70] This is due in no small part to the role played by the John Doe judge, which is to ensure that the investigation stays focused on the conduct alleged in the petition to commence the John Doe proceeding. Washington, 83 Wis.2d at 841-42. Further,

[a]nyone familiar with the functions of the grand jury or who has dealt with it knows the hazards of a run-away grand jury, which can go beyond the restraints of the prosecutor, the executive, or of the judiciary. Such hazards do not exist in the Wisconsin John Doe. While John Doe proceedings can be abused, the document produced by a John Doe does not ipso facto force the defendant to trial. The complaint which emanates from it is issued under the aegis of a judge but nevertheless must subsequently stand the scrutiny of an open court inspection in an adversary proceeding at the preliminary examination as a prerequisite to the filing of an information, arraignment, and trial.

Doe, 78 Wis.2d at 170-71. Thus, " [a] John Doe proceeding . . . serves

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both as an inquest into the discovery of crime and as a screen to prevent 'reckless and ill-advised' prosecutions." Reimann, 214 Wis.2d at 621 (citation omitted).

[¶88] The text of the John Doe statute gives the John Doe judge broad powers. Within his discretion, the John Doe judge is able to determine the extent of the investigation and whether the investigation is conducted in secret. Wis. Stat. § 968.26(3).[24] We have long recognized the need for secrecy in John Doe [363 Wis.2d 71] proceedings and have identified several reasons that justify such secrecy. Cummings, 199 Wis.2d at 736.

These include: (1) keeping knowledge from an unarrested defendant which could encourage escape; (2) preventing the defendant from collecting perjured testimony for the trial; (3) preventing those interested in thwarting the inquiry from tampering with prosecutive testimony or secreting evidence; (4) rendering witnesses more free in their disclosures; and (5) preventing testimony which may be mistaken or untrue or irrelevant from becoming public.

Id. These reasons illustrate how important a John Doe proceeding can be as an investigative tool. The secrecy orders available to a John Doe proceeding serve to protect the integrity of the investigation.[25] Such orders help encourage witnesses who may be reluctant or fearful to testify by keeping their testimony secret. The secrecy of a John Doe investigation also protects innocent targets of the investigation by preventing the [363 Wis.2d 72] disclosure of " testimony which may be mistaken or untrue." Id.

[¶89] Consistent with this broad authority, " [t]he John Doe judge should act with a view toward issuing a complaint or determining that no crime has occurred." Washington, 83 Wis.2d at 823. Accordingly, the scope of any John Doe investigation " is essentially limited to the subject matter of the complaint upon which the John Doe is commenced." Id. at 822; see also In re Doe, 317 Wis.2d 364, ¶ 23. " The John Doe judge has no authority to ferret out crime wherever he or she thinks it might exist." Washington, 83 Wis.2d at 822 (emphasis added). This final limitation is crucial to the fair administration of a John Doe proceeding. Without it, John Doe proceedings could easily devolve into judicially sanctioned general warrants.

[¶90] The purpose of the Fourth Amendment to the United States Constitution[26]

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and of Article I, Section 11 of the Wisconsin Constitution[27] " was to abolish searches by general warrants, which authorized [363 Wis.2d 73] searches in any place or for any thing." State ex rel. City of Milwaukee v. Newman, 96 Wis. 258, 267, 71 N.W. 438 (1897). Such general warrants, also known as Writs of Assistance, " were used in the American colonies to search wherever government officials chose with nearly absolute and unlimited discretion." State v. Tye, 2001 WI 124, ¶ 8, 248 Wis.2d 530, 636 N.W.2d 473. " These early warrants lacked specificity and allowed government officers in the late eighteenth century to enter homes, shops, and other places, and in the event the officers encountered resistance, they could break down doors and forcibly search closed trunks and chests." In re John Doe Proceeding, 2004 WI 65, ¶ 36, 272 Wis.2d 208, 680 N.W.2d 792. To combat such unchecked power, the Fourth Amendment requires reasonable searches and mandates that warrants " particularly describ[e] the place to be searched." U.S. Const. amend. IV.

[¶91] Reasonableness and particularity are not just requirements of search warrants, however. Subpoenas issued by courts, and by extension John Doe judges, must also satisfy these requirements of the Fourth Amendment. In re John Doe Proceeding, 272 Wis.2d 208, ¶ 38. A John Doe proceeding, with its broad investigatory powers, must never be allowed to become a fishing expedition.

[363 Wis.2d 74] [¶92] It is difficult, if not impossible, to overstate the importance of the role of the John Doe judge. If he does not conduct the investigation fairly, as a neutral and detached magistrate, the risk of harm to innocent targets of the investigation-and we remain mindful that all such targets are presumed innocent-is too great. Through the use of a John Doe proceeding, " law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness." Washington, 83 Wis.2d at 822-23. Such powers, if not wielded with care and skill may serve to transform a John Doe proceeding into an implement of harassment and persecution by a vengeful or unethical prosecutor. Thus, John Doe judges must be mindful of this danger and zealously guard the rights of all citizens against over-reach.

[¶93] The foregoing discussion emphasizes that John Doe proceedings are a necessary investigative tool " to 'ascertain whether [a] crime has been committed and by whom.'" Cummings, 199 Wis.2d at 736 (quoting Wolke v. Fleming, 24 Wis.2d 606, 613, 129 N.W.2d 841 (1964)). John Doe proceedings have been utilized in Wisconsin since it was a territory and have no doubt served our state well. But the simple fact that the John Doe proceeding has a long and near

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constant use should not blind us to the potential for abuse. We must be mindful of the purpose of the John Doe proceeding and why it was originally instituted. This purpose was aptly explained by this court more than 125 years ago:

[363 Wis.2d 75] When this statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so. This was found to be a very unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them. The law delights as much in the protection of the innocent as in the punishment of the guilty. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion. . . . 'Our statute is framed so as to exclude in a great measure the abuses to which such a practice might lead, and undoubtedly was designed to throw the duty of judging, in this respect, entirely upon the magistrate. It should not regard mere allegations of suspicion, but the grounds of the suspicion-the facts and circumstances-must be laid before him, and these should be sufficient to make it appear that a crime has been actually committed, and that there is probable cause for charging the individual complained of therewith.'

State v. Keyes, 75 Wis. 288, 294-95, 44 N.W. 13 (1889) (citations omitted).

[¶94] In sum, Wis. Stat. § 968.26 grants John Doe judges broad authority to conduct an investigation into alleged crimes. A John Doe judge is also given " those powers necessary" to carry out this duty. Cummings, 199 Wis.2d at 736. Nevertheless, " [a]s to all aspects of the conduct of the judicial function, the [John Doe] judge is the governor of the proceedings, and as such is responsible for maintaining the good order, dignity, and insofar as it is compatible with the administration of justice, efficiency of those proceedings." In re Doe, 317 Wis.2d 364, ¶ 22. This duty applies with equal force in all John Doe proceedings, [363 Wis.2d 76] regardless of the target's station in life, or the crime alleged, be it drug trafficking in the inner city, malfeasance in the corporate boardroom, or corruption in the halls of government.

C. Reserve Judge Peterson Did Not Violate a Plain Legal Duty When He Quashed the Subpoenas and Search Warrants Issued in This Case.

[¶95] As is clear from the above discussion, John Doe judges are given enormous discretion to control the scope and conduct of a John Doe proceeding. With this important point in mind, we now turn to the specific issue before us: whether Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all seized property. He did not.

[¶96] " A plain duty 'must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.'" Kalal, 271 Wis.2d 633, ¶ 22 (quoting Kurkierewicz, 42 Wis.2d at 377-78). Although a supervisory writ is the proper vehicle for the special prosecutor to seek review of Reserve Judge Peterson's decision, the writ procedure serves a very narrow function which is distinct from the normal appellate process. Id., ¶ 24. The purpose of a supervisory writ is " to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process." Id. (emphasis added).

[¶97] Here, the special prosecutor argues that Reserve Judge Peterson failed to

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comply with his duty to correctly apply the law and erroneously concluded [363 Wis.2d 77] that Wisconsin campaign finance law does not regulate the Unnamed Movants' alleged conduct. The special prosecutor essentially argues that Reserve Judge Peterson misapplied the law and prematurely ended the John Doe investigation. This argument misses the point of the supervisory writ procedure and asks us to adopt a standard of review that we explicitly rejected in Kalal. See id., ¶ ¶ 23-24 (" In essence, the Kalals argue that the judge . . . has a plain duty to correctly find facts and apply the law. We cannot accept this proposition, as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." ). As was the case in Kalal, if we were to adopt the special prosecutor's understanding of a plain legal duty, we " would transform the writ into an all-purpose alternative to the appellate review process." Id., ¶ 24. This we will not do.

[¶98] A John Doe judge is given the discretion to determine the extent of the investigation. Wis. Stat. § 968.26(3). In doing so, he or she " should act with a view toward issuing a complaint or determining that no crime has occurred." Washington, 83 Wis.2d at 823. In his decision to quash the subpoenas and search warrants, Reserve Judge Peterson concluded that the subpoenas and search warrants do not provide a reasonable belief that the Unnamed Movants " committed any violations of the campaign finance laws." Reserve Judge Peterson further concluded that " [t]he State is not claiming that any of the independent organizations expressly advocated.[28]

Therefore the subpoenas[29] fail [363 Wis.2d 78] to show probable cause that a crime was committed." In a subsequent order granting a stay of his decision to quash, Reserve Judge Peterson clarified that, although he mistakenly phrased his decision in the context of whether the subpoenas showed probable cause, the subpoenas and search warrants were premised " on an invalid interpretation of the law. That . . . was the underlying problem with the subpoenas." [30]

[363 Wis.2d 79] [¶99] Reserve Judge Peterson's decision is consistent with his discretion to

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determine the extent of the John Doe investigation. In addition, " [i]t is within the discretion of the trial court to quash a subpoena." State v. Horn, 126 Wis.2d 447, 456, 377 N.W.2d 176 (Ct.App. 1985), aff'd, 139 Wis.2d 473, 407 N.W.2d 854 (1987). Because supervisory writs are not appropriate vehicles to review a judge's discretionary acts, see Kalal, 271 Wis.2d 633, ¶ 24, the special prosecutor has failed to show that Reserve Judge Peterson violated a plain legal duty by quashing the subpoenas and search warrants. Therefore, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed.[31]

[363 Wis.2d 80] V. THREE UNNAMED PETITIONERS

[¶100] Finally, we turn to Three Unnamed Petitioners, in which the Unnamed Movants appeal an opinion and order of the court of appeals denying their petition for a supervisory writ. This case requires us to determine whether either Reserve Judge Kluka or Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor.[32]

[¶101] We affirm the decision of the court of appeals and deny the Unnamed Movants' petition for a supervisory writ. We hold that the Unnamed Movants have not met the burden of proof required for a supervisory writ. Specifically, they have not established that either Reserve Judge Kluka or Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multicounty John Doe proceeding; or (3) appointing a special prosecutor. " The obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system." Kalal, 271 Wis.2d 633, ¶ 24. The Unnamed Movants' argument does not fit the purpose [363 Wis.2d 81] of a supervisory writ, which requires a " clear and unequivocal" duty to act on

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the part of the judge. Id., ¶ 22. If we were to adopt the Unnamed Movants' argument, we " would transform the writ into an all-purpose alternative to the appellate review process." Id., ¶ 24. Because the Unnamed Movants have not identified a violation of a plain legal duty, their petition for a supervisory writ is denied.

A. Standard of Review

[¶102] " [T]he authority of both judges and prosecutors in a John Doe proceeding [ . . . are questions of statutory interpretation which this court reviews de novo without deference to the circuit court or court of appeals." Cummings, 199 Wis.2d at 733. Thus, " [w]hether a John Doe judge has exceeded his or her powers is a question of law that this court determines independently." State ex rel. Individual Subpoenaed to Appear at Waukesha Cnty. v. Davis, 2005 WI 70, ¶ 17, 281 Wis.2d 431, 697 N.W.2d 803 (citing Cummings, 199 Wis.2d at 733).

[¶103] For a supervisory writ to issue, the petitioner for the writ must establish that: " (1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will result; (3) the duty of the trial court is plain and it must have acted or intends to act in violation of that duty; and (4) the request for relief is made promptly and speedily." Kalal, 271 Wis.2d 633, ¶ 17 (emphasis added).

[¶104] A " 'writ of supervision is not a substitute for an appeal.'" Id. (citation committed). " A supervisory writ 'is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency.'" Id. (citation omitted).

[363 Wis.2d 82] [¶105] Although a court exercises its discretion in deciding whether or not to issue a writ, " [t]he exercise of that discretion often involves . . . resolving questions of law in order to determine whether the circuit court's duty is plain." State ex rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008 WI App. 120, ¶ 9, 313 Wis.2d 508, 756 N.W.2d 573. " A plain duty 'must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.'" Kalal, 271 Wis.2d 633, ¶ 22 (citation omitted). The obligation of a judge to correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure, " as it would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." Id., ¶ 24; see also supra ¶ 80.

[¶106] Consequently, for a writ to issue in this case, the Unnamed Movants must demonstrate that the John Doe judges violated a plain legal duty, either in accepting an appointment as a reserve judge, in convening a John Doe proceeding over multiple counties, or in appointing a special prosecutor.

B. The Unnamed Movants Have Failed to Prove the Violation of a Plain Legal Duty.

i. No Violation of a Plain Legal Duty Occurred in the Appointment and Assignment of Reserve Judge Kluka or Reserve Judge Peterson to Preside Over a Multi-County John Doe Proceeding.

[¶107] We first discuss whether Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty either in accepting an appointment as a reserve judge or in convening a multi-county John Doe proceeding. [363 Wis.2d 83] We hold that the Unnamed Movants failed to prove that Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by accepting an appointment as a reserve judge or in convening a John Doe proceeding over multiple counties.

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1. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in Accepting Her Appointment as a Reserve Judge.

[¶108] We begin our discussion of this issue by explaining the distinction between the appointment and assignment of a reserve judge. A former judge is appointed to be a reserve judge by the Chief Justice. Once a former judge has been appointed to be a reserve judge then that reserve judge can be assigned to a particular case or to a particular circuit court calendar.

[¶109] The Director of State Courts has the power to assign reserve judges, but he does not have the power to appoint reserve judges. See SCR 70.10[33]; SCR 70.23.[34] The Chief Justice is the sole individual with the power to both appoint and assign reserve [363 Wis.2d 84] judges. See Wis. Const. art. VII, § 24(3)[35]; Wis. Stat. § 753.075[36]; SCR 70.23(1).[37]

[¶110] The relevant orders in the record state that Reserve Judge Kluka was assigned, not appointed, to serve as the John Doe judge in each of the five counties. Once the Milwaukee County District Attorney's Office filed a petition for the commencement of a John Doe proceeding in Milwaukee County, Chief Judge Kremers " assigned and forwarded" the petition to " Reserve Judge Kluka" on August 23, 2012. Thereafter, [363 Wis.2d 85] on September 5, 2012, the Director of State Courts, with then-Chief Justice Shirley Abrahamson's name directly above, assigned Reserve Judge Kluka to preside over the matter using a form titled " Application and Order for Specific Judicial Assignment." The actions taken by Chief Judge Kremers and the Director of State Courts suggest that Kluka possessed reserve judge status at the time her assignments were made. However, nothing in the record definitively establishes that the then-Chief Justice had

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previously appointed Kluka as a reserve judge.

[¶111] The absence of a record on this point is very likely because no one disputes that Kluka was lawfully appointed as a reserve judge. Indeed, the Unnamed Movants do not challenge Reserve Judge Kluka's authority to preside over the Milwaukee County John Doe proceeding. Rather, according to the Unnamed Movants, " the problem arose later, when the Director of State Courts extended that [assignment] to four more counties in one functionally-consolidated proceeding or investigation." In fact, in their reply brief, the Unnamed Movants state " the core issue is not who appointed a reserve judge: it is whether the five-county structure is lawful at all." Because the Unnamed Movants have failed to show that Reserve Judge Kluka was not lawfully appointed, it follows that they have failed to prove that she violated a plain legal duty in accepting her appointment as a reserve judge.

2. Reserve Judge Peterson Did Not Violate a Plain Legal Duty in Accepting His Appointment as a Reserve Judge.

[¶112] Similarly, the Unnamed Movants also have failed to meet their burden with respect to [363 Wis.2d 86] Reserve Judge Peterson. On October 29, 2013, Chief Judge Kremers assigned Reserve Judge Peterson to serve as the John Doe judge in Milwaukee County, after Reserve Judge Kluka withdrew, in an order titled: " REASSIGNMENT AND EXCHANGE." The document also states: " Reassigned to Reserve Judge Gregory A. Peterson according to the rules." See SCR 70.23 (providing that the chief judge can request the assignment of a reserve judge by the Director of State Courts). As explained above, only the Chief Justice has the authority to appoint reserve judges.

[¶113] Similar to the issue with Reserve Judge Kluka, the Unnamed Movants do not question Reserve Judge Peterson's authority to preside over the Milwaukee County John Doe proceeding. Their contention is that it was unlawful for Reserve Judge Peterson to accept assignment to four more counties " in one functionally-consolidated proceeding or investigation." Because the Unnamed Movants have failed to show that Reserve Judge Peterson was not lawfully appointed, they have failed to prove that Reserve Judge Peterson violated a plain legal duty in accepting his appointment as a reserve judge.

3. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in Convening a Multi-County John Doe Proceeding.

[¶114] The Unnamed Movants contend that no one may appoint or assign a reserve judge to serve as a John Doe judge simultaneously in five counties. The Unnamed Movants argue that " the question properly is not whether anything in the enabling statute 'prevents' or 'prohibits' what happened here. The right [363 Wis.2d 87] question is whether anything in the statutes permits what happened here." The Unnamed Movants emphatically state that " [t]he answer to that question is no." However, in examining this issue, we look to whether the John Doe statute clearly prohibits the procedural posture of this John Doe investigation. The answer is no.

[¶115] Pursuant to Wis. Stat. § 968.26(1)[38] five separate John Doe proceedings were initiated by the district attorneys of the five counties; however, it was for one investigation conducted by a

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special prosecutor. The investigation was expanded because the initial investigation in Milwaukee County suggested that persons residing in four additional counties could be involved with potential campaign finance violations and Wis. Stat. § 978.05(1) provides that a district attorney shall:

[p]rosecute all criminal actions before any court within his or her prosecutorial unit and have sole responsibility for prosecution of all criminal actions arising from violations of chs. 5 to 12 . . . that are alleged to be committed by a resident of his or her prosecutorial unit. . . .

See also Wis. Stat. § § 971.19(11)-(12) (providing that the venue for a criminal proceeding under campaign finance laws shall be the county of the defendant's residence unless the defendant chooses to be tried in the county where the crime occurred). The Director of State Courts, with then-Chief Justice Shirley Abrahamson's name directly above, then executed five separate [363 Wis.2d 88] orders assigning Reserve Judge Kluka to preside over the five separate proceedings. While these five separate proceedings are a single investigation, they have not been consolidated. Rather, the John Doe proceedings at issue have merely been running parallel to one another.

[¶116] Nothing in the John Doe statute prohibits the initiation of five parallel John Doe proceedings. Put another way, nothing in the John Doe statute explicitly told Reserve Judge Kluka that she could not preside over five John Doe proceedings. To initiate a John Doe proceeding, a district attorney must simply make the request, which is exactly what happened here. See Wis. Stat. § 968.26(1). Because nothing in the John Doe statute expressly prohibits the initiation of five parallel John Doe proceedings concerning a single investigation, we cannot conclude that Reserve Judge Kluka violated a plain legal duty in convening the five separate proceedings. As such, a supervisory writ cannot issue.

[¶117] The Unnamed Movants argue that they have shown a violation of a plain legal duty. They argue that " [t]he investigation was constituted in direct contravention of Wisconsin statutes and without authority. The John Doe judge . . . had a plain duty to comply with Wisconsin statutes in the conduct of a statutorily-constituted investigation." We rejected an identical argument in Kalal.

[¶118] In Kalal, a circuit court judge ordered that a criminal complaint be brought against the Kalals under Wis. Stat. § 968.02(3), which allows a circuit judge to order a criminal complaint be issued if a district attorney " refuses" to issue a complaint. Kalal, 271 Wis.2d 633, ¶ ¶ 12-13. The Kalals argued that " the circuit judge has a plain duty to correctly determine [363 Wis.2d 89] the presence of this threshold refusal before authorizing the issuance of a criminal complaint." Id., ¶ 23. We held that this argument failed to establish the violation of a plain legal duty. " To the extent that a circuit judge's decision to permit the filing of a complaint under Wis. Stat. § 968.02(3) is legally or factually unsupported, the defendant . . . may seek its dismissal in the circuit court after it has been filed, and may pursue standard appellate remedies thereafter." Id., ¶ 25. " But the statutory prerequisite that the judge find a refusal to prosecute by the district attorney does not impose upon the circuit judge a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ." Id.

[¶119] We explained that, " [i]n essence, the Kalals argue that the judge sitting ex parte in a hearing under Wis. Stat. § 968.02(3) has a plain duty to correctly find facts and apply the law." Id., ¶ 23. " We cannot accept this proposition, as it

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would extend supervisory jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law." Id., ¶ 24. " The obligation of judges to correctly apply the law is general and implicit in the entire structure of our legal system." Id. " The supervisory writ, however, serves a narrow function: to provide for the direct control of lower courts . . . [that] fail to fulfill non-discretionary duties . . . ." Id. (citations omitted). " To adopt the Kalals' interpretation of the plain duty requirement in supervisory writ procedure would transform the writ into an all-purpose alternative to the appellate review process." Id.

[¶120] The Unnamed Movants have not identified a " plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ." Id., ¶ 25. In this supervisory writ action, the Unnamed [363 Wis.2d 90] Movants must do more than point out the fact that the statutes do not explicitly authorize the commencement of parallel John Doe proceedings in multiple counties. Further, they must do more than argue that five parallel investigations and proceedings were " implicitly" prohibited by the statute. They must show that by commencing five parallel John Doe proceedings Reserve Judge Kluka violated a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ. They have not even tried to make such a showing.

[¶121] We understand the Unnamed Movants' concerns and agree that the kind of multi-county investigation that occurred here does raise serious questions. Typically, statewide or multi-county investigations are conducted by the Attorney General or by the GAB. See Wis. Stat. § § 165.50(1) (Attorney General), 5.05 (Government Accountability Board). However, Wis. Stat. § 968.26 is silent as to whether a John Doe judge can preside over a multi-county John Doe. It is axiomatic that silence on the point does not (and cannot) result in the creation of a plain legal duty. Here, Reserve Judge Kluka and the special prosecutor initially ran the investigation and proceeding out of a single post office box in Milwaukee controlled by the special prosecutor. They also put the case names and numbers of all five proceedings on every search warrant, subpoena, and order. However, the concerns expressed by the Unnamed Movants are more properly addressed to the legislature, not a court in a supervisory writ petition. Should the legislature wish to prohibit multi-county John Does, it is free to do so. We, however, cannot " transform the writ into an all-purpose alternative to the appellate review process" or [363 Wis.2d 91] announce new rules for future cases as part of that process. Kalal, 271 Wis.2d 633, ¶ 24. To do so would be an instance of judicial overreach incompatible with the nature and purpose of a supervisory writ.

[¶122] Therefore, we hold that Reserve Judges Kluka and Peterson did not violate a plain legal duty by: (1) accepting an appointment as a reserve judge; or (2) convening a multi-county John Doe proceeding, and thus we deny the Unnamed Movants' petition for a supervisory writ.

ii. Reserve Judge Kluka Did Not Violate a Plain Legal Duty by Appointing Francis Schmitz to be the Special Prosecutor.

[¶123] We now turn to whether Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor, and if so, what effect that would have on the court and special prosecutor's competency. We conclude that the Unnamed Movants have failed to prove that Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor.

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1. Under Carlson, Reserve Judge Kluka Reasonably Concluded that She Had the Authority to Appoint the Special Prosecutor on Her Own Motion.

[¶124] In appointing the special prosecutor Reserve Judge Kluka relied, in part, on Carlson.[39] Carlson concerned a court's statutory authority to appoint [363 Wis.2d 92] a special prosecutor under Wis. Stat. § 978.045.[40] In Carlson, the court of appeals explained that the plain [363 Wis.2d 93] language of the special prosecutors statute " authorizes two distinct ways in which a court may appoint a special prosecutor." Carlson, 250 Wis.2d 562, ¶ 8. The first is on the court's own motion. Id. The second is at the request of a district attorney. Id. Where the appointment is on the court's own motion, the court of appeals interpreted Wis. Stat. § 978.045(1r) as giving a court " unfettered authority" to make the appointment, as long as the court entered an order " stating the cause therefor." Id., ¶ ¶ 5, 9 (quotation omitted) (" In short, if a court makes a special prosecutor appointment on its own motion, it is constrained

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only in that it must enter an order in the record stating the cause for the appointment." ). " [A]ny restriction, if one exists, is triggered only when the appointment is made at the request of a district attorney, not when the appointment is made by a court on its own motion." Id., ¶ 8.

[363 Wis.2d 94] [¶125] Carlson thus concluded that a court need satisfy only one of the nine conditions listed under Wis. Stat. § 978.045(1r) when the district attorney requests the appointment of a special prosecutor, but when the court makes the appointment on its own motion, it need only enter an order stating the cause therefor. " A plain reading of the statute tells us that when a court makes this appointment on its own motion, all that is required of the court is that it enter an order in the record 'stating the cause therefor.'" Id., ¶ 9 (quoting Wis. Stat. § 978.045(1r) (1999-2000) which addresses, in part, John Doe proceedings and a John Doe judge's ability to appoint a special prosecutor for such proceedings).

[¶126] Reserve Judge Kluka relied on Carlson to appoint, on her own motion, the special prosecutor. Thus, in order to justify the appointment under Carlson, Reserve Judge Kluka was simply required to enter an order " stating the cause therefor," which is exactly what she did in citing concerns of efficiency and the appearance of impropriety.

[¶127] We note that Carlson is problematic to the point of being suspect. This is so because Carlson disregards the fact that one of the nine conditions enumerated under Wis. Stat. § 978.045(1r) must exist for the appointment of a special prosecutor, regardless of whether the appointment is made on the court's own motion or at the district attorney's request. The Carlson court's failure to import this language from the governing statute is an inexplicable-and very likely fatal-defect in its holding. While we agree with the Unnamed Movants' interpretation of Wis. Stat. § 978.045, we do not take the ultimate step of overruling Carlson because to do so would go further than the [363 Wis.2d 95] supervisory writ allows.[41] Simply put, despite Carlson's questionable validity we cannot reasonably conclude that Reserve Judge Kluka violated a plain legal duty in making the appointment.

[¶128] The issue presented also asks whether Reserve Judge Kluka violated a plain legal duty in making the special prosecutor appointment where no charges have yet been issued; where the district attorney in each county has not refused to continue the investigation or prosecution of any potential charge; and where no certification that no other prosecutorial unit was able to do the work for which the special prosecutor was sought was made to the Department of Administration. Again, Carlson gave the John Doe judge " unfettered authority" to appoint the special prosecutor, so the absence of these additional circumstances does not demonstrate that Reserve Judge Kluka violated a plain legal duty in making the appointment.

2. Reserve Judge Kluka Also Relied on Her Inherent Authority in Appointing the Special Prosecutor.

[¶129] Reserve Judge Kluka also stated that she appointed the special prosecutor pursuant to her " inherent authority" under Cummings. The relevant

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issue [363 Wis.2d 96] in Cummings was whether a John Doe judge has the ability to seal a search warrant. Id. at 733. There the defendant argued that no statutory authority conferred such power on John Doe judges. In rejecting the defendant's argument, we reasoned:

[A] John Doe judge has been granted jurisdiction, the legal right to exercise its authority, pursuant to Wis. Stat. § 968.27. A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate. The statutory jurisdiction of a John Doe judge has been defined as the authority of the judge to conduct a John Doe investigation [in order to ascertain whether a crime has been committed and by whom]. . . . The ability to seal a search warrant is exactly that type of power which a John Doe judge needs to fulfill [that] jurisdictional mandate.

Id. at 736-37. Thus, while Cummings did not specifically address a John Doe judge's inherent authority to appoint a special prosecutor, it provides broad language supporting the idea that a John Doe judge possesses inherent authority where it is necessary to facilitate its jurisdictional mandate. Stated otherwise, a John Doe judge's inherent authority is limited to what is necessary to enable the judge to properly conduct a John Doe proceeding. State ex rel. Individual Subpoenaed, 281 Wis.2d 431, ¶ 26; see In re John Doe Proceeding, 272 Wis.2d 208, ¶ 10.

[¶130] The Unnamed Movants argue that the only cases invoking a court's inherent authority to appoint a special prosecutor have arisen after charges have been filed. See, e.g., State v. Lloyd, 104 Wis.2d 49, 56-57, 310 N.W.2d 617 (Ct.App. 1981). We agree, but that is because no court has addressed whether a John Doe judge has inherent authority to appoint a special prosecutor, which necessarily occurs before charging. [363 Wis.2d 97] That there is an absence of case law addressing whether a John Doe judge has inherent authority to appoint a special prosecutor does not necessarily mean the John Doe judge in this case violated a plain legal duty in doing so.[42]

[¶131] Arguably, the broad language in Cummings could be used to support Reserve Judge Kluka's actions in this case. Because no law expressly prohibits a John Doe judge from exercising his inherent authority to appoint a special prosecutor, the Unnamed Movants cannot prove that Reserve Judge Kluka violated a plain legal duty in exercising that authority to appoint the special prosecutor.

[¶132] Due to the existing precedent, Reserve Judge Kluka's legal duty was not plain, clear, and unequivocal with an imperative responsibility to act under the facts. Because the Unnamed Movants have not established that Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor, we deny their petition for a supervisory writ and affirm the court of appeals.[43]

VI. CONCLUSION

[¶133] Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any [363 Wis.2d 98] wrongdoing. In

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other words, the special prosecutor was the instigator of a " perfect storm" of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

A.

[¶134] In Two Unnamed Petitioners, we hold that the definition of " political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article I, Section 3 of the Wisconsin Constitution because its language " 'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'" Janssen, 219 Wis.2d at 374 (quoting Bachowski, 139 Wis.2d at 411). However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, that " political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley and WRTL II. With [363 Wis.2d 99] this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is " beyond the reach of [Ch. 11]." Barland II, 751 F.3d at 815. Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

[¶135] To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

B.

[¶136] In Schmitz v. Peterson, we hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review [363 Wis.2d 100] of a judge's discretionary acts, Kalal, 271 Wis.2d 633, ¶ 24, the supervisory writ sought by the special prosecutor

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is denied, and Reserve Judge Peterson's order is affirmed.

C.

[¶137] Finally, in Three Unnamed Petitioners, we hold that the Unnamed Movants have failed to prove that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent standards of a supervisory writ. Put another way, if we were to grant the supervisory writ in this case, we would risk " transform[ing] the writ into an all-purpose alternative to the appellate review process," which we cannot do. Id. Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.

By the Court.--Declaration of rights; relief granted; John Doe investigation ordered closed in Two Unnamed Petitioners.

By the Court.--Petition for supervisory writ denied and order affirmed in Schmitz v. Peterson.

By the Court.--Petition for supervisory writ denied and decision affirmed in Three Unnamed Petitioners.

[¶138] ANN WALSH BRADLEY, J., did not participate.

EXHIBIT A

Office of the Clerk

Supreme Court of Wisconsin

110 East Main Street, Suite 215

P.O. Box 1688

Madison, WI 53701-1688

Telephone (608) 266-1880

Facsimile (608) 267-0640

Web Site: www.wicourts.gov

December 16, 2014

To:

Susan K. RaimerColumbia County Clerk of Circuit CourtP.O. Box 587Portage, WI 53901-2157

Carlo EsquedaDane County Clerk of Circuit Court215 S. Hamilton St.Madison, WI 53703

Lynn M. HronDodge County Clerk of Circuit Court210 W. Center StreetJuneau, WI 53039

Lia Gust

Iowa County Clerk of Circuit Court

222 N. Iowa Street

Dodgeville, WI 53533

John Barrett

Milwaukee County Clerk of Circuit Court

901 N. 9th St., Rm. G-8

Milwaukee, WI 53233

*Additional Parties listed on Pages 13-14

You are hereby notified that the Court has entered the following order:

Nos. 2013AP2504-2508-W Three Unnamed Petitioners v. Peterson

L.C.#s2013JD11, 2013JD9, 2013JD6, 2013JD1 & 2012JD23

2014AP296-OA Two Unnamed Petitioners v. Peterson

L.C.#s2012JC23, 2013JD1, 2013JD6, 2013JD9 & 2013JD11

2014AP417-421-W Schmitz v. Peterson

L.C.#s2013JD11, 2013JD9, 2013JD6, 2013JD1 & 2012JD23

Pending before this court are petitions in three separate proceedings relating to John Doe proceedings that have been initiated in five counties: (1) a petition for review seeking review of a court of appeals' order of January 30, 2014 (Case Nos. 2013AP2504-2508-W[1]); (2) multiple petitions for bypass of the court of appeals in a supervisory writ proceeding filed in the court of appeals by Special Prosecutor Francis A. Schmitz (Case Nos. 2014AP417-421-W); and (3) a petition for leave to commence an original action filed by Two Unnamed Petitioners (Case No. 2014AP296-OA). Responses to each of these petitions as well as statements of additional authorities also have been filed in this court. In addition to multiple motions by various parties to seal various filings in this court, the Three Unnamed Petitioners in Case Nos. 2013AP2504-2508-W have filed a motion to add five individuals as respondents in this court.

The court having considered all of the foregoing,

IT IS ORDERED that the petition for review in Case Nos. 2013AP2504-2058-W is granted; the petitions to bypass the court of appeals in Case Nos. 2014AP417-421-W are granted and this court assumes jurisdiction over that action; and the petition for leave to commence an original action in Case No. 2014AP296-OA is granted and this court assumes jurisdiction over that action. These three proceedings shall be consolidated for purposes of briefing and oral argument in this court; and

IT IS FURTHER ORDERED that the parties' briefs shall address the following issues:

1. Whether the Director of State Courts had lawful authority to appoint reserve judge, Barbara Kluka, as the John Doe judge to preside over a multi-county John Doe proceeding.
2. Whether the Chief Judge of the First Judicial District had lawful authority to appoint reserve judge, Gregory A. Peterson, as the John Doe judge to preside over a multi-county John Doe proceeding.
3. Whether Wis. Stat. § 968.26 permits a John Doe judge to convene a John Doe proceeding over multiple counties, which is then coordinated by the district attorney of one of the counties.
4. Whether Wisconsin law allows a John Doe judge to appoint a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county requests the appointment; (b) but none of the nine grounds for appointing a special prosecutor under Wis. Stat. § 978.045(1r) apply; (c) no charges have yet been issued; (d) the district attorney in each county has not refused to continue the investigation or prosecution of any potential charge; and (e) no certification that no other prosecutorial unit was able to do the work for which the special prosecutor was sought was made to the Department of Administration.
5. If, arguendo, there was a defect in the appointment of the special prosecutor in the John Doe proceedings at issue in these matters, what effect, if any, would that have on the competency of the special prosecutor to conduct the investigation; or the competency of the John Doe judge to conduct these proceedings? See, e.g., State v. Bollig, 222 Wis.2d 558, 569-70, 587 N.W.2d 908 (Ct.App. 1998).
6. Whether, with regard to recall elections, Wis. Stat. § 11.26(13m) affects a claim that alleged illegal coordination occurred during the circulation of recall petitions and/or resulting recall elections.
7. Whether the statutory definitions of " contributions," " disbursements," and " political purposes" in Wis. Stat. § § 11.01(6), (7) and (16) are limited to contributions or expenditures for express advocacy or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. If they extend to issue advocacy coordination, what constitutes prohibited " coordination?"
a. Whether Wis. Stat. § 11.10(4) and § 11.06(4)(d) apply to any activity other than contributions or disbursements that are made for political purposes under Wis. Stat. § 11.01(16) by
i. The candidate's campaign committee; or
ii. An independent political committee.
b. Whether Wis. Stat. § 11.10(4) operates to transform an independent organization engaged in issue advocacy into a " subcommittee" of a candidate's campaign committee if the independent advocacy organization has coordinated its issue advocacy with the candidate or the candidate's campaign committee.
c. Whether the campaign finance reporting requirements in Wis. Stat. ch. 11 apply to contributions or disbursements that are not made for political purposes, as defined by Wis. Stat. § 11.01(16).
d. Whether Wisconsin Coalition for Voter Participation, Inc. v. State Elections Bd., 231 Wis.2d 670, 605 N.W.2d 654 (Ct. App), pet. for rev. denied, 231 Wis.2d 377, 607 N.W.2d 293 (1999), has application to the proceedings pending before this court.
8. Whether fundraising that is coordinated among a candidate or a candidate's campaign committee and independent advocacy organizations violates Wis. Stat. ch. 11.
9. Whether a criminal prosecution may, consistent with due process, be founded on a theory that coordinated issue advocacy constitutes a regulated " contribution" under Wis. Stat. ch. 11.
10. Whether the records in the John Doe proceedings provide a reasonable belief that Wisconsin law was violated by a campaign committee's coordination with independent advocacy organizations that engaged in express advocacy speech. If so, which records support such a reasonable belief?
11. If Wis. Stat. ch. 11 prohibits a candidate or a candidate's campaign committee from engaging in " coordination" with an independent advocacy organization that engages solely in issue advocacy, whether such prohibition violates the free speech provisions of the First Amendment to the United States Constitution and/or Article I, Section 3 of the Wisconsin Constitution.
12. Whether pursuant to Wis. Stat. ch. 11, a criminal prosecution may, consistent with due process, be founded on an allegation that a candidate or candidate committee " coordinated" with an independent advocacy organization's issue advocacy.
13. Whether the term " for political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally vague unless it is limited to express advocacy to elect or defeat a clearly identified candidate?
14. Whether the affidavits underlying the warrants issued in the John Doe proceedings provided probable cause to believe that evidence of a criminal violation of Wis. Stat. § § 11.27, 11.26(2)(a), 11.61(1), 939.31, and 939.05 would be found in the private dwellings and offices of the two individuals whose dwellings and offices were searched and from which their property was seized.; and

IT IS FURTHER ORDERED that within 40 days after the date of this order the Three Unnamed Petitioners in Case Nos. 2013AP2504-2508-W, the Two Unnamed Petitioners in Case No. 2014AP296-OA, and the Unnamed Movants in Case Nos. 2014AP417-421-W (collectively, the Unnamed Movants) must file a brief in this court; that within 30 days of filing Special Prosecutor Francis A. Schmitz, John Doe Judge Gregory A. Peterson, and Chief Judges Gregory Potter, James Daley, James Duvall and Jeffrey Kremers, must file either a response brief or a statement that no response brief will be filed; and that if a response brief is filed by Special Prosecutor Francis A. Schmitz, John Doe Judge Gregory A. Peterson, and/or Chief Judges Gregory Potter, James Daley, James Duvall and Jeffrey Kremers, within 10 days of filing the Unnamed Movants must file either a reply brief or a statement that no reply brief will be filed; and

IT IS FURTHER ORDERED that the portions of the opening brief(s) of the Unnamed Movants that are referenced in Wis. Stat. § (Rule) 809.19(1)(d), (e), and (f) shall not exceed 100 pages if a monospaced font is used or 22,000 words if a proportional serif font is used. The portions of the response brief(s) of Special Prosecutor Francis A. Schmitz, John Doe Judge Gregory A. Peterson, and Chief Judges Gregory Potter, James Daley, James Duvall and Jeffrey Kremers that are referenced in Wis. Stat. § (Rule) 809.19(1)(d), (e), and (f) shall not exceed 150 pages if a monospaced font is used or 33,000 words if a proportional serif font is used. Any reply brief(s) filed by the Unnamed Movants shall not exceed 26 pages if a monospaced font is used or 6,000 words if a proportional serif font is used; and

IT IS FURTHER ORDERED that the parties shall file their respective original briefs and 22 copies thereof under seal and the clerk of this court shall maintain all such briefs under seal, pending further order by this court. In addition, at the time of filing the original brief, the parties shall also file 17 redacted copies of each brief, in which matters that are covered by the secrecy orders entered by the John Doe Judge or that are otherwise confidential shall be redacted. The redacted copies shall initially be maintained under seal by the clerk of this court. Two copies of each redacted brief shall be served on all other parties to these proceedings, and all other parties shall have 20 days after the filing of the redacted copies to file a written objection to the redacted copy, which objects to either insufficient redaction or excessive redaction. Each such written objection must specify which words, sentences or paragraphs the objector either wants to be redacted or unredacted, and must provide reasons for each such objection. If no objections are received within the 20-day period, the clerk of this court will place a copy of the redacted version of the brief into the public court file on the third day following the expiration of the 20-day period. If an objection is received, the redacted versions shall remain under seal until such time as the court rules on the objection and issues a written order directing the clerk of this court to place a redacted version of the brief into the public court file; and

IT IS FURTHER ORDERED that the clerk of this court shall continue to maintain as sealed all previously filed documents in these proceedings that have been maintained or treated as sealed up to the date of this order, subject to the provisions of the following paragraph; and

IT IS FURTHER ORDERED that on or before February 27, 2015, each party that has previously filed in the court of appeals or in this court any document that has been maintained under seal until the date of this order shall for each such document either file a written statement that the document may be placed into the public court file or file a redacted version of the document in which matters that are covered by the secrecy orders entered by the John Doe Judge or that are otherwise confidential shall be redacted. (This requirement does not apply to documents filed in the court of appeals in Case Nos. 2013AP2504-2508-W.) Each party shall serve on all other parties a copy of the statement that the document may be placed into the public court file or two copies of the redacted version of the previously filed document. All other parties shall have 20 days after the filing of the statement or redacted copies to file a written objection to the statement or the redacted copy, which objects to either insufficient redaction or excessive redaction. Each such written objection must specify which words, sentences or paragraphs the objector either wants to be redacted or unredacted, and must provide reasons for each such objection. If no objections are received within the 20-day period, the clerk of this court will place either the original previously filed document (in the case of a statement) or a copy of the redacted version of the previously filed document into the public court file on the third day following the expiration of the 20-day period. If an objection is received, the original document and the redacted versions shall remain under seal until such time as the court rules on the objection and issues a written order directing the clerk of this court to place the original or a redacted version of the previously filed document into the public court file; and

IT IS FURTHER ORDERED that in any brief filed in this court the parties shall not incorporate by reference any portion of any document filed either in the court of appeals or in this court; instead, any material in these documents upon which there is reliance should be restated in the brief filed in this court; and

IT IS FURTHER ORDERED that the first brief filed in this court must contain, as part of the appendix, a copy of the decision of the court of appeals in Case Nos. 2013AP2504-2508-W and the relevant written decisions and orders of the John Doe Judge; and

IT IS FURTHER ORDERED that within 30 days after the date of this order, each party must provide the clerk of this court with 10 copies of the brief previously filed on behalf of that party in the court of appeals in Case Nos. 2013AP2504-2508-W; and

IT IS FURTHER ORDERED that within 15 days of the date of this order the clerk of the Milwaukee County circuit court shall assemble the record in Case No. 2012JD23, identify by number each paper, and prepare a list of the numbered papers pursuant to the directives of Wis. Stat. § (Rule) 809.15. Also within 15 days of the date of this order the clerk of the Dane County circuit court shall assemble the record in Case No. 2013JD9, identify by number each paper, and prepare a list of the numbered papers pursuant to the directives of Wis. Stat. § (Rule) 809.15. As soon as the records have been assembled and the lists of numbered papers have been prepared, the clerks of each circuit court shall submit the lists to John Doe Judge Gregory A. Peterson for his review of the list with respect to whether each list contains any confidential information and for his approval. Within 20 days after the date of this order, the final version of the lists of numbered papers and the assembled records shall be transmitted by each circuit court clerk to the clerk of this court. There shall not be any opportunity for any party to inspect the record prior to their transmission to this court. When the lists of numbered papers have been approved by Judge Peterson, each clerk of the circuit court shall send a copy of that clerk's list of numbered papers to the persons listed on this order. The record in Milwaukee County Case No. 2012JD23 and the record in Dane County Case No. 2013D9 shall constitute the record for purposes of these proceedings in this court. This shall not alter the status of the papers in those records with respect to their confidentiality or change the ability of the Unnamed Movants, their counsel, or any other person to view any parts of the records; and

IT IS FURTHER ORDERED that the allowance of costs, if any, in connection with the granting of the petition will abide the decision of this court on review; and

IT IS FURTHER ORDERED that the motion to add five individuals as additional respondents in Case Nos. 2013AP2504-2508-W is denied; and

IT IS FURTHER ORDERED that the parties will be notified of the date, the time, and the procedures for oral argument in these matters in due course.

ANN WALSH BRADLEY, J., did not participate. See attached letter to counsel setting forth reasons for recusal.

¶ 1 SHIRLEY S. ABRAHAMSON, C.J. ( concurring ). I join Justice Prosser's concurrence. In addition, I offer the following comments relating not only to the parties' interests in the order but to the public's rights and interests.

¶ 2 Most documents filed in the three cases have been under seal, not open to the public. Some documents have been disclosed to some of the participants but not to other participants. The court has never ruled on any of the several motions to seal the documents. Instead, the clerk of the Supreme Court has kept those filings under seal on the grounds that the motions to seal remain pending before this court.

¶ 3 The public should, to the extent possible, be given access to documents that are the bases of the cases, as well as to the briefs (and appendices) filed in this court, to the oral arguments, and to the opinion(s) of this court. The court's order does not give adequate consideration to the public nature of the parties' arguments and the opinion(s) of this court. These issues may be down the road a piece, but now is the time to think about the road we are constructing and where it will ultimately lead.

¶ 4 More particularly the order is problematic in several respects, including the following:

1. The order groups the array of participants into two constellations: the eight unnamed participants on the one side (referred to in the order as " unnamed movants" ) and the special prosecutor, John Doe judge, and five chief judges on the other side. Missing from the constellations are the five district attorneys who, in my opinion, should be made parties as requested. The court order denies a " motion to add five individuals as additional respondents in Case Nos. 2013AP2504-2508-W." Aren't the district attorneys more involved in the John Doe proceedings than the chief judges?
Furthermore, the persons in each of these two constellations are not necessarily involved in all three cases and their interests may not be aligned. On the unnamed participants' side, it is possible, perhaps probable, that the court will get eight separate briefs-in-chief, each at least 100 pages. Each of the several response briefs may be 150 pages. Then there are reply briefs. Conceivably each of the parties can have a different take on each of the 14 enumerated issues (plus the subparts). The array of issues that may be presented in the massive briefs filed is staggering.
2. The court's order consolidates the three cases only for purposes of briefing and argument. The court's order does not change the burden of proof (the burden of going forward with the evidence and the burden of persuasion) for each issue in each of the three cases. The several cases might impose different burdens on each party for the same issue. To assist the court, I would ask each party to clearly state the issue (and the case in which it arises) that the party is addressing and the standard of review and the burden of proof for that issue.
3. Assembling and transmitting the appellate record in the three cases presents an especially thorny set of problems because most documents filed in this court or the court of appeals were accepted under seal.
Ordinarily, briefing does not begin here until a circuit court record is assembled and transmitted to this court. The circuit court record from only two of the five counties will come up to this court, and these records remain subject to the secrecy orders entered by the John Doe judge. The John Doe judges' secrecy orders are themselves sealed. Thus many of the documents in the circuit court record will be unavailable to the unnamed participants, their counsel, and any other person.
And although, according to the court's order, the appellate filings in the court of appeals and in this court must be made available to the public and the unnamed participants to the extent allowed by the John Doe secrecy orders, it is safe to assume that these filings will be heavily redacted, with many pages entirely withheld. It is also safe to assume that there will be disputes about which appellate filings should and should not remain secret.
For example, the court's order appears to assume that the same secrecy orders that applied to proceedings and filings before the John Doe judge should apply to appellate proceedings and filings in this court. Is such an assumption justified?
These kinds of informational difficulties and discrepancies may be endemic to appellate review of John Doe proceedings, but the court's order does not adequately deal with them. The order provides a briefing schedule that might end before agreement on the redaction of the sealed appellate filings is reached.
It will be difficult, for example, for the unnamed participants to discuss whether the affidavits underlying the warrants issued in the John Doe proceedings were legally sufficient when the unnamed participants are unable to see the affidavits themselves. See Order, Issue No. 14.
4. With respect to Issue No. 14 enumerated in the order, I would ask the parties to address whether the probable cause standard is different for search warrants and subpoenas in John Doe proceedings than it is for search warrants and subpoenas in other contexts. See In re Doe Proceeding Commenced by Affidavit Dated July 25, 2001, 2004 WI 149, 277 Wis.2d 75, 689 N.W.2d 908 (relating to the probable cause standard for subpoenas in John Doe proceedings); State v. Washington, 83 Wis.2d 808, 843-45, 266 N.W.2d 597 (1978) (same); cf. United States v. R. Enters., Inc., 498 U.S. 292, 297-302, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991) (relating to the probable cause standard for subpoenas in a federal grand jury proceeding).
5. One of the three cases the court is accepting is an original action. A petition for an original action, by its nature, might not initially have a record connected with it. If a petition for an original action has no statement or stipulation of facts, this court ordinarily directs the parties (or appoints a master) to submit a stipulation of facts and a list of factual issues on which the parties cannot agree.
The inherent factual and legal complications in this case provide all the more reason for this court to follow its standard practice here regarding a statement of facts. See Supreme Court Internal Operating Procedures, II.B.3. (The Supreme Court generally will not exercise its original jurisdiction in matters involving contested issues of fact.)
The court's failure to follow its standard practice regarding a statement of facts in the instant original action portends difficulties down the road.
6. This court's role is to decide questions of law, not facts, and thus this court may not supply findings of fact that the John Doe judge did not make.
Specific facts are essential to resolve the complex legal issues presented. One set of facts needed is a description of the advocacy at issue. These facts are needed, for example, to determine whether the advocacy was issue advocacy or express advocacy.
Furthermore, this court is to decide whether, and if so, how, the unnamed participants " coordinated" with any campaign committees; whether the " coordination" violates the Wisconsin campaign finance laws; and if so, whether those campaign finance laws comply with the mandates of the federal and state constitutions. The Seventh Circuit Court of Appeals commented: " The [United States] Supreme Court has yet to determine what 'coordination' means." O'Keefe v. Chisholm, 769 F.3d 936, 941 (7th Cir. 2014).
How can this court resolve these legal issues without knowing what types and levels of " coordination" occurred? Without facts relating to what the unnamed participants and any campaign committees did, the court will be left to decide important and complex legal issues in a vacuum. The court cannot fill in the record with its own factual assumptions and hypotheticals.
The Seventh Circuit Court of Appeals commented that the " claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician's campaign committee has not been established 'beyond debate.' To the contrary, there is a lively debate among judges and academic analysts. No opinion issued by the [United States] Supreme Court, or by any court of appeals, establishes ('clearly' or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups--let alone that the First Amendment forbids even an inquiry into that topic." O'Keefe, 769 F.3d at 942 (emphasis in original).
Here this court is being asked to decide these very complex issues with few, if any, settled facts and with the investigatory inquiry not having proceeded beyond a preliminary stage.
7. The court's order refers to independent organizations without using quotation marks around the word " independent." The Seventh Circuit Court of Appeals has cautioned that the word " independent" should be considered as being in quotation marks at all times " because the prosecutor suspected that the group's independence is ostensible rather than real." O'Keefe, 769 F.3d at 937.
8. The order directs that the record in Milwaukee and Dane counties, rather than the record in all five counties involved in the John Doe proceedings, be assembled and transmitted to this court. The court is not certain that the records filed only in these two counties contain all the documents that were filed in the other three counties. Yet the court is deeming the records of two counties to be the entire record upon which this court might base a decision.
9. The phrasing of some of the issues is not as neutral as I might prefer. Some of the issues are taken from a party's filings, and a party often writes a question in a way to stimulate a favorable response from the court. Moreover, the phrasing of some issues rests on unproven assumptions or on assumptions with which some parties agree and others do not. The parties should point out in their briefs any problems with the questions posed and any assumptions with which the party disagrees. The court intends, in my opinion, that its statement of the issues be neutral; the court does not, in my opinion, intend to accept any party's unproved assumptions.

¶ 5 For the reasons set forth, I join Justice Prosser's concurrence and provide these additional considerations.

¶ 6 DAVID T. PROSSER, J. ( concurring ). I support the court's decision to grant the petitions in all three proceedings. I do not agree with the court's decision to " consolidate" " these three proceedings" " for purposes of briefing and oral argument."

¶ 7 These matters are important to the people of Wisconsin. They require the court's best effort and they require the best effort of all counsel. The present order is so complex that it makes " best effort" by anyone nearly impossible.

¶ 8 In my view, the court should divide the multiple issues into at least two separate cases, one relating to questions of procedure, including appointment of the John Doe special prosecutor, and one relating to the interpretation and constitutionality of campaign finance statutes. The court should hear argument in these cases on different days, so that interested parties will have sufficient time to argue their positions and the court will have sufficient time to digest the information presented.

¶ 9 As I understand the order, each " Unnamed Movant" is entitled to file a separate opening brief and a separate reply brief. The court realizes that the multiple Unnamed Movants are not indistinguishable and may not always be aligned. Given the nature of the case, this court is in no position to compel " coordination" in terms of how many briefs will be filed, who will argue specific issues, and what the arguments will be. Even the apportionment of time for argument may be contested.

¶ 10 There are significant issues involving the " facts" upon which the parties and this court may rely, i.e., the " record" and its completeness as well as the enormous problem of sealed documents. The order contemplates that disputes relating to redaction of unsealed documents will be decided by this court without providing a blueprint of how or when the court will discharge this responsibility.

¶ 11 The order presumes that none of the above-stated problems will cause delay. I do not retreat from my decision to grant the petitions, but I think the court is making a mistake in its failure to assist counsel by addressing and ameliorating some of the problems inherent in the order.

¶ 12 For the foregoing reasons, I respectfully concur.

¶ 13 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this concurrence.

*Additional Parties:

Hon. Gregory A. Peterson Reserve Judge

Matthew W. O'Neill/ Diane Slomowitz Fox O'Neill Shannon622 N. Water Street, Suite 500Milwaukee, WI 53202

David C. RiceAsst. Attorney General P.O. Box 7857Madison, WI 53707-7857

Francis D. Schmitz P.O. Box 2143Milwaukee, WI 53201-2143

Dean A. Strang Strang Bradley, LLC10 E. Doty Street, Suite 1002Madison, WI 53703

J.B. Van Hollen Wisconsin Attorney General P.O. Box 7857Madison, WI 53707-7857

Todd P. Graves/ Edward D. Greim Graves Garrett LLC1100 Main Street, Suite 2700Kansas City, MO 64105

Michael J. Bresnick/ Edward H. Meyers Philip J. O'Beirne/ Julie O'Sullivan1100 Connecticut Ave., NW Washington, DC 20036

Directors Office

Director of State Courts

P.O. Box 1688

Madison, WI 53701-1688

Dennis P. Coffey

Mawicke & Goisman, SC

1509 N. Prospect Ave.

Milwaukee, WI 53202-2323

Steven M. Biskupic

Biskupic & Jacobs, S.C.

1045 W. Glen Oaks Lane, Ste. 106

Mequon, WI 53092

Sean O'Donnell Bosack

Godfrey & Kahn, S.C.

780 N. Water St., Ste. 700

Milwaukee, WI 53202-3512

Timothy M. Hansen

Hansen Reynolds Dickinson Crueger LLC

316 N. Milwaukee St., Ste. 200

Milwaukee, WI 53202-5885

Jeffrey James Morgan

LeBell, Dobrowski & Morgan, LLP

309 N. Water St., Suite 350

Milwaukee, WI 53202

Scot Ross

One Wisconsin Now

152 W. Johnson Street, Suite 214

Madison, WI 53703

Hon. Gregory Potter Wood County Courthouse P.O. Box 8095Wisconsin Rapids, WI 54494

Hon. James P. Daley Rock County Courthouse51 S. Main Street Janesville, WI 53545-3951

Hon. James Duvall

Buffalo County Courthouse

P.O. Box 68

Alma, WI 54610-0068

Hon. Jeffrey Kremers

Milwaukee County Courthouse

901 N. 9th St.

Milwaukee, WI 53233

SUPREME COURT

STATE OF WISCONSIN

STATE CAPITOL

P. O. BOX 1688

MADISON, WISCONSIN 53701

December 15, 2014

Dennis P. Coffey Mawicke & Goisman, SC1509 N. Prospect Ave. Milwaukee, WI 53202-2323

Diane Slomowitz/ Matthew W. O'NeillFox, O'Neill & Shannon, S.C.622 N. Water St., Ste. 500Milwaukee, WI 53202-4978

Dean A. Strang Strang Bradley, LLC10 East Doty Street, Ste. 1002Madison, WI 53703

Steven M. Biskupic Biskupic & Jacobs, S.C.1045 W. Glen Oaks Lane, Ste. 106Mequon, WI 53092

Jeffrey James Morgan LeBell, Dobrowski & Morgan, LLP309 N. Water St., Ste. 350Milwaukee, WI 53202

Sean O'Donnell Bosack Godfrey & Kahn, S.C.780 N. Water Street, Ste. 700Milwaukee, WI 53202-3512

Timothy M. Hansen

Hansen Reynolds Dickinson Crueger, LLC

316 N. Milwaukee St., Ste. 200

Milwaukee, WI 53202-5885

David C. Rice

Asst. Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Francis D. Schmitz

P.O. Box 2143

Milwaukee, WI 53201-2143

John B. Van Hollen

Wisconsin Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Directors Office

Director of State Courts

P.O. Box 1688

Madison, WI 53701-1688

Scot Ross

One Wisconsin Now

152 W. Johnson St., Ste. 214

Madison, WI 53707

Re: Nos. 2014AP417-W-2014AP421-W

State of Wisconsin ex rel. Francis D. Schmitz v. The Hon. Gregory A. Peterson, John Doe Judge, Eight Unnamed Movants, and Interested Party

Dear Counsel:

Unnamed movants have filed three petitions to bypass in the above-captioned case. Listed as one of the attorneys who is representing a movant is Attorney Dean Strang. My son, John Bradley, practices law with Attorney Strang.

I have been advised that John has had no involvement with this petition to bypass and will not have any involvement with it. He is not acting as a lawyer in this proceeding. It is my understanding that any fee agreement is on an hourly basis and not on the basis of a contingent fee.

Under these facts and circumstances the question of recusal comes to the fore. It is not an easy decision. I am mindful that judicial impartiality is a basic premise of our jurisprudence, and it is the responsibility of a judge to protect the integrity and dignity of the judicial process from the appearance of partiality as well as from actual bias.

In response to an issue of recusal, there is a natural tendency for judges to say " I can be fair and impartial." But that is not the test. After all, the judge in the seminal recusal case of Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), three times proclaimed that he could be fair and impartial in response to as many motions for recusal. Nevertheless, the United States Supreme Court held that the Due Process Clause of the United States Constitution required that he not participate in the case.[1]

The Court made clear that a judge's self-proclaimed fairness does not resolve the recusal inquiry. Such a subjective response is but one step in the analysis. Due process mandates the application of an objective standard which " may also require recusal whether or not actual bias exists or can be proved." Id. at 886.

In reaching my decision on recusal, I have examined the Wisconsin Code of Judicial Conduct, Wis. Stat. § 757.19, Wisconsin Judicial Conduct Advisory Committee Opinion 00-1, other state and national ethics opinions, commentaries on judicial ethics, and relevant case law. I have also consulted with the Executive Director of the Wisconsin Judicial Commission.

Even though I subjectively believe that I could be fair and impartial in this case, I nevertheless determine that recusal is required here. Due process requires not only a consideration of fairness, but also the appearance of fairness, Siefert v. Alexander, 608 F.3d 974, 985 (7th Cir. 2010). " To perform its high function in the best way, justice must satisfy the appearance of justice." Id. (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). In applying the objective standard mandated by due process, I conclude that under the facts and circumstances " reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances" could reasonably question a judge's ability to be impartial. SCR 60.04 (4).

The Wisconsin Code of Judicial Conduct takes a case-by-case approach to the question whether a judge can participate in a case when a law firm with which a family member is affiliated as all attorney appears but the relative is not involved in the case. See Comment to SCR 60.04 (4) (e).

SCR 60.04(4) specifically provides:

(4) Except as provided in sub. (6) for waiver, a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial: . . .
(e) The judge or the judge's spouse, or a person within a third degree of kinship to either of them, or the spouse of such a person meets one of the following criteria:
1. Is a party to the proceeding or an officer, director or trustee of a party.
2. Is acting as a lawyer in the proceeding.
3. Is known by the judge to have more than a de minimus interest that could be substantially affected by the proceeding.
4. Is to the judge's knowledge likely to be a material witness in the proceeding.

The comment to the rule sheds further light on how the rule is to be interpreted and applied. It states:

Comment: The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself require the judge's recusal. Under appropriate circumstances, the fact that the judge's impartiality may reasonably be questioned or that the relative is known by the judge to have an interest in the law firm that could be " substantially affected by the outcome of the proceeding" may require the judge's recusal.

None of the provisions that mandate recusal applies here. My son is neither a party nor a witness. Additionally, the facts indicate that he is not acting as a lawyer in the proceeding and because the fee agreement is not contingent, any interest that he may have is not " substantially affected by the outcome of the proceeding."

Nevertheless, a judge is to avoid even the appearance of partiality. Wisconsin Judicial Conduct Advisory Committee Opinion. 00-1 lists factors to consider in making a recusal decision involving a lawyer relative. Those factors include: (a) the appearance to the general public of the failure to recuse; and (b) the appearance to other attorneys, judges and members of the legal system of the failure to recuse.

Other states have considered additional factors that include: The nature of the action. (Tennessee Advisory Opinion 04-1); whether the relative's name appears in the firm name (Colorado Advisory Opinion 05-2); the size of the firm (Colorado Advisory Opinion 05-2, Illinois Advisory Opinion 94-18, Tennessee Advisory Opinion 04-1, Washington Advisory Opinion 88-12); whether the fee in the case is contingent or hourly (Tennessee Advisory Opinion 04-1); and whether the relative's position is as associate, partner, shareholder, or of counsel (Colorado Advisory Opinion 05-2; Illinois Advisory Opinion 94-18; Washington Advisory Opinion 88-12).

This court has been subject to extensive criticism for its recusal rules and practices. Weak recusal rules and lapses in recusal practices undermine the public trust and confidence in a fair and impartial judiciary.

We have an obligation, and the public has a right, to hold judges to high ethical standards. Judicial integrity lies at the heart of the public's respect for judicial decisions and their legitimacy.

Therefore, for the reasons set forth above, I am not participating in the petitions to bypass.

Respectfully,

Ann Walsh Bradley, Justice

EXHIBIT B

Office of the Clerk

Supreme Court of Wisconsin

110 East Main Street, Suite 215

P.O. Box 1688

Madison, WI 53701-1688

Telephone (608) 266-1880

Facsimile (608) 267-0640

Web Site: www.wicourts.gov

March 27, 2015

To:

Susan K. Raimer Columbia County Clerk of Circuit Court P.O. Box 587Portage, WI 53901-2157

Carlo Esqueda Dane County Clerk of Circuit Court215 S. Hamilton St. Madison, WI 53703

Lynn M. Hron Dodge County Clerk of Circuit Court210 W. Center Street Juneau, WI 53039

Lia Gust

Iowa County Clerk of Circuit Court

222 N. Iowa Street

Dodgeville, WI 53533

John Barrett

Milwaukee County Clerk of Circuit Court

901 N. 9th St., Rm. G-8

Milwaukee, WI 53233

*Additional Parties listed on Pages 13-14

You are hereby notified that the Court has entered the following order:

Nos. 2013AP2504-2508-W Three Unnamed Petitioners v. Peterson

L.C.#s2013JD11, 2013JD9, 2013JD6, 2013JD1 & 2012JD23

2014AP296-OA Two Unnamed Petitioners v. Peterson

L.C.#s2012JC23, 2013JD1, 2013JD6, 2013JD9 & 2013JD11

2014AP417-421-W Schmitz v. Peterson

L.C.#s2013JD11, 2013JD9, 2013JD6, 2013JD1 & 2012JD23

This court has before it the parties' Joint Report on Oral Argument, filed March 11, 2015. The parties filed this report consistent with this court's March 4, 2015 order, which noted the unprecedented substantive, procedural, and logistical issues that the presentation of oral argument in this case presents.

In their joint Report, the parties disagree on a variety of points. Most fundamentally, the parties disagree as to whether this court should hold oral argument at all. The Unnamed Movants state that, " based on the clarity of the legal issues presented" and the concern that oral argument " may be unworkable in light of the potential difficulties raised by the legitimate privacy concerns of the parties, uncharged individuals[,] and groups subject to an ongoing investigation," the Unnamed Movants " do not object to submitting the entire case on briefs, and foregoing oral argument altogether." In contrast, the special prosecutor maintains that oral argument will not infringe on privacy concerns at this point and asserts that oral argument is required on all issues. John Doe Judge Gregory Peterson and Chief Judges Gregory Potter, James Daley, James Duvall, and Jeffrey Krerners (collectively, the " respondent judges" ) anticipate orally arguing the five issues regarding John Doe procedure identified by this court in its December 16, 2014 order.

The parties also disagree as to how oral argument should be conducted, if held, The Unnamed Movants suggest that the courtroom should remain open during oral argument, provided that the Unnamed Movants are referred to only as the unnamed clients of their respective attorneys or by the identifying numbers the Unnamed Movants have used throughout briefing (e.g., Unnamed Movant #1, #2, etc.), and provided that the court employs an objection procedure by which attorneys may object when a Justice or a party refers to confidential information. The special prosecutor also suggests that the courtroom should remain open during oral argument. However, the special prosecutor maintains that there is no need for anonymity " because of the widespread public disclosure of the facts of this investigation over the last year by at least one Movant in national periodicals, on the Internet and in a federal lawsuit." Alternatively, the special prosecutor argues that if anonymity is necessary, then the parties should be referenced in oral argument by a pre-arranged set of pseudonyms. If the court does not approve the use of pseudonyms, then the special prosecutor suggests that the courtroom should be closed during his recitation of the facts, with a video recording and transcript of that portion of the argument to be later released to the public with identifying information removed. The respondent judges do not state a position as to whether the courtroom should be open or closed during oral argument.

As to the broadcast of the oral argument, the Unnamed Movants state in the joint Report that Wisconsin Eye should broadcast the oral argument on a delay that would permit the court to hear and decide any objection to the disclosure of any confidential information and would then allow Wisconsin Eye to redact any portion of the argument to which the court sustained an objection. However, the Unnamed Movants have subsequently written the court to state that, after further consultation with Wisconsin Eye, this proposal was not technologically feasible, and Wisconsin Eye would need to broadcast the oral argument without a broadcast delay. Thus, there would be no limitation on what would be broadcast. Neither the special prosecutor nor the respondent judges state a specific position regarding the broadcast of the oral argument.

Upon consideration of all of the parties' positions, and bearing in mind the very unique nature of this case, we conclude that it is neither legally nor practically possible to hold oral argument. The prospect of oral argument creates severe tension between important and conflicting priorities. On the one hand, the court is strongly adverse to the idea of closing the courtroom to the public; our long tradition is to render public decisions based on public arguments, both oral and written. On the other hand, we must uphold the John Doe secrecy orders, from which no party has appealed and which protect a vast amount of information from disclosure, including the John Doe docket and activity records, John Doe filings, process issued by the John Doe judge, and all other matters observed or heard in the John Doe proceeding. There are important reasons justifying the secrecy afforded John Doe materials, including ensuring that evidence and witnesses remain uncorrupted and preventing testimony which may be mistaken or untrue from becoming public. See Wisconsin Family Counseling Services, Inc. v. State, 95 Wis.2d 670, 677, 291 N.W.2d 631 (Ct.App. 1980). Perhaps inevitably, the briefs received thus far often intertwine non-confidential information with confidential information. Although it is feasible for such confidential information to be redacted from written arguments (and we ordered the parties to do so in our December 16, 2014 order), it is much more difficult to protect the confidentiality of information covered by the secrecy orders during the give-and-take of oral argument. The parties have not provided us with a workable procedure by which to do so.

We therefore will decide this matter on briefs, without oral argument. Pursuant to the redaction process set forth in our December 16, 2014 order and further explained in a separate order issued on today's date, the parties' briefs will, in the near future, become publicly available in redacted form so as to allow as much public access to the parties' arguments as the John Doe secrecy orders permit. In this unique situation, this is the best way we can achieve transparency in the handling of these matters while the underlying John Doe investigation remains pending.

IT IS ORDERED that that this matter shall be removed from the court's April oral argument calendar and submitted to the court on the merits of the parties' written briefs.

ANN WALSH BRADLEY, J., did not participate.

¶ 1 SHIRLEY S. ABRAHAMSON, C.J. ( dissenting ). Today the court takes the rare, perhaps unprecedented, step of canceling oral argument for three cases, all of which relate to a single John Doe investigation.[1]

¶ 2 There is nothing inherently unfair or unconstitutional about deciding a case on briefs, that is, without oral argument. Here, however, the court's order canceling oral argument is not a routine decision to decide a case on briefs--it is part of a broader pattern of excluding the public from the John Doe cases under review.

¶ 3 The court's order is long on summarizing the parties' positions regarding oral argument but short on setting forth the court's own reasoning for canceling oral argument. The court regurgitates much of the parties' joint report on oral argument before concluding that " it is neither legally nor practically possible to hold argument. . . . The parties have not provided us with a workable procedure. . . ." (Emphasis added.) These two sentences are the entire explanation this court offers to the parties and the public. The court's failure to provide further justification for its highly unusual decision to cancel oral argument is, in my view, alarming.

¶ 4 The parties' joint response to the court's request for input on the manner in which oral argument should be conducted is admittedly complex and, unfortunately, not very helpful. The unnamed movants express concern that oral argument " may be unworkable in light of the potential difficulties raised by the legitimate privacy concerns of the parties, uncharged individuals[,] and groups subject to an ongoing investigation." The report includes requests for the court to hold oral argument and not to hold oral argument; to open the courtroom and to close the courtroom; and to refer to the parties by their names, by their attorneys' names, by numbers, and by pseudonyms.

¶ 5 This snarl of competing and conflicting requests is the result of the court's decision to review (prematurely, in my opinion) an ongoing secret John Doe investigation and to consolidate diverse cases with different parties for oral argument and briefing.

¶ 6 Nevertheless, if federal courts can manage to maintain public oral argument and access to briefs in cases implicating serious national security concerns,[2] then surely this court can manage oral argument in the three John Doe cases before us. " Briefs in the Pentagon Papers case and the hydrogen bomb plans case were [made] available to the press, although sealed appendices discussed in detail the documents for which protection was sought. The court denied a motion to close part of the oral argument in the Pentagon Papers case." [3]

¶ 7 Although it would not be free from difficulty, oral argument is legally and practically possible in the instant cases. Accordingly, I would hold oral argument as scheduled.

¶ 8 To put the order canceling oral argument in perspective, I begin by examining the practice of public oral argument in this court and the necessity of providing compelling reasons for a departure from that practice. I then recount the scheduling of oral argument in the instant cases. Finally, I consider and debunk potential justifications for the court's decision to cancel oral argument.

I

¶ 9 This court's practice is to grant oral argument in all cases.[4]

¶ 10 We have ample time to do so. From September 2013 through August 2014 we issued written opinions in 66 cases. We expect to issue fewer than 55 between September 2014 and August 2015.

¶ 11 We also have ample reason to do so, as the significance of oral argument is hard to overstate.

¶ 12 Oral argument is a critical element of courts' information-gathering and decision-making processes. It enables courts to seek clarification from counsel about the issues presented and the parties' arguments.

¶ 13 Chief Justice Rehnquist summarized the function and importance of oral argument as follows:

The intangible value of oral argument is, to my mind, considerable. It is and should be valuable to counsel, to judges and to the public. . . . [O]ral argument offers an opportunity for a direct interchange of ideas between court and counsel . . . . Counsel can play a significant role in responding to the concerns of the judges, concerns that counsel won't always be able to anticipate in preparing the briefs.[5]

¶ 14 Because our oral arguments are open to the public,[6] oral argument helps ensure that the public's firmly established right to open court proceedings is a reality.[7] Oral argument gives the public an opportunity to hear discussion of cases, subjecting the justices of this court to vital public scrutiny.[8]

¶ 15 Open court proceedings gives " assurance that the proceedings [are] conducted fairly to all concerned, and . . . discourage perjury, the misconduct of participants, and decision based on secret bias or partiality." [9]

¶ 16 Open court proceedings encourage confidence in the judiciary because " [p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." [10]

¶ 17 The court's surprising order canceling all oral argument in the instant cases requires further explanation. " Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification." [11] The court order's conclusory statement that oral argument would not be legally and practically possible in the instant cases falls far short of providing the rigorous justification required.

II

¶ 18 The court initially planned to hold oral argument in these cases.

¶ 19 In an order dated December 16, 2014, after the cases had been pending for about a year, the court acted on various petitions that had been filed with regard to several outstanding John Doe proceedings. The court granted: (1) a petition for review of an order of the court of appeals; (2) petitions to bypass the court of appeals in a supervisory writ proceeding filed in the court of appeals; and (3) a petition for leave to commence an original action in this court. The court advised the parties and the public that the three proceedings would be consolidated for purposes of briefing and oral argument.

¶ 20 On December 19, 2014, the court issued an order advising the parties to keep April 17, 2015, and the afternoon of April 20, 2015, available for oral argument.

¶ 21 On February 11, 2015, the court issued an order advising the parties that oral argument was indeed scheduled for April 17 and 20.

¶ 22 The parties' briefs generally agreed that oral argument should be held.

¶ 23 On March 4, 2015, the court asked the parties to file a joint report providing input on the manner in which oral argument should be conducted.

¶ 24 In an about-face, the unnamed movants responded to the court's request for input by stating that they would not object to the instant cases being decided on briefs. The unnamed movants nevertheless provided the court with recommendations for how oral argument could be conducted.

¶ 25 In contrast, the special prosecutor, the John Doe judge, and the four chief circuit court judges continued to request oral argument on all five issues regarding John Doe procedure that were identified by the court in its December 16, 2014 order. The special prosecutor also insisted that oral argument is warranted on all other issues presented.

¶ 26 The court now cancels oral argument altogether. The order denying oral argument constitutes a surprising departure both from the court's usual practice of hearing oral argument and from its stated intention to hear oral argument in the present cases.

III

¶ 27 I would stay the course and hold oral argument as scheduled.

¶ 28 The importance of oral argument to the public's right to open judicial proceedings, which I discussed above, weighs in favor of holding oral argument in the instant cases.[12]

¶ 29 The complexity and significance of the legal issues presented also weigh in favor of holding oral argument. The parties and the court would benefit from " a direct interchange of ideas." [13]

¶ 30 Fourteen issues were identified in the court's December 16, 2014 order, and multiple sub-issues. At least 733 pages of briefs have been filed in the instant cases (along with numerous motions), and additional briefs are expected. If any case demands oral argument to help clarify the issues, the parties' positions, and the law, then these cases do.

¶ 31 A brief description of the substantive legal issues presented illustrates my point.

¶ 32 The unnamed movants are challenging the constitutionality of the Wisconsin statutes governing campaign finance and campaign conduct and the application of the First Amendment to the Wisconsin statutes and to the conduct of the unnamed movants. The unnamed movants challenge the ability of the State to even inquire into coordination between campaign committees and issue-advocacy groups. The claims presented raise difficult constitutional questions being debated by scholars and courts across the country.

¶ 33 The Seventh Circuit Court of Appeals recognized the complexity of the issues presented in this litigation when it stated as follows:

Plaintiffs' claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician's campaign committee has not been established " beyond debate." To the contrary, there is a lively debate among judges and academic analysts. . . . No opinion issued by the [United States] Supreme Court, or by any court of appeals, establishes (" clearly" or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups--let alone that the First Amendment forbids even an inquiry into that topic.[14]

¶ 34 Beyond their complexity, the issues presented in the instant cases are the subject of acute public concern. The public's interest in this litigation is evidenced by the extensive state and national media coverage that the underlying John Doe investigation has garnered and by the large number of entities seeking to file amicus briefs to aid this court's decision-making. Those entities include the Wisconsin Government Accountability Board, the Center for Competitive Politics, Wisconsin Family Action, Citizens for Responsible Government, the Ethics and Public Policy Center, the League of Women Voters of Wisconsin, four former Federal Election Commissioners, and the Wyoming Liberty Group.

¶ 35 The unnamed movants in the present cases implausibly suggest that oral argument may not be necessary due to " the clarity of the legal issues presented." This claim cannot be made with a straight face, and the court wisely opts not to adopt it. Indeed, the court's redaction order acknowledges that the cases do not present " simple issues with easy answers."

¶ 36 Rather, it appears the court's rationale for canceling oral argument is its determination that this court is bound by a secrecy order issued by the John Doe judge early on in the John Doe investigation underlying this litigation.

¶ 37 A John Doe secrecy order does not automatically apply to proceedings in an appellate court. I conclude, for the reasons set forth below, that the specific John Doe secrecy order at issue in the instant cases should not be enforced by this court.

¶ 38 In my dissent to a separate order this court is simultaneously releasing, requiring extensive redaction of the parties' briefs, I explain that this court has the power and responsibility to determine for itself what parts of the briefs and record before us should be open or closed. I set forth four reasons for my conclusion that this court is not bound by the John Doe secrecy order:

¶ 39 First, the public has a constitutional, statutory and common law right of access to judicial proceedings and judicial records. This right is largely negated by the court's orders issued today.

¶ 40 Second, Wis. Stat. § 968.26 and the case law do not support the proposition that this court must comply with the John Doe secrecy order. The three John Doe cases are sui generis. They are not governed by prior case law.

¶ 41 Third, this court has the inherent power to determine the level of secrecy needed to decide the John Doe cases before it. Indeed, the order on redaction issued today admits to violating the John Doe secrecy order by revealing a confidential portion of the secrecy order. Why does the court breach the John Doe secrecy order? According to the redaction order, the court is " forced" to do so " so that we can decide the redaction objections raised by the parties and establish the proper secrecy rules that will apply to filings in this court." [15] That is precisely my point. This court must decide the level of secrecy that applies to the instant cases based on the public's rights and this court's needs in deciding the cases.

¶ 42 Fourth, the justification for secrecy in John Doe proceedings does not support secrecy at this stage in the instant litigation. The cat may already be out of the bag. The special prosecutor asserts that various " secrets" have already been made public.

¶ 43 Even if the court decides to observe some level of secrecy, dispensing with oral argument altogether is unnecessary. Less restrictive measures than cancelation of oral argument are available to maintain confidentiality.

¶ 44 There are two distinct sets of issues in the instant litigation; the first pertains to state statutes governing the creation of John Doe proceedings and the second pertains to Wisconsin campaign finance law and related constitutional issues. These two sets of issues present different problems regarding public disclosure. One option the court could consider is separating oral argument on the two sets of issues and imposing partial closures of oral argument for each to the extent necessary. Such bifurcation is not unusual.[16]

¶ 45 This court's redaction order states that the public will be able to see, in the briefs, " the legal arguments being made by the parties." Why, then, can the public not hear the parties' legal arguments being tested by this court in open oral argument?

¶ 46 Alternatively, but probably not needed in the present cases, oral argument could be closed to the public but recorded for subsequent transcription. A redacted version of the transcript or video recording could be released to the public as promptly as feasible.[17]

¶ 47 My point is this: Just because holding oral argument in the instant cases without breaching confidentiality would present logistical challenges does not mean oral argument should be eliminated.

¶ 48 In summary: If the court's rationale for canceling oral argument is that the legal issues presented are so clear that oral argument would be pointless, then some may view the court's order as outlandish on its face. If the court's rationale for canceling oral argument is that public oral argument would be logistically complicated on account of the John Doe secrecy order, then the order cannot withstand scrutiny. Public access to oral argument can surely be managed.

¶ 49 There is, in my view, no legitimate reason supporting the court's decision to cancel oral argument entirely. I conclude that oral argument is warranted in the present cases.

¶ 50 For the reasons set forth, I dissent.

¶ 51 DAVID T. PROSSER, J. (dissenting). On December 16, 2014, I disagreed with the court's decision to " consolidate" " these three proceedings" " for purposes of briefing and oral argument." Now, because of the unusual complexity of the proceedings and the secrecy inherent in a pending John Doe investigation, the court decides to dispense with oral argument altogether. This is a mistake.

¶ 52 Although I originally voted with the majority because of the impracticability, if not impossibility, of having oral argument open to the public, I believe upon reflection that my vote was wrong. We should not dispense with oral argument simply because the hearing room would have to be closed. The court could have promptly released a redacted transcript, a redacted recording, and a redacted video of oral argument after reviewing the argument and ensuring that information protected by the secrecy order was not disclosed.

¶ 53 Oral argument could have been limited to the most critical issues before the court--not all 14 issues set out in our December 16 order. It could have been reasonably limited in duration. Counsel could have been directed not to make any argument and not to respond to any question from the court that would disclose confidential information.

¶ 54 Closing the hearing room to the public would not have been popular, but the court indisputably has the authority to do so when it has a legitimate and substantial reason. As we said in State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis.2d 220, 235, 340 N.W.2d 460 (1983):

[T]he closure of a courtroom should ensue only when not to do so would defeat the very purpose of the court proceedings or would otherwise substantially impinge upon widely held public values which have been declared by the legislature in particular circumstances to supersede the general public policy of the open courtroom.

¶ 55 In that same case, the court also said that the reason for closure must be " substantial," " compelling," and that failing to close the courtroom would jeopardize " cherished and legislatively recognized values." Id. at 235, 236.

¶ 56 Here, the compelling reason for closing the hearing room would be the protection of the secrecy of the John Doe proceeding. The legislature has explicitly recognized the need to maintain secrecy in a John Doe proceeding.

¶ 57 The John Doe statute specifically authorizes the John Doe judge to issue a secrecy order to protect testimony given and documents collected during a John Doe proceeding. Wis. Stat. § 968.26(3) (2013-14) (" The examination may be adjourned and may be secret." ). This court has that authority as well.

¶ 58 As members of this court, our job is to do the right thing, as each of us understands the right thing, regardless of the inconvenience, or the controversy, or the consequences.

¶ 59 For these reasons, I respectfully dissent.

*Additional Parties:

Hon. Gregory A. Peterson Reserve Judge

Matthew W. O'Neill/ Diane Slomowitz Fox O'Neill Shannon622 N. Water Street, Suite 500Milwaukee, WI 53202

David C. Rice Asst. Attorney General P.O. Box 7857Madison, WI 53707-7857

Francis D. Schmitz P.O. Box 2143Milwaukee, WI 53201-2143

Dean A. Strang Strang Bradley, LLC10 E. Doty Street, Suite 621Madison, WI 53703

Brad D. Schimel Wisconsin Attorney General P.O. Box 7857 Madison, WI 53707-7857

Todd P. Graves/ Edward D. Greim Graves Garrett LLC1100 Main Street, Suite 2700 Kansas City, MO 64105

Michael J. Bresnick/ Edward H. Meyers Philip J. O'Beirne/ Julie O'Sullivan Stein Mitchell Muse & Cippollone1100 Connecticut Ave., NW, Suite 1100Washington, DC 20036

Directors Office

Director of State Courts

P.O. Box 1688

Madison, WI 53701-1688

Dennis P. Coffey

Mawicke & Goisman, SC

1509 N. Prospect Ave.

Milwaukee, WI 53202-2323

Steven M. Biskupic/ Michelle L. Jacobs

Biskupic & Jacobs, S.C.

1045 W. Glen Oaks Lane, Ste. 106

Mequon, WI 53092

Sean O'Donnell Bosack

Godfrey & Kahn, S.C.

780 N. Water St., Ste. 700

Milwaukee, WI 53202-3512

Eric J. Wilson

Godfrey & Kahn, S.C.

P.O. Box 2719

Madison, WI ...


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