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  • WisBar News
    November
    25
    2013

    State Appeals Court Lets New John Doe Investigations Proceed

    Joe Forward
    Legal Writer

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    Nov. 25, 2013 – Three unnamed targets of John Doe investigations allegedly pending in five counties have failed to temporarily halt those investigations, as the District IV Wisconsin Appeals Court has denied a motion to stay further action in the secret probes.

    Sealed and secret, the John Doe process was used most recently to investigate and later convict persons connected to Gov. Scott Walker when he served as Milwaukee’s county executive. Reportedly, a new investigation has been launched to investigate potential fundraising and other campaign violations tied to Walker’s recall election.

    Late last Friday, the appeals court ruled that John Doe investigations may proceed while the court considers a joint petition seeking writs of mandamus or prohibition. The targets say the John Doe judges are acting without authority, according to the court:

    “The petitioners ask this court to invalidate all prior actions taken by any John Doe judge who acted in more than one county or outside of his or her judicial administration district or by any special prosecutor who was appointed without satisfying the statutory criteria, and to prohibit any coordinated, multi-county John Doe investigations going forward.”

    Petitioners say there is no statutory authority to assign “reserve” judges to John Doe proceedings. Reserve Judge Gregory Peterson has been assigned to oversee the case.

    But Wis. Stat. section 753.075 clearly allows “reserve” judges to be appointed to renewable six-month terms and to “perform the same duties as other judges.”

    “[T]he petitioners present an argument that John Doe judges ought to be accountable through elections, as a matter of public policy,” the appeals court wrote. “Such an argument should be addressed to the legislature and does not establish the clear violation of a plain legal duty as required for this court to issue a supervisory writ.”

    According to the appeals court ruling, the unnamed petitioners also say there is no statutory authority “to consolidate before a single judge John Doe investigations that have been initiated in separate counties or in judicial administration districts supervised by different chief judges,” among other arguments based on John Doe procedure.

    But the appeals court said these claims “rely upon one or more propositions that lack direct factual support in the materials provided with the writ petition.” Thus, the court ruled that a stay is not warranted in the case, allowing the probes to continue.

    For instance, the appeals court said there are no documents to show the separate cases in separate counties were consolidated into an unauthorized “supercircuit” proceeding in which a judge is acting outside the judicial administrative district.

    However, the appeals court ordered the John Doe judge and special prosecutor to respond by addressing the factual basis and legal authority for the reserve judge to handle John Doe investigations that are occurring in multiple administrative districts, as well as other issues dealing with judicial authority and the scope of secrecy orders.

    Although the targets of John Doe probes remain secret, the appeals court ruling – publicly released because it does not identify the targets or the investigations’ subject matter – revealed some high-profile lawyers who are apparently working the case.