In Re Doe

2009 WI 46, 766 N.W.2d 542
CourtWisconsin Supreme Court
DecidedJune 11, 2009
Docket2007AP1526-W
StatusPublished
Cited by8 cases

This text of 2009 WI 46 (In Re Doe) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Doe, 2009 WI 46, 766 N.W.2d 542 (Wis. 2009).

Opinion

766 N.W.2d 542 (2009)
2009 WI 46

In the Matter of the John DOE petition:
State of Wisconsin ex rel. Ira B. Robins, Petitioner-Petitioner,
v.
The Honorable Patrick J. Madden, presiding, Respondent.

No. 2007AP1526-W.

Supreme Court of Wisconsin.

Argued January 6, 2009.
Decided June 11, 2009.

*543 For the petitioner-petitioner there were briefs by Joseph F. Owens and Arthur & Owens, S.C., New Berlin, and oral argument by Joseph F. Owens.

For the respondent the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

*544 ¶ 1 MICHAEL J. GABLEMAN, J.

This is a review of an unpublished opinion and order of the court of appeals denying a petition for a supervisory writ of mandamus.[1] Ira Robins ("Robins") sought the writ to compel the Circuit Court for Taylor County, Patrick J. Madden, Judge, to examine all the witnesses produced by Robins at a John Doe hearing under Wis. Stat. § 968.26 (2007-08).[2] The court of appeals concluded that § 968.26 does not require the circuit judge to examine all the witnesses produced by a John Doe complainant.[3] It therefore denied the petition for a writ of mandamus because Judge Madden had no plain legal duty to examine all the witnesses Robins produced. Robins then sought review before this court.

¶ 2 The issue we address today is whether the judge in a John Doe hearing is required under Wis. Stat. § 968.26 to examine all the witnesses a complainant produces and to issue subpoenas to all the witnesses a complainant wishes to produce. We read the statute as extending judicial discretion in a John Doe hearing not only to the scope of a witness's examination, but also to whether a witness need testify at all. Accordingly, we hold that a judge is not required by § 968.26 to examine all the witnesses a complainant produces at a John Doe hearing, or to subpoena all the witnesses a complainant wishes to produce. Robins has no clear legal right to have each of the witnesses he produced examined, and his petition for a writ of mandamus must therefore fail. Because the court of appeals examined the relevant facts, applied the proper standard of law, and used a rational process to reach a rational result, the court of appeals did not erroneously exercise its discretion in denying Robins' writ of mandamus.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 On May 16, 2007, Robins submitted a petition for the initiation of a John Doe proceeding to the Circuit Court for Taylor County. The complaint detailed multiple instances of alleged criminal conduct by the Taylor County District Attorney, Karl Kelz ("Kelz"), involving a wide variety of purported misconduct in public office and criminal defamation. Robins requested in his complaint that: (1) venue of the John Doe hearing be changed to any county in which Kelz had not previously practiced law and to which criminal cases from Taylor County are not often transferred; (2) the court appoint a special prosecutor to participate in the hearing; (3) the proceedings remain open to the public; and (4) Kelz have no contact with the witnesses listed in the complaint. Taylor County Circuit Judge Gary L. Carlson then recused himself, and the matter was transferred by judicial assignment to the Honorable Patrick J. Madden of the Circuit Court for Iron County.

¶ 4 On June 6, 2007, Judge Madden convened the John Doe hearing. Robins brought five witnesses with him to the hearing to testify regarding the allegations, and had two other witnesses on-call and available for a telephonic examination. At the commencement of the hearing, Judge Madden announced that the proceeding would be secret. He ordered all *545 non-court personnel—besides Robins and his attorney—to leave the courtroom, including the five witnesses Robins had produced. Robins' attorney was ordered not to argue points of law or participate in the presentation of Robins' testimony during the hearing. Judge Madden then examined Robins under oath for more than two hours regarding the allegations in the complaint. As part of this examination, Judge Madden elicited a summary of the substance of each prospective witness's testimony.

¶ 5 After the examination, Judge Madden concluded:

The court does not have a substantial basis in fact to find that any crime in violation of 942.01 or 946.12 or any other of the statutes which the court would consider based on these facts has been violated to the point where this would meet the threshold test of a probable cause hearing, and for that reason, this petition is dismissed.

Five days thereafter, on June 11, Judge Madden issued an order dismissing the petition[4] on the grounds that there were "insufficient facts to warrant a criminal prosecution."[5]

¶ 6 On July 5, 2007, Robins petitioned the court of appeals for a supervisory writ of mandamus to compel Judge Madden to: (1) reconvene the John Doe proceeding; (2) examine all witnesses produced by Robins regarding the allegations in the complaint; (3) appoint a special prosecutor; and (4) issue a final written decision that includes findings of fact and conclusions of law.

¶ 7 After receiving Judge Madden's response, the court of appeals issued an opinion and order on January 4, 2008, concluding that the trial court was not required to examine each witness under Wis. Stat. § 968.26. Rather, the provision requiring examination of the complainant's witnesses was to be understood in the context of the provision granting the judge discretion over the extent of the examination. After determining that Judge Madden did not refuse to perform a plain legal duty, the court of appeals denied Robins' petition for a writ of mandamus.[6]

¶ 8 Robins now appeals the denial of his petition. Upon granting review, we directed the parties to also address the closely related question of whether a judge has discretion over the issuance of subpoenas to witnesses the complainant wishes to produce.

II. STANDARD OF REVIEW

¶ 9 This case involves our review of the court of appeals' denial of a petition for a writ of mandamus. We review the court of appeals decision for erroneous exercise of discretion. Watton v. Hegerty, 2008 WI 74, ¶ 6, 311 Wis.2d 52, 751 N.W.2d 369. We will sustain a court's exercise of discretion if the court: (1) examined the relevant facts; (2) applied a proper standard *546 of law; and (3) using a demonstrably rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175 (1982).

¶ 10 "Mandamus is an `extraordinary writ' that may be employed to compel public officers to perform a duty that they are legally obligated to perform." Watton, 311 Wis.2d 52, ¶ 7, 751 N.W.2d 369 (citing State ex rel. Greer v. Stahowiak, 2005 WI App 219, ¶ 7, 287 Wis.2d 795, 706 N.W.2d 161).

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Cite This Page — Counsel Stack

Bluebook (online)
2009 WI 46, 766 N.W.2d 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-doe-wis-2009.