Custodian of Records for the Legislative Technology Services Bureau v. State
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2004 WI 149 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 02-3063-W In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001: Custodian of Records for the Legislative Technology Services Bureau, Petitioner, v. State of Wisconsin and the Honorable Sarah B. O'Brien, presiding Respondents. MOTION FOR RECONSIDERATION 2004 WI 65 272 Wis. 2d 208, 680 N.W.2d 792 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 15, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: ABRAHAMSON, C.J., dissents. BRADLEY, J., joins dissent. BUTLER, J., did not participate. 2004 WI 149 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-3063-W (L.C. No. 01 JD 6) STATE OF WISCONSIN : IN SUPREME COURT In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001: Custodian of Records for the Legislative Technology Services Bureau, FILED DEC 15, 2004 Petitioner, v. Cornelia G. Clark Clerk of Supreme Court State of Wisconsin and the Honorable Sarah B. O'Brien, presiding Respondents. MOTION for reconsideration. ¶1 of PER CURIAM. portions of our Reconsideration denied. The State has moved for reconsideration opinion in the above-captioned matter. Attention has been called to our application and construction of Wis. Stat. § 968.135 (2001-02)1 during the John Doe proceeding and to our application of Fourth Amendment principles to the 1 All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. 02-3063-W subpoena that was before us. clarification of our In response to the motion, as discussion of § 968.135, we withdraw paragraphs 53-55 from the opinion issued June 9, 2004 and in their place substitute paragraphs 53-55 below. ¶53 Because a John Doe proceeding is a criminal investigative tool, Unnamed Person No. 1, 260 Wis. 2d 653, ¶22, we turn to Wis. Stat. § 968.135, entitled "Subpoena for documents."2 Section 968.135 requires a showing of probable cause to believe that the documents sought by the subpoena duces tecum will produce evidence relevant to potentially criminal activity. While this probable cause determination differs from the purpose for which a John Doe proceeding is commenced, that is, to decide whether there is probable cause to believe that a crime actually has been committed and who committed it, see Reimann, 214 Wis. 2d at 621, 624, the question remains how the probable cause required by § 968.135 may be shown in a John Doe proceeding. ¶54 In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the United States Supreme Court explained that probable cause, as literally required in the case of a warrant, is shown in the context of a subpoena duces tecum if: (1) the investigation is for a lawfully authorized purpose and (2) the documents requested are relevant to the inquiry. See Walling, 327 U.S. at 209; see also Washington, 83 Wis. 2d at 841. In the case of a John Doe proceeding, the proceeding is lawfully authorized if the judge determines that the complainant makes a threshold showing sufficient to establish that the complainant has an objectively reasonable belief that a crime has With been committed. Reimann, 214 Wis. 2d at 623. this judicial determination, any document requested, 2 Wisconsin Stat. § 968.135 provides in relevant part: Upon the request of the . . . district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2). 2 02-3063-W in order to be relevant to the inquiry, must focus on the factual assertions made to the judge at the commencement of the proceeding. See Walling, 327 U.S. at 209; Washington, 83 Wis. 2d at 841. The necessary link between the documents requested and the suspected criminal activity under investigation is thus shown, affording probable cause to believe that the documents sought will produce evidence relevant to potentially criminal activity, as required by Wis. Stat. § 968.135. ¶55 Accordingly, we conclude that any subsequent subpoena duces tecum issued in this John Doe proceeding satisfies the requirements of Wis. Stat. §§ 968.26 and 968.135 and the constitutional concerns regarding an overly broad subpoena explained above, when the affidavit submitted to request the subpoena for documents: (1) limits the requested data to the subject matter described in the John Doe petition, Reimann, 214 Wis. 2d at 622; (2) shows that the data requested is relevant to the subject matter of the John Doe proceeding, Washington, 83 Wis. 2d at 843; (3) specifies the data requested with reasonable particularity, Walling, 327 U.S. at 209; Hale, 201 U.S. at 77; and (4) covers a reasonable period of time, Washington, 83 Wis. 2d at 844. Additionally, all of the communications to the John Doe judge must be made a part of the record. See id. at 824-25. ¶2 The motion for reconsideration is denied costs. ¶3 LOUIS B. BUTLER, JR., J., did not participate. 3 without No. ¶4 State, SHIRLEY supported S. by ABRAHAMSON, an amicus C.J. brief 02-3063-W.ssa The (dissenting). filed by the Wisconsin District Attorneys Association, does not ask the court to change its ultimate conclusions of law or its mandate. State and amicus argue that in the court's Rather, the discussion of subpoenas duces tecum, the reference to the Fourth Amendment and the reference to the probable § 968.135 should be removed. the District Attorneys cause language of Wis. Stat. In the alternative, the State and Association ask for at least an opportunity to brief the applicability of the Fourth Amendment and § 968.135 to John Doe subpoenas. ¶5 Neither the Fourth Amendment nor Wis. Stat. § 968.135 was argued or briefed by the parties. Nevertheless the court's decision gratuitously opined on these issues. Maybe something was in the air, or water, but on several occasions3 in the spring of 2004 this court played the roles of both counsel and court and ignored the usual and uncontroversial appellate practice of requesting supplemental briefs. ¶6 requests: Amendment issues. The court Delete and Wis. should the grant unnecessary Stat. § 968.135 the State's references or order to reasonable the briefs on Fourth these I do not join the majority's rewriting of the opinion. The majority merely continues on an erroneous path, compounding 3 See Maurin v. Hall, 2004 WI 129, ¶¶4-8, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting on reconsideration); Beecher v. LIRC, 2004 WI 131, ¶¶3-8, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting on reconsideration). 1 No. 02-3063-W.ssa the harm that results from an unwise practice of constructing opinions without giving the parties the opportunity to brief the issues. This erroneous appellate practice results, as one might expect, in erroneous and confusing substantive law in the present case. ¶7 Fourth Amendment. that decision The State agrees with the court's subpoena a John Doe unreasonably overbroad. Amendment relying State v. tecum cannot be The State argues that relying on Fourth jurisprudence on duces for this Washington,4 proposition, is rather unnecessary and than raises significant questions about the petitioner's standing to assert someone else's overbreadth grounds. Fourth issue Amendment should be rights. decided on I agree. The non-constitutional If the court is to rely on the Fourth Amendment, the petitioner's standing becomes an open, unanswered question. ¶8 Wis. Stat. § 968.135. The State persuasively argues on the basis of the plain language of Wis. Stat. § 968.135 and the legislative history that the probable cause standard in § 968.135 does not apply to a John Doe subpoena duces tecum. Equally important, applying a probable cause standard to a John Doe subpoena requirement just doesn't frustrates the make core sense. purpose A of probable a John cause Doe proceeding, namely to determine whether probable cause exists to believe a crime has been committed. 4 State (1978). v. Washington, 83 2 Wis. 2d 808, 266 N.W.2d 597 No. ¶9 02-3063-W.ssa The rewrite stubbornly continues to rely on Wis. Stat. § 968.135 and now defines "probable cause" as used in § 968.135 without analyzing the State's argument and without the benefit of briefs. As I have previously written, "probable cause" has many meanings, depending on proceeding.5 the particular The rewrite, however, gives the words "probable cause" a peculiar, unexpected meaning, significantly different from its meaning in other proceedings. under the arises same for another Moreover, the result of the rewrite is that statute, purposes definition proceedings. of of one John definition Doe "probable of "probable proceedings cause" and arises cause" apparently for other Such a statutory interpretation is contrary to commonly understood rules of statutory interpretation.6 ¶10 As a result of its stubborn and erroneous reliance on Wis. Stat. § 968.135, the rewrite insists on a probable cause standard, but winds up defining the probable cause standard as relevance. to It would have been simpler, as the State requested, delete the adhere to the reference relevancy to probable test for cause and subpoenas clearly adopted in State v. Washington. § 968.135 duces tecum and as The Washington court stated quite simply: "The John Doe judge, and the court ordering production of the documents, have to determine whether the 5 See County of Jefferson v. Renz, 231 Wis. 2d 293, 317-27, 603 N.W.2d 541 (1999) (Abrahamson, C.J., concurring). 6 See, e.g., State v. Charles, 180 Wis. 2d 155, 159-60, 509 N.W.2d 85 (Ct. App. 1993) ("[T]he rule of statutory construction[ ] [is] that words or phrases appearing in the same statute shall be given the same meaning." (citation omitted)). 3 No. 02-3063-W.ssa documents sought are relevant to the topic of inquiry. The test is whether the information sought is in some manner connected with the suspected criminal activity under investigation."7 Approaching the issue relying on the precedent of Washington allows the court to avoid a contortionist position of bending § 968.135 and itself out of all recognizable shape. ¶11 For the reasons set forth, I do not join the rewrite. ¶12 I am authorized to state BRADLEY joins this opinion. 7 Washington, 83 Wis. 2d at 843. 4 that Justice ANN WALSH No. 1 02-3063-W.ssa
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