Schmitz v. Hon. Gregory A. Peterson
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These five John Doe proceedings, referred to as the “John Doe investigation,” were overseen by a single John Doe judge and organized by a single special prosecutor. The purpose of the John Doe investigation was to root out allegedly illegal campaign coordination between certain issue advocacy groups and a candidate for elective office. The special prosecutor obtained wide-ranging subpoenas and search warrants for twenty-nine organizations and individuals seeking millions of documents. The John Doe judge granted the the motions of various targets to quash the subpoenas and search warrants and ordered the return of all seized property. The Supreme Court invalidated the special prosecutor’s theory of the case and ended the unconstitutional John Doe investigation, holding that the special prosecutor employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.
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2015 WI 85 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. ORIGINAL ACTION -----------------------------------------------------PETITION FOR SUPERVISORY WRIT BEFORE THE SUPREME COURT, APPEAL AND BYPASS TO THE SUPREME COURT FROM CIRCUIT COURT ORDER ------------------------------------------------------PETITION FOR REVIEW BEFORE THE SUPREME COURT OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: July 16, 2015 Circuit Milwaukee, Iowa, Dodge, Dane and Columbia JUDGE: Gregory A. Peterson (Reserve) JUSTICES: CONCURRED: PROSSER, J., ROGGENSACK, C.J. (joining Sections IV and V), ZIEGLER, J. (joining Section IV) and GABLEMAN, J. (joining Section IV) concur (Opinion filed). ZIEGLER, J. concurs (Opinion filed). CONCUR/DISSENT: ABRAHAMSON, J. concurs and dissents (Opinion filed). CROOKS, J. concurs and dissents (Opinion filed). DISSENTED: NOT PARTICIPATING: BRADLEY, J., did not participate. ATTORNEYS: 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; S.C., Attorney Milwaukee; Dickinson Godfrey Matthew Attorney Crueger & LLC, Kahn, S.C., W. O’Neill, James Milwaukee; Madison; O’Neill Shannon, Barton, B. Fox Hansen Reynolds Attorney and Eric Attorney J. Wilson, 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 2 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 Attorney on the Paul M. brief were Ferguson, Attorney Cross James Plains; R. Troupis Attorney and 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 3 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. 4 2015 WI 85 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W (L.C. No. 2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. Two Unnamed Petitioners, Petitioner, FILED 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 JUL 16, 2015 Diane M. Fremgen Clerk of Supreme Court 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. ORIGINAL ACTION for declaratory judgment. Declaration of rights; relief granted; John Doe investigation ordered closed. 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 denied and order affirmed. PETITION for supervisory writ and review of a decision of the Court of Appeals. Petition for supervisory writ denied and decision affirmed. ¶1 MICHAEL J. GABLEMAN, J. These cases arise from a John Doe proceeding originally initiated in Milwaukee County, and subsequently expanded to four 2 additional counties, Iowa No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W County, Dodge County, Dane County, and Columbia County. not consolidated, single John proceedings judge Doe these and organized prosecutor (Francis Schmitz). refer to all investigation." five have been by a Though overseen single by a special For the sake of clarity, we will proceedings as a single "John Doe The investigation has been ongoing for several years and has been the subject of much litigation. 1 ¶2 the According to the special prosecutor, the purpose of John Doe investigation is to root out allegedly illegal campaign coordination between certain issue advocacy groups and a candidate for elective office. the special subpoenas prosecutor and search To further the investigation, sought, and received, warrants for 29 wide-ranging 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. 1 Reserve Judge Peterson We have granted the amicus briefs on the merits filed by: Wisconsin Right to Life; Citizens for Responsible Government Advocates, Inc.; The Wisconsin Government Accountability Board; The Honorable Bradley A. Smith, Center for Competitive Politics, and Wisconsin Family Action; Campaign Legal Center, Democracy 21, Common Cause in Wisconsin, and League of Women Voters of Wisconsin; Former Federal Election Commission Members Lee Ann Elliott, David Mason, Hans von Spakovsky, and Darryl Wold; and Wyoming Liberty Group. 3 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 special Reserve The second case we review is a petition brought by the prosecutor Judge for a Peterson's supervisory decision writ and and an order appeal quashing of the subpoenas and search warrants, State ex rel. Schmitz v. Peterson ("Schmitz v. Peterson"). Reserve Judge search warrants investigation Peterson The special prosecutor argues that improperly because establish a the quashed records reasonable the in belief subpoenas the John that Movants violated Wisconsin's campaign finance law. the and Doe Unnamed 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 2 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 4 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W appeals, State ex rel. Three Unnamed Petitioners v. Peterson ("Three Unnamed Petitioners"). writ was brought by Unnamed This petition for supervisory Movants Nos. 2, 6, and 7, and broadly challenges whether the John Doe investigation can be initiated judge, in and appointed. five separate whether counties special the under a single prosecutor was John Doe properly The court of appeals denied the supervisory writ and Unnamed Movants Nos. 2, 6, and 7 appealed that decision to this court. ¶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 Two Unnamed accordingly. ¶7 We can resolve Petitioners, by first definitions of the original examining "committee," action, whether "contributions," the statutory "disbursements," and "political purposes" in Wis. Stat. §§ 11.01(4), (6), (7), 3 In our December 16, 2014, grant order we consolidated the cases for the purpose of briefing and oral argument. We subsequently consolidated these three cases into one opinion because each case arises out of the same facts. 5 No. and 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W (16) are limited to advocacy 4 express or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. advocacy Second, if the definitions extend to issue 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 coordination was with violated by independent a campaign advocacy committee's organizations that engaged in express advocacy. 6 ¶9 in Three Finally, we can resolve the supervisory writ petition 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 multi- 4 Express advocacy is a communication that expressly advocates for the election or defeat of a clearly identified candidate. 5 This is issue seven from our December 16, 2014, grant order. 6 This is issue ten from our December 16, 2014, grant order. 6 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W county John Doe proceeding; (3) Whether a John Doe 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 investigation; the or the special prosecutor competency of the to John conduct Doe judge the to conduct these proceedings? 7 I. HOLDINGS A. 7 These are issues one through five from our December 16, 2014, grant order. 7 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶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 because 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 (1976), and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449 (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 8 See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶23 n.9, 358 Wis. 2d 1, 851 N.W.2d 337, reconsideration denied, 2015 WI 1, 360 Wis. 2d 178, 857 N.W.2d 620 (concluding that the freedom of speech rights protected under the Wisconsin and United States Constitutions are coextensive.) See also Kenosha Co. v. C&S Management, Inc., 223 Wis. 2d 373, 389, 588 N.W.2d 236 (1999). 9 The functional equivalent of express advocacy occurs when the "'ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.'" Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 820 (7th Cir. 2014) (Barland II) (citing Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 469-70 (2007) (WRTL II)). 8 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. ¶11 To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason investigation is closed. order entered by or law. Consequently, the Consistent with our decision and the 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 prosecutor In Schmitz has v. failed to Peterson, prove we that hold that Reserve the Judge special 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. 9 § 968.26, to determine the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W extent of the supervisory investigation. writ does not Because include the review purpose of a 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 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 John formation of the 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. 10 See infra Section V. 10 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 11 ¶14 12 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 the Milwaukee County Executive's Office. filed This investigation resulted in criminal charges being 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 11 In setting forth the facts, we respect the terms of the secrecy order issued by Reserve Judge Kluka and thus our majority opinion will set forth only the facts necessary for our resolution of this case. See State ex rel. Niedziejko v. Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964). However, we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein. If a fact is necessary to include in order to render explicable a justice's analysis of an issue presented, it is not precluded by the secrecy order. We do not discuss the identity of the Unnamed Movants or the specific allegations against them. We do, however, discuss the actions of the prosecutors and the judges involved. 12 We recognize that in the ordinary case our procedural background would not be given with such exacting precision. Conversely, we recognize that in the ordinary case without a secrecy order, our factual background would be more precise, in that we would, among other things, identify the parties. Be that as it may, in the interest of as much transparency as possible we set forth as many of the facts as we can. 13 Records from John Doe I have been released to the public by the original John Doe judge and are no longer subject to any secrecy order. 11 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 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 committees and other related, independent groups. campaign 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. ¶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 thenChief Justice assigned Shirley Reserve Judge Abrahamson's Kluka to proceeding in Milwaukee County. name preside directly over the above) 14 John Doe That same day, Reserve Judge Kluka authorized the commencement of the John Doe proceeding and also granted the requested secrecy order. 14 The actual text of the assignment orders read: "Shirley Abrahamson Chief Justice By: Electronically signed by [sic] A. John Voelker, Director of State Courts." 12 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶18 On September 6, 2012, Investigator Stelter filed an affidavit in subpoenas. support The of a request request covered for a search wide warrants swath of and 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 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, ("DOJ") wished to become involved. General Van Hollen sent District 13 the Department of Justice On May 31, 2013, Attorney Attorney Chisholm a letter No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W declining General DOJ Van involvement Hollen in cited, the investigation. among other Attorney 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. ¶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 "Application on and August Order 7, for 2013, Specific using a form Judicial titled Assignment," Director Voelker (with then-Chief Justice Shirley Abrahamson's 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 14 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W (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. form titled "Application and On August 21, 2013, using a 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 there may be a perception of bias given their partisan affiliations. The letter recommended Francis Schmitz for the position. 15 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶27 On August 23, 2013, Reserve Judge Kluka entered separate, but identical, orders in all five John Doe proceedings appointing Francis Schmitz as special jurisdiction across the five counties. prosecutor with 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 Cummings, 199 Wis. 2d 721, 736, 546 N.W.2d 406 (1996). v. 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. documents evidencing These subpoenas compelled production of the conduct of coordination among the subpoenaed parties and a candidate committee, 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 floodlights were used to illuminate the targets' homes. 16 bright No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶29 The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of subpoenaed computer documents, and/or both seized. equipment, in digital Deputies phones, and and paper seized other copy, business devices, were papers, while their targets were restrained under police supervision and denied the ability to their attorneys. virtually obtained contact every document The special possessed by prosecutor 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 statements, information, personal financial such account as retirement information, income 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 "conflict." proceeding, citing only an unspecified 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. 17 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W On November 1, 2013, Chief Judge Potter of the Sixth Judicial District assigned Reserve Judge Peterson 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 District Daley of the Fifth Judicial 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 Voelker Doe (with proceeding. then-Chief On November Justice Shirley 11, 2013, Director Abrahamson's name directly above) assigned Reserve Judge Peterson to preside over the John Doe proceedings in Iowa County and Dane County. November 14, 2013, Director Volker (with then-Chief On 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 18 prosecutor. The Unnamed No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W Movants asked the court of appeals to declare the John the court Doe investigation void ab initio. ¶33 In an order dated November 22, 2013, 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 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. the statute Id. Moreover, the court of appeals noted that authorizing the appointment of reserve judges explicitly states that reserve judges "shall perform the same duties as other judges." The court of appeals Id. (citing Wis. Stat. § 753.075). 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 special John Doe prosecutor's proceeding, appointment and under the Wis. legality Stat. of the § 978.045. Id. ¶34 While that case was pending at the court of appeals, Unnamed Movant circuit court No. on 6 also December filed 4, 19 a 2013, petition for the in Dodge return County of the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 property on January 10, 2014. and the petitions to return 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 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 (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 20 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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: 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. ¶36 The special prosecutor requested a stay of the order, which was granted on January 27, 2014. the stay, Reserve Judge Peterson also In his order granting 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." a condition of the stay, Reserve Judge Peterson ordered As 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. Petitioners, Nos. 2013AP2504-W-2508-W, 21 Three Unnamed unpublished slip op. & No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. 4-7. As for the legality of the special Id. at 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. ¶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. 15 "The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction." Wis. Const. art. VII, § 3(2). "The supreme court limits its exercise of original jurisdiction to exceptional cases in which a judgment by the court significantly affects the community at large." Wis. Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶4, 243 Wis. 2d 512, 627 N.W.2d 807. We exercised original jurisdiction because this case meets that test. 22 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶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 bypass 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. concluded Reserve that if Judge Peterson appellate denied courts that agreed motion but with his interpretation of Ch. 11, the "consequence will no doubt be the end of the John Doe investigation." 23 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W III. TWO UNNAMED PETITIONERS ¶41 action We turn first to Two Unnamed Petitioners, the original 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 conclude, [an] consistent election." with the Wis. First Stat. § 11.01(16). Amendment of the We 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. City of Wauwatosa, N.W.2d 906. implicates In the 2011 this Covenant Healthcare Sys., Inc. v. WI 80, case, our constitutionality 24 ¶21, of 336 Wis. 2d 522, statutory specific 800 interpretation provisions in No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 statute beyond implicates the a reasonable exercise doubt." of First Id. When Amendment the 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 democratic process. citizens in our State to engage in the 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." amend. I. 16 guarantees U.S. Const. Article I, Section 3 of the Wisconsin Constitution 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." 16 The First Amendment is applicable to the States through the Fourteenth Amendment. 25 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶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 (1966)). Indeed, "[t]he right of citizens to inquire, to hear, to speak, and to use information enlightened it." to reach self-government consensus and a is a necessary precondition means to to protect Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (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 wideopen." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (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 Constitution." speech was the system of government Buckley, 424 U.S. at 14. open, comprehensive, and established by our "At the founding, vital to society's definition of itself; there were no limits on the sources of 26 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W speech and Therefore, knowledge." "[t]he Citizens First United, Amendment 558 U.S. the affords at 353. broadest protection to [] political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about political and social changes desired by the people.'" of Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (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 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). our democracy than the political leaders." fundamental protection. right There exists "no right more basic in right to participate Id. at 1440-41. and Indeed, is afforded freedom of in electing our Political speech is thus a the speech, highest level especially of 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 marketing campaign research, finance or attorney, seek conduct declaratory demographic rulings discussing the most salient political issues of our day. before Prolix laws chill speech for the same reason that vague laws chill 27 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W speech: People 'of common intelligence must necessarily guess at [the law's] Citizens meaning United, 558 and differ as U.S. at (quoting 324 to its application.'" Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). ¶48 However, there are certain, limited circumstances in which the government may regulate and impose burdens upon the exercise of free speech. In the campaign finance context, these include reporting disclosure contribution and limits to requirements, candidates. 17 The as well as 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, political speech. does not justify the regulation of all 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. that justifies the The compelling governmental interest 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 (2003)). 17 Indeed, "[s]pending large sums of money in See generally Barland II, 751 F.3d 804. 18 Quid pro quo is a Latin term meaning "what for whom" and is defined as "[a]n action or thing that is exchanged for another action or thing of more or less equal value." Black's Law Dictionary 1367 (9th ed. 2009). 28 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 McCutcheon, 134 S. Ct. at 1450. quid pro quo corruption." "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 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." U.S. 88, 102 (1940). Thornhill v. Alabama, 310 "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." added). protected Barland II, 751 F.3d at 810 (emphasis Thus, in order to avoid a chilling effect on otherwise speech, candidates, "when their the regulatory campaign scheme committees, 29 reaches and beyond political No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W parties. . . . [the] narrow government specificity." Id. at may 811 regulate . . . only (quotations with 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 the dangerous chilling effect an unclear or imprecise law has on protected speech. 835. Id. at 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 muted." by the possibility that protected speech will be 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 30 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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, ¶11, 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." ¶13. Thus, persons from "[o]verbroad exercising statutes their protected speech or expression." (citation omitted). In other may rights undesirably by Id., dissuade 'chilling' their Janssen, 219 Wis. 2d at 372 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. ¶53 When faced with an overbroad statute, courts 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, 236 Wis. 2d 86, ¶15 (internal citations omitted). 31 have No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶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 (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 of 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." 656. "Where First Amendment rights are involved, Id. at an even 'greater degree of specificity' is required." Buckley, 424 U.S. at criminal 77 (citations omitted). Thus, when a statute implicates First Amendment rights, the statutory language must have the "utmost Wis. 2d 86, ¶30. clarity and exactitude." Stevenson, 236 Thus, the vagueness doctrine concerns the imping[ement] upon three first amendment values: (1) it does not provide individuals with fair warning of 19 "The problems of vagueness and overbreadth in statutes, although raising separate problems, often arise together." State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 656-57, 292 N.W.2d 807 (1980). "Where statutes have an overbroad sweep, just as where they are vague, 'the hazard of loss or substantial impairment of those precious [First Amendment] rights may be critical,' since those covered by the statute are bound to limit their behavior to that which is unquestionably safe." Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 609 (1967) (internal citation omitted). 32 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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)). need In other words, "[b]ecause First Amendment freedoms breathing space to survive, government [this] area only with narrow specificity." may regulate in 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 Movants The special engaged in prosecutor illegally alleges coordinated that the issue Unnamed advocacy. However, the basis for his theory has evolved over the course of the various appears legal unable to challenges decide to just his how the investigation, Unnamed and Movants he have broken the law. 20 ¶56 illegal Today, the special prosecutor alleges two theories of 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) 20 that the coordinated issue The original complaint initiating John Doe II alleged only coordinated fundraising between the Unnamed Movants. Over time, the theory of coordination evolved to include coordinated issue advocacy. 33 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 United, 558 U.S. at 324. prosecutor's theories in political issues. See Citizens We find no support for the special Wis. Stat. Ch. 11. Chapter 11's definition of "political purposes," which underlies Wisconsin's campaign finance unconstitutionally law, is chills both overbroad speech because and vague people and "'of thus 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 First 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. 21 Adopting a limiting construction is the only feasible option because the statutory definition of "political purposes" is not severable and because simply declaring the definition unconstitutional without adopting a limiting construction would effectively eliminate all of Wis. Stat. Ch. 11. 34 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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." F.3d at 808. almost any Barland II, 751 Indeed, "[t]o a lay reader [Chapter 11] require[s] 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 'committee' does chapter." As are not one exclusively include can a see political, political from the except 'group' statutory that under a this definition, committee status under Wisconsin campaign finance law depends on the definitions of "contributions" and "disbursements." ¶60 relevant "Contribution" has a very lengthy definition, but the portion is contained in Wis. Stat. § 11.01(6)(a)1, which states that "contribution" means [a] gift, subscription, loan, advance, or deposit of money or anything of value, except a loan of money by 35 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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). the emphasized contribution or language that whether disbursement depends or on It is apparent from not the something is definition a of "political purposes." ¶61 "Political purposes" is defined, in relevant part, as an act done 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, 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, all administrative and overhead expenses for the 36 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 the "disbursements" and "contributions," and 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," contribution, and it is not a therefore it then disbursement is not subject to or a 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 applies here."). court concluded the phrase "include 37 but are not Further, the limited to" No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 relies prosecutor conclusion individual that it is upon, left prosecutors to to leads us government determine how to the unsettling bureaucrats much and/or 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 questions More "political mischief. fundamentally, arise at purposes" all is "holds however, proof the the that fact the potential that these definition for of regulatory 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 38 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 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. ¶66 "political To be clear, purposes" the in reason that § 11.01(16) is the definition of 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. of overbroad rejected. language that the This is precisely the kind Supreme Court has repeatedly "Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election." II, 551 U.S. at 474 (emphasis added). WRTL 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 39 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W advocacy and issue advocacy dissolves in practice indictment of the statute, not a justification of it." ¶67 is an Id. We therefore hold that the definition of "political purposes" in Wis. Stat. overbroad and vague. § 11.01(16) is unconstitutionally In order to cure this overbreadth and vagueness, we adopt a construction of § 11.01(16) that limits the definition of "political purposes" to include only express advocacy and its functional equivalent, defined in Buckley and WRTL II. as those terms are 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 Attorney applied that General beyond "[t]he have [Wisconsin acknowledged candidates, their Supreme that Court] when and Chapter committees, and [] 11 is 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 understanding for many decades."). 22 reflected this Given that Chapter 11's requirements depend on whether an act is done for "political 22 Although Barland II did not involve an allegation of coordination, that distinction is meaningless in determining whether the definition of "political purposes" is vague or overbroad. It may well be that the distinction between issue and express advocacy is little more than "a line in the sand drawn on a windy day." WRTL II, 551 U.S. at 499 (Scalia, J., concurring) (citation omitted). However, "'[p]rotected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.'" Id. at 475 (majority opinion) (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002)). 40 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W purposes," "issue the effect of this advocacy . . . beyond regulatory scheme." limiting the construction reach of places [Wisconsin's] 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 whether the alleged conduct is regulated under Wisconsin law. 23 The special 23 We note that in Wis. Coal. for Voter Participation, Inc. v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App. 1999) (WCVP), the court of appeals concluded that conduct substantially identical to the subject of this investigation, coordinated issue advocacy, is regulated under Wisconsin law. The key language from that case upon which the special prosecutor's theories rest, is that "the term 'political purposes' is not restricted by the cases, the statutes or the code to acts of express advocacy. It encompasses many acts undertaken to influence a candidate's election . . . ." WCVP, 231 Wis. 2d at 680. The court of appeals' statement regarding "political purposes" is incorrect. It was incorrect when WCVP was decided in 1999, and it is incorrect today. Just four months prior to the WCVP decision, this court stated that Buckley stands for the proposition that it is unconstitutional to place reporting or disclosure requirements on communications which do not 'expressly advocate the election or defeat of a clearly identified candidate.' Any standard of express advocacy must be consistent with this principle in order to avoid invalidation on grounds of vagueness and/or overbreadth. (continued) 41 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W prosecutor has disregarded 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). Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 669, 597 N.W.2d 721 (1999) (WMC) (citations omitted). This should have been enough to "restrict" the definition of "political purposes" in Chapter 11. If "it is unconstitutional to place reporting or disclosure requirements on communications which do not 'expressly advocate the election or defeat of a clearly identified candidate,'" then "political purposes" cannot extend as broadly as WCVP and the special prosecutor claim. At the very least, WCVP ignores WMC and is inconsistent with its explanation of Buckley. In any event, even assuming that it was good law to begin with, WCVP is no longer a correct interpretation of "political purposes" in Chapter 11. As discussed above, recent case law has clearly restricted the scope of permissible regulation in campaign finance law to express advocacy and its functional equivalent. See WRTL II, 551 U.S. 449; Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010); Barland II, 751 F.3d 804. Therefore, to the extent that WCVP implies that the definition of "political purposes" in Chapter 11 extends beyond express advocacy and its functional equivalent, WCVP is overruled. 42 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶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 continues to its be functional protected as equivalent, a political fundamental First speech Amendment right. ¶70 The coordination special is that prosecutor's ostensibly first theory independent, of advocacy illegal groups operated "hand in glove" with the candidate's committee, which made the independent § 11.10(4). groups subcommittees under Wis. Stat. The relevant part of this statute states that [a]ny committee which is organized or acts with the cooperation of or upon consultation with 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 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 43 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 Wis. 2d at doctrine the 657 First Amendment. (citations omitted) '. . . incorporates warning. . . . (i)t See the requires ("The notions legislatures Princess void of Cinema, for fair to vagueness notice set 96 or 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." Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1. Applying the Wis. 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, 44 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 "in-kind contributions" This committee. as "in-kind contribution" by the theory candidate's 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 regulations, without equivalent. Even Chapter express assuming 11, or advocacy that the the or special corresponding its functional 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 a reportable "in-kind contribution" because under Ch. 11 issue advocacy cannot be a "disbursement." 45 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶75 In sum, we hold that, Amendment to the United Section 3 of the Wisconsin "political States purposes" consistent Constitution Constitution, in with Wis. and First Article I, definition of the Stat. the § 11.01(16) is unconstitutionally overbroad and vague because its language "is so sweeping that constitutionally its sanctions protected permitted to regulate." conduct may be which the applied state is Janssen, 219 Wis. 2d at 374. to not 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 Accordingly, scheme." we grant be the clear, Barland relief II, 751 requested F.3d by at the 815. Unnamed Movants. ¶76 To this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason investigation is closed. order entered by Reserve or law. Consequently, the Consistent with our decision and the Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all 46 activities related to the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. 47 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W IV. SCHMITZ V. PETERSON ¶77 review, We turn Schmitz now v. to the second case Peterson. This case presented is for before our 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 in evidence reasonable gathered belief that the John Wisconsin's Doe proceedings campaign provide finance law a 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. quashing the subpoenas and search warrants, Reserve In Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, investigation. to determine the extent of the 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 affirmed. A. Standard of Review 48 Peterson's order is No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶79 The decisions of John Doe judges "are not subject to direct appeal" to the court of appeals "because 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." (quotations omitted). In order Kalal, 271 Wis. 2d 633, ¶17 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 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 49 by the supervisory writ No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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, [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 John Doe proceeding, of John Doe proceedings. ¶83 Wisconsin's codified Stat. § 968.26, serves two important purposes. in Wis. State ex rel. Reimann v. Circuit Court for Dane Cnty., 214 Wis. 2d 605, 621, 571 N.W.2d 385 (1997). proceeding is intended "First, and most obvious, a John Doe as an investigatory tool used to ascertain whether a crime has been committed and if so, by whom. 50 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W Second, the John Doe proceeding is designed to protect innocent citizens from frivolous (citations omitted). and groundless prosecutions." Id. 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." "First, the judge must In re Doe, 317 Wis. 2d 364, ¶14. determine whether a complainant has alleged 'objective, factual assertions sufficient to support a reasonable belief that (citation omitted). a crime Second, if has the been committed.'" complainant meets Id. 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.'" (2007-08)). Id., ¶15 (quoting Wis. Stat. § 968.26 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 51 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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." ¶85 In order to commence a John Doe Id. 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 jurisdiction." crime State N.W.2d 210 (1977). has v. been Doe, 78 committed within Wis. 2d 161, the 165, 254 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." 624. Id. at "In determining whether the petition is worthy of further treatment, a circuit court judge [presiding over a John proceeding] must act as a neutral and detached magistrate." Doe 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. "chief investigator" Washington, 83 or Wis. 2d at The John Doe judge does not act as as a 823. mere arm Rather, of the the John prosecutor. Doe judge serves as a check on the prosecutor and on the complainant to 52 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ensure that the subject(s) of the investigation receive(s) due process of law. ¶87 See Doe, 78 Wis. 2d at 164-65. In this way, Wisconsin's John Doe proceeding is very different than a grand jury, and when conducted appropriately, provides much greater investigation. protections Id. at 165. to the target of an 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 petition to commence the John Doe proceeding. Wis. 2d at 841-42. in the Washington, 83 Further, [a]nyone familiar with the functions of the grand jury or who has dealt with it knows the hazards of a runaway 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 both as an inquest into the discovery of crime and as prosecutions." ¶88 a screen to prevent 'reckless and ill-advised' Reimann, 214 Wis. 2d at 621 (citation omitted). 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 53 No. the 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W investigation § 968.26(3). 24 is conducted in secret. Wis. Stat. We have long recognized the need for secrecy in John Doe 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 proceeding can be as an investigative tool. available 24 to a John Doe proceeding a John The secrecy orders serve to protect The full text of this subsection is: The extent to which the judge may proceed in an examination under sub. (1) or (2) is within the judge's discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge. Subject to s. 971.23, if the proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used. A court, on the motion of a district attorney, may compel a person to testify or produce evidence under s. 972.08 (1). The person is immune from prosecution as provided in s. 972.08 (1), subject to the restrictions under s. 972.085. Wis. Stat. § 968.26(3). 54 Doe the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W integrity of the investigation. 25 Such orders help encourage witnesses who may be reluctant or fearful to testify by keeping their testimony secret. also protects The secrecy of a John Doe investigation innocent targets of the investigation by preventing the disclosure of "testimony which may be mistaken or untrue." ¶89 Id. judge Consistent with this broad authority, "[t]he John Doe should determining Wis. 2d at act that 823. with no a view crime toward has Accordingly, issuing the scope of complaint or Washington, occurred." a 83 any John Doe investigation "is essentially limited to the subject matter of the complaint upon which the John Doe is commenced." 822; see also In re Doe, 317 Wis. 2d 364, ¶23. Id. at "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). limitation This final is administration of a John Doe proceeding. proceedings could easily devolve into crucial to the fair Without it, John Doe judicially sanctioned general warrants. 25 We do not disregard the secrecy order issued in the John Doe proceeding. See Niedziejko, 22 Wis. 2d at 398. However, we interpret and modify the secrecy order to the extent necessary for the public to understand our decision herein. Consequently, if a fact is necessary to include in order to render explicable a justice's analysis of an issue presented, it is not precluded by the secrecy order. 55 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶90 The purpose Constitution 26 States of and Wisconsin Constitution 27 warrants, which thing." the "was authorized Amendment Article to I, abolish searches in to the Section 11 searches any place by or United of the general for any State ex rel. City of Milwaukee v. Newman, 96 Wis. 258, 267, 71 N.W. 438 (1897). Writs of Fourth of Assistance, Such general warrants, also known as "were used in the American colonies to search wherever government officials chose with nearly absolute and unlimited discretion." Wis. 2d 530, specificity 636 and State v. Tye, 2001 WI 124, ¶8, 248 N.W.2d 473. allowed "These government early officers warrants in lacked the late eighteenth century to enter homes, shops, and other places, and 26 The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. 27 Article I, Section 11 provides that [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Wis. Const. art. I, § 11. 56 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. Amendment warrants To combat requires such unchecked reasonable "particularly searches power, describ[e] the and place the Fourth mandates to be that searched." U.S. Const. amend. IV. ¶91 Reasonableness and particularity requirements of search warrants, however. courts, and by extension John Doe are just Subpoenas issued by judges, must these requirements of the Fourth Amendment. Proceeding, 272 Wis. 2d 208, ¶38. not also satisfy In re John Doe A John Doe proceeding, with its broad investigatory powers, must never be allowed to become a fishing expedition. ¶92 It is difficult, if not impossible, to overstate the importance of the role of the John Doe judge. conduct the magistrate, investigation fairly, the harm risk of to as a If he does not neutral innocent and targets detached 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." Wis. 2d at 822-23. skill may serve to Washington, 83 Such powers, if not wielded with care and transform a 57 John Doe proceeding into an No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W implement of harassment unethical prosecutor. this danger and and persecution by a vengeful or Thus, John Doe judges must be mindful of 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 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: 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 58 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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." ¶22. This duty applies with In re Doe, 317 Wis. 2d 364, equal force in all John Doe proceedings, 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 59 duty when he quashed the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W subpoenas and search seized property. ¶96 "A warrants and ordered the return of all He did not. 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). the Although a supervisory writ is the proper vehicle for 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 process." ¶97 cannot be remedied through the appellate review Id. (emphasis added). Here, the special prosecutor argues that Reserve Judge Peterson failed to comply with his duty to correctly apply the law and erroneously concluded that Wisconsin campaign finance law does not regulate the Unnamed Movants' alleged conduct. special prosecutor essentially argues that Reserve The 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. accept this proposition, as it 60 would extend We cannot supervisory No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W jurisdiction to a virtually unlimited range of decisions involving the finding of facts and application of law."). was the case prosecutor's transform in Kalal, if the writ into appellate review process." ¶98 were of a plain an understanding we all-purpose Id., ¶24. to adopt legal the duty, special we alternative As "would to the This we will not do. 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 Washington, 83 Wis. 2d at 823. no crime has occurred." In his decision to quash the subpoenas and search warrants, Reserve Judge Peterson concluded that the subpoenas reasonable belief violations of the and that search warrants do the Unnamed Movants campaign finance laws." not provide "committed Reserve a any Judge Peterson further concluded that "[t]he State is not claiming 61 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W that any of the independent organizations expressly advocated. 28 Therefore the subpoenas 29 fail 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 28 The special prosecutor now claims that coordinated express advocacy did in fact occur between Unnamed Movants 1 and 6 and two express advocacy groups, neither of which are parties to the current lawsuits. The special prosecutor and the Unnamed Movants presented Reserve Judge Peterson with the evidence of coordination regarding the first express advocacy group. Reserve Judge Peterson considered this evidence when deciding whether or not to quash the subpoenas or order the return of seized property. Reserve Judge Peterson definitively concluded that "[t]here is no evidence of express advocacy." We will not disturb that decision as, under the John Doe statute, it was Reserve Judge Peterson's to make. More fundamentally, however, as a member of the first express advocacy group, the candidate at issue in this case and his agents had an absolute constitutional right to interact with a political organization of which he was a member, and improper coordination cannot be presumed by such contacts. Colo. Republican Fed. Campaign Comm. v. Fed. Eletion. Comm'n, 518 U.S. 604, 619 (1996). Further, the special prosecutor chose not to present evidence pertaining to the second express advocacy group to Reserve Judge Peterson. Arguments not presented to the court in the first instance are deemed waived. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997). 29 Although he refers only to the subpoenas issued in the John Doe investigation, Reserve Judge Peterson later clarified that "for the reasons stated above regarding the limitations on the scope of the campaign finance laws, I conclude that the . . . warrants [issued for Unnamed Movants Nos. 6 and 7] lack probable cause." 62 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W the law. That . . . was the underlying problem with the subpoenas." 30 ¶99 his Reserve Judge Peterson's decision is consistent with discretion investigation. the trial court to determine the extent of the John Doe In addition, "[i]t is within the discretion of to quash a subpoena." State Wis. 2d 447, 456, 377 N.W.2d 176 (Ct. App. Wis. 2d 473, 407 N.W.2d 854 (1987). v. Horn, 126 1985), aff'd, 139 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 30 We note that as a result of our interpretation of Chapter 11 in Two Unnamed Petitioners, Reserve Judge Peterson's interpretation is correct as a matter of law. 31 While we base our conclusion solely on Reserve Judge Peterson's exercise of discretion under the John Doe statute, we note that there are serious flaws with the subpoenas and search warrants, which were originally issued by Reserve Judge Kluka. As we explained above, a John Doe judge does not act as "chief investigator" or as a mere arm of the prosecutor. State v. Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978). Rather, a 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 State v. Doe, 78 Wis. 2d 161, 164-65, 254 N.W.2d 210 (1977). This is an important function that cannot be ignored. Judges cannot simply assume that the prosecutor is always well-intentioned. Due to the exceptionally broad nature of the subpoenas and search warrants, it is doubtful that they should have ever been issued in the first instance. (continued) 63 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 The special prosecutor alleges that the Unnamed Movants engaged in "illegal" coordination of issue advocacy sometime between 2011 and 2012. The subpoenas and search warrants, however, sought records-many of which were personal and had nothing to do with political activity-and information ranging from 2009 through 2013. If the illegal conduct took place during a discrete timeframe in 2011 and 2012, as the special prosecutor alleges, what possible relevance could documents from a full two years prior have to the crime alleged? By authorizing such sweeping subpoenas and search warrants, Reserve Judge Kluka failed in her duty to limit the scope of the investigation to the subject matter of the complaint. See In re Doe, 2009 WI 46, ¶23, 317 Wis. 2d 364, 766 N.W.2d 542. These subpoenas and search warrants also come dangerously close to being general warrants of the kind which, in part, provoked our forefathers to separate from the rule of Empire. 32 This case presents issues one through December 16, 2014 grant order. See supra ¶9. 64 five in our No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W judge; (2) convening a multi-county 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 of a supervisory writ, which requires a "clear and unequivocal" duty to act on 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 Id., ¶24. violation alternative to the appellate review process." Because the Unnamed Movants have not identified a 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 interpretation which this court questions reviews de of novo deference to the circuit court or court of appeals." 199 Wis. 2d at 733. Thus, "[w]hether a John statutory Doe without Cummings, 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) 65 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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). ¶105 whether Although a court exercises its discretion in deciding or discretion not to often issue a writ, "[t]he involves . . . resolving exercise questions of of that 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. 'must be clear responsibility and to unequivocal act must be and, under "A plain duty the Wis. 2d 633, ¶22 (citation omitted). the Kalal, imperative.'" facts, 271 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 66 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. Movants failed to Judge violated Peterson appointment as a prove that a reserve We Reserve plain judge hold Judge legal or that the Unnamed Kluka or Reserve duty in by convening accepting a John an Doe proceeding over multiple counties. 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 reserve judge. judge by the between the appointment and assignment of a A former judge is appointed to be a reserve 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. 67 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶109 The Director of State Courts has the power to assign reserve judges, reserve judges. but he does not have the See SCR 70.10 33; SCR 70.23. 34 power to appoint The Chief Justice is the sole individual with the power to both appoint and assign reserve judges. See Wis. Const. art. VII, § 24(3) 35; Wis. Stat. § 753.075 36; SCR 70.23(1). 37 33 "The director of state courts shall have the responsibility and authority regarding the assignment of reserve judges and the interdistrict assignment of active judges at the circuit court level where necessary to the ordered and timely disposition of the business of the court." 34 "The director of state courts may make interdistrict judicial assignments at the circuit court level." SCR 70.23(1). "The director of state courts may also make a permanent assignment to a judicial district of a reserve judge who can be assigned by a chief judge in the same manner as an active circuit judge under this section." SCR 70.23(2). "[I]f the chief judge deems it necessary the chief judge shall call upon the director of state courts to assign a judge from outside the judicial administrative district or a reserve judge." SCR 70.23(4). 35 "A person who has served as a supreme court justice or judge of a court of record may, as provided by law, serve as a judge of any court of record except the supreme court on a temporary basis if assigned by the chief justice of the supreme court." 36 (1)Definitions. In this section: (a)'Permanent reserve judge' means a judge appointed by the chief justice to serve an assignment for a period of 6 months. Permanent reserve judges shall perform the same duties as other judges and may be reappointed for subsequent periods. (continued) 68 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶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. County District Attorney's Office filed Once the Milwaukee 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. 2012, the Director of State Thereafter, on September 5, 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 (b)'Temporary reserve judge' means a judge appointed by the chief justice to serve such specified duties on a day-by-day basis as the chief justice may direct. (2)Eligibility. The chief justice of the supreme court may appoint any of the following as a reserve judge: (a)Any person who has served a total of 6 or more years as a supreme court justice, a court of appeals judge or a circuit judge. (b)Any person who was eligible to serve as a reserve judge before May 1, 1992. 37 "The chief justice may assign active or reserve judges, other than municipal judges, to serve temporarily in any court or branch of a circuit court for such purposes and period of time as the chief justice determines to be necessary." 69 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W definitively establishes that the then-Chief Justice had 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 meet their burden with respect to Reserve Judge Peterson. to On October 29, 2013, Chief Judge Kremers assigned Reserve Judge Peterson to serve as the John Doe judge in Milwaukee County, after Reserve "REASSIGNMENT Judge AND Kluka withdrew, EXCHANGE." The in an document order titled: also states: "Reassigned to Reserve Judge Gregory A. Peterson according to 70 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 authority to Their Judge counties not preside proceeding. Reserve do "in over the contention Peterson one investigation." question to Reserve Judge Milwaukee is that accept it Peterson's County was assignment functionally-consolidated John Doe unlawful for to four more proceeding or Because the Unnamed Movants have failed to show that Reserve Judge Peterson was not lawfully appointed, they have failed plain to legal prove duty in that Reserve accepting Judge his Peterson appointment violated as a 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 simultaneously in five counties. as a John Doe judge The Unnamed Movants argue that "the question properly is not whether anything in the enabling statute 'prevents' or 'prohibits' what happened here. question is whether happened here." anything in the statutes The right permits what 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 71 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 special prosecutor. the initial investigation The investigation was expanded because 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 orders assigning Reserve Judge Kluka to preside over the five separate proceedings. While these five separate proceedings are 38 "If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies." 72 No. a 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W single Rather, investigation, the John Doe they have proceedings not at been issue consolidated. have merely been prohibits the running parallel to one another. ¶116 Nothing in the John Doe statute initiation of five parallel John Doe proceedings. Put another way, nothing in the John Doe statute explicitly told Reserve Judge Kluka that proceedings. she To could initiate not a preside John Doe over five proceeding, John a Doe 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 violation of investigation Wisconsin Unnamed a Movants plain was statutes legal argue duty. constituted and that in without they They have argue direct shown that "[t]he contravention authority. The a of 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 criminal Stat. Kalal, complaint § 968.02(3), a be circuit brought which court against allows a judge the circuit ordered Kalals judge that under to a Wis. order a criminal complaint be issued if a district attorney "refuses" to 73 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W issue a complaint. Kalal, 271 Wis. 2d 633, ¶¶12-13. The Kalals argued that "the circuit judge has a plain duty to correctly determine the presence of this threshold refusal authorizing the issuance of a criminal complaint." before 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 defendant . . . may seek after filed, it has remedies been thereafter." its factually dismissal and may Id., unsupported, in pursue ¶25. the circuit standard "But the court appellate 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." ¶119 We explained that, Id. "[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 would extend supervisory jurisdiction to a virtually unlimited range of decisions involving application of law." Id., ¶24. the finding of facts and "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] 74 fail to fulfill non- No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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." ¶120 The clear, Unnamed Movants non-discretionary, necessary for a have and not identified imperative supervisory writ." duty Id., of a Id. "plain, sort In ¶25. the this supervisory writ action, the Unnamed 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. parallel Further, they investigations must and prohibited by the statute. do more than proceedings argue were that five "implicitly" 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. 5.05 See Wis. Stat. §§ 165.50(1) (Attorney General), (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 75 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 supervisory writ to the legislature, petition. Should the not a court legislature in wish prohibit multi-county John Does, it is free to do so. however, cannot "transform the writ into an a to We, all-purpose alternative to the appellate review process" or announce new rules for future cases as part of that process. 2d 633, overreach ¶24. To do so incompatible would be with the hold that an Kalal, 271 Wis. instance nature and of judicial purpose of a supervisory writ. ¶122 Therefore, we 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 prosecutor's competency. would have on the court and special We conclude that the Unnamed Movants 76 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W have failed to prove that Reserve Judge Kluka violated a plain legal duty in appointing the special prosecutor. 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 Kluka relied, in part, on Carlson. 39 prosecutor Reserve Judge Carlson concerned a court's statutory authority to appoint a special prosecutor under Wis. Stat. § 978.045. 40 In Carlson, the court of appeals explained 39 To be clear, we do not rely on State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 563. There are certainly distinctions to be made between the facts of Carlson and the facts of the instant case. We discuss Carlson only as it relates to the larger question of whether Reserve Judge Kluka violated a plain legal duty at the time the appointment was made. 40 Wisconsin Stat. statute, provides: § 978.045, the "special prosecutors" (1g)A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection. Before a court appoints a special prosecutor on its own motion or at the request of a district attorney for an appointment that exceeds 6 hours per case, the court or district attorney shall request assistance from a district attorney, deputy district attorney or assistant district attorney from other prosecutorial units or an assistant attorney general. A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney's or the court's inability to obtain assistance from another prosecutorial unit or from an assistant attorney general. (continued) 77 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W (1r)Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists: (a)There is no district attorney for the county. (b)The district attorney is absent from the county. (c)The district attorney has acted as the attorney for a party accused in relation to the matter of which the accused stands charged and for which the accused is to be tried. (d)The district attorney is near of kin to the party to be tried on a criminal charge. (e)The district attorney is physically unable to attend to his or her duties or has a mental incapacity that impairs his or her ability to substantially perform his or her duties. (f)The district attorney is serving in the U.S. armed forces. (g)The district attorney stands charged with a crime and the governor has not acted under s. 17.11. (h)The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff. (i)A judge determines that a complaint received under s. 968.26 (2) (am) relates to the conduct of the (continued) 78 No. that 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W the plain 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. is on the court's own motion. of a district attorney. Id. Id. The first The second is at the request 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 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. ¶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 district attorney to whom the judge otherwise would refer the complaint. 79 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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. that one of § 978.045(1r) This is so because Carlson disregards the fact the nine must conditions exist for enumerated the under appointment Wis. of a Stat. special prosecutor, regardless of whether the appointment is made on the court's own motion or at the district attorney's request. The Carlson the governing court's statute failure is defect in its holding. interpretation of Wis. to an import this inexplicable-and language very from likely fatal- While we agree with the Unnamed Movants' Stat. § 978.045, we do not take the ultimate step of overruling Carlson because to do so would go 80 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W further than the supervisory writ allows. 41 Simply put, despite Carlson's reasonably questionable validity we cannot 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. Carlson gave the John appoint the special Doe judge prosecutor, "unfettered so the Again, authority" absence of to 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 issue in Cummings was whether a John Doe 41 The procedural posture of this case prevents us from overruling Carlson. If this issue were to arise in a nonsupervisory writ case we may very well overrule Carlson. However, the supervisory writ is not an "all-purpose alternative to the appellate review process." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110. 81 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 address 736-37. a John Thus, Doe while judge's Cummings inherent did not authority specifically 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 82 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W John Doe judge prosecutor, has which inherent authority necessarily occurs to before appoint a special charging. 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 imperative responsibility to act under the facts. with an 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 42 While we do not endorse Reserve Judge Kluka's interpretation of her inherent authority in this instance, we cannot say her conduct of appointing a special prosecutor was violative of a plain legal duty. 43 We need not address what effect an unlawful appointment would have had because no violation of a plain legal duty occurred. 83 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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 wrongdoing. In 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 indeed, dared for to every associate other with citizen of them. It this is great fortunate, 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 played unjust a prosecution. crucial opportunity to role Further, in re-endorse these presenting its brave this commitment individuals court to with upholding an 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 84 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W 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). that However, a readily available limiting construction exists 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 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 investigation is closed. order entered by Reserve or law. Consequently, the Consistent with our decision and the 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 85 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation. B. ¶136 In prosecutor Schmitz has v. failed Peterson, to prove we that hold that Reserve the Judge special 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 extent Doe of supervisory statute, the Wis. Stat. investigation. writ does not § 968.26, Because include to the review determine purpose of a of the 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. 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 John formation of the 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. 86 Put another way, if we were to No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W grant the supervisory writ in this case, we would risk "transform[ing] the writ into an all-purpose alternative to the appellate review Accordingly, we process," deny the which we supervisory cannot writ and do. Id. 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 writ denied and order affirmed in Schmitz v. Peterson. By the Court.—Petition for supervisory decision affirmed in Three Unnamed Petitioners. ¶138 ANN WALSH BRADLEY, J., did not participate. 87 No. ¶139 DAVID T. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp PROSSER, J. (concurring). The court is confronted with three separate but overlapping cases related to a John Doe investigation involving [———————————————————————————— ————————————————————————————————————————————————————————], and a substantial number of organizations and individuals who are associates and political allies of [——————————————]. ¶140 This is the second John Doe investigation initiated by the Milwaukee County District Attorney's Office that has focused on [——————————————] and [————] political circle. The present investigation concerns alleged campaign finance violations, but the scope of the investigation is sufficiently broad that it amounts to a fishing expedition into the lives, work, and thoughts of countless citizens. ¶141 For all practical purposes, the court has merged the two writ cases 1 into the original action 2 and invited the parties to submit briefs on all issues, even if an issue was not part of the party's original case. ¶142 The Collectively consolidated they are case complex presents and in the majority least difficult. important to the people of Wisconsin. addressed at opinion. 14 They issues. also are Many of these issues are I write separately to provide my own analysis and perspective on the following issues: 1 State ex rel. Schmitz v. Peterson, 2014AP417-W through 2014AP421-W; State ex rel. Three Unnamed Petitioners v. Peterson, 2013AP2504-W through 2013AP2508-W. 2 State ex rel. Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA. 1 No. (1) Issues 4 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp and 5 related to the appointment of the special prosecutor. (2) Issue 14 related to several search warrants. However, the record in this matter requires discussion of search warrants and subpoenas beyond the warrants identified in Issue 14. (3) Issue 6 related to the application of Wis. Stat. § 11.26(13m) to contributions in recalls. (4) Issues relating to several different provisions in Chapter 11 of the Wisconsin Statutes. ¶143 This concurring opinion discusses issues arising out of a John Doe investigation that is subject to multiple broad secrecy orders. Full adherence to these secrecy orders in their original breadth is impossible because full adherence would mean that the court could not acknowledge what the John Doe is about or discuss fully the numerous issues bearing on the scope, conduct, and propriety of the investigation. ¶144 "Secrecy of John Doe proceedings thereof is not maintained for its own sake." 77 Wis. 2d 261, 252 N.W.2d 671 (1977). and the records State v. O'Connor, Instead, "[t]he policy underlying secrecy is directed to promoting the effectiveness of the investigation. drawn as narrowly purposes.'" Therefore, as is any secrecy reasonably order 'should commensurate with be its State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶61, 260 Wis. 2d 653, 660 N.W.2d 260 (quoting O'Connor, 77 Wis. 2d at 286). a secrecy public's order, right to In making determinations about the scope of "[a] balance be informed 2 must about be struck the between workings of the its No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp government and the legitimate need to maintain the secrecy of certain John Doe proceedings." Id., ¶66. ¶145 It is important to protect the targets of a John Doe investigation when it is determined that they have not committed a crime. This protection extends to the identity of individual people as well as the content of their private communications and other records obtained in the course of the investigation. Here, there is no similar interest in protecting the actions of the John Doe judge or the special prosecutor. Because the majority orders the John Doe investigation "closed," it cannot be said that the continued secrecy of certain facts in this matter——the scope and nature of the investigation, search warrants, and subpoenas, for example——is necessary to protect the integrity of this or a future John Doe investigation. Accordingly, I conclude that discussion of these facts is not inconsistent with the secrecy order. ¶146 Thus, individuals this or organizations concurring organizations, who investigation. initiated State and opinion except and local does the conducted government not individuals the name and John Doe officials who initiate sweeping criminal investigations of Wisconsin citizens cannot expect to keep their conduct secret indefinitely, and appellate courts reviewing state and local government conduct do not provide the public with the full reasoning for their decisions if they are unwilling or unable to discuss the facts essential to these decisions. See majority op., ¶14 n.11, ¶88 n.25. 3 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶147 My interpretation of the secrecy order is essential to the discussion of certain procedural issues and is taken (1) after discussion with the court, (2) with knowledge that much information about the investigation has already been disclosed, and (3) with experience that additional disclosure in the future is likely. ¶148 In my view, all issues of law in this matter are subject to de novo review. ¶149 I join Section III of the concur in the result of Section IV. majority opinion, and I Although I agree with most of the discussion in Section IV, I would reach the result as a matter of law. I ¶150 Scott Walker November 2, 2010. was elected governor of Wisconsin on He was sworn in as governor on January 3, 2011. ¶151 On February 14, 2011, Governor Walker proposed a Budget Repair Bill that was intended to deal with the state's fiscal situation for the remaining months of the 2009-2011 biennium and for the 2011-2013 biennium beginning on July 1, 2011. Legislation introduced legislation in both to the included implement Senate provisions the and governor's Assembly. requiring plan The was proposed additional employee contributions for health care and pensions. public The two bills also included provisions curtailing collective bargaining rights for most state and local appropriations. 4 public employees and making No. ¶152 The history 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp of this legislation——which became 2011 Wis. Act 10 (Act 10)——is discussed in State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, and Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337. See also Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640 (7th Cir. 2013). ¶153 Act 10 was highly controversial. Intense opposition in the legislature included more than 60 consecutive hours of debate in the Assembly and the departure of all 14 Democratic senators from the state for nearly a month to deprive the Senate of a sufficient opposition to quorum Act 10 to pass included Wisconsin State Capitol. the original massive bill. demonstrations Public at the The demonstrations were so large that they garnered national and international attention. There were many smaller demonstrations throughout Wisconsin. ¶154 After challenged in its the passage, Dane the County Act Circuit 10 legislation Court grounds to prevent its publication as an act. on was procedural It was later challenged again in both federal and state courts in an effort to invalidate grounds. several of its provisions on constitutional The main challenge to Act 10 was not resolved by this court until mid-2014. Madison Teachers, 358 Wis. 2d 1. ¶155 The introduction and passage of Act 10 also led to efforts (1) to defeat a supreme court justice in April 2011, producing an exceptionally close election and the first statewide candidate recount in Wisconsin history; (2) to recall 16 state senators in July and August 2011, nine of whom were 5 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp forced to run for reelection; and (3) to recall the governor, lieutenant governor, and five state senators in June 2012. Four of the five senators had to run for reelection. ¶156 Two Republican state senators were defeated in 2011 and one Republican state senator was defeated in 2012. The latter the election Democrats. shifted control of the state senate to This was the second time in recent years that a recall election in Wisconsin shifted control of the state senate to the Democratic party. 3 ¶157 The John Doe investigation under review is ostensibly about alleged criminal activity by [——————————————], ——————————— ———————————], and [——————————] elections described above. petition for the John Doe during the multiple recall In an affidavit in support of the proceeding in August 2012, an investigator in the Milwaukee County District Attorney's office wrote: 3. The purposes and investigation would be to: goals of this John Doe a. Determine the nature and extent of an agreement or understanding related to the solicitation by [————————————————————————————————], and [—————————— ——————————————————], [———————————————————————————————— ——————————————————] in the 2011 and 2012 recall elections, for contributions to organizations regulated by Title 26 U.S.C. 501(c)4 contrary to 3 The first Wisconsin legislator to be successfully recalled was Senator George Petak (R-Racine), who lost a recall election on June 4, 1996. In 1995 Senator Petak voted for a bill to authorize financing for a new baseball stadium for the Milwaukee Brewers. Senator Petak's recall shifted control of the Senate to the Democratic Party. 6 No. Wisconsin Stats 11.61(1)(b); 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp sec. 11.10(4), 11.26, 11.27 and b. Determine whether the circumstances under which the solicitation and use of said campaign contributions were to circumvent the provisions of Wisconsin Stats sec. 11.26 and 11.27(1) by individuals and others identified above, for a criminal purpose in order to avoid the requirements of Wisconsin Stats. Sec. 11.06(1) and 11.27(1). ¶158 In Attorney's fact, Office however, the targeted Milwaukee County [——————————————] District circle for investigation before [——————————————————————], and it has framed the present investigation to include alleged campaign finance violations dating from 2009 through the 2012 recall elections. ¶159 Almost immediately after the introduction of Governor Walker's surface. Budget Repair Bill, talk of his recall began to However, because Walker was elected in 2010 and did not take office until January 3, 2011, he could not be recalled under the constitution until 2012 "after the first year of the term for which the incumbent was elected." XIII, § 12. Consequently, Walker's Wis. Const. art. opponents focused their attention in the short term on a pending race for the supreme court and the recall of eight Republican state senators elected in 2008: Robert Cowles (District 2); Alberta Darling (District 8); Sheila Harsdorf (District 10); Luther Olsen (District 14); Randy Hopper (District 18); Glenn Grothman (District 20); Mary Lazich (District 28); and Dan Kapanke (District 32). Formal recall efforts for these senators began on March 2, 2011. ¶160 Opponents of Governor Walker and the senators who voted for Act 10 succeeded in obtaining the required signatures 7 No. to force recall 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp elections for Senators Harsdorf, Olsen, Hopper, and Kapanke. sufficient signatures to force recall Cowles, Darling, They failed to obtain elections for Senators Grothman and Lazich. ¶161 Supporters of Governor Walker attempted to recall eight Democratic state senators, namely, Lena Taylor (District 4); Spencer Coggs (District 6); James Holperin (District 12); Mark Miller (District 16); Robert Wirch (District 22); Julie Lassa (District 24); Fred Risser (District 26); and Dave Hansen (District 30). 22 (District number of Their formal efforts began as early as February 12). They signatures to succeeded Holperin, Wirch, and Hansen. obtaining the required recall force in elections for Senators They failed to obtain sufficient signatures to force recall elections for Senators Taylor, Coggs, Miller, Lassa, and Risser. ¶162 In the 2011 recall elections, Senators Randy Hopper and Dan Kapanke were defeated. Senators Cowles, Darling, Harsdorf, Holperin, Olsen, Wirch, and Hansen were reelected. ¶163 Opponents of Governor Walker sought to recall Walker and Lieutenant Governor Rebecca Kleefisch and four Republican state senators, namely, Scott Fitzgerald (District 13); Van Wanggaard (District 21), Terry Moulton (District 23); and Pam Galloway (District 29), in 2012. attempted to recall Senator Supporters of Governor Walker Robert Jauch (District 25). Insufficient signatures were submitted to recall Senator Jauch. However, all the Republican targets faced recall elections in 2012, except Senator Galloway, who resigned on March 16, 2012. 8 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp She was replaced by Representative Jerry Petrowski, who ran in the recall general election. ¶164 The timing of the recall elections in 2011 and 2012 was complicated by multiple different filing dates for recall petitions and a substantial number of primary elections. Recall petitions were filed with the Government Accountability Board (GAB) on April 1, 2011 (Senator Kapanke); April 7, 2011 (Senator Hopper); April 18, 2011 (Senator Olsen); April 19, 2011 (Senator Harsdorf); April 21, 2011 (Senators Darling, Holperin, Wirch, and Hansen); and April 25, 2011 (Senator Cowles). ¶165 Primary elections were held on July Senate Districts 2, 8, 10, 14, 18, and 32. 12, 2011, in Primary elections were held on July 19, 2011, in Districts 12 and 22. ¶166 In 2011 the recall general elections were held on July 19, 2011 (District 30); August 9, 2011 (Districts 2, 8, 10, 14, 18, and 32); and August 16, 2011 (Districts 12 and 22). ¶167 In 2012 the primary elections for governor, lieutenant governor, and the four senate seats in Districts 13, 21, 23, and 29 were held on May 8. on June 5, 2012. The recall general elections were held Senator Van Wanggaard was defeated. Governor Walker, Lieutenant Governor Kleefisch, and Senators Fitzgerald and Moulton were reelected. Representative Petrowski was elected as a Republican to succeed Senator Galloway. ¶168 The seemingly insignificant factual details of these multiple elections unscheduled are electoral important activity in 9 to show the Wisconsin unprecedented, during 2011 and No. 2012, and to relate 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp these multiple elections to Wisconsin recalls is contained campaign finance laws. II ¶169 Wisconsin statutory law primarily in Wis. Stat. § 9.10. on This section is intended "to facilitate the operation of article XIII, section 12, of the [Wisconsin] [C]onstitution," Wis. Stat. § 9.10(7), which provides for the recall of "any incumbent elective officer after the first year of the term for which the incumbent was elected." Wis. Const. art. XIII, § 12. ¶170 "[A] petition for recall of an officer shall be signed by electors equal to at least 25% of the vote cast for the office of governor at the last election within the same district or territory as that of the officeholder being recalled." Wis. Stat. § 9.10(1)(b). ¶171 Wisconsin requirements, Stat. including the § 9.10(2) design of outlines the petition recall petition forms. Paragraph (2)(d) provides: No petition may be offered for filing for the recall of an officer unless the petitioner first files a registration statement under s. 11.05(1) or (2) with the filing officer with whom the petition is filed. The petitioner shall append to the registration a statement indicating his or her intent to circulate a recall petition, the name of the officer for whom recall is sought and, in the case of a petition for the recall of a city, village, town, town sanitary district, or school district officer, a statement of a reason for the recall which is related to the official responsibilities of the official for whom removal is sought. . . . The last date that a petition for the recall of an officer may be offered for filing is 5 p.m. on the 60th day commencing after 10 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp registration. . . . No signature may be counted unless the date of the signature is within the period provided in this paragraph. ¶172 Paragraph (2)(d) is significant in several respects. First, a recall effort cannot formally begin until a registration statement is filed under Wis. Stat. § 11.05(1) or (2). However, the organization of a recall campaign may begin much earlier than the date of registration, and the planners and organizers are expenditure to not required launch the to report campaign any except activity or expenditures by already-registered political committees. ¶173 Second, supporters of a recall campaign have 60 days after registration to circulate and file their recall petitions. However, organizers of the Scott Walker recall petition shrewdly selected Tuesday, November 15, 2011, to register their recall efforts. Under Wis. Stat. § 990.001(4)(a), which deals with how time is computed under the Wisconsin Statutes, the first day is excluded in counting the 60 days. Under Wis. Stat. § 990.001(4)(c), if the deadline for filing a document is on a day when the filing office is closed, the filing "may be done on the next holiday." 2012. succeeding day that is not a Sunday or a legal The Walker recall petition was due on January 14, However, January 14 was a Saturday, which meant that the petition did not have to be filed until Tuesday, January 17, because January 16 was a legal holiday (Martin Luther King's birthday). This gave the organizers 64 days to circulate and file the Walker, Kleefisch, Fitzgerald, Wanggaard, Moulton, and Galloway recall petitions. 11 No. ¶174 Third, Wis. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp Stat. § 9.10(2)(b) makes plain that no stated reason is required to recall a state officer, as opposed to a local official. ¶175 Wisconsin Stat. § 9.10(3)(b) provides that: Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official, specifying any alleged insufficiency. If a challenge is filed, the petitioner may file a written rebuttal to the challenge with the official within 5 days after the challenge is filed. If a rebuttal is filed, the officer against whom the petition is filed may file a reply to any new matter raised in the rebuttal within 2 days after the rebuttal is filed. Within 14 days after the expiration of the time allowed for filing a reply to a rebuttal, the official shall file the certificate or an amended certificate. ¶176 Subsection (3)(b) continues: Within 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition. If the official finds that the amended petition is sufficient, the official shall file the petition and call a recall election to be held on the Tuesday of the 6th week commencing after the date of filing of the petition. (Emphasis added.) ¶177 Subsection (3)(f) provides that "If a recall primary is required, the date specified under par. (b) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week commencing after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday." 12 No. ¶178 Subsection 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp (3), too, is important in this matter. First, the statute builds in certain protections for a public officer against whom a recall petition is filed. no recall primary or recall election may Consequently, proceed until the official with whom the petition is filed certifies the recall and orders a recall election. The review process can be very time consuming, especially if all available process is utilized. ¶179 In this case, recall elections were certified by the Government Accountability Board as follows: 2011 Officer Recall Certified District 2 (Robert Cowles) June 3, 2011 District 8 (Alberta Darling) June 3, 2011 District 10 (Sheila Harsdorf) June 3, 2011 District 12 (Jim Holperin) June 10, 2011 District 14 (Luther Olsen) June 3, 2011 District 18 (Randy Hopper) June 3, 2011 District 22 (Robert Wirch) June 10, 2011 District 30 (Dave Hansen) June 10, 2011 District 32 (Dan Kapanke) June 3, 2011 2012 Officer Recall Certified Governor Scott Walker March 30, 2012 Lt. Governor Rebecca Kleefisch March 30, 2012 District 13 (Scott Fitzgerald) March 30, 2012 District 21 (Van Wanggaard) March 30, 2012 13 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp District 23 (Terry Moulton) March 30, 2012 District 29 (Pam Galloway) March 30, 2012 ¶180 Second, Wis. Stat. § 11.26 sets limits contributions, as defined in Wis. Stat. § 11.01(6). on However, subsection (13m) of § 11.26 contains two specific exceptions to these contribution limits: Contributions utilized for the following purposes are not subject to limitation by this section: (a) For the purpose of payment of legal fees and other expenses incurred as a result of a recount at an election. (b) For the purpose of payment of legal fees and other expenses incurred in connection with the circulation, offer to file or filing, or with the response to the circulation, offer to file or filing, of a petition to recall an officer prior to the time a recall primary or election is ordered, or after that time if incurred in contesting or defending the order. (Emphasis added.) ¶181 The plain language of Wis. Stat. § 11.26(13m) provides that there is no limitation on contributions for payments made for certain purposes from the date a recall campaign registered until the date a recall election is ordered. is There also is no limitation on contributions for payment of legal fees and other expenses incurred as a result of a recount. ¶182 For the nine successful recall petitions in 2011, the periods of exemption were as follows: District 2 March 2, 2011—June 3, 2011 = 94 days District 8 March 2, 2011—June 3, 2011 = 94 days District 10 March 2, 2011—June 3, 2011 = 94 days District 12 February 22, 2011—June 10, 2011 = 109 days 14 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp District 14 March 2, 2011—June 3, 2011 = 94 days District 18 March 2, 2011—June 3, 2011 = 94 days District 22 February 24, 2011—June 10, 2011 = 107 days District 30 February 25, 2011—June 10, 2011 = 106 days District 32 March 2, 2011—June 3, 2011 = 94 days ¶183 For the six successful recall petitions for 2012, the periods of exemption were as follows: Governor November 15, 2011—March 30, 2012 = 137 days Lt. Governor November 15, 2011—March 30, 2012 = 137 days District 13 November 15, 2011—March 30, 2012 = 137 days District 21 November 15, 2011—March 30, 2012 = 137 days District 23 November 15, 2011—March 30, 2012 = 137 days District 29 November 15, 2011—March 30, 2012 = 137 days ¶184 There were two recounts during the period under review——the statewide recount of the 2011 supreme court election and the recount in Senate District 21 in 2012. ¶185 During periods of exemption, individuals and organizations that are permitted to make contributions to recall campaigns may make unlimited contributions to support or oppose a recall effort. If these individuals and organizations are permitted to support or oppose recall efforts with unlimited contributions during exempt periods, they are likewise permitted to seek contributions contributions during during these these periods periods that will and be to make lawful in periods that are not exempt under Wis. Stat. § 11.26(13m). ¶186 In 2011 there were 156 exempt days between February 22 and December 31 related to recall elections. 15 In 2012 there were No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp 90 exempt days between January 1 through March 30 related to recall elections. ¶187 In sum, irrespective of any First Amendment or due process limitations Wisconsin on campaign the finance regulation statutes of were campaign largely finance, inapplicable during 246 of the days under investigation, by virtue of Wis. Stat. § 11.26(13m). This figure does not include exempt days for fundraising and contributions to pay for the 2011 statewide recount for the supreme court. III ¶188 On June 5, 2012, Governor Walker election with more than 53 percent of the vote. won the recall Walker was the third governor in United States history to be recalled. He was the first to be reelected. ¶189 Approximately two months later, on August 10, 2012, a Milwaukee County assistant district attorney, David Robles, filed a petition for commencement of this John Doe investigation in Milwaukee County. Circuit Court. The petition was filed in Milwaukee County The petition sought leave to investigate alleged campaign finance violations and requested a secrecy order to cover the investigation in anticipation that documents would be sought from "[—————————————————————————————————————————————————— ———————————————————————————————————————————————————————————————] personal campaign committee . . . and . . . related organizations." ¶190 The petition necessitated the appointment of a John Doe judge. The judge appointed was Barbara Kluka, a prominent 16 No. reserve judge from 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp Kenosha County. Issues appointment are presently before the court. related to this I am not persuaded that there are defects in Judge Kluka's appointment. ¶191 On September 5, 2012, Judge Kluka granted the petition and issued an order for commencement of the John Doe proceeding. The same day, Judge Kluka granted a secrecy order. ¶192 The next day, the Milwaukee County District Attorney's Office sought and received search warrants for the private email accounts of 13 individuals, including [——————————————]. The private e-mail accounts were obtained from [———————————————— ————————————————]. The search warrants required the recipient "electronic communication service providers" to produce all communications stored in the account[s] including all incoming and outgoing e-mail; subscriber names, user names, screen names or other identities associated with the account[s]; mailing addresses, residential addresses, business addresses, other email addresses, telephone numbers or other contact or identifying information for [these] account[s] (in electronic or other form); billing records; contact lists, information about length of service, types of services or related information; connection logs and records of user activity, and any information related to sent and received communications, including any "chat" or "instant messaging" or related information for said account[s] . . . . (Emphasis added.) The time frame for the search warrants was from April 11, 2009, to July 1, 2012. ¶193 The district attorney's office also obtained either a search warrant or a subpoena duces tecum for conference call records from [——————————————————] and for three bank accounts from a bank. All these search subject to a secrecy order. 17 warrants and subpoenas were No. ¶194 On Attorney's subpoenas 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp December Office for 12, asked the 2012, for private the additional e-mail Milwaukee search accounts of District warrants 11 and additional individuals, as well as additional private accounts for five previously named individuals, including [————————————]. These accounts were obtained from [12 electronic communication service providers]. E-mail accounts were sought from January 1, 2011, through July 31, 2012. records from providers. [a bank] The office also sought bank account and conference call records from two All these search warrants and subpoenas were subject to a secrecy order. ¶195 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 Chisolm sought to determine whether, given the statewide nature of the investigation, the Attorney General's office wished to become involved in the investigation. General Van Hollen sent District On May 31, 2013, Attorney Attorney declining involvement in the investigation. Chisholm a letter Attorney General Van Hollen cited, among other things, potential conflicts of interest [—————————————————————————————————————————————————————— ————————————————————————————]. ¶196 On June 20, 2013, the Government Accountability Board met in closed session in Madison to discuss the investigation. The Board passed two motions [—————————————————————————————————— ———————————————————————————————————————————————————————————————— 18 No. ——————————————————] 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp and one to hire special investigators Francis Schmitz was to assist with the investigation. ¶197 On July 16, 2013, chosen as a special investigator for the GAB. ¶198 In July 2013, three more petitions to commence John Doe proceedings were filed: District Attorney Jane Kohlwey filed a petition in Columbia County on July 22, District Attorney Larry Nelson filed a petition in Iowa County on July 25, and District Attorney Kurt Klomberg filed a petition in Dodge County on July 26. On August 21, District Attorney Ismael Ozanne filed a petition in Dane County to commence a John Doe proceeding. All these petitions included a request that the proceedings be subject to a secrecy order. ¶199 Also on August 21, 2013, the district attorneys from the five counties involved (Milwaukee, Columbia, Iowa, Dodge, and Dane) sent a letter to John Doe Judge Barbara Kluka requesting the appointment of a special prosecutor to oversee the entire Schmitz. investigation. The letter recommended Francis On August 23, Judge Kluka appointed Schmitz to be the special prosecutor for each of the five John Doe investigations. ¶200 On Schmitz or applied about to October Judge Kluka 1, 2013, for Special additional search warrants, supported by lengthy affidavits. applications sought information about 29 Prosecutor subpoenas and The subpoena businesses and organizations, including political party organizations, about a large number of persons who were not candidates, and about all candidates and campaign committees involved in 2011 and 2012 19 No. recall elections. 21 The application sought subpoenas for at least businesses, disclose above. organizations, information enumerated 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp about businesses, and and party organizations relationships organizations, and with all individuals to the noted The special prosecutor issued more than 30 subpoenas. ¶201 There also were search warrant applications residences and/or offices of five individuals. for These search warrants were very broad in nature and covered the time period from March 1, 2009 to the date the warrants were issued. ¶202 The search warrants and subpoenas authorized on or about October 1 by Judge Kluka are at issue before the court. IV ¶203 The first issue for discussion here is the legality of the appointment prosecutor. five of Francis Schmitz as the John Doe special On August 21, 2013, district attorneys from the counties involved in the John Doe investigation sent a letter to Judge Kluka requesting the appointment of a special prosecutor to oversee the entire investigation. recommended the appointment of Francis Schmitz. The letter On August 23, Judge Kluka appointed Schmitz to be the special prosecutor, at a rate of $130 per hour, for the John Doe investigation in each of the five counties. ¶204 Wisconsin Stat. § 978.045, entitled "Special prosecutors," constitutes most of the statutory authority for the appointment of special prosecutors. 4 4 This section, which See also Wis. Stat. §§ 978.03(3), 978.043. 20 No. dates back to 1989, 5 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp has four subsections. The first subsections read, in part, as follows: (1g) A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection. Before a court appoints a special prosecutor on its own motion or at the request of a district attorney for an appointment that exceeds 6 hours per case, the court or district attorney shall request assistance from a district attorney, deputy district attorney or assistant district attorney from other prosecutorial units or an assistant attorney general. A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney's or the court's inability to obtain assistance from another prosecutorial unit or from an assistant attorney general. (1r) Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exist: Wis. Stat. § 978.045(1g)-(1r). 5 1989 Wis. Act 117, § 5. 21 two No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶205 At this point, the subsection lists nine "conditions" that justify appointment of a special prosecutor: (a) county. There (b) county. The is no district district attorney attorney is absent for the from the (c) The district attorney has acted as the attorney for a party accused in relation to the matter of which the accused stands charged and for which the accused is to be tried. (d) The district attorney is near of kin to the party to be tried on a criminal charge. (e) The district attorney is physically unable to attend to his or her duties or has a mental incapacity that impairs his or her ability to substantially perform his or her duties. (f) The district attorney is serving in the U.S. armed forces. (g) The district attorney stands charged with a crime and the governor has not acted under s. 17.11. (h) The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff. (i) under s. district refer the A judge determines that a complaint received 968.26(2)(am) relates to the conduct of the attorney to whom the judge otherwise would complaint. Wis. Stat. § 978.045(1r). ¶206 Section 978.045 is clear. The court appoints special prosecutors under these two subsections. The court can make an appointment on its own motion or it can make an appointment upon the request of a district attorney. When the court appoints on its own motion, it appoints under the conditions in subsection 22 No. (1r). 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp When the court appoints upon the request of a district attorney, it appoints "under that subsection," that is, under the conditions of subsection (1r). ¶207 Section 978.045 spells appointments under (1g) and (1r). out prerequisites for One of these prerequisites is for the court or district attorney first to request assistance from other prosecutors, including "an assistant general," before appointing a special prosecutor. attorney Because the Milwaukee County District Attorney made a request for assistance to the Wisconsin Attorney General, this prerequisite arguably was satisfied. 6 was satisfied However, the assumption that the prerequisite is grounded on the proposition that if the district attorney or court asks the Department of Justice for assistance, unit. they do not have to ask any other prosecutorial This may be a tenuous proposition. ¶208 A second prerequisite is found in the nine conditions of subsection (1r). "The judge may appoint an attorney as a 6 It is not clear to the writer whether a court from one county is required to make an appointment if a district attorney, deputy district attorney, or assistant district attorney from another county, or an assistant attorney general, responds to a request for assistance from the court or from the district attorney in the court's home county. Wis. Stat. § 978.045(1g). A district attorney may, on his own, appoint an attorney to serve as a special prosecutor "without state compensation." Wis. Stat. § 978.045(3)(a). A district attorney from a large county also may appoint "temporary counsel as may be authorized by the department of administration." Wis. Stat. § 978.03(3). Judicial appointment of a special counsel in these situations would appear unnecessary but fully authorized if the appointment is consistent with subsection (1r). 23 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp special prosecutor if any of the following conditions exists." (Emphasis added.) the judge is If none of the enumerated conditions exists, not authorized to make an appointment under subsections (1g) and (1r). ¶209 There conditions are must appointment. required to several exist First, pay for in order the a reasons why the for one court Department special of the an Administration is who to nine make prosecutor appointed under these subsections. of is properly Wis. Stat. § 978.045(2)(b) ("The department of administration shall pay the compensation ordered by the 20.475(1)(d).") appear to appointed court (emphasis have from appropriation added). authority special the to The reject prosecutor. the for a s. does department payment However, under not properly legislature did establish conditions for these appointments before requiring the department of administration to pay. ¶210 Second, if the conditions in subsection (1r) did not have to be followed, courts could grant requests from district attorneys for an unlimited number supplement district attorney staffs. 7 7 of special prosecutors to In other words, individual According to one study, Wisconsin employed only two-thirds of the number of prosecutors needed in 2012. See Eric Litke, Wisconsin Needs 215 More Prosecutors, Study Says, Green Bay Press-Gazette (Apr. 14, 2013), available at http://archive.greenbaypressgazette.com/article/20130413/GPG0198 /304130026/Wisconsin-needs-215-more-prosecutors-study-says. During the 2011-13 budget cycle, 42 of the 71 district attorneys in the state requested funding for additional positions; none of the requests was granted. Id. 24 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp judges could effectively disregard the number of positions for assistant district attorneys set out in statute. § 16.505. Cf. Wis. Stat. District attorneys in the state's largest counties already may appoint "temporary counsel" as authorized by the department of administration. Wis. Stat. § 978.03(3). Section 978.045 does not permit an alliance between a district attorney and a judge to override statutory limitations on prosecutor appointments. ¶211 Third, if the conditions in subsection (1r) did not have to be followed, courts could appoint special prosecutors on their own motion for "investigations" of interest to an individual judge without any involvement by the local district attorney. This would present a significant separation of powers issue. ¶212 Fourth, courts could appoint special prosecutors with "all the powers accountability of of the any district checks on attorney," the conduct, except from the appointing court. special without the prosecutor's A special prosecutor appointed on the court's own motion would not necessarily be overseen by a district attorney. The special prosecutor could not be recalled or defeated for reelection, never having been elected to the special prosecutor position. The special prosecutor could be appointed by a reserve judge who would never again face the electorate. ¶213 All these concerns are blunted if the court adheres to the conditions in subsection (1r). None of these concerns is addressed when the conditions are disregarded. 25 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶214 In State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, different the court conclusion. of The appeals court of appeared appeals to noted reach that a Wis. Stat. § 978.045 "authorizes two distinct ways in which a court may appoint a special prosecutor." Id., ¶8. The court said: Carlson directs us to the sentence in the statute that authorizes the court's appointment of a special prosecutor when it is at the request of a district attorney. . . . We agree with Carlson that the part of the statute that he relies upon for his argument lists, and arguably restricts, the circumstances in which a court may appoint a special prosecutor.[4] However, any 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. (emphasis added). ¶215 Footnote 4 in the court's opinion reads as follows: The part of the statute that Carlson relies upon states: "The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings or in investigations." Wis. Stat. § 978.045(1r)[(1999-2000)]. Id., ¶8 n.4. to include The quoted statutory sentence has been broadened "proceedings under ch. 980." Wis. Stat. § 978.045(1r). ¶216 The Carlson court's analysis is correct except for the language "not when the appointment is made by a court on its own motion." own The court of appeals' interpretation of the "on its motion" language is mistaken because it reads out of subsection (1r) the prerequisite that "[T]he judge may appoint an attorney as a special prosecutor 26 if any" of the nine No. conditions exists. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp (Emphasis added.) The court of appeals' interpretation would provide courts, including reserve judges, free rein to make special prosecutor appointments. In my view, such an interpretation contradicts the plain language and the obvious policy embedded in the statute. ¶217 The statutory interpretation. history of the section supports this As noted previously, Wis. Stat. § 978.045 was created by 1989 Wis. Act 117, § 5. The first version of the section read in part as follows: (1) If there is no district attorney for the county, if the district attorney is absent from the county, has acted as attorney for a party accused in relation to the matter of which the accused stands charged and for which he or she is to be tried, is near of kin to the party to be tried on a criminal charge, is unable to attend to his or her duties or is serving in the armed forces of the United States, or if the district attorney stands charged with a crime and the governor has not acted under s. 17.11, any judge of a court of record, by an order entered in the record stating the cause therefor, may appoint some suitable attorney to perform, for the time being, or for the trial of the accused person, the duties of the district attorney, and the attorney so appointed shall have all the powers of the district attorney while so acting. ¶218 This original subsection based judicial appointment of a special prosecutor on the existence of one or more specified conditions. The statutory history of § 978.045 shows that this qualification has been carried forward consistently in each revision of the statute. ¶219 It should also be noted that the original listed six conditions permitting judicial appointment. 1989 three more conditions have 27 been added. Why section Since would the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp legislature keep adding new justifications for the appointment of a special prosecutor if the appointing court could simply enter an order appointment? in the record "stating the cause" for the A court must state the cause for an appointment in its order so that the department of administration is informed why it must pay for compensation. ¶220 Section 978.045(1g) reads in part: "A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney's or the court's inability prosecutorial unit (Emphasis added.) to or obtain from an assistance assistant from attorney another general." In fact, the principal form used by courts when they appoint a special prosecutor is CR-210, developed by the Wisconsin Court Records Wisconsin Supreme Court. Management See Exhibit 1. Committee of the The Department of Administration approves this form. ¶221 Form CR-210 tracks Wis. Stat. § 978.045(1r). At the bottom, Form CR-210 states: "This form shall not be modified. It may be supplemented by additional material." (Emphasis added.) ¶222 Five district attorneys asked Judge Kluka to appoint a special prosecutor. They asked her to appoint Francis Schmitz. They explained the reasoning for the appointment of a special prosecutor. They advised her how to justify the appointment of 28 No. a special 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp prosecutor. They even explained the amount that Attorney Schmitz would accept as compensation. ¶223 Two appointment days of later Francis Judge Kluka Schmitz. The made the appointment requested order was titled "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978." The order disregarded CR-210 and created a new document following the analysis in the district attorneys' letter. It twice cited the letter and even repeated the unusual citation of State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), and the mis-citation of State v. Carlson in the letter. ¶224 Judge Kluka's order stated: I make this appointment in light of the facts and circumstances set forth in the August 21, 2013 letter submitted by the District Attorneys for the counties of Columbia, Dane, Dodge, Iowa and Milwaukee. I make this appointment under my authority as expressed in State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 562 [sic]. I find that a John Doe run by five different local prosecutors, each with a partial responsibility for what is and ought to be one overall investigation and prosecution, is markedly inefficient and ineffective. Consequently, I also make this appointment as part of my inherent authority under State v. Cummings, 199 Wis. 2d 721, 735, 546 N.W.2d 406, 411 (1996). ¶225 Inasmuch as Judge Kluka appointed a special prosecutor for each letter of signed five by counties the two district days after attorney in receiving each of a the joint five counties, and inasmuch as the judge appointed the very person the district attorneys recommended to be special prosecutor and authorized precisely the amount of compensation the district attorneys said their nominee would accept, and inasmuch as the judge twice cited the letter of 29 request from the district No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp attorneys in her order, followed the letter's legal analysis, utilized the cases contained in the letter, and even repeated a mis-citation of a case in the letter, it is simply not possible to contend that the court was acting on its own motion. Judge Kluka other did not check personally to see whether prosecutorial units could assist in the John Doe. accepted as fact and presented to her. Carlson, the appointment law everything the any Instead, she district attorneys Thus, even under the half-correct decision in special statute prosecutor if it did not appointment satisfy violated one of the the nine "conditions" in subsection (1r). ¶226 Judge Kluka made a gesture to comply with the statute. Her order stated: "The Attorneys . . . all Attorney note that General their and the individual District status as partisan elected prosecutors gives rise to the potential for the appearance of impropriety. I find that the Special Prosecutor will eliminate any appearance of impropriety." ¶227 This "finding" is plainly insufficient. The Milwaukee County District Attorney's Office had been investigating [—————— ————————————] since August 10, 2012, the day it petitioned for the second John impropriety." even longer affidavits search Doe, without concern for the "appearance of It obviously had been investigating [——————————] in light supporting warrants and of the the materials petition subpoenas for presented the requested in in the John and the This is Doe 2012. markedly different from the Department of Justice, which in 2013 [—————————————————————————————————————————————————]. 30 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶228 In any event, "the appearance of impropriety" is not the same as "a conflict of interest" as set out in Wis. Stat. § 978.045(1r)(h). conflict of If this potential "appearance" were deemed a interest, the five district staffs should have withdrawn from the case. attorneys and their They did not. ¶229 Thus, Judge Kluka's order failed to satisfy any of the nine conditions stated in subsection (1r). That is why the judge disregarded CR-210 and submitted a different order. ¶230 That also is why the order attempts to sever the relationship between the district attorneys and the court and to claim that the judge was acting on her own motion. The problem is twofold, beyond the implausibility of the claim. A court acting on its own motion also must satisfy one or more of the conditions in subsection (1r) if the judge is acting under Wis. Stat. § 978.045. The court conditions of the statute. district attorneys and cannot read out these Moreover, the statute itself links the prosecutors for John Does. simply court's appointment of special See also Wis. Stat. § 968.26. ¶231 The judge's second gambit to support the appointment of the special prosecutor was to invoke "inherent authority" under Cummings, 199 Wis. 2d at 735. This theory is completely at odds with the title of the order: "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978." Appointments made under the "inherent authority" of the court, if such authority exists in this matter, Administration do not because require they payment are Chapter 978. 31 not by made the in Department conformity of with No. ¶232 In my 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp view, the Cummings case does not recognize "inherent authority" to appoint a special prosecutor, especially in a John Doe matter. In Cummings, the court stated the relevant issues as follows: "(1) does a John Doe judge have the power to issue a search warrant; (2) does a John Doe judge have the power to Wis. 2d at 729. seal a search warrant . . . ." Cummings, 199 The court then observed: Next, defendant asserts that a John Doe judge does not have the authority to seal a search warrant. It is true that there is no statutory authority in Wisconsin granting judges this ability. However, a John Doe judge has been granted jurisdiction, the legal right to exercise its authority, pursuant to Wis. Stat. § [968.26]. A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate. Id. at 735-36. "The ability to seal a search warrant is exactly that type of power which a John Doe judge needs to fulfill the above jurisdictional mandate." Id. at 736-37. ¶233 The same cannot be said about the "inherent authority" to appoint a special prosecutor for a John Doe proceeding. ¶234 Judicial power to appoint a John Doe special prosecutor is governed by statute, in the same way that John Doe proceedings themselves have always been governed by statute. State v. Washington, 83 Wis. 2d 808, 819, 266 N.W.2d 597 (1978). ¶235 One statute, Wis. Stat. § 978.045, has already been discussed. It sets conditions for the appointment of a special prosecutor paid for by the state, and those conditions have not been satisfied here. 32 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶236 The other statute is the John Doe statute, Wis. Stat. § 968.26. This statute reads in part: (1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies. . . . . (am) . . . [I]f a person who is not a district attorney complains to a judge that he or she has reason to believe that a crime has been committed within the judge's jurisdiction, the judge shall refer the complaint to the district attorney . . . . (b) . . . [T]he district attorney [then] shall, within 90 days of receiving the referral, issue charges or refuse to issue charges. If the district attorney refuses to issue charges . . . [t]he judge shall convene a proceeding . . . if he or she determines that a proceeding is necessary to determine if a crime has been committed. . . . (c) In [such] a proceeding . . . the judge shall subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom committed. The judge shall consider the credibility of testimony in support of and opposed to the person's complaint. (d) . complaint evidence complaint. . . [T]he judge may issue a criminal if the judge finds sufficient credible to warrant a prosecution of the . . . ¶237 This statute suggests that a judge has authority to proceed with a John Doe and, perhaps eventually, appoint a special prosecutor (but not under Chapter 978) if "the district attorney refuses to issue charges . . . ." 33 Whatever the statute No. implies, it is 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp inapplicable in this case because of the proactive involvement of the district attorneys. ¶238 The Cummings case notes that "a John Doe judge does not have the conclusion statutory is indubitably judge . . . enjoys statute." powers those of a court. . . . correct. . . . powers conferred This [A] to John Doe all judges by prosecutor is Cummings, 199 Wis. 2d at 738. ¶239 Judicial power governed by statute. to appoint a special If "inherent authority" were permitted to trump the applicable statutes governing John Doe appointments, the restrictions meaningless. State v. these statutes would be rendered This court cannot permit that to happen. Henley, N.W.2d 350. in 2010 WI 97, ¶76, 328 Wis. 2d 544, Cf. 787 Judge Kluka's appointment of the special prosecutor was invalid. V ¶240 The second issue for discussion is the validity of the search warrants and subpoenas sought by the special prosecutor on or about October 1, 2013. As noted above, the John Doe judge approved extremely broad search warrants for five individuals and at least 31 very broad subpoenas. ¶241 Motions to quash some of the subpoenas were filed on October 17 and October 25, 2013. recused herself from unspecified conflict. the On October 29, Judge Kluka entire proceeding, citing an Thereafter, the John Doe was reassigned to Reserve Judge Gregory Peterson of Eau Claire, who previously served as a member of the Wisconsin Court of Appeals. 34 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶242 Following various writ applications in the court of appeals and petitions in two circuit courts, the new John Doe judge granted the motions to quash the subpoenas and to return property seized under the search warrants. was issued whether on January Judge 10, 2014. Peterson's The judge's decision This decision court should be must determine affirmed or reversed. ¶243 Judge interpretation First Peterson's of decision election Wisconsin Amendment. He noted is law specifically grounded as in affected that the by his the "subpoenas reach into the areas of First Amendment freedom of speech and freedom of association. exacting scrutiny As a result, I must apply a standard of and, in interpreting statutes, give the benefit of any doubt to protecting speech and association." ¶244 The judge wrote: I am granting the motions to quash and ordering return of any property seized as a result of the subpoenas. 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 here . . . requires express advocacy. There is no evidence of express advocacy. ¶245 Judge Peterson then wrote that "The subpoenaed parties raise other issues in their briefs, some quite compellingly. However, given the above address those issues." decision, it is not necessary to This writing will address some of the 35 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp issues related to the search warrants and subpoenas as Judge Peterson's decision can be affirmed on additional grounds. ¶246 The Fourth Amendment to the United States Constitution reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The equivalent provision in the Wisconsin Constitution is found in Article I, Section 11. 8 ¶247 These constitutional provisions are implemented in Wisconsin by several statutes, including Wis. Stat. §§ 968.12 (Search warrant), 968.13 (Search warrant: property subject to seizure), 968.14 (Use of force), 968.15 (Search warrants; when executable), 968.16 (Detention and Search of persons on premises), 968.17 (Return of search warrant), 968.18 (Receipt for seized 968.20 property), (Return of 968.19 property (Custody seized), of property 968.205 seized), (Preservation of certain evidence), 968.23 (Forms), 968.27 (Definitions), 968.28 (Application 968.29 for court (Authorization order for to intercept disclosure and use communications), of intercepted wire, electronic or oral communications), 968.30 (Procedure for interception of wire, electronic or oral communications), and 8 The Supreme Court has incorporated the Fourth Amendment into the Fourteenth Amendment so that it applies to the states. See Ker v. California, 374 U.S. 23, 33 (1963). 36 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp 968.375 (Subpoenas and warrants for records or communications of customers of an electronic computing service provider). communication service or remote Nestled among these search warrant statutes is Wis. Stat. § 968.135, which deals with "Subpoena for documents." ¶248 Judicial narrow interpretation application of the of Wisconsin the Fourth search Amendment warrant can statutes. The statutes, in turn, may provide limitations on warrants that are not required by the Fourth Amendment. ¶249 Questions about the search warrants and arise here in the context of a John Doe proceeding. subpoenas The nature of such a proceeding must be understood. ¶250 The John Doe statute, as amended in 2009, 2009 Wis. Act 24, reads in part as follows: (1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies. . . . . (3) The extent to which a judge may proceed in an examination under sub. (1) or (2) is within the judge's discretion. The examination may be adjourned and may be secret. . . . Wis. 2d 968.26(1), (3). ¶251 In Cummings, this court held that "a John Doe judge may issue and circumstances." seal a search warrant under Cummings, 199 Wis. 2d at 730. appropriate The court added: "The John Doe statute need not specifically mention the issuance 37 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp of search warrants for a John Doe judge to have such power." Id. at 734-35. The court said: [S]tatutes should be interpreted in a manner which supports their underlying purpose. This court has repeatedly held that the John Doe proceeding was designed as an investigatory tool to be used as an "inquest for the discovery of crime." Washington, 83 Wis. 2d at 822. Denying John Doe judges the ability to issue search warrants would seriously reduce the investigatory power of the John Doe proceeding. Id. at 735 (citations omitted). ¶252 The warrants and fact that subpoenas a for John Doe documents judge does may not issue mean search that the Fourth Amendment has no application in a John Doe proceeding. On the contrary, special vigilance on the part of a John Doe judge may be required. ¶253 The documents initiating a John Doe investigation "need not name a particular accused; nor need it set forth facts sufficient to show that a crime has probably been committed. The John Doe is, at its inception, not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime . . . ." Washington, 83 Wis. 2d at 822. Because the threshold for commencing a John Doe investigation is relatively low, a John Doe judge is responsible for limiting its scope to prevent the investigation from getting out of hand. This is why "The John Doe investigation is essentially limited to the subject matter of the complaint upon which the John Doe is commenced. The John Doe judge has no authority to ferret out crime wherever he or she thinks it might exist." Id. a district attorney's use of a John Doe is limited. 38 Likewise, No. ¶254 This particularly subpoenas. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp limitation relevant to on the the scope scope of of the search John Doe warrants is and In Custodian of Records v. State, 2004 WI 65, ¶34, 272 Wis. 2d 208, 680 N.W.2d 792, a John Doe case, this court observed: [D]oes the issuance of a subpoena in a John Doe proceeding, the sole purpose of such proceeding being to investigate alleged criminal activity, have the potential to affect Fourth Amendment rights? The issue of whether the subpoena is overbroad and oppressive, and thus unreasonable, was raised by [the head of the Legislative Technology Services Bureau (LTSB)]. This is a Fourth Amendment concern. Hale v. Henkel, 201 U.S. 43, 71 (1906) (noting that a subpoena duces tecum may implicate Fourth Amendment rights). ¶255 The court ultimately concluded, following the two-step test set out in Katz v. United States, 389 U.S. 347 (1967), that there was a reasonable expectation of privacy in the data stored on backup tapes in the LTSB and thus the subpoena was overbroad. Id., ¶43. The court added: When we examine whether the Fourth Amendment was violated, we determine whether the government intrusion was reasonable. Overly broad subpoenas typically are held unreasonable in that their lack of specificity allows the government to go on an indiscriminate fishing expedition, similar to that provided by a general warrant. Marron v. United States, 275 U.S. 192, 196 (1927); Boyd [v. United States, 116 U.S. 616, 625-26 (1886)]. As the United States Supreme Court has explained, a subpoena is "equally [as] indefensible as a search warrant would be if couched in similar [general] terms. Hale, 201 U.S. at 77. Custodian of Records, 272 Wis. 2d 208, ¶50. 39 No. ¶256 This also case involves individuals. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp involves many, many multiple unnamed additional parties but organizations it and One unnamed party writes of its subpoena: The scope of the subpoenas required——explicitly, implicitly, or in effect——all material of any kind that related in any way to the identified elections and to the identified individuals or entities. Other than naming organizations and individuals, there was no attempt to limit or to filter the material subpoenaed or to distinguish between potentially regulated speech and unregulated speech. ¶257 Another unnamed party declared in its brief: At no point does the subpoena seek to differentiate materials and documents which relate to the subject of the John Doe, to wit: the recall elections of 2011 and 2012, from other activities in which the movants were engaged during that period. The broad sweeping request demands production of all the specific items in the possession of the movant organizations and their representatives. ¶258 The subpoenas issued on or about October 1, 2013, are actually narrower than the search warrants issued in 2012, as described in the quoted material in ¶192 above. ¶259 To illustrate the breadth of the search warrants and subpoenas, the special prosecutor now has possession of every private e-mail sent by [———————————] or received by [——————————] between April 11, 2009, and July 31, 2012, together with other information demanded from certain internet service providers. The special prosecutor has [————————————] private e-mails for more than 20 months [——————————————————————————————————————————] and 19 months [——————————————————————————————————]——as a result of this John Doe investigation. 40 This does not include No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp information prosecutors obtained from government e-mail accounts that are alluded to in the record. ¶260 The includes substance of communications the with captured family e-mails members and inevitably personal friends, public officials and members of [————————] staff, party leaders and and other political allies, strategists, lawyers, professional acquaintances. health fundraisers, care contributors, providers, and other It is inconceivable that a public official [————————] would not subjectively expect a reasonable degree of privacy in his private e-mail accounts. 9 ¶261 The issue before us involves much more than [————————— —————] and the many other individuals and organizations directly affected by the search warrants and subpoenas. us is central to our time. people is government The issue before How much information about our entitled to obtain——without people's consent and perhaps without their knowledge? ¶262 The precedent set by this case has the potential to affect the privacy rights of millions of Wisconsin citizens. "Among online adults, 92% use email, with 61% using it on an average day." 10 Cell phones and smart phones are, of course, 9 Cf. United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) ("[A] subscriber enjoys a reasonable expectation of privacy in the contents of emails 'that are stored with, or sent or received through, a commercial ISP.'") (citation omitted). 10 See Kristen Purcell, Search and Email Still Top the List of Most Popular Online Activities, Pew Research Center Internet Project (Aug. 9, 2011), http://www.pewinternet.org/2011/08/09/search-and-email-stilltop-the-list-of-most-popular-online-activities. 41 No. ubiquitous in our 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp society, but countless communicate by e-mail and texting. capture——without notice——the communications not record the is substance of people The ability of government to substance dissimilar of numbers to telephone of our government non-aural wiretaps conversations. that The only difference is that wiretaps disclose the content of telephone conversations in real time. 11 ¶263 Concerns people engage political in about aspects campaigns, Amendment activities." The Supreme Court privacy "an of area are especially speech of the and critical association most fundamental when during First Buckley v. Valeo, 424 U.S. 1, 14 (1976). provided guidance in Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978), when it said: [I]n issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that "unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." Marcus v. Search Warrant, 367 U.S. 717, 729 (1961). Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude." Stanford v. Texas, 379 U.S. [476, 485 11 Wisconsin Stat. § 968.28 limits the interception of electronic communications without a court order under Wis. Stat. § 968.30. Court orders for interception may be obtained only for specified offenses ranging from homicide, felony murder, and kidnapping to soliciting a child for prostitution, Wis. Stat. § 968.28, and such orders may not exceed 30 days in duration without specific judicial extension. Wis. Stat. § 968.30(5). These statutory limitations and protections for interception do not appear to apply when search warrants are issued for past electronic communications that must be retrieved from electronic storage. 42 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp (1965)]. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material." Roaden v. Kentucky, 413 U.S. 496, 501 (1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authorizing the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts, it authorized the searchers to rummage among and make judgments about books and papers and was the functional equivalent of a general warrant, one of the principal targets of the Fourth Amendment. Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field. ¶264 The special violation attention Amendment freedoms. when of Fourth Amendment it has chilling a rights effect requires on First Cf. NAACP v. Alabama, 357 U.S. 449 (1958). ¶265 The search warrants and subpoenas in this case are so broad and so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison. 12 After all, the special prosecutor has access to thousands and 12 On Memorial Day weekend in 1972, an intelligence gathering team from Richard Nixon's Committee to ReElect the President broke into the Democratic National Committee's (DNC) headquarters at the Watergate complex in Washington, D.C. The operatives wiretapped the telephones of the chairman of the DNC and the executive director of the Association of State Democratic Chairmen. A member of the team also photographed certain documents. One phone tap did not work and the other yielded little information. When the burglars returned for a second visit, they were apprehended. Cf. Keith W. Olsen, Watergate: The Presidential Scandal That Shook America (2003). President Nixon was forced to resign, in part for attempting to cover up a burglary to gain political intelligence that he did not personally authorize. 43 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp thousands of electronic communications about the 2010 election, Act 10, the 2011-13 state budget, other legislation, all the recall elections employed in and them, the strategies [——————————], upcoming 2012 general election. Doe leaks out, as it and fundraising litigation, and the efforts then- As the substance of this John already has, the search warrants and subpoenas have an eerie similarity to SLAPP suits in a civil context. 13 to cost SLAPP suits have the effect, whether intended or not, defendants tremendous amounts of money, to extract privileged information from them, and to cause the defendants and others to withdraw from the political process out of fear of harassment. ¶266 The special prosecutor insists that he had probable cause for disputed. all his investigative efforts. This is sharply In any event, probable cause for a search warrant may be wholly devoid of probable cause that the recipient of the search warrant or subpoena or even the subject of the search warrant or subpoena has committed any crime. Rather, the supposed probable cause is that evidence that will aid in the conviction searched, of some crime particularly if will the 13 be found items to in be the place seized to be include "SLAPP is an acronym for Strategic Lawsuit Against Public Participation. Vultaggio v. Yasko, 215 Wis. 2d 326, 359, 572 N.W.2d 450 (1998) (Bradley, J., dissenting); Briggs v. Eden Council, 969 P.2d 564, 565 n.1 (Cal. 1999)." Lassa v. Rongstad, 2006 WI 105, ¶108 n.1, 294 Wis. 2d 187, 718 N.W.2d 673 (Prosser, J., dissenting). See also id., ¶161 n.10. 44 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp everything found at that place——here, the e-mail accounts of people who have been targeted. ¶267 This sort of probable cause must be weighed against the privacy being invaded by the search warrants and subpoenas. The special prosecutor has not been targeting terrorists mobsters who impose an imminent danger to society. or Covering up the breathtaking extent of the John Doe investigation through secrecy orders is highly problematic and cannot last. 14 ¶268 I conclude the following: 1. The search warrants and subpoenas issued on or about October 1, 2013, are invalid because they were presented by a special prosecutor who had none of the powers of a district attorney because his appointment was invalid. 2. The search warrants and subpoenas issued on or about October 1, 2013, were unconstitutionally overbroad because they covered a time period before recall elections were even contemplated, thereby exceeding the subject matter of the 14 The precise scope of a permissible secrecy order will . . . vary from proceeding to proceeding. However, as we observed in [State v. O'Connor, 77 Wis. 2d 261, 252 N.W.2d 671 (1977)], "[s]ecrecy of John Doe proceedings and the records thereof is not maintained for its own sake." Id. at 283. The policy underlying secrecy is directed to promoting the effectiveness of the investigation. Id. at 286. Therefore, any secrecy order "should be drawn as narrowly as is reasonably commensurate with its purposes." State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶61, 260 Wis. 2d 653, 688-89, 660 N.W.2d 260. 45 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp investigation; included all periods of exemption within the time period——246 lawful days——thereby First Amendment permitting secret activities; investigation lacked the level of of particularity required as to those things that might lawfully be seized; and improperly invaded the privacy of persons who were not suspects by seeking information virtually without limitation. 3. The search warrants and subpoenas issued in September and December 2012 were unconstitutionally overbroad, for the reasons stated in point 2, but especially because they dated back more than 21 months before recalls were contemplated, a period unrelated to the recall elections in 2011 and 2012, the purported subject of the John Doe. ¶269 Consequently, I would affirm the decision of Judge Peterson to quash the subpoenas and return seized property and expand his ruling to cover the search warrants and subpoenas issued in September and December of 2012. VI ¶270 Chapter 11 of the Wisconsin Statutes is the source of most Wisconsin finance. statutory law on the regulation of campaign Much of the chapter was created in 1974, Chapter 334, Laws of 1973, in the wake of the Watergate scandal. Various provisions have been revised over the years, but the 2011-12 version of the statutes contains a number of provisions that are suspect or unconstitutional. These will be discussed below. A 46 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶271 Section 11.01 sets out the definitions used in Chapter 11. Subsection (16) defines "political purpose," which Judge Peterson and the majority opinion deem critical to interpretation and enforcement of the chapter. ¶272 Section 11.01(16) reads in part as follows: (16) An act is for "political purposes" when it is done 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. 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, 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 include but are not limited to: "political purposes" 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. 2. The conduct of or attempting to influence an endorsement or nomination to be made at a convention of political party members or supporters concerning, in whole or in part, any campaign for state or local office. (b) A "political purpose" does not include expenditures made for the purpose of supporting or defending a person who is being investigated for, charged with or convicted of a criminal violation of state or federal law, or an agent or dependent of such a person. 47 the No. ¶273 "Political 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp purpose" is a very imprecise term, especially when it is defined by phrases such as "influencing the recall from or (Emphasis added.) making of (a) purposes' a in office of an individual." What does "influencing" mean? ¶274 Paragraph 'political retention provides include communication but that are which "Acts not which limited expressly are for 1. The to: advocates the election, defeat, recall or retention of a clearly identified candidate . . . ." (Emphasis added.) Plainly, the statute seeks to reach "acts" beyond express advocacy that "influence" elections. Consequently, there are no bright lines in the subsection, as drafted, leaving it so vague that it has the potential of chilling constitutionally permissible activity that permits no regulation. ¶275 The definition controversial for years. of "political purpose" has been The original definition, dating back to 1974, read, in part: "an act is for 'political purposes' when, by its nature, intent or manner it directly or indirectly influences or tends to influence voting at any election." ¶276 Attorney General Bronson La address this definition in an opinion. Follette was asked The Attorney General wrote: This section . . . evidences a legislative intent to restrict and regulate a broad scope of political activity, including that which may not be directly related to the electoral process. This sweeping effort to regulate First Amendment activity, in light of Buckley, may be constitutionally overbroad unless subject to narrow interpretation and application. 48 to No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp . . . . The Court adopted the standard of "express advocacy" of the election or defeat of a particular candidate as an acceptably narrow definition of activity subject to regulation. . . . . I am of the opinion that the "express" advocacy standard should be applied by the [State Elections] Board to all phases of political activity regulated under ch. 11. 65 Wis. Op. Att'y Gen. 145, 151-52 (1976). ¶277 The Elections Elections Board v. Board ran Wisconsin into trouble Manufacturers & in 1999 Commerce, in 227 Wis. 2d 650, 597 N.W.2d 721 (1999), in a dispute about express advocacy. The issue appeared again in Wisconsin Prosperity Network v. Myse, 2012 WI 27, 339 Wis. 2d 243, 810 N.W.2d 356. ¶278 When regulate the First government Amendment enacts activities criminal that do penalties not to constitute express advocacy, it is standing on perilous ground. B ¶279 The affidavit supporting the commencement of the John Doe twice cited Wis. Stat. § 11.26, entitled "Limitations on contributions." individual candidate contributions for governor to or the which the statute This statute limits campaign lieutenant is committee governor to of a $10,000, § 11.26(1)(a), and $1,000 to the committee of a candidate for state senator, § 11.26(1)(b). The statute limits contributions from a committee other than a political party or legislative campaign committee to the committee of a candidate for governor to 4% of the value of the disbursement level in the schedule 49 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp under Wis. Stat. § 11.31. amounts to committee $43,128. other Wis. Stat. § 11.26(2)(a). Wis. than a Stat. party § 11.31(1)(a). committee may This now However, a contribute only $1,000 to the committee of a candidate for state senator. Wis. Stat. § 11.26(2)(b). ¶280 The individual contribution limits in the statute for candidates for governor, lieutenant governor, and state senator were exactly the same in 2011-2012 as they were in 1975. Wis. Stat. § 11.26(1)(a) and (b) (1975-76). See If the limits on individual contributions to the committees of these candidates had kept pace with the buying power of our currency, the contribution limits at the start of 2011 would have had to be 4.42 times years the higher——i.e., limit on $44,201.67 contributions for from governor. a Over committee the to the committee of a candidate for state senator increased from $500 in 1975 to $1,000 in 2011, provided the candidate in 1975 had no primary. Wis. Stat. §§ 11.26(2)(b) and 11.31(1)(e). If the 1975 candidate had a primary, the maximum committee contribution for the election was $800. ¶281 Individual contribution limits have been consistently upheld beginning with acknowledged, however, contributions in Buckley, that financing 424 U.S. given "the political at 23-35. important campaigns, Buckley role of contribution restrictions could have a severe impact on political dialogue if the limitations prevent candidates and political committees from amassing resources necessary for effective advocacy." 21. Id. at Inasmuch as static contribution limits render contributions 50 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp today worth only 25 percent of their value 35 years ago, many candidates are forced to look for support from expenditures outside their own committees. C ¶282 Subsection (9) of Wis. Stat. § 11.26 important in relation to the contribution limits. is critically It provides: (9)(a) No individual who is a candidate for state or local office may receive and accept more than 65 percent of the value of the total disbursement level determined under s. 11.31 for the office for which he or she is a candidate during any primary and election campaign combined from all committees subject to a filing requirement, including political party and legislative campaign committees. (b) No individual who is a candidate for state or local office may receive and accept more than 45 percent of the value of the total disbursement level determined under s. 11.31 for the office for which he or she is a candidate during any primary and election campaign combined from all committees other than political party and legislative campaign committees subject to a filing requirement. ¶283 The practical effect of subsection (9) is that all political party committees may contribute no more than $700,830 directly to the campaign committee of a candidate for governor, nor more than $22,425 directly to the committee of a candidate for state senator, except for exempt contributions under Wis. Stat. § 11.26(13m). recall elections, However, in all actual elections, including every dollar received from a non-party committee reduces the amount that the candidate may receive from a party committee. ¶284 Political action committees collectively may contribute no more to a candidate for governor than 45 percent 51 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp of the schedule in Wis. Stat. § 11.31, namely, $486,090, or to a candidate for state senator, no more than $15,525, except for exempt contributions under Wis. Stat. § 11.26(13m). of this law is obvious. The effect Political party committees singularly or collectively and political action committees collectively are never permitted——at the same time——to give the maximum contributions allowed by law for regular election expenses. fact, some political action committees may be In precluded altogether from making a direct contribution to the committee of a candidate for governor or a candidate for state senator. ¶285 To illustrate, all non-party committees may contribute only $15,525 to a state senate candidate. Thus, only 15 political action committees may make the maximum contribution of $1,000 to the committee of a candidate for state senator. sixteenth committee is limited to $525. The The seventeenth committee and all other such committees cannot contribute at all. The contributions of these non-party committees must be reduced if party committees give more than $6,900. ¶286 Subsection (9) was challenged in the Wisconsin Supreme Court in Gard v. Wisconsin Wis. 2d 28, 456 N.W.2d 809 (1990). State Elections Board, 156 John Gard, running in a 1987 special election to fill a vacancy in the Assembly, won a hotly contested primary and a close general election. In the process, he received $7,607.32 more from political party committees than the total $11,213 from all committees permitted by subsection (9). He was prosecuted by the state elections board. 52 The No. petitioners argued 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp that Wis. Stat. § 11.26(9)(a) was unconstitutional on several grounds. First, [petitioners] claim that the aggregate limit on the amount of money committees may contribute to a candidate's campaign violates committee members' first amendment rights to political expression because it completely bars some committees from making even a symbolic expression of support evidenced by a contribution once the aggregate limit has been reached. Second, they argue that the aggregate limit on committee contributions is, in effect, a limit on the candidate's ability to spend, which impermissibly burdens a candidate's freedom of speech guaranteed by the first amendment under Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976). Third, they assert that the statute impermissibly burdens freedom of association also guaranteed by the first amendment by encouraging individuals to disassociate themselves from committees. Fourth, petitioners argue that the statute imposes a greater burden on the first amendment rights of committees than it does on the first amendment rights of individuals in violation of the equal protection clauses of the United States and Wisconsin Constitutions. Petitioners also assert that the statute imposes a greater burden on the first amendment rights of committees who contribute "late" in a campaign than on committees who contribute "early" in a campaign in violation of equal protection guarantees. Id. at 36. ¶287 This court upheld subsection (9) of the 1974 statute, holding that the state had a compelling interest, namely, to prevent corruption or the appearance of corruption, and that the provision was narrowly tailored to accomplish this objective. ¶288 The effect of the Gard decision has been to weaken political engage in parties issue and to advocacy encourage spending 53 non-party on committees campaigns, instead to of No. making direct, 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp reportable contributions to candidates. This dynamic has been recognized for decades. ¶289 More recently, however, subsection (9) has come under significant scrutiny. Judge Rudolph Randa In September 2014, United States District entered enforcing subsection (9). an order enjoining the GAB from CRG Network v. Barland, 48 F. Supp. 3d 1191 (E.D. Wis. Sept. 5, 2014). Judge Randa noted that the Supreme Court has demonstrated "increasing impatience" with the type of statutes "'prophylaxis-upon-prophylaxis' such as Wis. Stat. § 11.26(9), approach" and created that the by other provisions in place to prohibit unlawful circumvention of the base contribution limit rendered subsection (9) unnecessary and unconstitutional. Id. at 1195-96. Following the issuance of Judge Randa's order, the GAB issued a press release stating it would not seek enforcement of subsection (9). Mike B. Wittenwyler & Jodi E. Jensen, Decoding the Maze: Wisconsin's Campaign Finance Laws, 87 Wis. Law. 22, 25 (Oct. 2014). D ¶290 Subsection (4) of § 11.26 reads: No individual may make any contribution or contributions to all candidates for state and local offices and to any individuals who or committees which are subject to a registration requirement under s. 11.05, including legislative campaign committees and committees of a political party, to the extent of more than a total of $10,000 in any calendar year. ¶291 Statutes limiting total contributions, as opposed to capping contributions to one candidate, were declared unconstitutional in McCutcheon v. Federal Election Commission, 54 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp 134 S. Ct. 1434 (2014). In short, Wis. Stat. § 11.26(4) is unconstitutional. ¶292 Many people have violated unintentionally, since its enactment. some violators criminally. subsection (4), often The State has pursued Cf. State v. Gardner, No. 2011CF137, Washington Cnty., Wis., Cir. Ct. (Apr. 11, 2011). ¶293 Important for this review is the fact that the Government Accountability Board insisted on enforcing Wis. Stat. §§ 11.26(4) and 11.26(9) MEMORANDUM from Kevin Committees Involved Kennedy's memo during recall to Interested Kennedy With also the Recall sought Efforts, to limit elections. Persons March the See 15, and 2011. exception contribution limits for certain recall expenses. to Wis. Stat. § 11.26(13m). E ¶294 The confusing, overall outdated, effect and of Wisconsin's sometimes complicated, unconstitutional campaign finance statutes is to compel candidates to depend increasingly upon expenditures by 501(c)(4) committees that engage in issue advocacy. 15 ¶295 The authorization expenditure special and is prosecutor consent independent of concedes [a] and 15 that candidate without committee," constitutionally "the an protected. This was especially evident in the 2011 Wisconsin Supreme Court election in which both candidates were bound by minimal contribution limits and tight spending limits because they accepted public funding. 55 No. However, the special 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp prosecutor "coordination" with constitutional protections, 'coordinated' a contends candidate fundraising that committee a committee's eliminates and that "there can between a candidate many never and a be truly independent third party." ¶296 In view of the above, the pivotal concern with application of Chapter 11's campaign finance laws is Wis. Stat. § 11.10(4). This subsection reads: (4) No candidate may establish more than one personal campaign committee. Such committee may have subcommittees provided that all subcommittees have the same treasurer, who shall be the candidate's campaign treasurer. The treasurer shall deposit all funds received in the campaign depository account. Any committee which is organized or acts with the cooperation of or upon consultation with 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. (Emphasis added.) ¶297 In evaluating the meaning of this provision, we must understand the definition of "committee" in Wis. Stat. § 11.01(4): "Committee" or "political committee" means 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. ¶298 Put absurdly committees together, overbroad. and these two provisions Committees legislative campaign 56 include are vague political committees. and party Committees No. include campaign members. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp committees Committees of include a candidate's political action fellow party committees of every description. The two sections create dire consequences for exercise candidates who the most fundamental political discourse with committees of the candidate's own party and with the candidate's most ardent allies. By fundamental discourse, I mean "cooperation," "consultation," "requests" for support, and "suggestions." ¶299 Any apply to person who coordination believes between that a the statute candidate and does his not state political party must understand that the special prosecutor has in his possession 39 months of emails from [———————————————————— ———————————————————————————————————————————————], secret search warrant. prosecutor Republican was not by Anyone who believes that the special interested candidates obtained in the in coordination state senate among recalls the would be mistaken. ¶300 Turning to non-party committees, how does Wis. Stat. § 11.10(4) apply to a candidate who answers a candidate questionnaire from a committee, which asks the candidate pointed questions on issues, then asks whether the candidate will accept an endorsement and campaign contributions? Surely, a non- judicial candidate is permitted to ask for financial support. ¶301 The "coordination" statute cannot be constitutional as written perfectly because normal it makes candidate, the candidate meeting with who behaves organizations as a and discussing plans, issues, and themes, run the intolerable risk 57 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp of impairing a committee that does no more than engage in issue advocacy. The subcommittee of committee the is neutered candidate's if committee because it cannot receive is because exceed the candidate's contribution limits. disqualified it made it a cannot The committee is and spend corporate dollars as a subcommittee of a candidate, and it cannot maintain the anonymity of its donors, as permitted by law, if it engages in issue advocacy that helps the candidate. ¶302 Under the statute as written, a candidate must surrender his First Amendment freedom to communicate if he is to prevent criminal liability. ¶303 A more carefully drafted statute might be able to pass constitutional muster. But circumstances of this case. regulators and special not this statute, in the And no statute can vest government prosecutors with broad discretion to decide whether First Amendment activities violate the law. ¶304 In my view, Wis. Stat. § 11.01(16) is unconstitutional if it is not limited to express advocacy; Wis. Stat. § 11.10(4) is unconstitutional as drafted; Wis. Stat. § 11.26(4) is unconstitutional; Wis. Stat. § 11.26(9) is unconstitutional; and Wis. Stat. § 11.26(13m) must be broadly interpreted under the circumstances facing Wisconsin in 2011-2012. As a result, the special prosecutor cannot sustain the theories of prosecutorion that served as the foundation for his John Doe investigation. ¶305 For the foregoing reasons, I respectfully concur in the decision to dismiss the John Doe investigation. 58 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp ¶306 I am authorized to state that 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. 59 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.dtp 1 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶307 ANNETTE KINGSLAND ZIEGLER, J. (concurring). During pre-dawn darkness in October 2013, several armed law enforcement officers using wearing bright flak jackets, floodlights carrying executed battering secret John warrants in the homes of Wisconsin residents. prosecution searching for? rams, Doe and search What was the The prosecution was in search of documents and electronic evidence, including personal computers and cell phones, to support alleged violations of Wisconsin's campaign finance law. been around for more The warrants sought evidence that had than four years. The warrants were executed shortly before morning, days after a judge signed them, while it was still dark outside. Law enforcement certainly has, and should have, a great deal of discretion when it comes to how and when a warrant will be executed, but ultimately courts may review the reasonableness of that execution. 1 ¶308 Because darkness, they commentators these are refer to searches essentially as a were what nighttime executed courts search. 2 in pre-dawn and legal Because no 1 "'[I]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by the warrant——subject of course to the general Fourth Amendment protection against unreasonable searches and seizures.'" State v. Sveum, 2010 WI 92, ¶53, 328 Wis. 2d 369, 787 N.W.2d 317 (alteration added in Sveum) (quoting Dalia v. United States, 441 U.S. 238, 257 (1979)) (internal quotation marks omitted). 2 For nighttime Propriety A.L.R. 5th a more comprehensive discussion of the law regarding searches, see Claudia G. Catalano, Annotation, of Execution of Search Warrants at Nighttime, 41 171 (1996). 1 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz Wisconsin law specifically addresses the legality of nighttime searches case, of private these homes, pre-dawn under searches the could existing raise questions whether they would pass constitutional muster. because no challenge has been made to facts of this as to I recognize that the execution of the warrants, the record is without explanation as to why the search warrants were executed as they were. State might have had a I also recognize that the legitimate reason for executing the search warrants pre-dawn in paramilitary fashion. ¶309 I join the majority opinion in all three cases. I write separately to explain that, even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness United States counterpart. 3 analysis Constitution of the and the Fourth Amendment Wisconsin to the Constitution's A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought. I. FUNDAMENTAL PRINCIPLES 3 "Even if a court determines that a search warrant is constitutionally valid, the manner in which the warrant was executed remains subject to judicial review." Sveum, 328 Wis. 2d 369, ¶53 (citing State v. Andrews, 201 Wis. 2d 383, 390, 549 N.W.2d 210 (1996)). 2 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶310 The Fourth Amendment "contain[s] two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause." v. New York, 445 U.S. 573, 584 (1980). Payton The Fourth Amendment's second clause provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." to the other clause, U.S. Const. amend. IV. "[t]he Fourth Amendment With respect to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463 (quoting U.S. Const. amend. IV; Wis. Const. art. 1, § 11). 4 4 The Fourth Amendment to the United States Constitution provides in full: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Article I, Section 11 of the Wisconsin Constitution states: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing (continued) 3 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶311 "'The touchstone reasonableness.'" State of v. the Fourth Tullberg, 2014 Amendment WI 134, ¶29, is 359 Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). state-initiated "'The Fourth Amendment does not proscribe all searches and seizures; those which are unreasonable.'" at 250). it merely proscribes Id. (quoting Jimeno, 500 U.S. "Constitutional reasonableness relates not only to the grounds for a surrounding Henderson, (citing search the search 2001 WI of v. seizure or 97, Tennessee determination or but seizure's ¶18, 245 Garner, to the circumstances execution." Wis. 2d 345, State 629 N.W.2d 613 471 U.S. 1, 8 is made by reference reasonableness v. (1985)). to "The the particular circumstances of each individual case, and balances the nature Fourth and quality Amendment of intrusion individual's governmental interests alleged to justify the intrusion." Id. marks omitted) the the the quotation against on of (internal interests the importance (citations omitted). In other words, "reasonableness" is "determined by balancing the degree to which a challenged action intrudes on an individual's privacy and the degree to which the action promotes a legitimate government interest." Green v. Butler, 420 F.3d 689, 694 (7th Cir. 2005) (citing United States v. Knights, 534 U.S. 112, 11819 (2001); Ohio v. Robinette, 519 U.S. 33, 39 (1996)). determines whether a search was reasonably A court executed the place to be searched and the persons or things to be seized. 4 by No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz considering "the totality of the circumstances." United States v. Banks, 540 U.S. 31, 35-36 (2003). A. Constitutional Protection of a Home ¶312 "The people's protection against unreasonable search and seizure in their 'houses' was drawn from the English commonlaw maxim, 'A man's home is his castle.'" Minnesota v. Carter, 525 U.S. 83, 94 (1998) (Scalia, J., concurring). long extolled the importance of the home, "Courts have noting that the [Fourth Amendment] was drafted in part to codify 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" State v. Scull, 2015 WI 22, ¶19, 361 Wis. 2d 288, 862 N.W.2d 562 (quoting Payton, 445 U.S. at 601). The United States Supreme Court has noted that "the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Payton, 445 U.S. at 585 (quoting United States v. United States District Amendment settings. Court, 407 protects U.S. the 297, 313 individual's (1972)). privacy in "The a Fourth variety of In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home——a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.'" at 589 (ellipses added in Payton). Id. "That language unequivocally establishes the proposition that '[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from 5 unreasonable governmental No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz intrusion.'" Id. at 589-90 (alterations added in Payton) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). 5 B. Nighttime Search of a Home ¶313 A nighttime search of a home conflicts with the fact that "[a] sanctity." (1962). home is entitled to special dignity and special Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626 "Searches of the dwelling house were the special object of this universal condemnation of official intrusion. search was the evil in its most obnoxious form." Nighttime Monroe v. Pape, 365 U.S. 167, 210 (1961) (Frankfurter, J., dissenting in part). "The Supreme Court has consistently recognized that a police search of a residence at night is a greater intrusion upon an individual's privacy interest than an ordinary search." United States v. Gibbons, 607 F.2d 1320, 1326 n.15 (10th Cir. 5 The Supreme Court has noted that a search of a cell phone or personal computer could carry some of the implications of a home search. The Court noted that "many [cell phones] are in fact minicomputers that also happen to have the capacity to be used as a telephone." Riley v. California, 573 U.S. ____, 134 S. Ct. 2473, 2489 (2014). Given the "storage capacity of cell phones," "a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form . . . ." Id. at 2489, 2491. In fact, some courts have required warrants to be more particular than just seeking all e-mails. See In re Applications for Search Warrants for Info. Associated with Target Email Accounts/Skype Accounts, No. 13-MJ-8163-JPO, 2013 WL 4647554, at *8 (D. Kan. Aug. 27, 2013) (holding that "the warrants proposed by the government violate the Fourth Amendment" because they did not particularly describe the emails to be searched). 6 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz 1979). In Jones v. United States, the Supreme Court stated that it was "difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home . . . ." Jones v. United States, 357 U.S. 493, 498 (1958); see also Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971) (describing a "midnight entry" of a home as an "extremely serious intrusion"); United States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978) (citations omitted) ("[T]he Fourth Amendment protects citizens' reasonable expectations of privacy . . . [and] one's reasonable expectation of privacy in the home is entitled to a unique sensitivity from federal courts."); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976) (citation omitted) (noting that "the sanctity of private dwellings[ is] ordinarily afforded the most stringent Fourth Amendment protection"). 6 ¶314 "At common law, prior to the adoption of the Fourth Amendment, there was a strong aversion to nighttime searches." United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3d Cir. 1968) (citations omitted). now primarily focused on "This aversion was then and is intrusions 6 into the home." United "Because the fourth amendment's proscriptions against unreasonable searches are virtually identical to those in art. I, sec. 11 of the Wisconsin Constitution, state law of search and seizure conforms to that developed under federal law." State v. Long, 163 Wis. 2d 261, 266, 471 N.W.2d 248 (Ct. App. 1991) (citing State v. Reed, 156 Wis. 2d 546, 551, 457 N.W.2d 494 (Ct. App. 1990)). See also State v. Tullberg, 2014 WI 134, ¶29 n.17, 359 Wis. 2d 421, 857 N.W.2d 120. 7 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz States v. Tucker, 313 F.3d 1259, 1263 (10th Cir. 2002) (citing Gibbons, 607 F.2d at 1326). with revulsion [at common "Nighttime searches were regarded law] because rousing people from their beds." of the indignity of Com. v. Grimshaw, 595 N.E.2d 302, 304 (Mass. 1992) (citing Com. v. DiStefano, 495 N.E.2d 328, 332 (Mass. App. Ct. 1986)). "The significance of this aversion of the common law to nighttime searches is underscored by the Supreme Court's reminder that the search and seizure clause is properly 'construed in the light of what was deemed unreasonable search and seizure when it was adopted.'" an Boyance, 398 F.2d at 897 (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)). When a home is invaded during pre-dawn darkness of night, special protections should apply because of the sanctity of a home. This is not to say that a home search can never occur in pre-dawn darkness, but when it does, that timing could be considered as a part of the totality of the circumstances reasonableness analysis of the Fourth Amendment. ¶315 Although Wisconsin does not have a statute directing that a judge must determine whether a nighttime search is justified, 23 states have statutory protections that allow a nighttime search authorization." (5th ed. 2014). only upon a "special showing and Wayne R. LaFave, Search and Seizure § 4.7(b) Similarly, the Federal Rules of Criminal Procedure implement the essentials of the Fourth Amendment by requiring that a warrant be served "during the daytime, unless the judge, for good cause expressly 8 authorizes execution at No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz another time." Fed. R. Crim. P. 41(e)(2)(A)(ii). 7 The federal rule and these 23 states recognize and codify Fourth Amendment protections seizures. Cir. 1978) against unreasonable nighttime searches and See United States v. Searp, 586 F.2d 1117, 1124 (6th (holding that provisions . . . explicate Federal Rule fundamental 7 41's purposes "night search of Fourth the The Federal Rules of Criminal Procedure require special justification for a nighttime search. Fed. R. Crim. P. 41(e)(2)(A)(ii). However, "'[d]aytime' means the hours between 6:00 a.m. and 10:00 p.m. according to local time." Fed. R. Crim. P. 41(a)(2)(B). Although this Federal Rule may have been technically complied with because the searches at issue might have begun a few minutes after 6:00 a.m., technical compliance with the Federal Rule does not automatically render these searches immune from constitutional scrutiny in this state court matter. While federal rules attempt to provide for consistency from state to state, courts have often taken a practical approach when defining "nighttime" for Fourth Amendment purposes. See Claudia G. Catalano, Annotation, Propriety of Execution of Search Warrants at Nighttime, 41 A.L.R. 5th 171 (1996). See also United States v. Palmer, 3 F.3d 300, 303 (9th Cir. 1993) (holding that Federal Rule of Criminal Procedure 41 did not apply because "[t]he investigation in this case was initiated and controlled by the local law enforcement officials involved"). In the case at issue, although the Special Prosecutor is a former Federal Prosecutor, his investigation of this matter was not in the federal system. This investigation was initiated and controlled by local law enforcement officials. 9 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz Amendment" (internal quotation marks omitted) (citation omitted)). 8 ¶316 When a court is confronted with a challenge to a search that is conducted in the pre-dawn darkness of night, it might consider whether the exigencies of the situation justify the greater intrusiveness of a search at this time. A court could look at factors including, but not limited to, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought. Law enforcement is certainly endowed with a great deal of discretion regarding how and when to execute a warrant, but ultimately a court could be called upon to review the reasonableness of that execution under a totality of the circumstances analysis. ¶317 Certainly, may be evident situation. the from necessity the facts of and immediate police circumstances action of the Warrant execution in some criminal matters, such as some human trafficking or drug cases, may militate in favor of a warrant being executed at night or in a forceful manner because 8 A violation of these rules may result in suppression of the evidence if the violation rises to constitutional proportion. See, e.g., United States v. Bieri, 21 F.3d 811, 816 (8th Cir. 1994) (citation omitted) ("We apply the exclusionary rule to violations of [the nighttime search provision of] Rule 41 only if a defendant is prejudiced or reckless disregard of proper procedure is evident."); see also United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997) (noting that a violation of Federal Rule of Criminal Procedure 41's nighttime search provision can be "of constitutional magnitude"). 10 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz the criminal activity is likely occurring at night, evidence may likely be lost if law enforcement waits, or dangerous activity is afoot. removal "It has been held that the danger of destruction or of execution the of evidence a is search sufficient warrant, reason in for part nighttime because such circumstances could even constitute exigent circumstances for a search without a warrant." omitted). Tucker, 313 F.3d at 1265 (citations See, e.g., United States v. Howard, 532 F.3d 755, 760-61 (8th Cir. 2008) (upholding a nighttime search because a confidential informant advised police that drug trafficking occurred in the home "during all hours of the night"); Fair v. State, 664 S.E.2d 227, 235 (Ga. 2008) (upholding a 1:15 a.m. search "because the officers knew from experience that the peak time for drug dealers to conduct business was after midnight"). Law enforcement needs a wide berth when determining how and when to execute circumstances, a warrant, the but execution under of the the totality warrant must of the still be reasonable in order to pass constitutional muster. II. THE TOTALITY OF THE CIRCUMSTANCES ¶318 With understanding Fourth that the Amendment record is principles not complete in mind, because no challenge has been made to the warrant execution, the following discussion will nonetheless endeavor to consider the timing of the issuance and execution of the warrants, the manner of execution, whether public or officer safety concerns existed, and what type of evidence was being sought. A. The Timing of the Issuance and Execution of the Warrants 11 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶319 In the case at issue, Investigator Dean Nickel obtained two secret John Doe warrants from Reserve Judge Barbara Kluka to search the homes of Unnamed Movants Nos. 6 and 7. The warrants Doe were obtained investigation. 9 in the course of a secret John Those warrants and their supporting affidavit did not set forth any particular time at which, or manner in which, the warrants would be executed. Unlike many warrants that must be executed at nighttime for fear of the evidence being destroyed or removed from the location or because of public or officer safety reasons, much of this evidence had been sitting on computers and in cyberspace for years. ¶320 This was not, as sometimes occurs, a situation where a judge was awoken in the middle of the night to issue a warrant because law enforcement needs to execute it promptly in order to seize the evidence. Reserve Judge Kluka signed the warrants at 11:30 a.m. on Monday, September 30, 2013. However, they were not executed until Thursday, October 3, 2013, at approximately 9 A John Doe proceeding, known as "John Doe I," was commenced in the spring of 2010 "for the purpose of investigating the alleged misuse of public resources in the Milwaukee County Executive's office." Majority op., ¶14. The John Doe I investigation "triggered a second John Doe proceeding (John Doe II), the investigation at issue here." Id., ¶15. 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. Id. On September 5, 2012, "Reserve Judge Kluka authorized the commencement of the John Doe [II] proceeding and also granted the requested secrecy order." Id., ¶17. 12 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz 6:00 a.m. 10 more than "A search warrant must be executed and returned not 5 days after the date of issuance." Wis. Stat. § 968.15(1). These warrants were executed three days after they were issued. "The return of the search warrant shall be made within 48 § 968.17(1). hours after execution . . . ." Wis. Stat. The warrants were returned on October 4, four days after they were issued and one day after they were executed. ¶321 The warrants were executed in the pre-dawn darkness. On October 3 civil twilight began in Madison at 6:29 a.m. and sunrise began at 6:57 a.m. 11 these searches was the For all practical purposes, each of equivalent of a nighttime search. Because no challenge to the warrant execution has been made, the record lacks any explanation as to why law enforcement did not execute the warrants any time during the preceding 66.5 hours—— or more specifically, the 29.5 daylight hours——between issuance and actual execution. 10 The return on the warrant to search Unnamed Movant No. 6's house, in a box titled "Recovery Date," reads "10/03/2013 06:15:00." Similarly, the return on the warrant to search Unnamed Movant No. 7's house, in a box titled "Recovery Date," reads "10/03/2013 6:03:13." The record does not indicate to what these times correspond. Media reports indicate that the searches lasted two and a half hours. See, e.g., Kittle, infra note 12. The record is unclear. 11 See U.S. Naval Observatory: Astronomical Applications Department, Sun and Moon Data for One Day, available at http://aa.usno.navy.mil/rstt/onedaytable?form=1&ID=AA&year=2013& month=10&day=3&state=WI&place=Madison (last visited June 13, 2015). 13 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶322 A nighttime search will often occur shortly after a judge has issued the warrant, as there is some urgency in needing to conduct the search in non-daylight hours. Courts often "dark" consider "nighttime" as the time when it is outside, between sunset and sunrise, between dusk and dawn, or when most people are Annotation, Propriety Nighttime, 41 asleep. of A.L.R. See Execution 5th 171 Claudia of G. Search (1996). Catalano, Warrants This at record, understandably, lacks any indication of why it was reasonable to execute these warrants in this manner, especially warrants had been issued three days earlier. since the The prosecution might have obtained the same evidence in the daylight by waiting a mere hour or two or by executing the warrants in any of the preceding daylight hours. Why did law enforcement execute these secret John Doe warrants days after obtaining them, in the predawn darkness, needing floodlights to illuminate the homes, and with such forceful presence? ¶323 While executed when there they may were, be reasons the why current the state warrants of the were record provides no indication that the prosecution "felt some exigency" so as to necessitate the execution of the warrants in the predawn darkness three days after the warrants were issued. United States v. Berry, 113 F.3d 121, 123 (8th Cir. See 1997) (upholding a 12:30 a.m. search for a large quantity of marijuana because the officers "obviously felt some exigency"). See also Harris, 324 F.3d at 606 (upholding a nighttime search performed two hours and 15 minutes after the warrant was issued); Tucker, 14 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz 313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113 F.3d at (holding 122 (same, that a 45 minutes); nighttime search Boyance, 398 performed 90 F.2d at minutes 897 after issuance of a warrant was unconstitutional because there was no indication that "the evidence within the house would be removed, hidden or destroyed before morning"). B. The Manner of Execution ¶324 Courts which warrants have are circumstances. also considered executed "The[se] as part search the of specific the warrants manner totality were of in the 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 "Deputies the seized targets' business homes." papers, Majority computer op., equipment, ¶28. phones, and other devices, while their targets were restrained under police supervision attorneys." and denied Id., ¶29. the ability to contact their While there may be reasons why the warrants were executed in the manner that they were, the record lacks any such explanation as the execution was not challenged. ¶325 Although not critical to my analysis, it is noting how some news outlets have described these searches. worth Had a hearing been held on the manner in which these searches were executed, it is uncertain whether the facts established in such a hearing would be consistent with these news reports or whether there is nonetheless "a legitimate government interest" in the execution of the searches. See Green, 420 F.3d at 694. 15 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶326 Reportedly, about an hour before sunrise, police "surrounded" the homes of Unnamed Movants Nos. 6 and 7 and "hit them with floodlights." 12 didn't have to. "Police didn't draw their guns. They Garish light blinded the groggy targets of the secret probe, startling neighbors. The uniforms, the lights, the early hour got everybody's attention." 13 "One of the targets [said] police threatened to use battering rams to break down the front door, but the targets let them in." 14 Each of these pre- dawn searches of the homes of Unnamed Movants Nos. 6 and 7 reportedly involved at least half a dozen sheriff's deputies and at least Attorney's one official Office. 15 from It has the Milwaukee been reported County District that deputies "[s]hout[ed] [] at the front door" 16 and, once inside, continued "yelling and running, into every room in the house." 17 12 M. D. Kittle, The day John Doe Rushed Through the Door, WisconsinWatchdog.org, Oct. 3, 2014, available at http://watchdog.org/174987/john-doe-raids-eric-okeefe. 13 Id. 14 Id. 15 The record is not clear as to why at least one representative from the Milwaukee County District Attorney's Office was on scene for the searches. The record is also unclear as to whether it is typical protocol for a Milwaukee County District Attorney's Office representative to be present when a search warrant is executed. 16 Rich Lowry, Politicized Prosecution Run Amok Wisconsin, National Review, Apr. 21, 2015, available http://www.nationalreview.com/article/417207/politicizedprosecution-run-amok-wisconsin-rich-lowry. 17 in at David French, Wisconsin's Shame: "I Thought It Was a Home Invasion", National Review, Apr. 20, 2015, available at (continued) 16 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶327 Other media outlets described the searches as follows: The early-morning paramilitary-style raids on citizens' homes were conducted by law-enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children's, were ransacked, cell phones were confiscated, and the citizens were told it would be a crime to tell anyone of the raids. 18 ¶328 At least one person who was subjected to a pre-dawn search of his or her residence reportedly described it as "a home invasion." 19 The targets of the pre-dawn searches have described these experiences as "terrifying" and "traumatic." 20 ¶329 Due to the terms of the John Doe secrecy order itself, the targets were instructed not to tell other people about the searches. The search warrants stated: "This John Doe search warrant is issued subject to a secrecy order. court, pursuant to a secrecy order that By order of the applies to this proceeding, you are hereby commanded and ordered not to disclose to anyone, other than your attorney, the contents of this search warrant and/or warrant. the Violation fact of that this you have secrecy received order is this search punishable as http://www.nationalreview.com/article/417155/wisconsins-shame-ithought-it-was-home-invasion-david-french. 18 George Will, Done in by John Doe, National Review, Oct. 25, 2014, available at http://www.nationalreview.com/ article/391130/done-john-doe-george-will. 19 French, supra note 17. 20 Id. 17 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz contempt of court." targets . . . received about the secrecy household." 21 Reportedly, verbal order instructions applying to "[m]ultiple from every investigators member of the Despite the language of the secrecy order, some have otherwise averred that the targets "were told not to tell their lawyers, or their friends, or their neighbors." 22 C. Public and Officer Safety Concerns ¶330 As part of the totality of the circumstances, courts have also considered whether safety concerns of the public or the officers justify the timing and the manner of a warrant's execution. is Although a paramilitary-style search in the darkness undoubtedly justified in some circumstances, the current state of this record provides no indication that Unnamed Movants Nos. 6 and 7 "posed an immediate threat to the safety of the officers attempting or to others," evade violent or dangerous." were arrest "actively by flight," resisting or were arrest or "themselves See Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005) (holding that these facts are important for determining whether a SWAT-type search was reasonable). In the present case, executing the warrants in paramilitary fashion during pre-dawn darkness arguably might have actually increased the risk of injury to the public or the officers. 21 See Bravo v. M. D. Kittle, Warrants Command John Doe Targets to Remain Silent, WisconsinWatchdog.org, May 14, 2015, available at http://watchdog.org/218761/john-doe-warrants-raids/. 22 Lowry, supra note 16 (emphasis added). 18 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz City of Santa Maria, 665 F.3d 1076, 1086 (9th Cir. 2011) ("SWAT officers' nighttime searches . . . both constitute much greater intrusions on one's privacy than ordinary daytime searches and carry a much higher risk of injury to persons and property."). ¶331 A "nighttime police intrusion pose[s] a great threat to privacy, violate[s] the sanctity of home, and endanger[s] the police and slumbering citizens." Grimshaw, 595 N.E.2d at 304 (citing 2 W.R. LaFave, Search and Seizure § 4.7(b), at 266 (2d ed. 1987)). safety In the present case, whether any public or officer concern justified the pre-dawn searches because the execution was not challenged. Colonna, nighttime 360 search involvement concerned F.3d 1169, because with citizen law 1176 of (10th the that [the Cir. the unknown Cf. United States v. 2004) defendant's enforcement, is (upholding "prior expressed defendant] would a extensive fear of a retaliate violently, and the presence of children in the vicinity" during the daytime). D. The Evidence ¶332 I turn now to the nature of the evidence being sought. This case is not one where the alleged crime is occurring at night during the search. This is not a drug or human trafficking investigation where it is apparent that the evidence of the crime may no longer be present at the search location if the warrants are not executed promptly. The circumstances of this case do not plainly suggest that waiting until daybreak would have posed a safety risk to the public or officers. 19 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶333 These pre-dawn searches sought, among other things, electronic evidence, including e-mails and communications stored on cell phones and personal computers. 23 The search warrants sought information from March 1, 2009, to September 30, 2013, the date that the warrants were issued. This evidence, which seemingly had been around for years and likely otherwise exists in cyberspace, did not appear to be "volatile" and no reason is readily apparent to explain why executing the warrants in a more traditional manner, by far less forceful means, would pose any "risk of personal injuries and property damage." See Tucker, 313 F.3d at 1266 (upholding a nighttime search because "there was not just risk of destruction of the evidence but also risk of personal injuries and property damage due to the volatile nature of the chemicals and the process of methamphetamine manufacture"). ¶334 While not jugular to the totality of the circumstances analysis, "danger morning. it of seems that destruction this or See id. at 1265. electronic removal" evidence from the was homes not in before The process of erasing a file on a personal computer "is time consuming and does not wipe out all 23 From Unnamed Movant No. 6's home, law enforcement officers seized tax records, check stubs, invoices, a binder containing documents, a box of documents, an external hard drive, and a laptop computer. From Unnamed Movant No. 7's home, officers seized three cell phones, three external hard drives, two computer towers, two laptop computers, two Apple iPods, a document folder, three compact discs, a thumb drive, a voice recorder, bank stubs, personal pocket calendars, and financial records. 20 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz data." 24 erase. A cell phone's files may likewise be difficult to "Smartphone forensics experts can retrieve just about anything from any phone," "whether or not a user deleted it from phone." 25 their In fact, the affidavit in support of the warrants to search the homes of Unnamed Movants Nos. 6 and 7 seemed to recognize that the evidence was not at risk of being destroyed, even if deleted. "computer files or The affidavit itself declared that remnants of such files can be recovered months or even years after they have been downloaded onto a storage medium, deleted, or viewed via the Internet." (Emphases added.) ¶335 Even if the computers and cell phones had been totally destroyed, Unnamed investigators Movants Nos. 6's still and could 7's have e-mail sought messages to from obtain third parties, such as Internet service providers or e-mail service providers. 26 Wisconsin law expressly authorizes subpoenas and search warrants to be issued to such third parties. Stat. § 968.375. See Wis. Milwaukee County prosecutors have used these 24 Christine Galves & Fred Galves, Ensuring the Admissibility of Electronic Forensic Evidence and Enhancing Its Probative Value at Trial, 19 Criminal Justice Magazine 1 (Spring 2004), available at http://www.americanbar.org/ publications/criminal_justice_magazine_home/crimjust_cjmag_19_1_ electronic.html. 25 David Goldman, How Police Can Find Your Deleted Text Messages, CNN Money, May 22, 2013, available at http://money.cnn.com/2013/05/22/technology/mobile/smartphoneforensics/. 26 Galves, supra note 24. 21 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz techniques in recent prosecutions of a somewhat similar nature. See State v. Rindfleisch, 2014 WI App 121, 359 Wis. 2d 147, 857 N.W.2d 456 (holding that search warrants, which required Google Inc. and Yahoo Inc. to provide evidence from the defendant's personal e-mail messages, were sufficiently particular). ¶336 In fact, previously during this very John Doe investigation, the State did obtain Unnamed Movants Nos. 6's and 7's e-mails from their e-mail service providers. Specifically, on September 5, 2012, the same day that Reserve Judge Kluka commenced this John Doe investigation, she signed a warrant requiring Yahoo Inc. to supply information from Unnamed Movant No. 6's Yahoo e-mail account. Also on September 5 Reserve Judge Kluka signed a similar warrant requiring Charter Communications Inc. to provide information from Unnamed Movant No. 7's Charter e-mail account. Each of these warrants required the production of, inter alia, "[t]he contents of all communications stored in the E-mail accounts for the subscriber(s) . . . , including all emails stored in the account, whether sent from or received in the account, including any 'chat or instant messaging,' as well as e-mails held in a 'Deleted' status," from April 1, 2009, to July 1, 2012. Yahoo and Charter complied with the warrants within six weeks and two weeks, respectively. Thus, at least some of the evidence that the prosecution hoped to obtain by searching the homes of Unnamed Movants Nos. 6 and 7 in October 2013 could evidence very that well Yahoo have and been Charter September 2012 search warrants. 22 duplicative produced of the pursuant e-mail to the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶337 While not required, another avenue of obtaining evidence may have existed through subpoenas duces tecum, which could have been served on Unnamed Movants Nos. 6 and 7 as an alternative to their homes. the pre-dawn, paramilitary-style See Wis. Stat. § 968.135. were issued on other Unnamed Movants. searches of In fact, such subpoenas Specifically, on the same day that Reserve Judge Kluka issued the warrants to search the homes of Unnamed Movants Nos. 6 and 7, she issued subpoenas duces tecum to the other six Unnamed Movants. These subpoenas duces tecum required the production of, inter alia, information regarding Unnamed Movants Nos. 6 and 7. Although law enforcement is not required to obtain information by subpoena instead of a warrant, the type of evidence being sought and the ways in which it may be obtained could possibly be of some significance in the totality of the circumstances test of reasonableness. ¶338 Milwaukee County Sheriff David A. Clarke, Jr. has been vocal in explaining his belief that it was unreasonable and unnecessary to execute these pre-dawn searches in the manner in which they were executed. He said, "[a] simple knock on the door by a couple of suit wearing investigators with . . . one uniform back-up [officer] to verify who they were was all that was necessary to execute this search warrant." 27 27 David French, Wisconsin's Shame: Sheriff Clarke Weighs In, National Review, Apr. 23, 2015, available at http://www.nationalreview.com/corner/417406/wisconsins-shamesheriff-clarke-weighs-david-french. 23 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz III. CONCLUSION ¶339 "Constitutional reasonableness relates not only to the grounds for a search or seizure but to the surrounding the search or seizure's execution." Wis. 2d 345, ¶18 determination of (citing Garner, reasonableness 471 is U.S. made by circumstances Henderson, 245 8). 28 at "The reference to the particular circumstances of each individual case, and balances the nature Fourth and quality Amendment of interests the intrusion against the on the individual's importance of the governmental interests alleged to justify the intrusion." Id. (internal quotation marks omitted) (citations omitted). idea of the police unnecessarily forcing their way "The into the homes in the middle of the night . . . rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a 'police state lacking in the respect for . . . the Constitution.'" right of privacy dictated by the U.S. Gooding v. United States, 416 U.S. 430, 462 (1974) (Marshall, J., dissenting) (quoting S. Rep. No. 91—538, p. 12 (1969)). 28 See State v. Henderson, 2001 WI 97, ¶3, 245 Wis. 2d 345, 629 N.W.2d 613 (recognizing that the Fourth Amendment reasonableness inquiry considers whether officers knocked and announced their presence before entry); see also United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (holding that "a nighttime intrusion is one element in considering the reasonableness of the search"); State v. Jackson, 742 N.W.2d 163, 177 (Minn. 2007) (holding that "the search of a home at night is a factor to be considered in determining whether a search is reasonable under the Fourth Amendment"). 24 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz ¶340 I join the majority opinion in all three cases. I write separately to explain that even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness United States counterpart. analysis Constitution of the and the Fourth Amendment Wisconsin to the Constitution's A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought. ¶341 For the foregoing reasons, I respectfully concur. 25 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶342 SHIRLEY S. ABRAHAMSON, J. (concurring in part, dissenting in part). Nos. 2014AP296-OA: Original Action: Peterson 2014AP417-421-W: 2013AP2504-2508-W: ¶343 The related to counties. To Supervisory Writ & Appeal: Peterson Supervisory Writ & Review: Petitioners v. Peterson majority John Two Unnamed Petitioners v. Doe opinion decides proceedings three underway potential violations of different in five Wisconsin's finance law, Wis. Stat. ch. 11 (2011-12). 1 a Three Unnamed cases different These John Doe proceedings share a common objective: investigate share Schmitz v. single proceedings in John all Doe five judge, who counties, campaign The proceedings also was and assigned a single to the Special Prosecutor, who was appointed by the John Doe judge to conduct the investigation in all five counties. 2 ¶344 The John Doe cases were consolidated for purposes of briefing and oral argument, but not for any other purpose. 3 1 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 2 See majority op., ¶¶17-27. 3 The order consolidating the cases for purposes of briefing and oral argument is dated December 16, 2014, and is attached hereto, along with my concurrence and that of Justice Prosser, as Exhibit A. 1 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Briefs have been filed. The court, over dissent, canceled oral argument. 4 ¶345 The majority opinion and concurrences in these John Doe cases resolve issues raised by the parties; issues raised by the court in its December 16, 2014, order (attached hereto as Exhibit A); and new issues not previously raised by the parties or the court. These writings have far-reaching implications, not just for the John Doe investigation underlying the instant cases but also for this state's electoral process, future John Doe proceedings, and criminal proceedings generally. ¶346 I begin by addressing the majority opinion. ¶347 Lest rhetoric of the the state clearly: length, majority convoluted opinion analysis, obscure its and overblown effect, let me The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment. In doing so, the majority opinion delivers a significant blow to Wisconsin's campaign finance law and to its paramount objectives of "stimulating vigorous campaigns on a fair and equal basis" and providing for "a better informed electorate." 5 ¶348 Disregarding the statutory text that the majority opinion professes to interpret, the majority opinion takes the 4 Oral argument was canceled in the three cases pursuant to an order entered by this court on March 27, 2015. That order, along with my dissent and that of Justice Prosser, is attached hereto as Exhibit B. 5 Wis. Stat. § 11.001(1). 2 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa absolutist position that Chapter 11 does not reach any issue advocacy and that any manner of government regulation of any issue advocacy contravenes the First Amendment. 6 Thus, within the realm of issue advocacy, the majority opinion's theme is "Anything Goes." 7 ¶349 But it is not just the letter of Wisconsin's campaign finance law that the majority opinion disregards. It also disregards the spirit of the law. 8 ¶350 The legislative declaration of policy set forth at Wis. Stat. § 11.001(1) provides that "[w]hen the true source of support or extent of support [for a candidate] is not fully disclosed, or when a candidate becomes overly dependent upon large private contributors, the democratic process is subjected to potential corrupting influence." To prevent such corrupting influence, the legislature has declared that "the state has a 6 See majority op., ¶¶10, 41, 50, 57, 66-67, 69. Issue advocacy is speech that pertains to issues of public concern and does not expressly advocate the election or defeat of a candidate. Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 456 (2007). In contrast, express advocacy is speech that expressly advocates the election or defeat of a candidate. Id. at 453. 7 "Anything Goes" is a song written by Cole Porter for his musical Anything Goes (1934). Many of the lyrics feature humorous (but dated) references to various figures of scandal and gossip in Depression-era high society. Many modern versions of the song omit the outdated lyrics, replacing them with present-day examples of social and political scandal. 8 For the importance of the spirit of the law, see Jackson County v. DNR, 2006 WI 96, ¶32, 293 Wis. 2d 497, 717 N.W.2d 713; State v. Dagnall, 2000 WI 82, ¶59, 236 Wis. 2d 339, 612 N.W.2d 680; Harrington v. Smith, 28 Wis. 43, 59 (1871). 3 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa compelling interest in designing a system for fully disclosing contributions and disbursements made on behalf of every candidate for public office. . . ." 9 ¶351 Despite these clear statements of legislative policy, the majority opinion holds that disbursements made on behalf of candidates need not be fully disclosed——indeed, they need not be disclosed at all——if such disbursements are made for issue advocacy. 10 ¶352 In opinion taking attempts this to underlying the instant opinion's unsupported, absolutist terminate cases the in ultra its vires position, the John investigation Doe infancy. majority The declaration majority that its resolution of the original action brought by two of the eight Unnamed Movants "ends the John Doe investigation" contradicts other aspects of the majority opinion and reveals the majority opinion's blatant attempt to reach its desired result by whatever means necessary. 11 9 Wis. Stat. § 11.001(1) (emphasis added). 10 See majority op, ¶¶50, 57, 66-67. 11 See majority op., ¶¶11, 76. The majority opinion fails to acknowledge that the Special Prosecutor is pursuing multiple theories of criminal activity, not all of which revolve around issue advocacy. For example, the Special Prosecutor states that the John Doe investigation is premised in part "on a reason to believe that certain express advocacy groups who had filed sworn statements indicating they acted independently of certain campaign committees" did not in fact act independently. Despite the majority opinion's invalidating the Special Prosecutor's issue-advocacy-based theory of criminal activity, this express-advocacy-based theory lives on. (continued) 4 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶353 According to the United States Court of Appeals for the Seventh Circuit, no opinion of the United States Supreme Court or a federal court of appeals has established that the First Amendment forbids regulation of, or inquiry into, coordination between a candidate's campaign committee and issue advocacy groups. 12 In repeatedly and single-mindedly declaring a rule that federal case law has declined to adopt, the majority opinion betrays its result-oriented, agenda-driven approach. ¶354 If the majority opinion succeeds in terminating the John Doe investigation, the majority opinion will deny the people of this state the opportunity to determine once and for The majority opinion also fails to acknowledge that the original action was brought by only two Unnamed Movants. It seems the Special Prosecutor's investigation of individuals and organizations that are not parties to the original action is not affected by this court's decision in the original action. See Madison Teachers, Inc. v. Walker, 2013 WI 91, ¶20, 351 Wis. 2d 237, 839 N.W.2d 388 (holding that a declaratory judgment was binding only insofar as the parties to the lawsuit were concerned; a declaratory judgment is not the equivalent of an injunction binding on the defendant state officers). Indeed, the majority opinion and concurring opinions imply that the original action does not bind the other Unnamed Movants by deciding the second and third John Doe cases within the John Doe trilogy. If the majority opinion's decision in the original action disposes of the John Doe investigation in its entirety, why address the other John Doe cases? 12 See O'Keefe v. Chisholm, 769 F.3d 936, 942 (7th Cir. 2014). For discussions of the constitutionality of regulating coordinated issue advocacy, see Brent Ferguson, Beyond Coordination: Defining Indirect Campaign Contributions for the Super PAC Era, 42 Hastings Const. L.Q. 471 (2015); Richard Briffault, Coordination Reconsidered, 113 Columbia L. Rev. Sidebar 88 (2013); Bradley A. Smith, Super PACs and the Role of "Coordination" in Campaign Finance Law, 49 Willamette L. Rev. 603 (2013). 5 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa all whether the targets of the John Doe investigation are guilty of systematically violating Wisconsin's campaign finance law through undisclosed campaign coordination. ¶355 I write separately to provide an objective, precedentbased analysis of the statutory and constitutional issues presented in the John Doe cases. ¶356 I note at the outset that the statutory and constitutional issues presented in the John Doe cases do not include whether the subpoenas and search warrants issued by the John Doe judge were unconstitutionally overbroad or executed in an unconstitutional manner. ¶357 The parties did not raise these issues and this court did not seek comment on them. 13 briefed by others. some parties and These issues have not been have not been fully briefed by Nevertheless, these issues are discussed at length in the separate writings by Justices Prosser and Ziegler. ¶358 Justice Prosser declares that he is writing on Issue 14. Issue 14 addresses whether there was probable cause for the search warrants issued in the John Doe proceedings. does not warrants, concern does not the breadth concern or execution subpoenas, and is of Issue 14 the limited search to two Unnamed Movants (not five individuals, as Justice Prosser states in ¶201 of his concurrence). Issue 14 asks the parties to address the following issue: 13 See items 1-14 in this court's order dated December 16, 2014 (attached hereto as Exhibit A), setting forth the questions this court accepted for review. 6 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 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. 14 ¶359 Justice Ziegler makes no similar attempt to tether her analysis to the issues this court accepted for review. ¶360 I turn now to my analysis of the three John Doe cases, which I address in three separate sections of this writing. I summarize my discussion and conclusions in each of the three cases as follows: ¶361 The First Case. This case is an original action filed by Unnamed Movants 6 and 7 against the John Doe judge and the Special Prosecutor. 15 ¶362 Two See ¶¶389-507, infra. issues of law are presented in the original action. ¶363 First is whether Chapter 11 requires a candidate's campaign committee to report certain coordinated disbursements as contributions received by the candidate or candidate's campaign committee——namely, coordinated disbursements made for issue advocacy purposes. Under Chapter 11, a disbursement is coordinated if it is made by a third party "for the benefit of a 14 See this court's December 16, hereto as Exhibit A (emphasis added). 15 2014, order, attached I refer to the eight challengers to the John Doe proceedings as Unnamed Movants because that has been the parties' practice in briefing. In the case captions for two of the three John Doe cases, the Unnamed Movants are referred to as Unnamed Petitioners. 7 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa candidate" and "with the authorization, direction or control of or otherwise by prearrangement with the candidate or the candidate's agent." 16 ¶364 If Chapter 11 requires a candidate's campaign committee to report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee, then the second issue presented is whether this reporting requirement is consistent with the state and federal constitutions. ¶365 The majority opinion concludes that Chapter 11 does not require coordinated received a candidate's disbursements by the campaign for candidate or issue committee advocacy candidate's to as report any contributions campaign committee. The majority opinion further concludes that such a requirement would be unconstitutional. 17 ¶366 The majority opinion frequently refers to "independent groups," "independent organizations," and "independent advocacy organizations." I agree with the United States Court of Appeals for the Seventh Circuit that the word "independent" should be considered to be in quotation marks throughout 16 the John Doe Wis. Stat. § 11.06(4)(d). See also Wis. Stat. § 11.06(7) (describing independent disbursements as disbursements made by a committee or individual who "does not act in cooperation or consultation with any candidate or authorized committee of a candidate" and who "does not act in concert with, or at the request or suggestion of, any candidate or agent or authorized committee of a candidate"). 17 See majority op., ¶¶50, 57, 66-67. 8 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa cases "because the Special Prosecutor suspected that the group's independence is ostensible rather than real." 18 ¶367 I conclude that Chapter 11 does require a candidate's campaign committee to report coordinated disbursements for issue advocacy as contributions candidate's campaign received committee. by I the further candidate conclude or this reporting requirement is consistent with the First Amendment. ¶368 To regulates be clear: disbursements independent independent third I do for not issue parties. disbursements for conclude advocacy Chapter issue 11 that made does advocacy, even Chapter 11 by truly not reach when such supervisory writ disbursements are intended to influence an election. ¶369 The Second Case. This case is a petition filed by the Special Prosecutor in the court of appeals against the John Doe judge and the eight Unnamed Movants. The Special Prosecutor's writ petition seeks review of an order of the John Doe judge quashing subpoenas and ordering the return of property seized pursuant to search warrants. The order was based on the John Doe judge's conclusion of law that Chapter 11 does not regulate coordinated disbursements for issue advocacy. 19 The writ petition is before this court on multiple petitions for bypass. See ¶¶508-541, infra. ¶370 The majority opinion concludes that even if the John Doe judge misinterpreted and misapplied Chapter 11 and the First 18 O'Keefe, 769 F.3d at 937. 19 See majority op., ¶¶34-36, 97. 9 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Amendment when exercising his discretion to quash subpoenas and order the return of property seized pursuant to search warrants, a supervisory writ is not warranted. The majority opinion reasons that the Special Prosecutor has failed to prove that the John Doe judge violated a plain legal duty. ¶371 I conclude that the majority opinion misinterprets and misapplies the plain legal duty criterion for the issuance of a supervisory writ. 20 I conclude that correctly interpreting and applying the law is a plain legal duty. To properly exercise his discretion, the John Doe judge was required to correctly decide the question of law presented. This court can and should, in the exercise of its discretion, issue a supervisory writ to correct a John Doe judge's error of law when appellate review would provide no relief (or inadequate relief) for the harm caused by the error. Because the John Doe judge misinterpreted and misapplied the law and appellate review is not available, I would grant the Special Prosecutor's writ petition. ¶372 The Third Case. This case is a review of a court of appeals opinion and order denying a supervisory writ petition filed by Unnamed Movants 2, 6, and 7 against the John Doe judge, the chief judges of the counties in which the proceedings are underway, and the Special Prosecutor. ¶373 The petition for review See ¶¶542-554, infra. raises questions of law regarding the validity of the Special Prosecutor's appointment 20 See majority op., ¶97. 10 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa and the competency of the Special Prosecutor to conduct the John Doe investigation. ¶374 The majority opinion concludes that the court of appeals properly denied the three Unnamed Movants' writ petition because, like the Special Prosecutor in the second case, the three Unnamed Movants have failed to prove that the John Doe judge violated a plain legal duty. 21 ¶375 I agree with the majority opinion's affirmance of the court of appeals order denying the writ petition. I conclude, however, that the court of appeals can, should, and did properly decide the issues of law presented in the Unnamed Movants' writ petition. To properly exercise his discretion, the John Doe judge was required to correctly decide these questions of law. 22 ¶376 Three Additional Issues. Finally, there are three issues presented in this litigation that are relevant to the John Doe trilogy as a whole. I discuss these three issues in my analysis of the first case (the original action). ¶377 First, several motions to file amicus briefs on the merits of the John Doe cases have been filed in this court. I join the majority opinion's decision to grant them all. ¶378 Second, the Special Prosecutor filed a motion seeking the recusal of certain named justices. amicus Neither briefs on the named the recusal justices issue nor 21 See majority op., ¶13. 22 See majority op., ¶¶105-106. 11 the Three motions to file have also court as been a filed. whole has No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa responded to the Special Prosecutor's recusal motion. The recusal motion and the amicus motions remain pending, and the due process concerns they raise remain unresolved. ¶379 Third, this court——over my dissent——ordered extensive redactions and sealing in these John Doe cases. 23 Even if some secrecy secrecy remains appropriate, the extent of the this court has imposed is unwarranted. ¶380 Despite my numerous dissents objecting to the level of secrecy imposed by this court in the John Doe trilogy, I have endeavored orders. to adhere to this court's sealing and redaction The same cannot be said for the majority opinion and the concurrences authored by Justices Prosser and Ziegler. ¶381 The majority opinion declares that "we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein." ¶14 n.11. See majority op., Justice Prosser's concurrence discusses the policy reasons underlying secrecy in John Doe proceedings, concludes that they are inapplicable to certain facts underlying the John Doe trilogy, and thus determines that "discussion of these facts is not inconsistent with the secrecy order." See Justice Prosser's concurrence, ¶145. ¶382 The majority opinion and Justice Prosser's concurrence decide that the secrecy order does not bind the justices of this 23 See this court's December 16, 2014, order and my concurrence thereto (attached as Exhibit A) and this court's March 27, 2015, order regarding redactions and my dissent thereto (attached as Exhibit C). 12 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa court. The secrecy order, in their view, binds only the parties and the public. ¶383 Because the majority of this court disregards its own secrecy order, Justice Prosser opines at length, without the benefit of briefs or facts, about allegedly overbroad search warrants and subpoenas. Moreover, he waxes eloquent about privacy and the limits that should be placed on search warrants seeking electronic eloquent about searches of material. privacy But rights electronic he and material has has that previously nevertheless he recognized waxed upheld raise substantial privacy concerns. 24 ¶384 Likewise, Justice Ziegler opines at length about the allegedly unconstitutional manner in which the search warrants were executed. She does so without the benefit of briefs or facts. ¶385 Both justices opine about issues not previously raised by the parties or the court without giving the parties an opportunity to brief or argue the facts or law relevant to those issues. ¶386 In my dissent to the court's redaction order dated March 27, 2015, I explained at length why this court had the power to disclose information that was ordered by the John Doe judge to be concealed. See my dissent to this court's March 27, 2015, (attached redaction order 24 hereto as Exhibit C). See State v. Subdiaz-Osorio, 2014 WI 87, ¶¶9-10, Wis. 2d 41, 849 N.W.2d 748; State v. Tate, 2014 WI 89, Wis. 2d 172, 849 N.W.2d 798. 13 This 357 357 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa court disagreed, stating the following in its March 27, 2015, redaction order: The John Doe investigation that is the subject of the several proceedings this court is reviewing remains an open investigation. While that may complicate how this court normally conducts its appellate review functions, the convenience of this court and the parties/counsel appearing before it does not provide a sufficient basis on which to ignore the statutory commands to maintain secrecy or the rules we have already established for maintaining the secrecy of John Doe materials. ¶387 It is unclear what has changed since this court issued its March 27, 2015, redaction order that enables the court to now exempt itself from the secrecy order. ¶388 For the reasons set 14 forth, I write separately. No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa No. 2014AP296-OA: Original Action: State of Wisconsin ex rel. Two Unnamed Petitioners v. Gregory A. Peterson, John Doe Judge, and Francis D. Schmitz, as Special Prosecutor ¶389 This original action was filed by Unnamed Movants 6 and 7, naming the Special Prosecutor and the John Doe judge as defendants. ¶390 Unnamed Chapter 11 Movants restricts 6 and campaign 7 seek finance a declaration regulation to that express advocacy and regulation of issue advocacy violates the United States and Wisconsin constitutions. ¶391 The majority opinion grants Unnamed Movants 6 and 7 their requested relief. ¶392 I conclude I would not. that coordinated disbursements for issue advocacy constitute regulated contributions under Chapter 11 and that such regulation does not violate the First Amendment. By coordinated disbursements, I mean disbursements made by third parties "for the authorization, benefit direction of or a candidate" control of and or "with otherwise the by prearrangement with the candidate or the candidate's agent." 25 By issue advocacy, I mean speech regarding issues of public concern that does not expressly advocate the election or defeat of a candidate. 26 25 See Wis. Stat. § 11.06(4)(d). See also § 11.06(7) (describing independent disbursements as disbursements made by a committee or individual who "does not act in cooperation or consultation with any candidate or authorized committee of a candidate" and who "does not act in concert with, or at the request or suggestion of, any candidate or agent or authorized committee of a candidate"). 26 Wis. Right to Life, 551 U.S. at 456. 15 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶393 Because I conclude that the Special Prosecutor has a valid legal theory to support his investigation, I would allow the John Doe proceedings to continue. ¶394 I address the statutory Accordingly, I dissent. and constitutional issues presented in this original action as follows: • In Part I, I describe the alleged election-related activities of Unnamed Movants 6 and 7 that are the subject of the John Doe investigation. • In Part II, I determine that the Special Prosecutor's theory of criminal activity is supported by Chapter 11. I disagree with the majority opinion's holding that coordinated issue advocacy, like independent issue advocacy, is beyond the reach of Chapter 11. • In Part III, I conclude that the Special Prosecutor's theory of criminal activity does not contravene the state or federal constitution. majority opinion's Prosecutor's Chapter 11 I disagree with the declarations interpretation unconstitutional of and that the Chapter that Special 11 renders a narrowing construction must be applied to prevent Chapter 11's invalidation. ¶395 In Part IV, I address three issues that are common to the three cases before the court: • In section A, I consider the motions to file amicus briefs regarding the merits of the three cases. join the majority opinion's all. 16 decision to grant I them No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa • In section B, I discuss this court's insistence on continued observance of the sweeping John Doe secrecy order to which the three John Doe cases are subject. In my view, the extent of secrecy mandated by the court is not warranted. • In section C, I consider the Special Prosecutor's motion requesting the recusal of certain justices from the John Doe cases. The recusal motion is still pending (including any due process concerns), as are three motions to file amicus briefs on the recusal issue. I ¶396 I cannot begin this writing with the usual recitation of facts. There have been no findings of substantive fact by a court or judge, nor stipulations of fact by the parties. 27 This 27 The only facts set forth in the petition and briefs filed by Unnamed Movants 6 and 7 are procedural in nature, regarding the appointment of the John Doe Judge and the Special Prosecutor and the issuance and execution of subpoenas and search warrants. Justice Ziegler's concurrence in the John Doe trilogy is based solely on unsubstantiated allegations made in the parties' briefs regarding the execution of the search warrants issued by the John Doe judge. Although there have been no findings or stipulations of fact regarding the execution of the search warrants, Justice Ziegler nevertheless writes at length to suggest that the execution of the search warrants rendered them unconstitutional under the Fourth Amendment. She states: "[E]ven if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment . . . ." Justice Ziegler's concurrence, ¶¶309, 340. This issue has not been litigated and is not, in my view, properly before this court. 17 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa dearth of facts is in sharp contrast to the undisputed facts underlying all prior original actions this court has accepted. 28 ¶397 Although election-related are not Unnamed Movants activities regulated by 6 alleged by Chapter 11, and the neither 7 claim Special their that the Prosecutor petition for leave to commence an original action nor their briefs in this court specify the election-related activities to which they are referring. ¶398 The Special Prosecutor's brief, on the other hand, sets forth information he has gathered regarding the electionrelated activities of Unnamed Movants 6 and 7, among others. On the basis of this information, the Special Prosecutor asserts that he has reason to believe that a particular candidate or candidate's campaign committee coordinated with one or more 501(c) nonprofit entities; that these 501(c) nonprofit entities made disbursements for issue ads in coordination with the candidate or candidate's campaign committee; that the ads were intended to benefit the candidate's campaign; and that the candidate's campaign committee unlawfully failed to report these 28 See Wis. S. Ct. IOP II.B.3. (May 4, 2012), which provides in relevant part as follows: The Supreme Court is not a fact-finding tribunal, and although it may refer issues of fact to a circuit court or referee for determination, it generally will not exercise its original jurisdiction in matters involving contested issues of fact. Upon granting a petition to commence an original action, the court may require the parties to file pleadings and stipulations of fact. 18 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa coordinated disbursements as contributions received by the candidate or candidate's campaign committee. 29 ¶399 According to the Special Prosecutor, the candidate and candidate's nonprofit operatives, campaign entities namely committee in large Unnamed coordinated part Movants with through 6 and 7. the two The 501(c) political Special Prosecutor contends that Unnamed Movants 6 and 7 were paid by the candidate's campaign committee and by one or more of the 29 The Special Prosecutor has a second and related theory based on Wis. Stat. § 11.10(4). Section 11.10(4) provides that a putatively separate committee that "acts with the cooperation of or upon consultation with 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." The Special Prosecutor asserts that coordination between various 501(c) entities and the candidate's campaign committee may have rendered one or more of the 501(c) entities statutory subcommittees, whose receipt of contributions and disbursement of funds are reportable by the candidate's campaign committee. Under this theory, the candidate's campaign committee violated Chapter 11 by failing to report issue advocacy disbursements made by a subcommittee of the candidate's campaign committee. The subcommittee theory is not as fully developed in the Special Prosecutor's brief as the theory set forth above. Because I conclude that the Special Prosecutor's primary theory is sufficient to support the continuation of the John Doe proceedings, it is unnecessary to decide whether the subcommittee theory does so as well. Accordingly, I do not address the subcommittee theory. I note, as well, that the John Doe judge determined that the Special Prosecutor offered no evidence of express advocacy. The Special Prosecutor disagrees. I do not address this factual dispute. 19 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 501(c) nonprofit entities. Thus, Unnamed Movants 6 and 7 are alleged to have acted in a dual capacity. ¶400 One of the Special Prosecutor's central allegations is that Unnamed Movants 6 and 7 created and managed a particular 501(c) nonprofit organization to run issue ads for the benefit of the candidate and the candidate's campaign, while the candidate asked donors to contribute to the 501(c) nonprofit organization instead of to the candidate's campaign committee in a blatant attempt contributions to to avoid candidates the and regulations their campaign governing committees. Further, says the Special Prosecutor, while the 501(c) nonprofit entities purchased Movants 6 and the issue ads, 7——controlled the their candidate——via content, Unnamed timing, and placement. ¶401 The "coordination" alleged by the Special Prosecutor thus includes consultation between the candidate, the candidate's campaign committee, Unnamed Movants 6 and 7, various 501(c) nonprofit entities, and associated individuals regarding the content, timing, and placement of issue ads. ¶402 The Special Prosecutor contends that the objective underlying this alleged coordination was to ensure that issue ads purchased maximum by benefit example, the 501(c) possible coordination to would nonprofit the entities candidate's ensure correct provided campaign. and the For consistent messaging in the issue ads purchased by the 501(c) nonprofit entities. 20 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶403 Such Chapter coordination 11's could contribution requirements. Untold also serve restrictions millions of to circumvent and dollars disclosure in undisclosed contributions could be funneled into a 501(c) nonprofit entity that purchases issue ads written or approved by a candidate or the candidate's campaign manager. contributors to that agreed have contribution divert to limits money to do "If campaigns tell potential the become nominally independent campaigns' porous, and groups bidding, the these requirement that politicians' campaign committees disclose the donors and amounts become useless." 30 ¶404 The Special Prosecutor contends in the instant case that coordination transformed the 501(c) nonprofit entities' disbursements for issue advocacy into reportable contributions to the candidate candidate's or campaign candidate's committee campaign failed to committee report, that the violating Chapter 11. 31 ¶405 At this stage in the John Doe proceedings, the Special Prosecutor need not prove that the 501(c) nonprofit entities in fact made coordinated disbursements for issue advocacy that were reportable by the candidate's campaign committee as contributions received by the candidate or candidate's campaign committee. Rather, this original action requires the court to determine only whether the Special Prosecutor has a valid legal 30 O'Keefe, 769 F.3d at 941. 31 See Wis. Stat. §§ 11.27 and 11.61(1)(b). 21 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa theory to support his investigation. If charges are eventually filed, only then will a court face the question of whether the alleged coordination took place. ¶406 According to the majority opinion, even if the alleged coordination took place, Chapter 11 does not regulate it, and thus the Special Prosecutor does not have a valid legal theory to support his investigation. The majority opinion allows a 501(c) nonprofit entity to work hand-in-glove with a candidate or candidate's campaign committee without violating Chapter 11 so long as the 501(c) nonprofit entity engages only in issue advocacy. ¶407 I address the statutory and constitutional issues presented in turn. II ¶408 The requires a first question candidate's disbursements by 501(c) presented campaign is whether committee nonprofit to entities Chapter report as 11 certain contributions received by the candidate or candidate's campaign committee—— namely, disbursements for issue advocacy made in coordination with the candidate or candidate's campaign committee. I conclude that it does. ¶409 Chapter 11 is not easy to read or understand. It has been described as "labyrinthian [sic] and difficult to decipher without a background in this area of the law." 32 Nevertheless, through careful reading and cognizance of certain fundamentals 32 Wis. Right to Life v. Barland (Barland II), 751 F.3d 804, 808 (7th Cir. 2014) (emphasis added). 22 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa of campaign finance deciphered. State law, Chapter 11 can and federal be courts have and has been successfully interpreted and applied its provisions in a number of cases. 33 ¶410 With that in mind, I turn to an examination of the provisions of Chapter 11 at issue in this original action. ¶411 As an initial matter, there is no dispute that under Wis. Stat. § 11.05(2g), a candidate's campaign committee is a "registrant" for purposes of Chapter 11. It is also undisputed that under Wis. Stat. § 11.06(1), "each registrant" must report all "contributions received" and all "disbursements made." ¶412 But what constitutes "disbursement" under Chapter 11? a "contribution" or Because the parties contest the proper interpretation of these words (and thus the scope of the reporting obligation to which a candidate's campaign committee is subject), I turn to their statutory definitions. ¶413 "Contribution" is defined as, among other things, "[a] gift, subscription, anything Stat. of loan, advance, value . . . made § 11.01(6)(a) for (emphasis or deposit political added). 34 of money purposes." or Wis. "Disbursement" 33 See, e.g., id. 34 Section 11.01(6)(a) reads in relevant part as follows: (6)(a) Except as provided in par. (b), "contribution" means any of the following: 1. 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. 23 is No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa defined as, among distribution, anything of other things, loan, advance, value . . . made "[a] deposit, for purchase, or gift political of payment, money purposes." or Wis. Stat. § 11.01(7)(a) (emphasis added). 35 ¶414 An act done "for political purposes" is defined by Wis. Stat. influencing § 11.01(16) the as election an or act "done nomination for for individual to state or local office . . . ." 35 the purpose election of of any (Emphasis added.) 36 Section 11.01(7)(a) reads in relevant part as follows: (7)(a) Except as provided in par. (b), "disbursement" means any of the following: 1. 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. 36 Section 11.01(16) reads in full as follows: (16) An act is for "political purposes" when it is done 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, 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, all administrative and overhead expenses for the (continued) 24 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa According to Unnamed Movants 6 and 7, the phrase "for the purpose of influencing [an] election," and thus the phrase "for political purposes," encompasses only express advocacy. The Special Prosecutor, on the other hand, contends that the phrase is broader and can encompass both express advocacy and issue advocacy. ¶415 The statutory definition of the phrase "for political purposes" specifically mentions express advocacy, stating: "Acts which are for 'political purposes' include but are not limited to . . . communication which expressly advocates the election, defeat, recall or candidate . . . ." 37 retention Thus, of there a clearly is no identified question 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. 2. The conduct of or attempting to influence an endorsement or nomination to be made at a convention of political party members or supporters concerning, in whole or in part, any campaign for state or local office. (b) A "political purpose" does not include expenditures made for the purpose of supporting or defending a person who is being investigated for, charged with or convicted of a criminal violation of state or federal law, or an agent or dependent of such a person. 37 Wis. Stat. § 11.01(16)(a). 25 that No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa disbursements made for express advocacy are made "for political purposes" within the meaning of Chapter 11. ¶416 But the statutory definition of the phrase "for political purposes" makes equally clear that its meaning is not limited to express advocacy. Section 11.01(16) states that acts for political purposes "include but are not limited to" express advocacy. It further candidate . . . all states that "[i]n administrative expenses . . . are deemed to be for the case and a of a overhead purpose." 38 political Administrative and overhead expenses are not advocacy at all, let alone express advocacy. ¶417 Thus, the contention by Unnamed Movants 6 and 7 and the conclusion of the majority opinion that contributions and disbursements are reportable under Chapter 11 only when they are made for express advocacy purposes do not square with the statutory language. ¶418 Nor does their position square with the function that issue advocacy may play in elections. An issue ad may seek to raise awareness about an issue generally or to inform voters of a candidate's position on an issue. The latter category of issue impressions 38 advocacy may influence voters' Wis. Stat. § 11.01(16). 26 of certain No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa candidates and may therefore influence elections. 39 Accordingly, I phrase conclude that the statutory definition of the "for political purposes" encompasses issue advocacy. ¶419 Not every issue ad, however, will benefit a particular candidate's campaign——even if it is intended to do so. When issue ads are developed independently of the candidate or the candidate's campaign duplicative or committee, the counterproductive issue from a advocacy "might candidate's be point of view." 40 ¶420 In coordination contrast, with the when issue candidate or ads the are developed candidate's in campaign committee, the disbursements made for such ads "are as useful to the candidate as cash . . . ." 41 For this reason, the United 39 As the United States Supreme Court has explained, "[c]andidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions." Buckley v. Valeo, 424 U.S. 1, 42 (1976). See also Wis. Right to Life, 551 U.S. at 456-57 (explaining that the distinction between express advocacy and issue advocacy may dissolve in practice because, as Buckley put it, "[c]andidates . . . are intimately tied to public issues" (quoting Buckley, 424 U.S. at 42)). 40 Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431, 446 (2001) (explaining why independent disbursements made for issue advocacy are "poor sources of leverage for a spender"). 41 Id. at 446 (explaining why coordinated expenditures are treated as contributions under federal law). (continued) 27 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa States Supreme Court has consistently expenditures as regulated contributions. 42 Supreme has Court not differentiated treated The coordinated United States between coordinated expenditures made for issue advocacy purposes and coordinated expenditures made for express advocacy purposes. The key factor for the Court has been coordination. ¶421 This brings me to the next relevant provision within Chapter 11: Wis. Stat. § 11.06(4). 43 This provision dictates This is a point the United States Supreme Court has made again and again. For example, in Buckley, 424 U.S. at 46, the Court stated that "expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution . . . ." Similarly, in McConnell v. Fed. Election Comm'n, 540 U.S. 93, 221-22 (2003), overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), the Court explained that "expenditures made after a 'wink or nod' often will be 'as useful to the candidate as cash.'" 42 See, e.g., McConnell, 540 U.S. at 214-15 (explaining that federal law "treats expenditures that are coordinated with a candidate as contributions to that candidate"); Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 611 (1996) (stating that contribution limits in federal campaign finance law apply not only to direct contributions but also to "coordinated expenditures," that is, indirect contributions); Buckley, 424 U.S. at 46 (providing that under federal law, "controlled or coordinated expenditures are treated as contributions rather than expenditures"). United States Supreme Court case law governing the constitutionality of campaign finance statutes discusses "expenditures," not "disbursements," because the word "expenditure" is used in federal law. The word "disbursement" is used in the Wisconsin statutes. 43 Section 11.06(4) provides in full as follows: (4) When transactions reportable. (a) A contribution is received by a candidate for purposes of this chapter when it is under the control of the candidate (continued) 28 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa when contributions are reportable by registrants. Two subsections are relevant here. ¶422 First, Wis. Stat. § 11.06(4)(a) declares as a general matter that a contribution is received by a candidate "when it is under the control of the candidate or campaign treasurer," or the candidate or treasurer accepts the benefit thereof. When a contribution is so received, it becomes reportable. or campaign treasurer, or such person accepts the benefit thereof. A contribution is received by an individual, group or committee, other than a personal campaign committee, when it is under the control of the individual or the committee or group treasurer, or such person accepts the benefit thereof. (b) Unless it is returned or donated within 15 days of receipt, a contribution must be reported as received and accepted on the date received. This subsection applies notwithstanding the fact that the contribution is not deposited in the campaign depository account by the closing date for the reporting period as provided in s. 11.20(8). (c) All contributions received by any person acting as an agent of a candidate or treasurer shall be reported by such person to the candidate or treasurer within 15 days of receipt. In the case of a contribution of money, the agent shall transmit the contribution to the candidate or treasurer within 15 days of receipt. (d) A contribution, disbursement or obligation made or incurred to or for the benefit of a candidate is reportable by the candidate or the candidate's personal campaign committee if it is made or incurred with the authorization, direction or control of or otherwise by prearrangement with the candidate or the candidate's agent. (e) Notwithstanding pars. (a) to (e), receipt of contributions by registrants under s. 11.05(7) shall be treated as received in accordance with that subsection. 29 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶423 Second, Wis. Stat. § 11.06(4)(d) declares that when a disbursement is made "for the benefit of a candidate," it "is reportable by the candidate or the candidate's personal campaign committee if it is made . . . with the authorization, direction or control of or otherwise by prearrangement with the candidate or the candidate's agent." (Emphasis added.) ¶424 Although Wis. Stat. § 11.06(4)(d) fails to explicitly state that coordinated disbursements are reportable by the candidate's campaign committee as contributions to the candidate or candidate's campaign committee, compelled by the statutory context. § 11.06(4) explicitly contributions. The govern clear the this interpretation is All other subsections of receipt implication is and reporting that of § 11.06(4)(d) governs the receipt and reporting of contributions. ¶425 This interpretation is also supported by common sense. Disbursements valuable to made the in coordination candidate as cash, with a candidate according to the are as United States Supreme Court, and are therefore treated as contributions under federal law. 44 The same logic applies here: Disbursements made "by prearrangement with the candidate or the candidate's 44 Buckley, 424 U.S. at 46. 30 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa agent" are as valuable to the candidate as cash and are therefore treated as contributions under Wisconsin law. 45 ¶426 In contrast, a disbursement made without prearrangement with a candidate or the candidate's agent is an independent disbursement, not a contribution to the candidate or candidate's campaign committee, and is governed makes clear, by different rules. 46 ¶427 As this discussion the words "contribution" and "disbursement" have distinct but intertwined meanings within Chapter 11. The Special Prosecutor's theory of criminal activity in the instant case relies upon the connection between the two. He argues that when a 501(c) nonprofit entity makes disbursements for issue advocacy in coordination with a candidate's reportable campaign by the committee, candidate's such disbursements campaign committee are as contributions received by the candidate or candidate's campaign committee. He further argues that he has reason to believe a 45 Wis. Stat. § 11.06(4)(d). See also Wis. Coalition for Voter Participation, Inc. v. State Elections Bd. (WCVP), 231 Wis. 2d 670, 681, 605 N.W.2d 654 (Ct. App. 1999) (explaining that both federal campaign finance regulations and Chapter 11 "treat expenditures that are 'coordinated' with, or made 'in cooperation with or with the consent of a candidate . . . or an authorized committee' as campaign contributions" (emphasis added)). The majority opinion apparently overrules WCVP to the extent that WCVP implies that the definition of the phrase "for political purposes" in Chapter 11 extends beyond express advocacy and its functional equivalent. See majority op., ¶68 n.23. 46 See, e.g., Wis. Stat. § 11.06(2) (providing that independent disbursements are reportable only if they are for express advocacy purposes). 31 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa particular candidate's campaign committee is guilty of violating Chapter 11 by failing to fulfill this reporting obligation. 47 ¶428 For the reasons set forth, the Special Prosecutor's theory of underlying criminal this activity original in the action has John a Doe sound proceedings basis in the statutory text. ¶429 Because I agree with the Special Prosecutor that Chapter 11 requires a candidate's campaign committee to report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee, I now consider whether this interpretation constitutionally permissible. of Chapter 11 is As might be expected, the Special Prosecutor says it is, while Unnamed Movants 6 and 7 and the majority opinion say it is not. III ¶430 Two constitutional original action. that a are presented in this The first is whether Chapter 11's requirement candidate's disbursements questions for campaign issue committee advocacy as report coordinated contributions to the candidate or candidate's campaign committee violates the First Amendment. that The second is whether the provisions of Chapter 11 impose the reporting requirement 47 at issue are See Wis. Stat. § 11.27(1) (providing that "[n]o person may prepare or submit a false report or statement to a filing officer under this chapter"); Wis. Stat. § 11.61(1)(b) (stating that "[w]hoever intentionally violates . . . 11.27(1) . . . is guilty of a Class I felony if the intentional violation does not involve a specific figure or if the intentional violation concerns a figure which exceeds $100 in amount or value"). 32 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa unconstitutionally vague or overbroad. requirement whether at the issue contrary provisions unconstitutionally questions. 48 is Whether the reporting to the imposing vague or First that overbroad Amendment requirement are and are interrelated I address these questions in turn. ¶431 The absolutist constitutional position advanced by Unnamed Movants 6 and 7 and adopted by the majority opinion hook, line, and sinker is that the First Amendment bars the State from regulating any issue advocacy in any manner. their view, regulation whether of the the First Amendment disbursements disbursements for are protects issue made advocacy against In state regardless independently or of in coordination with a candidate or candidate's campaign committee. I disagree. ¶432 The majority opinion's rhetoric would lead the reader to conclude that the case law provides a clear answer to the First Amendment issue before the court, namely that the Unnamed Movants' position is correct and that the Special Prosecutor's position "is unsupported in either reason or law." 49 The majority opinion's view contradicts the views expressed by both the John Doe judge and the United States Court of Appeals for the Seventh Circuit. 48 Center for Individual Freedom v. Madigan, 697 F.3d 464, 479 (7th Cir. 2012) ("In the First Amendment context, vagueness and overbreadth are two sides of the same coin . . . ."). 49 Majority op., ¶11. 33 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶433 The John Doe judge observed that the First Amendment question presented in this considerable litigation." 50 original action has "spawned It is, he explained, "an important question" that deserves, but does not yet have, "a definitive answer." 51 ¶434 Similarly, in O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015), the Seventh Circuit Court of Appeals made it perfectly clear that the Special Prosecutor's theory is rooted in a live legal issue. The O'Keefe court stated that whether coordinated issue advocacy disbursements are regulable under the First Amendment is far from "beyond debate." 52 On the contrary, it explained: The Special Prosecutor's theory of criminal activity in the John Doe 50 In his November 6, 2014, order denying the two Unnamed Movants' motion to have the Special Prosecutor show cause why the John Doe investigation should not be ended, the John Doe judge stated: [T]here is a strong public interest in having the appellate courts answer the statutory question that is at the heart of this litigation: when Wisconsin's campaign finance laws prohibit coordination between candidates and independent organizations for a political purpose, does that political purpose require express advocacy? This is an important question that has spawned considerable litigation. The citizens of this state need and deserve a definitive answer. They will not get one if I grant the motion. This order was not publicly released. Other portions of the order refer to matters subject to the John Doe secrecy order. The above-quoted portion does not. 51 See the John Doe judge's November 6, 2014, order. 52 O'Keefe, 769 F.3d at 942. 34 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa investigation underlying this litigation interpretation of the First Amendment." 53 "reflects Buckley's Indeed, the O'Keefe court stated, "[n]o opinion issued by the 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." 54 ¶435 This statement in O'Keefe is particularly telling considering that the majority opinion relies heavily on a prior opinion of the same federal court of appeals: Wisconsin Right to Life, Inc. v. Barland (Barland II), 751 F.3d 804 (7th Cir. 2014). 53 Barland II does not render this original action an openId. at 941. 54 The relevant portion of the O'Keefe opinion provided in full as follows: Plaintiffs' claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician's campaign committee [the same claim asserted by Unnamed Movants 6 and 7 in this original action] has not been established "beyond debate." To the contrary, there is a lively debate among judges and academic analysts. The Supreme Court regularly decides campaign-finance issues by closely divided votes. No opinion issued by the Supreme Court, or by any court of appeals, establishes ("clearly" or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issueadvocacy groups——let alone that the First Amendment forbids even an inquiry into that topic. O'Keefe, 769 F.3d at 942. For discussion of whether coordinated issue advocacy is constitutionally protected, see, e.g., Ferguson, supra note 12; Briffault, supra note 12; Smith, supra note 12. 35 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa and-shut case, much as the majority opinion would like us to believe. ¶436 Like the John Doe judge and the Seventh Circuit Court of Appeals, I conclude that the constitutional presented has not yet been definitively resolved. question The answer must be deduced through careful analysis of a complex body of federal case law that has set forth principles governing the constitutionality of campaign finance statutes. In my view, this careful analysis reveals that Chapter 11's requirement that a candidate's advocacy campaign disbursements committee as report contributions coordinated received issue by the candidate or candidate's campaign committee does not violate the First Amendment. ¶437 The federal case law governing the constitutionality of campaign finance statutes, much like Chapter 11, presents a labyrinth that must be navigated. The starting point is Buckley v. Valeo, 424 U.S. 1 (1976), a long and complex opinion that considered whether various provisions of the Federal Election Campaign Act of 1971, as amended in 1974, were consistent with the First Amendment. ¶438 Buckley drew a distinction between contributions to candidates and their campaign committees, on the one hand, and independent expenditures for political expression, on the other 36 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa hand. 55 be It declared that under the First Amendment, ceilings may imposed on expenditures. 56 scrutinizing contributions but not on independent The Buckley Court reached this conclusion by the burdens imposed on political speech by contributions and independent expenditure limits, respectively, and by evaluating those burdens in light of the governmental interests such limits serve. 57 ¶439 The Buckley Court first determined that the burden imposed on political speech by contribution limits is minimal: "A limitation on the amount of money a person may give to a candidate or campaign organization restraint on his political [] involves communication, for little direct it permits the symbolic expression of support evidenced by a contribution but does not . . . infringe [on] the discuss candidates and issues." 58 contributor's freedom to The Court then declared that the government's interest in "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions" provides a 55 See generally Buckley, 424 U.S. at 14-23. See also Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 345 (2010) ("The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures."). 56 Buckley, 424 U.S. at 23-59. 57 Id. 58 Id. at 21. 37 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa "constitutionally sufficient justification" for this minimal burden. 59 ¶440 In independent contrast, expenditure the Buckley limits "impose Court direct declared and that substantial restraints on the quantity of political speech" that are not justified by the government's anti-corruption interest. 60 Unlike contributions, the Court explained, independent expenditures may [] provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. 61 ¶441 After upholding contribution limits and striking down independent expenditure limits, the Buckley Court turned to the constitutionality of disclosure requirements. such requirements are constitutionally It concluded that permissible as applied both to contributions and to independent expenditures made for express advocacy 59 that disclosure Id. at 39. 61 reasoning Id. at 25-26. 60 purposes, 62 Id. at 47. 62 As a matter of statutory interpretation (to avoid invalidation on vagueness grounds), the Buckley Court determined that the independent expenditure disclosure requirement applied only to independent expenditures made for express advocacy purposes, not to independent expenditures made for issue advocacy purposes. Buckley, 424 U.S. at 78-80. The Court did not so limit the contribution disclosure requirement. Id. at 78. 38 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa requirements impose no ceiling on political speech and are an effective explained, disclosure measure. 63 anti-corruption requirements Indeed, "appear to the be Court the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist." 64 ¶442 In all three regulatory contexts——that is, with regard to contribution limits, independent disclosure requirements——the eminently clear: Buckley Coordinated expenditure Court limits, made expenditures one and point constitute contributions to the candidate or candidate's campaign committee for purposes of federal law. More specifically, the Court held that federal law treats expenditures as contributions received by the candidate or candidate's campaign committee if the expenditures are prearranged or coordinated with the candidate or are "placed in cooperation with or with the consent of a candidate." 65 are in After all, the Court explained, these expenditures reality contributions are contributions." 66 "disguised subject to the limitations and Disguised disclosure requirements that govern all other contributions. 67 63 Buckley, 424 U.S. at 66. 64 Id. at 68. 65 Id. at 78. 66 Id. at 46-47. See also Ferguson, supra note 12, at 479 (explaining that the United States Supreme Court "continues to clearly signal that the line between contributions and expenditures depends on a spender's independence"). 67 Buckley, 424 U.S. at 46-47. 39 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶443 In declaring that coordinated expenditures constitute disguised contributions to the candidate or candidate's campaign committee, the Buckley Court did not specify whether it meant all coordinated expenditures or only made for express advocacy purposes. statement that coordinated coordinated expenditures The Buckley Court's broad expenditures constitute disguised contributions would seem to compel the conclusion that the type of advocacy such expenditures coordination is what matters. Special Prosecutor. implement is irrelevant; the This is the approach taken by the Unnamed Movants 6 and 7, however, urge this court to hold that only coordinated expenditures for express advocacy constitute disguised contributions. ¶444 Subsequent case law sheds light on this issue. Buckley decisions coordinated have expenditures followed are Buckley's subject to Postthat limitations the holding and disclosure requirements governing contributions. The case law discussing distinguished coordinated expenditures has not between coordinated expenditures for express advocacy and for issue advocacy. ¶445 Federal Federal Campaign (2001), is Election Commission v. Committee (Colorado II), illustrative. The Colorado Colorado 533 II Republican U.S. Court 431, 446 reaffirmed Buckley's analysis of disguised contributions, explaining that there direct is difference contributions committee 68 no that would to between a coordinated candidate justify treating Colorado II, 533 U.S. at 464-65. 40 or expenditures candidate's the two and campaign differently. 68 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Coordinated expenditures, like contributions, might be given as a quid pro quo for improper commitments from the candidate. ¶446 The Colorado II Court summarized Buckley's discussion of disguised contributions as follows: [In Buckley], the rationale for endorsing Congress's equation of coordinated expenditures and contributions was that the equation "prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." The idea was that coordinated expenditures are as useful to the candidate as cash, and that such "disguised contributions" might be given "as a quid pro quo for improper commitments from the candidate" (in contrast to independent expenditures, which are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate's point of view). In effect, therefore, Buckley subjected limits on coordinated expenditures by individuals and nonparty groups to the same scrutiny it applied to limits on their cash contributions. 69 69 Id. at 446 (citations omitted). Later on, the Colorado II Court further stated that [t]here is no significant functional difference between a party's coordinated expenditure and a direct party contribution to the candidate, and there is good reason to expect that a party's right of unlimited coordinated spending would attract increased contributions to parties to finance exactly that kind of spending. Coordinated expenditures of money donated to a party are tailor-made to undermine contribution limits. Therefore the choice here is not, as in Buckley and Colorado I, between a limit on pure contributions and pure expenditures. The choice is between limiting contributions and limiting expenditures whose special value as expenditures is also the source of their power to corrupt. Colorado II, 533 U.S. at 464-65. 41 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶447 In Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45, 87-88 (D.D.C. 1999), the D.C. District Court rejected as advocacy untenable expenditures the notion and that coordinated coordinated issue express advocacy expenditures should be treated differently. 70 Both constitute disguised both contributions, the court held, and should be treated as such. 71 ¶448 The Christian Coalition court made clear that issue advocacy is not beyond the reach of a state's regulatory power as a matter of constitutional law, explaining that the First Amendment permits "only narrowly tailored restrictions on speech that advance the Government's anti-corruption interest, but the Coalition's position [coordinated Coalition issue court allows for advocacy] then declared no restrictions expenditures." 72 that the at The distinction all on Christian drawn in Buckley between issue advocacy and express advocacy is of no constitutional or statutory import in the realm of coordinated expenditures: [I]mporting the 'express advocacy' standard into [the contribution regulation at issue] would misread 70 Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999).has had a far-reaching impact on state and federal regulation of campaign coordination. See Ferguson, supra note 12, at 481. 71 Christian Coalition, 52 F. Supp. 2d at 88. 72 Christian Coalition, 52 F. Supp. 2d at 88. See also McConnell, 540 U.S. at 190 ("[T]he express advocacy restriction [imposed by Buckley] was an endpoint of statutory interpretation, not a first principle of constitutional law."). 42 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Buckley and collapse the distinction between contributions and independent expenditures in such a way as to give short shrift to the government's compelling interest in preventing real and perceived corruption that can flow from large campaign 73 contributions. ¶449 Christian Coalition recognizes that distinguishing between coordinated issue advocacy expenditures and coordinated express advocacy expenditures would ignore the basic fact that both can be "as useful to the candidate as cash." 74 Indeed, the Christian Coalition court explained that [c]oordinated expenditures for [communications that spread a negative message about an opponent] would be substantially more valuable than dollar-equivalent contributions [to a candidate] because they come with an 'anonymity premium' of great value to a candidate running a positive campaign. Allowing such coordinated expenditures would frustrate both the anticorruption and disclosure goals of the Act. 75 ¶450 In my opinion, Christian Coalition provides a persuasive reading of the First Amendment principles set forth 73 Christian Coalition, 52 F. Supp. 2d at 88. 74 McConnell, 540 U.S. at 221. 75 Christian Coalition, 52 F. Supp. 2d at 88. 43 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa in Buckley and its progeny. 76 approach the case law It pays heed to the functionalist takes to distinguishing between contributions to the candidate or candidate's campaign committee and independent expenditures, 77 and it is careful not to extend prior campaign finance holdings beyond their intended scope. It is also supported by federal case law, which makes clear that campaign finance disclosure requirements can constitutionally reach beyond express advocacy and its functional equivalent and 76 The few Wisconsin authorities available on the subject of coordinated disbursements track the reasoning of Christian Coalition. See, e.g., Wis. Coalition for Voter Participation, Inc. v. State Elections Bd. (WCVP), 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App. 1999) (addressing Chapter 11's regulation of coordinated issue advocacy disbursements in Justice Jon Wilcox's election campaign). In WCVP, the Wisconsin court of appeals explained that although Buckley imposed limits on the regulation of independent disbursements for issue ads, "neither Buckley nor [Chapter 11] limit the state's authority to regulate or restrict campaign contributions." Id. at 679. The WCVP court further explained that Chapter 11 "treat[s] expenditures that are 'coordinated' with, or made 'in cooperation with or with the consent of a candidate . . . or an authorized 76 committee' as campaign contributions." Id. at 681 Under WCVP, the mere fact that Chapter 11 regulates coordinated disbursements for issue ads does not conflict with the constitutional principles set forth in Buckley. See also Wis. El. Bd. Op. 00-2 (reaffirmed Mar. 26, 2008) adopting the Christian Coalition approach to examining the conduct of the candidate and the entity disbursing funds and explaining that "the Courts seemed to be willing to merge express advocacy with issue advocacy if 'coordination' between the spender and the campaign is sufficient." 77 See, e.g., McConnell, 540 U.S. at 221 (2003) ("[T]he rationale for affording special protection to wholly independent expenditures has nothing to do with the absence of agreement and everything to do with the functional consequences of different types of expenditures."). 44 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa thus makes clear that the express/issue advocacy distinction is not constitutionally relevant in all campaign finance contexts. 78 78 In Citizens United, 558 U.S. at 368-69, the Court rejected the contention that "the disclosure requirements in § 201 [of the Bipartisan Campaign Reform Act of 2002] must be confined to speech that is the functional equivalent of express advocacy." Id. at 368. The distinction between issue advocacy and express advocacy drawn by the Court in prior cases considering restrictions on independent expenditures should not, the Citizens United Court held, be imported into the realm of disclosure requirements. By making clear that the express/issue advocacy distinction is relevant only with regard to independent expenditures, Citizens United corroborates Christian Coalition's holding that the distinction is irrelevant to the limits and disclosure requirements applicable to coordinated expenditures. Madigan, 697 F.3d at 484, relies on this discussion in Citizens United to support its conclusion that the express/issue advocacy distinction is constitutionally irrelevant in the context of disclosure requirements: [M]andatory disclosure requirements are constitutionally permissible even if ads contain no direct candidate advocacy . . . . Whatever the status of the express advocacy/issue discussion distinction may be in other areas of campaign finance law, Citizens United left no doubt that disclosure requirements need not hew to it to survive First Amendment scrutiny. With just one exception, every circuit that has reviewed First Amendment challenges to disclosure requirements since Citizens United has concluded that such laws may constitutionally cover more than just express advocacy and its functional equivalents, and in each case the court upheld the law. (Citation omitted.) (continued) 45 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶451 I (Barland move II), on 751 to F.3d Wisconsin 804 Right (7th to Cir. Life 2014). v. Barland Despite implications to the contrary in the majority opinion, Barland II is consistent with Christian Coalition. Barland II addresses the regulation of independent spending under Chapter 11, while Madigan cites and relies on other federal cases that reach the same conclusion in light of Citizens United, including The Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681 F.3d 544, 551 (4th Cir. 2012) (explaining that Citizens United upheld disclosure requirements for communications "that are not the functional equivalent of express advocacy"); Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011) ("We find it reasonably clear, in light of Citizens United, that the distinction between issue discussion and express advocacy has no place in First Amendment review of these sorts of disclosureoriented laws."); and Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) ("Given the Court's analysis in Citizens United, and its holding that the government may impose disclosure requirements on speech, the position that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable."). Since Madigan was decided, additional federal cases have interpreted Citizens United in the same manner, that is, as declaring that campaign finance disclosure requirements can cover more than express advocacy and its functional equivalent without running afoul of the First Amendment. See Vt. Right to Life Comm. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) ("In Citizens United, the [United States] Supreme Court expressly rejected the 'contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy,' because disclosure is a less restrictive strategy for deterring corruption and informing the electorate."); Iowa Right to Life Comm. v. Tooker, 717 F.3d 576, 591 n.1 (8th Cir. 2013) ("Disclosure requirements need not 'be limited to speech that is the functional equivalent of express advocacy.'" (quoting Citizens United); Independence Inst. v. Fed. Election Comm'n, ___ F. Supp. 3d ___, 2014 WL 4959403 (D.D.C. Oct. 6, 2014) (stating that the Citizens United Court "in no uncertain terms . . . rejected the attempt to limit [federal campaign finance law] disclosure requirements to express advocacy and its functional equivalent"). 46 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Christian Coalition tackles the regulation of coordinated spending under federal law. ¶452 In nonprofit Barland entity) challenged II, and various unconstitutional Wisconsin its Right state political provisions only to within insofar as Life (a action 501(c) committee Chapter 11 those as provisions "trigger[ed] . . . restrictions and requirements for independent groups not under the committee . . . ." 79 that Wisconsin control of a candidate or candidate's The Barland II court was careful to note Right to Life and its state PAC "operate[d] independently of candidates and their campaign committees." 80 ¶453 In contrast to the independent groups at issue in Barland II, in the instant case the Special Prosecutor contends that 501(c) nonprofit entities made disbursements for issue ads in coordination with a candidate's campaign committee. The disbursements at issue in the present case are not independent. Barland II does not extend beyond the context of independent political speech and is therefore not dispositive of the First Amendment question presented in this original action. ¶454 Given this case law, I would hold that in the eyes of both Chapter 11 and the First Amendment, coordinated disbursements are disguised contributions regardless of whether they are made for express advocacy or issue advocacy purposes. Accordingly, in contrast to the majority opinion, I would hold 79 Barland II, 751 F.3d at 829 (emphasis added). 80 Id. at 809. 47 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa that Chapter committee 11's report requirement coordinated that issue a candidate's advocacy campaign disbursements as contributions is consistent with the First Amendment. ¶455 Unnamed Movants 6 and 7 further contend, and the majority opinion holds, that their interpretation of Chapter 11 is compelled by the doctrines of overbreadth and vagueness. I turn to this argument now. ¶456 The Unnamed Movants' positions on overbreadth and vagueness are twofold. ¶457 First, purposes," which they is urge part that of the Chapter phrase 11's "for political definitions of the words "contribution" 81 and "disbursement," 82 is unconstitutionally vague and overbroad unless the phrase is read to mean "for express advocacy purposes." ¶458 Second, concept of Unnamed Movants "coordination" 6 and within 7 contend Chapter 11 is that the fatally imprecise. In their view, the provisions of Chapter 11 that ostensibly regulate coordination, including § 11.06(4)(d), should be struck down as unconstitutionally vague and overbroad or, at the very least, limited to express advocacy. ¶459 I address these arguments in turn. To address overbreadth and vagueness arguments relating to the phrase "for political Unnamed purposes," Movants 6 I and return 7 to contend, 81 See Wis. Stat. § 11.01(6)(a). 82 See Wis. Stat. § 11.01(7)(a). 48 Buckley and and majority the Barland II. opinion No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa agrees, that an express-advocacy limiting construction must be applied in the instant case based on Buckley and Barland II. They misread the case law. ¶460 The Buckley Court applied an express-advocacy limiting construction to two statutory provisions, one imposing a limit on expenditures and one requiring that expenditures be reported. ¶461 The provision imposing a limit on expenditures stated that "[n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election candidate, exceeds $1,000." 83 or defeat of such The challengers in Buckley argued that the phrase "relative to a clearly identified candidate" is unconstitutionally vague. ¶462 The provision Buckley failed to The Buckley Court agreed. Court clarify explained whether that it the covered advocacy and issue advocacy expenditures. challenged both express The Court decided, however, that in the context of the provision as a whole, the phrase "relative to a clearly identified candidate" could mean "advocating the election or defeat of a candidate," that is, could mean express advocacy. 84 The Court determined that this reading would avoid vagueness concerns. Thus, it construed the expenditure limit as applying only to express advocacy. 83 Buckley, 424 U.S. at 39 (emphasis added). 84 Id. at 42. 49 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶463 The applied an second provision express-advocacy expenditures to be to which limiting disclosed. The the Buckley construction word Court required "expenditure" was defined "in terms of the use of money or other valuable assets 'for the purpose election of of . . . influencing' candidates determined that expenditure disclosure for vagueness federal concerns provision the nomination office." 85 arose applied The insofar or Court this individuals to as other than candidates and political committees because the phrase "for the purpose . . . of influencing [an election]" carries the potential "for encompassing both issue discussion and advocacy of a political result." 86 ¶464 To avoid vagueness concerns, the Court again applied an express-advocacy phrase The "for Court required the held limiting purpose that expenditures political circumstances: requested by (1) by a when this of . . . influencing the committees construction, expenditure entities to be the candidate other disclosed his [an disclosure expenditures or time agent than provision only authorized (i.e., the election]." candidates under were to and two or coordinated expenditures); and (2) when the expenditures were for express advocacy (i.e., independent express advocacy expenditures). 87 Independent issue advocacy expenditures were not required to be disclosed. 85 Id. at 77. 86 Id. at 79. 87 Id. at 80. 50 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶465 Importantly, the Buckley Court's application of these express-advocacy limiting constructions realm of independent expenditures. Buckley Court "disguised argument considered the statutory confined to the As previously explained, the coordinated contributions." 88 that was Buckley expenditures expressly provisions to be rejected the limits and imposing disclosure requirements on contributions were unconstitutionally vague or overbroad. 89 ¶466 Further, in applying express-advocacy limiting constructions to the statutory provisions imposing limits and disclosure requirements on independent expenditures, the Buckley Court did not establish as a matter of constitutional law that regulation of issue advocacy is impermissible. No United States Supreme Court decision, and no decision of this court (until today), has gone so far. 90 ¶467 Although the majority opinion removes all issue advocacy from state regulation, the United States Supreme Court in McConnell v. Federal Election Commission, 540 U.S. 93, 190-91 88 Id. at 46-47. See also Colorado II, 533 U.S. at 463-64 (explaining that the imposition of a limiting construction on provisions imposing expenditure limits in Buckley and subsequent federal cases "ultimately turned on the understanding that the expenditures at issue were not potential alter egos for contributions, but were independent . . . . [T]he constitutionally significant fact . . . was the lack of coordination between the candidate and the source of the expenditure" (internal quotation marks and citation omitted) (emphasis added)). 89 See Buckley, 424 U.S. at 29-30, 78. 90 See O'Keefe, 769 F.3d at 942. 51 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa (2003), overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), explicitly ruled that it would be a "misapprehen[sion]" to read Buckley as holding that there exists "a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First category of speech." 91 Amendment right to engage in the latter Rather, said the McConnell Court, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command. In narrowly reading the [federal law] provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. 92 ¶468 With this United States Supreme Court precedent in mind, the Barland II court took up the issues of vagueness and overbreadth within Chapter 11. ¶469 The statutory provision considered by the Barland II court that is relevant to this original action is Wis. Stat. § 11.01(16), which (as explained previously) defines the phrase "for political purposes." ¶470 Pursuant to § 11.01(16), an act is done "for political purposes" when it is intended to influence an election. 91 McConnell, 540 U.S. at 190. 92 The Id. at 191-92 (footnote omitted). See also Wis. Right to Life, 551 U.S. at 474 n.7 (Roberts, C.J., controlling opinion) ("Buckley's intermediate step of statutory construction on the way to its constitutional holding does not dictate a constitutional test."). 52 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Barland II court considered the meaning of the "influence an election" language in the context of reporting requirements and other duties and restrictions applicable to the independent political speakers at issue in that case. ¶471 The independent purposes" Barland political must be II court announced speakers, narrowly the construed that phrase to advocacy and its functional equivalent." 93 cover as applied "for only to political "express The factual scenario presented to this court in this original action was expressly excluded from construction. 94 Barland II's express-advocacy limiting Barland II does not require this court to apply an express-advocacy limiting construction beyond the context of the independent political speech involved in that case. ¶472 Keeping in mind the express-advocacy limiting constructions applied in Buckley to the phrases "relative to a clearly identified candidate" and "for the purposes of . . . influencing . . . [an] election," and in Barland II to the phrase "for the purpose of influencing [an] election," I turn to the vagueness and overbreadth challenges advanced by Unnamed Movants 6 and 7 and accepted by the majority opinion in this original action. 93 Barland II, 751 F.3d at 834. 94 Barland II, 751 F.3d at 834 ("As applied to political speakers other than candidates, their committees, and political parties, the statutory definition of 'political purposes' . . . [is] limited to express advocacy and its functional equivalent . . . .") (emphasis added). 53 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶473 The fundamental point to remember in deciding campaign finance law cases is that context is key. When vagueness or overbreadth concerns arise in the campaign finance context, they arise with regard to particular conduct and specified political speakers. When a limiting construction has been applied to a campaign finance statute, it has been applied with regard to particular conduct and specified speakers. 95 political Just because a phrase is vague or overbroad in one context within Chapter 11 does not mean it is vague or overbroad throughout the Chapter. ¶474 The provision at issue in the instant case is the requirement in Wis. Stat. § 11.06(1) that registrants report all contributions received. Chapter 11 comports with considered in Buckley: of influencing an The definition of "contribution" under the definition of "contribution" Anything of value given for the purposes election. The Buckley Court expressly declined to apply an express-advocacy limiting construction to the phrase "for the purpose of influencing [an] election" in the definition of "contribution," finding no constitutional infirmity: The Act does not define the phrase "for the purpose of influencing" an election that determines when a gift, loan, or advance constitutes a contribution. Other 95 See Barland II, 751 F.3d at 837 ("The First Amendment vagueness and overbreadth calculus must be calibrated to the kind and degree of the burdens imposed on those who must comply with the regulatory scheme."). See also United States v. Williams, 553 U.S. 285, 293 (2008) ("[I]t is impossible to determine whether a statute reaches too far without first knowing what the statute covers."). 54 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa courts have given that phrase a narrow meaning to alleviate various problems in other contexts. The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution. 96 ¶475 I would adhere to Buckley and its progeny. not construe Wis. Stat. § 11.06(1) as excluding I would coordinated disbursements for issue advocacy from its general requirement that "all contributions received" by a candidates or candidate's campaign committee be reported by the candidate's campaign committee. 96 Buckley, 424 U.S. at 23 n.24 (citations omitted). See also id. at 78-80, which addresses the vagueness challenge brought against disclosure and reporting requirements applicable to contributions and expenditures. The Court denied the challenge insofar as it reached contributions. With regard to expenditures, the Court denied the challenge insofar as it reached non-independent political speakers: The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and "expenditures," and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words "political committee" more narrowly. To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees" so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related. Buckley, 424 U.S. at 79 (footnotes omitted). 55 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶476 The second contention advanced by Unnamed Movants 6 and 7——that the concept of "coordination" is vague and overbroad and thus must be limited to express advocacy or invalidated altogether——also fails. 97 ¶477 Unnamed Movants 6 and 7 do not tether their broader argument to a particular statutory text. They claim that the various provisions within Chapter 11 that might be interpreted as regulating provides that coordination coordinated (such as disbursements § 11.06(4)(d), which are by reportable a candidate's campaign committee) fail to define sufficiently the concept of coordination. Thus, Unnamed Movants 6 and 7 assert that the provisions are unconstitutionally vague and overbroad. ¶478 In McConnell v. Federal Election Commission, 540 U.S. 93 (2003), overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), the United States Supreme Court rejected a similar argument. in McConnell provided that The federal law under review coordinated expenditures were "expenditures made 'in cooperation, consultation, or concer[t] with, or at the request or suggestion of' a candidate." 98 McConnell Court coordination stated that 'delineates this its "longstanding reach 97 in definition words of The of common For a discussion of state and federal campaign finance statutes that regulate or define campaign coordination, see Ferguson, supra note 12. This article argues not only that campaign coordination can be regulated consistent with the First Amendment but also that the coordination subject to regulation should include third-party expenditures that a candidate deems valuable, as evidenced by the candidate's conduct. 98 McConnell, 540 U.S. at 222 (2003). 56 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa understanding.'" 99 Thus, the Court observed, it had "survived without constitutional challenge for almost three decades." 100 The Court concluded that this "definition of coordination gives 'fair notice to those to whom [it] is directed,' and is not unconstitutionally vague." 101 ¶479 The language of Wis. Stat. § 11.06(4)(d) is similar, though not identical, to the language at issue in McConnell. As in McConnell, this language delineates the reach of Chapter 11's concept of coordination "in words of common understanding." 102 ¶480 Center for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. nonprofit 2012) entity is also instructive. engaged in issue In Madigan, advocacy a 501(c) challenged the disclosure regime in effect in Illinois as unconstitutionally vague and overbroad on its face. 103 ¶481 As under Chapter 11, the Illinois statutes required contributions to be reported. the definition of The challengers took issue with "contribution," which included "[an] expenditure 'made in cooperation, consultation, or concert with another political committee' . . . ." 104 further 99 provided that the word The Illinois statutes "contribution" included Id. (quoted source omitted) 100 Id. 101 Id. at 223 (citation omitted). 102 Id. at 222 (internal quotation marks omitted). 103 Madigan, 697 F.3d at 470. 104 Id. at 494 (emphasis added). 57 "any No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 'electioneering communication made in concert or cooperation with or at the request, suggestion, or knowledge of a candidate, a political committee, or any of their agents.'" 105 ¶482 According vague because agreement to they the do challengers, not required.'" 106 specify Citing these the provisions 'degree McConnell, the of "are actual Madigan court observed that the challenged provisions are "no less clear than the federal Supreme definition Court." 107 which The has long Madigan passed court muster thus in rejected the the challengers' claim, concluding that "the coordination language of [Illinois' campaign finance law] is clear enough to provide a reasonably intelligent person 'fair warning' of what sort of conduct is covered." 108 ¶483 I decline Chapter to 11 would adhere hold that is to the McConnell concept of unconstitutionally and Madigan and "coordination" vague or would within overbroad. Accordingly, no limiting construction need be applied. ¶484 In sum, I conclude that Chapter 11's requirement that a candidate's campaign committee report coordinated disbursements for issue advocacy as contributions received by the candidate or candidate's campaign committee does not violate 105 Id. at 495. 106 Id. at 496. 107 Id. 108 Id. at 497. 58 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa the First Amendment and that the provisions of Chapter 11 imposing this requirement are neither vague nor overbroad. ¶485 In light of the statutory and constitutional validity of the Special Prosecutor's interpretation of Chapter 11 and given the strong policy against intervening in ongoing criminal investigations, I conclude that the John Doe proceedings should not be terminated. IV ¶486 I now examine three issues that are common to all three of the John Doe cases before the court. A ¶487 This court has received several non-party motions to file amicus briefs regarding the merits of the John Doe trilogy. I join the majority opinion's decision to grant these motions. A grant is consistent with the court's Internal Operating Procedures and past practices. ¶488 Motions to submit amicus briefs addressing the merits of the John Doe trilogy have been filed by the following: (1) Wyoming Liberty Group; (2) the Wisconsin Government Accountability Board; (3) various former members of the Federal Election Commission; (4) the Honorable Bradley A. Smith, the Center for Competitive Politics, and Wisconsin Family Action; (5) Campaign Legal Center, Democracy 21, Common Cause in Wisconsin, and League of Women Voters of Wisconsin; (6) Citizens for Responsible Government Advocates, Inc.; and (7) Wisconsin Right to Life. 59 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶489 This court generally grants motions to file amicus briefs "if it appears that the movant has special knowledge or experience in the matter at issue in the proceedings so as to render a court." that the brief from the movant of significant value Wis. S. Ct. IOP II-B.6.c. (May 4, 2012). movants listed above have special to the I conclude knowledge or experience and thus that their views would be of significant value to the court. Indeed, in a case of such profound public importance, this court can use all the help that is offered. B ¶490 The Special Prosecutor requested the recusal of certain justices from the John Doe trilogy. ¶491 Non-party motions requesting to file amicus briefs on the recusal issue were filed by the following: (1) the James Madison Center for Free Speech; (2) the Ethics and Public Policy Center; and (3) a group of professors of legal ethics. ¶492 On a motion to disqualify a justice, justices have, in other cases, explained why they will participate 109 or why they 109 See, e.g., State v. Henley, 2010 WI 12, 322 Wis. 2d 1, 778 N.W.2d 853 (memorandum opinion by Justice Roggensack explaining her decision not to disqualify herself). (continued) 60 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa will not. 110 The justices named in the recusal motion at issue are obviously participating. They have provided no response to the motion, however, choosing instead to remain silent. ¶493 The Special Prosecutor's recusal motion can be read in multiple ways. It can easily be read as being directed only to the named justices, seeking their self-disqualification. It can also be read as directed to the court, seeking the court's review of a Justice's statement that he or she need not selfdisqualify. cases. No Justice has made such a statement in the instant Finally, the Special Prosecutor's recusal motion can be read as seeking the court's review of due process considerations should the named Justices choose not to self-disqualify. ¶494 The Special Prosecutor's recusal motion cites Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). In Caperton, the See also State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863. In Allen, the defendant filed a motion before Justice Gableman individually seeking his recusal. Justice Gableman denied the motion without explanation on September 10, 2009. Id., ¶15. The defendant then filed a supplemental motion addressed to the whole court, seeking review of whether Justice Gableman had properly considered whether he could act impartially or whether it appeared he could not act impartially. Id., ¶16. On January 15, 2010, Justice Gableman then filed a supplement to his September 10, 2009, order, explaining why he had denied the recusal motion. Id., ¶17. On February 4, 2010, he withdrew from participation in the court's consideration of the recusal motion. Id., ¶18. The remaining members of the court were evenly divided regarding whether to deny the defendant's recusal motion or order briefs and oral argument on the matter. Accordingly, the motion was not granted. 110 Early on in the instant litigation (long before any recusal motion was filed), Justice Ann Walsh Bradley advised all parties that she was not participating. Her statement of nonparticipation is attached hereto as Exhibit D. 61 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa plaintiff moved to disqualify a justice of the Supreme Court of West Virginia on the grounds of bias resulting from campaign contributions and expenditures. The justice denied the plaintiff's motion, and the Supreme Court of West Virginia ruled against the plaintiff on the merits of the case. States Supreme Court reversed and remanded, The United ruling that due process required recusal under the circumstances presented. ¶495 Caperton teaches that there are "circumstances 'in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'" 111 ¶496 Caperton holds that "Due Process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances 'would offer a possible temptation to the average . . . judge to . . . lead him [or her] not to hold the balance nice, clear and true.'" 112 See also Williams- Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015) ("[E]ven if judges were possibility able that to refrain judges' from decisions favoring may be donors, the motivated by mere the desire to repay campaign contributions is likely to undermine the public's confidence in the judiciary.") (internal quotation marks omitted). ¶497 According to the Caperton Court, the participation of a justice who should have disqualified 111 Caperton v. A.T. Massey (2009) (citations omitted). 112 Id. (citations omitted). 62 Coal Co., himself 556 or U.S. herself 868, 877 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa violates a litigant's necessitates a constitutional do-over. 113 For a due process discussion of rights a and justice's recusal in Wisconsin , see State v. Herrmann, ___ WI ___, ___ Wis. 2d ___, ___ N.W.2d ___. ¶498 If the Special Prosecutor is presenting a due process argument to the court as a whole——that is, if the Special Prosecutor is asking the court to declare whether participation by the justices named in the recusal motion violates due process rights——such a motion should be made more clearly. ¶499 In any event, the Special Prosecutor's recusal motion and the motions to file amicus briefs on the issue of recusal remain unresolved. C ¶500 Over the extended lives of the John Doe trilogy in this court, the court has accepted the parties' filings under seal for long periods without examining validity of the parties' motions to seal. examine the sealed documents, the court or ruling on the Since beginning to has kept too many documents under seal and has allowed the parties to redact too much information from their filings. 114 113 Id. at 885-87. 114 The Special Prosecutor claims that much of the information the John Doe secrecy orders and this court's redaction orders intended to conceal has been divulged through media leaks. The Special Prosecutor pointedly wonders what the court is going to do, if anything, about these alleged leaks. (continued) 63 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶501 The court's decisions on sealing and redaction up to this point have been rooted entirely in the sweeping John Doe secrecy orders that were issued by the John months ago under very different circumstances. my opinion, should have independently Doe judge many This court, in determined whether the justifications for secrecy in John Doe proceedings still apply to the John Doe trilogy in this court. Instead, the court has, for the most part, continued to seal or redact all documents that were sealed by the John Doe judge without making this determination, concluding that its obligation is to abide by the John Doe judge's secrecy order. ¶502 Although I have publicly disagreed with the court's orders regarding sealing and redactions, 115 I have made every effort to abide by those orders. Precedent requires me and this court to abide by this court's secrecy orders. State ex rel. I anticipate that a motion to open this court's records and briefs regarding the John Doe trilogy will be filed when the three cases are completed. The sealed and redacted material will not be released, however, without a motion, opportunity to be heard, and court order. 115 For a full discussion of my reasons for objecting to the extensive sealing and redactions ordered by the court in these cases, please see my dissents in each of the following three orders issued by this court on March 27, 2015: (1) an order denying the Milwaukee Journal Sentinel's motion to intervene in the John Doe cases for the sole purpose of advocating for increased public access (attached hereto as Exhibit E); (2) an order canceling oral argument (attached hereto as Exhibit B); and (3) an order relating to redaction (attached hereto as Exhibit C). See also my dissents to orders issued by this court on April 1, 2015, and April 17, 2015, as well as a letter dated May 12, 2015 issued by Diane Fremgen, Clerk of Supreme Court. 64 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Niedziejko v. Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964), relied on by this court's sealing and redaction orders, provides that secrecy orders issued by a magistrate are binding on that magistrate. In the instant case, this court is the magistrate that the issued relevant secrecy orders. Thus, the secrecy orders bind not just the parties, but also this court. ¶503 The court's March 27, 2015, redaction order recognizes this principle, proceeding stating becomes court . . . does not the that "the subject eliminate the that a review in an secrecy of fact of John Doe appellate documents and other information that are covered by a secrecy order issued by a John Doe judge." ¶504 The majority opinion and Justice Prosser's concurrence disregard this principle. 116 The majority opinion declares, without citation to any authority, that "we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein." 117 Justice Prosser's concurrence discusses the policy reasons underlying secrecy in John Doe proceedings, concludes that they do not support continued concealment of certain facts underlying the John Doe trilogy, and then unilaterally determines that "those facts are now outside the scope of the secrecy order." 118 116 See, for example, the quote set forth in ¶256 of Justice Prosser's concurrence, pulled from an Unnamed Movant's brief. This quote is redacted in its entirety in the Unnamed Movant's redacted brief. 117 Majority op., ¶14 n.11. 118 Justice Prosser's concurrence, ¶145. 65 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶505 The majority opinion and Justice Prosser's concurrence not only defy this court's March 27, 2015, redaction order; they also contradict that order's reasoning. 2015, redaction judge's secrecy order explicitly order remains The court's March 27, concludes binding that when a the John Doe John Doe proceedings subject to that order reach this court. ¶506 In sum: I have repeatedly dissented to the excessive sealing and redactions this court has imposed in the John Doe trilogy and I have repeatedly dissented to this court's position that the John Doe secrecy order automatically binds this court, but I nevertheless conclude that the secrecy orders issued by this court (over my dissent) are binding on this court. explained above, it is settled law that a "magistrate" issues a secrecy order is bound by that secrecy order. majority opinion and Justice Prosser's concurrence As who The improperly ignore this principle. * * * * ¶507 For the reasons set forth, I dissent to the majority opinion's resolution of the 66 original action. No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 2014AP417-W through 2014AP421-W: Supervisory Writ & Appeal: State of Wisconsin ex rel. Francis D. Schmitz v. Gregory A. Peterson, John Doe Judge ¶508 In Special the second Prosecutor supervisory writ John Doe petitioned and writ case the of before court mandamus of the court, appeals seeking the for a of a review decision and order of the John Doe judge dated January 10, 2014, which quashed subpoenas and ordered the return of property seized pursuant to search warrants. ¶509 The defendants Unnamed Movants. are the John Doe judge and eight Several Unnamed Movants filed petitions to bypass the court of appeals, which this court granted. ¶510 The John Doe judge's January 10, 2014, order was based on his conclusion of law that the Wisconsin statutes do not regulate disbursements for issue advocacy made by a 501(c) nonprofit entity in coordination with a candidate or candidate's campaign committee. 119 The John Doe judge appears to have reached this conclusion of law based in part on First Amendment principles. ¶511 This court must decide whether to issue a supervisory writ reversing the John Doe judge's January 10, 2014, order. The majority opinion holds that no supervisory writ shall issue because the Special Prosecutor has not met one of the criteria for the issuance of a supervisory writ. According to the majority opinion, the Special Prosecutor has failed to prove 119 See majority op., ¶¶34-36, 75, 97. 67 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa that the John Doe judge violated a plain legal duty when he quashed subpoenas and ordered the return of property seized pursuant to search warrants. 120 ¶512 The majority opinion holds not that the John Doe judge's interpretation of Wisconsin's campaign finance statutes was correct (although the majority opinion's discussion of the original action implies as much), but rather that the validity of the John Doe judge's interpretation and application of statutes is not a proper basis upon which this court can issue a writ. 121 supervisory I strongly disagree with the majority opinion. ¶513 The Special purpose Prosecutor of is the to supervisory provide for writ "the sought by direct the control of . . . judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process." 122 ¶514 The John Doe judge had a non-discretionary legal duty in the instant case to correctly interpret Wisconsin's campaign finance statutes coordination committee advocacy. to between and For a determine whether and a candidate or 501(c) nonprofit entity the reasons 120 forth they candidate's in engaged my address campaign in dissent issue to the See majority op., ¶12. 121 set how See majority op., ¶97. 122 See majority op., ¶81 (quoting State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110 (emphasis added)). 68 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa original action, I conclude that the John Doe judge violated this nondiscretionary legal duty by misinterpreting and misapplying the law. 123 ¶515 A decision of a John Doe judge can be reviewed only by means of a supervisory writ. A decision of a John Doe judge cannot be reviewed by direct appeal. Because the John Doe judge "fail[ed] to fulfill [a] non-discretionary dut[y], causing harm that cannot be remedied through the appellate review process," I would grant the Special Prosecutor's writ petition. ¶516 In contrast, the majority opinion reaches the perplexing conclusion that although the foundation of the entire legal system rests on a judge's obligation to correctly interpret and apply the law, the John Doe judge's obligation to correctly interpret and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure. reaching this conclusion, the majority opinion relies on In a single conclusory sentence (devoid of citation to any authority) that appears in State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110. ¶517 In Kalal, a supervisory writ case, the petitioner argued that judges have a plain legal duty to correctly find the facts and apply the law. 124 The Kalal court declared that it 123 My dissent in the instant case should be read in conjunction with my dissent in the original action. See ¶¶368486, infra. 124 State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶23, 271 Wis. 2d 633, 681 N.W.2d 110. 69 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa could not accept supervisory decisions law." 125 this proposition jurisdiction involving the to a finding "as virtually of facts it would unlimited and extend range of application of The Kalal court explained its position as follows: The 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 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. 126 ¶518 The majority opinion takes this discussion in Kalal out of context, reading it without any meaningful understanding of precedent or the nature of review by supervisory writ of a John Doe judge's interpretation of order. Kalal is Indeed, so the overbroad majority that opinion's Kalal and the majority opinion are reduced to balderdash. ¶519 To understand Kalal and the plain legal duty criterion in supervisory writ cases, one must harken back to the classic expression of what constitutes a plain legal duty and then trace the evolution of the concept in the context of supervisory writ procedure. context, Kalal in light must of be read and supervisory understood writ cases 125 Id., ¶24. 126 Id. (emphasis added, citations omitted). 70 in historical preceding and No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa subsequent to Kalal, and in recognition of a court's discretion to grant or deny a requested supervisory writ. ¶520 The classic articulation of the plain legal duty concept was set forth in In re Petition of Pierce-Arrow Motor Car Co., 143 Wis. 282, 127 N.W. 998 (1910). the defendant defendant sought requested to vacate that this service court of In Pierce-Arrow, a exercise summons. its The "general superintending control over all inferior courts" under Article VII, Section 3 of the Wisconsin Constitution. 127 ¶521 The Pierce-Arrow court concluded that the legal validity of service "may well admit of different opinions by equally able legal minds." 128 The court determined that because the legal question of whether service was valid was debatable, the circuit court had not violated a plain legal duty. ¶522 The Pierce-Arrow court explained: 127 In re Petition of Pierce-Arrow Motor Car Co., 143 Wis. 282, 285, 127 N.W. 998 (1910). At the time the Pierce-Arrow case was decided, Article VII, Section 3 of the Wisconsin Constitution stated in relevant part as follows: "The supreme court shall have a general superintending control over all inferior courts; it shall have the power to issue writs of . . . mandamus, injunction . . . and other original and remedial writs, and to hear and determine the same." Since 1978, Article VII, Section 3(1) of the Wisconsin Constitution has provided that "[t]he supreme court shall have superintending and administrative authority over all courts." Section 3(2) states that "[t]he supreme court may issue all writs necessary in aid of its jurisdiction." 128 Pierce-Arrow, 143 Wis. at 287. 71 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa One of the cardinal rules is that the duty of the court below must be plain. The situation must be such that hardly more than a statement of the facts is necessary to convince the legal mind as to the duty of the court. Where there is no such clear and obvious duty, based either upon common-law principles or upon express statute, but where questions of law or fact or both are involved of such difficulty that "a judge may reasonably, proceeding considerately, commit judicial error," the court will refuse to intervene under its power of superintending control, but will leave the parties to their remedy by appeal. 129 ¶523 Pierce-Arrow represented the court's view of the plain legal duty criterion for the issuance of a supervisory writ up to 1921. 130 Thereafter, the court's view of what constitutes a plain legal duty changed significantly. 131 ¶524 In 1921, the court decided In re Inland Steel Co., 174 Wis. 140, 182 N.W. 917 (1921). In 1932, the court decided State ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm, 208 Wis. 366, 370-71, 243 N.W. 763 (1932). the court concluded that even though In these two cases, the question of law presented may be subject to reasonable debate, the court may exercise its original and supervisory power when an appeal would not provide an adequate remedy. 129 Pierce-Arrow, 143 Wis. at 286 (emphasis added). 130 See John D. Wickhem, The Power of Superintending Control of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 163 (1941). This article is generally viewed as the best explanation of the Wisconsin constitutional provision regarding superintending authority and writs. 131 John D. Wickhem, The Power of Superintending Control of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161 (1941). 72 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶525 These cases make the following point clear: "[T]he fact that the duty of the trial court in the premises can only be determined by a careful consideration of the facts and the law applicable to the situation is no barrier to the exercise of th[e supervisory writ] power." 132 ¶526 In 1941, Justice John D. Wickhem, who served on the Wisconsin developing Supreme case Court law on from the 1930 to 1949, explained concept of plain legal duty the as follows: The purpose of this [supervisory writ] jurisdiction is to protect the legal rights of a litigant when the ordinary processes of action, appeal and review are inadequate to meet the situation, and where there is need for such intervention to avoid grave hardship or complete denial of these rights. . . . . The later cases hold that an exercise of the court's superintending control may be justified in spite of the fact that a determination of the duty of the inferior court and the scope of the petitioner's rights may present difficult and close questions of law. 133 ¶527 A supervisory writ has been issued in numerous cases in which a ruling of a judge or a circuit court interpreting a statute was challenged as erroneous——even though the proper interpretation of the statute was not plain or raised a novel 132 See State ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis. 366, 371, 243 N.W. 763 (1932). 133 John D. Wickhem, The Power of Superintending Control of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161, 164 (1941). 73 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa question——and either no appeal was permitted or appellate review would have come too late for effective redress. 134 ¶528 For example, in a recent case entitled Madison Metropolitan School District v. Circuit Court, 2011 WI 72, 336 Wis. 2d 95, 800 N.W.2d 442, the court of appeals transformed an appeal into a supervisory writ. The issue before the court of appeals was whether the circuit court had exceeded its authority by interpreting the applicable statutes as allowing a circuit court to direct a school district to provide a child with alternative educational services. 135 ¶529 The School circuit District that court the contended supervisory in Madison writ should Metropolitan be denied, arguing that "its duty was not plain, because it was faced with a novel question statutory of law provisions." 136 requiring In harmonization contrast, the of school several district argued that a supervisory writ should be granted because "the circuit court did not have authority, express or implied, to order" the school district to provide the child with alternative 134 See, e.g., State ex rel. Ampco Metal, Inc. v. O'Neill, 273 Wis. 530, 535, 78 N.W.2d 921 (1956); Madison Metro. Sch. Dist. v. Circuit Court, 2011 WI 72, 336 Wis. 2d 95, 800 N.W.2d 442. 135 Article VII, Section 5(3) of the Wisconsin Constitution provides: "The appeals court may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts in the district." 136 Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶84. 74 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa educational services. 137 The court of appeals sided with the school district, granting the writ. ¶530 This court spent 34 paragraphs (13 pages in the Wisconsin Reports) analyzing and interpreting the statutes at issue in order to determine the powers of the circuit court and school district. Obviously, the meaning of the statutes was not plain; the case presented a novel issue of law. Nevertheless, after affirmed a lengthy statutory analysis, this court the court of appeals decision granting the writ. ¶531 In deciding that a supervisory writ was warranted, the Madison Metropolitan School District court explained that "the circuit court's duty was plain: statutory authority." 138 concluded that the to keep within the scope of its It then continued: "Because we have circuit court's duty to keep within the bounds of its lawful authority was plain, its violation of that duty was clear when it ordered the District to provide the majority educational resources . . . ." 139 ¶532 Notably, Kalal was never mentioned in opinion in Madison Metropolitan School District, although the court was well aware of Kalal. Kalal was argued in the briefs and in the dissent. ¶533 Madison Metropolitan School District and numerous other cases teach that Kalal does not mean that a supervisory 137 Id., ¶84. 138 Id. 139 Id., ¶85. 75 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa writ cannot issue when a case presents a difficult or close question of law. Rather, Kalal is best understood as demonstrating that a reviewing court has discretion whether to issue a supervisory writ, even when the trial court or judge under review violated a plain legal duty. The reviewing court considers several factors and equitable principles in deciding whether to issue a supervisory writ. 140 ¶534 Indeed, in an opinion issued just one year before Kalal (and authored by then-Justice Sykes, who wrote Kalal), this court stated in no uncertain terms that a court's decision to issue a supervisory writ "is a discretionary determination that is reviewed for an erroneous exercise of that discretion." 141 ¶535 Thus, discretionary properly call. Kalal understood, does not Kalal support involved the a majority opinion's view that a supervisory writ cannot be issued when the legal issue presented is subject to reasonable debate. ¶536 If this court's interpretation of the applicable statutes differs from that of the John Doe judge (that is, if the John Doe judge misinterpreted the law), then the John Doe 140 See, for example, the following cases explaining that the issuance of a supervisory writ involves the exercise of discretion: Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶34; Kalal, 271 Wis. 2d at 649; State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 375, 166 N.W.2d 255 (1969); State ex rel. Dressler v. Circuit Court, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991). 141 City of Madison v. DWD, 2003 WI 76, ¶10, Wis. 2d 652, 664 N.W.2d 584. See also majority op., ¶105. 76 262 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa judge erroneously exercised his discretion in issuing the January 10, 2014, order, and a supervisory writ is appropriate. Two examples illustrate this point. ¶537 Example 1. If the John Doe judge's order was based on an erroneous view of Chapter 11 or the First Amendment but is not reviewed by this court, no further review occurs and both the Special Prosecutor and the public at large are deprived of the enforcement of statutes intended to protect the integrity of Wisconsin's nullification elections. of a This duly result enacted law amounts and to a virtual imposes a serious hardship on the people of this state. ¶538 Example 2. of the Special If the John Doe judge had ruled in favor Prosecutor and the John Doe proceedings continued, then unless a supervisory writ were available to the Unnamed Movants, they could not challenge the John Doe judge's ruling until criminal charges were filed. Unnamed Movants 6 and 7 would surely Such a situation, claim, would impose a serious hardship on them. ¶539 In sum, a supervisory writ is the proper procedure for correcting a John Doe judge's erroneous application of the law when an appeal is not available or would come too late for effective redress. 142 The majority opinion errs in holding otherwise. 142 Dressler, 163 Wis. 2d at 630; State ex rel. Storer Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 347, 388 N.W.2d 633 (Ct. App. 1986). 77 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶540 For the reasons set forth, I conclude that the court should decide whether the John Doe judge's January 10, 2014, order was based on a misinterpretation of Wisconsin's campaign finance statutes. Because I conclude that it was, I further conclude that the Special Prosecutor has met the criteria for the issuance of a supervisory writ. I would grant the writ petition. ¶541 Accordingly, I 78 dissent. No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Nos. 2013AP2504-W through 2013AP2508-W: Supervisory Writ & Review State of Wisconsin ex rel. Three Unnamed Petitioners v. Gregory A. Peterson, John Doe Judge; Gregory Potter, Chief Judge; 143 and Francis D. Schmitz, as Special Prosecutor ¶542 In this third case, the final case in the John Doe trilogy, Unnamed Movants 2, 6, and 7 seek review of an opinion and order of the court of appeals that denied the three Unnamed Movants' petition prohibition. for supervisory writs of mandamus and The respondents are the John Doe judge, the chief judges of the counties in which the cases are underway, and the Special Prosecutor. ¶543 In supervisory relevant their writs, part, the petition the to three following the court Unnamed errors of of appeals Movants law in seeking alleged, the John in Doe proceedings: (1) The multi-county nature of the John Doe investigation is contrary to Wisconsin law. (2) The John Doe judge had no authority to appoint the Special Prosecutor without satisfying the criteria set forth in Wis. Stat. § 978.045(1r). (3) The John Doe Judge had no authority to appoint a special prosecutor to act in multiple counties. ¶544 These allegations raise multiple overlapping questions of law regarding Prosecutor's the procedural appointment, the 143 validity competency of of the Special the Special What I refer to as "the third case" comprises five cases. One of the defendants in each case is the chief judge of the county in which the case is pending. 79 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa Prosecutor to conduct legitimacy of a the John multi-county Doe John investigation, Doe and investigation the under Wisconsin law. ¶545 The court of appeals rejected the arguments of the three Unnamed Movants and denied their writ petition. The majority opinion affirms the court of appeals order denying the writ petition. The petition for review in this court did not raise all the issues raised before the court of appeals or all the issues this court raised in its December 16, 2014, order (attached hereto as Exhibit A). I agree with the majority opinion that the court of appeals order should be affirmed. reach this result, however, using significantly I different reasoning than the majority opinion. ¶546 The majority opinion concludes that the John Doe judge's obligation to "correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure . . . ." 144 Because the majority opinion determines that the three Unnamed Movants have failed to fulfill the plain legal duty criterion, it declares that they have failed to "satisfy the stringent preconditions for a supervisory writ." 145 ¶547 The majority opinion's discussion of the plain legal duty criterion is reminiscent of its analysis in the second case 144 Majority op., ¶105. 145 Majority op., ¶13. 80 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa in the John Doe trilogy. 146 For the reasons set forth in my dissent in the second case in the John Doe trilogy (see ¶¶498521, supra), I take issue with the majority opinion's explanation and application of the plain legal duty concept. I will not repeat that discussion here. ¶548 I conclude that the court of appeals was required to interpret and apply the applicable law to determine whether the John Doe judge had violated a plain legal duty. The court of appeals had discretion, however, whether to grant or deny the three Unnamed Movants' writ petition. ¶549 I consider whether the court of appeals properly exercised its discretion in denying the Unnamed Movants' writ petition by correctly interpreting and applying the applicable law. 147 I decide the underlying legal questions faced by the court of appeals independently, but benefit from the court of appeals' analysis. 148 146 See majority op., ¶¶95-99 (discussing the plain legal duty issue presented in the second case within the John Doe trilogy), ¶107-132 (discussing the plain legal duty issues presented in the third case within the John Doe trilogy). 147 The court of appeals has discretion whether to issue a supervisory writ. If the court of appeals misinterpreted or misapplied applicable law, it erroneously exercised its discretion. City of Madison v. DWD, 2003 WI 76, ¶10, 262 Wis. 2d 652, 664 N.W.2d 584. See also majority op., ¶102-106 (setting forth the standard of review applicable to the instant supervisory writ case). 148 City of Madison v. Wis. 2d 652, 664 N.W.2d 584. DWD, 81 2003 WI 76, ¶10, 262 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa ¶550 In determining that there were no procedural defects in the John Doe proceedings and thus that a supervisory writ was not warranted, the court of appeals relied on established case law, including N.W.2d 406 State (1996); v. State Cummings, v. 199 Carlson, Wis. 2d 721, 2002 WI App 44, 546 250 Wis. 2d 562, 641 N.W.2d 451; State ex rel. Friedrich v. Circuit Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995); and State v. Bollig, 222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App 1998)). These cases are persuasive. ¶551 I conclude that the court of appeals correctly decided the questions of law presented in the three Unnamed Movants' writ petition as follows: (1) The initiation proceedings of multiple, related to parallel a single John Doe criminal investigation is permitted under Wisconsin law. This is an effective and efficient way of proceeding. (2) The John Doe § 978.045(1r) Rather, the judge to John did appoint Doe not rely the judge on Special made the pursuant to inherent judicial authority. Wis. Stat. Prosecutor. appointment The John Doe judge had such authority regardless of whether the statutory conditions § 978.045(1r) were met. John Doe judge's powers 82 set forth in Wis. Stat. Case law makes clear that a extend beyond the powers No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa conferred by statute to include all powers necessary to conduct the John Doe investigatory proceeding. 149 (3) The John Doe appointing judge the issued Special five Prosecutor, county's John Doe proceeding. may serve proceedings. multiple separate one orders for each The same prosecutor appointments in related Thus, a John Doe judge may lawfully appoint the same special prosecutor to proceedings underway in several counties. This is an effective and efficient way of proceeding. 149 See State ex rel. Individual Subpoenaed v. Davis, 2005 WI 70, ¶¶23, 26, 281 Wis. 2d 431, 697 N.W.2d 803 ("A John Doe judge's authority stems both from the statutes and from powers inherent to a judge. . . . A John Doe judge's powers are not, however, limited to those enumerated in Wis. Stat. § 968.26 [the John Doe statute]. . . . A John Doe judge's inherent authority stems from a John Doe judge's judicial office. . . . [A] John Doe judge's inherent power encompasses all powers necessary for the John Doe judge to 'carry out his or her responsibilities with respect to the proper conduct of John Doe proceedings.'" (quoted source omitted)); In re John Doe Proceeding, 2003 WI 30, ¶54, 260 Wis. 2d 653, 660 N.W.2d 260 ("A John Doe judge is also entitled to exercise the authority inherent in his or her judicial office."); State v. Cummings, 199 Wis. 2d 721, 736, 546 N.W.2d 406 (1996) ("A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate."). Although the legislature created John Doe proceedings, the separation of powers doctrine bars the legislature from "unduly burdening," "materially impairing," or "substantially interfering" with the inherent powers of the judicial branch, including the inherent powers of the John Doe judge in the instant cases. See State v. Holmes, 106 Wis. 2d 31, 68-69, 315 N.W.2d 703 (1982). See also majority op., ¶127, and Justice Prosser's concurrence, ¶¶208-210, 216, 239, both of which improperly allow the legislature to trump the inherent judicial powers of the John Doe judge. 83 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa (4) Even if there were procedural errors in the Special Prosecutor's appointment (and I do not believe there were), the Special Prosecutor has competency to proceed. 150 ¶552 The court of appeals was not presented with argument regarding the procedural validity of the John Doe judge's appointment and the competency of the John Doe judge to conduct the John Doe proceedings. in this court. That argument was, however, advanced It is without merit, as the majority opinion makes clear. 151 ¶553 Because the court of appeals properly interpreted and applied the applicable law, I conclude that it did not erroneously exercise its discretion in denying the three Unnamed Movants' writ petition. The court of appeals decision should be affirmed. ¶554 In closing, I note that even if this court determined that the John Doe proceedings were procedurally defective and 150 Whether the Special Prosecutor is deprived of competency on account of a procedural defect in his appointment turns on whether the defect was "central" to the purpose of Wis. Stat. § § 978.045(1r) (setting forth conditions for the appointment of a special prosecutor).150 The court of appeals determined in In re Commitment of Bollig, 222 Wis. 2d 558, 571, 587 N.W.2d 908 (Ct. App. 1998), that the purpose of § 978.045(1r) is to control costs, as the State pays an appointed special prosecutor for work that would ordinarily be performed by a district attorney. It seems implausible to suggest that the costs the State has incurred on account of a single special prosecutor's appointment are substantial enough to render the alleged defect in the Special Prosecutor's appointment central to the cost-controlling objective of § 978.045(1r). 151 See majority op., ¶¶108-113. 84 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa that a supervisory writ is warranted, only those Unnamed Movants who raised the objection entitled to any relief. waived (forfeited). before the John Doe judge may be If not raised, these objections were See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190 (stating that "the common-law waiver [forfeiture] rule applies to challenges to the circuit court's competency" and explaining that a competency challenge is waived as a matter of right if raised for the first time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in the appointment of a special prosecutor is waived (forfeited) if raised for the first time on appeal). ¶555 For the reasons set forth, I write separately. 85 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa EXHIBIT A 1 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 2 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 3 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 4 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 5 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 6 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 7 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 8 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 9 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 10 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 11 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 12 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 13 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 14 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 15 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 16 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 17 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 18 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa EXHIBIT B 19 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 20 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 21 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 22 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 23 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 24 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 25 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 26 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 27 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 28 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 29 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 30 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 31 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 32 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa EXHIBIT C 33 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 34 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 35 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 36 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 37 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 38 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 39 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 40 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 41 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 42 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 43 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 44 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 45 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 46 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 47 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 48 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 49 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 50 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 51 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 52 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 53 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 54 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 55 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 56 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa EXHIBIT D 57 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 58 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 59 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 60 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 61 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa EXHIBIT E 62 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 63 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 64 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 65 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 66 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 67 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 68 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 69 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 70 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 71 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 72 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 73 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 74 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 75 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 76 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 77 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 78 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 79 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 80 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 81 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 82 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 83 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 84 No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa 85 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc ¶556 N. dissenting recently in PATRICK CROOKS, part). acknowledged The that J. United "Judges (concurring States are not in Supreme part, Court politicians, has even when they come to the bench by way of the ballot." Williams- Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015). Williams- Yulee involved judicial whether candidates from a judicial personally conduct rule soliciting prohibiting campaign funds violated the First Amendment to the United States Constitution. Id. In particular concluding that regulation of the speech First at Amendment issue, the permits Supreme the Court stressed: In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must "observe the utmost fairness," striving to be "perfectly and completely independent, with nothing to influence or controul him but God and his conscience." Id. at 1667 (citing Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829-1830, p. 616 (1830)). ¶557 These principles must serve as guideposts for all of us as judges in the courts of Wisconsin, whether or not the case or cases at issue involve significant political overtones, as these John Doe cases do. ¶558 It is with these important tenets in mind that I write separately. ¶559 By erroneously concluding that campaign committees do not have a duty under Wisconsin's campaign-finance law, Wis. 1 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc Stat. ch. (2011-12), 1 11 contributions in the to form report of receipt coordinated of spending in-kind on issue advocacy, 2 the majority rejects the special prosecutor's primary argument regarding criminal activity. Although the special prosecutor advances a secondary argument of criminal activity concerning coordinated express advocacy, inexplicably ignores that argument. majority to terminate a valid John the majority These mistakes lead the Doe 3 investigation in an unprecedented fashion. ¶560 With argument, which respect is the to the focus special of my prosecutor's writing, the primary majority misapplies the related doctrines of overbreadth and vagueness. Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is neither overbroad nor vague in its requirement that campaign committees report receipt of in-kind contributions. The majority also makes the troubling pronouncement that an act is 1 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 2 In generally "express speech. U.S. 449, campaign-finance terminology, "issue advocacy" is understood to mean speech about public issues, whereas advocacy" refers to campaign or election-related Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 456 (2007). 3 "A John Doe proceeding is intended as an independent, investigatory tool used to ascertain whether a crime has been committed and if so, by whom." In re John Doe Proceeding, 2003 WI 30, ¶22, 260 Wis. 2d 653, 660 N.W.2d 260. A John Doe proceeding, by virtue of its secrecy, serves as an essential investigative device that protects "'innocent citizens from frivolous and groundless prosecutions.'" Id. (citation omitted). 2 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc not a regulable disbursement or contribution under Chapter 11 unless it involves equivalent. This express is an advocacy erosion of or its Chapter functional 11 that will profoundly affect the integrity of our electoral process. I cannot agree with this result. ¶561 It is conveniently also imperative overlooks the to note special that the prosecutor's majority secondary argument of criminal activity in its effort to end this John Doe investigation. investigate coordinated Specifically, the special prosecutor seeks to whether their particular spending express with advocacy candidates or groups candidate committees in violation of their sworn statement of independence under Wis. Stat. § 11.06(7). prosecutor present utilizes evidence of a Despite the fact that the special significant such illegal portion of his coordination, brief the to majority determines, without explanation, that the John Doe investigation is over. ¶562 Has the majority abused its power in reaching this conclusion? The majority's rush to terminate this investigation is reminiscent of the action taken by the United States District Court for the Eastern District of Wisconsin in O'Keefe v. Schmitz, 19 F. Supp. 3d 861 (E.D. Wis.) order clarified, No. 14C-139, 2014 WL 2446316 (E.D. Wis. May 30, 2014) (O'Keefe v. Schmitz), an action that was both criticized and reversed by the United States Court of Appeals for the Seventh Circuit in O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014) cert. denied, No. 14-872, 2015 WL 260296 (U.S. May 18, 2015). 3 Although the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc focus of my writing lies elsewhere, the majority's error in this regard cannot be overlooked. ¶563 For these reasons, I respectfully dissent in State ex. rel. Two Unnamed Petitioners v. Peterson (Two Unnamed Petitioners). ¶564 However, like the majority, I conclude that the special prosecutor and certain Unnamed Movants have failed to meet their heavy burden of establishing that the John Doe judge violated a plain legal duty in either initiating these proceedings or quashing various subpoenas and search warrants related to the investigation. majority Peterson) in State and ex. State rel. ex. Accordingly, I concur with the Schmitz rel. v. Three Peterson (Three Unnamed Petitioners). Peterson Unnamed (Schmitz v. Petitioners v. In concurring in Schmitz v. Peterson, it is significant for me that when an appellate court decides to issue discretionary decision. a supervisory writ, it is a rare, Madison Metro. Sch. Dist. v. Circuit Ct. for Dane Cnty., 2011 WI 72, ¶¶33-34, 336 Wis. 2d 95, 800 N.W.2d 442. Here, the John Doe judge also made a discretionary decision in deciding a complex legal issue. Deference should be given where there is such discretion. ¶565 The John Doe investigation should not be terminated because the special prosecutor's primary argument regarding criminal activity is supported by Chapter 11, and the United States Supreme Court has not concluded that the First Amendment to the United States Constitution regulation underlying that argument. 4 prohibits the type of See O'Keefe, 769 F.3d at No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc 942. 4 The certain special campaign prosecutor committees seeks investigate to failed to comply whether with their statutory obligation to report receipt of in-kind contributions (in the form connection of with committee's coordinated various duty to spending recall report such on issue advocacy) elections. in-kind A in campaign contributions is prescribed by Wis. Stat. § 11.06(1). 5 ¶566 In Two Unnamed Petitioners, the majority holds that the special prosecutor fails to advance a valid argument under Wisconsin criminal investigation. not confront law and rashly closes the John Doe In reaching its conclusion, the majority does the plain language of Wis. Stat. § 11.06(1). Instead, it focuses more generally on Chapter 11's definition of 4 It is noteworthy that the United States Supreme Court denied certiorari review in O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014) cert. denied, No. 14-872, 2015 WL 260296 (U.S. May 18, 2015), a case in which the United States Court of Appeals for the Seventh Circuit determined that the Supreme Court has not decided whether the First Amendment prohibits the regulation of coordinated issue advocacy between a candidate or campaign committee and an issue advocacy group. If the Supreme Court eventually determines that the First Amendment allows that type of regulation, the decision would validate the special prosecutor's in-kind contribution argument. As discussed below, it can be argued that Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), supports the special prosecutor's position, but that decision, while helpful, is certainly not definitive on the issue. 5 Wisconsin Stat. § 11.06(1) provides, in relevant part: "Except as provided in subs. (2), (3) and (3m) and ss. 11.05(2r) and 11.19(2), each registrant under s. 11.05 shall make full reports . . . of all contributions received, contributions or disbursements made, and obligations incurred." (emphasis added). 5 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc "political purposes," because in its view, "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." 6 ¶567 The "political majority determines purposes" in that Wis. the Stat. definition § 11.01(16) of is unconstitutionally overbroad and vague regardless of the context in which it applies to regulate political speech under Chapter 11. 7 This is so, the majority reasons, primarily because the definition encompasses an influencing" an election. 8 "for the purpose of act done "for the purpose of To support the notion that the phrase influencing" an election is hopelessly overbroad and vague, even where it operates to regulate campaign contributions, the majority purports to borrow pages from Buckley v. Valeo, 424 U.S. 1 (1976), and Wis. Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) (Barland II). It then applies a narrowing construction to § 11.01(16) to confine the definition of "political purposes" to express advocacy or its functional equivalent, because that construction is "'readily available' due to the Seventh Circuit's decision in Barland II." 9 The upshot, according to the majority, is that an 6 Majority op., ¶62. 7 Majority op., ¶67. 8 Majority op., ¶66. 9 Majority op., ¶67. 6 No. act 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc is not a regulable disbursement or contribution under Chapter 11 unless it involves express advocacy or its functional equivalent. 10 ¶568 Turning to the special prosecutor's arguments regarding criminal activity, the majority summarily concludes: "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." 11 The majority must therefore dismiss the special prosecutor's in-kind contribution argument on the basis that Wis. Stat. § 11.06(1) contains the terms "contribution" and "disbursement," triggering the definition of "political purposes." according to the unconstitutionally majority's overbroad and logic, vague that unless thereby It follows, § 11.06(1) its reach limited to express advocacy or its functional equivalent. is is Since the special prosecutor's in-kind contribution argument relies on coordinated issue advocacy, not express advocacy, the majority swiftly rejects that argument. 12 10 See majority op., ¶¶62, 67. 11 Majority op., ¶69. 12 While I disagree with the majority's dismissal of the special prosecutor's in-kind contribution argument, I do agree with the majority's criticism of some of the purported tactics used in gathering evidence in this particular John Doe investigation. As the majority identifies, some of these methods certainly appear to be improper and open to severe disagreement. See majority op., ¶¶28-29. At this point, the actual facts concerning the tactics used have not been fully established, but the allegations are very troubling. 7 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc ¶569 As previously mentioned, I conclude that Wis. Stat. § 11.06(1) is neither overbroad nor vague in its requirement that campaign contributions. committees report receipt of in-kind I recognize that under the special prosecutor's argument a reportable in-kind contribution requires a "political purpose," thus implicating the phrase "for the purpose of influencing" an election that the majority finds so troubling. However, in Buckley, the United States Supreme Court indicated that this phrase is hardly problematic "in connection with the definition of a contribution because of the limiting connotation created by the general understanding political contribution." other words, it campaign-finance is of what constitutes Buckley, 424 U.S. at 23 n.24. common sense——not attorney——that tells the retention people of a In of a ordinary intelligence what is and is not a campaign contribution. ¶570 The majority disregards this important language in Buckley, opting instead to justify its overbreadth and vagueness determination with the Supreme Court's discussion of the phrase "for the purpose of influencing" an election in a completely different context: expenditures. The the regulation majority's of failure independent to perform political a context specific analysis of the subject phrase in reaching its blanket conclusion that Chapter 11's definition of "political purposes" is overbroad and vague represents a fundamental misunderstanding of Buckley and its progeny, including Barland II. It further ignores the principle that "The First Amendment vagueness and overbreadth calculus must be calibrated to the kind and degree 8 No. of 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc the burdens regulatory class, the imposed scheme. more on The acute those greater the need who must the burden for comply on clarity the with the regulated and precision." Unnamed Petitioners Barland II, 751 F.3d at 837. ¶571 The majority's (including its rejecting failure the errors to special in address Two Wis. prosecutor's Stat. § 11.06(1) in-kind in contribution argument) serve to terminate a valid John Doe investigation. They also work to limit the reach of Wisconsin's campaign- finance law in a manner that will undermine the integrity of our electoral process. I disagree with these consequences. I. TWO UNNAMED PETITIONERS (ORIGINAL ACTION) ¶572 To support my position that the John Doe investigation should move forward because the special prosecutor advances a valid argument under Wisconsin criminal law, I begin by identifying the relevant portions of Chapter 11 that support that argument. pertaining to Next, the I discuss related some doctrines important of principles overbreadth and vagueness, as well as significant campaign-finance law decisions embodying those principles. These general principles and decisions lead me to determine that there are no overbreadth and vagueness concerns with respect to the statute that supports the special activity. prosecutor's primary argument regarding criminal Finally, I discuss the question of whether the First Amendment to the United States Constitution forbids regulation of coordinated issue advocacy between a candidate or a campaign committee and an issue advocacy group. 9 I conclude that the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc absence of Supreme Court precedent regarding an issue that has sparked "lively debate among judges and academic analysts" 13 is an important factor as to why this John Doe investigation should not be terminated. A. Under Chapter 11, a Campaign Committee Must Report its Receipt of In-Kind Contributions in the Form of Coordinated Spending on Issue Advocacy. ¶573 In the special prosecutor's own words, the "non- disclosure of reportable campaign contributions is at the heart of this [John Doe] investigation." The following illustrates the special prosecutor's in-kind contribution argument: X is a nonprofit corporation that engages in political speech on issues of public importance. Y is a When X campaign committee 14 regulated under Ch. 11. spends money on issue advocacy, it does not operate independently of Y. Rather, X coordinates its spending with Y, such that Y may be involved in the timing, content, or placement of issue advocacy that 13 14 O'Keefe, 769 F.3d at 942. Wis. Stat. committee" as: § 11.01(15) defines a "personal campaign A committee which is formed or operating for the purpose of influencing the election or reelection of a candidate, which acts with the cooperation of or upon consultation with the candidate or the candidate's agent or which is operating in concert with or pursuant to the authorization, request or suggestion of the candidate or the candidate's agent. 10 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc is made for its benefit. Y has received an in-kind contribution that must be reported under Chapter 11. 15 ¶574 The special prosecutor's in-kind contribution argument is rooted in Wis. Stat. § 11.06. That section, entitled "Financial report information; application; funding procedure," generally requires Chapter 11 registrants 16 to "make full reports . . . of disbursements § 11.06(1) all contributions made, and (emphasis received, obligations added). contributions incurred." Candidates and Wis. their or Stat. campaign committees have an absolute duty to register with the Government Accountability Board (GAB) there to no appears be under Wis. Stat. question that the § 11.05(2g), general so reporting obligations prescribed by § 11.06(1) apply to those entities. ¶575 The § 11.01(6)(a). term It "contribution" includes "A is defined gift, by Wis. Stat. subscription, loan, advance, or deposit of money or anything of value . . . made for political purposes." Wis. Stat. § 11.01(6)(a)1. The definition encompasses contributions that are received in cash, i.e., a 15 To be clear, the special prosecutor's main focus in this investigation is on certain campaign committees' failure to report receipt of in-kind contributions (in the form of coordinated spending on issue advocacy), not on certain issue advocacy groups' failure to report making such in-kind contributions. So what the majority mistakenly refers to as "illegal campaign coordination" is in reality a campaign committee's failure to report its receipt of an in-kind contribution. 16 Chapter 11 imposes registration requirements on political speakers such as candidates, their campaign committees, political committees, independent groups, and individuals. See Wis. Stat. § 11.05. 11 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc "gift . . . of money," and those that are received "in kind," i.e., "anything of value." See Wis. Coal. for Voter Participation, Inc. v. State Elections Bd., 231 Wis. 2d 670, 680, 605 N.W.2d 654 (Ct. App. 1999) (WCVP). Wisconsin Admin. Code § GAB 1.20(1)(e) defines an "in-kind contribution" as "a disbursement by a contributor to procure a thing of value or service for the disbursement." benefit of a registrant who authorized the To constitute a cash or in-kind contribution, money must be given or spent for "political purposes," which is defined by Wis. Stat. § 11.01(16) to include an act done "for the purpose of influencing" an election. ¶576 Reading the above definitions in conjunction with Wis. Stat. § 11.06(1), it is clear that a campaign committee has a duty to report its receipt of cash as contributions. It is equally clear that a campaign committee has a duty to report its receipt of services as contributions if it authorizes a third party to pay for those services for the benefit of the campaign. ¶577 But what if a campaign committee does not necessarily authorize or control a third party's spending on services for the campaign's benefit, but instead prearranges that spending with the third party? Chapter 11 instructs that under these circumstances a candidate committee has received a reportable contribution as well. See Wis. Stat. § 11.06(4)(d) ("A . . . disbursement . . . made . . . for the benefit of a candidate is reportable by the candidate or the candidate's personal campaign committee if it is made or incurred 12 with the authorization, No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc direction or control of or otherwise by prearrangement with the candidate or the candidate's agent.") (emphasis added). ¶578 As the foregoing discussion demonstrates, under Chapter 11, "contributions to a candidate's campaign must be reported express advocacy." WCVP, 231 Wis. 2d at 679 (emphasis in original). There is nothing whether in or the § 11.01(6)(a)1, not plain they constitute language § 11.06(4)(d), of or Wis. Wis. Stat. Admin. § 11.06(1), Code § GAB 1.20(1)(e) that limits receipt of reportable contributions to express advocacy or its functional equivalent. ¶579 Returning to the illustration of the special prosecutor's in-kind contribution argument, it is evident that Chapter 11 supports that argument in one of two ways. First, Y, the campaign committee, may have received a reportable in-kind contribution if the nature of its coordination with X is such that Y authorized or controlled X's spending on issue advocacy. Second, Y may have received a reportable in-kind contribution if the nature of its coordination with X is such that the two entities prearranged X's spending on issue advocacy. ¶580 Thus, absent the majority's limiting construction that confines the term "contribution" function equivalent, the special to express prosecutor advocacy makes or a its valid argument under Wisconsin criminal law. 17 17 The intentional failure to received is a violation of criminal §§ 11.27(1) and 11.61(1)(b). 13 disclose contributions law. See Wis. Stat. No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc B. The Key Inquiry in First Amendment Overbreadth and Vagueness Analysis is Whether the Statute at Issue Reaches a Substantial Amount of Constitutionally Protected Activity. ¶581 Having identified the portions of Chapter 11 that support the special prosecutor's in-kind contribution argument, I turn to the related doctrines of overbreadth and vagueness to highlight some important principles that the majority opinion overlooks. I also examine relevant campaign-finance decisions that embody those principles. i. Overbreadth and Vagueness ¶582 "According doctrine, a substantial Williams, to statute amount 553 U.S. our is of First facially protected 285, 292 Amendment invalid if speech." (2008) overbreadth it prohibits United (emphasis States added). a v. The Supreme Court in Williams explained: The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed. Id. (emphasis added) (internal omitted). When engaging first "is to step in construe citations overbreadth the 14 and analysis, challenged quotations a statute; court's it is No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc impossible to determine whether a statute reaches without first knowing what the statute covers." (emphasis added). the second too far Id. at 293 Once a court interprets the statute at issue, step is to determine whether it "criminalizes substantial amount of protected expressive activity." a Id. at 297. ¶583 "Like the overbreadth doctrine, the void-for-vagueness doctrine protects against the ills of a law that 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, encourages or is so seriously standardless discriminatory that it authorizes enforcement.'" Ctr. or for Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir. 2012) (quoted source and citation omitted). Where the statute at issue implicates First Amendment rights, a greater degree of precision Buckley, and 424 guidance U.S. at is 77 required. ("Where Id. First at 479; Amendment see rights also are involved, an even 'greater degree of specificity' is required.") (quoted source and citation omitted). That said, "'perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.'" Williams, 553 U.S. at 304 (quoted source and citation omitted). overbreadth analysis, vagueness analysis determine whether a must it court engaging interpret restricts constitutionally protected activity. the a in First statute at substantial Similar to Amendment issue and amount of Madigan, 697 F.3d at 479. If it does not, a facial challenge to the statute must fail. Id. 15 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc ¶584 The takeaway is that "The First Amendment vagueness and overbreadth calculus must be calibrated to the kind and degree of the burdens imposed on those who must comply with the regulatory class, the scheme. more The acute greater the the burden for clarity need on the and regulated precision." Barland II, 751 F.3d at 837. ii. Relevant Campaign-Finance Decisions ¶585 That First Amendment overbreadth and vagueness analysis is context specific is best exemplified by Buckley, the case in which the United States Supreme Court created the express-advocacy limitation that is at the heart of this case. In Buckley, the Supreme Court considered various challenges to the Federal Election Campaign Act of 1971's (FECA) restrictions on contributions and independent expenditures. The main provisions under review involved: (1) limitations on individual and group independent individual political contributions; expenditures; and expenditures. ¶586 Prior group and (3) political (2) disclosure contributions limitations on requirements for and independent Buckley, 424 U.S. at 7. to addressing the subject enactments, Buckley discussed the kind and degree of burdens imposed on political speakers through limitations on the giving and spending of money in political campaigns. Regarding limitations on contributions, the Supreme Court explained: a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of 16 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc support for the candidate and his views, but does not communicate the underlying basis for the support . . . . A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. Id. at 20-21 (emphasis added). independent expenditures In comparison, limitations on "represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech." Id. at 19. This is because "A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of reached." their exploration, and the size of the audience Id. ¶587 Bearing in mind the relative burdens on political speech imposed by limitations on contributions and independent expenditures, the Supreme Court turned to address constitutional challenges to FECA's $1,000 limitation on individual and group political contributions to any single candidate per election. Under FECA, the term "contribution" was defined to include "a gift, subscription, loan, advance, or deposit of money or anything of value . . . made for the purpose of influencing" an election. Id. at 182. The appellants did not challenge the subject enactment as unconstitutionally overbroad and vague on the basis that it incorporated the phrase "for the purpose of influencing" an election. However, in a footnote, Buckley all 17 No. but 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc assured that the phrase poses little overbreadth and vagueness concerns in the context of regulating contributions: The Act does not define the phrase "for the purpose of influencing" an election that determines when a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning to alleviate various problems in other contexts. . . . The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution. Id. at 23 n.24 (internal citations omitted). ¶588 Given the Supreme Court's recognition that limitations on contributions impose marginal burdens on free speech, its decision not to require a more precise definition of the term "contribution" is entirely consistent with the context specific inquiry that must take place when engaging in overbreadth and vagueness analysis. limitation on Ultimately, individual and Buckley group upheld political FECA's contributions, finding a "sufficiently important interest" in preventing quid pro quo corruption or the appearance thereof. ¶589 The Supreme Court then Id. at 25-28. considered FECA's $1,000 limitation on independent expenditures "relative to a clearly identified candidate." Id. at 39. In that context, the appellants successfully asserted a vagueness challenge to the subject enactment's use of the above quoted phrase. to the Supreme limitation on Court's determination independent burden on political speech. the indefiniteness of the was expenditures the posed See id. at 39-44. phrase 18 "relative Significant fact a that the substantial It reasoned that to a clearly No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc identified candidate" "fails to clearly mark the boundary between permissible and impermissible speech . . . ." 41. Id. at Thus, it searched for a narrowing construction to save the statute from unconstitutionality. ¶590 The Supreme Court found that narrowing construction in the text of the subject enactment itself: The section prohibits any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocating the election or defeat of such candidate, exceeds, $1,000. This context clearly permits, if indeed it does not require, the phrase "relative to" a candidate to be read to mean "advocating the election or defeat of" a candidate. Id. at 42 (internal quotations omitted). that the readily "refocuse[d] the distinction between apparent limiting vagueness It then determined construction question," discussion of issues Id., and simply "[f]or the candidates and advocacy of election or defeat of candidates may often dissolve in practical application." Id. As a result, the Supreme Court further narrowed FECA's limitation on independent expenditures to "expenditures advocate the for election communications or candidate for federal office." defeat that of a in express clearly terms identified Id. at 44. ¶591 The express advocacy limitation created in Buckley was therefore "an endpoint of statutory interpretation, not a first principle of constitutional law." McConnell v. Fed. Election Comm'n, 540 U.S. 93, 190 (2003), overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010). Ultimately, the Supreme Court determined that FECA's limitation 19 No. on 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc independent impermissibly expression. expenditures, burdened even the as narrowly constitutional right construed, of free Buckley, 424 U.S. at 47-51. ¶592 Perhaps most significant for purposes of the instant action is Buckley's discussion of FECA's disclosure requirements for contributions and independent expenditures. The enactment at issue imposed reporting obligations on individuals and groups that made contributions or independent expenditures aggregating over $100 in a calendar year "other than by contribution to a political committee or candidate." ¶593 FECA defined Id. at 74-75. the terms "contribution" and "expenditure" to include anything of value made "for the purpose of influencing" an election. Id. at 77. This time Buckley took issue with that phrase, but only as it operated to regulate independent expenditures. and vagueness Id. at 77-80. 18 concerns, the To avoid overbreadth Supreme Court construed "expenditure" for purposes of the subject enactment "to reach only funds that expressly advocate the election or defeat of a clearly identified candidate." enactment withstood Id. at 80. constitutional scrutiny, So construed, the as Buckley found disclosure to be "a reasonable and minimally restrictive method of furthering First Amendment 18 values by opening the basic It is worth noting that Buckley found no overbreadth or vagueness concerns with respect to FECA's definition of "contribution" even though that definition included "expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate." Buckley v. Valeo, 424 U.S. 1, 78 (1976). 20 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc processes of our federal election system to public view." Id. at 82. ¶594 The foregoing discussion reveals that the majority misconstrues Buckley. Buckley's conclusion is that the phrase "for influencing" the Amendment purpose of overbreadth and vagueness an election concerns poses in First regard to independent expenditures, not contributions received. 19 ¶595 In the aftermath of Buckley, the Supreme Court has continued to utilize the express advocacy limitation to curb FECA restrictions on independent expenditures. For example, in Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 245-49 (1986) (MCFL), the Supreme Court applied Buckley's 19 This court previously examined Buckley for the purpose of clarifying the meaning of the term "express advocacy" as used in Wis. Stat. § 11.01(16). See Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999) (WMC). In WMC, a Wisconsin corporation sought and received assurance from the Elections Board of the State of Wisconsin (the Board) that certain advertisements it wanted to broadcast prior to a general election did not qualify as express advocacy. Id. at 653, 677 n.24. The Board later determined that the ads that were broadcast constituted express advocacy under a context-based approach toward defining the term. Id. at 678-79. We turned to Buckley to decide whether the corporation had fair warning that its ads constituted express advocacy, ultimately concluding that it did not. Id. at 662-81. As part of our discussion, we recognized that the United States Supreme Court created the express advocacy limitation in Buckley to avoid overbreadth and vagueness concerns with respect to FECA's regulation of independent expenditures. See id. at 664-66. So it would be a mistake to rely on WMC for the proposition that the express advocacy limitation is necessary to cure constitutional infirmities with respect to Chapter 11's regulation of campaign contributions received. See majority op., ¶68 n. 23. 21 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc express advocacy corporations limitation using to treasury FECA's funds to prohibition make independent expenditures in connection with any federal election. Buckley's overbreadth and vagueness analysis with on Tracking respect to FECA's disclosure requirements on independent expenditures, the Supreme Court in MCFL determined that FECA's broad definition of the term "expenditure," i.e., anything of value made "for the purposes of influencing" an election, posed overbreadth concerns in the context of the "more intrusive provision that directly regulate[d] independent spending." Id. at 246-49. Accordingly, it held that the term "expenditure" in the subject provision was limited to communications for express advocacy. ¶596 That product of Buckley's express statutory advocacy interpretation Id. at 249. limitation designed to was the avoid overbreadth and vagueness concerns solely with respect to the statutory language at issue is confirmed by McConnell, 540 U.S. at 191-93. There, the Supreme Court considered challenges to the Bipartisan Campaign Reform Act of 2002 (BCRA). Id. at 189. BCRA created a new term, "electioneering communication," 20 which placed restrictions on communications for express advocacy as well as issue advocacy. Id. 20 The plaintiffs asserted The term "electioneering communication" was defined to encompass "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and appears within 60 days of a federal general election or 30 days of a federal primary election. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 189 (2003) overruled on other grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010). 22 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc constitutional challenges to the new term as it applied to both the expenditure essence, and they communication" disclosure argued must be contexts. that limited the to Id. term at 190. In "electioneering communications for express advocacy because "Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech." ¶597 McConnell patently Id. rejected that contention, reasoning: a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command. In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL . . . in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that Buckley's express advocacy category was a product of statutory construction. In short, the concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities. . . . We have long rigidly adhered to the tenet never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, . . . for [t]he nature of judicial review constrains us to consider the case that is actually before us, . . . Consistent with that principle, our decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaignrelated speech. 23 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc Id. at 191-93 (emphasis quotations omitted). added) (internal citations and Thus, it would be error for a court to rely on Buckley to narrow a statute's reach to express advocacy where it does not pose the same overbreadth and vagueness concerns that drove the Supreme Court's analysis in Buckley. See id. at 194. ¶598 The entirely Seventh consistent Circuit's with the decision notion in that advocacy limitation is context specific. Barland Buckley's II is express There, Wisconsin Right to Life (WRTL), a nonprofit tax-exempt corporation, "sued to block enforcement of many state statutes and rules against groups that spend money for political speech independently of candidates and parties." added). Barland II, 751 F.3d at 807 (emphasis Specifically, the complaint alleged "that the challenged laws are vague and overbroad and unjustifiably burden the free-speech rights of independent violation of the First Amendment." political speakers Id. (emphasis added). in Lest there be any confusion, the Seventh Circuit specified: "Neither [WRTL] nor its state PAC contributes to candidates or other political committees, nor are they connected with candidates, their campaign committees, or political parties. That is to say, they operate independently of candidates and their campaign committees." ¶599 So Id. at 809. when the Seventh Circuit considered WRTL's overbreadth and vagueness challenge to Chapter 11's definition of "political purposes," it did so in the context of that term's restrictions on independent expenditures, 24 not contributions No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc received. courts Any should other not reading contravenes a "formulate the constitutional rule of principle that law broader than is required by the precise facts to which it is to be applied . . . ." quotations Barland McConnell, 540 U.S. at 193 (citation and omitted). II was that To be clear, Chapter the 11's GAB's definition concession of in "political purposes" was overbroad and vague "in the sense meant by Buckley . . . ." Barland II, 751 F.3d at 832. As demonstrated, Buckley was concerned with the phrase "for the purpose of influencing" an election where it operated expenditures, not contributions. to regulate independent Thus, it is incorrect to rely on Barland II to support the notion that the subject phrase poses overbreadth and vagueness concerns in the context of Chapter 11's regulation of contributions received. 21 ¶600 In sum, the key inquiry in First Amendment overbreadth and vagueness analysis is whether the statute at issue reaches a substantial amount of constitutionally protected speech. result, a court's analysis in this regard must be As a context specific——"the greater the burden on the regulated class, the more acute the need for clarity and precision." 21 Id. at 837. The majority states that "Although Barland II did not involve an allegation of coordination, that distinction is meaningless in determining whether the definition of 'political purposes' is vague or overbroad." Majority op., ¶67 n.22. Actually, it makes all the difference. Under Chapter 11, coordinated disbursements are treated as contributions. 25 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc Buckley embodies that principle in its disparate treatment of contributions and independent expenditures under FECA. 22 C. There are No Overbreadth and Vagueness Concerns with Respect to Wis. Stat. § 11.06(1). ¶601 Wisconsin Stat. § 11.06(1) is neither overbroad nor vague in its requirement that campaign committees report receipt of in-kind contributions in the form of coordinated spending on issue advocacy. ¶602 As noted, the primary inquiry is whether Wis. Stat. § 11.06(1) reaches protected speech. a substantial amount of Madigan, 697 F.3d at 479. constitutionally Of course, in order to answer that question, it is necessary to examine the plain language of the statute. ¶603 Generally speaking, Williams, 553 U.S. at 293. Wis. Stat. § 11.06(1) requires registrants to "make full reports . . . of all contributions received, contributions or disbursements made, and obligations incurred." under Registrants must file frequent and detailed reports § 11.06; Barland II summarized a variety of those reporting obligations as follows: For contributions received in excess of $20, the report must include the date of the contribution, the name and address of the contributor, and the cumulative total contributions made by that contributor for the calendar year. For contributions 22 For a thorough discussion that supports my interpretation of Buckley's distinction between contributions and independent expenditures, see generally Brent Ferguson, Beyond Coordination: Defining Indirect Campaign Contributions for the Super PAC Era, 42 Hastings Const. L.Q. 471 (2015). 26 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc received in excess of $100, the registrant must obtain and report the name and address of the donor's place of employment. All other income in excess of $20— including transfers of funds, interest, returns on investments, rebates, and refunds received—must be listed and described. Registrants must report all disbursements. For every disbursement in excess of $20, the registrant must include the name and address of the recipient, the date of the disbursement, and a statement of its purpose. Individuals and committees not primarily organized for political purposes need only report disbursements made for the purpose of expressly advocat[ing] the election or defeat of a clearly identified candidate. In other words, committees in this category need not report general operating expenses; for all other committees, administrative and overhead expenses must be reported as disbursements. All disbursements that count as contributions to candidates or other committees must be reported. Barland II, 751 F.3d at 814 (internal citations and quotations omitted). "No person may prepare or submit a false report or statement to a filing officer under [Chapter 11]." § 11.27(1). Wis. Stat. A registrant that intentionally violates § 11.27(1) is subject to criminal penalty. See Wis. Stat. § 11.61(1)(b). ¶604 To understand Wis. Stat. § 11.06(1)'s full reach on constitutionally protected speech, the terms "contribution" and "disbursement" must be construed. 23 As previously noted, a "contribution" includes a "gift . . . of money . . . or anything 23 Wisconsin Stat. § 11.06(1) includes the term "obligation" as well. Under Chapter 11, "incurred obligation" is defined as "every express obligation to make any contribution or disbursement . . . for political purposes." Wis. Stat. § 11.01(11). Since that term relies on a promise to make a "contribution" or "disbursement," it is unnecessary to separately analyze it. 27 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc of value . . . made for political purposes." 11.01(6)(a)1. contributor Wis. Stat. § The definition encompasses a "disbursement by a to procure a thing of value or service for benefit of a registrant who authorized the disbursement." Admin. Code § GAB 1.20(1)(e). A disbursement made for the Wis. the benefit of a candidate that is prearranged with the candidate or the candidate's agent is treated as a contribution to the candidate or the campaign committee that must be reported as a contribution received. ¶605 A Wis. Stat. § 11.06(4)(d). "disbursement" distribution, loan, advance, includes "A deposit, purchase, or gift of payment, money anything of value . . . made for political purposes." or Wis. Stat. § 11.01(7)(a)1. ¶606 A "contribution" and a "disbursement" must be made for "political include purposes." an election. act done "Political "for the purposes" purpose is to influencing" of defined an Wis. Stat. § 11.01(16). ¶607 To reiterate, the phrase "for the purpose of influencing" an election has caused overbreadth and vagueness problems in the context of campaign-finance regulation where it serves to restrict independent expenditures. See Buckley, 424 U.S. at 77-80; MCFL, 479 U.S. at 249; Barland II, 751 F.3d at 833. That is because restraints on independent expenditures have the potential to encumber a substantial amount of protected speech. Stat. Buckley, 424 U.S. at 19. § 11.06(1)'s reporting At first blush, then, Wis. requirement for "disbursements" raises the specter of unconstitutionality as far as independent 28 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc spending is concerned. dilemma, exempting But Wis. Stat. § 11.06(2) solves that from § 11.06(1)'s reporting requirement independent disbursements that do not "expressly advocate the election or defeat of a clearly identified candidate . . . ." Thus, with respect to § 11.06(1)'s regulation of independent disbursements, there are no overbreadth and vagueness concerns in the sense meant by Buckley. ¶608 That leaves the question of whether the phrase "for the purpose of influencing" an election, incorporated in Wis. Stat. § 11.06(1) through the definition of "contribution," raises constitutional concerns in the sense meant by Buckley. Clearly, the answer is "no." ¶609 For starters, restrictions on contributions marginal as opposed to substantial burdens on speech. pose Id. at 20-21; see also Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440 (2001) (Colorado II) ("Restraints on expenditures generally curb more expressive and associational activity than limits on contributions do."). The main rationale is that restraints on contributions have little direct impact on political communication, as they permit the symbolic expression of support and leave the contributor free to discuss candidates and issues. Buckley, 424 U.S. at 21. Arguably, that justification might not apply with equal force to contributions that take the form of coordinated issue advocacy, since such contributions do "communicate the underlying basis for the [contributor's] support." Id. But there is a simple solution to that problem: stop coordinating. 29 In the absence of No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc coordination, the contributor is free to discuss candidates and issues. ¶610 That restrictions on contributions impose marginal burdens on free speech is especially true where the restriction at issue involves disclosure rather than a ceiling on the amount of money a person can give to a campaign. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 369 (2010) ("The Court has explained that disclosure is a less restrictive alternative to more majority comprehensive regulations of is acknowledge the forced to speech."). fact Even that the disclosure requirements pose less significant burdens on the exercise of free speech. 24 So it is important to keep in mind that Wis. Stat. § 11.06(1) requires disclosure of contributions made and received. ¶611 In light of the more modest burdens that Wis. Stat. § 11.06(1) imposes on the free speech rights of those that make and receive contributions, it is clear that less precision and clarity is required with respect to what is regulated. See Barland II, 751 F.3d at 837 ("The greater the burden on the regulated class, precision."). the more acute the need for clarity and That leads me to conclude that the phrase "for the purpose of influencing" an election is not problematic where it operates to regulate contributions under § 11.06(1). Buckley supports my position. Indeed, See Buckley, 424 U.S. at 23 n.24 ("The use of the phrase presents fewer problems in connection 24 Majority op., ¶48. 30 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution."). ¶612 It is common sense that a gift of money to a candidate or a campaign committee constitutes an act made for the purpose of influencing an election. It is also common sense that money spent on services for the benefit of a candidate or a campaign committee that authorized the spending is an act done for the purpose of influencing an election. Similarly, where a candidate or a candidate's agent and a third party prearrange the third party's spending for the benefit of the candidate, common sense says the spending influencing an election. is done for the purpose of The point is that the aforementioned actions are connected with a candidate or his or her campaign. ¶613 Therefore, I conclude that Wis. Stat. § 11.06(1) is neither overbroad nor vague in its requirement that candidate committees report receipt of in-kind contributions in the form of coordinated spending on issue advocacy. ¶614 Wis. The majority disagrees, although it does not address Stat. special prosecutor Wisconsin special § 11.06(1) criminal in reaching fails to law. Rather, prosecutor's primary its advance the argument a conclusion valid majority by argument the under dismisses analyzing definition of the term "in-kind contribution." 25 that the the GAB's That approach is inconsistent with First Amendment overbreadth and vagueness 25 See majority op., ¶74. 31 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc analysis. See Williams, 553 U.S. at 293 ("The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers."); Madigan, 697 F.3d at 479 ("'In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.'") (quoted source and citation omitted). Wisconsin Admin. Code § GAB 1.20(1)(e), standing alone, does not regulate protected speech——it is a definition. ¶615 Had the majority performed a context specific First Amendment would overbreadth have and concluded vagueness that analysis, Wis. it Stat. presumably § 11.06(1) is unconstitutionally overbroad and vague in the sense meant by Buckley because it contains the terms "contribution" and "disbursement," thereby triggering "political purposes" and the phrase "for the purpose of influencing" an election. 26 But a correct reading of Buckley and its progeny leads to a conclusion that there are no constitutional infirmities with respect to § 11.06(1). ¶616 The majority's contrary conclusion legislature's intent in enacting Chapter 11. a limiting construction to cure an ignores the When searching for overly broad or vague statute, "we examine the language of the statute as well as its legislative 26 history to determine See majority op., ¶¶66-67. 32 whether the legislature No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc intended the statute to be applied in its newly-construed form." State v. Janssen, 219 Wis. 2d 362, 380, 580 N.W.2d 260 (1998). By rejecting the special prosecutor's in-kind contribution argument and holding that contributions received need not be reported under Wis. Stat. § 11.06(1) unless they involve express advocacy or its functional equivalent, the majority disregards the legislature's declaration of policy in creating Chapter 11: ensuring that the public is fully informed of the true source of financial support to candidates for public office. Wis. Stat. § 11.001. ¶617 The majority's errors will have a detrimental effect on the integrity of Wisconsin's electoral process, particularly in the context of campaign contributions. holding, an act is not a campaign Under the majority's contribution unless involves express advocacy or its functional equivalent. 27 it The majority claims that its limiting construction is necessary to place issue advocacy beyond Chapter 11's reach, 28 but at what cost? pro Surely gifts of money to a campaign trigger the same quid quo corruption communications equivalent, and for yet concerns that express gifts justify advocacy of money the or its would contributions under the majority's holding. regulation not of functional constitute Since Buckley, the United States Supreme Court has consistently upheld restraints on such campaign contributions. 27 Majority op., ¶67. 28 Majority op., ¶¶66-67. 33 See O'Keefe, 769 F.3d at 941. No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc Thus, I question the propriety of the majority's decision to tear down those restraints. ¶618 In I conclude prosecutor's special in-kind majority's sum, contrary that Chapter contribution determination is 11 supports the argument. the The product of a fundamental misunderstanding and misapplication of Buckley and its progeny, Amendment including overbreadth Barland and II, vagueness as well as principles the First that those decisions embody. D. The Question of Whether the First Amendment Prohibits Regulation of Coordinated Issue Advocacy Should Not Prevent the John Doe Investigation From Moving Forward. ¶619 Having concluded that the special prosecutor makes a valid remains argument under whether Constitution advocacy. 29 the Wisconsin First prohibits criminal Amendment regulation to of law, the the question United States coordinated issue This question should be addressed by the United States Supreme Court because it has sparked "lively debate among judges and academic analysts." Id. at 942. 29 Speech that is protected under the First Amendment is not necessarily immune to governmental regulation. See WilliamsYulee, 135 S. Ct. at 1667 ("[N]obody argues that solicitation of campaign funds by judicial candidates is a category of unprotected speech. As explained above, the First Amendment fully applies to Yulee's speech. The question is instead whether that Amendment permits the particular regulation of speech at issue here."). This point appears lost on the majority. See, e.g., majority op., ¶¶66-67. 34 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc ¶620 In injunction O'Keefe, that the would plaintiffs halt this filed John suit Doe seeking an investigation permanently, regardless of whether the special prosecutor could demonstrate a violation of Wisconsin law. Id. at 938. In addition, the complaint sought damages against five defendants, including the special District Attorney. prosecutor Id. and the Milwaukee County The United States District Court for the Eastern District of Wisconsin "held that the First Amendment to the Constitution (as applied to the states through the Fourteenth) forbids not only penalties for coordination between political committees and groups that engage in issue advocacy, but also any attempt by the state to learn just what kind of coordination has occurred." court rejected the qualified immunity. Id. defendants' As a result, the district argument that they enjoyed Id. at 939. ¶621 In reversing the district court's order that rejected the defendants' qualified immunity defense, the Seventh Circuit, in an opinion authored by Judge Easterbrook, reasoned: No opinion issued by the Supreme Court, or by any court of appeals, establishes ("clearly" or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issueadvocacy groups—let alone that the First Amendment forbids even an inquiry into that topic. The district court broke new ground. Its views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages. Id. at 942. ¶622 It is important to note that the United States Supreme Court has endorsed FECA's treatment of coordinated expenditures 35 No. as 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc contributions. As previously mentioned, in Buckley, the Supreme Court upheld FECA's limitations on individual and group political contributions notwithstanding the fact that "contribution" was defined to include coordinated expenditures. Buckley, 424 U.S. at 23-59. requirements Colorado on II, Supreme so Court expenditures candidates. it contributions the coordinated It also upheld FECA's disclosure defined. upheld between Id. FECA's upheld BCRA's treatment of 78. limitations political Colorado II, 533 U.S. at 465. at parties In on and Also, in McConnell, coordinated disbursements for electioneering communications as contributions, even though the term "electioneering communication" was defined to include issue advocacy. McConnell, 540 U.S. at 203. ¶623 The endorsement basic of rationale such underlying restrictions the is Supreme that Court's coordinated expenditures "are as useful to the candidate as cash . . . ." Colorado II, contributions" improper 533 U.S. that commitments at "might from 446. be Thus, given the 'as they are a quid candidate' (in "disguised pro quo for contrast to independent expenditures, which are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate's point of view." U.S. at 47). Id. (citing Buckley, 424 Since the prevention of quid pro quo corruption or its appearance remains a permissible goal justifying regulations on political speech, McCutcheon v. Fed. Election Comm'n, 134 S. Ct. 1434, 1441 (2014), it is 36 certainly likely that the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc regulation of coordinated issue advocacy will withstand First Amendment scrutiny. ¶624 Moreover, recently as determined noted that previously, the First the Amendment regulation of judicial candidates' speech. S. Ct. at 1662. compelling Supreme Court permits the Williams-Yulee, 135 The Supreme Court reasoned that states have a interest in preserving public confidence in their judges by preventing quid pro quo corruption or its appearance. Id. at 1667-68. Yulee bolsters First Amendment advocacy, Thus, an argument can be made that Williamsthe since special permits that prosecutor's the is regulation an area contention of where that coordinated corruption the issue or its appearance is a significant concern as well. ¶625 Because the special prosecutor makes a valid argument under Wisconsin Supreme Court criminal has not law, and concluded because that the the United First States Amendment prohibits the regulation of coordinated issue advocacy, the John Doe investigation should not be terminated. Not only do the majority's errors serve to end a valid John Doe investigation, they work to limit the reach of Wisconsin's campaign-finance law in a manner that will undermine the integrity of our electoral process. I disagree with these consequences and therefore respectfully dissent in Two Unnamed Petitioners. II. SCHMITZ v. PETERSON AND THREE UNNAMED PETITIONERS ¶626 The Three Unnamed questions presented Petitioners boil in down Schmitz to v. whether Peterson the John and Doe judge violated a plain legal duty in either initiating these 37 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc proceedings or quashing various subpoenas and search warrants related to the investigation. Both the special prosecutor in Schmitz v. Peterson and the Unnamed Movants in Three Unnamed Petitioners carry a heavy burden in this regard, as a supervisory writ is an "extraordinary and drastic remedy that is to be issued only upon some grievous exigency." State ex. rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110. I agree with the majority that neither the special prosecutor nor the Unnamed Movants have established the prerequisites for a writ to issue. 30 ¶627 However, decision in I Schmitz wish v. to clarify Peterson that should not the be majority's construed as holding that the evidence gathered in the John Doe proceedings fails to provide a reasonable belief that Wisconsin's campaignfinance law was violated. writ rests solely on The majority's decision to deny the the fact that Reserve Judge Gregory Peterson made a discretionary decision to quash the subpoenas and search warrants at issue. By the very nature of the supervisory writ standard, the majority's conclusion takes no position on the propriety of Reserve Judge Peterson's decision in this regard. III. CONCLUSION ¶628 By erroneously concluding that campaign committees do not have a duty under Wisconsin's campaign-finance law to report receipt 30 of in-kind contributions See majority op., ¶¶78, 101. 38 in the form of coordinated No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc spending on issue advocacy, the majority rejects the special prosecutor's primary argument regarding criminal activity. Although the special prosecutor advances a secondary argument of criminal activity concerning coordinated express advocacy, the majority inexplicably ignores that argument. These mistakes lead the majority to terminate a valid John Doe investigation in an unprecedented fashion. ¶629 With argument, respect which is to the the focus special of my prosecutor's writing, the primary majority misapplies the related doctrines of overbreadth and vagueness. Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is neither overbroad nor vague in its requirement that campaign committees report receipt of in-kind contributions. The majority also makes the troubling pronouncement that an act is not a regulable disbursement or contribution under Ch. 11 unless it involves express advocacy or its functional equivalent. is an erosion of Ch. 11 that will integrity of our electoral process. profoundly This affect the I cannot agree with this result. ¶630 It is conveniently also overlooks imperative the to note special that the prosecutor's majority secondary argument of criminal activity in its effort to end this John Doe investigation. investigate coordinated Specifically, the special prosecutor seeks to whether their particular spending with express advocacy candidates or groups candidate committees in violation of their sworn statement of independence under Wis. Stat. § 11.06(7). Despite the fact that the special 39 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc prosecutor present utilizes evidence a of significant such portion illegal of his coordination, brief the to majority determines, without explanation, that the John Doe investigation is over. ¶631 Has the majority abused its power in reaching this conclusion? The majority's rush to terminate this investigation is reminiscent of the action taken by the United States District Court for Schmitz, the 19 F. Eastern Supp. District 3d at of 875, Wisconsin an in action O'Keefe that was v. both criticized and reversed by the United States Court of Appeals for the Seventh Circuit in O'Keefe, 769 F.3d at 942. Although the focus of my writing lies elsewhere, the majority's error in this regard cannot be overlooked. ¶632 For these reasons, I respectfully dissent in State ex. rel. Two Unnamed Petitioners v. Peterson (Two Unnamed Petitioners). ¶633 However, because I agree that the special prosecutor and certain Unnamed Movants have failed to meet their heavy burden of establishing that the John Doe judge violated a plain legal duty in either initiating these proceedings or quashing various subpoenas and search warrants related to the investigation, I respectfully concur with the majority in State ex. rel. Schmitz v. Peterson (Schmitz v. Peterson) and State ex. rel. Three Unnamed Petitioners). In Petitioners concurring v. in Peterson Schmitz v. (Three Unnamed Peterson, it is significant for me that when an appellate court decides to issue a supervisory writ, it is a 40 rare, discretionary decision. No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶33-34. Here, the John Doe judge also made a discretionary decision in deciding a complex legal issue. Deference should be given where there is such discretion. ¶634 For the dissent in part. foregoing reasons, I concur in part and To be clear, I agree with the majority's decision to deny the petition for supervisory writ and affirm Reserve Judge Gregory Peterson's order in Schmitz v. Peterson. I also agree with the majority's decision to deny the petition for supervisory writ and affirm the court of appeals' decision in Three majority, Unnamed I would Petitioners. deny the However, relief sought contrary in Two to Unnamed Petitioners and allow the John Doe investigation to continue. 41 the No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504--W through 2013 AP2508-W.npc 1
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