76 Op. Att'y Gen. 217 (1987)
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Wisconsin Attorney General Opinions

Opinion # OAG 51-87,

1 September 1987

Circuit Court; Judges; Limits of a judge's
authority in presiding over or conducting
a John Doe proceeding discussed.

Section 968.26, Stats., is not
unconstitutional as a violation of
the separation of powers doctrine.

District Attorney Kenosha County

You have asked two questions based
on the following factual scenario.

A private individual petitioned a trial court
judge to convene a John Doe proceeding.

The judge declined; however, he referred
the petition to the intake judge.

The intake judge, on his own motion,
scheduled the matter for a John Doe hearing
and began to subpoena witnesses.

The judge indicated that he would conduct all
the questioning and, if he felt it necessary,
would appoint a special prosecutor to handle
any resultant prosecutions.

It should be noted that the John Doe
complaint alleged that members of the
Kenosha County Sheriff's Department may have
committed the crime of misconduct in public
office in the investigation of a then-pending
first-degree murder prosecution.

You ask what, if any, are the limits of the
judge's authority in presiding over or
conducting a John Doe proceeding, and whether
Section 968.26, Stats., is unconstitutional
as a violation of the separation of powers

Section 968.26 states:

   If a person complains to a judge that
   he has reason to believe that a crime
   has been committed within his
   jurisdiction, the judge shall examine
   the complainant under oath and any
   witnesses produced by him and may,
   and at the request of the district
   attorney shall, subpoena and examine
   other witnesses to ascertain whether
   a crime has been committed and
   by whom committed.

   The extent to which the judge may
   proceed in such examination is
   within his discretion.

   The examination may be adjourned
   and may be secret.

   Any witness examined under this
   Section may have counsel present
   at the examination but such counsel
   shall not be allowed to examine his
   client, cross-examine other witnesses
   or argue before the judge.

   If it appears probable from the
   testimony given that a crime has been
   committed and who committed it, the
   complaint shall be reduced to writing
   and signed and verified; and thereupon
   a warrant shall issue for the
   arrest of the accused.

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   Subject to Section 971.23, the record of
   such 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.

The first reported case dealing
with the John Doe proceeding is
State ex rel. Long and another v. Keyes,
75 Wis. 288, 44 N.W. 13 (1889).

The question before the court concerned the
extent of the power and jurisdiction of the
judge to subpoena and examine witnesses, in
addition to the complaining witness, under
oath for the purpose of ascertaining
whether an offense had been committed
and, if so, by whom.

The judge was acting pursuant to Wis. Rev.
Stat. of 1839 (Territorial), an act to
provide for the arrest and examination of
offenders, commitment for trial and taking
bail, Section 2, pp. 369-70, which stated:

   Upon complaint made to any such
   magistrate that a criminal offense has
   been committed, he shall examine on oath
   the complainant and any witnesses
   produced by him, and shall reduce the
   complaint to writing, and shall cause
   the same to be subscribed by the
   complainant; and if it shall appear that
   any such offense has been committed, the
   court or justice shall issue a warrant
   reciting the substance of the
   accusation, and requiring the officer to
   whom it shall be directed forthwith to
   take the person accused and bring him
   before the said court or justices, or
   before some other court or magistrate of
   the county, to be dealt with according
   to law . . . .

In all likelihood, this statute was derived
from the statutes of New York of 1828.

The statute was first enacted when the common
law permitted a magistrate to issue a warrant
on a complaint upon mere suspicion.

This statute protected the citizen from
arrest and imprisonment on frivolous and
groundless suspicion.

The thrust of the opinion was that the
magistrate enjoyed the authority to
subpoena and examine witnesses, and
this statutory power was created for
the protection of the individual.

The extent of the judge's authority in
conducting a John Doe proceeding has been
discussed on numerous occasions since 1889.

State ex rel. Kowaleski v. District Court,
254 Wis. 363, 36 N.W.2d 419 (1949), a writ
of prohibition was sought to prohibit a
trial judge from conducting a separate
but concurrent John Doe proceeding
investigating crimes other than
those charged against Kowaleski
in a case pending before
that same judge.

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In discussing the judge's power vis-a-vis the
individual's rights, the court quoted from
Long and concluded the judge's actions in the
John Doe proceeding did not

   make any final disposition or
   determination which in any way
   will create an extreme emergency
   or exigency affecting the liberty
   or the constitutional rights of the
   plaintiff, Kowaleski.

Kowaleski, 254 Wis. at 369.

Kowaleski, it was held, was still protected
by his statutory right to a preliminary
hearing with its attendant benefits.

The court did, however, state that the scope
of the John Doe proceeding was limited by
the allegations of the John Doe complaint.

This case, as well as
State ex rel. Niedziejko v. Coffey,
22 Wis.2d 392,
126 N.W.2d 96, 127 N.W.2d 14 (1964),
reaffirms that the acts of the judge
in conducting the John Doe are judicial
or quasi-judicial in nature and subject
to a writ of prohibition.

The writ of prohibition is exercised with
caution, and as long as the judge does not
abuse his discretion, it will not lie.

It is presumed that the judge has not,
and will not, abuse his discretion in
the proper conduct of the proceeding.

The powers of the circuit judge conducting
a John Doe proceeding are not unlimited.

A circuit judge or other magistrate
conducting a John Doe proceeding does not
have the power to compel self-incriminating
testimony and thereby grant immunity.

State ex rel. Jackson v. Coffey,
18 Wis.2d 529,
118 N.W.2d 939 (1963).

Since a John Doe proceeding is conducted
by a judge rather than "the court,"
there is no authority to grant
immunity and compel testimony.

Such action must be done by the court, on the
record, rather than by the John Doe judge
and must be done upon the motion of the
district attorney.

State ex rel. Newspapers v. Circuit Court,
65 Wis.2d 66,
221 N.W.2d 894 (1974);

Ryan v. State,
79 Wis.2d 83,
255 N.W.2d 910 (1977).

Jackson also underscores the judge's right
to examine witnesses albeit within the
confines of the John Doe complaint.

There are other limitations on the
authority of the John Doe judge.

Since it is not a felony criminal proceeding,
the John Doe judge may not issue a material
witness warrant pursuant to
Section 969.01(3).

State v. Brady,
118 Wis.2d 154,
345 N.W.2d 533 (Ct.App. 1984).

It is also recognized that the secrecy
provisions of a John Doe proceeding
are equally binding on the judge
as on all parties.

United States v. Crumble,
331 F.2d 228 (7th Cir. 1964).

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The John Doe judge's duty to enforce the
secrecy provisions is subject to his or
her discretion, and it is a valid exercise
of that discretion to permit or deny the
request of the attorney for the state for
the presence and assistance of another
public official with law enforcement

Unless the judge is persuaded that the
officer will make a material contribution
to the investigation, his or her presence
should ordinarily not be allowed.

Our Supreme Court has summarized the
authority and overall obligation of
the John Doe judge as follows:

   Final responsibility for the proper
   conduct of such proceedings rests with
   the presiding judge, whose obligation it
   is to ensure that the considerable
   powers at his or her disposal are at all
   times exercised with due regard for the
   rights of the witnesses, the public, and
   those whose activities may be subject to

State v. O'Connor,
77 Wis.2d 261, 284,
252 N.W.2d 671 (1977).

The most comprehensive discussion of a
judge's duty and authority in conducting
a John Doe as well as discussing the
constitutional question of
separation of powers may
be found in
State v. Washington,
83 Wis.2d 808,
266 N.W.2d 597 (1978).

Washington claimed that Section 968.26
violates the constitutional doctrine of
separation of powers by vesting the
investigatory power of the executive branch
on a member of the judicial branch.

Washington asserted that the John Doe judge
merged into the executive and became
both judge and prosecutor.

The court rejected Washington's
characterization of the judge as the
chief investigator or as an
adjunct of the prosecutor.

Rather, the court stated:

   We do not view the judge as
   orchestrating the investigation.

   The John Doe judge is a judicial officer
   who serves an essentially judicial

   The judge considers the testimony

   It is the responsibility of the John Doe
   judge to utilize his or he 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.

83 Wis.2d at 823 (footnote omitted).

By way of further defining the limits of
the judge's authority, the court stated
that it is not required that an attorney
representing the state's interests in a
criminal prosecution be involved both in
initiating and conducting the proceedings
since Section 968.26 does not require the
participation of the district attorney.

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However, Washington should not be read as an
endorsement of judicial orchestration of the
John Doe proceeding since a prosecutor did
conduct that particular proceeding.

The judge conducting a John Doe proceeding is
expected to ensure that the proceeding be
conducted in an orderly and expeditious
manner which does not impair his or her
ability to make an independent
determination of probable cause.

Thus, the central theme that evolves from the
case law is that the judge may exercise
discretion and, as long as he or she does
not abuse that discretion, the judge is
granted great latitude.

With respect to the question of separation of
powers, the supreme court clearly finds no
problems to exist in either the statutory
scheme or the procedural application of
the John Doe hearing.

Viewing the role of the John Doe judge as we
do, we do not believe that the John Doe
statute should fall on the ground that it
vests nonjudicial powers in the judiciary.

Although the doctrine of separation of powers
is a fundamental principle, it is neither
possible nor practicable to categorize all
governmental action as exclusively
legislative, executive or judicial.

The doctrine of separation of powers must be
viewed as a general principle to be applied
to maintain the balance between the three
branches of government, to preserve their
respective independence and integrity,
and to prevent concentration of unchecked
power in the hands of any one branch

The contemporaneous and practical
interpretation of the state constitution
supports the conclusion that a John Doe
proceeding does not contravene the
constitution's mandate of
separation of powers.

State ex rel. Owen v. Donald,
160 Wis. 21, 111-112,
151 N.W. 331 (1915).

As noted previously, John Doe proceedings in
this state date back to at least 1889,
forty-one years after the adoption
of the Wisconsin Constitution.

The John Doe is an institution which has been
sanctioned by long usage and general

83 Wis.2d at 825-27 (footnotes omitted).

Thus, the court expressly stated that
the John Doe judge is not a part of
the prosecution team and the court
was unwilling to hold that
Section 968.26 violates
the constitution.

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Rather than find constitutional infirmity,
the court relied instead on its belief
that witnesses and those accused are
protected by appellate court review.

The statute in question does not impinge upon
the prosecutor's discretionary role as does
Section 968.02(3), the statute under
consideration in
Unnamed Petitioners v. Connors,
136 Wis.2d 118 (1987).

The court in Connors specifically recognizes
that the district attorney, as an officer of
the executive branch, has the power to make
the initial determination of whether or
not to charge a criminal offense.

While the district attorney must believe that
the criminal complaint establishes probable
cause to charge the defendant, Section 968.26
does nothing more than recognize that it is
ultimately the court that must rule upon
the existence of that probable cause.

Traditionally, judges have recognized the
importance of a prosecutor actually
conducting the John Doe proceeding and it
has never been suggested that the judge
would participate in preparing, drafting
or filing a criminal complaint.

The importance of the prosecutor's presence
and contribution was recognized in
State ex rel. Kurkierewicz v. Cannon,
42 Wis.2d 368,
166 N.W.2d 255 (1969).

This participation by the prosecutor also
distinguishes the John Doe proceeding
from a Section 968.02(3) proceeding.

The statute struck down in Connors was
significantly different from Section 968.26
in that it allowed the judge to "permit
the filing of a complaint."

It authorized the judge to make a
charging decision ab initio when
no prosecutor had acted.

Section 968.26 does no such thing and is
not in conflict with Section 968.02(1):

The statute overturned in Connors thus
actually conferred executive power on the
judiciary; Section 968.26 has never been
construed to make such a grant of authority.

In summary, the authority of the John Doe
judge is not without limitation; however, the
discretion of the judge is vast and, unless
abused, will likely be upheld.

There may be some blurring of the distinction
between executive and judicial functioning in
Section 968.26; yet the Wisconsin Supreme
Court in Washington specifically refused
to find any constitutional infirmity.

Finally, I would comment that judicial
functions are generally inconsistent
with essentially investigatory and
prosecutorial functions.

Whenever possible, a John Doe proceeding
should be conducted with the participation
of the district attorney or someone
lawfully standing in his stead.

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