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Writs – Supervisory – John Doe Proceeding, Review of

State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.

Issue/Holding:

¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including “other person or body,” is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. Interpreting the constitution to allow for the court of appeals to exercise jurisdiction over the actions of a John Doe judge represents sound practice and is in keeping with the court of appeals’ traditional role as an error-correcting court. See State ex rel. James L.J. v. Cir. Ct. for Walworth County, 200 Wis. 2d 496, 546 N.W.2d 460 (1996).

¶49. We emphasize, however, that writs stemming from John Doe proceedings should not become a vehicle for delaying a John Doe proceeding. Pursuant to Wis. Stat. (Rule) § 809.51(2), the court of appeals enjoys the discretion to deny a petition for supervisory writ ex parte, when warranted.

¶71. The party seeking review of a John Doe judge’s decision shall file the petition for supervisory writ in the court of appeals, together with a motion seeking leave to file under seal any portions of the petition or record that fall within the scope of an existing secrecy order, but which the petitioner deems necessary to prosecute his or her petition. The State may respond to that motion. The court of appeals can then entertain the motion, and conduct an in camera review of the documents proposed to be filed under seal. If the documents appear to fall legitimately within the scope of a permissible secrecy order, the court may grant the motion and the documents will be filed under seal.

State ex rel. Swan v. Elections Board, 133 Wis. 2d 87, 394 N.W.2d 732 (1986) (COA not empowered to compel Elections Board to place name on ballot) limited to its facts and distinguished, principally on the ground that that case involved an administrative agency, ¶¶42-44. The Chief Justice plausibly suggests that the effect is to overrule Swan, ¶76. James, referenced above, has to do with review of a chief judge’s substitution ruling; for any other examples of judges sitting as a “tribunal” and not a “court” (thereby preventing review by ordinary appeal), Unnamed Persons would seem to apply. In any event, there may be less here than meets the eye. The fundamental question is whether the court of appeals had original jurisdiction to review an order by a judge as opposed to a court. But there’s nothing to say that you can’t first get review, by one manner or another, in a circuit court, as the dissent points out.

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