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Mandamus – Generally; John Doe Procedure – Generally – Judicial Screening; Statutory Construction

Hakim Naseer v. Circuit Court for Grant County, 2010 WI App 142; pro se

Mandamus – Generally

¶4        A supervisory writ of mandamus is a mechanism by which a court may compel a public official to perform a legally obligated act. State ex rel. Robins v. Madden, 2009 WI 46, ¶10, 317 Wis. 2d 364, 766 N.W.2d 542. Because a supervisory writ “invokes our supervisory authority, it ‘is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency.’” State ex rel. Kenneth S. v. Circuit Court for Dane County, 2008 WI App 120, ¶8, 313 Wis. 2d 508, 756 N.W.2d 573 (quoted source omitted).This court will not issue a supervisory writ unless the party seeking relief acts promptly and faces grave hardship or irreparable harm for which there is no other adequate remedy at law, and the circuit court has clearly violated a plain duty. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110.

The judicial duty allegedly violated must be “plain,” so that a discretionary act won’t support mandamus-review. John Doe proceedings aren’t reviewable by appeal, so in this context the question for purposes of mandamus is whether the judge violates a “plain duty” under the John Doe law. (¶5)

John Doe Procedure – § 968.26(2), Generally

¶7        To summarize, under the revised scheme a John Doe judge must potentially undertake four inquiries: (1) decide whether to refer the John Doe complaint to the district attorney in the first instance; (2) decide whether it is necessary to conduct any additional proceedings if the district attorney chooses not to issue charges; (3) determine what, if any, witnesses to subpoena and examine if additional proceedings are deemed necessary; and (4) decide whether to issue a criminal complaint if the judge finds that the additional proceedings have produced sufficient credible evidence to warrant prosecution. The two cases currently before us both raise questions about the first step—namely, whether or under what circumstances a judge has a mandatory duty to refer a John Doe complaint to the district attorney.

Statutes – Construction

“When the legislature enacts or revises a statute, it is presumed to act with full knowledge of existing laws and prior judicial interpretations of them,” ¶11.

Thus, language in amended John Doe statute is deemed to have same meaning as judicially construed relative to similar language in prior version.

John Doe Procedure – Judicial Screening

A judge is required to refer a John Doe complaint to the district attorney only if the complaint itself provides an objective basis to believe a crime has been committed within the judge’s jurisdiction. The petitioner’s allegation that the prison’s offering him a cold meal, or a meal diminutively portioned, doesn’t establish the commission of a crime, and a supervisory writ to compel further proceedings is denied: “While prisoners have a right to sufficient food to provide adequate nutrition, there is no requirement that the food be tasty or even appetizing. See Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994). Naseer’s complaint provides no information that would establish that he was in any way malnourished from the single, objectionable meal, or that there was any ongoing pattern of depriving him of nutritionally adequate meals,” ¶12. However, an entirely separate allegation of abusive treatment does require referral:

¶13      Applying the objective reason to believe standard to the Grant County case, we conclude that the complaint should have been referred to the district attorney. Critical to our analysis is the requirement that the initial evaluation be limited to the four corners of the complaint. Judge Day erred by considering Naseer’s history of filing unsubstantiated John Doe complaints, information that is extrinsic to the complaint. A litigant’s history of abusing the legal process may certainly be considered at a subsequent stage of the proceeding, along with any other materials forwarded to the court by the district attorney.[3] It cannot, however, be used to determine whether the facts alleged in a particular complaint establish reasonable cause to believe that a crime was committed.

¶14      Focusing on the allegations in the complaint, and ignoring Naseer’s history of filing frivolous complaints against prison officials, we conclude that his allegations that a prison guard squeezed his neck to the point of impairing his breathing, without any legitimate purpose for the chokehold, could conceivably support a charge of battery or some other offense. We therefore grant the supervisory writ of mandamus to Judge Day, and remand with directions that he refer the John Doe complaint to the Grant County District Attorney’s office.

UPDATE. “A John Doe proceeding does not begin the adversarial process against a criminal accused. Rather, the role of the John Doe is to gather evidence from witnesses in order to determine whether a criminal complaint should be filed or whether no crime was committed,” U.S. v. Stadfeld, 7th Cir. No. No. 11-1369, 7/27/12. The implication is that, because an IAC claim requires initiation of the adversarial process, counsel’s missteps during the John Doe proceeding can’t support an IAC claim. Thus, even though counsel wrongly told Stadfeld that his statements to John Doe investigators were clothed in immunity to federal prosecution – the state prosecutor agreed not to prosecute but didn’t purport to bind the feds – Stadfeld is without a remedy on an IAC theory: ” Because his constitutional right to counsel had not attached when he gave his statements to investigators, there is no basis for a claim of ineffective assistance of counsel.”

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