STATE EX REL. TWO UNNAMED v. PETERSON Wis. 165...Supreme Court of Wisconsin. July 16, 2015....

165Wis.STATE EX REL. TWO UNNAMED v. PETERSONCite as 866 N.W.2d 165 (Wis. 2015)

363 Wis.2d 1

2015 WI 85

STATE of Wisconsin ex rel. TWOUNNAMED PETITIONERS,

Petitioner,

v.

The Honorable Gregory A. PETERSON,John Doe Judge and Francis D.Schmitz, Special Prosecutor, Respon-dents.

State of Wisconsin ex rel. FrancisD. Schmitz, Petitioner,

v.

Honorable Gregory A. Peterson, JohnDoe Judge, Respondent,

Eight Unnamed Movants,Interested Party.

In the Matter of John Doe Proceeding.

State of Wisconsin ex rel. ThreeUnnamed Petitioners,

Petitioner,

v.

The Honorable Gregory A. Peterson,John Doe judge, the Honorable Grego-ry Potter, Chief Judge and Francis D.Schmitz, as Special Prosecutor, Re-spondents.

Nos. 2014AP296–OA, 2014AP417–W,2014AP418–W, 2014AP419–W,2014AP420–W, 2014AP421–W,2013AP2504–W, 2013AP2505–W,2013AP2506–W, 2013AP2507–W,2013AP2508–W.

Supreme Court of Wisconsin.

July 16, 2015.

Background: A special prosecutor wasappointed to investigate illegal campaigncoordination between certain issue advoca-cy groups and candidates for elective of-fice. The Circuit Courts, Milwaukee Coun-ty, Iowa County, Dodge County, Dane

County, and Columbia County, Gregory A.Peterson, reserve judge, quashed subpoe-nas and search warrants. Special prosecu-tor appealed. Targets’ petition to bypassthe Court of Appeals was granted. Targetspetitioned for supervisory writs, challeng-ing whether the investigation could prop-erly be initiated in five separate countiesunder a single judge and whether the spe-cial prosecutor was properly appointed.The Court of Appeals denied the writ.Unnamed movants appealed. Targetsbrought original action in the SupremeCourt for declaration that coordinated is-sue advocacy alleged was not regulatedunder state campaign finance law. Thethree cases were consolidated.

Holdings: The Supreme Court, Michael J.Gableman, J., held that:

(1) definition of ‘‘political purposes’’ inchapter of statutes governing cam-paign finance was unconstitutional and,thus, it would limit the definition;

(2) special prosecutor failed to prove thatjudge violated a plain legal duty whenhe quashed the subpoenas and searchwarrants;

(3) reserve judge did not violate a plainlegal duty by accepting her appoint-ment;

(4) reserve judge did not violate a plainlegal duty in convening a multi-countyJohn Doe proceeding; and

(5) in a concurring opinion for a majorityof the court, David T. Prosser, Jr., J.,further held that judge lacked inherentauthority to appoint on her own motionspecial prosecutor.

Affirmed.

David T. Prosser, Jr., J., concurred andfiled opinion in which Patience Drake Rog-gensack, Chief Justice, Annette KingslandZiegler, and Michael J. Gableman, JJ.,joined in part.

166 Wis. 866 NORTH WESTERN REPORTER, 2d SERIES

Annette Kingsland Ziegler, J., concurredand filed opinion.

Shirley S. Abrahamson, J., concurred inpart, dissented in part, and filed opinion.

N. Patrick Crooks, J., concurred in part,dissented in part, and filed opinion.

1. Criminal Law O1139Statutory interpretation is a question

of law, which is reviewed de novo. (PerGableman, J., with two Justices concur-ring.)

2. Constitutional Law O990, 1004Statutes are presumed to be constitu-

tional; the party seeking to overcome thepresumption must prove the statute uncon-stitutional beyond a reasonable doubt. (PerGableman, J., with two Justices concur-ring.)

3. Constitutional Law O1036When the statute implicates the exer-

cise of First Amendment rights, the bur-den shifts to the proponent of the allegedlyunconstitutional statute. (Per Gableman,J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.

4. Constitutional Law O1491While the First Amendment protects

a broad range of speech and conduct, thereis practically universal agreement that amajor purpose of that Amendment was toprotect the free discussion of governmen-tal affairs, including discussions of candi-dates. (Per Gableman, J., with two Justicesconcurring.) U.S.C.A. Const.Amend. 1.

5. Constitutional Law O1490Right of citizens to inquire, to hear, to

speak, and to use information to reachconsensus is a precondition to enlightenedself-government and a necessary means toprotect it. (Per Gableman, J., with twoJustices concurring.) U.S.C.A. Const.Amend. 1.

6. Constitutional Law O1681

In a republic where the people aresovereign, the ability of the citizenry tomake informed choices among candidatesfor office is essential, for the identities ofthose who are elected will inevitably shapethe course that society follows as a nation;these values reflect the profound nationalcommitment to the principle that debateon public issues should be uninhibited, ro-bust, and wide-open. (Per Gableman, J.,with two Justices concurring.) U.S.C.A.Const.Amend. 1.


The protection of the freedom of polit-ical speech reflects the firm belief thatdiscussion of public issues and debate onthe qualifications of candidates are integralto the operation of the system of govern-ment established by the Constitution. (PerGableman, J., with two Justices concur-ring.) U.S.C.A. Const.Amend. 1.


The First Amendment affords thebroadest protection to political expressionin order to assure the unfettered inter-change of ideas for the bringing about ofpolitical and social changes desired by thepeople. (Per Gableman, J., with two Jus-tices concurring.) U.S.C.A. Const.Amend.1.


The First Amendment free speechclause has its fullest and most urgent ap-plication precisely to the conduct of cam-paigns for political office. (Per Gableman,J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.


Election Law O41

There exists no right more basic indemocracy than the right to participate inelecting political leaders; political speech


is, thus, a fundamental right and is afford-ed the highest level of protection. (PerGableman, J., with two Justices concur-ring.) U.S.C.A. Const.Amend. 1.


Freedom of speech, especially politicalspeech, is the right most fundamental todemocracy; to that end, courts must con-duct a particularly close examination of thespecificity of the statutory limitation wherethe legislation imposes criminal penaltiesin an area permeated by First Amendmentinterests. (Per Gableman, J., with two Jus-tices concurring.) U.S.C.A. Const.Amend.1.


The First Amendment does not per-mit laws that force speakers to retain acampaign finance attorney, conduct demo-graphic marketing research, or seek de-claratory rulings before discussing themost salient political issues of the day.(Per Gableman, J., with two Justices con-curring.) U.S.C.A. Const.Amend. 1.


Prolix laws chill speech for the samereason that vague laws chill speech: peopleof common intelligence must necessarilyguess at the law’s meaning and differ as toits application. (Per Gableman, J., with twoJustices concurring.) U.S.C.A. Const.Amend. 1.

14. Constitutional Law O1685, 1698

In the campaign finance context, thegovernment may regulate and impose bur-dens upon the exercise of free speech byestablishing disclosure and reporting re-quirements, as well as contribution limitsto candidates, to prevent corruption andthe appearance of corruption. (Per Gable-man, J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.


The interest in preventing the corrup-tion of public officials does not justify theregulation of all political speech; rather, animportant distinction is drawn betweendiscussion of issues and candidates andadvocacy of election or defeat of candi-dates, as the compelling governmental in-terest that justifies the regulation of ex-press advocacy, the prevention of quid proquo corruption, might not apply to theregulation of issue advocacy. (Per Gable-man, J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.


A key reason that issue advocacy isafforded greater protection under theFirst Amendment is that freedom of dis-cussion, if it would fulfill its historic func-tion in this nation, must embrace all issuesabout which information is needed or ap-propriate to enable the members of societyto cope with the exigencies of their period.(Per Gableman, J., with two Justices con-curring.) U.S.C.A. Const.Amend. 1.


Discussion of issues cannot be sup-pressed simply because the issues mayalso be pertinent in an election. (Per Ga-bleman, J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.


In order to give the fullest protectionpossible to the right to the exercise ofpolitical speech, the government’s authori-ty to regulate campaign finance extendsonly to money raised and spent for speechthat is clearly election related, that is,express advocacy; ordinary political speechabout issues, policy, and public officials,that is, issue advocacy, must remain unen-cumbered. (Per Gableman, J., with twoJustices concurring.) U.S.C.A. Const.Amend. 1.



In order to avoid a chilling effect onotherwise protected political speech, whenthe regulatory scheme reaches beyondcandidates, their campaign committees,and political parties, the government mayregulate only with narrow specificity. (PerGableman, J., with two Justices concur-ring.) U.S.C.A. Const.Amend. 1.


Courts must give the benefit of anydoubt to protecting, rather than stifling,speech. (Per Gableman, J., with two Jus-tices concurring.) U.S.C.A. Const.Amend.1.


In the domain of campaign-financelaw, the First Amendment requires aheightened degree of regulatory clarityand a close fit between the government’smeans and its end; this close-fit require-ment is intended to prevent the dangerouschilling effect an unclear or imprecise lawhas on protected speech. (Per Gableman,J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.


Overbreadth and vagueness doctrinesreflect the conclusion that the possibleharm to society from allowing unprotectedspeech to go unpunished is outweighed bythe possibility that protected speech willbe muted. (Per Gableman, J., with twoJustices concurring.) U.S.C.A. Const.Amend. 1.

23. Constitutional Law O1140.2

A statute is ‘‘overbroad’’ when its lan-guage, given its normal meaning, is sosweeping that its sanctions may be appliedto constitutionally protected conduct whichthe state is not permitted to regulate. (Per

Gableman, J., with two Justices concur-ring.)

See publication Words and Phrasesfor other judicial constructions anddefinitions.

24. Constitutional Law O855The overbreadth doctrine recognizes

that broadly written statutes substantiallyinhibiting free expression should be opento attack, even by a party whose ownconduct remains unprotected under theFirst Amendment. (Per Gableman, J., withtwo Justices concurring.) U.S.C.A. Const.Amend. 1.

25. Constitutional Law O1520, 1805The danger inherent in overbroad

statutes is that such statutes provide thegovernment with practically unbridled ad-ministrative and prosecutorial discretionthat may result in selective prosecutionbased on certain views deemed objectiona-ble by law enforcement; thus, overbroadstatutes may undesirably dissuade personsfrom exercising their rights by chillingtheir protected speech or expression. (PerGableman, J., with two Justices concur-ring.) U.S.C.A. Const.Amend. 1.

26. Constitutional Law O1805The threat to free expression created

by overbroad statutes is that, by potential-ly sweeping in constitutionally protectedactivity, individuals and groups may self-censor out of fear of vindictive or selectiveprosecution. (Per Gableman, J., with twoJustices concurring.) U.S.C.A. Const.Amend. 1.

27. Constitutional Law O1014 Statutes O1533

When faced with an overbroad stat-ute, courts may: first apply a limiting con-struction to rehabilitate the statute whensuch a narrowing and validating construc-tion is readily available; second, cure theconstitutional defect by severing the un-


constitutional provisions and leaving theremainder of the legislation intact; finally,determine that the statute is not amenableto judicial limitation or severance and in-validate the entire statute upon a determi-nation that it is unconstitutional on itsface. (Per Gableman, J., with two Justicesconcurring.)

28. Constitutional Law O1130.10The vagueness doctrine requires legis-

latures to set reasonably clear guidelinesfor law enforcement officials and triers offact in order to prevent arbitrary and dis-criminatory enforcement. (Per Gableman,J., with two Justices concurring.)

29. Constitutional Law O1524A ‘‘vague statute’’ is one which oper-

ates to hinder free speech through the useof language which is so vague as to allowthe inclusion of protected speech in theprohibition or to leave the individual withno clear guidance as to the nature of theacts which are subject to punishment. (PerGableman, J., with two Justices concur-ring.) U.S.C.A. Const.Amend. 1.


30. Constitutional Law O1160, 1170Where First Amendment rights are

involved, an even greater degree of speci-ficity is required; thus, when a criminalstatute implicates First Amendmentrights, the statutory language must havethe utmost clarity and exactitude. (Per Ga-bleman, J., with two Justices concurring.)U.S.C.A. Const.Amend. 1.

31. Constitutional Law O1160The vagueness doctrine, which re-

quires legislatures to set reasonably clearguidelines for law enforcement officialsand triers of fact in order to prevent arbi-trary and discriminatory enforcement, con-cerns the impingement by a vague lawupon three First Amendment values: (1)

fair warning of what is prohibited; (2) arbi-trary or discriminatory enforcement due tolack of precise or articulated standards;and (3) the forsaking of activity protectedby the First Amendment for fear that itmay be prohibited. (Per Gableman, J., withtwo Justices concurring.) U.S.C.A. Const.Amend. 1.


Because First Amendment freedomsneed breathing space to survive, govern-ment may regulate in this area only withnarrow specificity. (Per Gableman, J., withtwo Justices concurring.) U.S.C.A. Const.Amend. 1.


Election Law O195

Definition of ‘‘political purposes’’ inchapter of statutes governing campaign fi-nance was unconstitutional as so sweepingthat its sanctions could be applied to con-stitutionally protected conduct which theState was not permitted to regulate, and,thus, the Supreme Court would limit thedefinition to express advocacy and its func-tional equivalent, as those terms were de-fined in Buckley v. Valeo, and FederalElection Commission v. Wisconsin RightTo Life, Inc.; limiting construction protect-ed political speech, a vital First Amend-ment right, and guarded against those whowould rely on overbroad and vague stat-utes to silence those with whom they disa-greed. (Per Gableman, J., with two Jus-tices concurring.) U.S.C.A. Const.Amend.1; W.S.A. Const. Art. 1, § 3; W.S.A.11.01(16).


34. Criminal Law O1023(3)

The decisions made by judges in JohnDoe proceedings are not subject to directappeal to the Court of Appeals because an


order issued by a John Doe judge is not anorder of a circuit court or a court of rec-ord. (Per Gableman, J., with two Justicesconcurring and one Justice concurring inthe result.) W.S.A. 968.26.

35. Courts O209(2)A party may seek review of a John

Doe judge’s actions pursuant to a petitionfor supervisory writ. (Per Gableman, J.,with two Justices concurring and one Jus-tice concurring in the result.) W.S.A.809.51(1), 968.26.

36. Courts O207.1A writ of supervision is not a substi-

tute for an appeal. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A.809.51(1).

37. Courts O207.1In order to prevail on a supervisory

writ, the petitioner must prove the follow-ing: (1) an appeal is an inadequate remedy;(2) grave hardship or irreparable harm willresult; (3) the duty of the trial court isplain and it must have acted or intends toact in violation of that duty; and (4) therequest for relief is made promptly andspeedily. (Per Gableman, J., with two Jus-tices concurring and one Justice concur-ring in the result.) W.S.A. 809.51(1).

38. Courts O207.1A plain duty of the trial court, as

required for supervisory writ, must beclear and unequivocal and, under the facts,the responsibility to act must be impera-tive. (Per Gableman, J., with two Justicesconcurring and one Justice concurring inthe result.) W.S.A. 809.51(1).

39. Courts O207.1A supervisory writ is considered an

extraordinary and drastic remedy that isto be issued only upon some grievous exi-gency. (Per Gableman, J., with two Jus-

tices concurring and one Justice concur-ring in the result.) W.S.A. 809.51(1).

40. Courts O207.1

The obligation of a judge to correctlyfind facts and apply the law is not the typeof plain legal duty contemplated by thesupervisory writ procedure, as it wouldextend supervisory jurisdiction to a virtu-ally unlimited range of decisions involvingthe finding of facts and application of law.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) W.S.A. 809.51.

41. Judges O24The obligation of judges to correctly

apply the law is general and implicit in theentire structure of the legal system. (PerGableman, J., with two Justices concurringand one Justice concurring in the result.)

42. Courts O207.1The supervisory writ serves a narrow

function: to provide for the direct controlof lower courts, judges, and other judicialofficers who fail to fulfill non-discretionaryduties, causing harm that cannot beremedied through the appellate reviewprocess. (Per Gableman, J., with two Jus-tices concurring and one Justice concur-ring in the result.) W.S.A. 809.51(1).

43. Criminal Law O212John Doe proceeding serves two im-

portant purposes: first, it is intended as aninvestigatory tool used to ascertain wheth-er a crime has been committed and if so,by whom; second, it is designed to protectinnocent citizens from frivolous andgroundless prosecutions. (Per Gableman,J., with two Justices concurring and oneJustice concurring in the result.) W.S.A.968.26.

44. Criminal Law O212The John Doe process gives the judge

broad discretion to decide whether to file a


criminal complaint, even upon a finding ofprobable cause. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A. 968.26.

45. Criminal Law O212

In order to commence a John Doeproceeding, the complainant, whether it bethe district attorney or anyone else, mustdemonstrate to the John Doe judge that hehas reason to believe that a crime has beencommitted within the jurisdiction. (Per Ga-bleman, J., with two Justices concurringand one Justice concurring in the result.)W.S.A. 968.26.


If the judge finds that the complain-ant in a John Doe proceeding has failed toestablish reason to believe that a crime hasbeen committed, that judge may deny thepetition without conducting an examina-tion; thus, the John Doe judge must act asa gate-keeper and screen out petitions thatare spurious, frivolous, or groundless. (PerGableman, J., with two Justices concurringand one Justice concurring in the result.)W.S.A. 968.26.


In determining whether the petition isworthy of further treatment, a circuitcourt judge presiding over a John Doeproceeding must act as a neutral and de-tached magistrate. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A. 968.26.


From the earliest stages of the pro-ceeding, to the conclusion of the investiga-tion, the proceedings of the John Doe areconstantly under the scrutiny of a judge.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) W.S.A. 968.26.

49. Criminal Law O212The John Doe judge does not act as

chief investigator or as a mere arm of theprosecutor; rather, the John Doe judgeserves as a check on the prosecutor and onthe complainant to ensure that the sub-jects of the investigation receives due pro-cess of law. (Per Gableman, J., with twoJustices concurring and one Justice con-curring in the result.) U.S.C.A. Const.Amend. 14; W.S.A. 968.26.

50. Criminal Law O212Wisconsin’s John Doe proceeding is

very different than a grand jury, and whenconducted appropriately, provides muchgreater protections to the target of aninvestigation, which is due in no small partto the role played by the John Doe judge.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) W.S.A. 968.26.

51. Criminal Law O212The role of the John Doe judge is to

ensure that the investigation stays focusedon the conduct alleged in the petition tocommence the proceeding. (Per Gableman,J., with two Justices concurring and oneJustice concurring in the result.) W.S.A.968.26.

52. Criminal Law O212 Grand Jury O25

A run-away grand jury can go beyondthe restraints of the prosecutor, the execu-tive, or of the judiciary; but, such hazardsdo not exist in the Wisconsin John Doeproceeding. (Per Gableman, J., with twoJustices concurring and one Justice con-curring in the result.) W.S.A. 968.26.

53. Criminal Law O212While John Doe proceedings can be

abused, the document produced by a JohnDoe proceeding does not ipso facto forcethe defendant to trial; the complaint whichemanates from it is issued under the aegis


of a judge, but nevertheless must subse-quently stand the scrutiny of an open courtinspection in an adversary proceeding atthe preliminary examination as a prerequi-site to the filing of an information, arraign-ment, and trial. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A. 968.26.

54. Criminal Law O212A John Doe proceeding serves both as

an inquest into the discovery of crime andas a screen to prevent reckless and ill-advised prosecutions. (Per Gableman, J.,with two Justices concurring and one Jus-tice concurring in the result.) W.S.A.968.26.

55. Criminal Law O212The secrecy orders available to a John

Doe proceeding serve to protect the integ-rity of the investigation by helping to en-courage witnesses who may be reluctant orfearful to testify by keeping their testimo-ny secret, and protecting innocent targetsof the investigation by preventing the dis-closure of testimony which may be mistak-en or untrue. (Per Gableman, J., with twoJustices concurring and one Justice con-curring in the result.) W.S.A. 968.26(3).

56. Criminal Law O212The John Doe judge should act with a

view toward issuing a complaint or deter-mining that no crime has occurred; accord-ingly, the scope of any John Doe investiga-tion is essentially limited to the subjectmatter of the complaint upon which theJohn Doe proceeding is commenced. (PerGableman, J., with two Justices concurringand one Justice concurring in the result.)W.S.A. 968.26(3).

57. Criminal Law O212The John Doe judge has no authority

to ferret out crime wherever he or shethinks it might exist. (Per Gableman, J.,with two Justices concurring and one Jus-

tice concurring in the result.) W.S.A.968.26.

58. Searches and Seizures O124The purpose of the Fourth Amend-

ment to the United States Constitutionand of Article I, Section 11 of the Wiscon-sin Constitution was to abolish searches bygeneral warrants, which authorizedsearches in any place or for any thing.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) U.S.C.A. Const.Amend. 4; W.S.A.Const. Art. 1, § 11.

59. Criminal Law O212 Searches and Seizures O126

Subpoenas issued by courts, and byextension John Doe judges, must satisfyrequirements of the Fourth Amendment ofreasonable searches and that the place tobe searched be particularly described. (PerGableman, J., with two Justices concurringand one Justice concurring in the result.)U.S.C.A. Const.Amend. 4; W.S.A. 968.26.

60. Criminal Law O212A John Doe proceeding, with its broad

investigatory powers, must never be al-lowed to become a fishing expedition inviolation of the Fourth Amendment. (PerGableman, J., with two Justices concurringand one Justice concurring in the result.)U.S.C.A. Const.Amend. 4; W.S.A. 968.26.

61. Criminal Law O212If the John Doe judge does not con-

duct the investigation fairly, as a neutraland detached magistrate, the risk of harmto innocent targets of the investigation,and all such targets are presumed inno-cent, is too great. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A. 968.26.

62. Criminal Law O212Through the use of a John Doe pro-

ceeding, law enforcement officers are able


to obtain the benefit of powers not other-wise available to them, i.e., the power tosubpoena witnesses, to take testimony un-der oath, and to compel the testimony of areluctant witness. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A. 968.26.

63. Criminal Law O212Powers to subpoena witnesses, take

testimony under oath, and compel the tes-timony of a reluctant witness, if notwielded with care and skill, may serve totransform a John Doe proceeding into animplement of harassment and persecutionby a vengeful or unethical prosecutor;thus, John Doe judges must be mindful ofthis danger and zealously guard therights of all citizens against over-reach.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) W.S.A. 968.26.

64. Criminal Law O212John Doe proceedings are a necessary

investigative tool to ascertain whether acrime has been committed and by whom.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) W.S.A. 968.26.

65. Criminal Law O212Statute grants John Doe judges broad

authority to conduct an investigation intoalleged crimes. (Per Gableman, J., withtwo Justices concurring and one Justiceconcurring in the result.) W.S.A. 968.26.

66. Criminal Law O212A John Doe judge is given those pow-

ers necessary to carry out his or her dutyto conduct the investigation fairly, as aneutral and detached magistrate; never-theless, as to all aspects of the conduct ofthe judicial function, the John Doe judge isthe governor of the proceedings, and, assuch, is responsible for maintaining thegood order, dignity, and, insofar as it is

compatible with the administration of jus-tice, efficiency of those proceedings. (PerGableman, J., with two Justices concurringand one Justice concurring in the result.)W.S.A. 968.26.


A John Doe judge’s duty to conductthe investigation fairly, as a neutral anddetached magistrate, applies with equalforce in all John Doe proceedings, regard-less of the target’s station in life, or thecrime alleged, be it drug trafficking in theinner city, malfeasance in the corporateboardroom, or corruption in the halls ofgovernment. (Per Gableman, J., with twoJustices concurring and one Justice con-curring in the result.) W.S.A. 968.26.

68. Courts O207.1

Criminal Law O212

Special prosecutor failed to prove thatjudge violated a plain legal duty, as re-quired for issuance of a supervisory writ,when he quashed the subpoenas andsearch warrants and ordered the return ofall property seized by special prosecutor,in John Doe investigation of illegal cam-paign coordination between issue advocacygroups and candidates; judge exercised hisdiscretion under the John Doe statute todetermine the extent of the investigationand determined that the subpoenas andsearch warrants were premised on an in-valid interpretation of the law. (Per Gable-man, J., with two Justices concurring andone Justice concurring in the result.)W.S.A. 809.51, 968.26.

69. Courts O207.1

The purpose of a supervisory writ isto provide for the direct control of lowercourts, judges, and other judicial officerswho fail to fulfill non-discretionary duties,causing harm that cannot be remediedthrough the appellate review process. (PerGableman, J., with two Justices concurring


and one Justice concurring in the result.)W.S.A. 809.51.

70. Criminal Law O212A John Doe judge is given the discre-

tion to determine the extent of the investi-gation; in doing so, he or she should actwith a view toward issuing a complaint ordetermining that no crime has occurred.(Per Gableman, J., with two Justices con-curring and one Justice concurring in theresult.) W.S.A. 968.26(3).

71. Criminal Law O212It is within the discretion of the trial

court to quash a subpoena in a John Doeproceeding. (Per Gableman, J., with twoJustices concurring and one Justice con-curring in the result.) W.S.A. 968.26.

72. Courts O207.1Supervisory writs are not appropriate

vehicles to review a judge’s discretionaryacts. (Per Gableman, J., with two Justicesconcurring and one Justice concurring inthe result.) W.S.A. 809.51.

73. Courts O207.1 Criminal Law O212

Targets of investigation of illegal cam-paign coordination between issue advocacygroups and candidates failed to prove thatreserve judges violated a plain legal duty,as required for issuance of a supervisorywrit, by accepting an appointment as areserve judge, convening a multi-countyJohn Doe proceeding, or appointing a spe-cial prosecutor. (Per Gableman, J., withtwo Justices concurring.) W.S.A. 968.26.

74. Criminal Law O1134.32, 1139The authority of both judges and

prosecutors in a John Doe proceeding arequestions of statutory interpretation whichSupreme Court reviews de novo withoutdeference to the circuit court or Court ofAppeals; thus, whether a John Doe judgehas exceeded his or her powers is a ques-

tion of law that the Supreme Court deter-mines independently. (Per Gableman, J.,with two Justices concurring.) W.S.A.968.26.

75. Courts O207.1

Criminal Law O212

First judge appointed as a reservejudge in a John Doe proceeding spanningfive counties did not violate a plain legalduty, as required for issuance of superviso-ry writ, by accepting her appointment,where Chief Judge of the First JudicialDistrict assigned and forwarded John Doepetition to judge, and Director of StateCourts, with Chief Justice’s name directlyabove, assigned judge to preside over thematter. (Per Gableman, J., with two Jus-tices concurring.) W.S.A. 70.10, 70.23,753.075, 809.51, 968.26.

76. Courts O207.1

Criminal Law O212

Second judge appointed as a reservejudge in a John Doe proceeding spanningfive counties did not violate a plain legalduty, as required for issuance of superviso-ry writ, by accepting his appointment,where Chief Judge of the First JudicialDistrict assigned second judge after thefirst judge withdrew. (Per Gableman, J.,with two Justices concurring.) W.S.A.70.10, 70.23, 753.075, 809.51, 968.26.

77. Courts O207.1

Criminal Law O212

Judge did not violate a plain legalduty, as required for issuance of a supervi-sory writ, in convening a multi-countyJohn Doe proceeding to investigate illegalcampaign coordination between issue advo-cacy groups and candidates; John Doestatute did not clearly prohibited the initi-ation of five parallel John Doe proceedingsor explicitly tell judge that she could notpreside over five John Doe proceedings.


(Per Gableman, J., with two Justices con-curring.) W.S.A. 968.26(1).

78. Courts O207.1Supreme Court cannot transform the

supervisory writ into an all-purpose alter-native to the appellate review process orannounce new rules for future cases aspart of that process. (Per Gableman, J.,with two Justices concurring.) W.S.A.809.51.

79. Criminal Law O212, 1700Reserve judge reasonably concluded,

based on case law, that she had authorityto appoint on her own motion a specialprosecutor in John Doe proceeding, andthus, she did not violate a plain legal dutyin making the special prosecutor appoint-ment. (Per Gableman, J., with two Justicesconcurring.) W.S.A. 968.26.

80. Courts O207.1 Criminal Law O212

Targets of John Doe investigation intoillegal campaign coordination between is-sue advocacy groups and candidates failedto establish that reserve judge lacked in-herent authority to appoint on her ownmotion a special prosecutor, as requiredfor issuance of supervisory writ. (Per Ga-bleman, J., with two Justices concurring.)W.S.A. 809.51, 968.26.

81. Criminal Law O212, 1699A John Doe judge’s inherent authority

is limited to what is necessary to enablethe judge to properly conduct a John Doeproceeding; no law expressly prohibited aJohn Doe judge from exercising his inher-ent authority to appoint a special prosecu-tor. (Per Gableman, J., with two Justicesconcurring.) W.S.A. 968.26.

82. Criminal Law O212, 1699Judge in John Doe proceeding lacked

inherent authority to appoint on her ownmotion a special prosecutor; if judges were

permitted to trump the applicable statutesgoverning John Doe appointments, thestatutes governing appointment of specialprosecutors and John Doe proceedingswould be rendered meaningless. (Per con-curring opinion of Prosser, J., with threeJustices concurring.) W.S.A. 968.26,978.045.


A John Doe judge does not have thestatutory powers of a court. (Per concur-ring opinion of Prosser, J., with three Jus-tices concurring.) W.S.A. 968.26.


A John Doe judge enjoys those pow-ers conferred to all judges by statute. (Perconcurring opinion of Prosser, J., withthree Justices concurring.) W.S.A. 968.26.

West Codenotes

Limited on Constitutional Grounds

W.S.A. 11.01(16)

For the Petitioners (case nos.2013AP2504–W through 2013AP2508–Wand 2014AP296–OA) and Interested Par-ties (case nos. 2014AP417–W through2014AP421–W) there were briefs by Attor-ney Dean A. Strang, StrangBradley, LLC,Madison; Attorney Steven M. Biskupicand Attorney Michelle L. Jacobs, Biskupic& Jacobs, S.C., Mequon; Attorney DennisP. Coffey, Mawicke & Goisman, SC, Mil-waukee; Attorney Matthew W. O’Neill,Fox O’Neill Shannon, S.C., Milwaukee;Attorney James B. Barton, Hansen Reyn-olds Dickinson Crueger LLC, Milwaukee;Attorney Eric J. Wilson, Godfrey & Kahn,S.C., Madison; and Attorney Jeffrey


James Morgan, LeBell, Dobrowski & Mor-gan, LLP, Milwaukee.

For the Respondents (case nos.2013AP2504–W through 2013AP2508–W,2014AP417–W through 2014AP421–W and2014AP296–OA) there were briefs by As-sistant Attorney General David C. Rice,with whom on the briefs was AttorneyGeneral J.B. Van Hollen (term of officeending December 31, 2014) and AttorneyGeneral Brad Schimel (term of office com-mencing January 1, 2015) and SpecialProsecutor Francis D. Schmitz (Petitionerin case nos. 2014AP417–W through2014AP421–W), Milwaukee.

Amici Curiae briefs were filed by Attor-ney Benjamin T. Barr (pro hac vice),Cheyenne, WY and Attorney Stephen R.Klein (pro hac vice), Cheyenne, WY onbehalf of the Wyoming Liberty Group withwhom on the brief was Attorney MatthewM. Fernholz and Cramer, Multhauf &Hammes, LLP, Waukesha; AttorneyJames Bopp, Jr., Terre Haute, IN, onbehalf of the James Madison Center forFree Speech and on behalf of WisconsinRight to Life, Inc. with whom on the briefswas Attorney Michael D. Dean and Mi-chael D. Dean, LLC, Brookfield; AttorneyJames R. Troupis and Troupis Law Office,LLC, Cross Plains, on behalf of the Ethicsand Public Policy Center; Attorney AdamJ. White (pro hac vice), Washington, D.C.and Boyden Gray & Associates, Washing-ton, D.C., on behalf of Former Members ofthe Federal Election Commission Lee AnnElliot, David Mason, Hans von Spakovskyand Darryl Wold with whom on the briefwere Attorney James R. Troupis and At-torney Paul M. Ferguson, Cross Plains;Attorney Jonathan Becker, Attorney Na-than W. Judnic and Attorney Kevin J.Kennedy on behalf of the Wisconsin Gov-ernment Accountability Board, Madison;Attorney Richard M. Esenberg, AttorneyBrian W. McGrath and the Wisconsin In-

stitute for Law & Liberty, Milwaukee, onbehalf of The Hon. Bradley A. Smith, Cen-ter for Competitive Politics, and WisconsinFamily Action; Attorney J. Gerald Hebert(pro hac vice), Attorney Tara Malloy (prohac vice), Attorney Paul S. Ryan (pro hacvice), Attorney Megan P. McAllen (pro hacvice) and The Campaign Legal Center,Washington D.C., Attorney Fred Wer-theimer (pro hac vice) and Democracy 21,Washington, D.C. and Attorney Donald J.Simon (pro hac vice) and Sonosky, Cham-bers, Sachse, Endreson & Perry, LLP,Washington, D.C. on behalf of CampaignLegal Center, Democracy 21, CommonCause in Wisconsin and League of WomenVoters of Wisconsin with whom on thebrief was Attorney Susan M. Crawfordand Cullen Weston Pines & Bach LLP,Madison; Attorney David B. Rivkin, Jr.(pro hac vice), Attorney Lee A. Casey (prohac vice), Attorney Mark W. Delaquil (prohac 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 forResponsible Government Advocates, Inc.with whom on the brief was AttorneyChristopher M. Meuler and Friebert Fin-erty & St. John, S.C., Milwaukee; Attor-ney Matthew Menendez (pro hac vice), At-torney Daniel I. Weiner (pro hac vice),Attorney Alicia L. Bannon (pro hac vice)and Brennan Center for Justice at NYUSchool of Law on behalf of Professors ofLegal Ethics, with whom on the brief wasAttorney Thomas R. Cannon, Milwaukee.

MICHAEL J. GABLEMAN, J.

S 25¶ 1 These cases arise from a John Doeproceeding originally initiated in Milwau-kee County, and subsequently expanded tofour additional counties, Iowa County,Dodge County, Dane County, and Colum-bia County. Though not consolidated,these proceedings have been overseen by asingle John Doe judge and organized by a


single special prosecutor (FrancisSchmitz). For the sake of clarity, we willrefer to all five proceedings as a single‘‘John Doe investigation.’’ The investiga-tion has been ongoing for several yearsand has been the subject of much litiga-tion.1

¶ 2 According to the special prosecutor,the purpose of the John Doe investigationis to root out S 26allegedly illegal campaigncoordination between certain issue advoca-cy groups and a candidate for electiveoffice. To further the investigation, thespecial prosecutor sought, and received,wide-ranging subpoenas and search war-rants for 29 organizations and individuals,seeking millions of documents that hadbeen created over a period of severalyears. Various targets (collectively ‘‘theUnnamed Movants’’) moved the John Doejudge to quash the subpoenas and searchwarrants and to return any propertyseized by the special prosecutor. TheJohn Doe judge, the Hon. Gregory A. Pe-terson, presiding, granted the motions toquash and ordered the return of all prop-erty seized. Reserve Judge Petersonstayed the order, however, and also haltedthe John Doe investigation pending ourresolution of the cases before us.

¶ 3 The first case we address is an origi-nal action brought by Unnamed MovantsNos. 6 and 7, State ex rel. Two UnnamedPetitioners v. Peterson (‘‘Two UnnamedPetitioners ’’). Unnamed Movants Nos. 6and 7 seek a declaration of rights that thespecial prosecutor’s theory of the case isinvalid under Wisconsin law. Specifically,

they ask that we declare that coordinatedissue advocacy of the kind alleged by thespecial prosecutor is not regulated underWis. Stat. Ch. 11 (2011–12),2 Wisconsin’scampaign finance law.

¶ 4 The second case we review is a peti-tion brought by the special prosecutor fora supervisory writ and an appeal of Re-serve Judge Peterson’s decision and orderquashing the subpoenas and searchS 27warrants, State ex rel. Schmitz v. Peter-son (‘‘Schmitz v. Peterson ’’). The specialprosecutor argues that Reserve Judge Pe-terson improperly quashed the subpoenasand search warrants because the recordsin the John Doe investigation establish areasonable belief that the Unnamed Mov-ants violated Wisconsin’s campaign financelaw. This case is before us on the Un-named Movants’ petitions to bypass thecourt of appeals pursuant to Wis. Stat.§ 809.60 (2013–14).

¶ 5 The third case we address is a peti-tion for a supervisory writ and a review ofa decision of the court of appeals, State exrel. Three Unnamed Petitioners v. Peter-son (‘‘Three Unnamed Petitioners ’’).This petition for supervisory writ wasbrought by Unnamed Movants Nos. 2, 6,and 7, and broadly challenges whether theJohn Doe investigation can be initiated infive separate counties under a single JohnDoe judge, and whether the special prose-cutor was properly appointed. The courtof appeals denied the supervisory writ andUnnamed Movants Nos. 2, 6, and 7 appeal-ed that decision to this court.

1. We have granted the amicus briefs on themerits filed by: Wisconsin Right to Life; Citi-zens for Responsible Government Advocates,Inc.; The Wisconsin Government Accounta-bility Board; The Honorable Bradley A.Smith, Center for Competitive Politics, andWisconsin Family Action; Campaign LegalCenter, Democracy 21, Common Cause inWisconsin, and League of Women Voters of

Wisconsin; Former Federal Election Com-mission Members Lee Ann Elliott, David Ma-son, Hans von Spakovsky, and Darryl Wold;and Wyoming Liberty Group.

2. All subsequent references to the WisconsinStatutes are to the 2011–12 version unlessotherwise indicated.


¶ 6 Our order granting and consolidat-ing 3 each of these cases identified 14 is-sues presented by the complex nature ofthe cases. These issues related to theprocedural nature of the John Doe investi-gation, as well as whether the conductalleged by the special prosecutor is actual-ly a violation of Ch. 11. Subsequent brief-ing by the parties has revealed that thecases can be resolved on much narrowergrounds than those that were originallysubmitted, and we have written this opin-ion accordingly.

S 28¶ 7 We can resolve the original action,Two Unnamed Petitioners, by first exam-ining whether the statutory definitions of‘‘committee,’’ ‘‘contributions,’’ ‘‘disburse-ments,’’ and ‘‘political purposes’’ in Wis.Stat. §§ 11.01(4), (6), (7), and (16) are lim-ited to express advocacy 4 or whether theyencompass the conduct of coordination be-tween a candidate or a campaign commit-tee and an independent organization thatengages in issue advocacy. Second, if thedefinitions extend to issue advocacy coordi-nation, what then constitutes prohibited‘‘coordination?’’ 5

¶ 8 Next, we can resolve the supervisorywrit petition in Schmitz v. Peterson byanswering whether the evidence gatheredin the John Doe proceedings provides areasonable belief that Wisconsin law wasviolated by a campaign committee’s coordi-nation with independent advocacy organi-zations that engaged in express advocacy.6

¶ 9 Finally, we can resolve the supervi-sory writ petition in Three Unnamed Peti-tioners by examining: (1) Whether the

Director of State Courts (‘‘Director’’) vio-lated a plain legal duty in appointing re-serve judge, Barbara A. Kluka, as theJohn Doe judge to preside over a multi-county John Doe proceeding; (2) Whetherthe Chief Judge of the First Judicial Dis-trict violated a plain legal duty in appoint-ing reserve judge, Gregory A. Peterson, asthe John Doe judge to preside over amulti-county John Doe proceeding; (3)Whether a John S 29Doe judge violated aplain legal duty by convening a John Doeproceeding over multiple counties, which isthen coordinated by the district attorneyof one of the counties; (4) Whether a JohnDoe judge violated a plain legal duty byappointing a special prosecutor to performthe functions of a district attorney in mul-tiple counties in a John Doe proceedingwhen (a) the district attorney in each coun-ty requests the appointment; (b) but noneof the nine grounds for appointing a spe-cial prosecutor under Wis. Stat.§ 978.045(1r) apply; (c) no charges haveyet been issued; (d) the district attorneyin each county has not refused to continuethe investigation or prosecution of any po-tential charge; and (e) no certification thatno other prosecutorial unit was able to dothe work for which the special prosecutorwas sought was made to the Departmentof Administration; and (5) If, arguendo,there was a defect in the appointment ofthe special prosecutor in the John Doeproceedings at issue in these matters, whateffect, if any, would such a defect have onthe competency of the special prosecutorto conduct the investigation; or the compe-

3. In our December 16, 2014, grant order weconsolidated the cases for the purpose ofbriefing and oral argument. We subsequentlyconsolidated these three cases into one opin-ion because each case arises out of the samefacts.

4. Express advocacy is a communication thatexpressly advocates for the election or defeatof 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.


tency of the John Doe judge to conductthese proceedings? 7

I. HOLDINGS

A.

¶ 10 In Two Unnamed Petitioners, wehold that the definition of ‘‘political pur-poses’’ in Wis. Stat. § 11.01(16) is unconsti-tutionally overbroad and vague under theFirst Amendment to the United StatesConstitution and Article 1, Section 3 of theWisconsin S 30Constitution 8 because its lan-guage ‘‘ ‘is so sweeping that its sanctionsmay be applied to constitutionally protect-ed conduct which the state is not permit-ted to regulate.’ ’’ State v. Janssen, 219Wis.2d 362, 374, 580 N.W.2d 260 (1998)(quoting Bachowski v. Salamone, 139Wis.2d 397, 411, 407 N.W.2d 533 (1987)).However, a readily available limiting con-struction exists that we will apply and thatwill prevent the chilling of otherwise pro-tected speech; namely, ‘‘political purposes’’is limited to express advocacy and its func-tional equivalent 9 as those terms are de-fined in Buckley v. Valeo, 424 U.S. 1, 96S.Ct. 612, 46 L.Ed.2d 659 (1976), and Fed.Election Comm’n v. Wis. Right To Life,Inc., 551 U.S. 449, 127 S.Ct. 2652, 168L.Ed.2d 329 (2007) (WRTL II ). With thislimiting construction in place, Chapter 11does not proscribe any of the alleged con-duct of any of the Unnamed Movants.The special prosecutor has not alleged anyexpress advocacy, and issue advocacy,

whether coordinated or not, is ‘‘beyond thereach of [Ch. 11].’’ Wis. Right To Life,Inc. v. Barland, 751 F.3d 804, 815 (7thCir.2014) (Barland II ). Accordingly, weinvalidate the special prosecutor’s theoryof the case, and we grant the relief re-quested by the Unnamed Movants.

S 31¶ 11 To be clear, this conclusion endsthe John Doe investigation because thespecial prosecutor’s legal theory is unsup-ported in either reason or law. Conse-quently, the investigation is closed. Con-sistent with our decision and the orderentered by Reserve Judge Peterson, weorder that the special prosecutor and thedistrict attorneys involved in this investi-gation must cease all activities related tothe investigation, return all propertyseized in the investigation from any indi-vidual or organization, and permanentlydestroy all copies of information and othermaterials obtained through the investiga-tion. All Unnamed Movants are relievedof any duty to cooperate further with theinvestigation.

B.

¶ 12 In Schmitz v. Peterson, we holdthat the special prosecutor has failed toprove that Reserve Judge Peterson violat-ed a plain legal duty when he quashed thesubpoenas and search warrants and or-dered the return of all property seized bythe special prosecutor. In quashing thesubpoenas and search warrants, ReserveJudge Peterson exercised his discretionunder the John Doe statute, Wis. Stat.

7. These are issues one through five from ourDecember 16, 2014, grant order.

8. See Madison Teachers, Inc. v. Walker, 2014WI 99, ¶ 23 n. 9, 358 Wis.2d 1, 851 N.W.2d337, reconsideration denied, 2015 WI 1, 360Wis.2d 178, 857 N.W.2d 620 (concluding thatthe freedom of speech rights protected underthe Wisconsin and United States Constitutionsare coextensive.) See also Kenosha Co. v. C &S Management, Inc., 223 Wis.2d 373, 389, 588N.W.2d 236 (1999).

9. The functional equivalent of express advoca-cy occurs when the ‘‘ ‘ad is susceptible of noreasonable interpretation other than as anappeal to vote for or against a specific candi-date.’ ’’ 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 ToLife, Inc., 551 U.S. 449, 469–70, 127 S.Ct.2652, 168 L.Ed.2d 329 (2007) (WRTL II )).


§ 968.26, to determine the extent of theinvestigation. Because the purpose of asupervisory writ does not include review ofa judge’s discretionary acts, State ex rel.Kalal v. Circuit Court for Dane Cnty.,2004 WI 58, ¶ 24, 271 Wis.2d 633, 681N.W.2d 110, the supervisory writ soughtby the special prosecutor is denied, andReserve Judge Peterson’s order is af-firmed.

C.

¶ 13 Finally, in Three Unnamed Peti-tioners, we hold that the Unnamed Mov-ants have failed to prove S 32that eitherReserve Judge Kluka or Reserve JudgePeterson violated a plain legal duty by: (1)accepting an appointment as a reservejudge; (2) convening a multi-county JohnDoe proceeding; or (3) appointing a spe-cial prosecutor. Although the circum-stances surrounding the formation of theJohn Doe investigation raise serious con-cerns, and although the appointment of thespecial prosecutor may well have been im-proper, such concerns do not satisfy thestringent preconditions for a supervisorywrit.10 Put another way, were we to grantthe supervisory writ in this case, we wouldrisk ‘‘transform[ing] the writ into an all-purpose alternative to the appellate review

process,’’ which we cannot do. Id. Accord-ingly, we deny the supervisory writ andaffirm the decision of the court of appeals.

II. FACTUAL BACKGROUND ANDPROCEDURAL HISTORY 11 12

¶ 14 In the spring of 2010, a John Doeproceeding (John Doe I) was commencedfor the purpose of investigating the allegedmisuse of public resources in S 33the Mil-waukee County Executive’s Office. Thisinvestigation resulted in criminal chargesbeing filed against four individuals—TimRussell, Kevin Kavanaugh, Kelly Rind-fleisch, and Darlene Wink—in January2012.13

¶ 15 John Doe I also triggered a secondJohn Doe proceeding (John Doe II), theinvestigation at issue here. On August 10,2012, Milwaukee County Assistant DistrictAttorney David Robles filed a petition forthe commencement of John Doe II in theMilwaukee County circuit court. This pe-tition sought leave to investigate allegedcampaign finance violations under Wis.Stat. Ch. 11, and requested a secrecy or-der to cover the investigation in anticipa-

10. See infra Section V.

11. In setting forth the facts, we respect theterms of the secrecy order issued by ReserveJudge Kluka and thus our majority opinionwill set forth only the facts necessary for ourresolution of this case. See State ex rel. Nied-ziejko v. Coffey, 22 Wis.2d 392, 398, 126N.W.2d 96 (1964). However, we can inter-pret the secrecy order and modify it to theextent necessary for the public to understandour decision herein. If a fact is necessary toinclude in order to render explicable a jus-tice’s analysis of an issue presented, it is notprecluded by the secrecy order. We do notdiscuss the identity of the Unnamed Movantsor the specific allegations against them. Wedo, however, discuss the actions of the prose-cutors and the judges involved.

12. We recognize that in the ordinary case ourprocedural background would not be givenwith such exacting precision. Conversely, werecognize that in the ordinary case without asecrecy order, our factual background wouldbe more precise, in that we would, amongother things, identify the parties. Be that asit may, in the interest of as much transparen-cy as possible we set forth as many of thefacts as we can.

13. Records from John Doe I have been re-leased to the public by the original John Doejudge and are no longer subject to any secrecyorder.


tion that documents would be sought fromthe targeted individuals. In support of hisrequest, Robles’ petition referred to anaffidavit by Investigator Robert Stelter.

¶ 16 Stelter’s affidavit indicates thatemails obtained in response to a searchwarrant in John Doe I suggested thatthere may have been coordination of fund-raising between campaign committees andother related, independent groups. Re-serve Judge Neal Nettesheim, the JohnDoe I judge, authorized the use of theinformation obtained in John Doe I for thepurpose of requesting the commencementof John Doe II.

S 34¶ 17 On August 23, 2012, the ChiefJudge of the First Judicial District, Jef-frey Kremers, assigned and forwarded theJohn Doe petition to Reserve Judge Kluka.On September 5, 2012, using a form titled‘‘Application and Order for Specific Judi-cial Assignment,’’ Director of State CourtsJohn Voelker (with then-Chief JusticeShirley Abrahamson’s name directlyabove) 14 assigned Reserve Judge Kluka topreside over the John Doe proceeding inMilwaukee County. That same day, Re-serve Judge Kluka authorized the com-mencement of the John Doe proceedingand also granted the requested secrecyorder.

¶ 18 On September 6, 2012, InvestigatorStelter filed an affidavit in support of arequest for search warrants and subpoe-nas. The request covered a wide swath ofdesired information, including emails, con-ference call records, and bank records,dating from 2009 to 2012. In support ofthis request, Investigator Stelter provideddetails of numerous emails between a can-didate committee and individuals and/orgroups.

¶ 19 On December 13, 2012, InvestigatorStelter filed another affidavit in support ofa request for further search warrants andsubpoenas. This affidavit provided addi-tional details about the parties and howthey operated in coordination with eachother. The theory of the case, as putforward by the special prosecutor, is two-fold: (1) that the independent groups andthe candidate committee worked ‘‘hand inglove’’ such that the independent groupsbecame mere subcommittees of the candi-date’s committee, thus triggering report-ing and disclosure requirements underWis. Stat. §§ 11.10(4); and (2) that thecoordinated issue S 35advocacy amounted toan unlawful in-kind contribution to thecandidate committee under Wis. Admin.Code § GAB 1.20.

¶ 20 On January 18, 2013, MilwaukeeCounty District Attorney John Chisholmmet with then-Attorney General J.B. VanHollen to discuss the ongoing investiga-tion. District Attorney Chisholm soughtto determine whether, given the statewidenature and gravity of the investigation, theDepartment of Justice (‘‘DOJ’’) wished tobecome involved. On May 31, 2013, Attor-ney General Van Hollen sent District At-torney Chisholm a letter declining DOJinvolvement in the investigation. AttorneyGeneral Van Hollen cited, among otherthings, potential conflicts of interest andthe appearance of impropriety.

¶ 21 In July 2013, three more petitionsto commence John Doe proceedings werefiled: District Attorney Jane Kohlwey fileda petition in Columbia County circuit courton July 22, 2013; District Attorney LarryNelson filed a petition in Iowa Countycircuit court on July 25, 2013; and DistrictAttorney Kurt Klomberg filed a petition inDodge County circuit court on July 26,2013.

14. The actual text of the assignment ordersread: ‘‘Shirley Abrahamson Chief Justice By:

Electronically signed by [sic] A. John Voelker,Director of State Courts.’’


¶ 22 On August 7, 2013, using a formtitled ‘‘Application and Order for SpecificJudicial Assignment,’’ Director Voelker(with then-Chief Justice ShirSley36 Abra-hamson’s name directly above) assignedReserve Judge Kluka to preside over theIowa County John Doe proceeding. OnAugust 21, 2013, Reserve Judge Kluka en-tered an order commencing the John Doeproceeding in Iowa County and also en-tered a secrecy order.

¶ 23 Also on August 7, 2013, using aform titled ‘‘Application and Order forSpecific Judicial Assignment,’’ DirectorVoelker (with then-Chief Justice ShirleyAbrahamson’s name directly above) as-signed Reserve Judge Kluka to presideover the Dodge County John Doe proceed-ing. On August 21, 2013, Reserve JudgeKluka entered an order commencing theDodge County John Doe proceeding andalso entered a secrecy order.

¶ 24 On August 14, 2013, using a formtitled ‘‘Application and Order for SpecificJudicial Assignment,’’ Director Voelker(with then-Chief Justice Shirley Abraham-son’s name directly above) assigned Re-serve Judge Kluka to preside over theColumbia County John Doe proceeding.On August 21, 2013, Reserve Judge Klukaentered an order commencing the JohnDoe proceeding and also entered a secrecyorder.

¶ 25 On August 21, 2013, Dane CountyDistrict Attorney Ismael Ozanne filed apetition in Dane County circuit court tocommence a John Doe proceeding. OnAugust 21, 2013, using a form titled ‘‘Ap-plication and Order for Specific JudicialAssignment,’’ Director Voelker (with then-Chief Justice Shirley Abrahamson’s namedirectly above) assigned Reserve JudgeKluka to preside over the Dane CountyJohn Doe proceeding. On August 21,2013, Reserve Judge Kluka entered anorder commencing the Dane County John

Doe proceeding and also entered a secrecyorder.

¶ 26 Also on August 21, 2013, the Dis-trict Attorneys from all five counties sent ajoint letter to Reserve Judge Kluka re-questing the appointment of a special pros-ecutor to oversee the entire investigation.The District Attorneys encouraged Re-serve Judge Kluka to appoint a specialprosecutor on her own motion and in theexercise of her inherent authority. Theirletter expressed concerns that it would beinefficient for five district attorneys tohandle one investigation and that S 37theremay be a perception of bias given theirpartisan affiliations. The letter recom-mended Francis Schmitz for the position.

¶ 27 On August 23, 2013, Reserve JudgeKluka entered separate, but identical, or-ders in all five John Doe proceedings ap-pointing Francis Schmitz as special prose-cutor with jurisdiction across the fivecounties. Mirroring the District Attor-neys’ position on the matter, ReserveJudge Kluka cited, as the basis of herappointment, concerns of efficiency andthe appearance of impropriety. ReserveJudge Kluka made the appointment pursu-ant to her purported ‘‘authority’’ underState v. Carlson, 2002 WI App 44, 250Wis.2d 562, 641 N.W.2d 451, as well as herpurported ‘‘inherent authority’’ underState v. Cummings, 199 Wis.2d 721, 736,546 N.W.2d 406 (1996). Each order fixedthe special prosecutor’s rate of pay at $130per hour and stated that a copy should besent to the Department of Administration.

¶ 28 On October 1, 2013, Reserve JudgeKluka authorized 29 subpoenas duces te-cum to, among others, Unnamed MovantsNos. 1, 2, 3, 4, 5, and 8, based on anaffidavit submitted to her by InvestigatorStelter. These subpoenas compelled pro-duction of documents evidencing the con-duct of coordination among the subpoe-naed parties and a candidate committee,


particularly the interaction between Un-named Movants Nos. 1 and 2. That sameday Reserve Judge Kluka authorizedsearch warrants for the homes and officesof Unnamed Movants Nos. 6 and 7. Thesearch warrants were executed at approxi-mately 6:00 a.m. on October 3, 2013, inpre-dawn, armed, paramilitary-style raidsin which bright floodlights were used toilluminate the targets’ homes.

S 38¶ 29 The breadth of the documentsgathered pursuant to subpoenas and seizedpursuant to search warrants is amazing.Millions of documents, both in digital andpaper copy, were subpoenaed and/orseized. Deputies seized business papers,computer equipment, phones, and otherdevices, while their targets were re-strained under police supervision and de-nied the ability to contact their attorneys.The special prosecutor obtained virtuallyevery document possessed by the Un-named Movants relating to every aspect oftheir lives, both personal and professional,over a five-year span (from 2009 to 2013).Such documents were subpoenaed and/orseized without regard to content or rele-vance to the alleged violations of Ch. 11.As part of this dragnet, the special prose-cutor also had seized wholly irrelevant in-formation, such as retirement incomestatements, personal financial account in-formation, personal letters, and familyphotos.

¶ 30 Motions to quash the subpoenaswere filed by Unnamed Movant No. 1 onOctober 17, 2013, and by Unnamed Mov-ants Nos. 2 and 3 on October 25, 2013. OnOctober 29, 2013, before ruling on themotions, Reserve Judge Kluka recusedherself from the Milwaukee County pro-ceeding, citing only an unspecified ‘‘con-flict.’’ The Milwaukee County proceedingwas reassigned by Chief Judge Kremers toReserve Judge Gregory Peterson on Octo-ber 29, 2013.

¶ 31 The next day, on October 30, 2013,Reserve Judge Kluka disqualified herselffrom the remaining John Doe proceedings.On November 1, 2013, Chief Judge Potterof the Sixth Judicial District assigned Re-serve Judge Peterson to preside over theJohn Doe proceedings in Columbia Countyand Dodge County. On November 1,2013, Chief Judge Duvall of the SeventhJudicial District assigned Reserve JudgePeterson to preside over the John Doeproceeding in Iowa County. On Novem-ber 4, 2013, Chief Judge Daley of the FifthJudicial District assigned Reserve JudgePeterson to preside over the John Doeproceeding in Dane County. Thereafter,on November 4, 2013, Director Voelker(with then-Chief Justice Shirley Abraham-son’s name directly above) assigned Re-serve Judge PeSterson39 to preside over theMilwaukee County John Doe proceeding.On November 11, 2013, Director Voelker(with then-Chief Justice Shirley Abraham-son’s name directly above) assigned Re-serve Judge Peterson to preside over theJohn Doe proceedings in Iowa County andDane County. On November 14, 2013,Director Volker (with then-Chief JusticeShirley Abrahamson’s name directlyabove) assigned Reserve Judge Petersonto preside over the John Doe proceedingsin Columbia County and Dodge County.

¶ 32 Also on November 14, 2013, Un-named Movants Nos. 2, 6, and 7 filed withthe court of appeals a petition for supervi-sory writs of mandamus and prohibitiondirected at Reserve Judges Kluka and Pe-terson (Three Unnamed Petitioners ).The Unnamed Movants alleged proceduraldefects involving the appointment of a re-serve judge to oversee a multi-county JohnDoe investigation and the appointment ofthe special prosecutor. The UnnamedMovants asked the court of appeals todeclare the John Doe investigation void abinitio.


¶ 33 In an order dated November 22,2013, the court of appeals summarily dis-missed what it deemed the Unnamed Mov-ants’ ‘‘first and sixth claims,’’ namely, thatthere is no statutory authority to appointor assign a reserve judge to preside over aJohn Doe proceeding, and that the JohnDoe judge circumvented the statutoryfunctions of the clerks of court in fiveS 40counties by requiring certain documentsbe sent to a post office box. Three Un-named Petitioners, Nos. 2013AP2504–W–2508–W, unpublished order 6–7 (Wis.Ct.App. Nov. 22, 2013). Regarding the firstclaim, the court of appeals reasoned thatthere is no statute that limits the ability ofreserve judges to oversee John Doe inves-tigations. Id. Moreover, the court of ap-peals noted that the statute authorizingthe appointment of reserve judges explicit-ly states that reserve judges ‘‘shall per-form the same duties as other judges.’’Id. (citing Wis. Stat. § 753.075). Thecourt of appeals ordered the respondentsto address the remaining claims concern-ing the legality of a multi-county John Doeproceeding, the legality of a special prose-cutor handling a multi-county John Doeproceeding, and the legality of the specialprosecutor’s appointment under Wis. Stat.§ 978.045. Id.

¶ 34 While that case was pending at thecourt of appeals, Unnamed Movant No. 6also filed a petition in Dodge County cir-cuit court on December 4, 2013, for thereturn of the property taken pursuant tothe October 1 search warrant. On Decem-ber 20, 2013, Unnamed Movant No. 7 fileda substantially similar petition in DaneCounty circuit court. After a response bythe special prosecutor, Reserve Judge Pe-terson granted the motions to quash thesubpoenas and the petitions to returnproperty on January 10, 2014. ReserveJudge Peterson reasoned:

I conclude the subpoenas do not showprobable cause that the moving parties

committed any violations of the cam-paign finance laws. I am persuaded thestatutes only prohibit coordination bycandidates and independent organiza-tions for a political purpose, and politicalpurpose, with one minor exception notrelSevant41 here TTT requires express ad-vocacy. There is no evidence of expressadvocacy.

TTT

Before there is coordination there mustbe political purposes; without politicalpurposes, coordination is not a crime.

TTT

As relevant here, acts are for politicalpurposes when they are made to influ-ence the recall or retention of a personholding office. Wis. Stat. § 11.01(16). Ifthe statute stopped here, the definitionof political purposes might well be un-constitutionally vague. Buckley v. Va-leo, 424 U.S. 1, 77 [96 S.Ct. 612, 46L.Ed.2d 659] (1976). But the definitioncontinues: acts for political purposes in-clude, but are not limited to, making acommunication that expressly advocatesthe recall or retention of a clearly identi-fied candidate. Wis. Stat.§ 11.01(16)(a). In GAB 1.28, the GABattempted to flesh out other acts thatwould constitute political purposes, butbecause of constitutional challenges ithas stated it will not enforce that regula-tion. So the only clearly defined politi-cal purpose is one that requires expressadvocacy.

The state is not claiming that any of theindependent organizations expressly ad-vocated. Therefore, the subpoenas failto show probable cause that a crime wascommitted.

¶ 35 As for the search warrants executedon the homes and offices of UnnamedMovants Nos. 6 and 7, Reserve JudgePeterson reasoned:


The same legal conclusions should applyto all parties who have raised challengesin this case. Therefore, for the reasonsstated above regarding the limitations inthe scope of the campaign finance laws,I conclude that the warrants lack proba-ble cause.

S 42¶ 36 The special prosecutor requesteda stay of the order, which was granted onJanuary 27, 2014. In his order grantingthe stay, Reserve Judge Peterson alsoclarified that he was incorrect in statingthat the probable cause standard appliedto subpoenas. Nevertheless, he concludedthat a subpoena is not ‘‘valid when basedon an invalid interpretation of the law.’’As a condition of the stay, Reserve JudgePeterson ordered the State not to examineany of the property seized pursuant tosearch warrants.

¶ 37 On January 30, 2014, the court ofappeals issued an opinion and order inThree Unnamed Petitioners addressingthe remaining issues and denying the su-pervisory writ. Regarding the legality ofa multi-county John Doe proceeding, thecourt of appeals reasoned that there werefive separate proceedings in five separatecounties and that it is not unusual forcourts to hold joint proceedings or to issuejoint orders in non-consolidated cases thatshare a common factual basis, raise thesame legal issue, or involve overlappingparties. Three Unnamed Petitioners,Nos. 2013AP2504–W–2508–W, unpublishedslip op. & order 3–4 (Wis.Ct.App. Jan. 30,2014). The court of appeals used the samereasoning to justify the legality of a specialprosecutor handling multi-county JohnDoe proceedings. Id. at 4–7. As for the

legality of the special prosecutor’s appoint-ment under Wis. Stat. § 978.045, the courtof appeals determined that the specialprosecutor was appointed pursuant to Re-serve Judge Kluka’s ‘‘authority’’ underCarlson, and ‘‘inherent authority’’ underCummings, not under Wis. Stat.§ 978.045, the special prosecutors statute.Id. On February 19, 2014, the UnnamedMovants filed a petition for review in thiscourt, which we granted on December 16,2014.

S 43¶ 38 Meanwhile, on February 7, 2014,Unnamed Movants Nos. 6 and 7 filed apetition for leave to commence an originalaction in the Wisconsin Supreme Courtunder Article VII, Section 3(2) of the Wis-consin Constitution 15 (Two Unnamed Peti-tioners ). The original action sought adeclaration confirming the ruling of Re-serve Judge Peterson in his January 10,2014, order. The special prosecutor filed aresponse to this petition on February 25,2014. We granted the original action onDecember 16, 2014.

¶ 39 On February 21, 2014, the specialprosecutor filed a petition for a superviso-ry writ and a writ of mandamus in thecourt of appeals (Schmitz v. Peterson ).The special prosecutor sought the supervi-sory writ in order to vacate Reserve JudgePeterson’s January 10, 2014, order and todirect Reserve Judge Peterson to enforcethe subpoenas and search warrants. Un-named Movants Nos. 1, 2, 3, 4, 5, 6, 7, and8 filed responses to the petition on March31, 2014. Shortly thereafter, the Un-named Movants brought a petition to by-

15. ‘‘The supreme court has appellate jurisdic-tion over all courts and may hear originalactions and proceedings. The supreme courtmay issue all writs necessary in aid of itsjurisdiction.’’ Wis. Const. art. VII, § 3(2).

‘‘The supreme court limits its exercise oforiginal jurisdiction to exceptional cases in

which a judgment by the court significantlyaffects the community at large.’’ Wis. Prof’lPolice Ass’n v. Lightbourn, 2001 WI 59, ¶ 4,243 Wis.2d 512, 627 N.W.2d 807. We exer-cised original jurisdiction because this casemeets that test.


pass the court of appeals. We grantedbypass on December 16, 2014.

¶ 40 Finally, on November 3, 2014, Un-named Movants Nos. 6 and 7 filed a mo-tion with Reserve Judge Peterson request-ing an order to show cause as to why theJohn Doe proceeding should not be ended.S 44Reserve Judge Peterson denied that mo-tion but concluded that if appellate courtsagreed with his interpretation of Ch. 11,the ‘‘consequence will no doubt be the endof the John Doe investigation.’’

III. TWO UNNAMED PETITIONERS

¶ 41 We turn first to Two UnnamedPetitioners, the original action filed withthe Wisconsin Supreme Court. This caserequires us to interpret Wisconsin’s cam-paign finance law, Wis. Stat. Ch. 11. Byits very nature, this task involves funda-mental questions regarding the scope ofthe government’s ability to regulate politi-cal speech. To resolve this case, we mustengage in statutory interpretation of thephrase ‘‘political purposes,’’ which includesall activities ‘‘done for the purpose of influ-encing [an] election.’’ Wis. Stat.§ 11.01(16). We conclude, consistent withthe First Amendment of the United StatesConstitution and Article I, Section 3 of theWisconsin Constitution, that the plain lan-guage of ‘‘political purposes’’ in Wis. Stat.§ 11.01(16) is unconstitutionally overbroadand vague if it is not given a limitingconstruction and applied to only expressadvocacy and its functional equivalent.This conclusion invalidates the specialprosecutor’s theory of the case and endsthe John Doe investigation. Therefore, weagree with the Unnamed Movants andgrant their requested relief.

A. Standard of Review

[1] ¶ 42 Statutory interpretation is aquestion of law, which this court reviews

de novo. Covenant Healthcare Sys., Inc.v. City of Wauwatosa, 2011 WI 80, ¶ 21,336 Wis.2d 522, 800 N.W.2d 906. In thiscase, S 45our statutory interpretation impli-cates the constitutionality of specific provi-sions in Chapter 11, which is also a ques-tion of law which we review de novo.Janssen, 219 Wis.2d at 370, 580 N.W.2d260.

[2, 3] ¶ 43 Statutes are presumed to beconstitutional, ‘‘and the party seeking toovercome the presumption must prove thestatute unconstitutional beyond a reason-able doubt.’’ Id. When the statute impli-cates the exercise of First Amendmentrights, however, ‘‘[t]he burden shifts to theproponent of the statute.’’ Id. at 370–71,580 N.W.2d 260. Here, the proponent isthe special prosecutor.

B. The First Amendment and theDoctrines of Vagueness and

Overbreadth

i. First Amendment Principles

¶ 44 In addressing the scope of Wiscon-sin’s campaign finance law we are keenlyaware that this task bears directly on theability of all citizens in our State to engagein the democratic process. The specialprosecutor’s theories implicate one of thefoundational principles of our nation: thefreedom of speech, specifically, politicalspeech. We therefore begin our analysiswith the words of the First Amendment:‘‘Congress shall make no law TTT abridgingthe freedom of speech.’’ U.S. Const.amend. I.16 Article I, Section 3 of the Wis-consin Constitution guarantees that: ‘‘Ev-ery person may freely speak, write andpublish his sentiments on all subjects, be-ing responsible for the abuse of that right,and no laws shall be passed to restrain orabridge the liberty of speech or of thepress.’’

16. The First Amendment is applicable to the States through the Fourteenth Amendment.


S 46[4–6] ¶ 45 While the First Amend-ment protects a broad range of speech andconduct, ‘‘there is practically universalagreement that a major purpose of thatAmendment was to protect the free discus-sion of governmental affairsTTTT of courseinclud(ing) discussions of candidatesTTTT’’Buckley, 424 U.S. at 14, 96 S.Ct. 612 (quot-ing Mills v. Alabama, 384 U.S. 214, 218, 86S.Ct. 1434, 16 L.Ed.2d 484 (1966)). In-deed, ‘‘[t]he right of citizens to inquire, tohear, to speak, and to use information toreach consensus is a precondition to en-lightened self-government and a necessarymeans to protect it.’’ Citizens United v.Fed. Election Comm’n, 558 U.S. 310, 339,130 S.Ct. 876, 175 L.Ed.2d 753 (2010). ‘‘Ina republic [such as ours] where the peopleare sovereign, the ability of the citizenry tomake informed choices among candidatesfor office is essential, for the identities ofthose who are elected will inevitably shapethe course that we follow as a nation.’’Buckley, 424 U.S. at 14–15, 96 S.Ct. 612.These values reflect our ‘‘profound nation-al commitment to the principle that debateon public issues should be uninhibited,robust, and wide-open.’’ N.Y. Times Co.v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,11 L.Ed.2d 686 (1964) (emphasis added).

[7, 8] ¶ 46 Our protection of the free-dom of political speech reflects our firmbelief that ‘‘[d]iscussion of public issuesand debate on the qualifications of candi-dates are integral to the operation of thesystem of government established by ourConstitution.’’ Buckley, 424 U.S. at 14, 96S.Ct. 612. ‘‘At the founding, speech wasopen, comprehensive, and vital to society’sdefinition of itself; there were no limits onthe sources of speech and knowledge.’’Citizens United, 558 U.S. at 353, 130 S.Ct.876. Therefore, ‘‘[t]he First Amendmentaffords the broadest protection to [ ] politi-cal expression in order ‘to assure S 47(the)unfettered interchange of ideas for the

bringing about of political and socialchanges desired by the people.’ ’’ Buckley,424 U.S. at 14, 96 S.Ct. 612 (quoting Rothv. United States, 354 U.S. 476, 484, 77S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).

[9–13] ¶ 47 Accordingly, ‘‘the FirstAmendment ‘has its fullest and most ur-gent application precisely to the conduct ofcampaigns for political office.’ ’’ McCut-cheon v. Fed. Election Comm’n, ––– U.S.––––, 134 S.Ct. 1434, 1441, 188 L.Ed.2d 468(2014) (quoting Monitor Patriot Co. v.Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28L.Ed.2d 35 (1971)). There exists ‘‘no rightmore basic in our democracy than theright to participate in electing our politicalleaders.’’ Id. at 1440–41. Political speechis thus a fundamental right and is affordedthe highest level of protection. Indeed,freedom of speech, especially politicalspeech, is the right most fundamental toour democracy. To that end, we mustconduct a particularly ‘‘[c]lose examinationof the specificity of the statutory limitationTTT where, as here, the legislation imposescriminal penalties in an area permeated byFirst Amendment interests.’’ Buckley,424 U.S. at 40–41, 96 S.Ct. 612. ‘‘TheFirst Amendment does not permit lawsthat force speakers to retain a campaignfinance attorney, conduct demographicmarketing research, or seek declaratoryrulings before discussing the most salientpolitical issues of our day. Prolix lawschill speech for the same reason thatvague laws chill speech: People ‘of com-mon intelligence must necessarily guess at[the law’s] meaning and differ as to itsapplication.’ ’’ Citizens United, 558 U.S.at 324, 130 S.Ct. 876 (quoting Connally v.Gen. Constr. Co., 269 U.S. 385, 391, 46S.Ct. 126, 70 L.Ed. 322 (1926)).

[14, 15] ¶ 48 However, there are cer-tain, limited circumstances in which thegovernment may regulate and impose bur-dens upon the exercise of free speech. In


the S 48campaign finance context, these in-clude disclosure and reporting require-ments, as well as contribution limits tocandidates.17 The justification for impos-ing such restrictions is to ‘‘prevent[ ] cor-ruption and the appearance of corruption.’’WRTL II, 551 U.S. at 478, 127 S.Ct. 2652(quotations omitted). The interest in pre-venting the corruption of public officials,however, does not justify the regulation ofall political speech. Rather, the UnitedStates Supreme Court has drawn an im-portant ‘‘distinction between discussion ofissues and candidates and advocacy ofelection or defeat of candidates.’’ Buckley,424 U.S. at 42, 96 S.Ct. 612. The compel-ling governmental interest that justifiesthe regulation of express advocacy (theprevention of quid pro quo 18 corruption)‘‘ ‘might not apply to’ ’’ the regulation ofissue advocacy. WRTL II, 551 U.S. at471, 127 S.Ct. 2652 (quoting McConnell v.Fed. Election Comm’n, 540 U.S. 93, 209 n.88, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)).Indeed, ‘‘[s]pending large sums of moneyin connection with elections, but not inconnection with an effort to control theexercise of an officeholder’s official duties,does not give rise to such quid pro quocorruption.’’ McCutcheon, 134 S.Ct. at1450. ‘‘Nor does the possibility that anindividual who spends large sums may gar-ner ‘influence over or access to’ electedofficials or political parties.’’ Id. at 1451(quoting Citizens United, 558 U.S. at 359,130 S.Ct. 876).

[16, 17] ¶ 49 A key reason that issueadvocacy is afforded greater protection un-der the First Amendment is that ‘‘[f]ree-dom of discussion, if it would fulfill itsS 49historic function in this nation, must em-brace all issues about which information is

needed or appropriate to enable the mem-bers of society to cope with the exigenciesof their period.’’ Thornhill v. Alabama,310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed.1093 (1940). ‘‘Discussion of issues cannotbe suppressed simply because the issuesmay also be pertinent in an election.’’WRTL II, 551 U.S. at 474, 127 S.Ct. 2652.

[18–20] ¶ 50 In order to give the fullestprotection possible to the right to the exer-cise of political speech, ‘‘the government’sauthority to regulate in this area extendsonly to money raised and spent for speechthat is clearly election related[, that is,express advocacy]; ordinary politicalspeech about issues, policy, and public offi-cials[, that is, issue advocacy,] must re-main unencumbered.’’ Barland II, 751F.3d at 810 (emphasis added). Thus, inorder to avoid a chilling effect on other-wise protected speech, ‘‘when the regulato-ry scheme reaches beyond candidates,their campaign committees, and politicalpartiesTTTT [the] government may regu-late TTT only with narrow specificity.’’ Id.at 811 (quotations omitted). ‘‘In short,[we] must give the benefit of any doubt toprotecting rather than stifling speech.’’WRTL II, 551 U.S. at 469, 127 S.Ct. 2652;see also McCutcheon, 134 S.Ct. at 1451(quoting WRTL II, 551 U.S. at 457, 127S.Ct. 2652) (‘‘ ‘[T]he First Amendment re-quires [courts] to err on the side of pro-tecting political speech rather than sup-pressing it.’ ’’).

[21, 22] ¶ 51 To that end, ‘‘in the do-main of campaign-finance law, the FirstAmendment requires a heightened degreeof regulatory clarity and a close fit be-tween the government’s means and itsend.’’ Barland II, 751 F.3d at 808. This‘‘close fit’’ requirement is intended to pre-

17. 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 anotheraction or thing of more or less equal value.’’Black’s Law Dictionary 1367 (9th ed. 2009).


vent the dangerous chilling effect anS 50unclear or imprecise law has on protect-ed speech. Id. at 835. To guard againstinhibiting protected political speech, courtsuse the overbreadth and vagueness doc-trines. These doctrines ‘‘reflect[ ] the con-clusion that the possible harm to societyfrom allowing unprotected speech to gounpunished is outweighed by the possibili-ty that protected speech will be muted.’’Janssen, 219 Wis.2d at 372, 580 N.W.2d260 (citation omitted).

ii. Overbreadth and Vagueness

[23–26] ¶ 52 ‘‘A statute is overbroadwhen its language, given its normal mean-ing, is so sweeping that its sanctions maybe applied to constitutionally protectedconduct which the state is not permitted toregulate.’’ Id. at 374, 580 N.W.2d 260(citation omitted). The overbreadth doc-trine ‘‘recognize[s] that broadly writtenstatutes substantially inhibiting free ex-pression should be open to attack even bya party whose own conduct remains unpro-tected under the First Amendment.’’State v. Stevenson, 2000 WI 71, ¶ 11, 236Wis.2d 86, 613 N.W.2d 90. ‘‘The dangerinherent in overbroad statutes is that suchstatutes provide [the government with]practically unbridled administrative andprosecutorial discretion that may result inselect[ive] prosecution based on certainviews deemed objectionable by law en-forcement.’’ Id., ¶ 13. Thus, ‘‘[o]verbroadstatutes may undesirably dissuade personsfrom exercising their rights by ‘chilling’their protected speech or expression.’’Janssen, 219 Wis.2d at 372, 580 N.W.2d

260 (citation omitted). In other words, thethreat to free expression created by over-broad statutes is that, by potentiallysweeping in constitutionally protected ac-tivity, individuals and groups may self-censor out of fear of vindictive or selectiveprosecution.

S 51[27] ¶ 53 When faced with an over-broad statute, courts have several options.

First, courts may apply a limiting con-struction to rehabilitate the statutewhen such a narrowing and validatingconstruction is readily available. Sec-ond, courts may cure the constitutionaldefect by severing the unconstitutionalprovisions of a statute and leaving theremainder of the legislation intact. Fi-nally, courts may determine that thestatute is not amenable to judicial limita-tion or severance and invalidate the en-tire statute upon a determination that itis unconstitutional on its face.

Stevenson, 236 Wis.2d 86, ¶ 15, 613 N.W.2d90 (internal citations omitted).

[28–32] ¶ 54 Related to the over-breadth doctrine is the vagueness doc-trine,19 which ‘‘requires legislatures to setreasonably clear guidelines for law en-forcement officials and triers of fact inorder to prevent ‘arbitrary and discrimina-tory enforcement.’ ’’ State v. PrincessCinema of Milwaukee, Inc., 96 Wis.2d 646,657, 292 N.W.2d 807 (1980) (quoting Smithv. Goguen, 415 U.S. 566, 572–73, 94 S.Ct.1242, 39 L.Ed.2d 605 (1974)). A vaguestatute ‘‘is one which operates to hinderfree speech through the use of languagewhich is so vague as to allow the inclusion

19. ‘‘The problems of vagueness and over-breadth in statutes, although raising separateproblems, often arise together.’’ State v.Princess Cinema of Milwaukee, Inc., 96 Wis.2d646, 656–57, 292 N.W.2d 807 (1980).‘‘Where statutes have an overbroad sweep,just as where they are vague, ‘the hazard ofloss or substantial impairment of those pre-

cious [First Amendment] rights may be criti-cal,’ since those covered by the statute arebound to limit their behavior to that which isunquestionably safe.’’ Keyishian v. Bd. of Re-gents of Univ. of State of N.Y., 385 U.S. 589,609, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)(internal citation omitted).


of S 52protected speech in the prohibition orto leave the individual with no clear guid-ance as to the nature of the acts which aresubject to punishment.’’ Id. at 656, 292N.W.2d 807. ‘‘Where First Amendmentrights are involved, an even ‘greater de-gree of specificity’ is required.’’ Buckley,424 U.S. at 77, 96 S.Ct. 612 (citationsomitted). Thus, when a criminal statuteimplicates First Amendment rights, thestatutory language must have the ‘‘utmostclarity and exactitude.’’ Stevenson, 236Wis.2d 86, ¶ 30, 613 N.W.2d 90. Thus, thevagueness doctrine concerns the

imping[ement] upon three first amend-ment values: (1) it does not provideindividuals with fair warning of what isprohibited; (2) lacking precise or articu-lated standards, it allows for arbitraryor discriminatory enforcement; and (3)it causes citizens to ‘forsake activity pro-tected by the First Amendment for fearit may be prohibited.’

State v. Thiel, 183 Wis.2d 505, 521 n. 9, 515N.W.2d 847 (1994) (quoting M.S. News Co.v. Casado, 721 F.2d 1281, 1290 (10th Cir.1983)). In other words, ‘‘[b]ecause FirstAmendment freedoms need breathingspace to survive, government may regulatein [this] area only with narrow specificity.’’Barland II, 751 F.3d at 811 (quotationsomitted).

C. The Definition of ‘‘Political Purposes’’in Wis. Stat. § 11.01(16) is Overbroadand Vague Unless Limited to ExpressAdvocacy and Its Functional Equiva-lent.

[33] ¶ 55 The special prosecutor alleg-es that the Unnamed Movants engaged in

illegally coordinated issue advocacy. How-ever, the basis for his theory has evolvedover the course of the various legal chal-lenges to his S 53investigation, and he ap-pears unable to decide just how the Un-named Movants have broken the law.20

¶ 56 Today, the special prosecutor alleg-es two theories of illegal coordination: (1)that the coordination between the Un-named Movants is so extensive that thesupposedly independent groups becamesubcommittees for the candidate’s cam-paign under Wis. Stat. § 11.10(4); and (2)that the coordinated issue advocacyamounts to an in-kind contribution underWis. Admin. Code § GAB 1.20. The spe-cial prosecutor’s theories, if adopted aslaw, would require an individual to surren-der his political rights to the governmentand retain campaign finance attorneys be-fore discussing salient political issues. SeeCitizens United, 558 U.S. at 324, 130 S.Ct.876. We find no support for the specialprosecutor’s theories in Wis. Stat. Ch. 11.Chapter 11’s definition of ‘‘political pur-poses,’’ which underlies Wisconsin’s cam-paign finance law, is both overbroad andvague and thus unconstitutionally chillsspeech because people ‘‘ ‘of common intelli-gence must necessarily guess at [the law’s]meaning and differ as to its application.’ ’’Id. (quoting Connally, 269 U.S. at 391, 46S.Ct. 126).

¶ 57 However, by limiting the definitionof ‘‘political purposes’’ to express advocacyand its functional equivalent, we ensurethat all issue advocacy will remain unen-cumbered. This limiting construction 21 al-lows us to protect political speech, a vital

20. The original complaint initiating John DoeII alleged only coordinated fundraising be-tween the Unnamed Movants. Over time, thetheory of coordination evolved to includecoordinated issue advocacy.

21. Adopting a limiting construction is theonly feasible option because the statutory defi-nition of ‘‘political purposes’’ is not severableand because simply declaring the definitionunconstitutional without adopting a limitingconstruction would effectively eliminate all ofWis. Stat. Ch. 11.


First S 54Amendment right, and allows us toguard against the theories of the specialprosecutor and those who would rely onoverbroad and vague statutes to silencethose with whom they disagree.

i. The Definition and Scope of ‘‘PoliticalPurposes’’ in Wis. Stat. § 11.01(16) MustBe Limited to Only Express Advocacy.

¶ 58 We begin our analysis by notingthat Wisconsin’s campaign finance law ‘‘islabyrinthian and difficult to decipher with-out a background in this area of the law.’’Barland II, 751 F.3d at 808. Indeed, ‘‘[t]oa lay reader [Chapter 11] require[s] almostany group that wants to say almost any-thing about a candidate or election to reg-ister as a political committee.’’ Id. at 810(citing Wis. Right to Life, Inc. v. Paradise,138 F.3d 1183, 1184 (7th Cir.1998)). How-ever, in analyzing the statutes, it becomesreadily apparent that the entire regulatoryscheme depends on but a few key terms:‘‘committee,’’ ‘‘contribution,’’ ‘‘disburse-ment,’’ and ‘‘political purposes.’’

¶ 59 ‘‘Committee’’ is defined in Wis. Stat.§ 11.01(4) as ‘‘any person other than anindividual and any combination of 2 ormore persons, permanent or temporary,which makes or accepts contributions ormakes disbursements, whether or not en-gaged in activities which are exclusivelypolitical, except that a ‘committee’ does notinclude a political ‘group’ under this chap-ter.’’ As one can see from the statutorydefinition, committee status under Wiscon-sin campaign finance law depends on thedefinitions of ‘‘contributions’’ and ‘‘dis-bursements.’’

¶ 60 ‘‘Contribution’’ has a very lengthydefinition, but the relevant portion is con-tained in Wis. Stat. § 11.01(6)(a), whichstates that ‘‘contribution’’ means

S 55[a] gift, subscription, loan, advance, ordeposit of money or anything of value,except a loan of money by a commerciallending institution made by the institu-

tion in accordance with applicable lawsand regulations in the ordinary course ofbusiness, made for political purposes.In this subdivision ‘‘anything of value’’means a thing of merchantable value.

(emphasis added). The definition of ‘‘dis-bursement’’ largely parallels the definitionof ‘‘contribution,’’ the relevant portion ofwhich states that a ‘‘disbursement’’ is

[a] purchase, payment, distribution, loan,advance, deposit, or gift of money oranything of value, except a loan of mon-ey by a commercial lending institutionmade by the institution in accordancewith applicable laws and regulations inthe ordinary course of business, madefor political purposes. In this subdivi-sion, ‘‘anything of value’’ means a thingof merchantable value.

Wis. Stat. § 11.01(7)(a) (emphasis added).It is apparent from the emphasized lan-guage that whether or not something is acontribution or disbursement depends onthe definition of ‘‘political purposes.’’

¶ 61 ‘‘Political purposes’’ is defined, inrelevant part, as an act

done for the purpose of influencing theelection or nomination for election of anyindividual to state or local office, for thepurpose of influencing the recall from orretention in office of an individual hold-ing a state or local office, for the pur-pose of payment of expenses incurred asa result of a recount at an election, orfor the purpose of influencing a particu-lar vote at a referendum. In the case ofa candidate, or a committee or groupwhich is organized primarily for the pur-pose of influencing the election or nomi-nation S 56for election of any individual tostate or local office, for the purpose ofinfluencing the recall from or retentionin office of an individual holding a stateor local office, or for the purpose ofinfluencing a particular vote at a refer-


endum, all administrative and overheadexpenses for the maintenance of an of-fice or staff which are used principallyfor any such purpose are deemed to befor a political purpose.(a) Acts which are for ‘‘political pur-poses’’ include but are not limited to:1. The making of a communicationwhich expressly advocates the election,defeat, recall or retention of a clearlyidentified candidate or a particular voteat a referendum.

Wis. Stat. § 11.01(16) (emphasis added).¶ 62 Thus, the lynchpin of Wisconsin’s

campaign finance law is whether an act isdone for ‘‘political purposes.’’ Chapter 11regulates ‘‘disbursements’’ and ‘‘contribu-tions,’’ and the phrase ‘‘political purposes’’is used in the definition of each of thosewords. See Wis. Stat. §§ 11.01(7) (defin-ing ‘‘disbursement’’), 11.01(6) (defining‘‘contribution’’). If an act is not done for‘‘political purposes,’’ then it is not a dis-bursement or a contribution, and it there-fore is not subject to regulation under Ch.11.

¶ 63 The Seventh Circuit in Barland IIheld that the phrase ‘‘political purposes,’’as defined in Wis. Stat. § 11.01, is bothvague and overbroad. Barland II, 751F.3d at 833. The court reasoned that theU.S. Supreme Court in Buckley held thatthe phrase ‘‘influence an election,’’ whichalso appears in the definition of ‘‘politicalpurposes,’’ is vague and overbroad. Id. at833 (‘‘The [Buckley ] Court held that thiskind of broad and imprecise language riskschilling issue advocacy, which may not beregulated; the same reasoning S 57applieshere.’’). Further, the court concluded thephrase ‘‘include but are not limited to’’renders the definition of ‘‘political pur-poses’’ vague and overbroad because ‘‘[t]he‘not limited to’ language holds the poten-tial for regulatory mischief.’’ Id.; see alsoElections Bd. of State of Wis. v. Wis. Mfrs.

& Commerce, 227 Wis.2d 650, 677, 597N.W.2d 721 (1999) (WMC ) (concludingthat the express advocacy standard underWis. Stat. § 11.01(16)(a) must still be con-sistent with Buckley, lest it become a trapfor the innocent and unwary.)

¶ 64 The special prosecutor has com-pletely disregarded these principles. Thelack of clarity in Ch. 11, which the specialprosecutor relies upon, leads us to theunsettling conclusion that it is left to gov-ernment bureaucrats and/or individualprosecutors to determine how much coor-dination between campaign committeesand independent groups is ‘‘too much’’coordination. In essence, under his theo-ry, every candidate, in every campaign inwhich an issue advocacy group partici-pates, would get their own John Doe pro-ceeding and their own special prosecutorto determine the extent of any coordina-tion. This is not, and cannot, be the law ina democracy.

¶ 65 More fundamentally, however, thefact that these questions arise at all isproof that the definition of ‘‘political pur-poses’’ ‘‘holds the potential for regulatorymischief. Perhaps [the express advocacylanguage] was included to leave room forregulation of the ‘functional equivalent’ ofexpress advocacy as that term was laterexplained in [WRTL II ]. Beyond that,however, the language contains persistentvagueness and overbreadth.’’ Barland II,751 F.3d at 833. In fact, the GovernmentAccountability Board (‘‘GAB’’) concededthis point in Barland II and suggested alimiting S 58construction to the Seventh Cir-cuit that would ‘‘confine the definitions [of‘‘political purposes’’] to express advocacyand its functional equivalent.’’ Id. That isprecisely the construction the Seventh Cir-cuit adopted, and we conclude that samelimiting construction should apply here aswell.


¶ 66 To be clear, the reason that thedefinition of ‘‘political purposes’’ in§ 11.01(16) is unconstitutional is becausethe phrase ‘‘influencing [an] election’’ is sobroad that it sweeps in protected speech,as well as speech that can be subject toregulation. ‘‘Influencing [an] election’’ ob-viously includes express advocacy, butwithout a limiting construction it could justas easily include issue advocacy aired dur-ing the closing days of an election cycle.This is precisely the kind of overbroadlanguage that the Supreme Court has re-peatedly rejected. ‘‘Discussion of issuescannot be suppressed simply because theissues may also be pertinent in an elec-tion.’’ WRTL II, 551 U.S. at 474, 127S.Ct. 2652 (emphasis added). We musthave clear rules that protect politicalspeech, and we must continue to reject theidea that some protected speech may bechilled or restricted simply because it is‘‘difficult to distinguish from unprotectedspeech.’’ Id. at 494, 127 S.Ct. 2652 (Scalia,J., concurring). ‘‘[L]aws targeting politicalspeech are the principal object of the FirstAmendment guarantee. The fact that theline between electoral advocacy and issueadvocacy dissolves in practice is an indict-ment of the statute, not a justification ofit.’’ Id.

¶ 67 We therefore hold that the defini-tion of ‘‘political purposes’’ in Wis. Stat.§ 11.01(16) is unconstitutionally overbroadand vague. In order to cure this over-breadth and vagueness, we adopt a con-

struction of § 11.01(16) that limits the defi-nition of ‘‘political purSposes’’59 to includeonly express advocacy and its functionalequivalent, as those terms are defined inBuckley and WRTL II. This constructionis ‘‘readily available’’ due to the SeventhCircuit’s decision in Barland II. See Ste-venson, 236 Wis.2d 86, ¶ 15, 613 N.W.2d90; Barland II, 751 F.3d at 834 (explain-ing that ‘‘[t]he [Wisconsin Supreme Court]and [ ] Attorney General have acknowl-edged that when Chapter 11 is appliedbeyond candidates, their committees, andpolitical parties, it must be narrowly con-strued to comply with Buckley ’s express-advocacy limitation; the administration ofthe state’s campaign-finance system hasgenerally reflected this understanding formany decades.’’).22 Given that Chapter11’s requirements depend on whether anact is done for ‘‘political purposes,’’ theeffect of this limiting construction places‘‘issue advocacy TTT beyond the reach of[Wisconsin’s] regulatory scheme.’’ Bar-land II, 751 F.3d at 815.

ii. The Special Prosecutor’s Theories ofCoordination Depend on CoordinatedIssue Advocacy, Which Is Not Regu-lated Under Chapter 11.

¶ 68 Having reached our conclusionabout the scope of conduct regulated byChapter 11, we now turn to the specialprosecutor’s theories of coordination andS 60whether the alleged conduct is regulatedunder Wisconsin law.23 The special prose-

22. Although Barland II did not involve anallegation of coordination, that distinction ismeaningless in determining whether the defi-nition of ‘‘political purposes’’ is vague oroverbroad. It may well be that the distinctionbetween issue and express advocacy is littlemore than ‘‘a line in the sand drawn on awindy day.’’ WRTL II, 551 U.S. at 499, 127S.Ct. 2652 (Scalia, J., concurring) (citationomitted). However, ‘‘ ‘[p]rotected speechdoes not become unprotected merely becauseit resembles the latter. The Constitution re-

quires the reverse.’ ’’ Id. at 475, 127 S.Ct.2652 (majority opinion) (quoting Ashcroft v.Free Speech Coal., 535 U.S. 234, 255, 122S.Ct. 1389, 152 L.Ed.2d 403 (2002)).

23. We note that in Wis. Coal. for Voter Partic-ipation, Inc. v. State Elections Bd., 231 Wis.2d670, 605 N.W.2d 654 (Ct.App.1999) (WCVP ),the court of appeals concluded that conductsubstantially identical to the subject of thisinvestigation, coordinated issue advocacy, isregulated under Wisconsin law. The key lan-guage from that case upon which the special


cutor has disregarded S 61the vital principlethat in our nation and our state politicalspeech is a fundamental right and is af-forded the highest level of protection. Thespecial prosecutor’s theories, rather than‘‘assur[ing] [the] unfettered interchange ofideas for the bringing about of political andsocial changes desired by the people,’’Roth, 354 U.S. at 484, 77 S.Ct. 1304, in-stead would assure that such politicalspeech will be investigated with paramili-tary-style home invasions conducted in thepre-dawn hours and then prosecuted andpunished. In short, the special prosecutorcompletely ignores the command that,when seeking to regulate issue advocacygroups, such regulation must be done with‘‘narrow specificity.’’ Barland II, 751 F.3dat 811 (quotations omitted).

¶ 69 The limiting construction that weapply makes clear that the special prosecu-tor’s theories are unsupportable in law giv-en that the theories rely on overbroad andvague statutes. By limiting the definitionof ‘‘political purposes’’ to express advocacy

and its functional equivalent, politicalspeech continues to be protected as a fun-damental First Amendment right.

¶ 70 The special prosecutor’s first theoryof illegal coordination is that ostensiblyindependent, advocacy groups operated‘‘hand in glove’’ with the candidate’s com-mittee, which made the independentgroups subcommittees under Wis. Stat.§ 11.10(4). The relevant part of this stat-ute states that

[a]ny committee which is organized oracts with the cooperation of or uponconsultation with a candidate or agent orauthorized committee of a candidate, orwhich acts in concert with or at therequest or suggestion of S 62a candidateor agent or authorized committee of acandidate is deemed a subcommittee ofthe candidate’s personal campaign com-mittee.

Wis. Stat. § 11.10(4) (emphasis added).The special prosecutor argues that coordi-nated issue advocacy is prohibited under

prosecutor’s theories rest, is that ‘‘the term‘political purposes’ is not restricted by thecases, the statutes or the code to acts ofexpress advocacy. It encompasses many actsundertaken to influence a candidate’s elec-tionTTTT’’ WCVP, 231 Wis.2d at 680, 605N.W.2d 654.

The court of appeals’ statement regarding‘‘political purposes’’ is incorrect. It was in-correct when WCVP was decided in 1999, andit is incorrect today. Just four months priorto the WCVP decision, this court stated that

Buckley stands for the proposition that it isunconstitutional to place reporting or dis-closure requirements on communicationswhich do not ‘expressly advocate the elec-tion or defeat of a clearly identified candi-date.’ Any standard of express advocacymust be consistent with this principle inorder to avoid invalidation on grounds ofvagueness and/or overbreadth.

Elections Bd. of State of Wis. v. Wis. Mfrs. &Commerce, 227 Wis.2d 650, 669, 597 N.W.2d721 (1999) (WMC ) (citations omitted). Thisshould have been enough to ‘‘restrict’’ thedefinition of ‘‘political purposes’’ in Chapter

11. If ‘‘it is unconstitutional to place report-ing or disclosure requirements on communi-cations which do not ‘expressly advocate theelection or defeat of a clearly identified candi-date,’ ’’ then ‘‘political purposes’’ cannot ex-tend as broadly as WCVP and the specialprosecutor claim. At the very least, WCVPignores WMC and is inconsistent with its ex-planation of Buckley.

In any event, even assuming that it wasgood law to begin with, WCVP is no longer acorrect interpretation of ‘‘political purposes’’in Chapter 11. As discussed above, recentcase law has clearly restricted the scope ofpermissible regulation in campaign financelaw to express advocacy and its functionalequivalent. See WRTL II, 551 U.S. 449, 127S.Ct. 2652; Citizens United v. Fed. ElectionComm’n, 558 U.S. 310, 130 S.Ct. 876, 175L.Ed.2d 753 (2010); Barland II, 751 F.3d804. Therefore, to the extent that WCVP im-plies that the definition of ‘‘political pur-poses’’ in Chapter 11 extends beyond expressadvocacy and its functional equivalent, WCVPis overruled.


this provision because the statute itselfonly requires cooperation between a candi-date’s committee and another committeeand that the statute does not require thatsuch cooperation be limited to express ad-vocacy.

¶ 71 The first flaw in the special prose-cutor’s theory is that it is left to the whimof each regulatory bureaucrat and/or pros-ecutor to subjectively determine how muchcoordination is ‘‘too much.’’ Indeed, thespecial prosecutor, because he relies onvague and overbroad statutes, will be theonly one to know how much coordination is‘‘too much.’’ This cannot be; such an in-terpretation of § 11.10(4) is unconstitution-ally overbroad and vague under the FirstAmendment. See Princess Cinema, 96Wis.2d at 657, 292 N.W.2d 807 (citationsomitted) (‘‘The void for vagueness doctrine‘TTT incorporates the notions of fair noticeor warningTTTT (i)t requires legislatures toset reasonably clear guidelines for law en-forcement officials and triers of fact inorder to prevent ‘‘arbitrary and discrimi-natory enforcement.’’ ’ ’’).

¶ 72 However, there is another, moreobvious flaw in the special prosecutor’stheory. Wisconsin Stat. § 11.10(4) refersto a ‘‘committee’’ that coordinates with acandidate’s committee and in order to be a‘‘committee,’’ an entity must ‘‘make[ ] oraccept[ ] contributions or make[ ] disburse-ments.’’ In order to come within the pur-view of regulated acts both ‘‘contributions’’and ‘‘disbursements’’ must be ‘‘made forpolitical purposes.’’ S 63Wis. Stat.§§ 11.01(6)(a)1; 11.01(7)(a). Applying thenecessary limiting construction to thephrase ‘‘for political purposes,’’ we con-clude that in order to meet the statutorydefinition of ‘‘committee,’’ a committeemust engage in express advocacy and itsfunctional equivalent. This conclusion isfatal to the special prosecutor’s subcom-mittee theory because he does not allege

that the Unnamed Movants engaged inexpress advocacy. Put simply, becausethe Unnamed Movants did not engage inexpress advocacy, they could not be con-sidered a ‘‘committee’’ subject to Chapter11’s regulation.

¶ 73 The special prosecutor’s second the-ory of illegal coordination is that the coor-dinated issue advocacy should have beenreported as ‘‘in-kind contributions’’ by thecandidate’s committee. This ‘‘in-kind con-tribution’’ theory rests on the assumptionthat any issue advocacy engaged in by theUnnamed Movants was done for the bene-fit of the candidate and therefore shouldhave been reported. Once again, the spe-cial prosecutor’s theory fails.

¶ 74 An ‘‘in-kind contribution’’ is definedin the GAB’s regulations as ‘‘a disburse-ment by a contributor to procure a thing ofvalue or service for the benefit of a regis-trant who authorized the disbursement.’’GAB 1.20(1)(e) (emphasis added). By itsplain language, the definition of an in-kindcontribution depends on the making of a‘‘disbursement.’’ As a result of the limit-ing construction of ‘‘political purposes,’’there can be no ‘‘disbursement’’ underChapter 11, or the corresponding regula-tions, without express advocacy or itsfunctional equivalent. Even assumingthat the special prosecutor is correct andthe Unnamed Movants engaged in issueadvocacy at the specific request of thecandidate or the candidate’s committee,those actions do not give rise to S 64a report-able ‘‘in-kind contribution’’ because underCh. 11 issue advocacy cannot be a ‘‘dis-bursement.’’

¶ 75 In sum, we hold that, consistentwith the First Amendment to the UnitedStates Constitution and Article I, Section 3of the Wisconsin Constitution, the defini-tion of ‘‘political purposes’’ in Wis. Stat.§ 11.01(16) is unconstitutionally overbroadand vague because its language ‘‘is so


sweeping that its sanctions may be appliedto constitutionally protected conduct whichthe state is not permitted to regulate.’’Janssen, 219 Wis.2d at 374, 580 N.W.2d260. However, there is a readily availablelimiting construction that will prevent thechilling of otherwise protected speech, andwe hold that ‘‘political purposes’’ is limitedto express advocacy and its functionalequivalent as those terms are defined inBuckley and WRTL II. With this limitingconstruction in place, Chapter 11 does notregulate the alleged conduct of the Un-named Movants. The special prosecutorhas not alleged any express advocacy, andissue advocacy, whether coordinated ornot, is ‘‘beyond the reach of the regulatoryscheme.’’ Barland II, 751 F.3d at 815.Accordingly, we grant the relief requestedby the Unnamed Movants.

¶ 76 To be clear, this conclusion ends theJohn Doe investigation because the specialprosecutor’s legal theory is unsupported ineither reason or law. Consequently, theinvestigation is closed. Consistent withour decision and the order entered byReserve Judge Peterson, we order that thespecial prosecutor and the district attor-neys involved in this investigation mustcease all activities related to the investiga-tion, return all property seized in the in-vestigation from any individual or organi-zation, and permanently destroy all copiesof information and other materialsS 65obtained through the investigation. AllUnnamed Movants are relieved of anyduty to cooperate further with the investi-gation.

IV. SCHMITZ V. PETERSON

¶ 77 We turn now to the second casepresented for our review, Schmitz v. Peter-son. This case is before us on petitions tobypass the court of appeals filed by theUnnamed Movants. In this case, the spe-cial prosecutor seeks a supervisory writ inorder to reverse Reserve Judge Peterson’s

decision to quash the subpoenas andsearch warrants issued by Reserve JudgeKluka. The specific issue presented iswhether the evidence gathered in the JohnDoe proceedings provide a reasonable be-lief that Wisconsin’s campaign finance lawwas violated by a campaign committee’scoordination with independent advocacyorganizations.

¶ 78 We hold that the special prosecutorhas failed to prove that Reserve JudgePeterson violated a plain legal duty whenhe quashed the subpoenas and search war-rants and ordered the return of all proper-ty seized by the special prosecutor. Inquashing the subpoenas and search war-rants, Reserve Judge Peterson exercisedhis discretion under the John Doe statute,Wis. Stat. § 968.26, to determine the ex-tent of the investigation. Because the pur-pose of a supervisory writ does not includereview of a judge’s discretionary acts, Ka-lal, 271 Wis.2d 633, ¶ 24, 681 N.W.2d 110,the supervisory writ sought by the specialprosecutor is denied, and Reserve JudgePeterson’s order is affirmed.


[34, 35] ¶ 79 The decisions of John Doejudges ‘‘are not subject to direct appeal’’ tothe court of appeals ‘‘beScause66 an orderissued by a John Doe judge is not an orderof 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 aJohn Doe judge’s actions ‘‘pursuant to apetition for supervisory writ.’’ Id., ¶ 41;see also Wis. Stat. § 809.51(1).

[36–38] ¶ 80 It is well settled that ‘‘[a]writ of supervision is not a substitute foran appeal.’’ Kalal, 271 Wis.2d 633, ¶ 17,681 N.W.2d 110 (quotations omitted). Inorder to prevail on a supervisory writ, thepetitioner 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 isplain and it must have acted or intends toact in violation of that duty; and (4) therequest for relief is made promptly andspeedily.’’ Id. (quoting Burnett v. Alt, 224Wis.2d 72, 96–97, 589 N.W.2d 21 (1999))(emphasis added). ‘‘A plain duty ‘must beclear and unequivocal and, under the facts,the responsibility to act must be impera-tive.’ ’’ Id., ¶ 22 (quoting State ex rel.Kurkierewicz v. Cannon, 42 Wis.2d 368,377–78, 166 N.W.2d 255 (1969)).

[39–42] ¶ 81 ‘‘A supervisory writ ‘isconsidered an extraordinary and drasticremedy that is to be issued only uponsome grievous exigency.’ ’’ Id., ¶ 17 (cita-tion omitted). The obligation of a judge tocorrectly find facts and apply the law isnot the type of plain legal duty contem-plated by the supervisory writ procedure,‘‘as it would extend supervisory jurisdic-tion to a virtually unlimited range of deci-sions involving the finding of facts andapplication of law.’’ Id., ¶ 24. Instead,

S 67[t]he obligation of judges to correctlyapply the law is general and implicit inthe entire structure of our legal system.The supervisory writ, however, serves anarrow function: to provide for the di-rect control of lower courts, judges, andother judicial officers who fail to fulfillnon-discretionary duties, causing harmthat cannot be remedied through theappellate review process. To adopt [acontrary] interpretation of the plainduty requirement in supervisory writprocedure would transform the writ intoan all-purpose alternative to the appel-late review process.

Id. (emphasis added) (citations omitted).

B. Nature of John Doe Proceedings

¶ 82 Before analyzing Reserve JudgePeterson’s decision to quash the subpoenasand search warrants, it is necessary for usto provide background regarding the prop-

er conduct of John Doe proceedings, whichhave been in use in Wisconsin since itsdays as a territory. In re Doe, 317 Wis.2d364, ¶ 13, 766 N.W.2d 542. This discussionis necessary to educate the public on thenature of this important investigatory tool,and also to provide guidance to the lowercourts on the proper conduct of John Doeproceedings.

[43] ¶ 83 Wisconsin’s John Doe pro-ceeding, codified in Wis. Stat. § 968.26,serves two important purposes. State exrel. Reimann v. Circuit Court for DaneCnty., 214 Wis.2d 605, 621, 571 N.W.2d 385(1997). ‘‘First, and most obvious, a JohnDoe proceeding is intended as an investi-gatory tool used to ascertain whether acrime has been committed and if so, bywhom. Second, the John Doe proceedingis designed to protect innocent citizensfrom frivolous and groundless prose-cuStions.’’68 Id. (citations omitted). In or-der to fulfill the dual purposes of the JohnDoe statute, a John Doe judge

serves an essentially judicial function.The judge considers the testimony pre-sented. It is the responsibility of theJohn Doe judge to utilize his or hertraining in constitutional and criminallaw and in courtroom procedure in de-termining the need to subpoena wit-nesses requested by the district attor-ney, in presiding at the examination ofwitnesses, and in determining probablecause. It is the judge’s responsibility toensure procedural fairness.

State v. Washington, 83 Wis.2d 808, 823,266 N.W.2d 597 (1978) (footnote omitted).

[44] ¶ 84 ‘‘Wisconsin Stat. § 968.26outlines a four-step process for John Doeproceedings.’’ In re Doe, 317 Wis.2d 364,¶ 14, 766 N.W.2d 542. ‘‘First, the judgemust determine whether a complainant hasalleged ‘objective, factual assertions suffi-cient to support a reasonable belief that a


crime has been committed.’ ’’ Id. (citationomitted). Second, if the complainantmeets this burden, ‘‘the judge must pro-ceed with a hearing at which ‘the judgeshall examine the complainant under oathand any witnesses produced by him orher.’ ’’ Id., ¶ 15 (quoting Wis. Stat.§ 968.26 (2007–08)). Third, when thishearing is over, ‘‘a judge must determinewhether probable cause exists as to eachessential element of the alleged crime.’’Id., ¶ 16. ‘‘Finally, if the judge determinesthat probable cause is present-that is, thata crime probably has been committed-andwho the perpetrator of the alleged crimeis, the judge may order that a criminalcomplaint be reduced to writingTTTT’’ Id.,¶ 17. This process gives a John Doe judge‘‘broad discretion to decide whether to filea criminal complaint, even upon a findingof probable cause.’’ Id.

S 69[45–47] ¶ 85 In order to commence aJohn Doe proceeding, the complainant,whether it be the district attorney or any-one else, must demonstrate to the JohnDoe judge ‘‘that he has reason to believethat a crime has been committed withinthe jurisdiction.’’ State v. Doe, 78 Wis.2d161, 165, 254 N.W.2d 210 (1977). If ‘‘thejudge finds that the complainant has failedto establish ‘reason to believe[ ]’ [that acrime has been committed,] that judgemay deny the John Doe petition withoutconducting an examination.’’ Reimann,214 Wis.2d at 625, 571 N.W.2d 385. Thus,the John Doe judge must act as a gate-keeper and screen out ‘‘petitions that arespurious, frivolous, or groundless.’’ Id. at624, 571 N.W.2d 385. ‘‘In determiningwhether the petition is worthy of furthertreatment, a circuit court judge [presidingover a John Doe proceeding] must act as aneutral and detached magistrate.’’ Id. at625, 571 N.W.2d 385 (emphasis added).

[48, 49] ¶ 86 Therefore, from the earli-est stages of the proceeding, to the conclu-

sion of the investigation, ‘‘[t]he proceed-ings of the John Doe are constantly underthe scrutiny of a judge.’’ Doe, 78 Wis.2dat 165, 254 N.W.2d 210. The John Doejudge does not act as ‘‘chief investigator’’or as a mere arm of the prosecutor.Washington, 83 Wis.2d at 823, 266 N.W.2d597. Rather, the John Doe judge servesas a check on the prosecutor and on thecomplainant to ensure that the subject(s)of the investigation receive(s) due processof law. See Doe, 78 Wis.2d at 164–65, 254N.W.2d 210.

[50–54] ¶ 87 In this way, Wisconsin’sJohn Doe proceeding is very different thana grand jury, and when conducted appro-priately, provides much greater protec-tions to the target of an investigation. Id.at 165, 254 N.W.2d 210. S 70This is due inno small part to the role played by theJohn Doe judge, which is to ensure thatthe investigation stays focused on the con-duct alleged in the petition to commencethe John Doe proceeding. Washington, 83Wis.2d at 841–42, 266 N.W.2d 597. Fur-ther,

[a]nyone familiar with the functions ofthe grand jury or who has dealt with itknows the hazards of a run-away grandjury, which can go beyond the restraintsof the prosecutor, the executive, or ofthe judiciary. Such hazards do not existin the Wisconsin John Doe. While JohnDoe proceedings can be abused, the doc-ument produced by a John Doe does notipso facto force the defendant to trial.The complaint which emanates from it isissued under the aegis of a judge butnevertheless must subsequently standthe scrutiny of an open court inspectionin an adversary proceeding at the pre-liminary examination as a prerequisiteto the filing of an information, arraign-ment, and trial.

Doe, 78 Wis.2d at 170–71, 254 N.W.2d 210.Thus, ‘‘[a] John Doe proceeding TTT serves


both as an inquest into the discovery ofcrime and as a screen to prevent ‘recklessand ill-advised’ prosecutions.’’ Reimann,214 Wis.2d at 621, 571 N.W.2d 385 (citationomitted).

[55] ¶ 88 The text of the John Doestatute gives the John Doe judge broadpowers. Within his discretion, the JohnDoe judge is able to determine the extentof the investigation and whether the inves-tigation is conducted in secret. Wis. Stat.§ 968.26(3).24 We have long recognizedthe need for secrecy in John DoeS 71proceedings and have identified severalreasons that justify such secrecy. Cum-mings, 199 Wis.2d at 736, 546 N.W.2d 406.

These include: (1) keeping knowledgefrom an unarrested defendant whichcould encourage escape; (2) preventingthe defendant from collecting perjuredtestimony for the trial; (3) preventingthose interested in thwarting the inquiryfrom tampering with prosecutive testi-mony or secreting evidence; (4) render-ing witnesses more free in their disclo-sures; and (5) preventing testimonywhich may be mistaken or untrue orirrelevant from becoming public.

Id. These reasons illustrate how importanta John Doe proceeding can be as an inves-tigative tool. The secrecy orders available

to a John Doe proceeding serve to protectthe integrity of the investigation.25 Suchorders help encourage witnesses who maybe reluctant or fearful to testify by keep-ing their testimony secret. The secrecy ofa John Doe investigation also protects in-nocent targets of the investigation by pre-venting the S 72disclosure of ‘‘testimonywhich may be mistaken or untrue.’’ Id.

[56, 57] ¶ 89 Consistent with this broadauthority, ‘‘[t]he John Doe judge shouldact with a view toward issuing a complaintor determining that no crime has oc-curred.’’ Washington, 83 Wis.2d at 823,266 N.W.2d 597. Accordingly, the scope ofany John Doe investigation ‘‘is essentiallylimited to the subject matter of the com-plaint upon which the John Doe is com-menced.’’ Id. at 822, 266 N.W.2d 597; seealso In re Doe, 317 Wis.2d 364, ¶ 23, 766N.W.2d 542. ‘‘The John Doe judge has noauthority to ferret out crime wherever heor she thinks it might exist.’’ Washing-ton, 83 Wis.2d at 822, 266 N.W.2d 597(emphasis added). This final limitation iscrucial to the fair administration of a JohnDoe proceeding. Without it, John Doeproceedings could easily devolve into judi-cially sanctioned general warrants.

[58] ¶ 90 The purpose of the FourthAmendment to the United States Constitu-

24. The full text of this subsection is:

The extent to which the judge may proceedin an examination under sub. (1) or (2) iswithin the judge’s discretion. The exami-nation may be adjourned and may be se-cret. Any witness examined under thissection may have counsel present at the ex-amination but the counsel shall not be al-lowed to examine his or her client, cross-examine other witnesses, or argue beforethe judge. Subject to s. 971.23, if the pro-ceeding is secret, the record of the pro-ceeding and the testimony taken shall notbe open to inspection by anyone except thedistrict attorney unless it is used by theprosecution at the preliminary hearing orthe trial of the accused and then only tothe extent that it is so used. A court, on

the motion of a district attorney, may com-pel a person to testify or produce evidenceunder s. 972.08(1). The person is immunefrom prosecution as provided in s.972.08(1), subject to the restrictions unders. 972.085.

Wis. Stat. § 968.26(3).

25. We do not disregard the secrecy orderissued in the John Doe proceeding. See Nied-ziejko, 22 Wis.2d at 398, 126 N.W.2d 96.However, we interpret and modify the secrecyorder to the extent necessary for the public tounderstand our decision herein. Consequent-ly, if a fact is necessary to include in order torender explicable a justice’s analysis of anissue presented, it is not precluded by thesecrecy order.


tion 26 and of Article I, Section 11 of theWisconsin Constitution 27 ‘‘was to abolishsearches by general warrants, which au-thoSrized73 searches in any place or for anything.’’ State ex rel. City of Milwaukee v.Newman, 96 Wis. 258, 267, 71 N.W. 438(1897). Such general warrants, alsoknown as Writs of Assistance, ‘‘were usedin the American colonies to search wherev-er government officials chose with nearlyabsolute and unlimited discretion.’’ Statev. Tye, 2001 WI 124, ¶ 8, 248 Wis.2d 530,636 N.W.2d 473. ‘‘These early warrantslacked specificity and allowed governmentofficers in the late eighteenth century toenter homes, shops, and other places, andin the event the officers encountered resis-tance, they could break down doors andforcibly search closed trunks and chests.’’In re John Doe Proceeding, 2004 WI 65,¶ 36, 272 Wis.2d 208, 680 N.W.2d 792. Tocombat such unchecked power, the FourthAmendment requires reasonable searchesand mandates that warrants ‘‘particularlydescrib[e] the place to be searched.’’ U.S.Const. amend. IV.

[59, 60] ¶ 91 Reasonableness and par-ticularity are not just requirements ofsearch warrants, however. Subpoenas is-sued by courts, and by extension John Doejudges, must also satisfy these require-ments of the Fourth Amendment. In reJohn Doe Proceeding, 272 Wis.2d 208,¶ 38, 680 N.W.2d 792. A John Doe pro-ceeding, with its broad investigatory pow-ers, must never be allowed to become afishing expedition.

S 74[61–63] ¶ 92 It is difficult, if not im-possible, to overstate the importance of therole of the John Doe judge. If he does notconduct the investigation fairly, as a neu-tral and detached magistrate, the risk ofharm to innocent targets of the investiga-tion—and we remain mindful that all suchtargets are presumed innocent—is toogreat. Through the use of a John Doeproceeding, ‘‘law enforcement officers areable to obtain the benefit of powers nototherwise available to them, i.e., the powerto subpoena witnesses, to take testimonyunder oath, and to compel the testimony ofa reluctant witness.’’ Washington, 83Wis.2d at 822–23, 266 N.W.2d 597. Suchpowers, if not wielded with care and skillmay serve to transform a John Doe pro-ceeding into an implement of harassmentand persecution by a vengeful or unethicalprosecutor. Thus, John Doe judges mustbe mindful of this danger and zealouslyguard the rights of all citizens againstover-reach.

[64] ¶ 93 The foregoing discussion em-phasizes that John Doe proceedings are anecessary investigative tool ‘‘to ‘ascertainwhether [a] crime has been committed andby whom.’ ’’ Cummings, 199 Wis.2d at736, 546 N.W.2d 406 (quoting Wolke v.Fleming, 24 Wis.2d 606, 613, 129 N.W.2d841 (1964)). John Doe proceedings havebeen utilized in Wisconsin since it was aterritory and have no doubt served ourstate well. But the simple fact that theJohn Doe proceeding has a long and near

26. The Fourth Amendment provides that

[t]he right of the people to be secure intheir persons, houses, papers, and effects,against unreasonable searches and seizures,shall not be violated, and no warrants shallissue, but upon probable cause, supportedby oath or affirmation, and particularly de-scribing the place to be searched, and thepersons 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 intheir persons, houses, papers, and effectsagainst unreasonable searches and seizuresshall not be violated; and no warrant shallissue but upon probable cause, supportedby oath or affirmation, and particularly de-scribing the place to be searched and thepersons or things to be seized.

Wis. Const. art. I, § 11.


constant use should not blind us to thepotential for abuse. We must be mindfulof the purpose of the John Doe proceedingand why it was originally instituted. Thispurpose was aptly explained by this courtmore than 125 years ago:

S 75When this statute was first enactedthe common-law practice was for themagistrate to issue the warrant on acomplaint of mere suspicion, and he wasprotected in doing so. This was foundto be a very unsafe practice. Manyarrests were made on groundless suspi-cion, when the accused were innocent ofthe crime and there was no testimonywhatever against them. The law de-lights as much in the protection of theinnocent as in the punishment of theguilty. This statute was made to pro-tect citizens from arrest and imprison-ment on frivolous and groundless suspi-cionTTTT ‘Our statute is framed so as toexclude in a great measure the abuses towhich such a practice might lead, andundoubtedly was designed to throw theduty of judging, in this respect, entirelyupon the magistrate. It should not re-gard mere allegations of suspicion, butthe grounds of the suspicion—the factsand circumstances—must be laid beforehim, and these should be sufficient tomake it appear that a crime has beenactually committed, and that there isprobable cause for charging the individ-ual complained of therewith.’

State v. Keyes, 75 Wis. 288, 294–95, 44N.W. 13 (1889) (citations omitted).

[65–67] ¶ 94 In sum, Wis. Stat.§ 968.26 grants John Doe judges broadauthority to conduct an investigation intoalleged crimes. A John Doe judge is alsogiven ‘‘those powers necessary’’ to carryout this duty. Cummings, 199 Wis.2d at736, 546 N.W.2d 406. Nevertheless, ‘‘[a]sto all aspects of the conduct of the judicialfunction, the [John Doe] judge is the gov-

ernor of the proceedings, and as such isresponsible for maintaining the good or-der, dignity, and insofar as it is compatiblewith the administration of justice, efficien-cy of those proceedings.’’ In re Doe, 317Wis.2d 364, ¶ 22, 766 N.W.2d 542. Thisduty applies with equal force in all JohnDoe proceedings, S 76regardless of the tar-get’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 Vio-late a Plain Legal Duty When HeQuashed the Subpoenas and SearchWarrants Issued in This Case.

[68] ¶ 95 As is clear from the abovediscussion, John Doe judges are givenenormous discretion to control the scopeand conduct of a John Doe proceeding.With this important point in mind, we nowturn to the specific issue before us: wheth-er Reserve Judge Peterson violated a plainlegal duty when he quashed the subpoenasand search warrants and ordered the re-turn of all seized property. He did not.

[69] ¶ 96 ‘‘A plain duty ‘must be clearand unequivocal and, under the facts, theresponsibility to act must be imperative.’ ’’Kalal, 271 Wis.2d 633, ¶ 22, 681 N.W.2d110 (quoting Kurkierewicz, 42 Wis.2d at377–78, 166 N.W.2d 255). Although a su-pervisory writ is the proper vehicle for thespecial prosecutor to seek review of Re-serve Judge Peterson’s decision, the writprocedure serves a very narrow functionwhich is distinct from the normal appellateprocess. Id., ¶ 24. The purpose of a su-pervisory writ is ‘‘to provide for the directcontrol of lower courts, judges, and otherjudicial officers who fail to fulfill non-dis-cretionary duties, causing harm that can-not be remedied through the appellate re-view process.’’ Id. (emphasis added).

¶ 97 Here, the special prosecutor arguesthat Reserve Judge Peterson failed to


comply with his duty to correctly apply thelaw and erroneously concluded S 77that Wis-consin campaign finance law does not reg-ulate the Unnamed Movants’ alleged con-duct. The special prosecutor essentiallyargues that Reserve Judge Peterson mis-applied the law and prematurely ended theJohn Doe investigation. This argumentmisses the point of the supervisory writprocedure and asks us to adopt a standardof review that we explicitly rejected inKalal. See id., ¶¶ 23–24 (‘‘In essence, theKalals argue that the judge TTT has a plainduty to correctly find facts and apply thelaw. We cannot accept this proposition, asit would extend supervisory jurisdiction toa virtually unlimited range of decisionsinvolving the finding of facts and applica-tion of law.’’). As was the case in Kalal, ifwe were to adopt the special prosecutor’sunderstanding of a plain legal duty, we‘‘would transform the writ into an all-pur-pose alternative to the appellate reviewprocess.’’ Id., ¶ 24. This we will not do.

[70] ¶ 98 A John Doe judge is giventhe discretion to determine the extent ofthe investigation. Wis. Stat. § 968.26(3).

In doing so, he or she ‘‘should act with aview toward issuing a complaint or deter-mining that no crime has occurred.’’Washington, 83 Wis.2d at 823, 266 N.W.2d597. In his decision to quash the subpoe-nas and search warrants, Reserve JudgePeterson concluded that the subpoenasand search warrants do not provide a rea-sonable belief that the Unnamed Movants‘‘committed any violations of the campaignfinance laws.’’ Reserve Judge Petersonfurther concluded that ‘‘[t]he State is notclaiming that any of the independent or-ganizations expressly advocated.28 There-fore the subpoenas 29 fail S 78to show proba-ble cause that a crime was committed.’’ Ina subsequent order granting a stay of hisdecision to quash, Reserve Judge Petersonclarified that, although he mistakenlyphrased his decision in the context ofwhether the subpoenas showed probablecause, the subpoenas and search warrantswere premised ‘‘on an invalid interpreta-tion of the law. That TTT was the underly-ing problem with the subpoenas.’’ 30

S 79[71, 72] ¶ 99 Reserve Judge Peter-son’s decision is consistent with his discre-

28. The special prosecutor now claims thatcoordinated express advocacy did in fact oc-cur between Unnamed Movants 1 and 6 andtwo express advocacy groups, neither ofwhich are parties to the current lawsuits.The special prosecutor and the UnnamedMovants presented Reserve Judge Petersonwith the evidence of coordination regardingthe first express advocacy group. ReserveJudge Peterson considered this evidencewhen deciding whether or not to quash thesubpoenas or order the return of seized prop-erty. Reserve Judge Peterson definitivelyconcluded that ‘‘[t]here is no evidence of ex-press advocacy.’’ We will not disturb thatdecision as, under the John Doe statute, itwas Reserve Judge Peterson’s to make. Morefundamentally, however, as a member of thefirst express advocacy group, the candidate atissue in this case and his agents had an abso-lute constitutional right to interact with apolitical organization of which he was amember, and improper coordination cannot

be presumed by such contacts. Colo. Republi-can Fed. Campaign Comm. v. Fed. Election.Comm’n, 518 U.S. 604, 619, 116 S.Ct. 2309,135 L.Ed.2d 795 (1996). Further, the specialprosecutor chose not to present evidence per-taining to the second express advocacy groupto Reserve Judge Peterson. Arguments notpresented to the court in the first instance aredeemed waived. State v. Caban, 210 Wis.2d597, 604, 563 N.W.2d 501 (1997).

29. Although he refers only to the subpoenasissued in the John Doe investigation, ReserveJudge Peterson later clarified that ‘‘for thereasons stated above regarding the limitationson the scope of the campaign finance laws, Iconclude that the TTT warrants [issued forUnnamed Movants Nos. 6 and 7] lack proba-ble cause.’’

30. We note that as a result of our interpreta-tion of Chapter 11 in Two Unnamed Petition-ers, Reserve Judge Peterson’s interpretation iscorrect as a matter of law.


tion to determine the extent of the JohnDoe investigation. In addition, ‘‘[i]t iswithin the discretion of the trial court toquash a subpoena.’’ State v. Horn, 126Wis.2d 447, 456, 377 N.W.2d 176 (Ct.App.1985), aff’d, 139 Wis.2d 473, 407 N.W.2d854 (1987). Because supervisory writs arenot appropriate vehicles to review ajudge’s discretionary acts, see Kalal, 271Wis.2d 633, ¶ 24, 681 N.W.2d 110, the spe-cial prosecutor has failed to show thatReserve Judge Peterson violated a plainlegal duty by quashing the subpoenas andsearch warrants. Therefore, the supervi-sory writ sought by the special prosecutoris denied, and Reserve Judge Peterson’sorder is affirmed.31

S 80V. THREE UNNAMEDPETITIONERS

[73] ¶ 100 Finally, we turn to ThreeUnnamed Petitioners, in which the Un-named Movants appeal an opinion and or-der of the court of appeals denying theirpetition for a supervisory writ. This caserequires us to determine whether either

Reserve Judge Kluka or Peterson violateda plain legal duty by: (1) accepting anappointment as a reserve judge; (2) con-vening a multi-county John Doe proceed-ing; or (3) appointing a special prosecu-tor.32

¶ 101 We affirm the decision of the courtof appeals and deny the Unnamed Mov-ants’ petition for a supervisory writ. Wehold that the Unnamed Movants have notmet the burden of proof required for asupervisory writ. Specifically, they havenot established that either Reserve JudgeKluka or Peterson violated a plain legalduty by: (1) accepting an appointment as areserve judge; (2) convening a multi-coun-ty John Doe proceeding; or (3) appointinga special prosecutor. ‘‘The obligation ofjudges to correctly apply the law is gener-al and implicit in the entire structure ofour legal system.’’ Kalal, 271 Wis.2d 633,¶ 24, 681 N.W.2d 110. The UnnamedMovants’ argument does not fit the pur-pose S 81of a supervisory writ, which re-quires a ‘‘clear and unequivocal’’ duty to

31. While we base our conclusion solely onReserve Judge Peterson’s exercise of discre-tion under the John Doe statute, we note thatthere are serious flaws with the subpoenasand search warrants, which were originallyissued by Reserve Judge Kluka. As we ex-plained above, a John Doe judge does not actas ‘‘chief investigator’’ or as a mere arm ofthe prosecutor. State v. Washington, 83Wis.2d 808, 823, 266 N.W.2d 597 (1978).Rather, a John Doe judge serves as a check onthe prosecutor and on the complainant toensure that the subject(s) of the investigationreceive(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 thatcannot be ignored. Judges cannot simply as-sume that the prosecutor is always well-inten-tioned. Due to the exceptionally broad na-ture of the subpoenas and search warrants, itis doubtful that they should have ever beenissued in the first instance.

The special prosecutor alleges that the Un-named Movants engaged in ‘‘illegal’’ coordi-

nation of issue advocacy sometime between2011 and 2012. The subpoenas and searchwarrants, however, sought records—many ofwhich were personal and had nothing to dowith political activity—and information rang-ing from 2009 through 2013. If the illegalconduct took place during a discrete time-frame in 2011 and 2012, as the special prose-cutor alleges, what possible relevance coulddocuments from a full two years prior have tothe crime alleged? By authorizing suchsweeping subpoenas and search warrants, Re-serve Judge Kluka failed in her duty to limitthe scope of the investigation to the subjectmatter of the complaint. See In re Doe, 2009WI 46, ¶ 23, 317 Wis.2d 364, 766 N.W.2d 542.These subpoenas and search warrants alsocome dangerously close to being general war-rants of the kind which, in part, provoked ourforefathers to separate from the rule of Em-pire.

32. This case presents issues one through fivein our December 16, 2014 grant order. Seesupra ¶ 9.


act on the part of the judge. Id., ¶ 22. Ifwe were to adopt the Unnamed Movants’argument, we ‘‘would transform the writinto an all-purpose alternative to the ap-pellate review process.’’ Id., ¶ 24. Be-cause the Unnamed Movants have notidentified a violation of a plain legal duty,their petition for a supervisory writ isdenied.


[74] ¶ 102 ‘‘[T]he authority of bothjudges and prosecutors in a John Doeproceeding[ ] TTT are questions of statuto-ry interpretation which this court reviewsde novo without deference to the circuitcourt or court of appeals.’’ Cummings,199 Wis.2d at 733, 546 N.W.2d 406. Thus,‘‘[w]hether a John Doe judge has exceededhis or her powers is a question of law thatthis court determines independently.’’State ex rel. Individual Subpoenaed toAppear at Waukesha Cnty. v. Davis, 2005WI 70, ¶ 17, 281 Wis.2d 431, 697 N.W.2d803 (citing Cummings, 199 Wis.2d at 733,546 N.W.2d 406).

¶ 103 For a supervisory writ to issue,the petitioner for the writ must establishthat: ‘‘(1) an appeal is an inadequate reme-dy; (2) grave hardship or irreparableharm will result; (3) the duty of the trialcourt is plain and it must have acted orintends to act in violation of that duty; and(4) the request for relief is made promptlyand speedily.’’ Kalal, 271 Wis.2d 633,¶ 17, 681 N.W.2d 110 (emphasis added).

¶ 104 A ‘‘ ‘writ of supervision is not asubstitute for an appeal.’ ’’ Id. (citationcommitted). ‘‘A supervisory writ ‘is con-sidered an extraordinary and drastic reme-dy that is to be issued only upon somegrievous exigency.’ ’’ Id. (citation omit-ted).

S 82¶ 105 Although a court exercises itsdiscretion in deciding whether or not toissue a writ, ‘‘[t]he exercise of that discre-tion often involves TTT resolving questionsof law in order to determine whether the

circuit court’s duty is plain.’’ State ex rel.Kenneth S. v. Circuit Court for DaneCnty., 2008 WI App 120, ¶ 9, 313 Wis.2d508, 756 N.W.2d 573. ‘‘A plain duty ‘mustbe clear and unequivocal and, under thefacts, the responsibility to act must beimperative.’ ’’ Kalal, 271 Wis.2d 633, ¶ 22,681 N.W.2d 110 (citation omitted). Theobligation of a judge to correctly find factsand apply the law is not the type of plainlegal duty contemplated by the superviso-ry writ procedure, ‘‘as it would extendsupervisory jurisdiction to a virtually un-limited range of decisions involving thefinding of facts and application of law.’’Id., ¶ 24; see also supra ¶ 80.

¶ 106 Consequently, for a writ to issue inthis case, the Unnamed Movants mustdemonstrate that the John Doe judges vio-lated a plain legal duty, either in acceptingan appointment as a reserve judge, in con-vening a John Doe proceeding over multi-ple counties, or in appointing a specialprosecutor.

B. The Unnamed Movants HaveFailed to Prove the Violation

of a Plain Legal Duty.

i. No Violation of a Plain Legal DutyOccurred in the Appointment and As-signment of Reserve Judge Kluka orReserve Judge Peterson to PresideOver a Multi–County John Doe Pro-ceeding.

¶ 107 We first discuss whether ReserveJudge Kluka or Reserve Judge Petersonviolated a plain legal duty either in accept-ing an appointment as a reserve judge orin convening a multi-county John DoeproSceeding.83 We hold that the UnnamedMovants failed to prove that ReserveJudge Kluka or Reserve Judge Petersonviolated a plain legal duty by accepting anappointment as a reserve judge or in con-vening a John Doe proceeding over multi-ple counties.


1. Reserve Judge Kluka Did Not Violatea Plain Legal Duty in Accepting Her

Appointment as a Reserve Judge.

[75] ¶ 108 We begin our discussion ofthis issue by explaining the distinction be-tween the appointment and assignment ofa reserve judge. A former judge is ap-pointed to be a reserve judge by the ChiefJustice. Once a former judge has beenappointed to be a reserve judge then thatreserve judge can be assigned to a particu-lar case or to a particular circuit courtcalendar.

¶ 109 The Director of State Courts hasthe power to assign reserve judges, but hedoes not have the power to appoint reservejudges. See SCR 70.10 33; SCR 70.23.34

The Chief Justice is the sole individualwith the power to both appoint and assignreserve S 84judges. See Wis. Const. art.VII, § 24(3) 35; Wis. Stat. § 753.075 36;SCR 70.23(1).37

¶ 110 The relevant orders in the recordstate that Reserve Judge Kluka was as-signed, not appointed, to serve as the JohnDoe judge in each of the five counties.Once the Milwaukee County District At-torney’s Office filed a petition for the com-mencement of a John Doe proceeding inMilwaukee County, Chief Judge Kremers‘‘assigned and forwarded’’ the petition to‘‘Reserve Judge Kluka’’ on August 23,2012. ThereSafter,85 on September 5, 2012,the Director of State Courts, with then-Chief Justice Shirley Abrahamson’s namedirectly above, assigned Reserve JudgeKluka to preside over the matter using aform titled ‘‘Application and Order forSpecific Judicial Assignment.’’ The ac-tions taken by Chief Judge Kremers andthe Director of State Courts suggest thatKluka possessed reserve judge status atthe time her assignments were made.However, nothing in the record definitivelyestablishes that the then-Chief Justice had

33. ‘‘The director of state courts shall have theresponsibility and authority regarding the as-signment of reserve judges and the interdis-trict assignment of active judges at the circuitcourt level where necessary to the orderedand timely disposition of the business of thecourt.’’

34. ‘‘The director of state courts may makeinterdistrict judicial assignments at the circuitcourt level.’’ SCR 70.23(1). ‘‘The director ofstate courts may also make a permanent as-signment to a judicial district of a reservejudge who can be assigned by a chief judge inthe same manner as an active circuit judgeunder this section.’’ SCR 70.23(2). ‘‘[I]f thechief judge deems it necessary the chief judgeshall call upon the director of state courts toassign a judge from outside the judicial ad-ministrative district or a reserve judge.’’ SCR70.23(4).

35. ‘‘A person who has served as a supremecourt justice or judge of a court of recordmay, as provided by law, serve as a judge ofany court of record except the supreme courton a temporary basis if assigned by the chiefjustice of the supreme court.’’

36.

(1) Definitions. In this section:(a) ‘Permanent reserve judge’ means ajudge appointed by the chief justice to servean assignment for a period of 6 months.Permanent reserve judges shall perform thesame duties as other judges and may bereappointed for subsequent periods.(b) ‘Temporary reserve judge’ means ajudge appointed by the chief justice to servesuch specified duties on a day-by-day basisas the chief justice may direct.(2) Eligibility. The chief justice of the su-preme court may appoint any of the follow-ing as a reserve judge:(a) Any person who has served a total of 6or more years as a supreme court justice, acourt of appeals judge or a circuit judge.(b) Any person who was eligible to serve asa reserve judge before May 1, 1992.

37. ‘‘The chief justice may assign active orreserve judges, other than municipal judges,to serve temporarily in any court or branch ofa circuit court for such purposes and periodof time as the chief justice determines to benecessary.’’


previously appointed Kluka as a reservejudge.

¶ 111 The absence of a record on thispoint is very likely because no one disputesthat Kluka was lawfully appointed as areserve judge. Indeed, the UnnamedMovants do not challenge Reserve JudgeKluka’s authority to preside over the Mil-waukee County John Doe proceeding.Rather, according to the Unnamed Mov-ants, ‘‘the problem arose later, when theDirector of State Courts extended that[assignment] to four more counties in onefunctionally-consolidated proceeding or in-vestigation.’’ In fact, in their reply brief,the Unnamed Movants state ‘‘the core is-sue is not who appointed a reserve judge:it is whether the five-county structure islawful at all.’’ Because the UnnamedMovants have failed to show that ReserveJudge Kluka was not lawfully appointed, itfollows that they have failed to prove thatshe violated a plain legal duty in acceptingher appointment as a reserve judge.

2. Reserve Judge Peterson Did Not Vio-late a Plain Legal Duty in Accepting His

Appointment as a Reserve Judge.

[76] ¶ 112 Similarly, the UnnamedMovants also have failed to meet theirburden with respect to S 86Reserve JudgePeterson. On October 29, 2013, ChiefJudge Kremers assigned Reserve JudgePeterson to serve as the John Doe judge inMilwaukee County, after Reserve JudgeKluka withdrew, in an order titled:‘‘REASSIGNMENT AND EXCHANGE.’’The document also states: ‘‘Reassigned toReserve Judge Gregory A. Peterson ac-cording to the rules.’’ See SCR 70.23 (pro-viding that the chief judge can request theassignment of a reserve judge by the Di-rector of State Courts). As explained

above, only the Chief Justice has the au-thority to appoint reserve judges.

¶ 113 Similar to the issue with ReserveJudge Kluka, the Unnamed Movants donot question Reserve Judge Peterson’s au-thority to preside over the MilwaukeeCounty John Doe proceeding. Their con-tention is that it was unlawful for ReserveJudge Peterson to accept assignment tofour more counties ‘‘in one functionally-consolidated proceeding or investigation.’’Because the Unnamed Movants have failedto show that Reserve Judge Peterson wasnot lawfully appointed, they have failed toprove that Reserve Judge Peterson violat-ed a plain legal duty in accepting his ap-pointment as a reserve judge.

3. Reserve Judge Kluka Did Not Violatea Plain Legal Duty in Convening a Mul-

ti–County John Doe Proceeding.

[77] ¶ 114 The Unnamed Movants con-tend that no one may appoint or assign areserve judge to serve as a John Doejudge simultaneously in five counties. TheUnnamed Movants argue that ‘‘the ques-tion properly is not whether anything inthe enabling statute ‘prevents’ or ‘prohib-its’ what happened here. The rightS 87question is whether anything in the stat-utes permits what happened here.’’ TheUnnamed Movants emphatically state that‘‘[t]he answer to that question is no.’’However, in examining this issue, we lookto whether the John Doe statute clearlyprohibits the procedural posture of thisJohn Doe investigation. The answer is no.

¶ 115 Pursuant to Wis. Stat.§ 968.26(1) 38 five separate John Doe pro-ceedings were initiated by the district at-torneys of the five counties; however, itwas for one investigation conducted by a

38. ‘‘If a district attorney requests a judge toconvene a proceeding to determine whether acrime has been committed in the court’s juris-diction, the judge shall convene a proceeding

described under sub. (3) and shall subpoenaand examine any witnesses the district attor-ney identifies.’’


special prosecutor. The investigation wasexpanded because the initial investigationin Milwaukee County suggested that per-sons residing in four additional countiescould be involved with potential campaignfinance violations and Wis. Stat.§ 978.05(1) provides that a district attor-ney shall:

[p]rosecute all criminal actions beforeany court within his or her prosecutorialunit and have sole responsibility forprosecution of all criminal actions aris-ing from violations of chs. 5 to 12 TTT

that are alleged to be committed by aresident of his or her prosecutorialunitTTTT

See also Wis. Stat. §§ 971.19(11)-(12) (pro-viding that the venue for a criminal pro-ceeding under campaign finance laws shallbe the county of the defendant’s residenceunless the defendant chooses to be tried inthe county where the crime occurred).The Director of State Courts, with then-Chief Justice Shirley Abrahamson’s namedirectly above, then executed fivesepaSrate88 orders assigning Reserve JudgeKluka to preside over the five separateproceedings. While these five separateproceedings are a single investigation, theyhave not been consolidated. Rather, theJohn Doe proceedings at issue have mere-ly been running parallel to one another.

¶ 116 Nothing in the John Doe statuteprohibits the initiation of five parallel JohnDoe proceedings. Put another way, noth-ing in the John Doe statute explicitly toldReserve Judge Kluka that she could notpreside over five John Doe proceedings.To initiate a John Doe proceeding, a dis-trict attorney must simply make the re-quest, which is exactly what happenedhere. See Wis. Stat. § 968.26(1). Becausenothing in the John Doe statute expresslyprohibits the initiation of five parallel JohnDoe proceedings concerning a single inves-tigation, we cannot conclude that Reserve

Judge Kluka violated a plain legal duty inconvening the five separate proceedings.As such, a supervisory writ cannot issue.

¶ 117 The Unnamed Movants argue thatthey have shown a violation of a plain legalduty. They argue that ‘‘[t]he investigationwas constituted in direct contravention ofWisconsin statutes and without authority.The John Doe judge TTT had a plain dutyto comply with Wisconsin statutes in theconduct of a statutorily-constituted investi-gation.’’ We rejected an identical argu-ment in Kalal.

¶ 118 In Kalal, a circuit court judgeordered that a criminal complaint bebrought against the Kalals under Wis.Stat. § 968.02(3), which allows a circuitjudge to order a criminal complaint beissued if a district attorney ‘‘refuses’’ toissue a complaint. Kalal, 271 Wis.2d 633,¶¶ 12–13, 681 N.W.2d 110. The Kalals ar-gued that ‘‘the circuit judge has a plainduty to correctly deterSmine89 the presenceof this threshold refusal before authorizingthe issuance of a criminal complaint.’’ Id.,¶ 23. We held that this argument failed toestablish the violation of a plain legal duty.‘‘To the extent that a circuit judge’s deci-sion to permit the filing of a complaintunder Wis. Stat. § 968.02(3) is legally orfactually unsupported, the defendant TTT

may seek its dismissal in the circuit courtafter it has been filed, and may pursuestandard appellate remedies thereafter.’’Id., ¶ 25. ‘‘But the statutory prerequisitethat the judge find a refusal to prosecuteby the district attorney does not imposeupon the circuit judge a plain, clear, non-discretionary, and imperative duty of thesort necessary for a supervisory writ.’’ Id.

¶ 119 We explained that, ‘‘[i]n essence,the Kalals argue that the judge sitting exparte in a hearing under Wis. Stat.§ 968.02(3) has a plain duty to correctlyfind facts and apply the law.’’ Id., ¶ 23.‘‘We cannot accept this proposition, as it


would extend supervisory jurisdiction to avirtually unlimited range of decisions in-volving the finding of facts and applicationof law.’’ Id., ¶ 24. ‘‘The obligation ofjudges to correctly apply the law is gener-al and implicit in the entire structure ofour legal system.’’ Id. ‘‘The supervisorywrit, however, serves a narrow function:to provide for the direct control of lowercourts TTT [that] fail to fulfill non-discre-tionary dutiesTTTT’’ Id. (citations omitted).‘‘To adopt the Kalals’ interpretation of theplain duty requirement in supervisory writprocedure would transform the writ intoan all-purpose alternative to the appellatereview process.’’ Id.

¶ 120 The Unnamed Movants have notidentified a ‘‘plain, clear, non-discretionary,and imperative duty of the sort necessaryfor a supervisory writ.’’ Id., ¶ 25. In thissupervisory writ action, the UnnamedS 90Movants must do more than point outthe fact that the statutes do not explicitlyauthorize the commencement of parallelJohn Doe proceedings in multiple counties.Further, they must do more than arguethat five parallel investigations and pro-ceedings were ‘‘implicitly’’ prohibited bythe statute. They must show that by com-mencing five parallel John Doe proceed-ings Reserve Judge Kluka violated a plain,clear, non-discretionary, and imperativeduty of the sort necessary for a superviso-ry writ. They have not even tried to makesuch a showing.

[78] ¶ 121 We understand the Un-named Movants’ concerns and agree thatthe kind of multi-county investigation thatoccurred here does raise serious questions.Typically, statewide or multi-county inves-tigations are conducted by the AttorneyGeneral or by the GAB. See Wis. Stat.§§ 165.50(1) (Attorney General), 5.05 (Gov-ernment Accountability Board). However,Wis. Stat. § 968.26 is silent as to whethera John Doe judge can preside over a multi-

county John Doe. It is axiomatic that si-lence on the point does not (and cannot)result in the creation of a plain legal duty.Here, Reserve Judge Kluka and the spe-cial prosecutor initially ran the investiga-tion and proceeding out of a single postoffice box in Milwaukee controlled by thespecial prosecutor. They also put the casenames and numbers of all five proceedingson every search warrant, subpoena, andorder. However, the concerns expressedby the Unnamed Movants are more prop-erly addressed to the legislature, not acourt in a supervisory writ petition.Should the legislature wish to prohibitmulti-county John Does, it is free to do so.We, however, cannot ‘‘transform the writinto an all-purpose alternative to the ap-pellate review process’’ or S 91announce newrules for future cases as part of that pro-cess. Kalal, 271 Wis.2d 633, ¶ 24, 681N.W.2d 110. To do so would be an in-stance of judicial overreach incompatiblewith the nature and purpose of a supervi-sory writ.

¶ 122 Therefore, we hold that ReserveJudges Kluka and Peterson did not violatea plain legal duty by: (1) accepting anappointment as a reserve judge; or (2)convening a multi-county John Doe pro-ceeding, and thus we deny the UnnamedMovants’ petition for a supervisory writ.

ii. Reserve Judge Kluka Did Not Violatea Plain Legal Duty by AppointingFrancis Schmitz to be the SpecialProsecutor.

¶ 123 We now turn to whether ReserveJudge Kluka violated a plain legal duty inappointing the special prosecutor, and ifso, what effect that would have on thecourt and special prosecutor’s competency.We conclude that the Unnamed Movantshave failed to prove that Reserve JudgeKluka violated a plain legal duty in ap-pointing the special prosecutor.


1. Under Carlson, Reserve Judge KlukaReasonably Concluded that She Hadthe Authority to Appoint the SpecialProsecutor on Her Own Motion.

[79] ¶ 124 In appointing the specialprosecutor Reserve Judge Kluka relied, inpart, on Carlson.39 Carlson concerned acourt’s statutory authority to appoint S 92aspecial prosecutor under Wis. Stat.§ 978.045.40 In Carlson, the court of ap-peals explained that the plain S 93languageof the special prosecutors statute ‘‘author-izes two distinct ways in which a court may

appoint a special prosecutor.’’ Carlson,250 Wis.2d 562, ¶ 8, 641 N.W.2d 451. Thefirst is on the court’s own motion. Id. Thesecond is at the request of a district attor-ney. Id. Where the appointment is on thecourt’s own motion, the court of appealsinterpreted Wis. Stat. § 978.045(1r) as giv-ing a court ‘‘unfettered authority’’ to makethe appointment, as long as the court en-tered an order ‘‘stating the cause there-for.’’ Id., ¶¶ 5, 9 (quotation omitted) (‘‘Inshort, if a court makes a special prosecutorappointment on its own motion, it is con-

39. To be clear, we do not rely on State v.Carlson, 2002 WI App 44, 250 Wis.2d 562,641 N.W.2d 451. There are certainly distinc-tions to be made between the facts of Carlsonand the facts of the instant case. We discussCarlson only as it relates to the larger ques-tion of whether Reserve Judge Kluka violateda plain legal duty at the time the appointmentwas made.

40. Wisconsin Stat. § 978.045, the ‘‘specialprosecutors’’ statute, provides:

(1g) A court on its own motion may ap-point a special prosecutor under sub. (1r)or a district attorney may request a court toappoint a special prosecutor under thatsubsection. Before a court appoints a spe-cial prosecutor on its own motion or at therequest of a district attorney for an appoint-ment that exceeds 6 hours per case, thecourt or district attorney shall request assis-tance from a district attorney, deputy dis-trict attorney or assistant district attorneyfrom other prosecutorial units or an assis-tant attorney general. A district attorneyrequesting the appointment of a specialprosecutor, or a court if the court is ap-pointing a special prosecutor on its ownmotion, shall notify the department of ad-ministration, on a form provided by thatdepartment, of the district attorney’s or thecourt’s inability to obtain assistance fromanother prosecutorial unit or from an assis-tant attorney general.(1r) Any judge of a court of record, by anorder entered in the record stating thecause for it, may appoint an attorney as aspecial prosecutor to perform, for the timebeing, or for the trial of the accused person,the duties of the district attorney. An attor-

ney appointed under this subsection shallhave all of the powers of the district attor-ney. The judge may appoint an attorney asa special prosecutor at the request of adistrict attorney to assist the district attor-ney in the prosecution of persons chargedwith a crime, in grand jury proceedings orJohn Doe proceedings under s. 968.26, inproceedings under ch. 980, or in investiga-tions. The judge may appoint an attorneyas a special prosecutor if any of the follow-ing conditions exists:(a) There is no district attorney for thecounty.(b) The district attorney is absent from thecounty.(c) The district attorney has acted as theattorney for a party accused in relation tothe matter of which the accused standscharged and for which the accused is to betried.(d) The district attorney is near of kin tothe party to be tried on a criminal charge.(e) The district attorney is physically unableto attend to his or her duties or has amental incapacity that impairs his or herability to substantially perform his or herduties.(f) The district attorney is serving in theU.S. armed forces.(g) The district attorney stands chargedwith a crime and the governor has notacted under s. 17.11.(h) The district attorney determines that aconflict of interest exists regarding the dis-trict attorney or the district attorney staff.(i) A judge determines that a complaint re-ceived under s. 968.26(2)(am) relates to theconduct of the district attorney to whom thejudge otherwise would refer the complaint.


strained only in that it must enter an orderin the record stating the cause for theappointment.’’). ‘‘[A]ny restriction, if oneexists, is triggered only when the appoint-ment is made at the request of a districtattorney, not when the appointment ismade by a court on its own motion.’’ Id.,¶ 8.

S 94¶ 125 Carlson thus concluded that acourt need satisfy only one of the nineconditions listed under Wis. Stat.§ 978.045(1r) when the district attorneyrequests the appointment of a special pros-ecutor, but when the court makes the ap-pointment on its own motion, it need onlyenter an order stating the cause therefor.‘‘A plain reading of the statute tells us thatwhen a court makes this appointment onits own motion, all that is required of thecourt is that it enter an order in the record‘stating the cause therefor.’ ’’ Id., ¶ 9(quoting Wis. Stat. § 978.045(1r) (1999–2000) which addresses, in part, John Doeproceedings and a John Doe judge’s abilityto appoint a special prosecutor for suchproceedings).

¶ 126 Reserve Judge Kluka relied onCarlson to appoint, on her own motion, thespecial prosecutor. Thus, in order to justi-fy the appointment under Carlson, Re-serve Judge Kluka was simply required toenter an order ‘‘stating the cause there-for,’’ which is exactly what she did in citingconcerns of efficiency and the appearanceof impropriety.

¶ 127 We note that Carlson is proble-matic to the point of being suspect. Thisis so because Carlson disregards the factthat one of the nine conditions enumeratedunder Wis. Stat. § 978.045(1r) must existfor the appointment of a special prosecu-

tor, regardless of whether the appointmentis made on the court’s own motion or atthe district attorney’s request. The Carl-son court’s failure to import this languagefrom the governing statute is an inexplica-ble-and very likely fatal-defect in its hold-ing. While we agree with the UnnamedMovants’ interpretation of Wis. Stat.§ 978.045, we do not take the ultimate stepof overruling Carlson because to do sowould go further than the S 95supervisorywrit allows.41 Simply put, despite Carl-son ’s questionable validity we cannot rea-sonably conclude that Reserve Judge Klu-ka violated a plain legal duty in making theappointment.

¶ 128 The issue presented also askswhether Reserve Judge Kluka violated aplain legal duty in making the special pros-ecutor appointment where no charges haveyet been issued; where the district attor-ney in each county has not refused tocontinue the investigation or prosecution ofany potential charge; and where no certifi-cation that no other prosecutorial unit wasable to do the work for which the specialprosecutor was sought was made to theDepartment of Administration. Again,Carlson gave the John Doe judge ‘‘unfet-tered authority’’ to appoint the specialprosecutor, so the absence of these addi-tional circumstances does not demonstratethat Reserve Judge Kluka violated a plainlegal duty in making the appointment.

2. Reserve Judge Kluka Also Relied onHer Inherent Authority in Appointing

the Special Prosecutor.

[80, 81] ¶ 129 Reserve Judge Klukaalso stated that she appointed the specialprosecutor pursuant to her ‘‘inherent au-thority’’ under Cummings. The relevant

41. The procedural posture of this case pre-vents us from overruling Carlson. If this is-sue were to arise in a non-supervisory writcase we may very well overrule Carlson.However, the supervisory writ is not an ‘‘all-

purpose alternative to the appellate reviewprocess.’’ State ex rel. Kalal v. Circuit Courtfor Dane Cnty., 2004 WI 58, ¶ 24, 271 Wis.2d633, 681 N.W.2d 110.


isSsue96 in Cummings was whether a JohnDoe judge has the ability to seal a searchwarrant. Id. at 733, 546 N.W.2d 406.There the defendant argued that no statu-tory authority conferred such power onJohn Doe judges. In rejecting the defen-dant’s argument, we reasoned:

[A] John Doe judge has been grantedjurisdiction, the legal right to exerciseits authority, pursuant to Wis. Stat.§ 968.27. A grant of jurisdiction by itsvery nature includes those powers nec-essary to fulfill the jurisdictional man-date. The statutory jurisdiction of aJohn Doe judge has been defined as theauthority of the judge to conduct a JohnDoe investigation [in order to ascertainwhether a crime has been committedand by whom]TTTT The ability to seal asearch warrant is exactly that type ofpower which a John Doe judge needs tofulfill [that] jurisdictional mandate.

Id. at 736–37, 546 N.W.2d 406. Thus,while Cummings did not specifically ad-dress a John Doe judge’s inherent authori-ty to appoint a special prosecutor, it pro-vides broad language supporting the ideathat a John Doe judge possesses inherentauthority where it is necessary to facilitateits jurisdictional mandate. Stated other-wise, a John Doe judge’s inherent authori-ty is limited to what is necessary to enablethe judge to properly conduct a John Doeproceeding. State ex rel. Individual Sub-poenaed, 281 Wis.2d 431, ¶ 26, 697 N.W.2d803; see In re John Doe Proceeding, 272Wis.2d 208, ¶ 10, 680 N.W.2d 792.

¶ 130 The Unnamed Movants argue thatthe only cases invoking a court’s inherentauthority to appoint a special prosecutorhave 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). Weagree, but that is because no court hasaddressed whether a John Doe judge hasinherent authority to appoint a specialprosecutor, which necessarily occurs be-fore charging. S 97That there is an absenceof case law addressing whether a John Doejudge has inherent authority to appoint aspecial prosecutor does not necessarilymean the John Doe judge in this caseviolated a plain legal duty in doing so.42

¶ 131 Arguably, the broad language inCummings could be used to support Re-serve Judge Kluka’s actions in this case.Because no law expressly prohibits a JohnDoe judge from exercising his inherentauthority to appoint a special prosecutor,the Unnamed Movants cannot prove thatReserve Judge Kluka violated a plain legalduty in exercising that authority to appointthe special prosecutor.

¶ 132 Due to the existing precedent, Re-serve Judge Kluka’s legal duty was notplain, clear, and unequivocal with an im-perative responsibility to act under thefacts. Because the Unnamed Movantshave not established that Reserve JudgeKluka violated a plain legal duty in ap-pointing the special prosecutor, we denytheir petition for a supervisory writ andaffirm the court of appeals.43

VI. CONCLUSION

¶ 133 Our lengthy discussion of thesethree cases can be distilled into a fewsimple, but important, points. It is utterlyclear that the special prosecutor has em-ployed theories of law that do not exist inorder to investigate citizens who werewholly innocent of any S 98wrongdoing. In

42. While we do not endorse Reserve JudgeKluka’s interpretation of her inherent authori-ty in this instance, we cannot say her conductof appointing a special prosecutor was viola-tive of a plain legal duty.

43. We need not address what effect an unlaw-ful appointment would have had because noviolation of a plain legal duty occurred.


other words, the special prosecutor wasthe instigator of a ‘‘perfect storm’’ ofwrongs that was visited upon the innocentUnnamed Movants and those who dared toassociate with them. It is fortunate, in-deed, for every other citizen of this greatState who is interested in the protection offundamental liberties that the special pros-ecutor chose as his targets innocent citi-zens who had both the will and the meansto fight the unlimited resources of an un-just prosecution. Further, these brave in-dividuals played a crucial role in present-ing this court with an opportunity to re-endorse its commitment to upholding thefundamental right of each and every citi-zen to engage in lawful political activityand to do so free from the fear of thetyrannical retribution of arbitrary or capri-cious governmental prosecution. Let onepoint be clear: our conclusion today endsthis unconstitutional John Doe investiga-tion.

A.

¶ 134 In Two Unnamed Petitioners, wehold that the definition of ‘‘political pur-poses’’ in Wis. Stat. § 11.01(16) is uncon-stitutionally overbroad and vague underthe First Amendment to the United StatesConstitution and Article I, Section 3 of theWisconsin Constitution because its lan-guage ‘‘ ‘is so sweeping that its sanctionsmay be applied to constitutionally protect-ed conduct which the state is not permit-ted to regulate.’ ’’ Janssen, 219 Wis.2d at374, 580 N.W.2d 260 (quoting Bachowski,139 Wis.2d at 411, 407 N.W.2d 533). How-ever, a readily available limiting construc-tion exists that we will apply and that willprevent the chilling of otherwise protectedspeech; namely, that ‘‘political purposes’’is limited to express advocacy and its func-tional equivalent as those terms are de-fined in Buckley and WRTL II. WithS 99this limiting construction in place, Chap-ter 11 does not proscribe any of the al-

leged conduct of any of the UnnamedMovants. The special prosecutor has notalleged any express advocacy, and issueadvocacy, whether coordinated or not, is‘‘beyond the reach of [Ch. 11].’’ BarlandII, 751 F.3d at 815. Accordingly, we inval-idate the special prosecutor’s theory of thecase, and we grant the relief requested bythe Unnamed Movants.

¶ 135 To be clear, this conclusion endsthe John Doe investigation because thespecial prosecutor’s legal theory is unsup-ported in either reason or law. Conse-quently, the investigation is closed. Con-sistent with our decision and the orderentered by Reserve Judge Peterson, weorder that the special prosecutor and thedistrict attorneys involved in this investi-gation must cease all activities related tothe investigation, return all propertyseized in the investigation from any indi-vidual or organization, and permanentlydestroy all copies of information and othermaterials obtained through the investiga-tion. All Unnamed Movants are relievedof any duty to cooperate further with theinvestigation.

B.

¶ 136 In Schmitz v. Peterson, we holdthat the special prosecutor has failed toprove that Reserve Judge Peterson violat-ed a plain legal duty when he quashed thesubpoenas and search warrants and or-dered the return of all property seized bythe special prosecutor. In quashing thesubpoenas and search warrants, ReserveJudge Peterson exercised his discretionunder the John Doe statute, Wis. Stat.§ 968.26, to determine the extent of theinvestigation. Because the purpose of asupervisory writ does not include reviewS 100of a judge’s discretionary acts, Kalal,271 Wis.2d 633, ¶ 24, 681 N.W.2d 110, thesupervisory writ sought by the special


prosecutor is denied, and Reserve JudgePeterson’s order is affirmed.

C.

¶ 137 Finally, in Three Unnamed Peti-tioners, we hold that the Unnamed Mov-ants have failed to prove that either Re-serve Judge Kluka or Reserve JudgePeterson violated a plain legal duty by:(1) accepting an appointment as a re-serve judge; (2) convening a multi-coun-ty John Doe proceeding; or (3) appoint-ing a special prosecutor. Although thecircumstances surrounding the formationof the John Doe investigation raise seri-ous concerns, and the appointment ofthe special prosecutor may well havebeen improper, such concerns do notsatisfy the stringent standards of a su-pervisory writ. Put another way, if wewere to grant the supervisory writ inthis case, we would risk ‘‘transform[ing]the writ into an all-purpose alternativeto the appellate review process,’’ whichwe cannot do. Id. Accordingly, we denythe supervisory writ and affirm the deci-sion of the court of appeals.

Declaration of rights; relief granted;John Doe investigation ordered closed inTwo Unnamed Petitioners.

Petition for supervisory writ denied andorder affirmed in Schmitz v. Peterson.

Petition for supervisory writ denied anddecision affirmed in Three Unnamed Peti-tioners.

¶ 138 ANN WALSH BRADLEY, J., didnot participate.

DAVID T. PROSSER, J. (concurring).

¶ 139 The court is confronted with threeseparate but overlapSping101 cases related

to a John Doe investigation involving[ ], and a sub-stantial number of organizations and indi-viduals who are associates and politicalallies of [ ].

¶ 140 This is the second John Doe inves-tigation initiated by the Milwaukee CountyDistrict Attorney’s Office that has focusedon [ ] and [ ] political circle.The present investigation concerns allegedcampaign finance violations, but the scopeof the investigation is sufficiently broadthat it amounts to a fishing expedition intothe lives, work, and thoughts of countlesscitizens.

¶ 141 For all practical purposes, thecourt has merged the two writ cases 1 intothe original action 2 and invited the partiesto submit briefs on all issues, even if anissue was not part of the party’s originalcase.

¶ 142 The consolidated case presents atleast 14 issues. Collectively they are com-plex and difficult. They also are impor-tant to the people of Wisconsin. Many ofthese issues are addressed in the majorityopinion. I write separately to provide myown analysis and perspective on the follow-ing issues:

(1) Issues 4 and 5 related to the ap-pointment of the special prosecutor.

(2) Issue 14 related to several searchwarrants. However, the record in thismatter requires discussion S 102of searchwarrants and subpoenas beyond the war-rants identified in Issue 14.

(3) Issue 6 related to the application ofWis. Stat. § 11.26(13m) to contributions inrecalls.

1. State ex rel. Schmitz v. Peterson,2014AP417–W through 2014AP421–W; Stateex rel. Three Unnamed Petitioners v. Peterson,2013AP2504–W through 2013AP2508–W.

2. State ex rel. Two Unnamed Petitioners v.Peterson, No. 2014AP296–OA.


(4) Issues relating to several differentprovisions in Chapter 11 of the WisconsinStatutes.

¶ 143 This concurring opinion discussesissues arising out of a John Doe investiga-tion that is subject to multiple broad se-crecy orders. Full adherence to these se-crecy orders in their original breadth isimpossible because full adherence wouldmean that the court could not acknowledgewhat the John Doe is about or discussfully the numerous issues bearing on thescope, conduct, and propriety of the inves-tigation.

¶ 144 ‘‘Secrecy of John Doe proceedingsand the records thereof is not maintainedfor its own sake.’’ State v. O’Connor, 77Wis.2d 261, 252 N.W.2d 671 (1977). In-stead, ‘‘[t]he policy underlying secrecy isdirected to promoting the effectiveness ofthe investigation. Therefore, any secrecyorder ‘should be drawn as narrowly as isreasonably commensurate with its pur-poses.’ ’’ State ex rel. Unnamed PersonNo. 1 v. State, 2003 WI 30, ¶ 61, 260Wis.2d 653, 660 N.W.2d 260 (quotingO’Connor, 77 Wis.2d at 286, 252 N.W.2d671). In making determinations about thescope of a secrecy order, ‘‘[a] balance mustbe struck between the public’s right to beinformed about the workings of its govern-ment and the legitimate need to maintainthe secrecy of certain John Doe proceed-ings.’’ Id., ¶ 66.

¶ 145 It is important to protect the tar-gets of a John Doe investigation when it isdetermined that they have not committeda crime. This protection extends to theidentity of individual people as well as thecontent of their private communicationsand other S 103records obtained in thecourse of the investigation. Here, there isno similar interest in protecting the actionsof the John Doe judge or the special prose-cutor. Because the majority orders theJohn Doe investigation ‘‘closed,’’ it cannot

be said that the continued secrecy of cer-tain facts in this matter—the scope andnature of the investigation, search war-rants, and subpoenas, for example—is nec-essary to protect the integrity of this or afuture John Doe investigation. According-ly, I conclude that discussion of these factsis not inconsistent with the secrecy order.

¶ 146 Thus, this concurring opinion doesnot name individuals or organizations, ex-cept the individuals and organizations whoinitiated and conducted the John Doe in-vestigation. State and local governmentofficials who initiate sweeping criminal in-vestigations of Wisconsin citizens cannotexpect to keep their conduct secret indefi-nitely, and appellate courts reviewing stateand local government conduct do not pro-vide the public with the full reasoning fortheir decisions if they are unwilling orunable to discuss the facts essential tothese decisions. See majority op., ¶ 14 n.11, ¶ 88 n. 25.

¶ 147 My interpretation of the secrecyorder is essential to the discussion of cer-tain procedural issues and is taken (1)after discussion with the court, (2) withknowledge that much information aboutthe investigation has already been dis-closed, and (3) with experience that addi-tional disclosure in the future is likely.

¶ 148 In my view, all issues of law in thismatter are subject to de novo review.

¶ 149 I join Section III of the majorityopinion, and I concur in the result of Sec-tion IV. Although I agree with most of thediscussion in Section IV, I would reach theresult as a matter of law.

S 104I

¶ 150 Scott Walker was elected governorof Wisconsin on November 2, 2010. Hewas sworn in as governor on January 3,2011.


¶ 151 On February 14, 2011, GovernorWalker proposed a Budget Repair Bill thatwas intended to deal with the state’s fiscalsituation for the remaining months of the2009–2011 biennium and for the 2011–2013biennium beginning on July 1, 2011. Leg-islation to implement the governor’s planwas introduced in both the Senate andAssembly. The proposed legislation in-cluded provisions requiring additional pub-lic employee contributions for health careand pensions. The two bills also includedprovisions curtailing collective bargainingrights for most state and local public em-ployees and making appropriations.

¶ 152 The history 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, 798N.W.2d 436, and Madison Teachers, Inc.v. Walker, 2014 WI 99, 358 Wis.2d 1, 851N.W.2d 337. See also Wis. Educ. Ass’nCouncil v. Walker, 705 F.3d 640 (7th Cir.2013).

¶ 153 Act 10 was highly controversial.Intense opposition in the legislature in-cluded more than 60 consecutive hours ofdebate in the Assembly and the departureof all 14 Democratic senators from thestate for nearly a month to deprive theSenate of a sufficient quorum to pass theoriginal bill. Public opposition to Act 10included massive demonstrations at theWisconsin State Capitol. The demonstra-tions were so large that they garnerednational and international attention.There were many smaller demonstrationsthroughout Wisconsin.

S 105¶ 154 After its passage, the Act 10legislation was challenged in the DaneCounty Circuit Court on proceduralgrounds to prevent its publication as an

act. It was later challenged again in bothfederal and state courts in an effort toinvalidate several of its provisions on con-stitutional grounds. The main challengeto Act 10 was not resolved by this courtuntil mid–2014. Madison Teachers, 358Wis.2d 1, 851 N.W.2d 337.

¶ 155 The introduction and passage ofAct 10 also led to efforts (1) to defeat asupreme court justice in April 2011, pro-ducing an exceptionally close election andthe first statewide candidate recount inWisconsin history; (2) to recall 16 statesenators in July and August 2011, nine ofwhom were forced to run for reelection;and (3) to recall the governor, lieutenantgovernor, and five state senators in June2012. Four of the five senators had to runfor reelection.

¶ 156 Two Republican state senatorswere defeated in 2011 and one Republicanstate senator was defeated in 2012. Thelatter election shifted control of the statesenate to the Democrats. This was thesecond time in recent years that a recallelection in Wisconsin shifted control of thestate senate to the Democratic party.3

¶ 157 The John Doe investigation underreview is ostensibly about alleged criminalactivity by [ ], [ ],and [ ] during the multiple recallelections described above. In an affidavitin support of the petition for the John DoeS 106proceeding in August 2012, an investiga-tor in the Milwaukee County District At-torney’s office wrote:

3. The purposes and goals of thisJohn Doe investigation would be to:

a. Determine the nature and extentof an agreement or understanding relat-ed to the solicitation by [ ],

3. The first Wisconsin legislator to be success-fully 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 sta-dium for the Milwaukee Brewers. SenatorPetak’s recall shifted control of the Senate tothe Democratic Party.


and [ ],[ ] in the2011 and 2012 recall elections, for contri-butions to organizations regulated by Ti-tle 26 U.S.C. 501(c)4 contrary to Wiscon-sin Stats sec. 11.10(4), 11.26, 11.27 and11.61(1)(b);

b. Determine whether the circum-stances under which the solicitation anduse of said campaign contributions wereto circumvent the provisions of Wiscon-sin Stats sec. 11.26 and 11.27(1) by indi-viduals and others identified above, for acriminal purpose in order to avoid therequirements of Wisconsin Stats. Sec.11.06(1) and 11.27(1).

¶ 158 In fact, however, the MilwaukeeCounty District Attorney’s Office targeted[ ] circle for investigation before[ ], and it has framed thepresent investigation to include allegedcampaign finance violations dating from2009 through the 2012 recall elections.

¶ 159 Almost immediately after the in-troduction of Governor Walker’s BudgetRepair Bill, talk of his recall began tosurface. However, because Walker waselected in 2010 and did not take office untilJanuary 3, 2011, he could not be recalledunder the constitution until 2012 ‘‘after thefirst year of the term for which the incum-bent was elected.’’ Wis. Const. art. XIII,§ 12. Consequently, Walker’s opponentsfocused their attention in the short termon a pending race for the supreme courtand the recall of eight Republican S 107statesenators elected in 2008: Robert Cowles(District 2); Alberta Darling (District 8);Sheila Harsdorf (District 10); Luther Ol-sen (District 14); Randy Hopper (District18); Glenn Grothman (District 20); MaryLazich (District 28); and Dan Kapanke(District 32). Formal recall efforts forthese senators began on March 2, 2011.

¶ 160 Opponents of Governor Walkerand the senators who voted for Act 10

succeeded in obtaining the required signa-tures to force recall elections for SenatorsCowles, Darling, Harsdorf, Olsen, Hopper,and Kapanke. They failed to obtain suffi-cient signatures to force recall elections forSenators Grothman and Lazich.

¶ 161 Supporters of Governor Walkerattempted to recall eight Democratic statesenators, namely, Lena Taylor (District 4);Spencer Coggs (District 6); James Holpe-rin (District 12); Mark Miller (District 16);Robert Wirch (District 22); Julie Lassa(District 24); Fred Risser (District 26);and Dave Hansen (District 30). Their for-mal efforts began as early as February 22(District 12). They succeeded in obtainingthe required number of signatures to forcerecall elections for Senators Holperin,Wirch, and Hansen. They failed to obtainsufficient signatures to force recall elec-tions for Senators Taylor, Coggs, Miller,Lassa, and Risser.

¶ 162 In the 2011 recall elections, Sena-tors Randy Hopper and Dan Kapankewere defeated. Senators Cowles, Darling,Harsdorf, Holperin, Olsen, Wirch, andHansen were reelected.

¶ 163 Opponents of Governor Walkersought to recall Walker and LieutenantGovernor Rebecca Kleefisch and four Re-publican state senators, namely, ScottFitzgerald (District 13); Van Wanggaard(District 21), Terry Moulton (District 23);and Pam Galloway S 108(District 29), in 2012.Supporters of Governor Walker attemptedto recall Senator Robert Jauch (District25). Insufficient signatures were submit-ted to recall Senator Jauch. However, allthe Republican targets faced recall elec-tions in 2012, except Senator Galloway,who resigned on March 16, 2012. She wasreplaced by Representative Jerry Petrow-ski, who ran in the recall general election.

¶ 164 The timing of the recall electionsin 2011 and 2012 was complicated by multi-


ple different filing dates for recall petitionsand a substantial number of primary elec-tions. Recall petitions were filed with theGovernment Accountability Board (GAB)on April 1, 2011 (Senator Kapanke); April7, 2011 (Senator Hopper); April 18, 2011(Senator Olsen); April 19, 2011 (SenatorHarsdorf); April 21, 2011 (Senators Dar-ling, Holperin, Wirch, and Hansen); andApril 25, 2011 (Senator Cowles).

¶ 165 Primary elections were held onJuly 12, 2011, in Senate Districts 2, 8, 10,14, 18, and 32. Primary elections wereheld on July 19, 2011, in Districts 12 and22.

¶ 166 In 2011 the recall general electionswere held on July 19, 2011 (District 30);August 9, 2011 (Districts 2, 8, 10, 14, 18,and 32); and August 16, 2011 (Districts 12and 22).

¶ 167 In 2012 the primary elections forgovernor, lieutenant governor, and thefour senate seats in Districts 13, 21, 23,and 29 were held on May 8. The recallgeneral elections were held on June 5,2012. Senator Van Wanggaard was de-feated. Governor Walker, LieutenantGovernor Kleefisch, and Senators Fitzger-ald and Moulton were reelected. Repre-sentative Petrowski was elected as a Re-publican to succeed Senator Galloway.

S 109¶ 168 The seemingly insignificant fac-tual details of these multiple elections areimportant to show the unprecedented, un-scheduled electoral activity in Wisconsinduring 2011 and 2012, and to relate thesemultiple elections to Wisconsin campaignfinance laws.

II

¶ 169 Wisconsin statutory law on recallsis contained primarily in Wis. Stat. § 9.10.This section is intended ‘‘to facilitate theoperation 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 thefirst year of the term for which the incum-bent was elected.’’ Wis. Const. art. XIII,§ 12.

¶ 170 ‘‘[A] petition for recall of an officershall be signed by electors equal to at least25% of the vote cast for the office ofgovernor at the last election within thesame district or territory as that of theofficeholder being recalled.’’ Wis. Stat.§ 9.10(1)(b).

¶ 171 Wisconsin Stat. § 9.10(2) outlinesthe petition requirements, including thedesign of recall petition forms. Paragraph(2)(d) provides:

No petition may be offered for filingfor the recall of an officer unless thepetitioner first files a registration state-ment under s. 11.05(1) or (2) with thefiling officer with whom the petition isfiled. The petitioner shall append to theregistration a statement indicating his orher intent to circulate a recall petition,the name of the officer for whom recallis sought and, in the case of a petitionfor the recall of a city, village, town,town sanitary district, or school districtofficer, a statement of a reason for therecall which is related to the officialresponsibilities of the official for whomremoval is soughtTTTT The last date thata petition for the recall S 110of an officermay be offered for filing is 5 p.m. on the60th day commencing after registra-tionTTTT No signature may be countedunless the date of the signature is withinthe period provided in this paragraph.

¶ 172 Paragraph (2)(d) is significant inseveral respects. First, a recall effortcannot formally begin until a registrationstatement is filed under Wis. Stat.§ 11.05(1) or (2). However, the organiza-tion of a recall campaign may begin muchearlier than the date of registration, andthe planners and organizers are not re-


quired to report any activity or expendi-ture to launch the campaign except expen-ditures by already-registered politicalcommittees.

¶ 173 Second, supporters of a recall cam-paign have 60 days after registration tocirculate and file their recall petitions.However, organizers of the Scott Walkerrecall petition shrewdly selected Tuesday,November 15, 2011, to register their recallefforts. Under Wis. Stat. § 990.001(4)(a),which deals with how time is computedunder the Wisconsin Statutes, the first dayis excluded in counting the 60 days. Un-der Wis. Stat. § 990.001(4)(c), if the dead-line for filing a document is on a day whenthe filing office is closed, the filing ‘‘may bedone on the next succeeding day that isnot a Sunday or a legal holiday.’’ TheWalker recall petition was due on January14, 2012. However, January 14 was aSaturday, which meant that the petitiondid not have to be filed until Tuesday,January 17, because January 16 was alegal holiday (Martin Luther King’s birth-day). This gave the organizers 64 days tocirculate and file the Walker, Kleefisch,Fitzgerald, Wanggaard, Moulton, and Gal-loway recall petitions.

¶ 174 Third, Wis. Stat. § 9.10(2)(b)makes plain that no stated reason is re-quired to recall a state officer, as opposedto a local official.

S 111¶ 175 Wisconsin Stat. § 9.10(3)(b) pro-vides that:

Within 10 days after the petition isoffered for filing, the officer againstwhom the petition is filed may file awritten challenge with the official, speci-fying any alleged insufficiency. If achallenge is filed, the petitioner may filea written rebuttal to the challenge withthe official within 5 days after the chal-lenge is filed. If a rebuttal is filed, theofficer against whom the petition is filedmay file a reply to any new matter

raised in the rebuttal within 2 days afterthe rebuttal is filed. Within 14 daysafter the expiration of the time allowedfor filing a reply to a rebuttal, the offi-cial shall file the certificate or an amend-ed certificate.

¶ 176 Subsection (3)(b) continues:

Within 31 days after the petition is of-fered for filing, the official with whomthe petition is offered for filing shalldetermine by careful examinationwhether the petition on its face is suffi-cient and so state in a certificate at-tached to the petition. If the officialfinds that the amended petition is suffi-cient, the official shall file the petitionand call a recall election to be held onthe Tuesday of the 6th week commenc-ing after the date of filing of the peti-tion.

(Emphasis added.)

¶ 177 Subsection (3)(f) provides that ‘‘Ifa recall primary is required, the date spec-ified under par. (b) shall be the date of therecall primary and the recall election shallbe held on the Tuesday of the 4th weekcommencing after the recall primary or, ifthat Tuesday is a legal holiday, on the firstday after that Tuesday which is not a legalholiday.’’

¶ 178 Subsection (3), too, is important inthis matter. First, the statute builds incertain protections for a public officeragainst whom a recall petition is S 112filed.Consequently, no recall primary or recallelection may proceed until the official withwhom the petition is filed certifies therecall and orders a recall election. Thereview process can be very time consum-ing, especially if all available process isutilized.

¶ 179 In this case, recall elections werecertified by the Government AccountabilityBoard as follows:


2011

Officer Recall Certified

District 2 (Robert Cowles) June 3, 2011District 8 (Alberta Darling) June 3, 2011

District 10 (Sheila Harsdorf) June 3, 2011District 12 (Jim Holperin) June 10, 2011District 14 (Luther Olsen) June 3, 2011

District 18 (Randy Hopper) June 3, 2011District 22 (Robert Wirch) June 10, 2011District 30 (Dave Hansen) June 10, 2011District 32 (Dan Kapanke) June 3, 2011

2011

Officer Recall Certified

Governor Scott Walker March 30, 2012Lt. Governor Rebecca Kleefisch March 30, 2012

District 13 (Scott Fitzgerald) March 30, 2012District 21 (Van Wanggaard) March 30, 2012District 23 (Terry Moulton) March 30, 2012District 29 (Pam Galloway) March 30, 2012

¶ 180 Second, Wis. Stat. § 11.26 setslimits on contributions, as defined in Wis.Stat. § 11.01(6). However, subsection(13m) of § 11.26 contains two specific ex-ceptions to these contribution limits:

S 113Contributions utilized for the fol-lowing purposes are not subject to limi-tation by this section:

(a) For the purpose of payment oflegal fees and other expenses incurredas a result of a recount at an election.

(b) For the purpose of payment oflegal fees and other expenses incurredin connection with the circulation, offerto file or filing, or with the response tothe circulation, offer to file or filing, of apetition to recall an officer prior to the

time a recall primary or election isordered, or after that time if incurred incontesting or defending the order.

(Emphasis added.)

¶ 181 The plain language of Wis. Stat.§ 11.26(13m) provides that there is no lim-itation on contributions for payments madefor certain purposes from the date a recallcampaign is registered until the date arecall election is ordered. There also is nolimitation on contributions for payment oflegal fees and other expenses incurred as aresult of a recount.

¶ 182 For the nine successful recall peti-tions in 2011, the periods of exemptionwere as follows:

District 2 March 2, 2011–June 3, 2011 = 94 daysDistrict 8 March 2, 2011–June 3, 2011 = 94 daysDistrict 10 March 2, 2011–June 3, 2011 = 94 daysDistrict 12 February 22, 2011–June 10, 2011 = 109 daysDistrict 14 March 2, 2011–June 3, 2011 = 94 daysDistrict 18 March 2, 2011–June 3, 2011 = 94 daysDistrict 22 February 24, 2011–June 10, 2011 = 107 daysDistrict 30 February 25, 2011–June 10, 2011 = 106 daysDistrict 32 March 2, 2011–June 3, 2011 = 94 days

¶ 183 For the six successful recall peti-tions for 2012, the periods of exemptionwere as follows:


Governor November 15, 2011–March 30, 2012 = 137 daysLt. Governor November 15, 2011–March 30, 2012 = 137 daysDistrict 13 November 15, 2011–March 30, 2012 = 137 daysDistrict 21 November 15, 2011–March 30, 2012 = 137 daysDistrict 23 November 15, 2011–March 30, 2012 = 137 daysDistrict 29 November 15, 2011–March 30, 2012 = 137 days

S 114¶ 184 There were two recounts duringthe period under review—the statewiderecount of the 2011 supreme court electionand the recount in Senate District 21 in2012.

¶ 185 During periods of exemption, indi-viduals and organizations that are permit-ted to make contributions to recall cam-paigns may make unlimited contributionsto support or oppose a recall effort. Ifthese individuals and organizations arepermitted to support or oppose recall ef-forts with unlimited contributions duringexempt periods, they are likewise permit-ted to seek contributions during these peri-ods and to make contributions duringthese periods that will be lawful in periodsthat are not exempt under Wis. Stat.§ 11.26(13m).

¶ 186 In 2011 there were 156 exemptdays between February 22 and December31 related to recall elections. In 2012there were 90 exempt days between Janu-ary 1 through March 30 related to recallelections.

¶ 187 In sum, irrespective of any FirstAmendment or due process limitations onthe regulation of campaign finance, Wis-consin campaign finance statutes werelargely inapplicable during 246 of the daysunder investigation, by virtue of Wis. Stat.§ 11.26(13m). This figure does not includeexempt days for fundraising and contribu-tions to pay for the 2011 statewide recountfor the supreme court.

S 115III

¶ 188 On June 5, 2012, Governor Walkerwon the recall election with more than 53percent of the vote. Walker was the third

governor in United States history to berecalled. He was the first to be reelected.

¶ 189 Approximately two months later,on August 10, 2012, a Milwaukee Countyassistant district attorney, David Robles,filed a petition for commencement of thisJohn Doe investigation in MilwaukeeCounty. The petition was filed in Milwau-kee County Circuit Court. The petitionsought leave to investigate alleged cam-paign finance violations and requested asecrecy order to cover the investigation inanticipation that documents would besought from‘‘[ ] personalcampaign committee TTT and TTT relatedorganizations.’’

¶ 190 The petition necessitated the ap-pointment of a John Doe judge. Thejudge appointed was Barbara Kluka, aprominent reserve judge from KenoshaCounty. Issues related to this appoint-ment are presently before the court. I amnot persuaded that there are defects inJudge Kluka’s appointment.

¶ 191 On September 5, 2012, Judge Klu-ka granted the petition and issued an or-der for commencement of the John Doeproceeding. The same day, Judge Klukagranted a secrecy order.

¶ 192 The next day, the MilwaukeeCounty District Attorney’s Office soughtand received search warrants for the pri-vate e-mail accounts of 13 individuals, in-cluding [ ]. The private e-mailaccounts were obtained from[ ]. S 116The search warrantsrequired the recipient ‘‘electronic commu-nication service providers’’ to produce

all communications stored in the ac-count[s] including all incoming and


outgoing e-mail; subscriber names, usernames, screen names or other identitiesassociated with the account[s]; mailingaddresses, residential addresses, busi-ness addresses, other e-mail addresses,telephone numbers or other contact oridentifying information for [these] ac-count[s] (in electronic or other form);billing records; contact lists, informationabout length of service, types of servicesor related information; connection logsand records of user activity, and anyinformation related to sent and receivedcommunications, including any ‘‘chat’’or ‘‘instant messaging’’ or related infor-mation for said account[s]TTTT

(Emphasis added.) The time frame forthe search warrants was from April 11,2009, to July 1, 2012.

¶ 193 The district attorney’s office alsoobtained either a search warrant or a sub-poena duces tecum for conference call rec-ords from [ ] and for threebank accounts from a bank. All thesesearch warrants and subpoenas were sub-ject to a secrecy order.

¶ 194 On December 12, 2012, the Mil-waukee District Attorney’s Office askedfor additional search warrants and subpoe-nas for the private e-mail accounts of 11additional individuals, as well as additionalprivate accounts for five previously namedindividuals, including [ ]. Theseaccounts were obtained from [12 electroniccommunication service providers]. E-mailaccounts were sought from January 1,2011, through July 31, 2012. The officealso sought bank account records from [abank] and conference call S 117records fromtwo providers. All these search warrantsand subpoenas were subject to a secrecyorder.

¶ 195 On January 18, 2013, MilwaukeeCounty District Attorney John Chisholmmet with then-Attorney General J.B. VanHollen to discuss the ongoing investiga-

tion. District Attorney Chisholm soughtto determine whether, given the statewidenature of the investigation, the AttorneyGeneral’s office wished to become involvedin the investigation. On May 31, 2013,Attorney General Van Hollen sent DistrictAttorney Chisholm a letter declining in-volvement in the investigation. AttorneyGeneral Van Hollen cited, among otherthings, potential conflicts of interest[ ].

¶ 196 On June 20, 2013, the GovernmentAccountability Board met in closed sessionin Madison to discuss the investigation.The Board passed two motions[ ] and one tohire special investigators to assist with theinvestigation.

¶ 197 On July 16, 2013, Francis Schmitzwas chosen as a special investigator for theGAB.

¶ 198 In July 2013, three more petitionsto commence John Doe proceedings werefiled: District Attorney Jane Kohlwey fileda petition in Columbia County on July 22,District Attorney Larry Nelson filed a pe-tition in Iowa County on July 25, andDistrict Attorney Kurt Klomberg filed apetition in Dodge County on July 26. OnAugust 21, District Attorney IsmaelOzanne filed a petition in Dane County tocommence a John Doe proceeding. Allthese petitions included a request that theproceedings be subject to a secrecy order.

S 118¶ 199 Also on August 21, 2013, thedistrict attorneys from the five countiesinvolved (Milwaukee, Columbia, Iowa,Dodge, and Dane) sent a letter to JohnDoe Judge Barbara Kluka requesting theappointment of a special prosecutor tooversee the entire investigation. The let-ter recommended Francis Schmitz. OnAugust 23, Judge Kluka appointed Schmitzto be the special prosecutor for each of thefive John Doe investigations.


¶ 200 On or about October 1, 2013, Spe-cial Prosecutor Schmitz applied to JudgeKluka for additional subpoenas and searchwarrants, supported by lengthy affidavits.The subpoena applications sought informa-tion about 29 businesses and organiza-tions, including political party organiza-tions, about a large number of personswho were not candidates, and about allcandidates and campaign committees in-volved in 2011 and 2012 recall elections.The application sought subpoenas for atleast 21 businesses, organizations, andparty organizations to disclose informationabout and relationships with all the enu-merated businesses, organizations, and in-dividuals noted above. The special prose-cutor issued more than 30 subpoenas.

¶ 201 There also were search warrantapplications for residences and/or offices offive individuals. These search warrantswere very broad in nature and covered thetime period from March 1, 2009 to the datethe warrants were issued.

¶ 202 The search warrants and subpoe-nas authorized on or about October 1 byJudge Kluka are at issue before the court.

S 119IV

[82] ¶ 203 The first issue for discussionhere is the legality of the appointment ofFrancis Schmitz as the John Doe specialprosecutor. On August 21, 2013, districtattorneys from the five counties involvedin the John Doe investigation sent a letterto Judge Kluka requesting the appoint-ment of a special prosecutor to oversee theentire investigation. The letter recom-mended the appointment of FrancisSchmitz. On August 23, Judge Kluka ap-pointed Schmitz to be the special prosecu-tor, at a rate of $130 per hour, for theJohn Doe investigation in each of the fivecounties.

¶ 204 Wisconsin Stat. § 978.045, entitled‘‘Special prosecutors,’’ constitutes most ofthe statutory authority for the appoint-ment of special prosecutors.4 This section,which dates back to 1989,5 has four subsec-tions. The first two subsections read, inpart, as follows:

(1g) A court on its own motion mayappoint a special prosecutor under sub.(1r) or a district attorney may request acourt to appoint a special prosecutorunder that subsection. Before a courtappoints a special prosecutor on its ownmotion or at the request of a districtattorney for an appointment that ex-ceeds 6 hours per case, the court ordistrict attorney shall request assistancefrom a district attorney, deputy districtattorney or assistant district attorneyfrom other prosecutorial units or an as-sistant attorney general. A district at-torney requesting the appointment of aspecial prosecutor, or a court if the courtis appointing a special prosecutor on itsown motion, shall notify the departmentof administration, on a S 120form providedby that department, of the district attor-ney’s or the court’s inability to obtainassistance from another prosecutorialunit or from an assistant attorney gener-al.

(1r) Any judge of a court of record,by an order entered in the record stat-ing the cause for it, may appoint anattorney as a special prosecutor to per-form, for the time being, or for the trialof the accused person, the duties of thedistrict attorney. An attorney appoint-ed under this subsection shall have all ofthe powers of the district attorney. Thejudge may appoint an attorney as a spe-cial prosecutor at the request of a dis-trict attorney to assist the district attor-

4. See also Wis. Stat. §§ 978.03(3), 978.043. 5. 1989 Wis. Act 117, § 5.


ney in the prosecution of personscharged with a crime, in grand juryproceedings or John Doe proceedingsunder s. 968.26, in proceedings under ch.980, or in investigations. The judgemay appoint an attorney as a specialprosecutor if any of the following condi-tions exist:

Wis. Stat. § 978.045(1g)-(1r).

¶ 205 At this point, the subsection listsnine ‘‘conditions’’ that justify appointmentof a special prosecutor:

(a) There is no district attorney forthe county.

(b) The district attorney is absentfrom the county.

(c) The district attorney has acted asthe attorney for a party accused in rela-tion to the matter of which the accusedstands charged and for which the ac-cused is to be tried.

(d) The district attorney is near of kinto the party to be tried on a criminalcharge.

(e) The district attorney is physicallyunable to attend to his or her duties orhas a mental incapacity that impairs hisor her ability to substantially performhis or her duties.

S 121(f) The district attorney is servingin the U.S. armed forces.

(g) The district attorney standscharged with a crime and the governorhas not acted under s. 17.11.

(h) The district attorney determinesthat a conflict of interest exists regard-

ing the district attorney or the districtattorney staff.

(i) A judge determines that a com-plaint received under s. 968.26(2)(am)relates to the conduct of the districtattorney to whom the judge otherwisewould refer the complaint.

Wis. Stat. § 978.045(1r).

¶ 206 Section 978.045 is clear. Thecourt appoints special prosecutors underthese two subsections. The court canmake an appointment on its own motion orit can make an appointment upon the re-quest of a district attorney. When thecourt appoints on its own motion, it ap-points under the conditions in subsection(1r). When the court appoints upon therequest of a district attorney, it appoints‘‘under that subsection,’’ that is, under theconditions of subsection (1r).

¶ 207 Section 978.045 spells out prereq-uisites for appointments under (1g) and(1r). One of these prerequisites is for thecourt or district attorney first to requestassistance from other prosecutors, includ-ing ‘‘an assistant attorney general,’’ beforeappointing a special prosecutor. Becausethe Milwaukee County District Attorneymade a request for assistance to the Wis-consin Attorney General, this prerequisitearguably was satisfied.6 However, the as-sumption that the S 122prerequisite was sat-isfied is grounded on the proposition thatif the district attorney or court asks theDepartment of Justice for assistance, theydo not have to ask any other prosecutorialunit. This may be a tenuous proposition.

6. It is not clear to the writer whether a courtfrom one county is required to make an ap-pointment if a district attorney, deputy dis-trict attorney, or assistant district attorneyfrom another county, or an assistant attorneygeneral, responds to a request for assistancefrom the court or from the district attorney inthe court’s home county. Wis. Stat.§ 978.045(1g). A district attorney may, onhis own, appoint an attorney to serve as a

special prosecutor ‘‘without state compensa-tion.’’ Wis. Stat. § 978.045(3)(a). A districtattorney from a large county also may appoint‘‘temporary counsel as may be authorized bythe department of administration.’’ Wis.Stat. § 978.03(3). Judicial appointment of aspecial counsel in these situations would ap-pear unnecessary but fully authorized if theappointment is consistent with subsection(1r).


¶ 208 A second prerequisite is found inthe nine conditions of subsection (1r).‘‘The judge may appoint an attorney as aspecial prosecutor if any of the followingconditions exists.’’ (Emphasis added.) Ifnone of the enumerated conditions exists,the judge is not authorized to make anappointment under subsections (1g) and(1r).

¶ 209 There are several reasons why oneof the nine conditions must exist in orderfor the court to make an appointment.First, the Department of Administration isrequired to pay for a special prosecutorwho is properly appointed under thesesubsections. Wis. Stat. § 978.045(2)(b)(‘‘The department of administration shallpay the compensation ordered by the courtfrom the appropriation under s.20.475(1)(d).’’) (emphasis added). The de-partment does not appear to have authori-ty to reject payment for a properly ap-pointed special prosecutor. However, thelegislature did establish conditions forthese appointments before requiring thedepartment of administration to pay.

S 123¶ 210 Second, if the conditions in sub-section (1r) did not have to be followed,courts could grant requests from districtattorneys for an unlimited number of spe-cial prosecutors to supplement district at-torney staffs.7 In other words, individualjudges could effectively disregard thenumber of positions for assistant districtattorneys set out in statute. Cf. Wis. Stat.§ 16.505. District attorneys in the state’slargest counties already may appoint ‘‘tem-porary counsel’’ as authorized by the de-partment of administration. Wis. Stat.§ 978.03(3). Section 978.045 does not per-mit an alliance between a district attorney

and a judge to override statutory limita-tions on prosecutor appointments.

¶ 211 Third, if the conditions in subsec-tion (1r) did not have to be followed, courtscould appoint special prosecutors on theirown motion for ‘‘investigations’’ of interestto an individual judge without any involve-ment by the local district attorney. Thiswould present a significant separation ofpowers issue.

¶ 212 Fourth, courts could appoint spe-cial prosecutors with ‘‘all the powers of thedistrict attorney,’’ without the accountabili-ty of any checks on the special prosecu-tor’s conduct, except from the appointingcourt. A special prosecutor appointed onthe court’s own motion would not necessar-ily be overseen by a district attorney. Thespecial prosecutor could not be recalledS 124or defeated for reelection, never havingbeen elected to the special prosecutor posi-tion. The special prosecutor could be ap-pointed by a reserve judge who wouldnever again face the electorate.

¶ 213 All these concerns are blunted ifthe court adheres to the conditions in sub-section (1r). None of these concerns isaddressed when the conditions are disre-garded.

¶ 214 In State v. Carlson, 2002 WI App44, 250 Wis.2d 562, 641 N.W.2d 451, thecourt of appeals appeared to reach a dif-ferent conclusion. The court of appealsnoted that Wis. Stat. § 978.045 ‘‘authorizestwo distinct ways in which a court mayappoint a special prosecutor.’’ Id., ¶ 8.The court said:

Carlson directs us to the sentence in thestatute that authorizes the court’s ap-

7. According to one study, Wisconsin em-ployed only two-thirds of the number of pros-ecutors needed in 2012. See Eric Litke, Wis-consin Needs 215 More Prosecutors, StudySays, Green Bay Press–Gazette (Apr. 14,2013), available at http://archive.greenbay

pressgazette.com/article/20130413/GPG0198/304130026/Wisconsin–needs–215–more–prosecutors–study–says. During the 2011–13budget cycle, 42 of the 71 district attorneys inthe state requested funding for additional po-sitions; none of the requests was granted. Id.


pointment of a special prosecutor whenit is at the request of a district attor-neyTTTT We agree with Carlson that thepart of the statute that he relies uponfor his argument lists, and arguably re-stricts, the circumstances in which acourt may appoint a special prosecutor. [4] However, any restriction, if one ex-ists, is triggered only when the appoint-ment is made at the request of a districtattorney, not when the appointment ismade 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 ap-point an attorney as a special prosecutorat the request of a district attorney toassist the district attorney in the prose-cution of persons charged with a crime,in grand jury or John Doe proceedingsor in investigations.’’ Wis. Stat.§ 978.045(1r)[ (1999–2000) ].

S 125Id., ¶ 8 n. 4. The quoted statutory sen-tence has been broadened to include ‘‘pro-ceedings under ch. 980.’’ Wis. Stat.§ 978.045(1r).

¶ 216 The Carlson court’s analysis iscorrect except for the language ‘‘not whenthe appointment is made by a court on itsown motion.’’ The court of appeals’ inter-pretation of the ‘‘on its own motion’’ lan-guage is mistaken because it reads out ofsubsection (1r) the prerequisite that ‘‘[T]hejudge may appoint an attorney as a specialprosecutor if any’’ of the nine conditionsexists. (Emphasis added.) The court ofappeals’ interpretation would providecourts, including reserve judges, free reinto make special prosecutor appointments.In my view, such an interpretation contra-dicts the plain language and the obviouspolicy embedded in the statute.

¶ 217 The statutory history of the sec-tion supports this interpretation. As not-

ed previously, Wis. Stat. § 978.045 wascreated by 1989 Wis. Act 117, § 5. Thefirst version of the section read in part asfollows:

(1) If there is no district attorney forthe county, if the district attorney isabsent from the county, has acted asattorney for a party accused in relationto the matter of which the accusedstands charged and for which he or sheis to be tried, is near of kin to the partyto be tried on a criminal charge, is un-able to attend to his or her duties or isserving in the armed forces of the Unit-ed States, or if the district attorneystands charged with a crime and thegovernor has not acted under s. 17.11,any judge of a court of record, by anorder entered in the record stating thecause therefor, may appoint some suit-able attorney to perform, for the timebeing, or for the trial of the accusedperson, the duties of the district attor-ney, and the attorney so appointed shallhave all the powers of the district attor-ney while so acting.

S 126¶ 218 This original subsection basedjudicial appointment of a special prosecu-tor on the existence of one or more speci-fied conditions. The statutory history of§ 978.045 shows that this qualification hasbeen carried forward consistently in eachrevision of the statute.

¶ 219 It should also be noted that theoriginal section listed six conditions per-mitting judicial appointment. Since 1989three more conditions have been added.Why would the legislature keep addingnew justifications for the appointment of aspecial prosecutor if the appointing courtcould simply enter an order in the record‘‘stating the cause’’ for the appointment?A court must state the cause for an ap-pointment in its order so that the depart-


ment of administration is informed why itmust pay for compensation.

¶ 220 Section 978.045(1g) reads in part:‘‘A district attorney requesting the ap-pointment of a special prosecutor, or acourt if the court is appointing a specialprosecutor on its own motion, shall notifythe department of administration, on aform provided by that department, of thedistrict attorney’s or the court’s inability toobtain assistance from another prosecuto-rial unit or from an assistant attorneygeneral.’’ (Emphasis added.) In fact, theprincipal form used by courts when theyappoint a special prosecutor is CR–210,developed by the Wisconsin Court RecordsManagement Committee of the WisconsinSupreme Court. See Exhibit 1. The De-partment of Administration approves thisform.

¶ 221 Form CR–210 tracks Wis. Stat.§ 978.045(1r). At the bottom, Form CR–210 states: ‘‘This form shall not be modi-fied. It may be supplemented by addition-al material.’’ (Emphasis added.)

S 127¶ 222 Five district attorneys askedJudge Kluka to appoint a special prosecu-tor. They asked her to appoint FrancisSchmitz. They explained the reasoningfor the appointment of a special prosecu-tor. They advised her how to justify theappointment of a special prosecutor. Theyeven explained the amount that AttorneySchmitz would accept as compensation.

¶ 223 Two days later Judge Kluka madethe requested appointment of FrancisSchmitz. The appointment order was ti-tled ‘‘APPOINTMENT OF SPECIALPROSECUTOR UNDER CHAPTER978.’’ The order disregarded CR–210 andcreated a new document following theanalysis in the district attorneys’ letter. Ittwice cited the letter and even repeatedthe unusual citation of State v. Cummings,199 Wis.2d 721, 546 N.W.2d 406 (1996),

and the mis-citation of State v. Carlson inthe letter.

¶ 224 Judge Kluka’s order stated:I make this appointment in light of thefacts and circumstances set forth in theAugust 21, 2013 letter submitted by theDistrict Attorneys for the counties ofColumbia, Dane, Dodge, Iowa and Mil-waukee. I make this appointment undermy authority as expressed in State v.Carlson, 2002 WI App 44, 250 Wis.2d562, 641 N.W.2d 562 [sic]. I find that aJohn Doe run by five different localprosecutors, each with a partial respon-sibility for what is and ought to be oneoverall investigation and prosecution, ismarkedly inefficient and ineffective.Consequently, I also make this appoint-ment as part of my inherent authorityunder State v. Cummings, 199 Wis.2d721, 735, 546 N.W.2d 406, 411 (1996).

¶ 225 Inasmuch as Judge Kluka appoint-ed a special prosecutor for each of fivecounties two days after receiving a jointletter signed by the district S 128attorney ineach of the five counties, and inasmuch asthe judge appointed the very person thedistrict attorneys recommended to be spe-cial prosecutor and authorized preciselythe amount of compensation the districtattorneys said their nominee would accept,and inasmuch as the judge twice cited theletter of request from the district attor-neys in her order, followed the letter’slegal analysis, utilized the cases containedin the letter, and even repeated a mis-citation of a case in the letter, it is simplynot possible to contend that the court wasacting on its own motion. Judge Klukadid not check personally to see whetherany other prosecutorial units could assistin the John Doe. Instead, she accepted asfact and law everything the district attor-neys presented to her. Thus, even underthe half-correct decision in Carlson, thespecial prosecutor appointment violated


the appointment statute if it did not satisfyone of the nine ‘‘conditions’’ in subsection(1r).

¶ 226 Judge Kluka made a gesture tocomply with the statute. Her orderstated: ‘‘The Attorney General and theDistrict Attorneys TTT all note that theirindividual status as partisan elected pros-ecutors gives rise to the potential for theappearance of impropriety. I find thatthe Special Prosecutor will eliminate anyappearance of impropriety.’’

¶ 227 This ‘‘finding’’ is plainly insuffi-cient. The Milwaukee County District At-torney’s Office had been investigating[ ] since August 10, 2012,the day it petitioned for the second JohnDoe, without concern for the ‘‘appearanceof impropriety.’’ It obviously had beeninvestigating [ ] even longer inlight of the materials presented in theaffidavits supporting the petition for theJohn Doe and the search warrants andsubpoenas requested in 2012. S 129This ismarkedly different from the Departmentof Justice, which in 2013[ ].

¶ 228 In any event, ‘‘the appearance ofimpropriety’’ is not the same as ‘‘a conflictof interest’’ as set out in Wis. Stat.§ 978.045(1r)(h). If this potential ‘‘appear-ance’’ were deemed a conflict of interest,the five district attorneys and their staffsshould have withdrawn from the case.They did not.

¶ 229 Thus, Judge Kluka’s order failedto satisfy any of the nine conditions statedin subsection (1r). That is why the judgedisregarded CR–210 and submitted a dif-ferent order.

¶ 230 That also is why the order at-tempts to sever the relationship betweenthe district attorneys and the court and toclaim that the judge was acting on her ownmotion. The problem is twofold, beyond

the implausibility of the claim. A courtacting on its own motion also must satisfyone or more of the conditions in subsection(1r) if the judge is acting under Wis. Stat.§ 978.045. The court simply cannot readout these conditions of the statute. More-over, the statute itself links district attor-neys and the court’s appointment of specialprosecutors for John Does. See also Wis.Stat. § 968.26.

¶ 231 The judge’s second gambit tosupport the appointment of the specialprosecutor was to invoke ‘‘inherent au-thority’’ under Cummings, 199 Wis.2d at735, 546 N.W.2d 406. This theory is com-pletely at odds with the title of the order:‘‘APPOINTMENT OF SPECIAL PROS-ECUTOR UNDER CHAPTER 978.’’Appointments made under the ‘‘inherentauthority’’ of the court, if such authorityexists in this matter, do not require pay-ment by the Department of Administra-tion because they are not made in con-formity with Chapter 978.

S 130¶ 232 In my view, the Cummings casedoes not recognize ‘‘inherent authority’’ toappoint a special prosecutor, especially in aJohn Doe matter. In Cummings, thecourt stated the relevant issues as follows:‘‘(1) does a John Doe judge have the powerto issue a search warrant; (2) does a JohnDoe judge have the power to seal a searchwarrantTTTT’’ Cummings, 199 Wis.2d at729, 546 N.W.2d 406. The court then ob-served:

Next, defendant asserts that a JohnDoe judge does not have the authority toseal a search warrant. It is true thatthere is no statutory authority in Wis-consin granting judges this ability.However, a John Doe judge has beengranted jurisdiction, the legal right toexercise its authority, pursuant to Wis.Stat. § [968.26]. A grant of jurisdictionby its very nature includes those powers


necessary to fulfill the jurisdictionalmandate.

Id. at 735–36, 546 N.W.2d 406. ‘‘The abili-ty to seal a search warrant is exactly thattype of power which a John Doe judgeneeds to fulfill the above jurisdictionalmandate.’’ Id. at 736–37, 546 N.W.2d 406.

¶ 233 The same cannot be said about the‘‘inherent authority’’ to appoint a specialprosecutor for a John Doe proceeding.

¶ 234 Judicial power to appoint a JohnDoe special prosecutor is governed by stat-ute, in the same way that John Doe pro-ceedings themselves have always beengoverned 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 condi-tions for the appointment of a special pros-ecutor paid for by the state, and thoseconditions have not been satisfied here.

¶ 236 The other statute is the John Doestatute, Wis. Stat. § 968.26. This statutereads in part:

S 131(1) If a district attorney requests ajudge to convene a proceeding to deter-mine whether a crime has been commit-ted in the court’s jurisdiction, the judgeshall convene a proceeding described un-der sub. (3) and shall subpoena and ex-amine any witnesses the district attor-ney identifies.

TTTT

(am) TTT [I]f a person who is not adistrict attorney complains to a judgethat he or she has reason to believe thata crime has been committed within thejudge’s jurisdiction, the judge shall referthe complaint to the district attor-neyTTTT

(b) TTT [T]he district attorney [then]shall, within 90 days of receiving thereferral, issue charges or refuse to issuecharges. If the district attorney refusesto issue charges TTT [t]he judge shall

convene a proceeding TTT if he or shedetermines that a proceeding is neces-sary to determine if a crime has beencommittedTTTT

(c) In [such] a proceeding TTT thejudge shall subpoena and examine underoath the complainant and any witnessesthat the judge determines to be neces-sary and appropriate to ascertain wheth-er a crime has been committed and bywhom committed. The judge shall con-sider the credibility of testimony in sup-port of and opposed to the person’s com-plaint.

(d) TTT [T]he judge may issue a crimi-nal complaint if the judge finds sufficientcredible evidence to warrant a prosecu-tion of the complaintTTTT

¶ 237 This statute suggests that a judgehas authority to proceed with a John Doeand, perhaps eventually, appoint a specialprosecutor (but not under Chapter 978) if‘‘the district attorney refuses to issuechargesTTTT’’ Whatever the statute im-plies, it is inapSplicable132 in this case be-cause of the proactive involvement of thedistrict attorneys.

[83, 84] ¶ 238 The Cummings casenotes that ‘‘a John Doe judge does nothave the statutory powers of a court. TTT

This conclusion is indubitably correctTTTT

[A] John Doe judge TTT enjoys those pow-ers conferred to all judges by statute.’’Cummings, 199 Wis.2d at 738, 546 N.W.2d406.

¶ 239 Judicial power to appoint a specialprosecutor is governed by statute. If ‘‘in-herent authority’’ were permitted to trumpthe applicable statutes governing JohnDoe appointments, the restrictions in thesestatutes would be rendered meaningless.This court cannot permit that to happen.Cf. State v. Henley, 2010 WI 97, ¶ 76, 328Wis.2d 544, 787 N.W.2d 350. Judge Klu-


ka’s appointment of the special prosecutorwas invalid.

V

¶ 240 The second issue for discussion isthe validity of the search warrants andsubpoenas sought by the special prosecu-tor on or about October 1, 2013. As notedabove, the John Doe judge approved ex-tremely broad search warrants for fiveindividuals and at least 31 very broad sub-poenas.

¶ 241 Motions to quash some of the sub-poenas were filed on October 17 and Octo-ber 25, 2013. On October 29, Judge Klukarecused herself from the entire proceed-ing, citing an unspecified conflict. There-after, the John Doe was reassigned toReserve Judge Gregory Peterson of EauClaire, who previously served as a memberof the Wisconsin Court of Appeals.

¶ 242 Following various writ applicationsin the court of appeals and petitions in twocircuit courts, the new John Doe judgegranted the motions to quash theS 133subpoenas and to return property seizedunder the search warrants. The judge’sdecision was issued on January 10, 2014.This court must determine whether JudgePeterson’s decision should be affirmed orreversed.

¶ 243 Judge Peterson’s decision isgrounded in his interpretation of Wiscon-sin election law as affected by the FirstAmendment. He noted specifically thatthe ‘‘subpoenas reach into the areas ofFirst Amendment freedom of speech andfreedom of association. As a result, Imust apply a standard of exacting scrutinyand, in interpreting statutes, give the ben-

efit of any doubt to protecting speech andassociation.’’

¶ 244 The judge wrote:

I am granting the motions to quashand ordering return of any propertyseized as a result of the subpoenas. Iconclude the subpoenas do not showprobable cause that the moving partiescommitted any violations of the cam-paign finance laws. I am persuaded thestatutes only prohibit coordination bycandidates and independent organiza-tions for a political purpose, and politicalpurpose, with one minor exception notrelevant here TTT requires express advo-cacy. There is no evidence of expressadvocacy.

¶ 245 Judge Peterson then wrote that‘‘The subpoenaed parties raise other issuesin their briefs, some quite compellingly.However, given the above decision, it isnot necessary to address those issues.’’This writing will address some of the is-sues related to the search warrants andsubpoenas as Judge Peterson’s decisioncan be affirmed on additional grounds.

¶ 246 The Fourth Amendment to theUnited States Constitution reads as fol-lows:

The right of the people to be secure intheir persons, houses, papers, and ef-fects, against unreasonSable134 searchesand seizures, shall not be violated, andno Warrants shall issue, but upon proba-ble cause, supported by Oath or affirma-tion, and particularly describing theplace to be searched, and the persons orthings to be seized.

The equivalent provision in the WisconsinConstitution is found in Article I, Section11.8

8. The Supreme Court has incorporated theFourth Amendment into the FourteenthAmendment so that it applies to the states.

See Ker v. California, 374 U.S. 23, 33, 83 S.Ct.1623, 10 L.Ed.2d 726 (1963).


¶ 247 These constitutional provisions areimplemented in Wisconsin by several stat-utes, including Wis. Stat. §§ 968.12(Search warrant), 968.13 (Search warrant:property subject to seizure), 968.14 (Use offorce), 968.15 (Search warrants; when exe-cutable), 968.16 (Detention and Search ofpersons on premises), 968.17 (Return ofsearch warrant), 968.18 (Receipt for seizedproperty), 968.19 (Custody of propertyseized), 968.20 (Return of property seized),968.205 (Preservation of certain evidence),968.23 (Forms), 968.27 (Definitions), 968.28(Application for court order to interceptcommunications), 968.29 (Authorization fordisclosure and use of intercepted wire,electronic or oral communications), 968.30(Procedure for interception of wire, elec-tronic or oral communications), and968.375 (Subpoenas and warrants for rec-ords or communications of customers of anelectronic communication service or re-mote computing service provider). Nes-tled among these search warrant statutesis Wis. Stat. § 968.135, which deals with‘‘Subpoena for documents.’’

¶ 248 Judicial interpretation of theFourth Amendment can narrow applica-tion of the Wisconsin search warrant stat-utes. The statutes, in turn, mayS 135provide limitations on warrants that arenot required by the Fourth Amendment.

¶ 249 Questions about the search war-rants and subpoenas arise here in thecontext of a John Doe proceeding. Thenature of such a proceeding must be un-derstood.

¶ 250 The John Doe statute, as amendedin 2009, 2009 Wis. Act 24, reads in part asfollows:

(1) If a district attorney requests ajudge to convene a proceeding to deter-mine whether a crime has been commit-ted in the court’s jurisdiction, the judgeshall convene a proceeding described un-der sub. (3) and shall subpoena and ex-

amine any witnesses the district attor-ney identifies.

TTTT

(3) The extent to which a judge mayproceed in an examination under sub. (1)or (2) is within the judge’s discretion.The examination may be adjourned andmay be secretTTTT

Wis.2d 968.26(1), (3).

¶ 251 In Cummings, this court held that‘‘a John Doe judge may issue and seal asearch warrant under appropriate circum-stances.’’ Cummings, 199 Wis.2d at 730,546 N.W.2d 406. The court added: ‘‘TheJohn Doe statute need not specificallymention the issuance of search warrantsfor a John Doe judge to have such power.’’Id. at 734–35, 546 N.W.2d 406. The courtsaid:

[S]tatutes should be interpreted in amanner which supports their underlyingpurpose. This court has repeatedly heldthat the John Doe proceeding was de-signed as an investigatory tool to beused as an ‘‘inquest for the discovery ofcrime.’’ Washington, 83 Wis.2d at 822[266 N.W.2d 597]. Denying John Doejudges the ability to S 136issue search war-rants would seriously reduce the investi-gatory power of the John Doe proceed-ing.

Id. at 735, 546 N.W.2d 406 (citations omit-ted).

¶ 252 The fact that a John Doe judgemay issue search warrants and subpoenasfor documents does not mean that theFourth Amendment has no application in aJohn Doe proceeding. On the contrary,special vigilance on the part of a John Doejudge may be required.

¶ 253 The documents initiating a JohnDoe investigation ‘‘need not name a partic-ular accused; nor need it set forth factssufficient to show that a crime has proba-bly been committed. The John Doe is, at


its inception, not so much a procedure forthe determination of probable cause as it isan inquest for the discovery of crimeTTTT’’Washington, 83 Wis.2d at 822, 266 N.W.2d597. Because the threshold for commenc-ing a John Doe investigation is relativelylow, a John Doe judge is responsible forlimiting its scope to prevent the investiga-tion from getting out of hand. This is why‘‘The John Doe investigation is essentiallylimited to the subject matter of the com-plaint upon which the John Doe is com-menced. The John Doe judge has no au-thority to ferret out crime wherever he orshe thinks it might exist.’’ Id. Likewise, adistrict attorney’s use of a John Doe islimited.

¶ 254 This limitation on the scope of theJohn Doe is particularly relevant to thescope of search warrants and subpoenas.In Custodian of Records v. State, 2004 WI65, ¶ 34, 272 Wis.2d 208, 680 N.W.2d 792, aJohn Doe case, this court observed:

[D]oes the issuance of a subpoena in aJohn Doe proceeding, the sole purposeof such proceeding being to investigatealleged criminal activity, have the poSten-tial137 to affect Fourth Amendmentrights? The issue of whether the sub-poena is overbroad and oppressive, andthus unreasonable, was raised by [thehead of the Legislative Technology Ser-vices Bureau (LTSB) ]. This is a FourthAmendment concern. Hale v. Henkel,201 U.S. 43, 71 [26 S.Ct. 370, 50 L.Ed.652] (1906) (noting that a subpoenaduces tecum may implicate FourthAmendment rights).

¶ 255 The court ultimately concluded,following the two-step test set out in Katzv. United States, 389 U.S. 347, 88 S.Ct.507, 19 L.Ed.2d 576 (1967), that there wasa reasonable expectation of privacy in thedata stored on backup tapes in the LTSBand thus the subpoena was overbroad.Id., ¶ 43. The court added:

When we examine whether the FourthAmendment was violated, we determinewhether the government intrusion wasreasonable. Overly broad subpoenastypically are held unreasonable in thattheir lack of specificity allows the gov-ernment to go on an indiscriminate fish-ing expedition, similar to that providedby a general warrant. Marron v. Unit-ed States, 275 U.S. 192, 196 [48 S.Ct. 74,72 L.Ed. 231] (1927); Boyd [v. UnitedStates, 116 U.S. 616, 625–26, 6 S.Ct. 524,29 L.Ed. 746 (1886) ]. As the UnitedStates Supreme Court has explained, asubpoena is ‘‘equally [as] indefensible asa search warrant would be if couched insimilar [general] terms.’’ Hale, 201 U.S.at 77 [26 S.Ct. 370].

Custodian of Records, 272 Wis.2d 208,¶ 50, 680 N.W.2d 792.

¶ 256 This case involves multiple un-named parties but it also involves many,many additional organizations and individ-uals. One unnamed party writes of itssubpoena:

The scope of the subpoenas required—explicitly, implicitly, or in effect—all ma-terial of any kind that related in anyway to the identified elections and to theidentified individuals or entities. Otherthan naming organizations and individu-als, there was no attempt to S 138limit orto filter the material subpoenaed or todistinguish between potentially regulat-ed speech and unregulated speech.

¶ 257 Another unnamed party declaredin its brief:

At no point does the subpoena seek todifferentiate materials and documentswhich relate to the subject of the JohnDoe, to wit: the recall elections of 2011and 2012, from other activities in whichthe movants were engaged during thatperiod. The broad sweeping request de-mands production of all the specific


items in the possession of the movantorganizations and their representatives.

¶ 258 The subpoenas issued on or aboutOctober 1, 2013, are actually narrowerthan the search warrants issued in 2012, asdescribed in the quoted material in ¶ 192above.

¶ 259 To illustrate the breadth of thesearch warrants and subpoenas, the spe-cial prosecutor now has possession of ev-ery private e-mail sent by [ ] orreceived by [ ] between April 11,2009, and July 31, 2012, together with oth-er information demanded from certain in-ternet service providers. The specialprosecutor has [ ] private e-mailsfor more than 20 months[ ] and 19months [ ]—as a re-sult of this John Doe investigation. Thisdoes not include information prosecutorsobtained from government e-mail accountsthat are alluded to in the record.

¶ 260 The substance of the captured e-mails inevitably includes communicationswith family members and personal friends,public officials and members of [ ]staff, party leaders and politicalstrateSgists,139 fundraisers, contributors,and other allies, lawyers, health care pro-viders, and other professional acquain-tances. It is inconceivable that a publicofficial [ ] would not subjectively

expect a reasonable degree of privacy inhis private e-mail accounts.9

¶ 261 The issue before us involves muchmore than [ ] and the many otherindividuals and organizations directly af-fected by the search warrants and subpoe-nas. The issue before us is central to ourtime. How much information about ourpeople is government entitled to obtain—without people’s consent and perhaps with-out their knowledge?

¶ 262 The precedent set by this case hasthe potential to affect the privacy rights ofmillions of Wisconsin citizens. ‘‘Amongonline adults, 92% use email, with 61%using it on an average day.’’ 10 Cellphones and smart phones are, of course,ubiquitous in our society, but countlessnumbers of people communicate by e-mailand texting. The ability of government tocapture—without notice—the substance ofour non-aural communications is not dis-similar to government wiretaps that recordthe substance of telephone conversations.The only difference is that wiretaps dis-close the content of telephone conversa-tions in real time.11

S 140¶ 263 Concerns about privacy are es-pecially critical when people engage in as-pects of speech and association during po-litical campaigns, ‘‘an area of the mostfundamental First Amendment activities.’’Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct.

9. Cf. United States v. Warshak, 631 F.3d 266,288 (6th Cir.2010) (‘‘[A] subscriber enjoys areasonable expectation of privacy in the con-tents of emails ‘that are stored with, or sentor received through, a commercial ISP.’ ’’)(citation omitted).

10. See Kristen Purcell, Search and Email StillTop 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-still-top-the-list-of-most-popular-online-activities.

11. Wisconsin Stat. § 968.28 limits the inter-ception of electronic communications without

a court order under Wis. Stat. § 968.30.Court orders for interception may be obtainedonly for specified offenses ranging from homi-cide, felony murder, and kidnapping to soli-citing a child for prostitution, Wis. Stat.§ 968.28, and such orders may not exceed 30days in duration without specific judicial ex-tension. Wis. Stat. § 968.30(5). These statu-tory limitations and protections for intercep-tion do not appear to apply when searchwarrants are issued for past electronic com-munications that must be retrieved from elec-tronic storage.


612, 46 L.Ed.2d 659 (1976). The SupremeCourt provided guidance in Zurcher v.Stanford Daily, 436 U.S. 547, 564, 98 S.Ct.1970, 56 L.Ed.2d 525 (1978), when it said:

[I]n issuing warrants and determiningthe reasonableness of a search, state andfederal magistrates should be aware that‘‘unrestricted power of search and sei-zure could also be an instrument forstifling liberty of expression.’’ Marcusv. Search Warrant, 367 U.S. 717, 729 [81S.Ct. 1708, 6 L.Ed.2d 1127] (1961).Where the materials sought to be seizedmay be protected by the First Amend-ment, the requirements of the FourthAmendment must be applied with ‘‘scru-pulous exactitude.’’ Stanford v. Texas,379 U.S. [476, 485, 85 S.Ct. 506, 13L.Ed.2d 431 (1965) ]. ‘‘A seizure reason-able as to one type of material in onesetting may be unreasonable in a differ-ent setting or with respect to anotherkind of material.’’ Roaden v. Kentucky,413 U.S. 496, 501 [93 S.Ct. 2796, 37L.Ed.2d 757] (1973). Hence, in Stanfordv. Texas, the Court invalidated a war-rant authorizing the search of a privatehome for all books, records, and othermaterials relating to the CommunistParty, on the ground that whether ornot the warrant would have been suffi-cient in other contexts, it authorized thesearchers to rummage among and makejudgments about books and papers and

was the functional equivalent of a gener-al warrant, one of the principal targetsof the Fourth S 141Amendment. Wherepresumptively protected materials aresought to be seized, the warrant require-ment should be administered to leave aslittle as possible to the discretion orwhim of the officer in the field.

¶ 264 The violation of Fourth Amend-ment rights requires special attentionwhen it has a chilling effect on FirstAmendment freedoms. Cf. NAACP v.Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2L.Ed.2d 1488 (1958).

¶ 265 The search warrants and subpoe-nas in this case are so broad and so ex-tensive that they make the fruits of thelegendary Watergate break-in look insig-nificant by comparison.12 After all, thespecial prosecutor has access to thousandsand thousands of electronic communica-tions about the 2010 election, Act 10, the2011–13 state budget, other legislation, allthe recall elections and the strategies andfundraising efforts employed in them,[ ], litigation, and the then-upcom-ing 2012 general election. As the sub-stance of this John Doe leaks out, as italready has, the search warrants and sub-poenas have an eerie similarSity142 toSLAPP suits in a civil context.13 SLAPPsuits have the effect, whether intended ornot, to cost defendants tremendous

12. On Memorial Day weekend in 1972, anintelligence gathering team from Richard Nix-on’s Committee to ReElect the Presidentbroke into the Democratic National Commit-tee’s (DNC) headquarters at the Watergatecomplex in Washington, D.C. The operativeswiretapped the telephones of the chairman ofthe DNC and the executive director of theAssociation of State Democratic Chairmen. Amember of the team also photographed cer-tain documents. One phone tap did not workand 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 wasforced to resign, in part for attempting tocover up a burglary to gain political intelli-gence that he did not personally authorize.

13. ‘‘SLAPP is an acronym for Strategic Law-suit Against Public Participation. Vultaggio v.Yasko, 215 Wis.2d 326, 359, 572 N.W.2d 450(1998) (Bradley, J., dissenting); Briggs v.Eden Council [19 Cal.4th 1106, 81 Cal.Rptr.2d 471], 969 P.2d 564, 565 n. 1 (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.


amounts of money, to extract privilegedinformation from them, and to cause thedefendants and others to withdraw fromthe political process out of fear of harass-ment.

¶ 266 The special prosecutor insists thathe had probable cause for all his investiga-tive efforts. This is sharply disputed. Inany event, probable cause for a searchwarrant may be wholly devoid of probablecause that the recipient of the search war-rant or subpoena or even the subject of thesearch warrant or subpoena has committedany crime. Rather, the supposed probablecause is that evidence that will aid in theconviction of some crime will be found inthe place to be searched, particularly if theitems to be seized include everythingfound at that place—here, the e-mail ac-counts of people who have been targeted.

¶ 267 This sort of probable cause mustbe weighed against the privacy being in-vaded by the search warrants and subpoe-nas. The special prosecutor has not beentargeting terrorists or mobsters who im-pose an imminent danger to society. Cov-ering up the breathtaking extent of theJohn Doe investigation through secrecyorders is highly problematic and cannotlast.14

S 143¶ 268 I conclude the following:

1. The search warrants and subpoenasissued on or about October 1, 2013, areinvalid because they were presented by aspecial prosecutor who had none of thepowers of a district attorney because hisappointment was invalid.

2. The search warrants and subpoenasissued on or about October 1, 2013, wereunconstitutionally overbroad because theycovered a time period before recall elec-tions were even contemplated, thereby ex-ceeding the subject matter of the investi-gation; included all periods of exemptionwithin the time period—246 days—therebypermitting secret investigation of lawfulFirst Amendment activities; lacked thelevel of particularity required as to thosethings that might lawfully be seized; andimproperly invaded the privacy of personswho were not suspects by seeking informa-tion virtually without limitation.

3. The search warrants and subpoenasissued in September and December 2012were unconstitutionally overbroad, for thereasons stated in point 2, but especiallybecause they dated back more than 21months before recalls were contemplated,a period unrelated to the recall elections in2011 and 2012, the purported subject ofthe John Doe.

¶ 269 Consequently, I would affirm thedecision of Judge Peterson to quash thesubpoenas and return S 144seized propertyand expand his ruling to cover the searchwarrants and subpoenas issued in Septem-ber and December of 2012.

VI

¶ 270 Chapter 11 of the Wisconsin Stat-utes is the source of most Wisconsin statu-tory law on the regulation of campaignfinance. Much of the chapter was createdin 1974, Chapter 334, Laws of 1973, in thewake of the Watergate scandal. Various

14. The precise scope of a permissible secrecyorder will TTT vary from proceeding to pro-ceeding. However, as we observed in[State v. O’Connor, 77 Wis.2d 261, 252N.W.2d 671 (1977) ], ‘‘[s]ecrecy of John Doeproceedings and the records thereof is notmaintained for its own sake.’’ Id. at 283,252 N.W.2d 671. The policy underlyingsecrecy is directed to promoting the effec-

tiveness of the investigation. Id. at 286,252 N.W.2d 671. Therefore, any secrecyorder ‘‘should be drawn as narrowly as isreasonably commensurate with its pur-poses.’’

State ex rel. Unnamed Person No. 1 v. State,2003 WI 30, ¶ 61, 260 Wis.2d 653, 688–89,660 N.W.2d 260.


provisions have been revised over theyears, but the 2011–12 version of the stat-utes contains a number of provisions thatare suspect or unconstitutional. These willbe discussed below.

A

¶ 271 Section 11.01 sets out the defini-tions used in Chapter 11. Subsection (16)defines ‘‘political purpose,’’ which JudgePeterson and the majority opinion deemcritical to the interpretation and enforce-ment of the chapter.

¶ 272 Section 11.01(16) reads in part asfollows:

(16) An act is for ‘‘political purposes’’when it is done for the purpose of influ-encing the election or nomination forelection of any individual to state orlocal office, for the purpose of influenc-ing the recall from or retention in officeof an individual holding a state or localoffice, TTT or for the purpose of influenc-ing a particular vote at a referendum.In the case of a candidate, or a commit-tee or group which is organized primari-ly for the purpose of influencing theelection or nomination for election of anyindividual to state or local office, for thepurpose of influencing the recall from orretention in office of an individual hold-ing a S 145state or local office, or for thepurpose of influencing a particular voteat a referendum, all administrative andoverhead expenses for the maintenanceof an office or staff which are used prin-cipally for any such purpose are deemedto be for a political purpose.

(a) Acts which are for ‘‘political pur-poses’’ include but are not limited to:

1. The making of a communicationwhich expressly advocates the election,defeat, recall or retention of a clearlyidentified candidate or a particular voteat a referendum.

2. The conduct of or attempting toinfluence an endorsement or nominationto be made at a convention of politicalparty members or supporters concern-ing, in whole or in part, any campaignfor state or local office.

(b) A ‘‘political purpose’’ does not in-clude expenditures made for the purposeof supporting or defending a person whois being investigated for, charged withor convicted of a criminal violation ofstate or federal law, or an agent ordependent of such a person.

¶ 273 ‘‘Political purpose’’ is a very impre-cise term, especially when it is defined byphrases such as ‘‘influencing the recallfrom or retention in office of an individu-al.’’ (Emphasis added.) What does ‘‘influ-encing’’ mean?

¶ 274 Paragraph (a) provides that ‘‘Actswhich are for ‘political purposes’ includebut are not limited to: 1. The making of acommunication which expressly advocatesthe election, defeat, recall or retention of aclearly identified candidateTTTT’’ (Empha-sis added.) Plainly, the statute seeks toreach ‘‘acts’’ beyond express advocacy that‘‘influence’’ elections. Consequently, thereare no bright lines in the subsection, asS 146drafted, leaving it so vague that it hasthe potential of chilling constitutionallypermissible activity that permits no regu-lation.

¶ 275 The definition of ‘‘political pur-pose’’ has been controversial for years.The original definition, dating back to1974, read, in part: ‘‘an act is for ‘politicalpurposes’ when, by its nature, intent ormanner it directly or indirectly influencesor tends to influence voting at any elec-tion.’’

¶ 276 Attorney General Bronson La Fol-lette was asked to address this definitionin an opinion. The Attorney Generalwrote:


This section TTT evidences a legisla-tive intent to restrict and regulate abroad scope of political activity, includ-ing that which may not be directly relat-ed to the electoral process. This sweep-ing effort to regulate First Amendmentactivity, in light of Buckley, may be con-stitutionally overbroad unless subject tonarrow interpretation and application.

TTTT

The Court adopted the standard of ‘‘ex-press advocacy’’ of the election or defeatof a particular candidate as an accept-ably narrow definition of activity subjectto regulation.

TTTT

I am of the opinion that the ‘‘express’’advocacy standard should be applied bythe [State Elections] Board to all phasesof political activity regulated under ch.11.

65 Wis. Op. Att’y Gen. 145, 151–52 (1976).

¶ 277 The Elections Board ran into trou-ble in 1999 in Elections Board v. Wiscon-sin Manufacturers & Commerce, 227Wis.2d 650, 597 N.W.2d 721 (1999), in S 147adispute about express advocacy. The is-sue appeared again in Wisconsin Prosperi-ty Network v. Myse, 2012 WI 27, 339Wis.2d 243, 810 N.W.2d 356.

¶ 278 When the government enacts crim-inal penalties to regulate First Amend-ment activities that do not constitute ex-press advocacy, it is standing on perilousground.

B

¶ 279 The affidavit supporting the com-mencement of the John Doe twice citedWis. Stat. § 11.26, which is the statuteentitled ‘‘Limitations on contributions.’’This statute limits individual contributionsto the campaign committee of a candidatefor governor or lieutenant governor to$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 contribu-tions from a committee other than a politi-cal party or legislative campaign commit-tee to the committee of a candidate forgovernor to 4% of the value of the dis-bursement level in the schedule under Wis.Stat. § 11.31. Wis. Stat. § 11.26(2)(a).This now amounts to $43,128. Wis. Stat.§ 11.31(1)(a). However, a committee oth-er than a party committee may contributeonly $1,000 to the committee of a candidatefor state senator. Wis. Stat. § 11.26(2)(b).

¶ 280 The individual contribution limitsin the statute for candidates for governor,lieutenant governor, and state senatorwere exactly the same in 2011–2012 asthey were in 1975. See Wis. Stat.§ 11.26(1)(a) and (b) (1975–76). If the lim-its on individual contributions to the com-mittees of these candidates had kept pacewith the buying power of our currency, thecontribution limits at the start of 2011S 148would have had to be 4.42 times high-er—i.e., $44,201.67 for governor. Over theyears the limit on contributions from acommittee to the committee of a candidatefor state senator increased from $500 in1975 to $1,000 in 2011, provided the candi-date in 1975 had no primary. Wis. Stat.§§ 11.26(2)(b) and 11.31(1)(e). If the 1975candidate had a primary, the maximumcommittee contribution for the electionwas $800.

¶ 281 Individual contribution limits havebeen consistently upheld beginning withBuckley, 424 U.S. at 23–35, 96 S.Ct. 612.Buckley acknowledged, however, that giv-en ‘‘the important role of contributions infinancing political campaigns, contributionrestrictions could have a severe impact onpolitical dialogue if the limitations preventcandidates and political committees fromamassing resources necessary for effectiveadvocacy.’’ Id. at 21, 96 S.Ct. 612. Inas-much as static contribution limits render


contributions today worth only 25 percentof their value 35 years ago, many candi-dates are forced to look for support fromexpenditures outside their own commit-tees.

C

¶ 282 Subsection (9) of Wis. Stat. § 11.26is critically important in relation to thecontribution limits. It provides:

(9)(a) No individual who is a candi-date for state or local office may receiveand accept more than 65 percent of thevalue of the total disbursement level de-termined under s. 11.31 for the office forwhich he or she is a candidate duringany primary and election campaign com-bined from all committees subject to afiling requirement, including politicalparty and legislative campaign commit-tees.

S 149(b) No individual who is a candi-date for state or local office may receiveand accept more than 45 percent of thevalue of the total disbursement level de-termined under s. 11.31 for the office forwhich he or she is a candidate duringany primary and election campaign com-bined from all committees other thanpolitical party and legislative campaigncommittees subject to a filing require-ment.

¶ 283 The practical effect of subsection(9) is that all political party committeesmay contribute no more than $700,830 di-rectly to the campaign committee of acandidate for governor, nor more than$22,425 directly to the committee of a can-didate for state senator, except for exemptcontributions under Wis. Stat.§ 11.26(13m). However, in all actual elec-tions, including recall elections, every dol-lar received from a non-party committeereduces the amount that the candidatemay receive from a party committee.

¶ 284 Political action committees collec-tively may contribute no more to a candi-date for governor than 45 percent of theschedule in Wis. Stat. § 11.31, namely,$486,090, or to a candidate for state sena-tor, no more than $15,525, except for ex-empt contributions under Wis. Stat.§ 11.26(13m). The effect of this law isobvious. Political party committees sin-gularly or collectively and political actioncommittees collectively are never permit-ted—at the same time—to give the maxi-mum contributions allowed by law forregular election expenses. In fact, somepolitical action committees may be pre-cluded altogether from making a directcontribution to the committee of a candi-date for governor or a candidate for statesenator.

¶ 285 To illustrate, all non-party commit-tees may contribute only $15,525 to a statesenate candidate. Thus, only 15 politicalaction committees may S 150make the maxi-mum contribution of $1,000 to the commit-tee of a candidate for state senator. Thesixteenth committee is limited to $525.The seventeenth committee and all othersuch committees cannot contribute at all.The contributions of these non-party com-mittees must be reduced if party commit-tees give more than $6,900.

¶ 286 Subsection (9) was challenged inthe Wisconsin Supreme Court in Gard v.Wisconsin State Elections Board, 156Wis.2d 28, 456 N.W.2d 809 (1990). JohnGard, running in a 1987 special election tofill a vacancy in the Assembly, won a hotlycontested primary and a close generalelection. In the process, he received$7,607.32 more from political party com-mittees than the total $11,213 from allcommittees permitted by subsection (9).He was prosecuted by the state electionsboard. The petitioners argued that Wis.Stat. § 11.26(9)(a) was unconstitutional onseveral grounds.


First, [petitioners] claim that the aggre-gate limit on the amount of money com-mittees may contribute to a candidate’scampaign violates committee members’first amendment rights to political ex-pression because it completely barssome committees from making even asymbolic expression of support evi-denced by a contribution once the aggre-gate limit has been reached. Second,they argue that the aggregate limit oncommittee contributions is, in effect, alimit on the candidate’s ability to spend,which impermissibly burdens a candi-date’s freedom of speech guaranteed bythe first amendment under Buckley v.Valeo, 424 U.S. 1, 96 S.Ct. 612, 46L.Ed.2d 659 (1976). Third, they assertthat the statute impermissibly burdensfreedom of association also guaranteedby the first amendment by encouragingindividuals to disassociate themselvesfrom committees. Fourth, petitionersargue that the statute S 151imposes agreater burden on the first amendmentrights of committees than it does on thefirst amendment rights of individuals inviolation of the equal protection clausesof the United States and Wisconsin Con-stitutions. Petitioners also assert thatthe statute imposes a greater burden onthe first amendment rights of commit-tees who contribute ‘‘late’’ in a campaignthan on committees who contribute ‘‘ear-ly’’ in a campaign in violation of equalprotection guarantees.

Id. at 36, 456 N.W.2d 809.

¶ 287 This court upheld subsection (9) ofthe 1974 statute, holding that the state hada compelling interest, namely, to preventcorruption or the appearance of corrup-tion, and that the provision was narrowlytailored to accomplish this objective.

¶ 288 The effect of the Gard decision hasbeen to weaken political parties and toencourage non-party committees to engage

in issue advocacy spending on campaigns,instead of making direct, reportable contri-butions to candidates. This dynamic hasbeen recognized for decades.

¶ 289 More recently, however, subsec-tion (9) has come under significant scruti-ny. In September 2014, United StatesDistrict Judge Rudolph Randa entered anorder enjoining the GAB from enforcingsubsection (9). CRG Network v. Barland,48 F.Supp.3d 1191 (E.D.Wis. Sept. 5,2014). Judge Randa noted that the Su-preme Court has demonstrated ‘‘increasingimpatience’’ with the type of ‘‘ ‘prophylax-is-upon-prophylaxis’ approach’’ created bystatutes such as Wis. Stat. § 11.26(9), andthat the other provisions in place to pro-hibit unlawful circumvention of the basecontribution limit rendered subsection (9)unnecessary and unconstitutional. Id. at1195–96. Following the issuance of JudgeRanda’s order, the GAB issued a pressS 152release stating it would not seek en-forcement of subsection (9). Mike B. Wit-tenwyler & Jodi E. Jensen, Decoding theMaze: Wisconsin’s Campaign FinanceLaws, 87 Wis. Law. 22, 25 (Oct. 2014).

D

¶ 290 Subsection (4) of § 11.26 reads:No individual may make any contribu-

tion or contributions to all candidates forstate and local offices and to any individ-uals who or committees which are sub-ject to a registration requirement unders. 11.05, including legislative campaigncommittees and committees of a politicalparty, to the extent of more than a totalof $10,000 in any calendar year.

¶ 291 Statutes limiting total contribu-tions, as opposed to capping contributionsto one candidate, were declared unconsti-tutional in McCutcheon v. Federal ElectionCommission, ––– U.S. ––––, 134 S.Ct.1434, 188 L.Ed.2d 468 (2014). In short,Wis. Stat. § 11.26(4) is unconstitutional.


¶ 292 Many people have violated subsec-tion (4), often unintentionally, since its en-actment. The State has pursued someviolators criminally. Cf. State v. Gardner,No. 2011CF137, Washington Cnty., Wis.,Cir. Ct. (Apr. 11, 2011).

¶ 293 Important for this review is thefact that the Government AccountabilityBoard insisted on enforcing Wis. Stat.§§ 11.26(4) and 11.26(9) during the recallelections. See MEMORANDUM fromKevin Kennedy to Interested Persons andCommittees Involved With Recall Efforts,March 15, 2011. Kennedy’s memo alsosought to limit the exception to contribu-tion limits for certain recall expenses.Wis. Stat. § 11.26(13m).

S 153E

¶ 294 The overall effect of Wisconsin’scomplicated, confusing, outdated, andsometimes unconstitutional campaign fi-nance statutes is to compel candidates todepend increasingly upon expenditures by501(c)(4) committees that engage in issueadvocacy.15

¶ 295 The special prosecutor concedesthat without ‘‘the authorization and con-sent of [a] candidate committee,’’ an expen-diture is independent and constitutionallyprotected. However, the special prosecu-tor contends that a committee’s ‘‘coordina-tion’’ with a candidate committee elimi-nates many constitutional protections, andthat ‘‘there can never be ‘coordinated’fundraising between a candidate and a tru-ly independent third party.’’

¶ 296 In view of the above, the pivotalconcern with application of Chapter 11’scampaign finance laws is Wis. Stat.§ 11.10(4). This subsection reads:

(4) No candidate may establish morethan one personal campaign committee.Such committee may have subcommit-tees provided that all subcommitteeshave the same treasurer, who shall bethe candidate’s campaign treasurer.The treasurer shall deposit all funds re-ceived in the campaign depository ac-count. Any committee which is orga-nized or acts with the cooperation of orupon consultation with a candidate oragent or authorized committee of a can-didate, or which acts in concert with orat the request or suggestion of a candi-date or agent or authorized committeeof a candidate is deemed a subcommit-tee of the candidate’s personal cam-paign committee.

S 154(Emphasis added.)¶ 297 In evaluating the meaning of this

provision, we must understand the defini-tion of ‘‘committee’’ in Wis. Stat.§ 11.01(4):

‘‘Committee’’ or ‘‘political committee’’means any person other than an individ-ual and any combination of 2 or morepersons, permanent or temporary, whichmakes or accepts contributions or makesdisbursements, whether or not engagedin activities which are exclusively politi-cal, except that a ‘‘committee’’ does notinclude a political ‘‘group’’ under thischapter.

¶ 298 Put together, these two provisionsare vague and absurdly overbroad. Com-mittees include political party committeesand legislative campaign committees.Committees include campaign committeesof a candidate’s fellow party members.Committees include political action com-mittees of every description. The two sec-tions create dire consequences for candi-dates who exercise the most fundamental

15. This was especially evident in the 2011Wisconsin Supreme Court election in whichboth candidates were bound by minimal con-

tribution limits and tight spending limits be-cause they accepted public funding.


political discourse with committees of thecandidate’s own party and with the candi-date’s most ardent allies. By fundamentaldiscourse, I mean ‘‘cooperation,’’ ‘‘consulta-tion,’’ ‘‘requests’’ for support, and ‘‘sugges-tions.’’

¶ 299 Any person who believes that thestatute does not apply to coordination be-tween a candidate and his state politicalparty must understand that the specialprosecutor has in his possession 39 monthsof emails from[ ], obtained bysecret search warrant. Anyone who be-lieves that the special prosecutor was notinterested in coordination among the Re-publican candidates in the state senate re-calls would be mistaken.

S 155¶ 300 Turning to non-party commit-tees, how does Wis. Stat. § 11.10(4) applyto a candidate who answers a candidatequestionnaire from a committee, whichasks the candidate pointed questions onissues, then asks whether the candidatewill accept an endorsement and campaigncontributions? Surely, a non-judicial can-didate is permitted to ask for financialsupport.

¶ 301 The ‘‘coordination’’ statute cannotbe constitutional as written because itmakes the candidate who behaves as aperfectly normal candidate, meeting withorganizations and discussing plans, issues,and themes, run the intolerable risk ofimpairing a committee that does no morethan engage in issue advocacy. The com-mittee is neutered if it is made a subcom-mittee of the candidate’s committee be-cause it cannot exceed the candidate’scontribution limits. The committee is dis-qualified because it cannot receive and

spend corporate dollars as a subcommitteeof a candidate, and it cannot maintain theanonymity of its donors, as permitted bylaw, if it engages in issue advocacy thathelps the candidate.

¶ 302 Under the statute as written, acandidate must surrender his FirstAmendment freedom to communicate if heis to prevent criminal liability.

¶ 303 A more carefully drafted statutemight be able to pass constitutional mus-ter. But not this statute, in the circum-stances of this case. And no statute canvest government regulators and specialprosecutors with broad discretion to decidewhether First Amendment activities vio-late the law.

¶ 304 In my view, Wis. Stat. § 11.01(16)is unconstitutional if it is not limited toexpress advocacy; Wis. Stat. § 11.10(4) isunconstitutional as drafted; Wis. Stat.§ 11.26(4) is unconstitutional; Wis. Stat.S 156§ 11.26(9) is unconstitutional; and Wis.Stat. § 11.26(13m) must be broadly inter-preted under the circumstances facingWisconsin in 2011–2012. As a result, thespecial prosecutor cannot sustain the theo-ries of prosecution that served as the foun-dation for his John Doe investigation.

¶ 305 For the foregoing reasons, I re-spectfully concur in the decision to dismissthe John Doe investigation.

¶ 306 I am authorized to state that ChiefJustice PATIENCE DRAKE ROGGEN-SACK joins Sections IV and V of thisopinion, and that Justices ANNETTEKINGSLAND ZIEGLER and MICHAELJ. GABLEMAN join Section IV of thisopinion.


S 157

S 158¶ 307 ANNETTE KINGSLANDZIEGLER, J. (concurring).

During pre-dawn darkness in October2013, several armed law enforcement offi-cers wearing flak jackets, carrying batter-ing rams, and using bright floodlights exe-cuted secret John Doe search warrants inthe homes of Wisconsin residents. What

was the prosecution searching for? Theprosecution was in search of documentsand electronic evidence, including personalcomputers and cell phones, to support al-leged violations of Wisconsin’s campaignfinance law. The warrants sought evi-dence that had been around for more thanfour years. The warrants were executed


shortly before morning, days after a judgesigned them, while it was still dark out-side. Law enforcement certainly has, andshould have, a great deal of discretionwhen it comes to how and when a warrantwill be executed, but ultimately courts mayreview the reasonableness of that execu-tion.1

¶ 308 Because these searches were exe-cuted in pre-dawn darkness, they are es-sentially what courts and legal commen-tators refer to as a nighttime search.2

Because no Wisconsin law specifically ad-dresses the legality of nighttime searchesof private homes, under the existing factsof this case, these S 159pre-dawn searchescould raise questions as to whether theywould pass constitutional muster. I rec-ognize that because no challenge hasbeen made to the execution of the war-rants, the record is without explanationas to why the search warrants were exe-cuted as they were. I also recognize thatthe State might have had a legitimatereason for executing the search warrantspre-dawn in paramilitary fashion.

¶ 309 I join the majority opinion in allthree cases. I write separately to explainthat, even if the search warrants werelawfully issued, the execution of themcould be subject to the reasonablenessanalysis of the Fourth Amendment to theUnited States Constitution and the Wis-consin Constitution’s counterpart.3 A to-tality of the circumstances analysis could

include consideration of, among otherthings, the timing of the issuance and exe-cution of the warrants, the manner inwhich the warrants were executed, wheth-er public or officer safety concerns justi-fied the manner of execution, and whattype of evidence was being sought.

I. FUNDAMENTAL PRINCIPLES

¶ 310 The Fourth Amendment ‘‘con-tain[s] two separate clauses, the first pro-tecting the basic right to be free fromunreasonable searches and seizures andthe second requiring that warrants be par-ticular and supported by probable cause.’’Payton v. New York, 445 U.S. 573, 584,100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).The Fourth Amendment’s second clauseprovides that ‘‘no warrants shall issue, butupon probable cause, supported by oath oraffirmation, and S 160particularly describingthe place to be searched, and the person orthings to be seized.’’ U.S. Const. amend.IV. With respect to the other clause, ‘‘[t]heFourth Amendment to the United StatesConstitution and Article I, Section 11 ofthe Wisconsin Constitution protect ‘[t]heright of the people to be secure in theirpersons, houses, papers, and effects,against unreasonable searches and sei-zures.’ ’’ 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

1. ‘‘ ‘[I]t is generally left to the discretion ofthe executing officers to determine the detailsof how best to proceed with the performanceof a search authorized by the warrant—sub-ject of course to the general Fourth Amend-ment protection against unreasonablesearches and seizures.’ ’’ State v. Sveum,2010 WI 92, ¶ 53, 328 Wis.2d 369, 787N.W.2d 317 (alteration added in Sveum )(quoting Dalia v. United States, 441 U.S. 238,257, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979))(internal quotation marks omitted).

2. For a more comprehensive discussion of thelaw regarding nighttime searches, see ClaudiaG. Catalano, Annotation, Propriety of Execu-tion of Search Warrants at Nighttime, 41A.L.R.5th 171 (1996).

3. ‘‘Even if a court determines that a searchwarrant is constitutionally valid, the mannerin which the warrant was executed remainssubject to judicial review.’’ Sveum, 328Wis.2d 369, ¶ 53, 787 N.W.2d 317 (citingState v. Andrews, 201 Wis.2d 383, 390, 549N.W.2d 210 (1996)).


¶ 311 ‘‘ ‘The touchstone of the FourthAmendment is reasonableness.’ ’’ State v.Tullberg, 2014 WI 134, ¶ 29, 359 Wis.2d421, 857 N.W.2d 120 (quoting Florida v.Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801,114 L.Ed.2d 297 (1991)). ‘‘ ‘The FourthAmendment does not proscribe all state-initiated searches and seizures; it merelyproscribes those which are unreasonable.’ ’’Id. (quoting Jimeno, 500 U.S. at 250, 111S.Ct. 1801). ‘‘Constitutional reasonable-ness relates not only to the grounds for asearch or seizure but S 161to the circum-stances surrounding the search or sei-zure’s execution.’’ State v. Henderson,2001 WI 97, ¶ 18, 245 Wis.2d 345, 629N.W.2d 613 (citing Tennessee v. Garner,471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1(1985)). ‘‘The determination of reason-ableness is made by reference to the par-ticular circumstances of each individualcase, and balances the nature and qualityof the intrusion on the individual’s FourthAmendment interests against the impor-tance of the governmental interests al-leged to justify the intrusion.’’ Id. (inter-nal quotation marks omitted) (citationsomitted). In other words, ‘‘reasonable-ness’’ is ‘‘determined by balancing the de-gree to which a challenged action intrudeson an individual’s privacy and the degreeto which the action promotes a legitimategovernment interest.’’ Green v. Butler,420 F.3d 689, 694 (7th Cir.2005) (citingUnited States v. Knights, 534 U.S. 112,118–19, 122 S.Ct. 587, 151 L.Ed.2d 497(2001); Ohio v. Robinette, 519 U.S. 33, 39,

117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). Acourt determines whether a search wasreasonably executed by considering ‘‘thetotality of the circumstances.’’ UnitedStates v. Banks, 540 U.S. 31, 35–36, 124S.Ct. 521, 157 L.Ed.2d 343 (2003).

A. Constitutional Protection of a Home

¶ 312 ‘‘The people’s protection againstunreasonable search and seizure in their‘houses’ was drawn from the English com-mon-law maxim, ‘A man’s home is his cas-tle.’ ’’ Minnesota v. Carter, 525 U.S. 83,94, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)(Scalia, J., concurring). ‘‘Courts have longextolled the importance of the home, not-ing that the [Fourth Amendment] wasdrafted in part to codify ‘the overridingrespect for the sanctity of the home thathas been embedded in our traditions sincethe 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, 100 S.Ct. 1371). The United StatesSupreme Court has noted S 162that ‘‘the‘physical entry of the home is the chief evilagainst which the wording of the FourthAmendment is directed.’ ’’ Payton, 445U.S. at 585, 100 S.Ct. 1371 (quoting UnitedStates v. United States District Court, 407U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d752 (1972)). ‘‘The Fourth Amendmentprotects the individual’s privacy in a vari-ety of settings. In none is the zone ofprivacy more clearly defined than whenbounded by the unambiguous physical di-mensions of an individual’s home—a zone

4. The Fourth Amendment to the United StatesConstitution provides in full:

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shallnot be violated, and no Warrants shall is-sue, but upon probable cause, supported byOath or affirmation, and particularly de-scribing the place to be searched, and thepersons or things to be seized.

Article I, Section 11 of the Wisconsin Consti-tution states:

The right of the people to be secure in theirpersons, houses, papers, and effects againstunreasonable searches and seizures shallnot be violated; and no warrant shall issuebut upon probable cause, supported by oathor affirmation, and particularly describingthe place to be searched and the persons orthings to be seized.


that finds its roots in clear and specificconstitutional terms: ‘The right of the peo-ple to be secure in their TTT houses TTT

shall not be violated.’ ’’ Id. at 589, 100S.Ct. 1371 (ellipses added in Payton ).‘‘That language unequivocally establishesthe proposition that ‘[a]t the very core [ofthe Fourth Amendment] stands the rightof a man to retreat into his own home andthere be free from unreasonable govern-mental intrusion.’ ’’ Id. at 589–90, 100S.Ct. 1371 (alterations added in Payton )(quoting Silverman v. United States, 365U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734(1961)).5

S 163B. Nighttime Search of a Home

¶ 313 A nighttime search of a home con-flicts with the fact that ‘‘[a] home is enti-tled to special dignity and special sancti-ty.’’ Holt v. State, 17 Wis.2d 468, 477, 117N.W.2d 626 (1962). ‘‘Searches of thedwelling house were the special object ofthis universal condemnation of official in-trusion. Nighttime search was the evil inits most obnoxious form.’’ Monroe v.Pape, 365 U.S. 167, 210, 81 S.Ct. 473, 5L.Ed.2d 492 (1961) (Frankfurter, J., dis-senting in part). ‘‘The Supreme Court hasconsistently recognized that a policesearch of a residence at night is a greater

intrusion upon an individual’s privacy in-terest than an ordinary search.’’ UnitedStates v. Gibbons, 607 F.2d 1320, 1326 n.15 (10th Cir.1979). In Jones v. UnitedStates, the Supreme Court stated that itwas ‘‘difficult to imagine a more severeinvasion of privacy than the nighttime in-trusion into a private homeTTTT’’ Jones v.United States, 357 U.S. 493, 498, 78 S.Ct.1253, 2 L.Ed.2d 1514 (1958); see also Cool-idge v. New Hampshire, 403 U.S. 443, 477,91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (de-scribing a ‘‘midnight entry’’ of a home asan ‘‘extremely serious intrusion’’); UnitedStates v. Reed, 572 F.2d 412, 422 (2d Cir.1978) (citations omitted) (‘‘[T]he FourthAmendment protects citizens’ reasonableexpectations of privacy TTT [and] one’s rea-sonable expectation of privacy in the homeis entitled to a unique sensitivity fromfederal courts.’’); United States v. Mar-tinez–Fuerte, 428 U.S. 543, 561, 96 S.Ct.3074, 49 L.Ed.2d 1116 (1976) (citationomitted) (noting that ‘‘the sanctity of pri-vate dwellings[ is] ordinarily afforded themost stringent Fourth Amendment protec-tion’’).6

S 164¶ 314 ‘‘At common law, prior to theadoption of the Fourth Amendment, there

5. The Supreme Court has noted that a searchof a cell phone or personal computer couldcarry some of the implications of a homesearch. The Court noted that ‘‘many [cellphones] are in fact minicomputers that alsohappen to have the capacity to be used as atelephone.’’ Riley v. California, 573 U.S.––––, 134 S.Ct. 2473, 2489, 189 L.Ed.2d 430(2014). Given the ‘‘storage capacity of cellphones,’’ ‘‘a cell phone search would typicallyexpose to the government far more than themost exhaustive search of a house: A phonenot only contains in digital form many sensi-tive records previously found in the home; italso contains a broad array of private infor-mation never found in a home in anyformTTTT’’ Id. at 2489, 2491. In fact, somecourts have required warrants to be moreparticular than just seeking all e-mails. SeeIn re Applications for Search Warrants for

Info. Associated with Target Email Ac-counts/Skype Accounts, No. 13–MJ–8163–JPO,2013 WL 4647554, at *8 (D.Kan. Aug. 27,2013) (holding that ‘‘the warrants proposedby the government violate the Fourth Amend-ment’’ because they did not particularly de-scribe the e-mails to be searched).

6. ‘‘Because the fourth amendment’s proscrip-tions against unreasonable searches are virtu-ally identical to those in art. I, sec. 11 of theWisconsin Constitution, state law of searchand seizure conforms to that developed underfederal law.’’ State v. Long, 163 Wis.2d 261,266, 471 N.W.2d 248 (Ct.App.1991) (citingState v. Reed, 156 Wis.2d 546, 551, 457N.W.2d 494 (Ct.App.1990)). See also State v.Tullberg, 2014 WI 134, ¶ 29 n. 17, 359 Wis.2d421, 857 N.W.2d 120.


was a strong aversion to nighttimesearches.’’ United States ex rel. Boyancev. Myers, 398 F.2d 896, 897 (3d Cir.1968)(citations omitted). ‘‘This aversion wasthen and is now primarily focused on in-trusions into the home.’’ United States v.Tucker, 313 F.3d 1259, 1263 (10th Cir.2002) (citing Gibbons, 607 F.2d at 1326).‘‘Nighttime searches were regarded withrevulsion [at common law] because of theindignity of rousing people from theirbeds.’’ Com. v. Grimshaw, 413 Mass. 73,595 N.E.2d 302, 304 (1992) (citing Com. v.DiStefano, 22 Mass.App.Ct. 535, 495N.E.2d 328, 332 (1986)). ‘‘The significanceof this aversion of the common law tonighttime searches is underscored by theSupreme Court’s reminder that the searchand seizure clause is properly ‘construed inthe light of what was deemed an unreason-able search and seizure when it wasadopted.’ ’’ Boyance, 398 F.2d at 897(quoting Carroll v. United States, 267 U.S.132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925)).When a home is invaded during pre-dawndarkness of night, special protectionsshould apply because of the sanctity of ahome. This is not to say that a homesearch can never occur in pre-dawn dark-

ness, but when it does, that timing couldbe considered as a part of the totality ofthe circumstances reasonableness analysisof the Fourth Amendment.

¶ 315 Although Wisconsin does not havea statute directing that a judge must de-termine whether a nighttime search is jus-tified, 23 states have statutory protectionsthat allow a nighttime search only upon a‘‘special showing and authorization.’’Wayne R. LaSFave,165 Search and Seizure§ 4.7(b) (5th ed. 2014). Similarly, theFederal Rules of Criminal Procedure im-plement the essentials of the FourthAmendment by requiring that a warrantbe served ‘‘during the daytime, unless thejudge, for good cause expressly authorizesexecution at another time.’’ Fed.R.Crim.P. 41(e)(2)(A)(ii).7 The federal ruleand these 23 states recognize and codifyFourth Amendment protections againstunreasonable nighttime searches and sei-zures. See United States v. Searp, 586F.2d 1117, 1124 (6th Cir.1978) (holdingthat Federal Rule 41’s ‘‘night search provi-sions TTT explicate fundamental purposesof the Fourth Amendment’’ (internal quo-tation marks omitted) (citation omitted)).8

7. The Federal Rules of Criminal Procedurerequire special justification for a nighttimesearch. Fed.R.Crim.P. 41(e)(2)(A)(ii). How-ever, ‘‘ ‘[d]aytime’ means the hours between6:00 a.m. and 10:00 p.m. according to localtime.’’ Fed.R.Crim.P. 41(a)(2)(B). Althoughthis Federal Rule may have been technicallycomplied with because the searches at issuemight have begun a few minutes after 6:00a.m., technical compliance with the FederalRule does not automatically render thesesearches immune from constitutional scrutinyin this state court matter. While federal rulesattempt to provide for consistency from stateto state, courts have often taken a practicalapproach when defining ‘‘nighttime’’ forFourth Amendment purposes. See Claudia G.Catalano, Annotation, Propriety of Executionof Search Warrants at Nighttime, 41 A.L.R.5th171 (1996). See also United States v. Palmer,3 F.3d 300, 303 (9th Cir.1993) (holding that

Federal Rule of Criminal Procedure 41 didnot apply because ‘‘[t]he investigation in thiscase was initiated and controlled by the locallaw enforcement officials involved’’). In thecase at issue, although the Special Prosecutoris a former Federal Prosecutor, his investiga-tion of this matter was not in the federalsystem. This investigation was initiated andcontrolled by local law enforcement officials.

8. A violation of these rules may result in sup-pression of the evidence if the violation risesto constitutional proportion. See, e.g., UnitedStates v. Bieri, 21 F.3d 811, 816 (8th Cir.1994)(citation omitted) (‘‘We apply the exclusionaryrule to violations of [the nighttime searchprovision of] Rule 41 only if a defendant isprejudiced or reckless disregard of properprocedure is evident.’’); see also United Statesv. Berry, 113 F.3d 121, 123 (8th Cir.1997)(noting that a violation of Federal Rule of


S 166¶ 316 When a court is confronted witha challenge to a search that is conducted inthe pre-dawn darkness of night, it mightconsider whether the exigencies of the sit-uation justify the greater intrusiveness ofa search at this time. A court could lookat factors including, but not limited to, thetiming of the issuance and execution of thewarrants, the manner in which the war-rants were executed, whether public orofficer safety concerns justified the man-ner of execution, and what type of evi-dence was being sought. Law enforce-ment is certainly endowed with a greatdeal of discretion regarding how and whento execute a warrant, but ultimately acourt could be called upon to review thereasonableness of that execution under atotality of the circumstances analysis.

¶ 317 Certainly, the necessity of immedi-ate police action may be evident from thefacts and circumstances of the situation.Warrant execution in some criminal mat-ters, such as some human trafficking ordrug cases, may militate in favor of awarrant being executed at night or in aforceful manner because the criminal activ-ity is likely occurring at night, evidencemay likely be lost if law enforcement waits,or dangerous activity is afoot. ‘‘It hasbeen held that the danger of destruction orremoval of the evidence is sufficient reasonfor nighttime execution of a search war-rant, in part because such circumstancescould even constitute exigent circum-stances for a search without a warrant.’’S 167Tucker, 313 F.3d at 1265 (citations omit-ted). See, e.g., United States v. Howard,532 F.3d 755, 760–61 (8th Cir.2008) (up-

holding a nighttime search because a confi-dential informant advised police that drugtrafficking occurred in the home ‘‘duringall hours of the night’’); Fair v. State, 284Ga. 165, 664 S.E.2d 227, 235 (2008) (up-holding a 1:15 a.m. search ‘‘because theofficers knew from experience that thepeak time for drug dealers to conduct busi-ness was after midnight’’). Law enforce-ment needs a wide berth when determin-ing how and when to execute a warrant,but under the totality of the circumstances,the execution of the warrant must still bereasonable in order to pass constitutionalmuster.

II. THE TOTALITY OF THECIRCUMSTANCES

¶ 318 With Fourth Amendment princi-ples in mind, understanding that the rec-ord is not complete because no challengehas been made to the warrant execution,the following discussion will nonethelessendeavor to consider the timing of theissuance and execution of the warrants, themanner of execution, whether public orofficer safety concerns existed, and whattype of evidence was being sought.

A. The Timing of the Issuance andExecution of the Warrants

¶ 319 In the case at issue, InvestigatorDean Nickel obtained two secret John Doewarrants from Reserve Judge BarbaraKluka to search the homes of UnnamedMovants Nos. 6 and 7. The warrants wereobtained in the course of a secret JohnDoe investigaStion.9168 Those warrants and

Criminal Procedure 41’s nighttime searchprovision can be ‘‘of constitutional magni-tude’’).

9. A John Doe proceeding, known as ‘‘JohnDoe I,’’ was commenced in the spring of 2010‘‘for the purpose of investigating the allegedmisuse of public resources in the MilwaukeeCounty Executive’s office.’’ Majority op.,

¶ 14. The John Doe I investigation ‘‘triggereda second John Doe proceeding (John Doe II),the investigation at issue here.’’ Id., ¶ 15.On August 10, 2012, Milwaukee County Assis-tant District Attorney David Robles filed apetition for the commencement of John DoeII in the Milwaukee County circuit court. Id.On September 5, 2012, ‘‘Reserve Judge Klukaauthorized the commencement of the John


their supporting affidavit did not set forthany particular time at which, or manner inwhich, the warrants would be executed.Unlike many warrants that must be exe-cuted at nighttime for fear of the evidencebeing destroyed or removed from the loca-tion or because of public or officer safetyreasons, much of this evidence had beensitting on computers and in cyberspace foryears.

¶ 320 This was not, as sometimes occurs,a situation where a judge was awoken inthe middle of the night to issue a warrantbecause law enforcement needs to executeit promptly in order to seize the evidence.Reserve Judge Kluka signed the warrantsat 11:30 a.m. on Monday, September 30,2013. However, they were not executeduntil Thursday, October 3, 2013, at approx-imately 6:00 a.m.10 ‘‘A search warrant mustbe executed and returned not more than 5days S 169after the date of issuance.’’ Wis.Stat. § 968.15(1). These warrants wereexecuted three days after they were is-sued. ‘‘The return of the search warrantshall be made within 48 hours after execu-tionTTTT’’ Wis. Stat. § 968.17(1). The war-rants were returned on October 4, fourdays after they were issued and one dayafter they were executed.

¶ 321 The warrants were executed in thepre-dawn darkness. On October 3 civiltwilight began in Madison at 6:29 a.m. andsunrise began at 6:57 a.m.11 For all prac-tical purposes, each of these searches wasthe equivalent of a nighttime search. Be-cause no challenge to the warrant execu-

tion has been made, the record lacks anyexplanation as to why law enforcement didnot execute the warrants any time duringthe preceding 66.5 hours—or more specifi-cally, the 29.5 daylight hours—between is-suance and actual execution.

¶ 322 A nighttime search will often occurshortly after a judge has issued the war-rant, as there is some urgency in needingto conduct the search in non-daylighthours. Courts often consider ‘‘nighttime’’as the time when it is ‘‘dark’’ outside,between sunset and sunrise, between duskand dawn, or when most people are asleep.See Claudia G. Catalano, Annotation, Pro-priety of Execution of Search Warrants atNighttime, 41 A.L.R.5th 171 (1996). Thisrecord, understandably, lacks any indica-tion of why it was reasonable to executethese warrants in this manner, especiallysince the warrants had been issued threedays earlier. The S 170prosecution mighthave obtained the same evidence in thedaylight by waiting a mere hour or two orby executing the warrants in any of thepreceding daylight hours. Why did lawenforcement execute these secret JohnDoe warrants days after obtaining them, inthe pre-dawn darkness, needing floodlightsto illuminate the homes, and with suchforceful presence?

¶ 323 While there may be reasons whythe warrants were executed when theywere, the current state of the record pro-vides no indication that the prosecution‘‘felt some exigency’’ so as to necessitate

Doe [II] proceeding and also granted the re-quested secrecy order.’’ Id., ¶ 17.

10. The return on the warrant to search Un-named Movant No. 6’s house, in a box titled‘‘Recovery Date,’’ reads ‘‘10/03/201306:15:00.’’ Similarly, the return on the war-rant to search Unnamed Movant No. 7’shouse, in a box titled ‘‘Recovery Date,’’ reads‘‘10/03/2013 6:03:13.’’ The record does notindicate to what these times correspond. Me-

dia reports indicate that the searches lastedtwo and a half hours. See, e.g., Kittle, infranote 12. The record is unclear.

11. See U.S. Naval Observatory: AstronomicalApplications Department, Sun and Moon Datafor 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).


the execution of the warrants in the pre-dawn darkness three days after the war-rants were issued. See United States v.Berry, 113 F.3d 121, 123 (8th Cir.1997)(upholding a 12:30 a.m. search for a largequantity of marijuana because the officers‘‘obviously felt some exigency’’). See alsoHarris, 324 F.3d at 606 (upholding a night-time search performed two hours and 15minutes after the warrant was issued);Tucker, 313 F.3d at 1261 (same, one hourand 10 minutes); Berry, 113 F.3d at 122(same, 45 minutes); Boyance, 398 F.2d at897 (holding that a nighttime search per-formed 90 minutes after issuance of a war-rant was unconstitutional because therewas no indication that ‘‘the evidence withinthe house would be removed, hidden ordestroyed before morning’’).

B. The Manner of Execution

¶ 324 Courts have also considered thespecific manner in which warrants are exe-cuted as part of the totality of the circum-stances. ‘‘The[se] search warrants wereexecuted at approximately 6:00 a.m. onOctober 3, 2013, in pre-dawn, armed, par-amilitary-style raids in which bright flood-lights were used to illuminate the targets’homes.’’ Majority op., ¶ 28. ‘‘Deputiesseized S 171business papers, computer equip-ment, phones, and other devices, whiletheir targets were restrained under policesupervision and denied the ability to con-tact their attorneys.’’ Id., ¶ 29. Whilethere may be reasons why the warrants

were executed in the manner that theywere, the record lacks any such explana-tion as the execution was not challenged.

¶ 325 Although not critical to my analy-sis, it is worth noting how some newsoutlets have described these searches.Had a hearing been held on the manner inwhich these searches were executed, it isuncertain whether the facts established insuch a hearing would be consistent withthese news reports or whether there isnonetheless ‘‘a legitimate government in-terest’’ in the execution of the searches.See Green, 420 F.3d at 694.

¶ 326 Reportedly, about an hour beforesunrise, police ‘‘surrounded’’ the homes ofUnnamed Movants Nos. 6 and 7 and ‘‘hitthem with floodlights.’’ 12 ‘‘Police didn’tdraw their guns. They didn’t have to.Garish light blinded the groggy targets ofthe secret probe, startling neighbors. Theuniforms, the lights, the early hour goteverybody’s attention.’’ 13 ‘‘One of the tar-gets [said] police threatened to use batter-ing rams to break down the front door, butthe targets let them in.’’ 14 Each of thesepre-dawn searches of the homes of Un-named Movants Nos. 6 and 7 reportedlyinvolved at least half a dozen sheriff’s dep-uties and at least one official from theMilwaukee County District Attorney’sS 172Office.15 It has been reported that dep-uties ‘‘[s]hout[ed] [ ] at the front door’’ 16

and, once inside, continued ‘‘yelling andrunning, into every room in the house.’’ 17

12. M.D. Kittle, The day John Doe RushedThrough 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 leastone representative from the Milwaukee Coun-ty District Attorney’s Office was on scene forthe searches. The record is also unclear as towhether it is typical protocol for a Milwaukee

County District Attorney’s Office representa-tive to be present when a search warrant isexecuted.

16. Rich Lowry, Politicized Prosecution RunAmok in Wisconsin, National Review, Apr. 21,2015, available at http://www.nationalreview.com/article/417207/politicized-prosecution-run-amok-wisconsin-rich-lowry.

17. David French, Wisconsin’s Shame: ‘‘IThought It Was a Home Invasion’’, NationalReview, Apr. 20, 2015, available at http://


¶ 327 Other media outlets described thesearches as follows:

The early-morning paramilitary-styleraids on citizens’ homes were conductedby law-enforcement officers, sometimeswearing bulletproof vests and luggingbattering rams, pounding on doors andissuing threats. Spouses were separat-ed as the police seized computers, in-cluding those of children still in pajamas.Clothes drawers, including the chil-dren’s, were ransacked, cell phones wereconfiscated, and the citizens were told itwould be a crime to tell anyone of theraids.18

¶ 328 At least one person who was sub-jected to a pre-dawn search of his or herresidence reportedly described it as ‘‘ahome invasion.’’ 19 The targets of theS 173pre-dawn searches have described theseexperiences as ‘‘terrifying’’ and ‘‘traumat-ic.’’ 20

¶ 329 Due to the terms of the John Doesecrecy order itself, the targets were in-structed not to tell other people about thesearches. The search warrants stated:‘‘This John Doe search warrant is issuedsubject to a secrecy order. By order ofthe court, pursuant to a secrecy order thatapplies to this proceeding, you are herebycommanded and ordered not to disclose toanyone, other than your attorney, the con-tents of this search warrant and/or the factthat you have received this search war-rant. Violation of this secrecy order ispunishable as contempt of court.’’ Report-edly, ‘‘[m]ultiple targets TTT received ver-bal instructions from investigators about

the secrecy order applying to every mem-ber of the household.’’ 21 Despite the lan-guage of the secrecy order, some haveotherwise averred that the targets ‘‘weretold not to tell their lawyers, or theirfriends, or their neighbors.’’ 22

C. Public and Officer Safety Concerns

¶ 330 As part of the totality of the cir-cumstances, courts have also consideredwhether safety concerns of the public orthe officers justify the timing and the man-ner of a warrant’s execution. Although aparamilitary-style search in the darknessis undoubtedly justified in some circum-stances, the current state of this recordprovides no indication that Unnamed Mov-ants Nos. 6 and 7 ‘‘posed an immediatethreat to S 174the safety of the officers orothers,’’ were ‘‘actively resisting arrest orattempting to evade arrest by flight,’’ orwere ‘‘themselves violent or dangerous.’’See Estate of Smith v. Marasco, 430 F.3d140, 150 (3d Cir.2005) (holding that thesefacts are important for determining wheth-er a SWAT-type search was reasonable).In the present case, executing the war-rants in paramilitary fashion during pre-dawn darkness arguably might have actu-ally increased the risk of injury to thepublic or the officers. See Bravo v. City ofSanta Maria, 665 F.3d 1076, 1086 (9thCir.2011) (‘‘SWAT officers’ nighttimesearches TTT both constitute much greaterintrusions on one’s privacy than ordinarydaytime searches and carry a much higherrisk of injury to persons and property.’’).

www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french.

18. George Will, Done in by John Doe, Nation-al Review, Oct. 25, 2014, available at http://www.nationalreview.com/article/391130/done-john-doe-george-will.

19. French, supra note 17.

20. Id.

21. M.D. Kittle, Warrants Command John DoeTargets to Remain Silent, WisconsinWatch-dog.org, May 14, 2015, available at http://watchdog.org/218761/john-doe-warrants-raids/.

22. Lowry, supra note 16 (emphasis added).


¶ 331 A ‘‘nighttime police intrusionpose[s] a great threat to privacy, violate[s]the sanctity of home, and endanger[s] thepolice and slumbering citizens.’’ Grim-shaw, 595 N.E.2d at 304 (citing 2 W.R.LaFave, Search and Seizure § 4.7(b), at266 (2d ed. 1987)). In the present case,whether any public or officer safety con-cern justified the pre-dawn searches is un-known because the execution was not chal-lenged. Cf. United States v. Colonna, 360F.3d 1169, 1176 (10th Cir.2004) (upholdinga nighttime search because of the defen-dant’s ‘‘prior extensive involvement withlaw enforcement, the expressed fear of aconcerned citizen that [the defendant]would retaliate violently, and the presenceof children in the vicinity’’ during the day-time).

D. The Evidence

¶ 332 I turn now to the nature of theevidence being sought. This case is notone where the alleged crime is occurringat night during the search. This is not adrug or human trafficking investigationwhere it S 175is apparent that the evidence ofthe crime may no longer be present at thesearch location if the warrants are notexecuted promptly. The circumstances ofthis case do not plainly suggest that wait-ing until daybreak would have posed asafety risk to the public or officers.

¶ 333 These pre-dawn searches sought,among other things, electronic evidence,

including e-mails and communicationsstored on cell phones and personal com-puters.23 The search warrants sought in-formation from March 1, 2009, to Septem-ber 30, 2013, the date that the warrantswere issued. This evidence, which seem-ingly had been around for years and likelyotherwise exists in cyberspace, did not ap-pear to be ‘‘volatile’’ and no reason isreadily apparent to explain why executingthe warrants in a more traditional manner,by far less forceful means, would pose any‘‘risk of personal injuries and propertydamage.’’ See Tucker, 313 F.3d at 1266(upholding a nighttime search because‘‘there was not just risk of destruction ofthe evidence but also risk of personal inju-ries and property damage due to the vola-tile nature of the chemicals and the pro-cess of methamphetamine manufacture’’).

¶ 334 While not jugular to the totality ofthe circumstances analysis, it seems thatthis electronic evidence was not in ‘‘dangerof destruction or removal’’ from the homesbefore morning. See id. at 1265. Theprocess of erasing a file on a personalcomputer ‘‘is time S 176consuming and doesnot wipe out all data.’’ 24 A cell phone’sfiles may likewise be difficult to erase.‘‘Smartphone forensics experts can re-trieve just about anything from anyphone,’’ ‘‘whether or not a user deleted itfrom their phone.’’ 25 In fact, the affidavitin support of the warrants to search the

23. From Unnamed Movant No. 6’s home, lawenforcement officers seized tax records, checkstubs, invoices, a binder containing docu-ments, a box of documents, an external harddrive, and a laptop computer. From Un-named Movant No. 7’s home, officers seizedthree cell phones, three external hard drives,two computer towers, two laptop computers,two Apple iPods, a document folder, threecompact discs, a thumb drive, a voice record-er, bank stubs, personal pocket calendars, andfinancial records.

24. Christine Galves & Fred Galves, Ensuringthe Admissibility of Electronic Forensic Evi-dence and Enhancing Its Probative Value atTrial, 19 Criminal Justice Magazine 1 (Spring2004), available at http://www.americanbar.org/publications/criminal justice magazinehome/crimjust cjmag 19 1 electronic.html.

25. David Goldman, How Police Can FindYour Deleted Text Messages, CNN Money, May22, 2013, available at http://money.cnn.com/2013/05/22/technology/mobile/smartphone-forensics/.


homes of Unnamed Movants Nos. 6 and 7seemed to recognize that the evidence wasnot at risk of being destroyed, even ifdeleted. The affidavit itself declared that‘‘computer files or remnants of such filescan be recovered months or even yearsafter they have been downloaded onto astorage medium, deleted, or viewed via theInternet.’’ (Emphases added.)

¶ 335 Even if the computers and cellphones had been totally destroyed, investi-gators still could have sought to obtainUnnamed Movants Nos. 6’s and 7’s e-mailmessages from third parties, such as In-ternet service providers or e-mail serviceproviders.26 Wisconsin law expressly au-thorizes subpoenas and search warrants tobe issued to such third parties. See Wis.Stat. § 968.375. Milwaukee County prose-cutors have used these techniques in re-cent prosecutions of a somewhat similarnature. See State v. Rindfleisch, 2014 WIApp 121, 359 Wis.2d 147, 857 N.W.2d 456S 177(holding that search warrants, whichrequired Google Inc. and Yahoo Inc. toprovide evidence from the defendant’spersonal e-mail messages, were sufficient-ly particular).

¶ 336 In fact, previously during this veryJohn Doe investigation, the State did ob-tain Unnamed Movants Nos. 6’s and 7’s e-mails from their e-mail service providers.Specifically, on September 5, 2012, thesame day that Reserve Judge Kluka com-menced this John Doe investigation, shesigned a warrant requiring Yahoo Inc. tosupply information from Unnamed MovantNo. 6’s Yahoo e-mail account. Also onSeptember 5 Reserve Judge Kluka signeda similar warrant requiring Charter Com-munications Inc. to provide informationfrom Unnamed Movant No. 7’s Charter e-mail account. Each of these warrants re-quired the production of, inter alia, ‘‘[t]hecontents of all communications stored in

the E-mail accounts for the subscriber(s)TTT, including all emails stored in the ac-count, whether sent from or received inthe account, including any ‘chat or instantmessaging,’ as well as e-mails held in a‘Deleted’ status,’’ from April 1, 2009, toJuly 1, 2012. Yahoo and Charter compliedwith the warrants within six weeks andtwo weeks, respectively. Thus, at leastsome of the evidence that the prosecutionhoped to obtain by searching the homes ofUnnamed Movants Nos. 6 and 7 in October2013 could very well have been duplicativeof the e-mail evidence that Yahoo andCharter produced pursuant to the Septem-ber 2012 search warrants.

¶ 337 While not required, another ave-nue of obtaining evidence may have exist-ed through subpoenas duces tecum, whichcould have been served on Unnamed Mov-ants Nos. 6 and 7 as an alternative to thepre-dawn, paramilitary-style searches oftheir S 178homes. See Wis. Stat. § 968.135.In fact, such subpoenas were issued onother Unnamed Movants. Specifically, onthe same day that Reserve Judge Klukaissued the warrants to search the homes ofUnnamed Movants Nos. 6 and 7, she is-sued subpoenas duces tecum to the othersix Unnamed Movants. These subpoenasduces tecum required the production of,inter alia, information regarding Un-named Movants Nos. 6 and 7. Althoughlaw enforcement is not required to obtaininformation by subpoena instead of a war-rant, the type of evidence being soughtand the ways in which it may be obtainedcould possibly be of some significance inthe totality of the circumstances test ofreasonableness.

¶ 338 Milwaukee County Sheriff DavidA. Clarke, Jr. has been vocal in explaininghis belief that it was unreasonable andunnecessary to execute these pre-dawn

26. Galves, supra note 24.


searches in the manner in which they wereexecuted. He said, ‘‘[a] simple knock onthe door by a couple of suit wearing inves-tigators with TTT one uniform back-up [of-ficer] to verify who they were was all thatwas necessary to execute this search war-rant.’’ 27

III. CONCLUSION

¶ 339 ‘‘Constitutional reasonableness re-lates not only to the grounds for a searchor seizure but to the circumstances sur-rounding the search or seizure’s execu-tion.’’ Henderson, 245 Wis.2d 345, ¶ 18,629 N.W.2d 613 (citing S 179Garner, 471 U.S.at 8, 105 S.Ct. 1694).28 ‘‘The determinationof reasonableness is made by reference tothe particular circumstances of each indi-vidual case, and balances the nature andquality of the intrusion on the individual’sFourth Amendment interests against theimportance of the governmental interestsalleged to justify the intrusion.’’ Id. (in-ternal quotation marks omitted) (citationsomitted). ‘‘The idea of the police unneces-sarily forcing their way into the homes inthe middle of the night TTT rousing theresidents out of their beds, and forcingthem to stand by in indignity in their nightclothes while the police rummage throughtheir belongings does indeed smack of a‘police state lacking in the respect for TTT

the right of privacy dictated by the U.S.Constitution.’ ’’ Gooding v. United States,416 U.S. 430, 462, 94 S.Ct. 1780, 40L.Ed.2d 250 (1974) (Marshall, J., dissent-

ing) (quoting S.Rep. No. 91–538, p. 12(1969)).

¶ 340 I join the majority opinion in allthree cases. I write separately to explainthat even if the search warrants were law-fully issued, the execution of them could besubject to the reasonableness analysis ofthe Fourth Amendment to the UnitedStates Constitution and the WisconsinConstitution’s counterpart. A totality ofthe circumstances analysis could includeconsideration of, among other things, thetiming of the issuance and execution of thewarrants, the manner in S 180which the war-rants were executed, whether public orofficer safety concerns justified the man-ner of execution, and what type of evi-dence was being sought.

¶ 341 For the foregoing reasons, I re-spectfully concur.

SHIRLEY S. ABRAHAMSON, J. (con-curring in part, dissenting in part).

¶ 342 Nos. 2014AP296–OA: OriginalAction: Two Unnamed Petitioners

v. Peterson

2014AP417–421–W: Supervisory Writ& Appeal: Schmitz v. Peterson

2013AP2504–2508–W: Supervisory Writ& Review: Three Unnamed

Petitioners v. Peterson

¶ 343 The majority opinion decides threedifferent cases related to John Doe pro-ceedings underway in five different coun-ties. These John Doe proceedings share a

27. David French, Wisconsin’s Shame: SheriffClarke Weighs In, National Review, Apr. 23,2015, available at http://www.nationalreview.com/corner/417406/wisconsins-shame-sheriff-clarke-weighs-david-french.

28. See State v. Henderson, 2001 WI 97, ¶ 3,245 Wis.2d 345, 629 N.W.2d 613 (recognizingthat the Fourth Amendment reasonablenessinquiry considers whether officers knockedand announced their presence before entry);

see also United States v. Gibbons, 607 F.2d1320, 1326 (10th Cir.1979) (holding that ‘‘anighttime intrusion is one element in consid-ering the reasonableness of the search’’);State v. Jackson, 742 N.W.2d 163, 177 (Minn.2007) (holding that ‘‘the search of a home atnight is a factor to be considered in determin-ing whether a search is reasonable under theFourth Amendment’’).


common objective: To investigate potentialviolations of Wisconsin’s campaign financelaw, Wis. Stat. ch. 11 (2011–12).1 Theproceedings also share a single John Doejudge, who was assigned to the proceed-ings in all five counties, and a single Spe-cial Prosecutor, who was appointed by theJohn Doe judge to conduct the investiga-tion in all five counties.2

S 181¶ 344 The John Doe cases were con-solidated for purposes of briefing and oralargument, but not for any other purpose.3

Briefs have been filed. The court, overdissent, canceled oral argument.4

¶ 345 The majority opinion and concur-rences in these John Doe cases resolveissues raised by the parties; issues raisedby the court in its December 16, 2014,order (attached hereto as Exhibit A); andnew issues not previously raised by theparties or the court. These writings havefar-reaching implications, not just for theJohn Doe investigation underlying the in-stant cases but also for this state’s elector-al process, future John Doe proceedings,and criminal proceedings generally.

¶ 346 I begin by addressing the majorityopinion.

¶ 347 Lest the length, convoluted analy-sis, and overblown rhetoric of the majorityopinion obscure its effect, let me stateclearly: The majority opinion adopts anunprecedented and faulty interpretation ofWisconsin’s campaign finance law and ofthe First Amendment. In doing so, themajority opinion delivers a significant blowto Wisconsin’s campaign finance law and toits paramount objectives of ‘‘stimulatingvigorous campaigns on a fair and equalbasis’’ and providing for ‘‘a better informedelectorate.’’ 5

S 182¶ 348 Disregarding the statutory textthat the majority opinion professes to in-terpret, the majority opinion takes the ab-solutist position that Chapter 11 does notreach any issue advocacy and that anymanner of government regulation of anyissue advocacy contravenes the FirstAmendment.6 Thus, within the realm ofissue advocacy, the majority opinion’stheme is ‘‘Anything Goes.’’ 7

¶ 349 But it is not just the letter ofWisconsin’s campaign finance law that themajority opinion disregards. It also disre-gards the spirit of the law.8


2. See majority op., ¶¶ 17–27.

3. The order consolidating the cases for pur-poses of briefing and oral argument is datedDecember 16, 2014, and is attached hereto,along with my concurrence and that of Jus-tice Prosser, as Exhibit A.

4. Oral argument was canceled in the threecases pursuant to an order entered by thiscourt on March 27, 2015. That order, alongwith my dissent and that of Justice Prosser, isattached hereto as Exhibit B.

5. Wis. Stat. § 11.001(1).

6. See majority op., ¶¶ 10, 41, 50, 57, 66–67,69.

Issue advocacy is speech that pertains toissues of public concern and does not express-ly advocate the election or defeat of a candi-date. Fed. Election Comm’n v. Wis. Right ToLife, Inc., 551 U.S. 449, 456, 127 S.Ct. 2652,168 L.Ed.2d 329 (2007). In contrast, expressadvocacy is speech that expressly advocatesthe election or defeat of a candidate. Id. at453, 127 S.Ct. 2652.

7. ‘‘Anything Goes’’ is a song written by ColePorter for his musical Anything Goes (1934).Many of the lyrics feature humorous (but dat-ed) references to various figures of scandaland gossip in Depression-era high society.Many modern versions of the song omit theoutdated 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.


¶ 350 The legislative declaration of poli-cy set forth at Wis. Stat. § 11.001(1) pro-vides that ‘‘[w]hen the true source of sup-port or extent of support [for a candidate]is not fully disclosed, or when a candidatebecomes overly dependent upon large pri-vate contributors, the democratic processis subjected to potential corrupting influ-ence.’’ To prevent such corrupting influ-ence, the legislature has declared that ‘‘thestate has S 183a compelling interest in de-signing a system for fully disclosing contri-butions and disbursements made on behalfof every candidate for public officeTTTT’’ 9

¶ 351 Despite these clear statements oflegislative policy, the majority opinionholds that disbursements made on behalfof candidates need not be fully disclosed—indeed, they need not be disclosed at all—if such disbursements are made for issueadvocacy.10

¶ 352 In taking this absolutist position,the majority opinion attempts to terminatethe John Doe investigation underlying theinstant cases in its infancy. The majorityopinion’s unsupported, ultra vires declara-tion that its resolution of the original ac-tion brought by two of the eight UnnamedMovants ‘‘ends the John Doe investiga-tion’’ contradicts other aspects of the ma-jority opinion and reveals the majorityopinion’s blatant attempt to reach its de-sired result by whatever means neces-sary.11

S 184¶ 353 According to the United StatesCourt of Appeals for the Seventh Circuit,no opinion of the United States SupremeCourt or a federal court of appeals hasestablished that the First Amendment for-bids regulation of, or inquiry into, coordi-nation between a candidate’s campaigncommittee and issue advocacy groups.12

Dagnall, 2000 WI 82, ¶ 59, 236 Wis.2d 339,612 N.W.2d 680; Harrington v. Smith, 28Wis. 43, 59 (1871).

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 acknowledgethat the Special Prosecutor is pursuing multi-ple theories of criminal activity, not all ofwhich revolve around issue advocacy. Forexample, the Special Prosecutor states thatthe John Doe investigation is premised in part‘‘on a reason to believe that certain expressadvocacy groups who had filed sworn state-ments indicating they acted independently ofcertain campaign committees’’ did not in factact independently. Despite the majority opin-ion’s invalidating the Special Prosecutor’s is-sue-advocacy-based theory of criminal activi-ty, this express-advocacy-based theory liveson.

The majority opinion also fails to acknowl-edge that the original action was brought byonly two Unnamed Movants. It seems theSpecial Prosecutor’s investigation of individu-als and organizations that are not parties to

the original action is not affected by thiscourt’s decision in the original action. SeeMadison Teachers, Inc. v. Walker, 2013 WI 91,¶ 20, 351 Wis.2d 237, 839 N.W.2d 388 (hold-ing that a declaratory judgment was bindingonly insofar as the parties to the lawsuit wereconcerned; a declaratory judgment is not theequivalent of an injunction binding on thedefendant state officers). Indeed, the majori-ty opinion and concurring opinions imply thatthe original action does not bind the otherUnnamed Movants by deciding the secondand third John Doe cases within the John Doetrilogy. If the majority opinion’s decision inthe original action disposes of the John Doeinvestigation in its entirety, why address theother John Doe cases?

12. See O’Keefe v. Chisholm, 769 F.3d 936,942 (7th Cir.2014). For discussions of theconstitutionality of regulating coordinated is-sue advocacy, see Brent Ferguson, BeyondCoordination: Defining Indirect CampaignContributions for the Super PAC Era, 42 Has-tings Const. L.Q. 471 (2015); Richard Brif-fault, Coordination Reconsidered, 113 Colum-bia L.Rev. Sidebar 88 (2013); Bradley A.Smith, Super PACs and the Role of ‘‘Coordina-tion’’ in Campaign Finance Law, 49 Willam-ette L.Rev. 603 (2013).


In repeatedly and single-mindedly declar-ing a rule that federal case law has de-clined to adopt, the majority opinion be-trays its result-oriented, agenda-drivenapproach.

¶ 354 If the majority opinion succeeds interminating the John Doe investigation,the majority opinion will deny the peopleof this state the opportunity to determineonce and for all whether the targets of theJohn Doe investigation are guilty of sys-tematically violating Wisconsin’s campaignfinance law through undisclosed campaigncoordination.

¶ 355 I write separately to provide anobjective, precedent-based analysis of thestatutory and constitutional issues present-ed in the John Doe cases.

S 185¶ 356 I note at the outset that thestatutory and constitutional issues present-ed in the John Doe cases do not includewhether the subpoenas and search war-rants issued by the John Doe judge wereunconstitutionally overbroad or executedin an unconstitutional manner.

¶ 357 The parties did not raise theseissues and this court did not seek commenton them.13 These issues have not beenbriefed by some parties and have not beenfully briefed by others. Nevertheless,these issues are discussed at length in theseparate writings by Justices Prosser andZiegler.

¶ 358 Justice Prosser declares that he iswriting on Issue 14. Issue 14 addresseswhether there was probable cause for thesearch warrants issued in the John Doeproceedings. Issue 14 does not concern

the breadth or execution of the searchwarrants, does not concern subpoenas, andis limited to two Unnamed Movants (notfive individuals, as Justice Prosser statesin ¶ 201 of his concurrence). Issue 14 asksthe parties to address the following issue:

Whether the affidavits underlying thewarrants issued in the John Doe pro-ceedings provided probable cause to be-lieve that evidence of a criminal violationof Wis. Stat. §§ 11.27, 11.26(2)(a),11.61(1), 939.31, and 939.05 would befound in the private dwellings and of-fices of the two individuals whose dwell-ings and offices were searched and fromwhich their property was seized.14

¶ 359 Justice Ziegler makes no similarattempt to tether her analysis to the issuesthis court accepted for review.

S 186¶ 360 I turn now to my analysis of thethree John Doe cases, which I address inthree separate sections of this writing. Isummarize my discussion and conclusionsin each of the three cases as follows:

¶ 361 The First Case. This case is anoriginal action filed by Unnamed Movants6 and 7 against the John Doe judge andthe Special Prosecutor.15 See ¶¶ 389–507,infra.

¶ 362 Two issues of law are presented inthe original action.

¶ 363 First is whether Chapter 11 re-quires a candidate’s campaign committeeto report certain coordinated disburse-ments as contributions received by thecandidate or candidate’s campaign commit-tee—namely, coordinated disbursementsmade for issue advocacy purposes. Under

13. See items 1–14 in this court’s order datedDecember 16, 2014 (attached hereto as Ex-hibit A), setting forth the questions this courtaccepted for review.

14. See this court’s December 16, 2014, order,attached hereto as Exhibit A (emphasis add-ed).

15. I refer to the eight challengers to the JohnDoe proceedings as Unnamed Movants be-cause that has been the parties’ practice inbriefing. In the case captions for two of thethree John Doe cases, the Unnamed Movantsare referred to as Unnamed Petitioners.


Chapter 11, a disbursement is coordinatedif it is made by a third party ‘‘for thebenefit of a candidate’’ and ‘‘with the au-thorization, direction or control of or oth-erwise by prearrangement with the candi-date or the candidate’s agent.’’ 16

¶ 364 If Chapter 11 requires a candi-date’s campaign committee to report coor-dinated disbursements for issue advocacyas contributions received by the candidateor candidate’s campaign committee, thenthe S 187second issue presented is whetherthis reporting requirement is consistentwith the state and federal constitutions.

¶ 365 The majority opinion concludesthat Chapter 11 does not require a candi-date’s campaign committee to report anycoordinated disbursements for issue advo-cacy as contributions received by the can-didate or candidate’s campaign committee.The majority opinion further concludesthat such a requirement would be uncon-stitutional.17

¶ 366 The majority opinion frequentlyrefers to ‘‘independent groups,’’ ‘‘indepen-dent organizations,’’ and ‘‘independent ad-vocacy organizations.’’ I agree with theUnited States Court of Appeals for theSeventh Circuit that the word ‘‘indepen-dent’’ should be considered to be in quota-tion marks throughout the John Doe cases‘‘because the Special Prosecutor suspectedthat the group’s independence is ostensiblerather than real.’’ 18

¶ 367 I conclude that Chapter 11 doesrequire a candidate’s campaign committeeto report coordinated disbursements forissue advocacy as contributions received

by the candidate or candidate’s campaigncommittee. I further conclude this report-ing requirement is consistent with theFirst Amendment.

¶ 368 To be clear: I do not conclude thatChapter 11 regulates disbursements forissue advocacy made by truly independentthird parties. Chapter 11 does not reachindependent disbursements for issue advo-cacy, even when such disbursements areintended to influence an election.

S 188¶ 369 The Second Case. This case is asupervisory writ petition filed by the Spe-cial Prosecutor in the court of appealsagainst the John Doe judge and the eightUnnamed Movants. The Special Prosecu-tor’s writ petition seeks review of an orderof the John Doe judge quashing subpoenasand ordering the return of property seizedpursuant to search warrants. The orderwas based on the John Doe judge’s conclu-sion of law that Chapter 11 does not regu-late coordinated disbursements for issueadvocacy.19 The writ petition is beforethis court on multiple petitions for bypass.See ¶¶ 508–541, infra.

¶ 370 The majority opinion concludesthat even if the John Doe judge misinter-preted and misapplied Chapter 11 and theFirst Amendment when exercising his dis-cretion to quash subpoenas and order thereturn of property seized pursuant tosearch warrants, a supervisory writ is notwarranted. The majority opinion reasonsthat the Special Prosecutor has failed toprove that the John Doe judge violated aplain legal duty.

16. Wis. Stat. § 11.06(4)(d). See also Wis.Stat. § 11.06(7) (describing independent dis-bursements as disbursements made by a com-mittee or individual who ‘‘does not act incooperation or consultation with any candi-date or authorized committee of a candidate’’and who ‘‘does not act in concert with, or atthe request or suggestion of, any candidate or

agent or authorized committee of a candi-date’’).

17. See majority op., ¶¶ 50, 57, 66–67.

18. O’Keefe, 769 F.3d at 937.

19. See majority op., ¶¶ 34–36, 97.


¶ 371 I conclude that the majority opin-ion misinterprets and misapplies the plainlegal duty criterion for the issuance of asupervisory writ.20 I conclude that cor-rectly interpreting and applying the law isa plain legal duty. To properly exercisehis discretion, the John Doe judge wasrequired to correctly decide the questionof law presented. This court can andshould, in the exercise of its discretion,issue a supervisory writ to correct a JohnDoe judge’s error of law when appellatereview would provide no relief (or inade-quate relief) for the harm caused by theerror. Because the John Doe S 189judgemisinterpreted and misapplied the law andappellate review is not available, I wouldgrant the Special Prosecutor’s writ peti-tion.

¶ 372 The Third Case. This case is areview of a court of appeals opinion andorder denying a supervisory writ petitionfiled by Unnamed Movants 2, 6, and 7against the John Doe judge, the chiefjudges of the counties in which the pro-ceedings are underway, and the SpecialProsecutor. See ¶¶ 542–554, infra.

¶ 373 The petition for review raisesquestions of law regarding the validity ofthe Special Prosecutor’s appointment andthe competency of the Special Prosecutorto conduct the John Doe investigation.

¶ 374 The majority opinion concludesthat the court of appeals properly deniedthe three Unnamed Movants’ writ petitionbecause, like the Special Prosecutor in thesecond case, the three Unnamed Movantshave failed to prove that the John Doejudge violated a plain legal duty.21

¶ 375 I agree with the majority opinion’saffirmance of the court of appeals orderdenying the writ petition. I conclude,however, that the court of appeals can,should, and did properly decide the issuesof law presented in the Unnamed Movants’writ petition. To properly exercise hisdiscretion, the John Doe judge was re-quired to correctly decide these questionsof law.22

¶ 376 Three Additional Issues. Finally,there are three issues presented in thislitigation that are relevant to the John Doetrilogy as a whole. I discuss these threeissues in my analysis of the first case (theoriginal action).

S 190¶ 377 First, several motions to fileamicus briefs on the merits of the JohnDoe cases have been filed in this court. Ijoin the majority opinion’s decision togrant them all.

¶ 378 Second, the Special Prosecutorfiled a motion seeking the recusal of cer-tain named justices. Three motions to fileamicus briefs on the recusal issue havealso been filed. Neither the named jus-tices nor the court as a whole has respond-ed to the Special Prosecutor’s recusal mo-tion. The recusal motion and the amicusmotions remain pending, and the due pro-cess concerns they raise remain unre-solved.

¶ 379 Third, this court—over my dis-sent—ordered extensive redactions andsealing in these John Doe cases.23 Even ifsome secrecy remains appropriate, the ex-tent of the secrecy this court has imposedis unwarranted.

¶ 380 Despite my numerous dissents ob-jecting to the level of secrecy imposed by

20. See majority op., ¶ 97.


22. See majority op., ¶¶ 105–106.

23. See this court’s December 16, 2014, orderand my concurrence thereto (attached as Ex-hibit A) and this court’s March 27, 2015,order regarding redactions and my dissentthereto (attached as Exhibit C).


this court in the John Doe trilogy, I haveendeavored to adhere to this court’s seal-ing and redaction orders. The same can-not be said for the majority opinion andthe concurrences authored by JusticesProsser and Ziegler.

¶ 381 The majority opinion declaresthat ‘‘we can interpret the secrecy orderand modify it to the extent necessary forthe public to understand our decisionherein.’’ See majority op., ¶ 14 n.11. Jus-tice Prosser’s concurrence discusses thepolicy reasons underlying secrecy in JohnDoe proceedings, concludes that they areinapplicable to certain facts underlyingthe John Doe trilogy, and thus determinesthat ‘‘discussion of S 191these facts is not in-consistent with the secrecy order.’’ SeeJustice Prosser’s concurrence, ¶ 145.

¶ 382 The majority opinion and JusticeProsser’s concurrence decide that the se-crecy order does not bind the justices ofthis court. The secrecy order, in theirview, binds only the parties and the public.

¶ 383 Because the majority of this courtdisregards its own secrecy order, JusticeProsser opines at length, without the bene-fit of briefs or facts, about allegedly over-broad search warrants and subpoenas.Moreover, he waxes eloquent about priva-cy and the limits that should be placed onsearch warrants seeking electronic materi-al. But he has previously waxed eloquentabout privacy rights and has neverthelessupheld searches of electronic material thathe recognized raise substantial privacyconcerns.24

¶ 384 Likewise, Justice Ziegler opines atlength about the allegedly unconstitutionalmanner in which the search warrants wereexecuted. She does so without the benefitof briefs or facts.

¶ 385 Both justices opine about issuesnot previously raised by the parties or thecourt without giving the parties an oppor-tunity to brief or argue the facts or lawrelevant to those issues.

¶ 386 In my dissent to the court’s redac-tion order dated March 27, 2015, I ex-plained at length why this court had thepower to disclose information that was or-dered by the John Doe judge to be con-cealed. See my dissent to this court’sMarch 27, 2015, redaction order (attachedhereto as Exhibit C). This court disa-greed, stating the following in its March27, 2015, redaction order:

S 192The John Doe investigation that isthe subject of the several proceedingsthis court is reviewing remains an openinvestigation. While that may compli-cate how this court normally conductsits appellate review functions, the con-venience of this court and the par-ties/counsel appearing before it does notprovide a sufficient basis on which toignore the statutory commands to main-tain secrecy or the rules we have al-ready established for maintaining thesecrecy of John Doe materials.

¶ 387 It is unclear what has changedsince this court issued its March 27, 2015,redaction order that enables the court tonow exempt itself from the secrecy order.

¶ 388 For the reasons set forth, I writeseparately.

No. 2014AP296–OA: Original Action:State of Wisconsin ex rel. Two Un-named Petitioners v. Gregory A. Pe-terson, John Doe Judge, and FrancisD. Schmitz, as Special Prosecutor

¶ 389 This original action was filed byUnnamed Movants 6 and 7, naming theSpecial Prosecutor and the John Doejudge as defendants.

24. See State v. Subdiaz–Osorio, 2014 WI 87,¶¶ 9–10, 357 Wis.2d 41, 849 N.W.2d 748;

State v. Tate, 2014 WI 89, 357 Wis.2d 172,849 N.W.2d 798.


¶ 390 Unnamed Movants 6 and 7 seek adeclaration that Chapter 11 restricts cam-paign finance regulation to express advo-cacy and regulation of issue advocacy vio-lates the United States and Wisconsinconstitutions.

¶ 391 The majority opinion grants Un-named Movants 6 and 7 their requestedrelief. I would not.

¶ 392 I conclude that coordinated dis-bursements for issue advocacy constituteregulated contributions under Chapter 11and that such regulation S 193does not vio-late the First Amendment. By coordinat-ed disbursements, I mean disbursementsmade by third parties ‘‘for the benefit of acandidate’’ and ‘‘with the authorization, di-rection or control of or otherwise by prear-rangement with the candidate or the candi-date’s agent.’’ 25 By issue advocacy, Imean speech regarding issues of publicconcern that does not expressly advocatethe election or defeat of a candidate.26

¶ 393 Because I conclude that the Spe-cial Prosecutor has a valid legal theory tosupport his investigation, I would allow theJohn Doe proceedings to continue. Ac-cordingly, I dissent.

¶ 394 I address the statutory and consti-tutional issues presented in this originalaction as follows:

1 In Part I, I describe the alleged elec-tion-related activities of UnnamedMovants 6 and 7 that are the subjectof the John Doe investigation.

1 In Part II, I determine that the Spe-cial Prosecutor’s theory of criminal ac-tivity is supported by Chapter 11. Idisagree with the majority opinion’s

holding that coordinated issue advoca-cy, like independent issue advocacy, isbeyond the reach of Chapter 11.

1 In Part III, I conclude that the SpecialProsecutor’s theory of criminal activitydoes not contravene the state or feder-al constitution. I disagree with themajority opinion’s declarations thatthe Special Prosecutor’s interpretationof Chapter 11 renders S 194Chapter 11unconstitutional and that a narrowingconstruction must be applied to pre-vent Chapter 11’s invalidation.

¶ 395 In Part IV, I address three issuesthat are common to the three cases beforethe court:

1 In section A, I consider the motions tofile amicus briefs regarding the meritsof the three cases. I join the majorityopinion’s decision to grant them all.

1 In section B, I discuss this court’sinsistence on continued observance ofthe sweeping John Doe secrecy orderto which the three John Doe cases aresubject. In my view, the extent ofsecrecy mandated by the court is notwarranted.

1 In section C, I consider the SpecialProsecutor’s motion requesting the re-cusal of certain justices from the JohnDoe cases. The recusal motion is stillpending (including any due processconcerns), as are three motions to fileamicus briefs on the recusal issue.

I

¶ 396 I cannot begin this writing withthe usual recitation of facts. There havebeen no findings of substantive fact by a

25. See Wis. Stat. § 11.06(4)(d). See also§ 11.06(7) (describing independent disburse-ments as disbursements made by a committeeor individual who ‘‘does not act in coopera-tion or consultation with any candidate orauthorized committee of a candidate’’ andwho ‘‘does not act in concert with, or at the

request or suggestion of, any candidate oragent or authorized committee of a candi-date’’).

26. Wis. Right To Life, 551 U.S. at 456, 127S.Ct. 2652.


court or judge, nor stipulations of fact bythe parties.27 This dearth of facts is insharp S 195contrast to the undisputed factsunderlying all prior original actions thiscourt has accepted.28

¶ 397 Although Unnamed Movants 6 and7 claim that the election-related activitiesalleged by the Special Prosecutor are notregulated by Chapter 11, neither their pe-tition for leave to commence an originalaction nor their briefs in this court specifythe election-related activities to which theyare referring.

¶ 398 The Special Prosecutor’s brief, onthe other hand, sets forth information hehas gathered regarding the election-relat-

ed activities of Unnamed Movants 6 and 7,among others. On the basis of this infor-mation, the Special Prosecutor asserts thathe has reason to believe that a particularcandidate or candidate’s campaign commit-tee coordinated with one or more 501(c)nonprofit entities; that these 501(c) non-profit entities made disbursements for is-sue ads in coordination with the candidateor candidate’s campaign committee; thatthe ads were intended to benefit the candi-date’s campaign; and that the candidate’scampaign committee unlawfully failed toreport these S 196coordinated disbursementsas contributions received by the candidateor candidate’s campaign committee.29

27. The only facts set forth in the petition andbriefs filed by Unnamed Movants 6 and 7 areprocedural in nature, regarding the appoint-ment of the John Doe Judge and the SpecialProsecutor and the issuance and execution ofsubpoenas and search warrants.

Justice Ziegler’s concurrence in the JohnDoe trilogy is based solely on unsubstantiatedallegations made in the parties’ briefs regard-ing the execution of the search warrants is-sued by the John Doe judge. Although therehave been no findings or stipulations of factregarding the execution of the search war-rants, Justice Ziegler nevertheless writes atlength to suggest that the execution of thesearch warrants rendered them unconstitu-tional under the Fourth Amendment. Shestates: ‘‘[E]ven if the search warrants werelawfully issued, the execution of them couldbe subject to the reasonableness analysis ofthe Fourth AmendmentTTTT’’ Justice Ziegler’sconcurrence, ¶¶ 309, 340. This issue has notbeen litigated and is not, in my view, properlybefore this court.

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-findingtribunal, and although it may refer issues offact to a circuit court or referee for deter-mination, it generally will not exercise itsoriginal jurisdiction in matters involvingcontested issues of fact. Upon granting apetition to commence an original action,the court may require the parties to filepleadings and stipulations of fact.

29. The Special Prosecutor has a second andrelated theory based on Wis. Stat. § 11.10(4).Section 11.10(4) provides that a putativelyseparate committee that ‘‘acts with the coop-eration of or upon consultation with a candi-date or agent or authorized committee of acandidate, or which acts in concert with or atthe request or suggestion of a candidate oragent or authorized committee of a candidateis deemed a subcommittee of the candidate’spersonal campaign committee.’’

The Special Prosecutor asserts that coordi-nation between various 501(c) entities and thecandidate’s campaign committee may haverendered one or more of the 501(c) entitiesstatutory subcommittees, whose receipt ofcontributions and disbursement of funds arereportable by the candidate’s campaign com-mittee. Under this theory, the candidate’scampaign committee violated Chapter 11 byfailing to report issue advocacy disbursementsmade by a subcommittee of the candidate’scampaign committee. The subcommittee the-ory is not as fully developed in the SpecialProsecutor’s brief as the theory set forthabove. Because I conclude that the SpecialProsecutor’s primary theory is sufficient tosupport the continuation of the John Doe pro-ceedings, it is unnecessary to decide whetherthe subcommittee theory does so as well. Ac-cordingly, I do not address the subcommitteetheory.

I note, as well, that the John Doe judgedetermined that the Special Prosecutor of-fered no evidence of express advocacy. TheSpecial Prosecutor disagrees. I do not ad-dress this factual dispute.


¶ 399 According to the Special Prosecu-tor, the candidate and candidate’s cam-paign committee coordinated with the501(c) nonprofit entities in large partthrough two political operatives, namelyUnnamed Movants 6 and 7. The SpecialProsecutor contends that Unnamed Mov-ants 6 and 7 were paid by the candidate’scampaign committee and by one or moreof the 501(c) nonprofit entities. Thus, Un-named Movants 6 and 7 are alleged tohave acted in a dual capacity.

S 197¶ 400 One of the Special Prosecutor’scentral allegations is that Unnamed Mov-ants 6 and 7 created and managed a par-ticular 501(c) nonprofit organization to runissue ads for the benefit of the candidateand the candidate’s campaign, while thecandidate asked donors to contribute tothe 501(c) nonprofit organization instead ofto the candidate’s campaign committee in ablatant attempt to avoid the regulationsgoverning contributions to candidates andtheir campaign committees. Further, saysthe Special Prosecutor, while the 501(c)nonprofit entities purchased the issue ads,the candidate—via Unnamed Movants 6and 7—controlled their content, timing,and placement.

¶ 401 The ‘‘coordination’’ alleged by theSpecial Prosecutor thus includes consulta-tion between the candidate, the candidate’scampaign committee, Unnamed Movants 6and 7, various 501(c) nonprofit entities, andassociated individuals regarding the con-tent, timing, and placement of issue ads.

¶ 402 The Special Prosecutor contendsthat the objective underlying this allegedcoordination was to ensure that issue adspurchased by the 501(c) nonprofit entitiesprovided the maximum benefit possible tothe candidate’s campaign. For example,coordination would ensure correct and con-

sistent messaging in the issue ads pur-chased by the 501(c) nonprofit entities.

¶ 403 Such coordination could also serveto circumvent Chapter 11’s contributionrestrictions and disclosure requirements.Untold millions of dollars in undisclosedcontributions could be funneled into a501(c) nonprofit entity that purchases issueads written or approved by a candidate orthe candidate’s campaign manager. ‘‘Ifcampaigns tell potential contributors to di-vert money to nominally independentgroups that have agreed to do the cam-paigns’ bidding, these contriSbution198 limitsbecome porous, and the requirement thatpoliticians’ campaign committees disclosethe donors and amounts become use-less.’’ 30

¶ 404 The Special Prosecutor contendsin the instant case that coordinationtransformed the 501(c) nonprofit entities’disbursements for issue advocacy into re-portable contributions to the candidate orcandidate’s campaign committee that thecandidate’s campaign committee failed toreport, violating Chapter 11.31

¶ 405 At this stage in the John Doeproceedings, the Special Prosecutor neednot prove that the 501(c) nonprofit entitiesin fact made coordinated disbursementsfor issue advocacy that were reportable bythe candidate’s campaign committee ascontributions received by the candidate orcandidate’s campaign committee. Rather,this original action requires the court todetermine only whether the Special Prose-cutor has a valid legal theory to supporthis investigation. If charges are eventual-ly filed, only then will a court face thequestion of whether the alleged coordina-tion took place.

¶ 406 According to the majority opinion,even if the alleged coordination took place,

30. O’Keefe, 769 F.3d at 941. 31. See Wis. Stat. §§ 11.27 and 11.61(1)(b).


Chapter 11 does not regulate it, and thusthe Special Prosecutor does not have avalid legal theory to support his investiga-tion. The majority opinion allows a 501(c)nonprofit entity to work hand-in-glove witha candidate or candidate’s campaign com-mittee without violating Chapter 11 solong as the 501(c) nonprofit entity engagesonly in issue advocacy.

S 199¶ 407 I address the statutory and con-stitutional issues presented in turn.

II

¶ 408 The first question presented iswhether Chapter 11 requires a candidate’scampaign committee to report certain dis-bursements by 501(c) nonprofit entities ascontributions received by the candidate orcandidate’s campaign committee—namely,disbursements for issue advocacy made incoordination with the candidate or candi-date’s campaign committee. I concludethat it does.

¶ 409 Chapter 11 is not easy to read orunderstand. It has been described as‘‘labyrinthian [sic] and difficult to decipherwithout a background in this area of thelaw.’’ 32 Nevertheless, through carefulreading and cognizance of certain funda-mentals of campaign finance law, Chapter11 can be and has been deciphered. Stateand federal courts have successfully inter-

preted and applied its provisions in a num-ber of cases.33

¶ 410 With that in mind, I turn to anexamination of the provisions of Chapter11 at issue in this original action.

¶ 411 As an initial matter, there is nodispute that under Wis. Stat. § 11.05(2g), acandidate’s campaign committee is a ‘‘reg-istrant’’ for purposes of Chapter 11. It isalso undisputed that under Wis. Stat.§ 11.06(1), ‘‘each registrant’’ must reportall ‘‘contributions received’’ and all ‘‘dis-bursements made.’’

¶ 412 But what constitutes a ‘‘contribu-tion’’ or ‘‘disbursement’’ under Chapter 11?Because the parties S 200contest the properinterpretation of these words (and thus thescope of the reporting obligation to whicha candidate’s campaign committee is sub-ject), I turn to their statutory definitions.

¶ 413 ‘‘Contribution’’ is defined as,among other things, ‘‘[a] gift, subscription,loan, advance, or deposit of money or any-thing of value TTT made for political pur-poses.’’ Wis. Stat. § 11.01(6)(a) (emphasisadded).34 ‘‘Disbursement’’ is defined as,among other things, ‘‘[a] purchase, pay-ment, distribution, loan, advance, deposit,or gift of money or anything of value TTT

made for political purposes.’’ Wis. Stat.§ 11.01(7)(a) (emphasis added).35

32. Wis. Right To Life v. Barland (Barland II ),751 F.3d 804, 808 (7th Cir.2014) (emphasisadded).

33. See, e.g., id.

34. Section 11.01(6)(a) reads in relevant partas follows:

(6)(a) Except as provided in par. (b), ‘‘con-tribution’’ means any of the following:1. A gift, subscription, loan, advance, ordeposit of money or anything of value, ex-cept a loan of money by a commercial lend-ing institution made by the institution inaccordance with applicable laws and regu-lations in the ordinary course of business,made for political purposes. In this subdi-

vision ‘‘anything of value’’ means a thing ofmerchantable value.

35. Section 11.01(7)(a) reads in relevant partas follows:

(7)(a) Except as provided in par. (b), ‘‘dis-bursement’’ means any of the following:1. A purchase, payment, distribution, loan,advance, deposit, or gift of money or any-thing of value, except a loan of money by acommercial lending institution made by theinstitution in accordance with applicablelaws and regulations in the ordinary courseof business, made for political purposes. Inthis subdivision, ‘‘anything of value’’ meansa thing of merchantable value.


¶ 414 An act done ‘‘for political pur-poses’’ is defined by Wis. Stat. § 11.01(16)as an act ‘‘done for the purpose of influ-encing the election or nomination for elec-tion of any individual to state or localofficeTTTT’’ S 201(Emphasis added.) 36 Ac-cording to Unnamed Movants 6 and 7, thephrase ‘‘for the purpose of influencing [an]election,’’ and thus the phrase ‘‘for politicalpurposes,’’ encompasses only express ad-vocacy. The Special Prosecutor, on theother hand, contends that the phrase isbroader and can encompass both expressadvocacy and issue advocacy.

¶ 415 The statutory definition of thephrase ‘‘for political purposes’’ specificallymentions express advocacy, stating: ‘‘Actswhich are for ‘political purposes’ includebut are not limited to TTT communicationwhich expressly advocates the election, de-feat, recall S 202or retention of a clearly iden-tified candidateTTTT’’ 37 Thus, there is noquestion that disbursements made for ex-press advocacy are made ‘‘for political pur-poses’’ within the meaning of Chapter 11.

¶ 416 But the statutory definition of thephrase ‘‘for political purposes’’ makesequally clear that its meaning is not limit-ed to express advocacy. Section 11.01(16)states that acts for political purposes ‘‘in-clude but are not limited to ’’ express ad-vocacy. It further states that ‘‘[i]n thecase of a candidate TTT all administrativeand overhead expenses TTT are deemed tobe for a political purpose.’’ 38 Administra-tive and overhead expenses are not advo-cacy at all, let alone express advocacy.

¶ 417 Thus, the contention by UnnamedMovants 6 and 7 and the conclusion of themajority opinion that contributions anddisbursements are reportable under Chap-ter 11 only when they are made for ex-press advocacy purposes do not squarewith the statutory language.

¶ 418 Nor does their position squarewith the function that issue advocacy mayplay in elections. An issue ad may seek toraise awareness about an issue generallyor to inform voters of a candidate’s posi-tion on an issue. The latter category of

36. Section 11.01(16) reads in full as follows:(16) An act is for ‘‘political purposes’’ whenit is done for the purpose of influencing theelection or nomination for election of anyindividual to state or local office, for thepurpose of influencing the recall from orretention in office of an individual holding astate or local office, for the purpose of pay-ment of expenses incurred as a result of arecount at an election, or for the purpose ofinfluencing a particular vote at a referen-dum. In the case of a candidate, or acommittee or group which is organized pri-marily for the purpose of influencing theelection or nomination for election of anyindividual to state or local office, for thepurpose of influencing the recall from orretention in office of an individual holding astate or local office, or for the purpose ofinfluencing a particular vote at a referen-dum, all administrative and overhead ex-penses for the maintenance of an office orstaff which are used principally for anysuch purpose are deemed to be for a politi-cal purpose.

(a) Acts which are for ‘‘political purposes’’include but are not limited to:1. The making of a communication whichexpressly advocates the election, defeat, re-call or retention of a clearly identified can-didate or a particular vote at a referendum.2. The conduct of or attempting to influ-ence an endorsement or nomination to bemade at a convention of political partymembers or supporters concerning, inwhole or in part, any campaign for state orlocal office.(b) A ‘‘political purpose’’ does not includeexpenditures made for the purpose of sup-porting or defending a person who is beinginvestigated for, charged with or convictedof a criminal violation of state or federallaw, or an agent or dependent of such aperson.

37. Wis. Stat. § 11.01(16)(a).

38. Wis. Stat. § 11.01(16).


issue advocacy may influence voters’ im-pressions of certain candidates and maytherefore influence elections.39 According-ly, I conSclude203 that the statutory defini-tion of the phrase ‘‘for political purposes’’encompasses issue advocacy.

¶ 419 Not every issue ad, however, willbenefit a particular candidate’s cam-paign—even if it is intended to do so.When issue ads are developed indepen-dently of the candidate or the candidate’scampaign committee, the issue advocacy‘‘might be duplicative or counterproductivefrom a candidate’s point of view.’’ 40

¶ 420 In contrast, when issue ads aredeveloped in coordination with the candi-

date or the candidate’s campaign commit-tee, the disbursements made for such ads‘‘are as useful to the candidate ascashTTTT’’ 41 For this reason, the UnitedStates Supreme Court has consistentlytreated coordinated expenditures asreguSlated204 contributions.42 The UnitedStates Supreme Court has not differentiat-ed between coordinated expendituresmade for issue advocacy purposes andcoordinated expenditures made for expressadvocacy purposes. The key factor for theCourt has been coordination.

¶ 421 This brings me to the next rele-vant provision within Chapter 11: Wis.Stat. § 11.06(4).43 This provision dictates

39. As the United States Supreme Court hasexplained, ‘‘[c]andidates, especially incum-bents, are intimately tied to public issues in-volving legislative proposals and governmen-tal actions.’’ Buckley v. Valeo, 424 U.S. 1, 42,96 S.Ct. 612, 46 L.Ed.2d 659 (1976). See alsoWis. Right To Life, 551 U.S. at 456–57, 127S.Ct. 2652 (explaining that the distinction be-tween express advocacy and issue advocacymay dissolve in practice because, as Buckleyput it, ‘‘[c]andidates TTT are intimately tied topublic issues’’ (quoting Buckley, 424 U.S. at42, 96 S.Ct. 612)).

40. Fed. Election Comm’n v. Colo. RepublicanFed. Campaign Comm. (Colorado II ), 533 U.S.431, 446, 121 S.Ct. 2351, 150 L.Ed.2d 461(2001) (explaining why independent disburse-ments made for issue advocacy are ‘‘poorsources of leverage for a spender’’).

41. Id. at 446, 121 S.Ct. 2351 (explaining whycoordinated expenditures are treated as con-tributions under federal law).

This is a point the United States SupremeCourt has made again and again. For exam-ple, in Buckley, 424 U.S. at 46, 96 S.Ct. 612,the Court stated that ‘‘expenditures controlledby or coordinated with the candidate and hiscampaign might well have virtually the samevalue to the candidate as a contributionTTTT’’Similarly, in McConnell v. Fed. ElectionComm’n, 540 U.S. 93, 221–22, 124 S.Ct. 619,157 L.Ed.2d 491 (2003), overruled on othergrounds by Citizens United v. Fed. ElectionComm’n, 558 U.S. 310, 130 S.Ct. 876, 175L.Ed.2d 753 (2010), the Court explained that

‘‘expenditures made after a ‘wink or nod’often will be ‘as useful to the candidate ascash.’ ’’

42. See, e.g., McConnell, 540 U.S. at 214–15,124 S.Ct. 619 (explaining that federal law‘‘treats expenditures that are coordinatedwith a candidate as contributions to that can-didate’’); Colo. Republican Fed. CampaignComm. v. Fed. Election Comm’n, 518 U.S.604, 611, 116 S.Ct. 2309, 135 L.Ed.2d 795(1996) (stating that contribution limits in fed-eral campaign finance law apply not only todirect contributions but also to ‘‘coordinatedexpenditures,’’ that is, indirect contributions);Buckley, 424 U.S. at 46, 96 S.Ct. 612 (provid-ing that under federal law, ‘‘controlled orcoordinated expenditures are treated as con-tributions rather than expenditures’’).

United States Supreme Court case law gov-erning the constitutionality of campaign fi-nance statutes discusses ‘‘expenditures,’’ not‘‘disbursements,’’ because the word ‘‘expendi-ture’’ is used in federal law. The word ‘‘dis-bursement’’ is used in the Wisconsin statutes.

43. Section 11.06(4) provides in full as follows:

(4) When transactions reportable. (a) Acontribution is received by a candidate forpurposes of this chapter when it is underthe control of the candidate or campaigntreasurer, or such person accepts the bene-fit thereof. A contribution is received by anindividual, group or committee, other thana personal campaign committee, when it is


when contributions are reportable by reg-istrants. Two subsections are relevanthere.

S 205¶ 422 First, Wis. Stat. § 11.06(4)(a)declares as a general matter that a contri-bution is received by a candidate ‘‘when itis under the control of the candidate orcampaign treasurer,’’ or the candidate ortreasurer accepts the benefit thereof.When a contribution is so received, it be-comes reportable.

¶ 423 Second, Wis. Stat. § 11.06(4)(d)declares that when a disbursement is made‘‘for the benefit of a candidate,’’ it ‘‘isreportable by the candidate or the candi-date’s personal campaign committee if it ismade TTT with the authorization, directionor control of or otherwise by prearrange-ment with the candidate or the candidate’sagent.’’ (Emphasis added.)

¶ 424 Although Wis. Stat. § 11.06(4)(d)fails to explicitly state that coordinateddisbursements are reportable by the candi-date’s campaign committee as contribu-tions to the candidate or candidate’s cam-

paign committee, this interpretation iscompelled by the statutory context. Allother subsections of § 11.06(4) explicitlygovern the receipt and reporting of contri-buStions.206 The clear implication is that§ 11.06(4)(d) governs the receipt and re-porting of contributions.

¶ 425 This interpretation is also sup-ported by common sense. Disbursementsmade in coordination with a candidate areas valuable to the candidate as cash, ac-cording to the United States SupremeCourt, and are therefore treated as contri-butions under federal law.44 The samelogic applies here: Disbursements made‘‘by prearrangement with the candidate orthe candidate’s agent’’ are as valuable tothe candidate as cash and are thereforetreated as contributions under Wisconsinlaw.45

¶ 426 In contrast, a disbursement madewithout prearrangement with a candidateor the candidate’s agent is an independentdisbursement, not a contribution to the

under the control of the individual or thecommittee or group treasurer, or such per-son accepts the benefit thereof.(b) Unless it is returned or donated within15 days of receipt, a contribution must bereported as received and accepted on thedate received. This subsection applies not-withstanding the fact that the contributionis not deposited in the campaign depositoryaccount by the closing date for the report-ing period as provided in s. 11.20(8).(c) All contributions received by any personacting as an agent of a candidate or treasur-er shall be reported by such person to thecandidate or treasurer within 15 days ofreceipt. In the case of a contribution ofmoney, the agent shall transmit the contri-bution to the candidate or treasurer within15 days of receipt.(d) A contribution, disbursement or obli-gation made or incurred to or for the bene-fit of a candidate is reportable by the candi-date or the candidate’s personal campaigncommittee if it is made or incurred with theauthorization, direction or control of or

otherwise by prearrangement with the can-didate or the candidate’s agent.(e) Notwithstanding pars. (a) to (e), receiptof contributions by registrants under s.11.05(7) shall be treated as received in ac-cordance with that subsection.

44. Buckley, 424 U.S. at 46, 96 S.Ct. 612.

45. Wis. Stat. § 11.06(4)(d). See also Wis. Co-alition for Voter Participation, Inc. v. StateElections Bd. (WCVP), 231 Wis.2d 670, 681,605 N.W.2d 654 (Ct.App.1999) (explainingthat both federal campaign finance regula-tions and Chapter 11 ‘‘treat expenditures thatare ‘coordinated’ with, or made ‘in coopera-tion with or with the consent of a candidateTTT or an authorized committee’ as campaigncontributions ’’ (emphasis added)). The ma-jority opinion apparently overrules WCVP tothe extent that WCVP implies that the defini-tion of the phrase ‘‘for political purposes’’ inChapter 11 extends beyond express advocacyand its functional equivalent. See majorityop., ¶ 68 n. 23.


candidate or candidate’s campaign commit-tee, and is governed by different rules.46

¶ 427 As this discussion makes clear, thewords ‘‘contribution’’ and ‘‘disbursement’’have distinct but intertwined meaningswithin Chapter 11. The Special Prosecu-tor’s theory of criminal activity in the in-stant S 207case relies upon the connectionbetween the two. He argues that when a501(c) nonprofit entity makes disburse-ments for issue advocacy in coordinationwith a candidate’s campaign committee,such disbursements are reportable by thecandidate’s campaign committee as contri-butions received by the candidate or candi-date’s campaign committee. He furtherargues that he has reason to believe aparticular candidate’s campaign committeeis guilty of violating Chapter 11 by failingto fulfill this reporting obligation.47

¶ 428 For the reasons set forth, the Spe-cial Prosecutor’s theory of criminal activityin the John Doe proceedings underlyingthis original action has a sound basis in thestatutory text.

¶ 429 Because I agree with the SpecialProsecutor that Chapter 11 requires a can-didate’s campaign committee to reportcoordinated disbursements for issue advo-cacy as contributions received by the can-didate or candidate’s campaign committee,I now consider whether this interpretationof Chapter 11 is constitutionally permissi-ble. As might be expected, the SpecialProsecutor says it is, while Unnamed Mov-

ants 6 and 7 and the majority opinion sayit is not.

III

¶ 430 Two constitutional questions arepresented in this original action. The firstis whether Chapter 11’s requirement thata candidate’s campaign S 208committee re-port coordinated disbursements for issueadvocacy as contributions to the candidateor candidate’s campaign committee vio-lates the First Amendment. The second iswhether the provisions of Chapter 11 thatimpose the reporting requirement at issueare unconstitutionally vague or overbroad.Whether the reporting requirement at is-sue is contrary to the First Amendmentand whether the provisions imposing thatrequirement are unconstitutionally vagueor overbroad are interrelated questions.48

I address these questions in turn.

¶ 431 The absolutist constitutional posi-tion advanced by Unnamed Movants 6 and7 and adopted by the majority opinionhook, line, and sinker is that the FirstAmendment bars the State from regulat-ing any issue advocacy in any manner. Intheir view, the First Amendment protectsagainst state regulation of disbursementsfor issue advocacy regardless of whetherthe disbursements are made independentlyor in coordination with a candidate or can-didate’s campaign committee. I disagree.

¶ 432 The majority opinion’s rhetoricwould lead the reader to conclude that thecase law provides a clear answer to the

46. See, e.g., Wis. Stat. § 11.06(2) (providingthat independent disbursements are reporta-ble only if they are for express advocacy pur-poses).

47. See Wis. Stat. § 11.27(1) (providing that‘‘[n]o person may prepare or submit a falsereport or statement to a filing officer underthis chapter’’); Wis. Stat. § 11.61(1)(b) (stat-ing that ‘‘[w]hoever intentionally violates TTT

11.27(1) TTT is guilty of a Class I felony if the

intentional violation does not involve a specif-ic figure or if the intentional violation con-cerns a figure which exceeds $100 in amountor value’’).

48. Center for Individual Freedom v. Madigan,697 F.3d 464, 479 (7th Cir.2012) (‘‘In theFirst Amendment context, vagueness andoverbreadth are two sides of the samecoinTTTT’’).


First Amendment issue before the court,namely that the Unnamed Movants’ posi-tion is correct and that the Special Prose-cutor’s position ‘‘is unsupported in eitherreason or law.’’ 49 The majority opinion’sview contradicts the views expressed byboth the John Doe judge and the UnitedStates Court of Appeals for the SeventhCircuit.

S 209¶ 433 The John Doe judge observedthat the First Amendment question pre-sented in this original action has ‘‘spawnedconsiderable litigation.’’ 50 It is, he ex-plained, ‘‘an important question’’ that de-serves, but does not yet have, ‘‘a definitiveanswer.’’ 51

¶ 434 Similarly, in O’Keefe v. Chisholm,769 F.3d 936 (7th Cir.2014), cert. de-nied, ––– U.S. ––––, 135 S.Ct. 2311, 191L.Ed.2d 1000 (2015), the Seventh CircuitCourt of Appeals made it perfectly clearthat the Special Prosecutor’s theory isrooted in a live legal issue. The O’Keefecourt stated that whether coordinated is-

sue advocacy disbursements are regulableunder the First Amendment is far from‘‘beyond debate.’’ 52 On the contrary, itexplained: The Special Prosecutor’s theo-ry of criminal activity in the John Doeinvestigation underlying this litigation ‘‘re-flects Buckley ’s interpretation of the FirstAmendment.’’ 53 Indeed, the O’Keefe courtstated, ‘‘[n]o opinion issued by the Su-preme Court, or by any court of appeals,S 210establishes (‘clearly’ or otherwise) thatthe First Amendment forbids regulation ofcoordination between campaign commit-tees and issue-advocacy groups—let alonethat the First Amendment forbids even aninquiry into that topic.’’ 54

¶ 435 This statement in O’Keefe is par-ticularly telling considering that the major-ity opinion relies heavily on a prior opinionof the same federal court of appeals: Wis-consin Right To Life, Inc. v. Barland(Barland II ), 751 F.3d 804 (7th Cir.2014).

49. Majority op., ¶ 11.

50. In his November 6, 2014, order denyingthe two Unnamed Movants’ motion to havethe Special Prosecutor show cause why theJohn Doe investigation should not be ended,the John Doe judge stated:

[T]here is a strong public interest in havingthe appellate courts answer the statutoryquestion that is at the heart of this litiga-tion: when Wisconsin’s campaign financelaws prohibit coordination between candi-dates and independent organizations for apolitical purpose, does that political pur-pose require express advocacy? This is animportant question that has spawned con-siderable litigation. The citizens of thisstate need and deserve a definitive answer.They will not get one if I grant the motion.This order was not publicly released. Oth-

er portions of the order refer to matters sub-ject to the John Doe secrecy order. Theabove-quoted portion does not.

51. See the John Doe judge’s November 6,2014, order.

52. O’Keefe, 769 F.3d at 942.

53. Id. at 941.

54. The relevant portion of the O’Keefe opinionprovided in full as follows:

Plaintiffs’ claim to constitutional protectionfor raising funds to engage in issue advoca-cy coordinated with a politician’s campaigncommittee [the same claim asserted by Un-named Movants 6 and 7 in this originalaction] has not been established ‘‘beyonddebate.’’ To the contrary, there is a livelydebate among judges and academic ana-lysts. The Supreme Court regularly decidescampaign-finance issues by closely dividedvotes. No opinion issued by the SupremeCourt, or by any court of appeals, estab-lishes (‘‘clearly’’ or otherwise) that the FirstAmendment forbids regulation of coordina-tion between campaign committees and is-sue-advocacy groups—let alone that theFirst Amendment forbids even an inquiryinto 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, supranote 12; Smith, supra note 12.


Barland II does not render this originalaction an open-and-shut case, much as themajority opinion would like us to believe.

¶ 436 Like the John Doe judge and theSeventh Circuit Court of Appeals, I con-clude that the constitutional question pre-sented has not yet been definitively re-solved. The answer must be deducedthrough careful analysis of a complex bodyof federal case law that has S 211set forthprinciples governing the constitutionalityof campaign finance statutes. In my view,this careful analysis reveals that Chapter11’s requirement that a candidate’s cam-paign committee report coordinated issueadvocacy disbursements as contributionsreceived by the candidate or candidate’scampaign committee does not violate theFirst Amendment.

¶ 437 The federal case law governing theconstitutionality of campaign finance stat-utes, much like Chapter 11, presents alabyrinth that must be navigated. Thestarting point is Buckley v. Valeo, 424 U.S.1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), along and complex opinion that consideredwhether various provisions of the FederalElection Campaign Act of 1971, as amend-ed in 1974, were consistent with the FirstAmendment.

¶ 438 Buckley drew a distinction be-tween contributions to candidates andtheir campaign committees, on the onehand, and independent expenditures forpolitical expression, on the other hand.55 Itdeclared that under the First Amendment,ceilings may be imposed on contributionsbut not on independent expenditures.56

The Buckley Court reached this conclusionby scrutinizing the burdens imposed onpolitical speech by contributions and inde-pendent expenditure limits, respectively,and by evaluating those burdens in light ofthe governmental interests such limitsserve.57

S 212¶ 439 The Buckley Court first deter-mined that the burden imposed on politicalspeech by contribution limits is minimal:‘‘A limitation on the amount of money aperson may give to a candidate or cam-paign organization [ ] involves little directrestraint on his political communication,for it permits the symbolic expression ofsupport evidenced by a contribution butdoes not TTT infringe [on] the contributor’sfreedom to discuss candidates and is-sues.’’ 58 The Court then declared that thegovernment’s interest in ‘‘the preventionof corruption and the appearance of cor-ruption spawned by the real or imaginedcoercive influence of large financial contri-butions’’ provides a ‘‘constitutionally suffi-cient justification’’ for this minimal bur-den.59

¶ 440 In contrast, the Buckley Courtdeclared that independent expenditure lim-its ‘‘impose direct and substantial re-straints on the quantity of political speech’’that are not justified by the government’santi-corruption interest.60 Unlike contri-butions, the Court explained,

independent expenditures may [ ] pro-vide little assistance to the candidate’scampaign and indeed may prove coun-terproductive. The absence of prear-

55. See generally Buckley, 424 U.S. at 14–23,96 S.Ct. 612. See also Citizens United v. Fed.Election Comm’n, 558 U.S. 310, 345, 130S.Ct. 876, 175 L.Ed.2d 753 (2010) (‘‘TheBuckley Court explained that the potential forquid pro quo corruption distinguished directcontributions to candidates from independentexpenditures.’’).

56. Buckley, 424 U.S. at 23–59, 96 S.Ct. 612.

57. Id.

58. Id. at 21, 96 S.Ct. 612.

59. Id. at 25–26, 96 S.Ct. 612.

60. Id. at 39, 96 S.Ct. 612.


rangement and coordination of an ex-penditure with the candidate or hisagent not only undermines the value ofthe expenditure to the candidate, butalso alleviates the danger that expendi-tures will be given as a quid pro quo forimproper commitments from the candi-date.61

¶ 441 After upholding contribution limitsand striking down independent expendi-ture limits, the S 213Buckley Court turned tothe constitutionality of disclosure require-ments. It concluded that such require-ments are constitutionally permissible asapplied both to contributions and to inde-pendent expenditures made for expressadvocacy purposes,62 reasoning that disclo-sure requirements impose no ceiling onpolitical speech and are an effective anti-corruption measure.63 Indeed, the Courtexplained, disclosure requirements ‘‘appearto be the least restrictive means of curbingthe evils of campaign ignorance and cor-ruption that Congress found to exist.’’ 64

¶ 442 In all three regulatory contexts—that is, with regard to contribution limits,independent expenditure limits, and disclo-sure requirements—the Buckley Courtmade one point eminently clear: Coordi-nated expenditures constitute contribu-tions to the candidate or candidate’s cam-paign committee for purposes of federallaw. More specifically, the Court held thatfederal law treats expenditures as contri-

butions received by the candidate or candi-date’s campaign committee if the expendi-tures are prearranged or coordinated withthe candidate or are ‘‘placed in cooperationwith or with the consent of a candidate.’’ 65

After all, the Court explained, these ex-penditures are S 214in reality ‘‘disguised con-tributions.’’ 66 Disguised contributions aresubject to the limitations and disclosurerequirements that govern all other contri-butions.67

¶ 443 In declaring that coordinated ex-penditures constitute disguised contribu-tions to the candidate or candidate’s cam-paign committee, the Buckley Court didnot specify whether it meant all coordinat-ed expenditures or only coordinated ex-penditures made for express advocacypurposes. The Buckley Court’s broadstatement that coordinated expendituresconstitute disguised contributions wouldseem to compel the conclusion that thetype of advocacy such expenditures imple-ment is irrelevant; the coordination iswhat matters. This is the approach takenby the Special Prosecutor. UnnamedMovants 6 and 7, however, urge this courtto hold that only coordinated expendituresfor express advocacy constitute disguisedcontributions.

¶ 444 Subsequent case law sheds light onthis issue. Post-Buckley decisions havefollowed Buckley ’s holding that coordinat-ed expenditures are subject to the limita-

61. Id. at 47, 96 S.Ct. 612.

62. As a matter of statutory interpretation (toavoid invalidation on vagueness grounds), theBuckley Court determined that the indepen-dent expenditure disclosure requirement ap-plied only to independent expenditures madefor express advocacy purposes, not to inde-pendent expenditures made for issue advoca-cy purposes. Buckley, 424 U.S. at 78–80, 96S.Ct. 612. The Court did not so limit thecontribution disclosure requirement. Id. at78, 96 S.Ct. 612.

63. Buckley, 424 U.S. at 66, 96 S.Ct. 612.

64. Id. at 68, 96 S.Ct. 612.

65. Id. at 78, 96 S.Ct. 612.

66. Id. at 46–47, 96 S.Ct. 612. See also Fergu-son, supra note 12, at 479 (explaining that theUnited States Supreme Court ‘‘continues toclearly signal that the line between contribu-tions and expenditures depends on a spend-er’s independence’’).

67. Buckley, 424 U.S. at 46–47, 96 S.Ct. 612.


tions and disclosure requirements govern-ing contributions. The case law discussingcoordinated expenditures has not distin-guished between coordinated expendituresfor express advocacy and for issue advoca-cy.

¶ 445 Federal Election Commission v.Colorado Republican Federal CampaignCommittee (Colorado II ), 533 U.S. 431,446, 121 S.Ct. 2351, 150 L.Ed.2d 461(2001), is illustrative. The Colorado IICourt reaffirmed Buckley ’s analysis ofdisguised contributions, explaining thatthere is no S 215difference between coordi-nated expenditures and direct contribu-tions to a candidate or candidate’s cam-paign committee that would justifytreating the two differently.68 Coordi-nated expenditures, like contributions,might be given as a quid pro quo forimproper commitments from the candi-date.

¶ 446 The Colorado II Court summa-rized Buckley ’s discussion of disguisedcontributions as follows:

[In Buckley], the rationale for endorsingCongress’s equation of coordinated ex-penditures and contributions was thatthe equation ‘‘prevent[s] attempts to cir-cumvent the Act through prearrangedor coordinated expenditures amountingto disguised contributions.’’ The idea

was that coordinated expenditures areas useful to the candidate as cash, andthat such ‘‘disguised contributions’’might be given ‘‘as a quid pro quo forimproper commitments from the candi-date’’ (in contrast to independent expen-ditures, which are poor sources of lever-age for a spender because they might beduplicative or counterproductive from acandidate’s point of view). In effect,therefore, Buckley subjected limits oncoordinated expenditures by individualsand nonparty groups to the same scruti-ny it applied to limits on their cashcontributions.69

S 216¶ 447 In Federal Election Commis-sion v. Christian Coalition, 52 F.Supp.2d45, 87–88 (D.D.C.1999), the D.C. DistrictCourt rejected as untenable the notionthat coordinated express advocacy expen-ditures and coordinated issue advocacy ex-penditures should be treated differently.70

Both constitute disguised contributions,the court held, and both should be treatedas such.71

¶ 448 The Christian Coalition courtmade clear that issue advocacy is not be-yond the reach of a state’s regulatorypower as a matter of constitutional law,explaining that the First Amendment per-mits ‘‘only narrowly tailored restrictions

68. Colorado II, 533 U.S. at 464–65, 121 S.Ct.2351.

69. Id. at 446, 121 S.Ct. 2351 (citations omit-ted).

Later on, the Colorado II Court further stat-ed that

[t]here is no significant functional differ-ence between a party’s coordinated expen-diture and a direct party contribution to thecandidate, and there is good reason to ex-pect that a party’s right of unlimited coordi-nated spending would attract increasedcontributions to parties to finance exactlythat kind of spending. Coordinated expen-ditures of money donated to a party aretailor-made to undermine contribution lim-its. Therefore the choice here is not, as in

Buckley and Colorado I, between a limit onpure contributions and pure expenditures.The choice is between limiting contribu-tions and limiting expenditures whose spe-cial value as expenditures is also the sourceof their power to corrupt.

Colorado II, 533 U.S. at 464–65, 121 S.Ct.2351.

70. Federal Election Commission v. ChristianCoalition, 52 F.Supp.2d 45 (D.D.C.1999) hashad a far-reaching impact on state and feder-al regulation of campaign coordination. SeeFerguson, supra note 12, at 481.

71. Christian Coalition, 52 F.Supp.2d at 88.


on speech that advance the Government’santi-corruption interest, but the Coalition’sposition allows for no restrictions at all on[coordinated issue advocacy] expendi-tures.’’ 72 The Christian Coalition courtthen declared that the distinction drawn inBuckley between issue advocacy and ex-press advocacy is of no constitutional orstatutory import in the realm of coordinat-ed expenditures:

[I]mporting the ‘express advocacy’ stan-dard into [the contribution regulation atissue] would misread BuckSley217 and col-lapse the distinction between contribu-tions and independent expenditures insuch a way as to give short shrift to thegovernment’s compelling interest in pre-venting real and perceived corruptionthat can flow from large campaign con-tributions.73

¶ 449 Christian Coalition recognizesthat distinguishing between coordinated is-sue advocacy expenditures and coordinatedexpress advocacy expenditures would ig-

nore the basic fact that both can be ‘‘asuseful to the candidate as cash.’’ 74 In-deed, the Christian Coalition court ex-plained that

[c]oordinated expenditures for [commu-nications that spread a negative mes-sage about an opponent] would be sub-stantially more valuable than dollar-equivalent contributions [to a candidate]because they come with an ‘anonymitypremium’ of great value to a candidaterunning a positive campaign. Allowingsuch coordinated expenditures wouldfrustrate both the anticorruption anddisclosure goals of the Act.75

¶ 450 In my opinion, Christian Coali-tion provides a persuasive reading of theFirst Amendment principles set forth inBuckley and its progeny.76 It pays heedto the functionalist approach the case lawS 218takes to distinguishing between contri-butions to the candidate or candidate’scampaign committee and independent ex-

72. Christian Coalition, 52 F.Supp.2d at 88.See also McConnell, 540 U.S. at 190, 124 S.Ct.619 (‘‘[T]he express advocacy restriction [im-posed by Buckley] was an endpoint of statuto-ry interpretation, not a first principle of con-stitutional law.’’).


74. McConnell, 540 U.S. at 221, 124 S.Ct. 619.


76. The few Wisconsin authorities available onthe subject of coordinated disbursementstrack the reasoning of Christian Coalition.See, e.g., Wis. Coalition for Voter Participation,Inc. v. State Elections Bd. (WCVP ), 231Wis.2d 670, 605 N.W.2d 654 (Ct.App.1999)(addressing Chapter 11’s regulation of coordi-nated issue advocacy disbursements in JusticeJon Wilcox’s election campaign). In WCVP,the Wisconsin court of appeals explained thatalthough Buckley imposed limits on the regu-lation of independent disbursements for issueads, ‘‘neither Buckley nor [Chapter 11] limitthe state’s authority to regulate or restrictcampaign contributions.’’ Id. at 679, 605

N.W.2d 654. The WCVP court further ex-plained that Chapter 11 ‘‘treat[s] expendituresthat are ‘coordinated’ with, or made ‘in coop-eration with or with the consent of a candi-date TTT or an authorized committee’ as cam-paign contributions.’’ Id. at 681, 605 N.W.2d654. Under WCVP, the mere fact that Chap-ter 11 regulates coordinated disbursementsfor issue ads does not conflict with the consti-tutional principles set forth in Buckley.

See also Wis. El. Bd. Op. 00–2 (reaffirmedMar. 26, 2008) adopting the Christian Coali-tion approach to examining the conduct ofthe candidate and the entity disbursing fundsand explaining that ‘‘the Courts seemed to bewilling to merge express advocacy with issueadvocacy if ‘coordination’ between the spend-er and the campaign is sufficient.’’

77. See, e.g., McConnell, 540 U.S. at 221, 124S.Ct. 619 (2003) (‘‘[T]he rationale for afford-ing special protection to wholly independentexpenditures has nothing to do with the ab-sence of agreement and everything to do withthe functional consequences of different typesof expenditures.’’).


penditures,77 and it is careful not to ex-tend prior campaign finance holdings be-yond their intended scope. It is alsosupported by federal case law, whichmakes clear that campaign finance disclo-sure requirements can constitutionallyreach beyond express advocacy and itsfunctional equivalent and thus makesclear that the express/issue advocacy dis-tinction is not constitutionally relevant inall campaign finance contexts.78

S 219¶ 451 I move on to Wisconsin RightTo Life v. Barland (Barland II ), 751 F.3d804 (7th Cir.2014). Despite implications tothe contrary in the majority S 220opinion,Barland II is consistent with ChristianCoalition. Barland II addresses the reg-ulation of independent spending underChapter 11, while Christian Coalitiontackles the regulation of coordinatedspending under federal law.

78. In Citizens United, 558 U.S. at 368–69, 130S.Ct. 876, the Court rejected the contentionthat ‘‘the disclosure requirements in § 201 [ofthe Bipartisan Campaign Reform Act of 2002]must be confined to speech that is the func-tional equivalent of express advocacy.’’ Id. at368, 130 S.Ct. 876. The distinction betweenissue advocacy and express advocacy drawnby the Court in prior cases considering re-strictions on independent expenditures shouldnot, the Citizens United Court held, be import-ed into the realm of disclosure requirements.By making clear that the express/issue advo-cacy distinction is relevant only with regardto independent expenditures, Citizens Unitedcorroborates Christian Coalition ’s holdingthat the distinction is irrelevant to the limitsand disclosure requirements applicable tocoordinated expenditures.

Madigan, 697 F.3d at 484, relies on thisdiscussion in Citizens United to support itsconclusion that the express/issue advocacydistinction is constitutionally irrelevant in thecontext of disclosure requirements:

[M]andatory disclosure requirements areconstitutionally permissible even if ads con-tain no direct candidate advocacyTTTT What-ever the status of the express advocacy/is-sue discussion distinction may be in otherareas of campaign finance law, CitizensUnited left no doubt that disclosure require-ments need not hew to it to survive FirstAmendment scrutiny. With just one excep-tion, every circuit that has reviewed FirstAmendment challenges to disclosure re-quirements since Citizens United has con-cluded that such laws may constitutionallycover more than just express advocacy andits functional equivalents, and in each casethe court upheld the law.

(Citation omitted.)Madigan cites and relies on other federal

cases that reach the same conclusion in lightof Citizens United, including The Real Truth

About Abortion, Inc. v. Fed. Election Comm’n,681 F.3d 544, 551 (4th Cir.2012) (explainingthat Citizens United upheld disclosure require-ments for communications ‘‘that are not thefunctional equivalent of express advocacy’’);Nat’l Org. for Marriage v. McKee, 649 F.3d 34,54–55 (1st Cir.2011) (‘‘We find it reasonablyclear, in light of Citizens United, that the dis-tinction between issue discussion and expressadvocacy has no place in First Amendmentreview of these sorts of disclosure-orientedlaws.’’); and Human Life of Wash., Inc. v.Brumsickle, 624 F.3d 990, 1016 (9th Cir.2010)(‘‘Given the Court’s analysis in Citizens Unit-ed, and its holding that the government mayimpose disclosure requirements on speech,the position that disclosure requirements can-not constitutionally reach issue advocacy isunsupportable.’’).

Since Madigan was decided, additional fed-eral cases have interpreted Citizens United inthe same manner, that is, as declaring thatcampaign finance disclosure requirementscan cover more than express advocacy and itsfunctional equivalent without running afoul ofthe First Amendment. See Vt. Right to LifeComm. v. Sorrell, 758 F.3d 118, 132 (2d Cir.2014) (‘‘In Citizens United, the [United States]Supreme Court expressly rejected the ‘conten-tion that the disclosure requirements must belimited to speech that is the functional equiva-lent of express advocacy,’ because disclosureis a less restrictive strategy for deterring cor-ruption and informing the electorate.’’); IowaRight To Life Comm. v. Tooker, 717 F.3d 576,591 n. 1 (8th Cir.2013) (‘‘Disclosure require-ments need not ‘be limited to speech that isthe functional equivalent of express advoca-cy.’ ’’ (quoting Citizens United )); Indepen-dence Inst. v. Fed. Election Comm’n, 70F.Supp.3d 502 (D.D.C.2014) (stating that theCitizens United Court ‘‘in no uncertain termsTTT rejected the attempt to limit [federal cam-paign finance law] disclosure requirements to


¶ 452 In Barland II, Wisconsin Right toLife (a 501(c) nonprofit entity) and itsstate political action committee challengedvarious provisions within Chapter 11 asunconstitutional only insofar as those pro-visions ‘‘trigger[ed] TTT restrictions andrequirements for independent groups notunder the control of a candidate or candi-date’s committeeTTTT’’ 79 The Barland IIcourt was careful to note that WisconsinRight to Life and its state PAC ‘‘oper-ate[d] independently of candidates andtheir campaign committees.’’ 80

S 221¶ 453 In contrast to the independentgroups at issue in Barland II, in the in-stant case the Special Prosecutor contendsthat 501(c) nonprofit entities made dis-bursements for issue ads in coordinationwith a candidate’s campaign committee.The disbursements at issue in the presentcase are not independent. Barland IIdoes not extend beyond the context ofindependent political speech and is there-fore not dispositive of the First Amend-ment question presented in this originalaction.

¶ 454 Given this case law, I would holdthat in the eyes of both Chapter 11 and theFirst Amendment, coordinated disburse-ments are disguised contributions regard-less of whether they are made for expressadvocacy or issue advocacy purposes. Ac-cordingly, in contrast to the majority opin-ion, I would hold that Chapter 11’s re-quirement that a candidate’s campaigncommittee report coordinated issue advo-cacy disbursements as contributions is con-sistent with the First Amendment.

¶ 455 Unnamed Movants 6 and 7 furthercontend, and the majority opinion holds,that their interpretation of Chapter 11 iscompelled by the doctrines of overbreadth

and vagueness. I turn to this argumentnow.

¶ 456 The Unnamed Movants’ positionson overbreadth and vagueness are twofold.

¶ 457 First, they urge that the phrase‘‘for political purposes,’’ which is part ofChapter 11’s definitions of the words‘‘contribution’’ 81 and ‘‘disbursement,’’ 82 isunconstitutionally vague and overbroadunless the phrase is read to mean ‘‘for ex-press advocacy purposes.’’

S 222¶ 458 Second, Unnamed Movants 6and 7 contend that the concept of ‘‘coordi-nation’’ within Chapter 11 is fatally impre-cise. In their view, the provisions ofChapter 11 that ostensibly regulate coordi-nation, including § 11.06(4)(d), should bestruck down as unconstitutionally vagueand overbroad or, at the very least, limitedto express advocacy.

¶ 459 I address these arguments in turn.To address overbreadth and vagueness ar-guments relating to the phrase ‘‘for politi-cal purposes,’’ I return to Buckley andBarland II. Unnamed Movants 6 and 7contend, and the majority opinion agrees,that an express-advocacy limiting con-struction must be applied in the instantcase based on Buckley and Barland II.They misread the case law.

¶ 460 The Buckley Court applied an ex-press-advocacy limiting construction to twostatutory provisions, one imposing a limiton expenditures and one requiring thatexpenditures be reported.

¶ 461 The provision imposing a limit onexpenditures stated that ‘‘[n]o person maymake any expenditure TTT relative to aclearly identified candidate during a cal-endar year which, when added to all other

express advocacy and its functional equiva-lent’’).

79. Barland II, 751 F.3d at 829 (emphasis add-ed).

80. Id. at 809.

81. See Wis. Stat. § 11.01(6)(a).

82. See Wis. Stat. § 11.01(7)(a).


expenditures made by such person duringthe year advocating the election or defeatof such candidate, exceeds $1,000.’’ 83 Thechallengers in Buckley argued that thephrase ‘‘relative to a clearly identified can-didate’’ is unconstitutionally vague. TheBuckley Court agreed.

¶ 462 The Buckley Court explained thatthe challenged provision failed to clarifywhether it covered both express advocacyand issue advocacy expenditures. TheCourt decided, however, that in theconStext223 of the provision as a whole, thephrase ‘‘relative to a clearly identified can-didate’’ could mean ‘‘advocating the elec-tion or defeat of a candidate,’’ that is, couldmean express advocacy.84 The Court de-termined that this reading would avoidvagueness concerns. Thus, it construedthe expenditure limit as applying only toexpress advocacy.

¶ 463 The second provision to which theBuckley Court applied an express-advoca-cy limiting construction required expendi-tures to be disclosed. The word ‘‘expendi-ture’’ was defined ‘‘in terms of the use ofmoney or other valuable assets ‘for thepurpose of TTT influencing ’ the nomina-tion or election of candidates for federaloffice.’’ 85 The Court determined thatvagueness concerns arose insofar as thisexpenditure disclosure provision applied toindividuals other than candidates and polit-ical committees because the phrase ‘‘for

the purpose TTT of influencing [an elec-tion]’’ carries the potential ‘‘for encompass-ing both issue discussion and advocacy of apolitical result.’’ 86

¶ 464 To avoid vagueness concerns, theCourt again applied an express-advocacylimiting construction, this time to thephrase ‘‘for the purpose of TTT influencing[an election].’’ The Court held that theexpenditure disclosure provision requiredexpenditures by entities other than candi-dates and political committees to be dis-closed under only two circumstances: (1)when the expenditures were authorized orrequested by a candidate or his agent (i.e.,coordinated expenditures); and (2) whenthe expenditures were for express advoca-cy (i.e., independent express advocacyS 224expenditures).87 Independent issue ad-vocacy expenditures were not required tobe disclosed.

¶ 465 Importantly, the Buckley Court’sapplication of these express-advocacy lim-iting constructions was confined to therealm of independent expenditures. Aspreviously explained, the Buckley Courtconsidered coordinated expenditures to be‘‘disguised contributions.’’ 88 Buckley ex-pressly rejected the argument that thestatutory provisions imposing limits anddisclosure requirements on contributionswere unconstitutionally vague or over-broad.89

83. Buckley, 424 U.S. at 39, 96 S.Ct. 612 (em-phasis added).

84. Id. at 42, 96 S.Ct. 612.

85. Id. at 77, 96 S.Ct. 612.

86. Id. at 79, 96 S.Ct. 612.

87. Id. at 80, 96 S.Ct. 612.

88. Id. at 46–47, 96 S.Ct. 612. See also Colo-rado II, 533 U.S. at 463–64, 121 S.Ct. 2351(explaining that the imposition of a limitingconstruction on provisions imposing expendi-

ture limits in Buckley and subsequent federalcases ‘‘ultimately turned on the understand-ing that the expenditures at issue were notpotential alter egos for contributions, but wereindependentTTTT [T]he constitutionally signifi-cant fact TTT was the lack of coordinationbetween the candidate and the source of theexpenditure’’ (internal quotation marks andcitation omitted) (emphasis added)).

89. See Buckley, 424 U.S. at 29–30, 78, 96S.Ct. 612.


¶ 466 Further, in applying express-advo-cacy limiting constructions to the statutoryprovisions imposing limits and disclosurerequirements on independent expendi-tures, the Buckley Court did not establishas a matter of constitutional law that regu-lation 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 re-moves all issue advocacy from state regu-lation, the United States Supreme Court inMcConnell v. Federal Election Commis-sion, 540 U.S. 93, 190–91, 124 S.Ct. 619,157 L.Ed.2d 491 (2003), overruled on othergrounds by Citizens United v. Fed.S 225Election Comm’n, 558 U.S. 310, 130S.Ct. 876, 175 L.Ed.2d 753 (2010), explicit-ly ruled that it would be a ‘‘misappre-hen[sion]’’ to read Buckley as holding thatthere exists ‘‘a constitutionally mandatedline between express advocacy and so-called issue advocacy, and that speakerspossess an inviolable First Amendmentright to engage in the latter category ofspeech.’’ 91 Rather, said the McConnellCourt,

a plain reading of Buckley makes clearthat the express advocacy limitation, inboth the expenditure and the disclosurecontexts, was the product of statutoryinterpretation rather than a constitution-al command. In narrowly reading the[federal law] provisions in Buckley toavoid problems of vagueness and over-breadth, we nowhere suggested that astatute that was neither vague nor over-

broad would be required to toe the sameexpress advocacy line.92

¶ 468 With this United States SupremeCourt precedent in mind, the Barland IIcourt took up the issues of vagueness andoverbreadth within Chapter 11.

¶ 469 The statutory provision consideredby the Barland II court that is relevant tothis original action is Wis. Stat.§ 11.01(16), which (as explained previous-ly) defines the phrase ‘‘for political pur-poses.’’

¶ 470 Pursuant to § 11.01(16), an act isdone ‘‘for political purposes’’ when it isintended to influence an election. TheBarland II court considered the meaningof the ‘‘influence an election’’ language inthe context of S 226reporting requirementsand other duties and restrictions applica-ble to the independent political speakers atissue in that case.

¶ 471 The Barland II court announcedthat as applied to independent politicalspeakers, the phrase ‘‘for political pur-poses’’ must be narrowly construed to cov-er only ‘‘express advocacy and its function-al equivalent.’’ 93 The factual scenariopresented to this court in this originalaction was expressly excluded from Bar-land II ’s express-advocacy limiting con-struction.94 Barland II does not requirethis court to apply an express-advocacylimiting construction beyond the context ofthe independent political speech involvedin that case.

90. See O’Keefe, 769 F.3d at 942.

91. McConnell, 540 U.S. at 190, 124 S.Ct. 619.

92. Id. at 191–92, 124 S.Ct. 619 (footnoteomitted).

See also Wis. Right To Life, 551 U.S. at 474n. 7, 127 S.Ct. 2652 (Roberts, C.J., controllingopinion) (‘‘Buckley ’s intermediate step of stat-utory construction on the way to its constitu-

tional holding does not dictate a constitution-al test.’’).

93. Barland II, 751 F.3d at 834.

94. Barland II, 751 F.3d at 834 (‘‘As applied topolitical speakers other than candidates, theircommittees, and political parties, the statutorydefinition of ‘political purposes’ TTT [is] limit-ed to express advocacy and its functionalequivalentTTTT’’) (emphasis added).


¶ 472 Keeping in mind the express-advo-cacy limiting constructions applied inBuckley to the phrases ‘‘relative to a clear-ly identified candidate’’ and ‘‘for the pur-poses of TTT influencing TTT [an] election,’’and in Barland II to the phrase ‘‘for thepurpose of influencing [an] election,’’ Iturn to the vagueness and overbreadthchallenges advanced by Unnamed Movants6 and 7 and accepted by the majorityopinion in this original action.

¶ 473 The fundamental point to remem-ber in deciding campaign finance law casesis that context is key. When vagueness oroverbreadth concerns arise in the cam-paign finance context, they arise withS 227regard to particular conduct and speci-fied political speakers. When a limitingconstruction has been applied to a cam-paign finance statute, it has been appliedwith regard to particular conduct andspecified political speakers.95 Just becausea phrase is vague or overbroad in onecontext within Chapter 11 does not mean itis vague or overbroad throughout theChapter.

¶ 474 The provision at issue in the in-stant case is the requirement in Wis. Stat.§ 11.06(1) that registrants report all con-

tributions received. The definition of‘‘contribution’’ under Chapter 11 comportswith the definition of ‘‘contribution’’ consid-ered in Buckley: Anything of value givenfor the purposes of influencing an election.The Buckley Court expressly declined toapply an express-advocacy limiting con-struction to the phrase ‘‘for the purpose ofinfluencing [an] election’’ in the definitionof ‘‘contribution,’’ finding no constitutionalinfirmity:

The Act does not define the phrase ‘‘forthe purpose of influencing’’ an electionthat determines when a gift, loan, oradvance constitutes a contribution. Oth-er courts have given that phrase a nar-row meaning to alleviate various prob-lems in other contexts. The use of thephrase presents fewer problems in con-nection with the definition of a contribu-tion because of the limiting connotationcreated by the general understanding ofwhat constitutes a political contribu-tion.96

S 228¶ 475 I would adhere to Buckley andits progeny. I would not construe Wis.Stat. § 11.06(1) as excluding coordinateddisbursements for issue advocacy from its

95. See Barland II, 751 F.3d at 837 (‘‘The FirstAmendment vagueness and overbreadth cal-culus must be calibrated to the kind and de-gree of the burdens imposed on those whomust comply with the regulatory scheme.’’).See also United States v. Williams, 553 U.S.285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650(2008) (‘‘[I]t is impossible to determinewhether a statute reaches too far without firstknowing what the statute covers.’’).

96. Buckley, 424 U.S. at 23 n. 24, 96 S.Ct. 612(citations omitted). See also id. at 78–80, 96S.Ct. 612, which addresses the vaguenesschallenge brought against disclosure and re-porting requirements applicable to contribu-tions and expenditures. The Court denied thechallenge insofar as it reached contributions.With regard to expenditures, the Court deniedthe challenge insofar as it reached non-inde-pendent political speakers:

The general requirement that ‘‘politicalcommittees’’ and candidates disclose theirexpenditures could raise similar vaguenessproblems, for ‘‘political committee’’ is de-fined only in terms of amount of annual‘‘contributions’’ and ‘‘expenditures,’’ andcould be interpreted to reach groups en-gaged purely in issue discussion. The low-er courts have construed the words ‘‘politi-cal committee’’ more narrowly. To fulfillthe purposes of the Act they need only en-compass organizations that are under thecontrol of a candidate or the major purposeof which is the nomination or election of acandidate. Expenditures of candidates andof ‘‘political committees’’ so construed canbe assumed to fall within the core areasought to be addressed by Congress. Theyare, by definition, campaign related.

Buckley, 424 U.S. at 79, 96 S.Ct. 612 (foot-notes omitted).


general requirement that ‘‘all contributionsreceived’’ by a candidates or candidate’scampaign committee be reported by thecandidate’s campaign committee.

¶ 476 The second contention advancedby Unnamed Movants 6 and 7—that theconcept of ‘‘coordination’’ is vague andoverbroad and thus must be limited toexpress advocacy or invalidated altogeth-er—also fails.97

¶ 477 Unnamed Movants 6 and 7 do nottether their broader argument to a partic-ular statutory text. They claim that thevarious provisions within Chapter 11 thatmight be interpreted as regulating coordi-naStion229 (such as § 11.06(4)(d), which pro-vides that coordinated disbursements arereportable by a candidate’s campaign com-mittee) fail to define sufficiently the con-cept of coordination. Thus, UnnamedMovants 6 and 7 assert that the provisionsare unconstitutionally vague and over-broad.

¶ 478 In McConnell v. Federal ElectionCommission, 540 U.S. 93, 124 S.Ct. 619,157 L.Ed.2d 491 (2003), overruled on othergrounds by Citizens United v. Fed. Elec-tion Comm’n, 558 U.S. 310, 130 S.Ct. 876,175 L.Ed.2d 753 (2010), the United StatesSupreme Court rejected a similar argu-ment. The federal law under review inMcConnell provided that coordinated ex-penditures were ‘‘expenditures made ‘incooperation, consultation, or concer[t] with,

or at the request or suggestion of’ a candi-date.’’ 98 The McConnell Court stated thatthis ‘‘longstanding definition of coordina-tion ‘delineates its reach in words of com-mon understanding.’ ’’ 99 Thus, the Courtobserved, it had ‘‘survived without consti-tutional challenge for almost three dec-ades.’’ 100 The Court concluded that this‘‘definition of coordination gives ‘fair noticeto those to whom [it] is directed,’ and isnot unconstitutionally vague.’’ 101

¶ 479 The language of Wis. Stat.§ 11.06(4)(d) is similar, though not identi-cal, to the language at issue in McConnell.As in McConnell, this language delineatesthe reach of Chapter 11’s concept of coor-dination ‘‘in words of common understand-ing.’’ 102

¶ 480 Center for Individual Freedom v.Madigan, 697 F.3d 464 (7th Cir.2012) isalso instructive. In Madigan, a 501(c)nonprofit entity engaged in issueS 230advocacy challenged the disclosure re-gime in effect in Illinois as unconstitution-ally vague and overbroad on its face.103

¶ 481 As under Chapter 11, the Illi-nois statutes required contributions to bereported. The challengers took issuewith the definition of ‘‘contribution,’’which included ‘‘[an] expenditure ‘madein cooperation, consultation, or concertwith another political committee’TTTT’’ 104

The Illinois statutes further providedthat the word ‘‘contribution’’ included

97. For a discussion of state and federal cam-paign finance statutes that regulate or definecampaign coordination, see Ferguson, supranote 12. This article argues not only thatcampaign coordination can be regulated con-sistent with the First Amendment but alsothat the coordination subject to regulationshould include third-party expenditures that acandidate deems valuable, as evidenced bythe candidate’s conduct.

98. McConnell, 540 U.S. at 222, 124 S.Ct. 619(2003).

99. Id. (quoted source omitted).

100. Id.

101. Id. at 223, 124 S.Ct. 619 (citation omit-ted).

102. Id. at 222, 124 S.Ct. 619 (internal quota-tion marks omitted).

103. Madigan, 697 F.3d at 470.

104. Id. at 494 (emphasis added).


‘‘any ‘electioneering communication madein concert or cooperation with or at therequest, suggestion, or knowledge of acandidate, a political committee, or anyof their agents.’ ’’ 105

¶ 482 According to the challengers, theseprovisions ‘‘are vague because they do notspecify the ‘degree of actual agreementrequired.’ ’’ 106 Citing McConnell, the Ma-digan court observed that the challengedprovisions are ‘‘no less clear than the fed-eral definition which has long passed mus-ter in the Supreme Court.’’ 107 The Madi-gan court thus rejected the challengers’claim, concluding that ‘‘the coordinationlanguage of [Illinois’ campaign finance law]is clear enough to provide a reasonablyintelligent person ‘fair warning’ of whatsort of conduct is covered.’’ 108

¶ 483 I would adhere to McConnell andMadigan and would decline to hold thatthe concept of ‘‘coordination’’ within Chap-ter 11 is unconstitutionally vague or over-broad. Accordingly, no limiting construc-tion need be applied.

S 231¶ 484 In sum, I conclude that Chap-ter 11’s requirement that a candidate’scampaign committee report coordinateddisbursements for issue advocacy as con-tributions received by the candidate orcandidate’s campaign committee does notviolate the First Amendment and that theprovisions of Chapter 11 imposing this re-quirement are neither vague nor over-broad.

¶ 485 In light of the statutory and con-stitutional validity of the Special Prosecu-tor’s interpretation of Chapter 11 and giv-en the strong policy against intervening inongoing criminal investigations, I concludethat the John Doe proceedings should notbe terminated.

IV

¶ 486 I now examine three issues thatare common to all three of the John Doecases before the court.

A

¶ 487 This court has received severalnon-party motions to file amicus briefs re-garding the merits of the John Doe trilogy.I join the majority opinion’s decision togrant these motions. A grant is consistentwith the court’s Internal Operating Proce-dures and past practices.

¶ 488 Motions to submit amicus briefsaddressing the merits of the John Doetrilogy have been filed by the following:(1) Wyoming Liberty Group; (2) the Wis-consin Government Accountability Board;(3) various former members of the FederalElection Commission; (4) the HonorableBradley A. Smith, the Center for Competi-tive Politics, and Wisconsin Family Action;S 232(5) Campaign Legal Center, Democracy21, Common Cause in Wisconsin, andLeague of Women Voters of Wisconsin;(6) Citizens for Responsible GovernmentAdvocates, Inc.; and (7) Wisconsin Rightto Life.

¶ 489 This court generally grants mo-tions to file amicus briefs ‘‘if it appearsthat the movant has special knowledge orexperience in the matter at issue in theproceedings so as to render a brief fromthe movant of significant value to thecourt.’’ Wis. S.Ct. IOP II–B.6.c. (May 4,2012). I conclude that the movants listedabove have special knowledge or experi-ence and thus that their views would be ofsignificant value to the court. Indeed, in acase of such profound public importance,

105. Id. at 495.

106. Id. at 496.

107. Id.

108. Id. at 497.


this court can use all the help that isoffered.

B

¶ 490 The Special Prosecutor requestedthe recusal of certain justices from theJohn Doe trilogy.

¶ 491 Non-party motions requesting tofile amicus briefs on the recusal issue werefiled by the following: (1) the James Madi-son Center for Free Speech; (2) the Eth-ics and Public Policy Center; and (3) agroup of professors of legal ethics.

¶ 492 On a motion to disqualify a justice,justices have, in other cases, explainedwhy they will participate 109 or why theywill not.110 The justices S 233named in therecusal motion at issue are obviously par-ticipating. As of the date this writing wasreleased for mandate, they have providedno response to the motion, however, choos-ing instead to remain silent.

¶ 493 The Special Prosecutor’s recusalmotion can be read in multiple ways. Itcan easily be read as being directed only tothe named justices, seeking their self-dis-qualification. It can also be read as direct-ed to the court, seeking the court’s reviewof a Justice’s statement that he or she

need not self-disqualify. As of the datethis writing was released for mandate, nojustice has made such a statement in theinstant cases. Finally, the Special Prose-cutor’s recusal motion can be read as seek-ing the court’s review of due process con-siderations should the named Justiceschoose not to self-disqualify.

¶ 494 The Special Prosecutor’s recusalmotion cites Caperton v. A.T. Massey CoalCo., 556 U.S. 868, 129 S.Ct. 2252, 173L.Ed.2d 1208 (2009). In Caperton, theplaintiff moved to disqualify a justice ofthe Supreme Court of West Virginia onthe grounds of bias resulting from cam-paign contributions and expenditures.The justice denied the plaintiff’s S 234motion,and the Supreme Court of West Virginiaruled against the plaintiff on the merits ofthe case. The United States SupremeCourt reversed and remanded, ruling thatdue process required recusal under thecircumstances presented.

¶ 495 Caperton teaches that there are‘‘circumstances ‘in which experience teach-es that the probability of actual bias on thepart of the judge or decisionmaker is toohigh to be constitutionally tolerable.’ ’’ 111

109. See, e.g., State v. Henley, 2010 WI 12, 322Wis.2d 1, 778 N.W.2d 853 (memorandumopinion by Justice Roggensack explaining herdecision not to disqualify herself).

See also State v. Allen, 2010 WI 10, 322Wis.2d 372, 778 N.W.2d 863. In Allen, thedefendant filed a motion before Justice Gable-man individually seeking his recusal. JusticeGableman denied the motion without expla-nation on September 10, 2009. Id., ¶ 15.The defendant then filed a supplemental mo-tion addressed to the whole court, seekingreview of whether Justice Gableman hadproperly considered whether he could act im-partially or whether it appeared he could notact impartially. Id., ¶ 16. On January 15,2010, Justice Gableman then filed a supple-ment to his September 10, 2009, order, ex-plaining why he had denied the recusal mo-

tion. Id., ¶ 17. On February 4, 2010, hewithdrew from participation in the court’sconsideration of the recusal motion. Id.,¶ 18. The remaining members of the courtwere evenly divided regarding whether todeny the defendant’s recusal motion or orderbriefs and oral argument on the matter. Ac-cordingly, the motion was not granted.

110. Early on in the instant litigation (longbefore any recusal motion was filed), JusticeAnn Walsh Bradley advised all parties thatshe was not participating. Her statement ofnon-participation is attached hereto as Exhib-it D.

111. Caperton v. A.T. Massey Coal Co., 556U.S. 868, 877, 129 S.Ct. 2252, 173 L.Ed.2d1208 (2009) (citations omitted).


¶ 496 Caperton holds that ‘‘Due Processrequires an objective inquiry into whetherthe contributor’s influence on the electionunder all the circumstances ‘would offer apossible temptation to the average TTT

judge to TTT lead him [or her] not to holdthe balance nice, clear and true.’ ’’ 112 Seealso Williams–Yulee v. Fla. Bar, ––– U.S.––––, 135 S.Ct. 1656, 1667, 191 L.Ed.2d 570(2015) (‘‘[E]ven if judges were able to re-frain from favoring donors, the mere possi-bility that judges’ decisions may be moti-vated by the desire to repay campaigncontributions is likely to undermine thepublic’s confidence in the judiciary.’’) (in-ternal quotation marks omitted).

¶ 497 According to the Caperton Court,the participation of a justice who shouldhave disqualified himself or herself violatesa litigant’s constitutional due processrights and necessitates a do-over.113 For adiscussion of a justice’s recusal in Wiscon-sin, see State v. Herrmann, 2015 WI 84,––– Wis.2d ––––, 867 N.W.2d 772.

¶ 498 If the Special Prosecutor is pre-senting a due process argument to thecourt as a whole—that is, if the SpecialProsecutor is asking the court to declareS 235whether participation by the justicesnamed in the recusal motion violates dueprocess rights—such a motion should bemade more clearly.

¶ 499 In any event, the Special Prosecu-tor’s recusal motion and the motions to file

amicus briefs on the issue of recusal re-main unresolved.

C

¶ 500 Over the extended lives of theJohn Doe trilogy in this court, the courthas accepted the parties’ filings under sealfor long periods without examining or rul-ing on the validity of the parties’ motionsto seal. Since beginning to examine thesealed documents, the court has kept toomany documents under seal and has al-lowed the parties to redact too much infor-mation from their filings.114

¶ 501 The court’s decisions on sealingand redaction up to this point have beenrooted entirely in the sweeping John Doesecrecy orders that were issued by theJohn Doe judge many months ago undervery different circumstances. This court,in my opinion, should have independentlydetermined whether the justifications forsecrecy in John Doe proceedings still ap-ply to the John Doe trilogy in this court.Instead, the court has, for the most part,continued to seal or redact S 236all docu-ments that were sealed by the John Doejudge without making this determination,concluding that its obligation is to abide bythe John Doe judge’s secrecy order.

¶ 502 Although I have publicly disagreedwith the court’s orders regarding sealingand redactions,115 I have made every effort

112. Id. (citations omitted).

113. Id. at 885–87, 129 S.Ct. 2252.

114. The Special Prosecutor claims that muchof the information the John Doe secrecy or-ders and this court’s redaction orders intend-ed to conceal has been divulged through me-dia leaks. The Special Prosecutor pointedlywonders what the court is going to do, ifanything, about these alleged leaks.

I anticipate that a motion to open thiscourt’s records and briefs regarding the John

Doe trilogy will be filed when the three casesare completed. The sealed and redacted ma-terial will not be released, however, without amotion, opportunity to be heard, and courtorder.

115. For a full discussion of my reasons forobjecting to the extensive sealing and redac-tions ordered by the court in these cases,please see my dissents in each of the follow-ing three orders issued by this court onMarch 27, 2015: (1) an order denying theMilwaukee Journal Sentinel’s motion to inter-vene in the John Doe cases for the sole pur-


to abide by those orders. Precedent re-quires me and this court to abide by thiscourt’s secrecy orders. State ex rel. Nied-ziejko v. Coffey, 22 Wis.2d 392, 398, 126N.W.2d 96 (1964), relied on by this court’ssealing and redaction orders, provides thatsecrecy orders issued by a magistrate arebinding on that magistrate. In the instantcase, this court is the magistrate that is-sued the relevant secrecy orders. Thus,the secrecy orders bind not just the par-ties, but also this court.

¶ 503 The court’s March 27, 2015, redac-tion order recognizes this principle, statingthat ‘‘the fact that a John Doe proceedingbecomes the subject of review in an appel-late court TTT does not eliminate the secre-cy of documents and other informationthat are covered by a secrecy order issuedby a John Doe judge.’’

S 237¶ 504 The majority opinion and Jus-tice Prosser’s concurrence disregard thisprinciple.116 The majority opinion de-clares, without citation to any authority,that ‘‘we can interpret the secrecy orderand modify it to the extent necessary forthe public to understand our decision here-in.’’ 117 Justice Prosser’s concurrence dis-cusses the policy reasons underlying secre-cy in John Doe proceedings, concludes thatthey do not support continued concealmentof certain facts underlying the John Doetrilogy, and then unilaterally determinesthat ‘‘those facts are now outside the scopeof the secrecy order.’’ 118

¶ 505 The majority opinion and JusticeProsser’s concurrence not only defy thiscourt’s March 27, 2015, redaction order;

they also contradict that order’s reasoning.The court’s March 27, 2015, redaction or-der explicitly concludes that a John Doejudge’s secrecy order remains bindingwhen the John Doe proceedings subject tothat order reach this court.

¶ 506 In sum: I have repeatedly dissent-ed to the excessive sealing and redactionsthis court has imposed in the John Doetrilogy and I have repeatedly dissented tothis court’s position that the John Doesecrecy order automatically binds thiscourt, but I nevertheless conclude that thesecrecy orders issued by this court (overmy dissent) are binding on this court. Asexplained above, it is settled law that a‘‘magistrate’’ who issues a secrecy order isbound by that S 238secrecy order. The ma-jority opinion and Justice Prosser’s con-currence improperly ignore this principle.

* * * *

¶ 507 For the reasons set forth, I dissentto the majority opinion’s resolution of theoriginal action.

2014AP417–W through 2014AP421–W:Supervisory Writ & Appeal: State ofWisconsin ex rel. Francis D.Schmitz v. Gregory A. Peterson,John Doe Judge

¶ 508 In the second John Doe case be-fore the court, the Special Prosecutor peti-tioned the court of appeals for a superviso-ry writ and writ of mandamus seekingreview of a decision and order of the JohnDoe judge dated January 10, 2014, whichquashed subpoenas and ordered the return

pose of advocating for increased public access(attached hereto as Exhibit E); (2) an ordercanceling oral argument (attached hereto asExhibit B); and (3) an order relating to re-daction (attached hereto as Exhibit C).

See also my dissents to orders issued by thiscourt on April 1, 2015, and April 17, 2015, aswell as a letter dated May 12, 2015 issued byDiane Fremgen, Clerk of Supreme Court.

116. See, for example, the quote set forth in¶ 256 of Justice Prosser’s concurrence, pulledfrom an Unnamed Movant’s brief. This quoteis redacted in its entirety in the UnnamedMovant’s redacted brief.

117. Majority op., ¶ 14 n. 11.

118. Justice Prosser’s concurrence, ¶ 145.


of property seized pursuant to search war-rants.

¶ 509 The defendants are the John Doejudge and eight Unnamed Movants. Sev-eral Unnamed Movants filed petitions tobypass the court of appeals, which thiscourt granted.

¶ 510 The John Doe judge’s January 10,2014, order was based on his conclusion oflaw that the Wisconsin statutes do notregulate disbursements for issue advocacymade by a 501(c) nonprofit entity in coor-dination with a candidate or candidate’scampaign committee.119 The John Doejudge appears to have reached this conclu-sion of law based in part on First Amend-ment principles.

¶ 511 This court must decide whether toissue a supervisory writ reversing theJohn Doe judge’s January 10, 2014, order.The majority opinion holds that noS 239supervisory writ shall issue because theSpecial Prosecutor has not met one of thecriteria for the issuance of a supervisorywrit. According to the majority opinion,the Special Prosecutor has failed to provethat the John Doe judge violated a plainlegal duty when he quashed subpoenas andordered the return of property seized pur-suant to search warrants.120

¶ 512 The majority opinion holds notthat the John Doe judge’s interpretation ofWisconsin’s campaign finance statutes wascorrect (although the majority opinion’sdiscussion of the original action implies asmuch), but rather that the validity of theJohn Doe judge’s interpretation and appli-cation of statutes is not a proper basisupon which this court can issue a supervi-

sory writ.121 I strongly disagree with themajority opinion.

¶ 513 The purpose of the supervisorywrit sought by the Special Prosecutor is toprovide for ‘‘the direct control of TTT judi-cial officers who fail to fulfill non-discre-tionary duties, causing harm that cannotbe remedied through the appellate reviewprocess.’’ 122

¶ 514 The John Doe judge had a non-discretionary legal duty in the instant caseto correctly interpret Wisconsin’s cam-paign finance statutes to determine wheth-er and how they address coordination be-tween a candidate or candidate’s campaigncommittee and a 501(c) nonprofit entityengaged in issue advocacy. For the rea-sons set forth in my dissent to the originalaction, I conclude that the John Doe judgeS 240violated this nondiscretionary legal dutyby misinterpreting and misapplying thelaw.123

¶ 515 A decision of a John Doe judge canbe reviewed only by means of a superviso-ry writ. A decision of a John Doe judgecannot be reviewed by direct appeal. Be-cause the John Doe judge ‘‘fail[ed] to fulfill[a] non-discretionary dut[y], causing harmthat cannot be remedied through the ap-pellate review process,’’ I would grant theSpecial Prosecutor’s writ petition.

¶ 516 In contrast, the majority opinionreaches the perplexing conclusion that al-though the foundation of the entire legalsystem rests on a judge’s obligation tocorrectly interpret and apply the law, theJohn Doe judge’s obligation to correctlyinterpret and apply the law is not the type

119. See majority op., ¶¶ 34–36, 75, 97.



122. See majority op., ¶ 81 (quoting State exrel. Kalal v. Circuit Court, 2004 WI 58, ¶ 24,

271 Wis.2d 633, 681 N.W.2d 110 (emphasisadded)).

123. My dissent in the instant case should beread in conjunction with my dissent in theoriginal action. See ¶¶ 389–507, supra.


of plain legal duty contemplated by thesupervisory writ procedure. In reachingthis conclusion, the majority opinion relieson a single conclusory sentence (devoid ofcitation to any authority) that appears inState ex rel. Kalal v. Circuit Court, 2004WI 58, ¶ 24, 271 Wis.2d 633, 681 N.W.2d110.

¶ 517 In Kalal, a supervisory writ case,the petitioner argued that judges have aplain legal duty to correctly find the factsand apply the law.124 The Kalal courtdeclared that it could not accept this prop-osition ‘‘as it would extend supervisoryjurisdiction to a virtually unlimited rangeof decisions involving the finding of factsand application of law.’’ 125 The Kalalcourt explained its position as follows:

S 241The obligation of judges to correctlyapply the law is general and implicit inthe entire structure of our legal system.The supervisory writ, however, serves anarrow function: to provide for the di-rect control of lower courts, judges, andother judicial officers who fail to fulfillnon-discretionary duties, causing harmthat cannot be remedied through theappellate review process. To adopt theKalals’ interpretation of the plain dutyrequirement in supervisory writ proce-dure would transform the writ into anall-purpose alternative to the appellatereview process.126

¶ 518 The majority opinion takes thisdiscussion in Kalal out of context, readingit without any meaningful understandingof precedent or the nature of review bysupervisory writ of a John Doe judge’sorder. Indeed, the majority opinion’s in-terpretation of Kalal is so overbroad thatKalal and the majority opinion are re-duced to balderdash.

¶ 519 To understand Kalal and the plainlegal duty criterion in supervisory writcases, one must harken back to the classicexpression of what constitutes a plain legalduty and then trace the evolution of theconcept in the context of supervisory writprocedure. Kalal must be read and un-derstood in historical context, in light ofsupervisory writ cases preceding and sub-sequent to Kalal, and in recognition of acourt’s discretion to grant or deny a re-quested supervisory writ.

¶ 520 The classic articulation of the plainlegal duty concept was set forth in In rePetition of Pierce–Arrow Motor Car Co.,143 Wis. 282, 127 N.W. 998 (1910). InPierce–Arrow, the defendant sought to va-cate service of a summons. The defendantrequested that this court exercise its ‘‘gen-eral superintending control S 242over all infe-rior courts’’ under Article VII, Section 3 ofthe Wisconsin Constitution.127

¶ 521 The Pierce–Arrow court concludedthat the legal validity of service ‘‘may welladmit of different opinions by equally able

124. State ex rel. Kalal v. Circuit Court, 2004WI 58, ¶ 23, 271 Wis.2d 633, 681 N.W.2d 110.

125. Id., ¶ 24.

126. Id. (emphasis added, citations omitted).

127. In re Petition of Pierce–Arrow Motor CarCo., 143 Wis. 282, 285, 127 N.W. 998 (1910).

At the time the Pierce–Arrow case was de-cided, Article VII, Section 3 of the WisconsinConstitution stated in relevant part as follows:‘‘The supreme court shall have a general su-perintending control over all inferior courts;

it shall have the power to issue writs of TTT

mandamus, injunction TTT and other originaland remedial writs, and to hear and deter-mine the same.’’

Since 1978, Article VII, Section 3(1) of theWisconsin Constitution has provided that‘‘[t]he supreme court shall have superintend-ing and administrative authority over allcourts.’’ Section 3(2) states that ‘‘[t]he su-preme court may issue all writs necessary inaid of its jurisdiction.’’


legal minds.’’ 128 The court determinedthat because the legal question of whetherservice was valid was debatable, the circuitcourt had not violated a plain legal duty.

¶ 522 The Pierce–Arrow court explained:

One of the cardinal rules is that the dutyof the court below must be plain. Thesituation must be such that hardly morethan a statement of the facts is neces-sary to convince the legal mind as to theduty of the court. Where there is nosuch clear and obvious duty, based ei-ther upon common-law principles orupon express statute, but where ques-tions of law or fact or both are involvedof such difficulty that ‘‘a judge may rea-sonably, proceeding considerately, com-mit judicial error,’’ the court will refuseto intervene under its power of superin-tending control, but will leave the par-ties to their remedy by appeal.129

S 243¶ 523 Pierce–Arrow represented thecourt’s view of the plain legal duty criteri-on for the issuance of a supervisory writup to 1921.130 Thereafter, the court’s viewof what constitutes a plain legal dutychanged significantly.131

¶ 524 In 1921, the court decided In reInland Steel Co., 174 Wis. 140, 182 N.W.917 (1921). In 1932, the court decidedState ex rel. Hustisford Light, Power &Manufacturing Co. v. Grimm, 208 Wis.366, 370–71, 243 N.W. 763 (1932). In thesetwo cases, the court concluded that eventhough the question of law presented may

be subject to reasonable debate, the courtmay exercise its original and supervisorypower when an appeal would not providean adequate remedy.

¶ 525 These cases make the followingpoint clear: ‘‘[T]he fact that the duty ofthe trial court in the premises can only bedetermined by a careful consideration ofthe facts and the law applicable to thesituation is no barrier to the exercise ofth[e supervisory writ] power.’’ 132

¶ 526 In 1941, Justice John D. Wickhem,who served on the Wisconsin SupremeCourt from 1930 to 1949, explained thedeveloping case law on the concept of plainlegal duty as follows:

S 244The purpose of this [supervisory writ]jurisdiction is to protect the legal rightsof a litigant when the ordinary processesof action, appeal and review are inade-quate to meet the situation, and wherethere is need for such intervention toavoid grave hardship or complete denialof these rights.

TTTT

The later cases hold that an exercise ofthe court’s superintending control maybe justified in spite of the fact that adetermination of the duty of the inferiorcourt and the scope of the petitioner’srights may present difficult and closequestions of law.133

¶ 527 A supervisory writ has been issuedin numerous cases in which a ruling of a

128. Pierce–Arrow, 143 Wis. at 287, 127 N.W.998.

129. Pierce–Arrow, 143 Wis. at 286, 127 N.W.998 (emphasis added).

130. See John D. Wickhem, The Power of Su-perintending Control of the Wisconsin SupremeCourt, 1941 Wis. L.Rev. 153, 163 (1941).This article is generally viewed as the bestexplanation of the Wisconsin constitutionalprovision regarding superintending authorityand writs.

131. John D. Wickhem, The Power of Superin-tending Control of the Wisconsin SupremeCourt, 1941 Wis. L.Rev. 153, 161 (1941).

132. See State ex rel. Hustisford Light, Power &Mfg. Co. v. Grimm, 208 Wis. 366, 371, 243N.W. 763 (1932).

133. John D. Wickhem, The Power of Superin-tending Control of the Wisconsin SupremeCourt, 1941 Wis. L.Rev. 153, 161, 164 (1941).


judge or a circuit court interpreting a stat-ute was challenged as erroneous—eventhough the proper interpretation of thestatute was not plain or raised a novelquestion—and either no appeal was per-mitted or appellate review would havecome too late for effective redress.134

¶ 528 For example, in a recent case enti-tled Madison Metropolitan School Districtv. Circuit Court, 2011 WI 72, 336 Wis.2d95, 800 N.W.2d 442, the court of appealstransformed an appeal into a supervisorywrit. The issue before the court of ap-peals was whether the circuit court hadexceeded its authority by interpreting theapplicable statutes as allowing a circuitcourt to direct a school district to providea child with alternative educational ser-vices.135

S 245¶ 529 The circuit court contended inMadison Metropolitan School Districtthat the supervisory writ should be denied,arguing that ‘‘its duty was not plain, be-cause it was faced with a novel question oflaw requiring harmonization of severalstatutory provisions.’’ 136 In contrast, theschool district argued that a supervisorywrit should be granted because ‘‘the circuitcourt did not have authority, express orimplied, to order’’ the school district toprovide the child with alternative edu-cational services.137 The court of appealssided with the school district, granting thewrit.

¶ 530 This court spent 34 paragraphs (13pages in the Wisconsin Reports) analyzing

and interpreting the statutes at issue inorder to determine the powers of the cir-cuit court and school district. Obviously,the meaning of the statutes was not plain;the case presented a novel issue of law.Nevertheless, after a lengthy statutoryanalysis, this court affirmed the court ofappeals decision granting the writ.

¶ 531 In deciding that a supervisory writwas warranted, the Madison MetropolitanSchool District court explained that ‘‘thecircuit court’s duty was plain: to keepwithin the scope of its statutory authori-ty.’’ 138 It then continued: ‘‘Because wehave concluded that the circuit court’s dutyto keep within the bounds of its lawfulauthority was plain, its violation of thatduty was clear when it ordered the Districtto provide educational resourcesTTTT’’ 139

S 246¶ 532 Notably, Kalal was never men-tioned in the majority opinion in MadisonMetropolitan School District, although thecourt was well aware of Kalal. Kalal wasargued in the briefs and in the dissent.

¶ 533 Madison Metropolitan School Dis-trict and numerous other cases teach thatKalal does not mean that a supervisorywrit cannot issue when a case presents adifficult or close question of law. Rather,Kalal is best understood as demonstratingthat a reviewing court has discretionwhether to issue a supervisory writ, evenwhen the trial court or judge under reviewviolated a plain legal duty. The reviewing

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. CircuitCourt, 2011 WI 72, 336 Wis.2d 95, 800N.W.2d 442.

135. Article VII, Section 5(3) of the WisconsinConstitution provides: ‘‘The appeals courtmay issue all writs necessary in aid of itsjurisdiction and shall have supervisory au-

thority over all actions and proceedings in thecourts in the district.’’

136. Madison Metro. Sch. Dist., 336 Wis.2d 95,¶ 84, 800 N.W.2d 442.

137. Id., ¶ 84.

138. Id.

139. Id., ¶ 85.


court considers several factors and equita-ble principles in deciding whether to issuea supervisory writ.140

¶ 534 Indeed, in an opinion issued justone year before Kalal (and authored bythen-Justice Sykes, who wrote Kalal ), thiscourt stated in no uncertain terms that acourt’s decision to issue a supervisory writ‘‘is a discretionary determination that isreviewed for an erroneous exercise of thatdiscretion.’’ 141

¶ 535 Thus, properly understood, Kalalinvolved a discretionary call. Kalal doesnot support the majority opinion’s viewthat a supervisory writ cannot be issuedwhen the legal issue presented is subjectto reasonable debate.

S 247¶ 536 If this court’s interpretation ofthe applicable statutes differs from that ofthe John Doe judge (that is, if the JohnDoe judge misinterpreted the law), thenthe John Doe judge erroneously exercisedhis discretion in issuing the January 10,2014, order, and a supervisory writ is ap-propriate. Two examples illustrate thispoint.

¶ 537 Example 1. If the John Doejudge’s order was based on an erroneousview of Chapter 11 or the First Amend-ment but is not reviewed by this court, nofurther review occurs and both the SpecialProsecutor and the public at large aredeprived of the enforcement of statutesintended to protect the integrity of Wis-consin’s elections. This result amounts toa virtual nullification of a duly enacted lawand imposes a serious hardship on thepeople of this state.

¶ 538 Example 2. If the John Doe judgehad ruled in favor of the Special Prosecu-tor and the John Doe proceedings contin-ued, then unless a supervisory writ wereavailable to the Unnamed Movants, theycould not challenge the John Doe judge’sruling until criminal charges were filed.Such a situation, Unnamed Movants 6 and7 would surely claim, would impose a seri-ous hardship on them.

¶ 539 In sum, a supervisory writ is theproper procedure for correcting a JohnDoe judge’s erroneous application of thelaw when an appeal is not available orwould come too late for effective redress.142

The majority opinion errs in holding other-wise.

¶ 540 For the reasons set forth, I con-clude that the court should decide whetherthe John Doe judge’s January 10, 2014,order was based on a misinterpreStation248

of Wisconsin’s campaign finance statutes.Because I conclude that it was, I furtherconclude that the Special Prosecutor hasmet the criteria for the issuance of a su-pervisory writ. I would grant the writpetition.

¶ 541 Accordingly, I dissent.

Nos. 2013AP2504–W through2013AP2508–W: Supervisory Writ &Review State of Wisconsin ex rel.Three Unnamed Petitioners v. Greg-ory A. Peterson, John Doe Judge;Gregory Potter, Chief Judge; 143 andFrancis D. Schmitz, as Special Pros-ecutor

¶ 542 In this third case, the final case inthe John Doe trilogy, Unnamed Movants 2,

140. See, for example, the following cases ex-plaining that the issuance of a supervisorywrit involves the exercise of discretion: Madi-son Metro. Sch. Dist., 336 Wis.2d 95, ¶ 34, 800N.W.2d 442; Kalal, 271 Wis.2d at 649, 681N.W.2d 110; State ex rel. Kurkierewicz v. Can-non, 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, 262 Wis.2d 652, 664 N.W.2d 584. Seealso majority op., ¶ 105.

142. Dressler, 163 Wis.2d at 630, 472 N.W.2d532; State ex rel. Storer Broad. Co. v. Goren-


6, and 7 seek review of an opinion andorder of the court of appeals that deniedthe three Unnamed Movants’ petition forsupervisory writs of mandamus and prohi-bition. The respondents are the John Doejudge, the chief judges of the counties inwhich the cases are underway, and theSpecial Prosecutor.

¶ 543 In their petition to the court ofappeals seeking supervisory writs, thethree Unnamed Movants alleged, in rele-vant part, the following errors of law in theJohn Doe proceedings:

(1) The multi-county nature of the JohnDoe investigation is contrary to Wis-consin law.

(2) The John Doe judge had no authori-ty to appoint the Special Prosecutorwithout satisfying the criteria setforth in Wis. Stat. § 978.045(1r).

(3) The John Doe Judge had no authori-ty to appoint a special prosecutor toact in multiple counties.

S 249¶ 544 These allegations raise multipleoverlapping questions of law regarding theprocedural validity of the Special Prosecu-tor’s appointment, the competency of theSpecial Prosecutor to conduct the JohnDoe investigation, and the legitimacy of amulti-county John Doe investigation underWisconsin law.

¶ 545 The court of appeals rejected thearguments of the three Unnamed Movantsand denied their writ petition. The major-ity opinion affirms the court of appealsorder denying the writ petition. The peti-

tion for review in this court did not raiseall the issues raised before the court ofappeals or all the issues this court raisedin its December 16, 2014, order (attachedhereto as Exhibit A). I agree with themajority opinion that the court of appealsorder should be affirmed. I reach thisresult, however, using significantly differ-ent reasoning than the majority opinion.

¶ 546 The majority opinion concludesthat the John Doe judge’s obligation to‘‘correctly find facts and apply the law isnot the type of plain legal duty contem-plated by the supervisory writ proce-dureTTTT’’ 144 Because the majority opiniondetermines that the three Unnamed Mov-ants have failed to fulfill the plain legalduty criterion, it declares that they havefailed to ‘‘satisfy the stringent precondi-tions for a supervisory writ.’’ 145

¶ 547 The majority opinion’s discussionof the plain legal duty criterion is reminis-cent of its analysis in the second case inthe John Doe trilogy.146 For the reasonsset forth in my dissent in the second casein S 250the John Doe trilogy (see ¶¶ 498–521,supra ), I take issue with the majorityopinion’s explanation and application of theplain legal duty concept. I will not repeatthat discussion here.

¶ 548 I conclude that the court of ap-peals was required to interpret and applythe applicable law to determine whether

stein, 131 Wis.2d 342, 347, 388 N.W.2d 633(Ct.App.1986).

143. What I refer to as ‘‘the third case’’ com-prises five cases. One of the defendants ineach case is the chief judge of the county inwhich the case is pending.



146. See majority op., ¶¶ 95–99 (discussing theplain legal duty issue presented in the secondcase within the John Doe trilogy), ¶ 107–132(discussing the plain legal duty issues present-ed in the third case within the John Doetrilogy).


the John Doe judge had violated a plainlegal duty. The court of appeals had dis-cretion, however, whether to grant or denythe three Unnamed Movants’ writ petition.

¶ 549 I consider whether the court ofappeals properly exercised its discretion indenying the Unnamed Movants’ writ peti-tion by correctly interpreting and applyingthe applicable law.147 I decide the under-lying legal questions faced by the court ofappeals independently, but benefit fromthe court of appeals’ analysis.148

¶ 550 In determining that there were noprocedural defects in the John Doe pro-ceedings and thus that a supervisory writwas not warranted, the court of appealsrelied on established case law, includingState v. Cummings, 199 Wis.2d 721, 546N.W.2d 406 (1996); State v. Carlson, 2002WI App 44, 250 Wis.2d 562, 641 N.W.2d451; State ex rel. Friedrich v. CircuitCourt, 192 Wis.2d 1, 531 N.W.2d 32 (1995);and State v. Bollig, 222 Wis.2d 558, 587N.W.2d 908 (Ct.App.1998). These casesare persuasive.

S 251¶ 551 I conclude that the court ofappeals correctly decided the questions oflaw presented in the three Unnamed Mov-ants’ writ petition as follows:

(1) The initiation of multiple, parallelJohn Doe proceedings related to asingle criminal investigation is per-mitted under Wisconsin law. This isan effective and efficient way of pro-ceeding.

(2) The John Doe judge did not rely onWis. Stat. § 978.045(1r) to appointthe Special Prosecutor. Rather, theJohn Doe judge made the appoint-ment pursuant to inherent judicialauthority. The John Doe judge hadsuch authority regardless of whetherthe statutory conditions set forth inWis. Stat. § 978.045(1r) were met.Case law makes clear that a JohnDoe judge’s powers extend beyondthe powers conferred by statute toinclude all powers necessary to con-duct the John Doe investigatory pro-ceeding.149

147. The court of appeals has discretionwhether to issue a supervisory writ. If thecourt of appeals misinterpreted or misappliedapplicable law, it erroneously exercised itsdiscretion. City of Madison v. DWD, 2003 WI76, ¶ 10, 262 Wis.2d 652, 664 N.W.2d 584.See also majority op., ¶ 102–106 (setting forththe standard of review applicable to the in-stant supervisory writ case).

148. City of Madison v. DWD, 2003 WI 76,¶ 10, 262 Wis.2d 652, 664 N.W.2d 584.

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 author-ity stems both from the statutes and frompowers inherent to a judgeTTTT A John Doejudge’s powers are not, however, limited tothose enumerated in Wis. Stat. § 968.26 [theJohn Doe statute]TTTT A John Doe judge’sinherent authority stems from a John Doejudge’s judicial officeTTTT [A] John Doejudge’s inherent power encompasses all pow-ers necessary for the John Doe judge to ‘carryout his or her responsibilities with respect to

the proper conduct of John Doe proceed-ings.’ ’’ (quoted source omitted)); In re JohnDoe Proceeding, 2003 WI 30, ¶ 54, 260 Wis.2d653, 660 N.W.2d 260 (‘‘A John Doe judge isalso entitled to exercise the authority inherentin his or her judicial office.’’); State v. Cum-mings, 199 Wis.2d 721, 736, 546 N.W.2d 406(1996) (‘‘A grant of jurisdiction by its verynature includes those powers necessary tofulfill the jurisdictional mandate.’’).

Although the legislature created John Doeproceedings, the separation of powers doc-trine bars the legislature from ‘‘unduly bur-dening,’’ ‘‘materially impairing,’’ or ‘‘substan-tially interfering’’ with the inherent powers ofthe judicial branch, including the inherentpowers of the John Doe judge in the instantcases. See State v. Holmes, 106 Wis.2d 31,68–69, 315 N.W.2d 703 (1982). See also ma-jority op., ¶ 127, and Justice Prosser’s concur-rence, ¶¶ 208–210, 216, 239, both of whichimproperly allow the legislature to trump theinherent judicial powers of the John Doejudge.


S 252(3) The John Doe judge issued fiveseparate orders appointing the SpecialProsecutor, one for each county’s JohnDoe proceeding. The same prosecutormay serve multiple appointments in re-lated proceedings. Thus, a John Doejudge may lawfully appoint the samespecial prosecutor to proceedings un-derway in several counties. This is aneffective and efficient way of proceed-ing.

(4) Even if there were procedural errorsin the Special Prosecutor’s appoint-ment (and I do not believe therewere), the Special Prosecutor hascompetency to proceed.150

¶ 552 The court of appeals was not pre-sented with argument regarding the proce-dural validity of the John Doe judge’s ap-pointment and the competency of the JohnDoe judge to conduct the John Doe pro-ceedings. That argument was, however,advanced in this S 253court. It is withoutmerit, as the majority opinion makesclear.151

¶ 553 Because the court of appeals prop-erly interpreted and applied the applicable

law, I conclude that it did not erroneouslyexercise its discretion in denying the threeUnnamed Movants’ writ petition. Thecourt of appeals decision should be af-firmed.

¶ 554 In closing, I note that even if thiscourt determined that the John Doe pro-ceedings were procedurally defective andthat a supervisory writ is warranted, onlythose Unnamed Movants who raised theobjection before the John Doe judge maybe entitled to any relief. If not raised,these objections were waived (forfeited).See Village of Trempealeau v. Mikrut,2004 WI 79, ¶ 27, 273 Wis.2d 76, 681N.W.2d 190 (stating that ‘‘the common-lawwaiver [forfeiture] rule applies to chal-lenges to the circuit court’s competency’’and explaining that a competency chal-lenge is waived as a matter of right ifraised for the first time on appeal); In reCommitment of Bollig, 222 Wis.2d 558,564, 587 N.W.2d 908 (Ct.App.1998) (provid-ing that a defect in the appointment of aspecial prosecutor is waived (forfeited) ifraised for the first time on appeal).

¶ 555 For the reasons set forth, I writeseparately.

150. Whether the Special Prosecutor is de-prived of competency on account of a proce-dural defect in his appointment turns onwhether the defect was ‘‘central’’ to the pur-pose of Wis. Stat. §§ 978.045(1r) (settingforth conditions for the appointment of a spe-cial prosecutor). The court of appeals deter-mined in In re Commitment of Bollig, 222Wis.2d 558, 571, 587 N.W.2d 908 (Ct.App.1998), that the purpose of § 978.045(1r) is tocontrol costs, as the State pays an appointed

special prosecutor for work that would ordi-narily be performed by a district attorney. Itseems implausible to suggest that the coststhe State has incurred on account of a singlespecial prosecutor’s appointment are substan-tial enough to render the alleged defect in theSpecial Prosecutor’s appointment central tothe cost-controlling objective of§ 978.045(1r).

151. See majority op., ¶¶ 108–113.


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S 339N. PATRICK CROOKS, J. (concur-ring in part, dissenting in part).

¶ 556 The United States Supreme Courthas recently acknowledged that ‘‘Judges

are not politicians, even when they come tothe bench by way of the ballot.’’Williams–Yulee v. Florida Bar, ––– U.S.––––, 135 S.Ct. 1656, 1662, 191 L.Ed.2d 570


(2015). Williams–Yulee involved whethera judicial conduct rule prohibiting judicialcandidates from personally soliciting cam-paign funds violated the First Amendmentto the United States Constitution. Id. Inconcluding that the First Amendment per-mits the particular regulation of speech atissue, the Supreme Court stressed:

In deciding cases, a judge is not tofollow the preferences of his supporters,or provide any special consideration tomust ‘‘observe the utmost fairness,’’striving to be ‘‘perfectly and completelyindependent, with nothing to influenceor controul him but God and his con-science.’’

Id. at 1667 (citing Address of John Marhiscampaign donors. A judge instead shall,in Proceedings and Debates of the VirginiaState Convention of 1829–1830, p. 616(1830)).

¶ 557 These principles must serve asguideposts for all of us as judges in thecourts of Wisconsin, whether or not thecase or cases at issue involve significantpolitical overtones, as these John Doecases do.

¶ 558 It is with these important tenets inmind that I write separately.

¶ 559 By erroneously concluding thatcampaign committees do not have a dutyunder Wisconsin’s campaign-finance law,Wis. Stat. ch. 11 (2011–12),1 to report re-ceipt of in-kind contributions in the formof S 340coordinated spending on issue advo-cacy,2 the majority rejects the specialprosecutor’s primary argument regardingcriminal activity. Although the specialprosecutor advances a secondary argu-ment of criminal activity concerning coor-dinated express advocacy, the majority in-explicably ignores that argument. These

mistakes lead the majority to terminate avalid John Doe 3 investigation in an un-precedented fashion.

¶ 560 With respect to the special prose-cutor’s primary argument, which is thefocus of my writing, the majority misap-plies the related doctrines of overbreadthand vagueness. Unlike the majority, Iconclude that Wis. Stat. § 11.06(1) is nei-ther overbroad nor vague in its require-ment that campaign committees reportreceipt of in-kind contributions. The ma-jority also makes the troubling pro-nouncement that an act is not a regulabledisbursement or contribution underChapter 11 unless it involves express ad-vocacy or its functional equivalent. Thisis an erosion of Chapter 11 that will pro-foundly affect the integrity of our elector-al process. I cannot agree with this re-sult.

¶ 561 It is also imperative to note thatthe majority conveniently overlooks thespecial prosecutor’s secondary argument ofcriminal activity in its S 341effort to end thisJohn Doe investigation. Specifically, thespecial prosecutor seeks to investigatewhether particular express advocacygroups coordinated their spending withcandidates or candidate committees in vio-lation of their sworn statement of indepen-dence under Wis. Stat. § 11.06(7). De-spite the fact that the special prosecutorutilizes a significant portion of his brief topresent evidence of such illegal coordina-tion, the majority determines, without ex-planation, that the John Doe investigationis over.

¶ 562 Has the majority abused its powerin reaching this conclusion? The majori-


2. In campaign-finance terminology, ‘‘issueadvocacy’’ is generally understood to meanspeech about public issues, whereas ‘‘expressadvocacy’’ refers to campaign or election-re-lated speech. Fed. Election Comm’n v. Wis.Right To Life, Inc., 551 U.S. 449, 456, 127S.Ct. 2652, 168 L.Ed.2d 329 (2007).

3. ‘‘A John Doe proceeding is intended as anindependent, investigatory tool used to ascer-tain whether a crime has been committedand if so, by whom.’’ In re John Doe Pro-ceeding, 2003 WI 30, ¶ 22, 260 Wis.2d 653,660 N.W.2d 260. A John Doe proceeding, byvirtue of its secrecy, serves as an essential in-vestigative device that protects ‘‘ ‘innocentcitizens from frivolous and groundless prose-cutions.’ ’’ Id. (citation omitted).


ty’s rush to terminate this investigation isreminiscent of the action taken by theUnited States District Court for the East-ern District of Wisconsin in O’Keefe v.Schmitz, 19 F.Supp.3d 861 (E.D.Wis.) or-der clarified, No. 14–C–139, 2014 WL2446316 (E.D.Wis. May 30, 2014) (O’Keefev. Schmitz ), an action that was both criti-cized and reversed by the United StatesCourt of Appeals for the Seventh Circuitin O’Keefe v. Chisholm, 769 F.3d 936 (7thCir.2014) cert. denied, ––– U.S. ––––, 135S.Ct. 2311, 191 L.Ed.2d 1000 (2015). Al-though the focus of my writing lies else-where, the majority’s error in this regardcannot be overlooked.

¶ 563 For these reasons, I respectfullydissent in State ex. rel. Two UnnamedPetitioners v. Peterson (Two UnnamedPetitioners ).

¶ 564 However, like the majority, I con-clude that the special prosecutor and cer-tain Unnamed Movants have failed to meettheir heavy burden of establishing that theJohn Doe judge violated a plain legal dutyin either initiating these proceedings orquashing various subpoenas and searchwarrants related to the investigation. Ac-cordingly, I concur with the majority inState ex. rel. Schmitz v. Peterson (Schmitzv. Peterson ) and S 342State ex. rel. ThreeUnnamed Petitioners v. Peterson (ThreeUnnamed Petitioners ). In concurring inSchmitz v. Peterson, it is significant for methat when an appellate court decides toissue a supervisory writ, it is a rare, dis-cretionary decision. Madison Metro. Sch.Dist. v. Circuit Ct. for Dane Cnty., 2011

WI 72, ¶¶ 33–34, 336 Wis.2d 95, 800N.W.2d 442. Here, the John Doe judgealso made a discretionary decision in de-ciding a complex legal issue. Deferenceshould be given where there is such discre-tion.

¶ 565 The John Doe investigation shouldnot be terminated because the specialprosecutor’s primary argument regardingcriminal activity is supported by Chapter11, and the United States Supreme Courthas not concluded that the First Amend-ment to the United States Constitutionprohibits the type of regulation underlyingthat argument. See O’Keefe, 769 F.3d at942.4 The special prosecutor seeks to in-vestigate whether certain campaign com-mittees failed to comply with their statuto-ry obligation to report receipt of in-kindcontributions (in the form of coordinatedspending on issue advocacy) in connectionwith various S 343recall elections. A cam-paign committee’s duty to report such in-kind contributions is prescribed by Wis.Stat. § 11.06(1).5

¶ 566 In Two Unnamed Petitioners, themajority holds that the special prosecutorfails to advance a valid argument underWisconsin criminal law and rashly closesthe John Doe investigation. In reachingits conclusion, the majority does not con-front the plain language of Wis. Stat.§ 11.06(1). Instead, it focuses more gen-erally on Chapter 11’s definition of ‘‘politi-cal purposes,’’ because in its view, ‘‘If anact is not done for political purposes, thenit is not a disbursement or a contribution,and it therefore is not subject to regulationunder Ch. 11.’’ 6

4. It is noteworthy that the United States Su-preme Court denied certiorari review inO’Keefe v. Chisholm, 769 F.3d 936 (7th Cir.2014) cert. denied, ––– U.S. ––––, 135 S.Ct.2311, 191 L.Ed.2d 1000 (2015), a case inwhich the United States Court of Appeals forthe Seventh Circuit determined that the Su-preme Court has not decided whether theFirst Amendment prohibits the regulation ofcoordinated issue advocacy between a candi-date or campaign committee and an issueadvocacy group. If the Supreme Court even-tually determines that the First Amendmentallows that type of regulation, the decisionwould validate the special prosecutor’s in-

kind contribution argument. As discussed be-low, it can be argued that Williams–Yulee v.Florida Bar, ––– U.S. ––––, 135 S.Ct. 1656,191 L.Ed.2d 570 (2015), supports the specialprosecutor’s position, but that decision, whilehelpful, is certainly not definitive on the issue.

5. Wisconsin Stat. § 11.06(1) provides, in rele-vant 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 fullreports TTT of all contributions received, con-tributions or disbursements made, and obli-gations incurred.’’ (emphasis added).



¶ 567 The majority determines that thedefinition of ‘‘political purposes’’ in Wis.Stat. § 11.01(16) is unconstitutionally over-broad and vague regardless of the contextin which it applies to regulate politicalspeech under Chapter 11.7 This is so, themajority reasons, primarily because thedefinition encompasses an act done ‘‘forthe purpose of influencing’’ an election.8

To support the notion that the phrase ‘‘forthe purpose of influencing’’ an election ishopelessly overbroad and vague, evenwhere it operates to regulate campaigncontributions, the majority purports toborrow pages from Buckley v. Valeo, 424U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976),and S 344Wis. 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 ‘‘po-litical purposes’’ to express advocacy or itsfunctional equivalent, because that con-struction is ‘‘ ‘readily available’ due to theSeventh Circuit’s decision in Barland II.’’ 9

The upshot, according to the majority, isthat an act is not a regulable disbursementor contribution under Chapter 11 unless itinvolves express advocacy or its functionalequivalent.10

¶ 568 Turning to the special prosecu-tor’s arguments regarding criminal activi-ty, the majority summarily concludes:‘‘The limiting construction that we applymakes clear that the special prosecutor’stheories are unsupportable in law giventhat the theories rely on overbroad and

vague statutes.’’ 11 The majority musttherefore dismiss the special prosecutor’sin-kind contribution argument on the basisthat Wis. Stat. § 11.06(1) contains theterms ‘‘contribution’’ and ‘‘disbursement,’’thereby triggering the definition of ‘‘politi-cal purposes.’’ It follows, according to themajority’s logic, that § 11.06(1) is uncon-stitutionally overbroad and vague unlessits reach is limited to express advocacy orits functional equivalent. Since the spe-cial prosecutor’s in-kind contribution argu-ment relies on coordinated issue advocacy,not express advocacy, the majority swiftlyrejects that argument.12

S 345¶ 569 As previously mentioned, I con-clude that Wis. Stat. § 11.06(1) is neitheroverbroad nor vague in its requirementthat campaign committees report receiptof in-kind contributions. I recognize thatunder the special prosecutor’s argument areportable in-kind contribution requires a‘‘political purpose,’’ thus implicating thephrase ‘‘for the purpose of influencing’’ anelection that the majority finds so trou-bling. However, in Buckley, the UnitedStates Supreme Court indicated that thisphrase is hardly problematic ‘‘in connec-tion with the definition of a contributionbecause of the limiting connotation createdby the general understanding of what con-stitutes a political contribution.’’ Buckley,424 U.S. at 23 n. 24, 96 S.Ct. 612. In otherwords, it is common sense—not the reten-tion of a campaign-finance attorney—thattells people of ordinary intelligence what isand is not a campaign contribution.




10. See majority op., ¶¶ 62, 67.


12. While I disagree with the majority’s dis-missal of the special prosecutor’s in-kind con-

tribution argument, I do agree with the ma-jority’s criticism of some of the purportedtactics used in gathering evidence in this par-ticular John Doe investigation. As the major-ity identifies, some of these methods certainlyappear to be improper and open to severedisagreement. See majority op., ¶¶ 28–29. Atthis point, the actual facts concerning thetactics used have not been fully established,but the allegations are very troubling.


¶ 570 The majority disregards this im-portant language in Buckley, opting in-stead to justify its overbreadth and vague-ness determination with the SupremeCourt’s discussion of the phrase ‘‘for thepurpose of influencing’’ an election in acompletely different context: the regula-tion of independent political expenditures.The majority’s failure to perform a contextspecific analysis of the subject phrase inreaching its blanket conclusion that Chap-ter 11’s definition of ‘‘political purposes’’ isoverbroad and vague represents a funda-mental misunderstanding of Buckley andits progeny, including Barland II. It fur-ther ignores the principle that ‘‘The FirstAmendment vagueness and overbreadthcalculus must be calibrated to the kindS 346and degree of the burdens imposed onthose who must comply with the regulato-ry scheme. The greater the burden on theregulated class, the more acute the needfor clarity and precision.’’ Barland II, 751F.3d at 837.

¶ 571 The majority’s errors in Two Un-named Petitioners (including its failure toaddress Wis. Stat. § 11.06(1) in rejectingthe special prosecutor’s in-kind contribu-tion argument) serve to terminate a validJohn Doe investigation. They also work tolimit the reach of Wisconsin’s campaign-finance law in a manner that will under-mine the integrity of our electoral process.I disagree with these consequences.

I. TWO UNNAMED PETITIONERS(ORIGINAL ACTION)

¶ 572 To support my position that theJohn Doe investigation should move for-ward because the special prosecutor ad-vances a valid argument under Wisconsincriminal law, I begin by identifying therelevant portions of Chapter 11 that sup-port that argument. Next, I discuss

some important principles pertaining tothe related doctrines of overbreadth andvagueness, as well as significant cam-paign-finance law decisions embodyingthose principles. These general principlesand decisions lead me to determine thatthere are no overbreadth and vaguenessconcerns with respect to the statute thatsupports the special prosecutor’s primaryargument regarding criminal activity. Fi-nally, I discuss the question of whetherthe First Amendment to the UnitedStates Constitution forbids regulation ofcoordinated issue advocacy between acandidate or a campaign committee andan issue advocacy group. I conclude thatthe absence of Supreme Court precedentregarding an issue that has sparked ‘‘live-ly debate S 347among judges and academicanalysts’’ 13 is an important factor as towhy this John Doe investigation shouldnot be terminated.A. Under Chapter 11, a Campaign Com-

mittee Must Report its Receipt of In–Kind Contributions in the Form ofCoordinated Spending on Issue Advo-cacy.

¶ 573 In the special prosecutor’s ownwords, the ‘‘non-disclosure of reportablecampaign contributions is at the heart ofthis [John Doe] investigation.’’ The fol-lowing illustrates the special prosecutor’sin-kind contribution argument:

X is a nonprofit corporation that en-gages in political speech on issues ofpublic importance. Y is a campaigncommittee 14 regulated under Ch. 11.When X spends money on issue advoca-cy, it does not operate independently ofY. Rather, X coordinates its spendingwith Y, such that Y may be involved inthe timing, content, or placement of is-sue advocacy that is made for its benefit.Y has received an in-kind contribution

13. O’Keefe, 769 F.3d at 942.

14. Wis. Stat. § 11.01(15) defines a ‘‘personalcampaign committee’’ as:

A committee which is formed or operatingfor the purpose of influencing the electionor reelection of a candidate, which acts

with the cooperation of or upon consulta-tion with the candidate or the candidate’sagent or which is operating in concert withor pursuant to the authorization, request orsuggestion of the candidate or the candi-date’s agent.


that must be reported under Chapter11.15

S 348¶ 574 The special prosecutor’s in-kindcontribution argument is rooted in Wis.Stat. § 11.06. That section, entitled ‘‘Fi-nancial report information; application;funding procedure,’’ generally requiresChapter 11 registrants 16 to ‘‘make full re-ports TTT of all contributions received,contributions or disbursements made, andobligations incurred.’’ Wis. Stat.§ 11.06(1) (emphasis added). Candidatesand their campaign committees have anabsolute duty to register with the Govern-ment Accountability Board (GAB) underWis. Stat. § 11.05(2g), so there appears tobe no question that the general reportingobligations prescribed by § 11.06(1) applyto those entities.

¶ 575 The term ‘‘contribution’’ is definedby Wis. Stat. § 11.01(6)(a). It includes ‘‘Agift, subscription, loan, advance, or depositof money or anything of value TTT madefor political purposes.’’ Wis. Stat.§ 11.01(6)(a)1. The definition encompassescontributions that are received in cash, i.e.,a ‘‘gift TTT of money,’’ and those that arereceived ‘‘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 § GAB1.20(1)(e) defines an ‘‘in-kind contribution’’as ‘‘a disbursement by a contributor toprocure a thing of value or service for thebenefit of a registrant who authorized thedisbursement.’’ To constitute a cash or in-kind contribution, money must be given or

spent for ‘‘political purposes,’’ which is de-fined S 349by Wis. Stat. § 11.01(16) to in-clude an act done ‘‘for the purpose ofinfluencing’’ an election.

¶ 576 Reading the above definitions inconjunction with Wis. Stat. § 11.06(1), it isclear that a campaign committee has aduty to report its receipt of cash as contri-butions. It is equally clear that a cam-paign committee has a duty to report itsreceipt of services as contributions if itauthorizes a third party to pay for thoseservices for the benefit of the campaign.

¶ 577 But what if a campaign committeedoes not necessarily authorize or control athird party’s spending on services for thecampaign’s benefit, but instead prearrang-es that spending with the third party?Chapter 11 instructs that under these cir-cumstances a candidate committee has re-ceived a reportable contribution as well.See Wis. Stat. § 11.06(4)(d) (‘‘A TTT dis-bursement TTT made TTT for the benefit ofa candidate is reportable by the candidateor the candidate’s personal campaign com-mittee if it is made or incurred with theauthorization, direction or control of orotherwise by prearrangement with thecandidate or the candidate’s agent.’’) (em-phasis added).

¶ 578 As the foregoing discussion dem-onstrates, under Chapter 11, ‘‘contribu-tions to a candidate’s campaign must bereported whether or not they constituteexpress advocacy.’’ WCVP, 231 Wis.2d at679, 605 N.W.2d 654 (emphasis in original).There is nothing in the plain language ofWis. Stat. § 11.06(1), § 11.01(6)(a)1,

15. To be clear, the special prosecutor’s mainfocus in this investigation is on certain cam-paign committees’ failure to report receipt ofin-kind contributions (in the form of coordi-nated spending on issue advocacy), not oncertain issue advocacy groups’ failure to re-port making such in-kind contributions. Sowhat the majority mistakenly refers to as ‘‘il-legal campaign coordination’’ is in reality a

campaign committee’s failure to report itsreceipt of an in-kind contribution.

16. Chapter 11 imposes registration require-ments on political speakers such as candi-dates, their campaign committees, politicalcommittees, independent groups, and individ-uals. See Wis. Stat. § 11.05.


§ 11.06(4)(d), or Wis. Admin. Code § GAB1.20(1)(e) that limits receipt of reportablecontributions to express advocacy or itsfunctional equivalent.

¶ 579 Returning to the illustration of thespecial prosecutor’s in-kind contributionargument, it is evident that Chapter 11supports that argument in one of S 350twoways. First, Y, the campaign committee,may have received a reportable in-kindcontribution if the nature of its coordina-tion with X is such that Y authorized orcontrolled X’s spending on issue advocacy.Second, Y may have received a reportablein-kind contribution if the nature of itscoordination with X is such that the twoentities prearranged X’s spending on issueadvocacy.

¶ 580 Thus, absent the majority’s limit-ing construction that confines the term‘‘contribution’’ to express advocacy or itsfunction equivalent, the special prosecutormakes a valid argument under Wisconsincriminal law.17

B. The Key Inquiry in First AmendmentOverbreadth and Vagueness Analysisis Whether the Statute at IssueReaches a Substantial Amount of Con-stitutionally Protected Activity.

¶ 581 Having identified the portions ofChapter 11 that support the special prose-cutor’s in-kind contribution argument, Iturn to the related doctrines of over-breadth and vagueness to highlight someimportant principles that the majorityopinion overlooks. I also examine relevantcampaign-finance decisions that embodythose principles.

i. Overbreadth and Vagueness

¶ 582 ‘‘According to our First Amend-ment overbreadth doctrine, a statute isfacially invalid if it prohibits a substantial

amount of protected speech.’’ S 351UnitedStates v. Williams, 553 U.S. 285, 292, 128S.Ct. 1830, 170 L.Ed.2d 650 (2008) (empha-sis added). The Supreme Court inWilliams explained:

The doctrine seeks to strike a balancebetween competing social costs. On theone hand, the threat of enforcement ofan overbroad law deters people fromengaging in constitutionally protectedspeech, inhibiting the free exchange ofideas. On the other hand, invalidating alaw that in some of its applications isperfectly constitutional—particularly alaw directed at conduct so antisocial thatit has been made criminal—has obviousharmful effects. In order to maintain anappropriate balance, we have vigorouslyenforced the requirement that a stat-ute’s overbreadth be substantial, notonly in an absolute sense, but also rela-tive to the statute’s plainly legitimatesweep. Invalidation for overbreadth isstrong medicine that is not to be casual-ly employed.

Id. (emphasis added) (internal citationsand quotations omitted). When engagingin overbreadth analysis, a court’s first step‘‘is to construe the challenged statute; it isimpossible to determine whether a statutereaches too far without first knowing whatthe statute covers.’’ Id. at 293, 128 S.Ct.1830 (emphasis added). Once a court in-terprets the statute at issue, the secondstep is to determine whether it ‘‘criminal-izes a substantial amount of protected ex-pressive activity.’’ Id. at 297, 128 S.Ct.1830.

¶ 583 ‘‘Like the overbreadth doctrine,the void-for-vagueness doctrine protectsagainst the ills of a law that ‘fails to pro-vide a person of ordinary intelligence fair

17. The intentional failure to disclose contribu-tions received is a violation of criminal law.

See Wis. Stat. §§ 11.27(1) and 11.61(1)(b).


notice of what is prohibited, or is so stan-dardless that it authorizes or encouragesseriously discriminatory enforcement.’ ’’Ctr. for Individual Freedom v. Madigan,697 F.3d 464, 478–79 (7th Cir.2012) (quot-ed source and citation omitted). Wherethe statute at S 352issue implicates FirstAmendment rights, a greater degree ofprecision and guidance is required. Id. at479; see also Buckley, 424 U.S. at 77, 96S.Ct. 612 (‘‘Where First Amendmentrights are involved, an even ‘greater de-gree of specificity’ is required.’’) (quotedsource and citation omitted). That said,‘‘ ‘perfect clarity and precise guidance havenever been required even of regulationsthat restrict expressive activity.’ ’’Williams, 553 U.S. at 304, 128 S.Ct. 1830(quoted source and citation omitted). Sim-ilar to overbreadth analysis, a court engag-ing in First Amendment vagueness analy-sis must interpret the statute at issue anddetermine whether it restricts a substan-tial amount of constitutionally protectedactivity. Madigan, 697 F.3d at 479. If itdoes not, a facial challenge to the statutemust fail. Id.

¶ 584 The takeaway is that ‘‘The FirstAmendment vagueness and overbreadthcalculus must be calibrated to the kind anddegree of the burdens imposed on thosewho must comply with the regulatoryscheme. The greater the burden on theregulated class, the more acute the needfor clarity and precision.’’ Barland II, 751F.3d at 837.

ii. Relevant Campaign–Finance Decisions

¶ 585 That First Amendment over-breadth and vagueness analysis is contextspecific is best exemplified by Buckley, thecase in which the United States SupremeCourt created the express-advocacy limita-tion that is at the heart of this case. InBuckley, the Supreme Court consideredvarious challenges to the Federal Election

Campaign Act of 1971’s (FECA) restric-tions on contributions and independent ex-penditures. The main provisions underreview involved: (1) limitations on individ-ual and group political contributions; (2)limitations on independent expenditures;S 353and (3) disclosure requirements for indi-vidual and group political contributionsand independent expenditures. Buckley,424 U.S. at 7, 96 S.Ct. 612.

¶ 586 Prior to addressing the subjectenactments, Buckley discussed the kindand degree of burdens imposed on politicalspeakers through limitations on the givingand spending of money in political cam-paigns. Regarding limitations on contri-butions, the Supreme Court explained:

a limitation upon the amount that anyone person or group may contribute to acandidate or political committee entailsonly a marginal restriction upon thecontributor’s ability to engage in freecommunication. A contribution servesas a general expression of support forthe candidate and his views, but doesnot communicate the underlying basisfor the supportTTTT A limitation on theamount of money a person may give to acandidate or campaign organization thusinvolves little direct restraint on his po-litical communication, for it permits thesymbolic expression of support evi-denced by a contribution but does not inany way infringe the contributor’s free-dom to discuss candidates and issues.

Id. at 20–21, 96 S.Ct. 612 (emphasisadded). In comparison, limitations onindependent expenditures ‘‘represent sub-stantial rather than merely theoreticalrestraints on the quantity and diversityof political speech.’’ Id. at 19, 96 S.Ct.612. This is because ‘‘A restriction onthe amount of money a person or groupcan spend on political communicationduring a campaign necessarily reducesthe quantity of expression by restricting


the number of issues discussed, thedepth of their exploration, and the sizeof the audience reached.’’ Id.

¶ 587 Bearing in mind the relative bur-dens on political speech imposed by limi-taStions354 on contributions and independentexpenditures, the Supreme Court turnedto address constitutional challenges toFECA’s $1,000 limitation on individual andgroup political contributions to any singlecandidate per election. Under FECA, theterm ‘‘contribution’’ was defined to include‘‘a gift, subscription, loan, advance, or de-posit of money or anything of value TTT

made for the purpose of influencing’’ anelection. Id. at 182. The appellants didnot challenge the subject enactment asunconstitutionally overbroad and vague onthe basis that it incorporated the phrase‘‘for the purpose of influencing’’ an elec-tion. However, in a footnote, Buckley allbut assured that the phrase poses littleoverbreadth and vagueness concerns in thecontext of regulating contributions:

The Act does not define the phrase ‘‘forthe purpose of influencing’’ an electionthat determines when a gift, loan, oradvance constitutes a contribution. Oth-er courts have given that phrase a nar-row meaning to alleviate various prob-lems in other contextsTTTT The use ofthe phrase presents fewer problems inconnection with the definition of a con-tribution because of the limiting conno-tation created by the general under-standing of what constitutes a politicalcontribution.

Id. at 23 n. 24, 96 S.Ct. 612 (internalcitations omitted).

¶ 588 Given the Supreme Court’s recog-nition that limitations on contributions im-pose marginal burdens on free speech, itsdecision not to require a more precisedefinition of the term ‘‘contribution’’ is en-tirely consistent with the context specificinquiry that must take place when engag-

ing in overbreadth and vagueness analysis.Ultimately, Buckley upheld FECA’s limita-tion on individual and group political con-tributions, finding a ‘‘sufficiently importantinterSest’’355 in preventing quid pro quo cor-ruption or the appearance thereof. Id. at25–28, 96 S.Ct. 612.

¶ 589 The Supreme Court then consid-ered FECA’s $1,000 limitation on indepen-dent expenditures ‘‘relative to a clearlyidentified candidate.’’ Id. at 39, 96 S.Ct.612. In that context, the appellants suc-cessfully asserted a vagueness challenge tothe subject enactment’s use of the abovequoted phrase. Significant to the Su-preme Court’s determination was the factthat the limitation on independent expendi-tures posed a substantial burden on politi-cal speech. See id. at 39–44, 96 S.Ct. 612.It reasoned that the indefiniteness of thephrase ‘‘relative to a clearly identified can-didate’’ ‘‘fails to clearly mark the boundarybetween permissible and impermissiblespeechTTTT’’ Id. at 41, 96 S.Ct. 612. Thus,it searched for a narrowing construction tosave the statute from unconstitutionality.

¶ 590 The Supreme Court found thatnarrowing construction in the text of thesubject enactment itself:

The section prohibits any expenditureTTT relative to a clearly identified candi-date during a calendar year which, whenadded to all other expenditures TTT ad-vocating the election or defeat of suchcandidate, exceeds, $1,000. This contextclearly permits, if indeed it does notrequire, the phrase ‘‘relative to’’ a candi-date to be read to mean ‘‘advocating theelection or defeat of’’ a candidate.

Id. at 42, 96 S.Ct. 612 (internal quotationsomitted). It then determined that thereadily apparent limiting construction sim-ply ‘‘refocuse[d] the vagueness question,’’Id., ‘‘[f]or the distinction between discus-sion of issues and candidates and advocacyof election or defeat of candidates may


often dissolve in practical application.’’ Id.As a result, the Supreme Court furthernarrowed FECA’s S 356limitation on inde-pendent expenditures to ‘‘expenditures forcommunications that in express terms ad-vocate the election or defeat of a clearlyidentified candidate for federal office.’’ Id.at 44, 96 S.Ct. 612.

¶ 591 The express advocacy limitationcreated in Buckley was therefore ‘‘an end-point of statutory interpretation, not a firstprinciple of constitutional law.’’ McCon-nell v. Fed. Election Comm’n, 540 U.S. 93,190, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003),overruled on other grounds by CitizensUnited v. Fed. Election Comm’n, 558 U.S.310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).Ultimately, the Supreme Court determinedthat FECA’s limitation on independent ex-penditures, even as narrowly construed,impermissibly burdened the constitutionalright of free expression. Buckley, 424U.S. at 47–51, 96 S.Ct. 612.

¶ 592 Perhaps most significant for pur-poses of the instant action is Buckley ’sdiscussion of FECA’s disclosure require-ments for contributions and independentexpenditures. The enactment at issue im-posed reporting obligations on individualsand groups that made contributions or in-dependent expenditures aggregating over$100 in a calendar year ‘‘other than by

contribution to a political committee orcandidate.’’ Id. at 74–75, 96 S.Ct. 612.

¶ 593 FECA defined the terms ‘‘contri-bution’’ and ‘‘expenditure’’ to include any-thing of value made ‘‘for the purpose ofinfluencing’’ an election. Id. at 77, 96 S.Ct.612. This time Buckley took issue withthat phrase, but only as it operated toregulate independent expenditures. Id. at77–80, 96 S.Ct. 612.18 To avoid over-breadth and vagueness concerns, the Su-preme Court construed ‘‘expenditure’’ forS 357purposes of the subject enactment ‘‘toreach only funds that expressly advocatethe election or defeat of a clearly identifiedcandidate.’’ Id. at 80, 96 S.Ct. 612. Soconstrued, the enactment withstood consti-tutional scrutiny, as Buckley found disclo-sure to be ‘‘a reasonable and minimallyrestrictive method of furthering FirstAmendment values by opening the basicprocesses of our federal election system topublic view.’’ Id. at 82, 96 S.Ct. 612.

¶ 594 The foregoing discussion revealsthat the majority misconstrues Buckley.Buckley ’s conclusion is that the phrase‘‘for the purpose of influencing’’ an electionposes First Amendment overbreadth andvagueness concerns in regard to indepen-dent expenditures, not contributions re-ceived.19

18. It is worth noting that Buckley found nooverbreadth or vagueness concerns with re-spect to FECA’s definition of ‘‘contribution’’even though that definition included ‘‘expen-ditures placed in cooperation with or with theconsent of a candidate, his agents, or an au-thorized committee of the candidate.’’ Buck-ley v. Valeo, 424 U.S. 1, 78, 96 S.Ct. 612, 46L.Ed.2d 659 (1976).

19. This court previously examined Buckley forthe purpose of clarifying the meaning of theterm ‘‘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, aWisconsin corporation sought and received

assurance from the Elections Board of theState of Wisconsin (the Board) that certainadvertisements it wanted to broadcast prior toa general election did not qualify as expressadvocacy. Id. at 653, 677 n. 24, 597 N.W.2d721. The Board later determined that the adsthat were broadcast constituted express advo-cacy under a context-based approach towarddefining the term. Id. at 678–79, 597 N.W.2d721.

We turned to Buckley to decide whether thecorporation had fair warning that its ads con-stituted express advocacy, ultimately conclud-ing that it did not. Id. at 662–81, 597 N.W.2d721. As part of our discussion, we recog-nized that the United States Supreme Courtcreated the express advocacy limitation in


¶ 595 In the aftermath of Buckley, theSupreme Court has continued to utilize theexpress advocacy S 358limitation to curbFECA restrictions on independent expen-ditures. For example, in Fed. ElectionComm’n v. Mass. Citizens for Life, Inc.,479 U.S. 238, 245–49, 107 S.Ct. 616, 93L.Ed.2d 539 (1986) (MCFL ), the SupremeCourt applied Buckley ’s express advocacylimitation to FECA’s prohibition on corpo-rations using treasury funds to make inde-pendent expenditures in connection withany federal election. Tracking Buckley ’soverbreadth and vagueness analysis withrespect to FECA’s disclosure require-ments on independent expenditures, theSupreme Court in MCFL determined thatFECA’s broad definition of the term ‘‘ex-penditure,’’ i.e., anything of value made‘‘for the purposes of influencing’’ an elec-tion, posed overbreadth concerns in thecontext of the ‘‘more intrusive provisionthat directly regulate[d] independentspending.’’ Id. at 246–49, 107 S.Ct. 616.Accordingly, it held that the term ‘‘expen-diture’’ in the subject provision was limitedto communications for express advocacy.Id. at 249, 107 S.Ct. 616.

¶ 596 That Buckley ’s express advocacylimitation was the product of statutory in-terpretation designed to avoid overbreadthand vagueness concerns solely with re-spect to the statutory language at issue isconfirmed by McConnell, 540 U.S. at 191–93, 124 S.Ct. 619. There, the SupremeCourt considered challenges to the Biparti-

san Campaign Reform Act of 2002(BCRA). Id. at 189, 124 S.Ct. 619. BCRAcreated a new term, ‘‘electioneering com-munication,’’ 20 which placed restrictions oncommunications S 359for express advocacy aswell as issue advocacy. Id. The plaintiffsasserted constitutional challenges to thenew term as it applied to both the expendi-ture and disclosure contexts. Id. at 190,124 S.Ct. 619. In essence, they arguedthat the term ‘‘electioneering communica-tion’’ must be limited to communicationsfor express advocacy because ‘‘Buckleydrew a constitutionally mandated line be-tween express advocacy and so-called issueadvocacy, and that speakers possess aninviolable First Amendment right to en-gage in the latter category of speech.’’ Id.

¶ 597 McConnell patently rejected thatcontention, reasoning:

a plain reading of Buckley makes clearthat the express advocacy limitation, inboth the expenditure and the disclosurecontexts, was the product of statutoryinterpretation rather than a constitution-al command. In narrowly reading theFECA provisions in Buckley to avoidproblems of vagueness and overbreadth,we nowhere suggested that a statute thatwas neither vague nor overbroad wouldbe required to toe the same express ad-vocacy line. Nor did we suggest asmuch in MCFL TTT in which we ad-dressed the scope of another FECA ex-penditure limitation and confirmed theunderstanding that Buckley ’s express

Buckley to avoid overbreadth and vaguenessconcerns with respect to FECA’s regulation ofindependent expenditures. See id. at 664–66,597 N.W.2d 721. So it would be a mistake torely on WMC for the proposition that theexpress advocacy limitation is necessary tocure constitutional infirmities with respect toChapter 11’s regulation of campaign contri-butions received. See majority op., ¶ 68 n. 23.

20. The term ‘‘electioneering communication’’was defined to encompass ‘‘any broadcast,

cable, or satellite communication’’ that ‘‘re-fers to a clearly identified candidate for Fed-eral office’’ and appears within 60 days of afederal general election or 30 days of a feder-al primary election. McConnell v. Fed. Elec-tion Comm’n, 540 U.S. 93, 189, 124 S.Ct. 619,157 L.Ed.2d 491 (2003) overruled on othergrounds by Citizens United v. Fed. ElectionComm’n, 558 U.S. 310, 130 S.Ct. 876, 175L.Ed.2d 753 (2010).


advocacy category was a product of stat-utory construction.In short, the concept of express advoca-cy and the concomitant class of magicwords were born of an effort to avoidconstitutional infirmitiesTTTT We havelong rigidly adhered to the tenet neverto formulate a rule of constitutional lawbroader than is required by the precisefacts to which it is to be applied, TTT for[t]he nature of judicial review con-strains us to consider the S 360case that isactually before us, TTT Consistent withthat principle, our decisions in Buckleyand MCFL were specific to the statuto-ry language before us; they in no waydrew a constitutional boundary that for-ever fixed the permissible scope of pro-visions regulating campaign-relatedspeech.

Id. at 191–93, 124 S.Ct. 619 (emphasisadded) (internal citations and quotationsomitted). Thus, it would be error for acourt to rely on Buckley to narrow a stat-ute’s reach to express advocacy where itdoes not pose the same overbreadth andvagueness concerns that drove the Su-preme Court’s analysis in Buckley. Seeid. at 194, 124 S.Ct. 619.

¶ 598 The Seventh Circuit’s decision inBarland II is entirely consistent with thenotion that Buckley ’s express advocacylimitation is context specific. There, Wis-consin Right to Life (WRTL), a nonprofittax-exempt corporation, ‘‘sued to block en-forcement of many state statutes and rulesagainst groups that spend money for politi-cal speech independently of candidatesand parties.’’ Barland II, 751 F.3d at 807(emphasis added). Specifically, the com-plaint alleged ‘‘that the challenged lawsare vague and overbroad and unjustifiably

burden the free-speech rights of indepen-dent political speakers in violation of theFirst Amendment.’’ Id. (emphasis added).Lest there be any confusion, the SeventhCircuit specified: ‘‘Neither [WRTL] norits state PAC contributes to candidates orother political committees, nor are theyconnected with candidates, their campaigncommittees, or political parties. That is tosay, they operate independently of candi-dates and their campaign committees.’’Id. at 809.

¶ 599 So when the Seventh Circuit con-sidered WRTL’s overbreadth and vague-ness challenge to Chapter 11’s definition of‘‘political purposes,’’ it did so in the contextof that term’s restrictions on independentS 361expenditures, not contributions re-ceived. Any other reading contravenesthe principle that courts should not ‘‘for-mulate a rule of constitutional law broaderthan is required by the precise facts towhich it is to be appliedTTTT’’ McConnell,540 U.S. at 193, 124 S.Ct. 619 (citation andquotations omitted). To be clear, theGAB’s concession in Barland II was thatChapter 11’s definition of ‘‘political pur-poses’’ was overbroad and vague ‘‘in thesense meant by BuckleyTTTT’’ Barland II,751 F.3d at 832. As demonstrated, Buck-ley was concerned with the phrase ‘‘for thepurpose of influencing’’ an election whereit operated to regulate independent expen-ditures, not contributions. Thus, it is in-correct to rely on Barland II to supportthe notion that the subject phrase posesoverbreadth and vagueness concerns in thecontext of Chapter 11’s regulation of con-tributions received.21

¶ 600 In sum, the key inquiry in FirstAmendment overbreadth and vaguenessanalysis is whether the statute at issue

21. The majority states that ‘‘Although BarlandII did not involve an allegation of coordina-tion, that distinction is meaningless in deter-mining whether the definition of ‘political

purposes’ is vague or overbroad.’’ Majorityop., ¶ 67 n. 22. Actually, it makes all thedifference. Under Chapter 11, coordinateddisbursements are treated as contributions.


reaches a substantial amount of constitu-tionally protected speech. As a result, acourt’s analysis in this regard must becontext specific—‘‘the greater the burdenon the regulated class, the more acute theneed for clarity and precision.’’ Id. at 837.Buckley embodies that principle in its dis-parate treatment of contributions and in-dependent expenditures under FECA.22

S 362C. There are No Overbreadth andVagueness Concerns with Respect

to Wis. Stat. § 11.06(1).

¶ 601 Wisconsin Stat. § 11.06(1) is nei-ther overbroad nor vague in its require-ment that campaign committees report re-ceipt of in-kind contributions in the form ofcoordinated spending on issue advocacy.

¶ 602 As noted, the primary inquiry iswhether Wis. Stat. § 11.06(1) reaches asubstantial amount of constitutionally pro-tected speech. Madigan, 697 F.3d at 479.Of course, in order to answer that ques-tion, it is necessary to examine the plainlanguage of the statute. Williams, 553U.S. at 293, 128 S.Ct. 1830.

¶ 603 Generally speaking, Wis. Stat.§ 11.06(1) requires registrants to ‘‘makefull reports TTT of all contributions re-ceived, contributions or disbursementsmade, and obligations incurred.’’ Regis-trants must file frequent and detailedreports under § 11.06; Barland II sum-marized a variety of those reporting ob-ligations as follows:

For contributions received in excess of$20, the report must include the date ofthe contribution, the name and addressof the contributor, and the cumulativetotal contributions made by that contrib-utor for the calendar year. For contri-

butions received in excess of $100, theregistrant must obtain and report thename and address of the donor’s place ofemployment. All other income in excessof $20—including transfers of funds, in-terest, returns on investments, rebates,and refunds received—must be listedand described.

Registrants must report all disburse-ments. For every disbursement in ex-cess of $20, the registrant must includethe name and address of the recipient,the date S 363of the disbursement, and astatement of its purpose. Individualsand committees not primarily organizedfor political purposes need only reportdisbursements made for the purpose ofexpressly advocat[ing] the election ordefeat of a clearly identified candidate.In other words, committees in this cate-gory need not report general operatingexpenses; for all other committees, ad-ministrative and overhead expensesmust be reported as disbursements. Alldisbursements that count as contribu-tions to candidates or other committeesmust be reported.

Barland II, 751 F.3d at 814 (internal cita-tions and quotations omitted). ‘‘No personmay prepare or submit a false report orstatement to a filing officer under [Chap-ter 11].’’ Wis. Stat. § 11.27(1). A regis-trant 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 constitutionallyprotected speech, the terms ‘‘contribution’’and ‘‘disbursement’’ must be construed.23

22. For a thorough discussion that supportsmy interpretation of Buckley ’s distinction be-tween contributions and independent expen-ditures, see generally Brent Ferguson, BeyondCoordination: Defining Indirect Campaign

Contributions for the Super PAC Era, 42 Has-tings Const. L.Q. 471 (2015).

23. Wisconsin Stat. § 11.06(1) includes theterm ‘‘obligation’’ as well. Under Chapter 11,‘‘incurred obligation’’ is defined as ‘‘every ex-


As previously noted, a ‘‘contribution’’ in-cludes a ‘‘gift TTT of money TTT or any-thing of value TTT made for political pur-poses.’’ Wis. Stat. § 11.01(6)(a)1. Thedefinition encompasses a ‘‘disbursementby a contributor to procure a thing ofvalue or service for the benefit of a regis-trant who authorized the disbursement.’’Wis. Admin. Code § GAB 1.20(1)(e). Adisbursement made for the benefit of acandidate that is prearranged with thecandidate or the candidate’s agent istreated as a S 364contribution to the candi-date or the campaign committee thatmust be reported as a contribution re-ceived. Wis. Stat. § 11.06(4)(d).

¶ 605 A ‘‘disbursement’’ includes ‘‘Apurchase, payment, distribution, loan, ad-vance, deposit, or gift of money or any-thing of value TTT made for political pur-poses.’’ Wis. Stat. § 11.01(7)(a)1.

¶ 606 A ‘‘contribution’’ and a ‘‘disburse-ment’’ must be made for ‘‘political pur-poses.’’ ‘‘Political purposes’’ is defined toinclude an act done ‘‘for the purpose ofinfluencing’’ an election. Wis. Stat.§ 11.01(16).

¶ 607 To reiterate, the phrase ‘‘for thepurpose of influencing’’ an election hascaused overbreadth and vagueness prob-lems in the context of campaign-financeregulation where it serves to restrict inde-pendent expenditures. See Buckley, 424U.S. at 77–80, 96 S.Ct. 612; MCFL, 479U.S. at 249, 107 S.Ct. 616; Barland II, 751F.3d at 833. That is because restraints onindependent expenditures have the poten-tial to encumber a substantial amount ofprotected speech. Buckley, 424 U.S. at 19,96 S.Ct. 612. At first blush, then, Wis.Stat. § 11.06(1)’s reporting requirementfor ‘‘disbursements’’ raises the specter ofunconstitutionality as far as independent

spending is concerned. But Wis. Stat.§ 11.06(2) solves that dilemma, exemptingfrom § 11.06(1)’s reporting requirementindependent disbursements that do not‘‘expressly advocate the election or defeatof a clearly identified candidateTTTT’’ Thus,with respect to § 11.06(1)’s regulation ofindependent disbursements, there are nooverbreadth and vagueness concerns in thesense meant by Buckley.

¶ 608 That leaves the question of wheth-er the phrase ‘‘for the purpose of influenc-ing’’ an election, incorporated in Wis. Stat.§ 11.06(1) through the definition of ‘‘con-tribution,’’ raises constitutional concerns inthe sense meant by Buckley. Clearly, theanswer is ‘‘no.’’

S 365¶ 609 For starters, restrictions oncontributions pose marginal as opposed tosubstantial burdens on speech. Id. at 20–21, 96 S.Ct. 612; see also Fed. ElectionComm’n v. Colo. Republican Fed. Cam-paign Comm., 533 U.S. 431, 440, 121 S.Ct.2351, 150 L.Ed.2d 461 (2001) (Colorado II )(‘‘Restraints on expenditures generallycurb more expressive and associational ac-tivity than limits on contributions do.’’).The main rationale is that restraints oncontributions have little direct impact onpolitical communication, as they permit thesymbolic expression of support and leavethe contributor free to discuss candidatesand issues. Buckley, 424 U.S. at 21, 96S.Ct. 612. Arguably, that justificationmight not apply with equal force to contri-butions that take the form of coordinatedissue advocacy, since such contributions do‘‘communicate the underlying basis for the[contributor’s] support.’’ Id. But there is asimple solution to that problem: stop coor-dinating. In the absence of coordination,

press obligation to make any contribution ordisbursement TTT 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 separate-ly analyze it.


the contributor is free to discuss candi-dates and issues.

¶ 610 That restrictions on contributionsimpose marginal burdens on free speech isespecially true where the restriction atissue involves disclosure rather than a ceil-ing on the amount of money a person cangive to a campaign. See Citizens Unitedv. Fed. Election Comm’n, 558 U.S. 310,369, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010)(‘‘The Court has explained that disclosureis a less restrictive alternative to morecomprehensive regulations of speech.’’).Even the majority is forced to acknowl-edge the fact that disclosure requirementspose less significant burdens on the exer-cise of free speech.24 So it is important tokeep in mind that Wis. Stat. § 11.06(1)requires disclosure of contributions madeand received.

S 366¶ 611 In light of the more modestburdens that Wis. Stat. § 11.06(1) imposeson the free speech rights of those thatmake and receive contributions, it is clearthat less precision and clarity is requiredwith respect to what is regulated. SeeBarland II, 751 F.3d at 837 (‘‘The greaterthe burden on the regulated class, themore acute the need for clarity and preci-sion.’’). That leads me to conclude thatthe phrase ‘‘for the purpose of influencing’’an election is not problematic where itoperates to regulate contributions under§ 11.06(1). Indeed, Buckley supports myposition. See Buckley, 424 U.S. at 23 n.24, 96 S.Ct. 612 (‘‘The use of the phrasepresents fewer problems in connectionwith the definition of a contribution be-cause of the limiting connotation createdby the general understanding of what con-stitutes a political contribution.’’).

¶ 612 It is common sense that a gift ofmoney to a candidate or a campaign com-

mittee constitutes an act made for thepurpose of influencing an election. It isalso common sense that money spent onservices for the benefit of a candidate or acampaign committee that authorized thespending is an act done for the purpose ofinfluencing an election. Similarly, where acandidate or a candidate’s agent and athird party prearrange the third party’sspending for the benefit of the candidate,common sense says the spending is donefor the purpose of influencing an election.The point is that the aforementioned ac-tions are connected with a candidate orhis or her campaign.

¶ 613 Therefore, I conclude that Wis.Stat. § 11.06(1) is neither overbroad norvague in its requirement that candidatecommittees report receipt of in-kind con-tributions in the form of coordinatedspending on issue advocacy.

S 367¶ 614 The majority disagrees, al-though it does not address Wis. Stat.§ 11.06(1) in reaching its conclusion thatthe special prosecutor fails to advance avalid argument under Wisconsin criminallaw. Rather, the majority dismisses thespecial prosecutor’s primary argument byanalyzing the GAB’s definition of the term‘‘in-kind contribution.’’ 25 That approach isinconsistent with First Amendment over-breadth and vagueness analysis. SeeWilliams, 553 U.S. at 293, 128 S.Ct. 1830(‘‘The first step in overbreadth analysis isto construe the challenged statute; it isimpossible to determine whether a statutereaches too far without first knowing whatthe statute covers.’’); Madigan, 697 F.3dat 479 (‘‘ ‘In a facial challenge to the over-breadth and vagueness of a law, a court’sfirst task is to determine whether the en-actment reaches a substantial amount ofconstitutionally protected conduct.’ ’’)(quoted source and citation omitted). Wis-

24. Majority op., ¶ 48. 25. See majority op., ¶ 74.


consin Admin. Code § GAB 1.20(1)(e),standing alone, does not regulate protectedspeech—it is a definition.

¶ 615 Had the majority performed a con-text specific First Amendment over-breadth and vagueness analysis, it presum-ably would have concluded that Wis. Stat.§ 11.06(1) is unconstitutionally overbroadand vague in the sense meant by Buckleybecause it contains the terms ‘‘contribu-tion’’ and ‘‘disbursement,’’ thereby trigger-ing ‘‘political purposes’’ and the phrase‘‘for the purpose of influencing’’ an elec-tion.26 But a correct reading of Buckleyand its progeny leads to a conclusion thatthere are no constitutional infirmities withrespect to § 11.06(1).

S 368¶ 616 The majority’s contrary conclu-sion ignores the legislature’s intent in en-acting Chapter 11. When searching for alimiting construction to cure an overlybroad or vague statute, ‘‘we examine thelanguage of the statute as well as its legis-lative history to determine whether thelegislature intended the statute to be ap-plied in its newly-construed form.’’ Statev. Janssen, 219 Wis.2d 362, 380, 580N.W.2d 260 (1998). By rejecting the spe-cial prosecutor’s in-kind contribution argu-ment and holding that contributions re-ceived need not be reported under Wis.Stat. § 11.06(1) unless they involve expressadvocacy or its functional equivalent, themajority disregards the legislature’s decla-ration of policy in creating Chapter 11:ensuring that the public is fully informedof the true source of financial support tocandidates for public office. Wis. Stat.§ 11.001.

¶ 617 The majority’s errors will have adetrimental effect on the integrity of Wis-consin’s electoral process, particularly in

the context of campaign contributions.Under the majority’s holding, an act is nota campaign contribution unless it involvesexpress advocacy or its functional equiva-lent.27 The majority claims that its limit-ing construction is necessary to place issueadvocacy beyond Chapter 11’s reach,28 butat what cost? Surely gifts of money to acampaign trigger the same quid pro quocorruption concerns that justify the regula-tion of communications for express advoca-cy or its functional equivalent, and yetgifts of money would not constitute contri-butions under the majority’s holding.Since Buckley, the United States SupremeCourt has consistently upheld restraints onsuch campaign contributions. See O’Keefe,769 F.3d at 941. S 369Thus, I question thepropriety of the majority’s decision to teardown those restraints.

¶ 618 In sum, I conclude that Chapter 11supports the special prosecutor’s in-kindcontribution argument. The majority’scontrary determination is the product of afundamental misunderstanding and misap-plication of Buckley and its progeny, in-cluding Barland II, as well as the FirstAmendment overbreadth and vaguenessprinciples that those decisions embody.

D. The Question of Whether the FirstAmendment Prohibits Regulation ofCoordinated Issue Advocacy ShouldNot Prevent the John Doe Investiga-tion From Moving Forward.

¶ 619 Having concluded that the specialprosecutor makes a valid argument underWisconsin criminal law, the question re-mains whether the First Amendment tothe United States Constitution prohibitsregulation of coordinated issue advocacy.29

26. See majority op., ¶¶ 66–67.


28. Majority op., ¶¶ 66–67.

29. Speech that is protected under the FirstAmendment is not necessarily immune to gov-ernmental regulation. See Williams–Yulee,135 S.Ct. at 1667 (‘‘[N]obody argues that so-licitation of campaign funds by judicial candi-


This question should be addressed by theUnited States Supreme Court because ithas sparked ‘‘lively debate among judgesand academic analysts.’’ Id. at 942.

¶ 620 In O’Keefe, the plaintiffs filed suitseeking an injunction that would halt thisJohn Doe investigation permanently, re-gardless of whether the special prosecutorcould demonstrate a violation of WisconsinS 370law. Id. at 938. In addition, the com-plaint sought damages against five defen-dants, including the special prosecutor andthe Milwaukee County District Attorney.Id. The United States District Court forthe Eastern District of Wisconsin ‘‘heldthat the First Amendment to the Constitu-tion (as applied to the states through theFourteenth) forbids not only penalties forcoordination between political committeesand groups that engage in issue advocacy,but also any attempt by the state to learnjust what kind of coordination has oc-curred.’’ Id. As a result, the district courtrejected the defendants’ argument thatthey enjoyed qualified immunity. Id. at939.

¶ 621 In reversing the district court’sorder that rejected the defendants’ quali-fied immunity defense, the Seventh Cir-cuit, in an opinion authored by JudgeEasterbrook, reasoned:

No opinion issued by the SupremeCourt, or by any court of appeals, estab-lishes (‘‘clearly’’ or otherwise) that theFirst Amendment forbids regulation ofcoordination between campaign commit-tees and issue—advocacy groups—letalone that the First Amendment forbidseven an inquiry into that topic. Thedistrict court broke new ground. Itsviews may be vindicated, but until thatday public officials enjoy the benefit of

qualified immunity from liability in dam-ages.

Id. at 942.

¶ 622 It is important to note that theUnited States Supreme Court has en-dorsed FECA’s treatment of coordinatedexpenditures as contributions. As previ-ously mentioned, in Buckley, the SupremeCourt upheld FECA’s limitations on indi-vidual and group political contributionsnotwithstanding the fact that ‘‘contribu-tion’’ was defined to include coordinatedexpenditures. Buckley, 424 U.S. at 23–59,96 S.Ct. 612. It also upheld S 371FECA’sdisclosure requirements on contributionsso defined. Id. at 78, 96 S.Ct. 612. InColorado II, the Supreme Court upheldFECA’s limitations on coordinated expen-ditures between political parties and candi-dates. Colorado II, 533 U.S. at 465, 121S.Ct. 2351. Also, in McConnell, it upheldBCRA’s treatment of coordinated dis-bursements for electioneering communica-tions as contributions, even though theterm ‘‘electioneering communication’’ wasdefined to include issue advocacy.McConnell, 540 U.S. at 203, 124 S.Ct. 619.

¶ 623 The basic rationale underlying theSupreme Court’s endorsement of such re-strictions is that coordinated expenditures‘‘are as useful to the candidate ascashTTTT’’ Colorado II, 533 U.S. at 446,121 S.Ct. 2351. Thus, they are ‘‘disguisedcontributions’’ that ‘‘might be given ‘as aquid pro quo for improper commitmentsfrom the candidate’ (in contrast to inde-pendent expenditures, which are poorsources of leverage for a spender becausethey might be duplicative or counterpro-ductive from a candidate’s point of view).’’Id. (citing Buckley, 424 U.S. at 47, 96 S.Ct.612). Since the prevention of quid pro quo

dates is a category of unprotected speech. Asexplained above, the First Amendment fullyapplies to Yulee’s speech. The question isinstead whether that Amendment permits the

particular regulation of speech at issuehere.’’). This point appears lost on the major-ity. See, e.g., majority op., ¶¶ 66–67.


corruption or its appearance remains apermissible goal justifying regulations onpolitical speech, McCutcheon v. Fed. Elec-tion Comm’n, ––– U.S. ––––, 134 S.Ct.1434, 1441, 188 L.Ed.2d 468 (2014), it iscertainly likely that the regulation of coor-dinated issue advocacy will withstand FirstAmendment scrutiny.

¶ 624 Moreover, as noted previously, theSupreme Court recently determined thatthe First Amendment permits the regula-tion of judicial candidates’ speech.Williams–Yulee, 135 S.Ct. at 1662. TheSupreme Court reasoned that states havea compelling interest in preserving publicconfidence in their judges by preventingquid pro quo corruption or its appearance.Id. at 1667–68. Thus, an argument can bemade S 372that Williams–Yulee bolsters thespecial prosecutor’s contention that theFirst Amendment permits the regulationof coordinated issue advocacy, since that isan area where corruption or its appearanceis a significant concern as well.

¶ 625 Because the special prosecutormakes a valid argument under Wisconsincriminal law, and because the UnitedStates Supreme Court has not concludedthat the First Amendment prohibits theregulation of coordinated issue advocacy,the John Doe investigation should not beterminated. Not only do the majority’serrors serve to end a valid John Doe inves-tigation, they work to limit the reach ofWisconsin’s campaign-finance law in amanner that will undermine the integrityof our electoral process. I disagree withthese consequences and therefore respect-fully dissent in Two Unnamed Petitioners.

II. SCHMITZ v. PETERSON ANDTHREE UNNAMED

PETITIONERS

¶ 626 The questions presented inSchmitz v. Peterson and Three Unnamed

Petitioners boil down to whether the JohnDoe judge violated a plain legal duty ineither initiating these proceedings orquashing various subpoenas and searchwarrants related to the investigation.Both the special prosecutor in Schmitz v.Peterson and the Unnamed Movants inThree Unnamed Petitioners carry a heavyburden in this regard, as a supervisorywrit is an ‘‘extraordinary and drastic reme-dy that is to be issued only upon somegrievous exigency.’’ State ex. rel. Kalal v.Circuit Ct. for Dane Cnty., 2004 WI 58,¶ 17, 271 Wis.2d 633, 681 N.W.2d 110. Iagree with the majority that neither thespecial S 373prosecutor nor the UnnamedMovants have established the prerequi-sites for a writ to issue.30

¶ 627 However, I wish to clarify that themajority’s decision in Schmitz v. Petersonshould not be construed as holding thatthe evidence gathered in the John Doeproceedings fails to provide a reasonablebelief that Wisconsin’s campaign-financelaw was violated. The majority’s decisionto deny the writ rests solely on the factthat Reserve Judge Gregory Petersonmade a discretionary decision to quash thesubpoenas and search warrants at issue.By the very nature of the supervisory writstandard, the majority’s conclusion takesno position on the propriety of ReserveJudge Peterson’s decision in this regard.

III. CONCLUSION

¶ 628 By erroneously concluding thatcampaign committees do not have a dutyunder Wisconsin’s campaign-finance law toreport receipt of in-kind contributions inthe form of coordinated spending on issueadvocacy, the majority rejects the specialprosecutor’s primary argument regardingcriminal activity. Although the specialprosecutor advances a secondary argument

30. See majority op., ¶¶ 78, 101.


of criminal activity concerning coordinatedexpress advocacy, the majority inexplica-bly ignores that argument. These mis-takes lead the majority to terminate avalid John Doe investigation in an unprec-edented fashion.

¶ 629 With respect to the special prose-cutor’s primary argument, which is thefocus of my writing, the majority misap-plies the related doctrines of overbreadthand vagueness. Unlike the majority, Iconclude that Wis. Stat. § 11.06(1) is nei-ther overbroad S 374nor vague in its re-quirement that campaign committees re-port receipt of in-kind contributions. Themajority also makes the troubling pro-nouncement that an act is not a regulabledisbursement or contribution under Ch.11 unless it involves express advocacy orits functional equivalent. This is an ero-sion of Ch. 11 that will profoundly affectthe integrity of our electoral process. Icannot agree with this result.

¶ 630 It is also imperative to note thatthe majority conveniently overlooks thespecial prosecutor’s secondary argument ofcriminal activity in its effort to end thisJohn Doe investigation. Specifically, thespecial prosecutor seeks to investigatewhether particular express advocacygroups coordinated their spending withcandidates or candidate committees in vio-lation of their sworn statement of indepen-dence under Wis. Stat. § 11.06(7). Despitethe fact that the special prosecutor utilizesa significant portion of his brief to presentevidence of such illegal coordination, themajority determines, without explanation,that the John Doe investigation is over.

¶ 631 Has the majority abused its powerin reaching this conclusion? The majori-ty’s rush to terminate this investigation isreminiscent of the action taken by theUnited States District Court for the East-ern District of Wisconsin in O’Keefe v.Schmitz, 19 F.Supp.3d at 875, an action

that was both criticized and reversed bythe United States Court of Appeals for theSeventh Circuit in O’Keefe, 769 F.3d at942. Although the focus of my writing lieselsewhere, the majority’s error in this re-gard cannot be overlooked.

¶ 632 For these reasons, I respectfullydissent in State ex. rel. Two UnnamedPetitioners v. Peterson (Two UnnamedPetitioners ).

S 375¶ 633 However, because I agree thatthe special prosecutor and certain Un-named Movants have failed to meet theirheavy burden of establishing that the JohnDoe judge violated a plain legal duty ineither initiating these proceedings orquashing various subpoenas and searchwarrants related to the investigation, Irespectfully concur with the majority inState ex. rel. Schmitz v. Peterson (Schmitzv. Peterson ) and State ex. rel. Three Un-named Petitioners v. Peterson (Three Un-named Petitioners ). In concurring inSchmitz v. Peterson, it is significant for methat when an appellate court decides toissue a supervisory writ, it is a rare, dis-cretionary decision. Madison Metro. Sch.Dist., 336 Wis.2d 95, ¶¶ 33–34, 800 N.W.2d442. Here, the John Doe judge also madea discretionary decision in deciding a com-plex legal issue. Deference should be giv-en where there is such discretion.

¶ 634 For the foregoing reasons, I con-cur in part and dissent in part. To beclear, I agree with the majority’s decisionto deny the petition for supervisory writand affirm Reserve Judge Gregory Peter-son’s order in Schmitz v. Peterson. I alsoagree with the majority’s decision to denythe petition for supervisory writ and affirmthe court of appeals’ decision in ThreeUnnamed Petitioners. However, contraryto the majority, I would deny the reliefsought in Two Unnamed Petitioners and

393Wis.MARKS v. HOUSTON CAS. CO.Cite as 866 N.W.2d 393 (Wis.App. 2015)

allow the John Doe investigation to contin-ue.

,

363 Wis.2d 505

2015 WI App 44

David M. MARKS, Plaintiff–Appellant–Cross–Respondent.†

v.

HOUSTON CASUALTY COMPANY,Defendant–Respondent–Cross–

Appellant.

Bedford Underwriters, Ltd.,Defendant–Respondent.

No. 2013AP2756.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 5, 2014.

Opinion Filed May 7, 2015.

Background: Insured trustee brought ac-tion against professional liability insurerand surplus lines agent to recover forbreach of duty to defend trustee in suitsagainst him as shareholder, director, orboard chairman of companies not listed indeclarations. Insurer filed cross-claimagainst agent. The Circuit Court, Milwau-kee County, Richard J. Sankovitz, J., en-tered summary judgment against trusteeand dismissed cross-claim. Appeal andcross-appeal were taken.

Holdings: The Court of Appeals, Sher-man, J., held that:

(1) policy exclusion could be considered indetermining whether insurer breachedduty to defend by unilaterally failing orrefusing to defend trustee, and

(2) exclusion barred coverage for allegedliability as shareholder, director, or

board chairmen of companies notnamed in declarations.

Affirmed.

1. Appeal and Error O1078(1)Liability insurer abandoned any chal-

lenge to summary judgment for agent oncross-claim for contribution, where insurerdid not raise that issue in brief on cross-appeal from judgment against insured.

2. Insurance O2914To resolve issue of liability insurer’s

duty to defend, courts look only to allega-tions contained within four corners of com-plaint and terms of the policy.

3. Insurance O2913, 2914Normally, when determining whether

liability insurer has a duty to defend,courts look to allegations in complaintagainst insured and first compare themwith policy’s initial grant of coverage, and,if courts find coverage, they turn next tosee if any exclusions preclude coverage; ifcourts find any such exclusions, they lookto see if any exceptions to exclusions rein-state coverage.

4. Insurance O2913Policy exclusion could be considered

in determining whether liability insurerbreached duty to defend by unilaterallyfailing or refusing to defend insured.

5. Insurance O2386Exclusion making trustee’s profes-

sional liability policy inapplicable to claimsarising out of services or capacity as offi-cer or director of business enterprise notnamed in declarations barred coverage forhis alleged liability as shareholder, di-rector, or board chairmen of companies notnamed in declarations; only professionnamed in declarations involved trustee’s

† Petition for review granted September 15, 2015.

STATE EX REL. TWO UNNAMED v. PETERSON Wis. 165...Supreme Court of Wisconsin. July 16, 2015....

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