June 12, 2009 – The Wisconsin Supreme Court rejected a reading of the John Doe statute that it said threatened to remove control of the proceeding from the judge and place it with the complainant.

In State ex rel. Robins v. Hon. Patrick J. Madden, 2009 WI 46, the court rejected Ira Robins’ contention that Wis. Stat. § 968.26 requires a judge to subpoena and examine every witness produced in support of the John Doe complaint. The court said that while the judge is obligated to examine the complainant, the statute gives the judge discretion not to call the other witnesses.

Robins’ John Doe action

Under § 968.26, a person who believe a crime has been committed in the jurisdiction may approach a local judge with this information. The judge may initiate an investigative proceeding called a John Doe, which may or may not be secret, to determine if a crime has been committed, and , if so, who committed it.

In this case, Robins accused the Taylor County district attorney of misconduct. After the Taylor County Circuit Court judge recused himself, the matter was transferred to Iron County Circuit Court Judge Patrick Madden.

Robins brought five witnesses to the hearing and he had two others on-call. Madden examined Robins under oath for more than two hours. As part of this examination, Madden elicited a summary of the substance of each prospective witness’ testimony, but did not call them. After the examination, Madden dismissed the complaint, finding it lacked a sufficient factual basis.

Seeking to compel Madden to reconvene the John Doe proceeding and examine all witnesses produced, Robbins petitioned the court of appeals for a supervisory writ of mandamus. The court of appeals denied the petition, ruling that § 968.26 does not require a judge to examine each witness.

Statutory interpretation

The statute states “the judge shall examine the complainant under oath and any witnesses produced by him or her.”

“On its own, this provision manifestly requires ‘any witness produced’ ‘shall’ be examined,” the court said. “But the statute also provides a significant qualifier: ‘The extent to which the judge may proceed in the examination is within the judge’s discretion.’”

Robins argued that this language means that the judge has discretion over the scope of each witness’ examination, but not to which witness will be called. The justices, however, were persuaded by Madden’s warnings that such an interpretation “opens the court to all manner of abuses.”

“Judges, for example, would be required to call an irrelevant, but nevertheless produced witness, only to ask the witness nothing of substance,” the court remarked.

The court said its interpretation “is ultimately guided by our obligation to view the text as a whole, and in particular with a view to avoiding absurd or unreasonable results.”

“Robins’ interpretation calls forth the specter of absurdities that are as numerous as they are wasteful,” the court wrote. “Under his approach, a complainant could produce all of his neighbors – be they fellow residents of a tree-line neighborhood or fellow inmates of a prison cell block – and require the judge to clear the court’s calendar for however many hours or days it might take to call and perfunctorily examine each witness.”

Amended precedent

The court said that a judge has no discretion to refuse to examine the complainant following its decision in State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605 (1997). But the court worried some language in Reimann could be read in conflict with its decision in this case.

“[C]ertain passage in the Reimann opinion seem to implicate the question before us today,” the court acknowledged. “The opinion states, for example, ‘The plain language of Wis. Stat. § 968.26 requires a judge to examine a John Doe complainant and his or her witnesses, if any, when the complainant has reason to believe a crime has been committed within that judge’s jurisdiction.’”

“The facts of that case make clear, however, that the court was not addressing witness examinations in a John Doe hearing,” the court said. “In Reimann, a John Doe complainant’s petition was denied without a hearing or any examination of the complainant.”

“[T]o avoid any confusion, we withdraw the language in Reimann which appears to require a John Doe judge to examine all witnesses produced by a complainant,” the court wrote.