thank you may please the court and he drive on behalf of the kind of appellant macabre institute over four years ago millions of sensitive documents were seized from macgyver hundred others in a wisconsin john doe the old investigation died soon after the seizures but these people still don't know or have copies of what we see and they can't be sure that more public leaks one occur i don't i file a motion with that wisconsin supreme court which is really the lead jurisdiction for the sealing order for these documents well there are parties your honor who did try to file actually first with the john doe  judge and there are probably just so proceeding is shut down you're on to respectfully the judge there is still a john doe judge who is in charge of the proceeding and i think the record shows i remember correctly that the parties here actually tried to go back to the john doe judge last fall with respect to issues in this case but the point my point is actually a fairly simple one the the documents are under seal by order of the wisconsin court we affirmed recently in the archer case a very modest addition to that for the federal for different federal district court which was trying you know to abide by comedy and at the but really if i can call it that it seems to me clear that the lead jurisdiction here is the wisconsin supreme court which has ruled on the jonjo investigations which has retained a copy of the documents as far as the record shows there are no copies of the documents in anyone's custody other than the wisconsin supreme court and the eastern district court so it just seems to me you're in the wrong place  if what you want to do is see to what extent your client's documents were were gathered and whether there was anything to compromise units easy enough to understand why you are curious but well your honor there are several things to unpack there know you've expended many many pages in your brief trying to tell me that a court and a proceeding are the same thing and i can't say that i find that very persuasive you know we have federal district courts in which there are criminal proceedings in which there administrative proceedings in which there are civil proceedings and that tells you something about the nature of the case with these wisconsin john doe's the court is the circuit court of which the john doe judge judge is a member the proceeding isn't a regular civil case or a criminal case it's this unique wisconsin john doe but to conflate court and proceeding is a strange move but your honor i think actually i think there's a different problem here and i maybe i'll start with that and i'll work my way back to your first question i know there's a lot to discuss but actually the in this case the law changed chapter nine sixty eight changed the reserved judge which is all the judge kluger was she was not a judge of the circuit court she was not a judge of the corps you say that but actually the wisconsin courts seem to think that recall judges  we have recall magistrate judges in bankruptcy judges are during the term of the recall fully empowered to participate in this case is a member of of the circuit court well your honor in this case question of state law by the way we agree we believe that these that much of this these are questions of state law but here's the thing now reserve judges actually can't be recalled to be on a john doe that's that's been changed in the law that doesn't matter for this case well the court actually assume that in reason backwards and use that to decide the judge kluger was a member of the circuit court actually if you read three hundred petitioners they don't say circuit judge who could they say reserve judge who go over and know congress in the store communications act is writing a statute for the united states they're not reading the statute for wisconsin however important wisconsin may be so they use general language a court of general criminal jurisdiction of a state authorized by the law that state issues search warrants you never claimed as far as i know that the search warrants were impermissibly issue well your honor or not but i guess that's not that authority exists in the circuit court the circuit court judge and a circuit court judge assigned to a john doe proceeding but but the problem is there are two different requirements that are independent under the store communications act one is  use state weren't procedures the other one is that you use a court of competent jurisdiction which is which is a state court of general criminal jurisdiction so it's not that simply using the correct word procedures wins the day both of those elements and the judges attached to the circuit court you may think they made a mistake in attaching her but the supreme court where the chief justice of wisconsin and the various wisconsin procedures that are applicable assigned her to that court then we get another john doe judge and judge of course well she's only on it for a little while your honor actually argument is not that the court is it's not that the john doe proceeding is a court argument is that it's not record and a wisconsin law doesn't matter in case and after a case that we cited the court distinguishes between a john doe judge just sitting as a judge and a john doe judge when you know the judge convenes as a judge honor week we grant that obviously but here there are things there john doe judge does not have jurisdiction to do such as or the production of documents a john doe judge has to know that's but why is that relevant you know she issues the search warrant that it's not a discovery order to search it here's precisely why it's relevant had this been done in a circuit court as it could have been and as it would have been had they followed the ga be statutes which were open to the would have had a docket of course if this had not been a john doe proceeding and it certainly wasn't your decision and it wasn't my decision for the state of wisconsin to have this somewhat unusual way of approaching things judge a grand jury you would not have had and notice of what was going on before the grand juries because grand juries operate in secret the john doe proceeding in that respect is sort of like a grand jury on steroids basically right but well somewhat but it's also lesser than a grand jury because at the end of the day all the issues is a complaint from the john doe judge and then that complaint is still tested yet again in the circuit court  so it is the same thing so grand jury does have the power to return an indictment but that's not a finding of guilt it's an accusation right but what the john doe judge reaches at the very end of the day is even less than an indictment it's not even what a grand jury can reach so it's really an investigative tool and here in fact the special prosecutor had the authority to decide whether to file charges so this was even a more unusual form of a john doe means it seems to me that the position you're taking is that in essence there is this unique loophole for an important term in the storage communications act which in essence says  horseman can get search warrants and can go seize storage electronic communications all over the country if they use search warrants and your theory seems to be that in wisconsin there is this one investigative procedure generals that couldn't get in so you get a search warrant and you can do what you need to do but your honor respectfully the loophole here is not that not the plaintiffs theory it's really what the prosecutors tried to do by getting under a john doe what they could have gotten appropriately to your question because this i think this is an important point when when congress wrote the s c a first of all they didn't just say getting a search warrants enough it has to emanate from certain entities and so on the state side they had to look across fifty jurisdictions i understand that some states do have unique proceedings and right off hand there's wisconsin apparently there's also michigan which also calls its proceeding a one man grand jury and there's kansas close to where i live do you need well the s b a says you need a court of competent jurisdiction not just using the proper procedures there are two requirements we could read that requirement out of the ca but they were not applying to texas so what's what's the point of  this is the meat of the matter this is it so if you have a court you actually have something of continuing you have an institution that's there they have a docket they might seal things and tell the intel the execution of the warrant but at least you have something  that then shows up and somebody can actually go to that court and say i see you've sealed all these search warrants and i know that there's a matter of going on right now which happened in wisconsin and you could say i'd like you to unseal the thing anything in here that mentions mining let me see it if you then see that a search warrant has been served for your e mail account then you say i like to move for an inventory again you have standing there to go ask for it then you can say have a look at the inventory i think i want to move for return of these documents again you can go to the circuit court in a john doe it's uncertain even though some people were able to in the last jondo it's uncertain that anyone has changes show up in file any motions they're oftentimes is just done at parties and so  unusual situations like wisconsin that i think the s b a tries to account for by saying states search warrant procedures but also of course are you going to congress was intentionally trying to exclude wisconsin james well i don't have to see that far into their mind you are but i don't need i mean i'm going to ask you to address this on rebuttal this seems to be clear in your mind but i'm not sure it's clear on the face of the statute and so the statute itself actually has a good faith order he says they don't still have their materials well at this point we don't know either it's in the hands of the federal district court under seal along the lines that happen to be or to case and that was going to western district also keep the western district did took the same stuff up but they took it from us so we don't have it so there is no injunction you could enter in this case that would get those documents back to the plaintiffs that would be directed to my clients the wisconsin supreme court is  place to go for that mr grimes argument about the law having changed on reserve just reserved judges has no application here because if it changed later it doesn't matter judge clue got was in reserve judge under wisconsin law a circuit court judge having been made one as a reserve judge when she issued the warrant and that's all that matters it's also a new argument that was made i think for the first time at the podium i would also note that the wisconsin supreme court in the lengthy peterson case said that judge clucas appointment valid so that kind of ends that matter thanks to the number i would ask the court to keep in mind particularly state versus cummings of wisconsin supreme court case that said that it described what it is a john doe judge and that's probably a term which will stop using a judge assigned to a john doe proceeding does when she issues a search warrant she doesn't issue it as a john doe judge she issues it as a circuit court judge which  top of the page say you know in the circuit court for dane county or something you know i've never seen the warrant so i don't know because my clients my clients can't show it to me but i suspect that it does but that by cummings makes clear circuit judge presiding over a john doe case issues a search warrant she does so as a circuit judge and she exercises her fundamental jurisdiction to do so as a circuit court judge not as some sort of special judge as you pointed out in federal court judges preside over all kinds of things and there's nothing that would have prevented judge clue come from issuing that search warrant in connection with the john doe case that she was presiding over in the morning and if she was so assigned probating in the state in the afternoon she was a circuit was not is not really she was recalled and read and assigned to the circuit court the only thing that was assigned to her once she was recalled was the john doe proceeding so she was not recalled i'm told tonight whenever  circuit court assigns things you know they just assign so and i think they do that because some of these john doe's take a lot of time and you know judges existing judges have busy dockets but even again even if she had been the statute says you have to be a circuit court judge to preside over a john doe proceeding so even if the chief justice was changed at some point long before this case right in what used to be it used to be used or used to be able to report commissioners or municipal court judges all types of people could do it but i think i think it was in sixty nine t change that mr grant talks about a docket and he talks about it seem in their briefs they seem to be arguing that somehow or other they should have been able to challenge the warrant before it was issued and i've been working with search warrants since i s and you're allowed to do that there there is no as opposed to civil discovery has put well so i've only learned to appreciate in the last few years or not very much there is nothing that compels a prosecutor to decide well i could get this by search warrant but i'm going to use a subpoena i'm going to use a request for production of documents or search warrants or something you can do and they are they are decided essentially issued ex part e after their issued there are a number of things you can do to try to find out what was seized if it's used against you or if you fight you know if you're aware of the seizure you can get an inventory and that exists in federal law and also under wisconsin law but i have never heard of a search warrant where you can come in and say i'm getting a search warrant and it's and they go to the judge and say don't issue the warrant and they can contest that i would also point out the plaintiff makes a big deal in their brief about all the secrecy supposedly taking this out of the reach of the cia but again all warrants are like that and the warrant here was not simply secret because it was judge john doe proceeding there is a wisconsin statue nine sixty eight point three seventy five so ten that says it was not long a warrant issued under this section shall be issued with all practicable secrecy thanks judge kluger was acting as a circuit judge in chief of that warrant under that statute the john doe secrecy order may also have applied but even if they had gone to the circuit court it soon it was a different place which it wasn't they would have ended up in the same proceeding so is that john is this john this is john doe two we're talking about yes is it over as far as we know your honor i am not aware and i don't think my clients are aware of any activity related to it except so there is not censor anybody to shut it down and shut it down they said there is nothing wrong with these campaign arraign you know finance arrange  obviously law from the supreme court had been evolving over the years but it's hanging on to these documents and these two district courts i guess all these cases are getting wrapped up and if the cases are ever over supreme court did in peterson it would be hard to make a proceeding much more over them it was over when you tell everybody they have to destroy the documents first and later turn them in and shut the whole thing down it's about is over is over can be would there be any reason that you were talking from your client's perspective why the platers should not be allowed to inspect what's in the custody of the district court you know i've never asked them that question but i can't imagine that they would be again we don't have  could issue a search warrant and at that point in the absence of any case that says no and as we know some of this better than others in the area of john doe there are a lot of cases that specify what you can and can't do right then you have either good faith or  your honor i would like to address a good faith but there are a couple other things i'd like to try to clean up quickly first of all cummings does not say that search warrants were issued by someone as a circuit court judge that it says the opposite it says that search warrants were issued due to the inherent powers of a judge not sitting as a circuit court at another important point i want to get to hear it i think maybe this is where the entire thing could head depending on what the court decides is the question that the district court judge actually has all the documents all the papers that we are suing about those are now in the possession of the of the district court and so we filed a motion under forty one g for return of those i know that it's an underlying state proceeding but now we have the federal government actually has the records and so let me ask you how that motion should be understood in light of the orders from the wisconsin supreme court about the identical documents it's seems unseemly to meet you for the district court in the face of the wisconsin supreme court's order of course you'll remember the facts an archer where the person was concerned that there were  unfavorable defamatory comments about her that there were all sorts of things that were undesirable so it's not a neutral act to just say to the wisconsin supreme court even though you've decided these things have to be under seal we did federal so how does the federal district court without disrespecting the wisconsin supreme court's order release them even to the people whose e mails we're talking about well your honor the s c a ultimately  provides a cause of action for injunctive relief and so forty one g is also viewed as an equitable claim and at the end of the day your honor the wisconsin supreme court has never expressed a concern about letting people whose things were se actually receive them as your knowledge hasn't returned any such things to anyone to my knowledge it has not and i think i would probably know but not through this representation ok but i would say this to turn to the good faith reliance is used obviously we've argued by see that i'm out of time i'll let you finish your thought on that ok well i think our our simple point here is that there can't be good faith reliance following the created because here these are the people that designed the warrant sought the warrant and themselves in other contexts we're worried about what a reserve judge who is sitting as a john doe judge can actually do and what orders she could actually enter ok thank you very much thanks to both coun