2015 WI 85

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP296-OA & 2014AP417-W through 2014AP421-W & 

2013AP2504-W through 2013AP2508-W 

COMPLETE TITLE: State of Wisconsin ex rel. Two Unnamed Petitioners,

 Petitioner,

 v.

The Honorable Gregory A. Peterson, John Doe Judge and 

Francis D. Schmitz, Special Prosecutor,

 Respondents.

-------------------------------------------------

State of Wisconsin ex rel. Francis D. Schmitz,

 Petitioner,

 v.

Honorable Gregory A. Peterson, John Doe Judge,

 Respondent,

Eight Unnamed Movants,

 Interested Party.

--------------------------------------------------

In the Matter of John Doe Proceeding

State of Wisconsin ex rel. Three Unnamed Petitioners,

 Petitioner,

 v.

the Honorable Gregory A. Peterson, John Doe judge, 

the Honorable Gregory Potter, Chief Judge and 

Francis D. Schmitz, as Special Prosecutor,

 Respondents.

ORIGINAL ACTION

------------------------------------------------------

PETITION FOR SUPERVISORY WRIT BEFORE THE SUPREME COURT, 

APPEAL AND BYPASS TO THE SUPREME COURT FROM CIRCUIT 

COURT ORDER

-------------------------------------------------------

PETITION FOR REVIEW BEFORE THE SUPREME COURT 

OPINION FILED: July 16, 2015

SUBMITTED ON 

BRIEFS: 

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee, Iowa, Dodge, Dane and Columbia
2

JUDGE: Gregory A. Peterson (Reserve)

JUSTICES:

CONCURRED:

CONCUR/DISSENT:

DISSENTED:

PROSSER, J., ROGGENSACK, C.J. (joining Sections IV and 

V), ZIEGLER, J. (joining Section IV) and GABLEMAN, J.

(joining Section IV) concur (Opinion filed).

ZIEGLER, J. concurs (Opinion filed).

ABRAHAMSON, J. concurs and dissents (Opinion filed).

CROOKS, J. concurs and dissents (Opinion filed).

NOT 

PARTICIPATING: BRADLEY, J., did not participate. 

ATTORNEYS:

For the Petitioners (case nos. 2013AP2504-W through 

2013AP2508-W and 2014AP296-OA) and Interested Parties (case nos. 

2014AP417-W through 2014AP421-W) there were briefs by Attorney

Dean A. Strang, StrangBradley, LLC, Madison; Attorney Steven M. 

Biskupic and Attorney Michelle L. Jacobs, Biskupic & Jacobs, 

S.C., Mequon; Attorney Dennis P. Coffey, Mawicke & Goisman, SC, 

Milwaukee; Attorney Matthew W. O’Neill, Fox O’Neill Shannon, 

S.C., Milwaukee; Attorney James B. Barton, Hansen Reynolds 

Dickinson Crueger LLC, Milwaukee; Attorney Eric J. Wilson, 

Godfrey & Kahn, S.C., Madison; and Attorney Jeffrey James 

Morgan, LeBell, Dobrowski & Morgan, LLP, Milwaukee.

For the Respondents (case nos. 2013AP2504-W through 

2013AP2508-W, 2014AP417-W through 2014AP421-W and 2014AP296-OA) 

there were briefs by Assistant Attorney General David C. Rice,

with whom on the briefs was Attorney General J. B. Van Hollen

(term of office ending December 31, 2014) and Attorney General 

Brad Schimel (term of office commencing January 1, 2015) and 

Special Prosecutor Francis D. Schmitz (Petitioner in case nos. 

2014AP417-W through 2014AP421-W), Milwaukee.

Amici Curiae briefs were filed by Attorney Benjamin T. Barr

(pro hac vice), Cheyenne, WY and Attorney Stephen R. Klein (pro 

hac vice), Cheyenne, WY on behalf of the Wyoming Liberty Group
3

with whom on the brief was Attorney Matthew M. Fernholz and 

Cramer, Multhauf & Hammes, LLP, Waukesha; Attorney James Bopp, 

Jr., Terre Haute, IN, on behalf of the James Madison Center for 

Free Speech and on behalf of Wisconsin Right to Life, Inc. with 

whom on the briefs was Attorney Michael D. Dean and Michael D. 

Dean, LLC, Brookfield; Attorney James R. Troupis and Troupis Law 

Office, LLC, Cross Plains, on behalf of the Ethics and Public 

Policy Center; Attorney Adam J. White (pro hac vice), 

Washington, D.C. and Boyden Gray & Associates, Washington, D.C., 

on behalf of Former Members of the Federal Election Commission 

Lee Ann Elliot, David Mason, Hans von Spakovsky and Darryl Wold

with whom on the brief were Attorney James R. Troupis and 

Attorney Paul M. Ferguson, Cross Plains; Attorney Jonathan 

Becker, Attorney Nathan W. Judnic and Attorney Kevin J. Kennedy

on behalf of the Wisconsin Government Accountability Board, 

Madison; Attorney Richard M. Esenberg, Attorney Brian W. McGrath

and the Wisconsin Institute for Law & Liberty, Milwaukee, on 

behalf of The Hon. Bradley A. Smith, Center for Competitive 

Politics, and Wisconsin Family Action; Attorney J. Gerald Hebert 

(pro hac vice), Attorney Tara Malloy (pro hac vice), Attorney 

Paul S. Ryan (pro hac vice), Attorney Megan P. McAllen (pro hac 

vice) and The Campaign Legal Center, Washington D.C., Attorney 

Fred Wertheimer (pro hac vice) and Democracy 21, Washington, 

D.C. and Attorney Donald J. Simon (pro hac vice) and Sonosky, 

Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C. on 

behalf of Campaign Legal Center, Democracy 21, Common Cause in 

Wisconsin and League of Women Voters of Wisconsin with whom on 

the brief was Attorney Susan M. Crawford and Cullen Weston Pines 

& Bach LLP, Madison; Attorney David B. Rivkin, Jr. (pro hac 

vice), Attorney Lee A. Casey (pro hac vice), Attorney Mark W. 

Delaquil (pro hac 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 for 

Responsible Government Advocates, Inc. with whom on the brief 
4

was Attorney Christopher M. Meuler and Friebert Finerty & St. 

John, S.C., Milwaukee; Attorney Matthew Menendez (pro hac vice), 

Attorney Daniel I. Weiner (pro hac vice), Attorney Alicia L. 

Bannon (pro hac vice) and Brennan Center for Justice at NYU 

School of Law on behalf of Professors of Legal Ethics, with whom 

on the brief was Attorney Thomas R. Cannon, Milwaukee.
2015 WI 85

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 

2013AP2504-W through 2013AP2508-W

(L.C. No. 2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Two Unnamed 

Petitioners,

 Petitioner,

 v.

The Honorable Gregory A. Peterson, John Doe 

Judge and 

Francis D. Schmitz, Special Prosecutor,

 Respondents.

FILED

JUL 16, 2015

Diane M. Fremgen

Clerk of Supreme Court

State of Wisconsin ex rel. Francis D. Schmitz,

 Petitioner,

 v.

Honorable Gregory A. Peterson, John Doe Judge,

 Respondent,

Eight Unnamed Movants,

 Interested Party.

In the Matter of John Doe Proceeding
2

State of Wisconsin ex rel. Three Unnamed 

Petitioners,

 Petitioner,

 v.

the Honorable Gregory A. Peterson, John Doe 

judge, 

the Honorable Gregory Potter, Chief Judge and 

Francis D. Schmitz, as Special Prosecutor,

 Respondents.

ORIGINAL ACTION for declaratory judgment. Declaration of 

rights; relief granted; John Doe investigation ordered closed. 

PETITION for supervisory writ and appeal from an order of a 

John Doe Judge for Milwaukee County, Iowa County, Dodge County, 

Dane County, and Columbia County, Gregory A. Peterson, Reserve 

Judge. Petition for supervisory writ denied and order affirmed. 

PETITION for supervisory writ and review of a decision of 

the Court of Appeals. Petition for supervisory writ denied and

decision affirmed. 

¶1 MICHAEL J. GABLEMAN, J. These cases arise from a 

John Doe proceeding originally initiated in Milwaukee County, 

and subsequently expanded to four additional counties, Iowa 
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

2013AP2508-W 

3

County, Dodge County, Dane County, and Columbia County. Though 

not consolidated, these proceedings have been overseen by a 

single John Doe judge and organized by a single special 

prosecutor (Francis Schmitz). For the sake of clarity, we will 

refer to all five proceedings as a single "John Doe 

investigation." The investigation has been ongoing for several 

years and has been the subject of much litigation.1

¶2 According to the special prosecutor, the purpose of 

the John Doe investigation is to root out allegedly illegal 

campaign coordination between certain issue advocacy groups and 

a candidate for elective office. To further the investigation, 

the special prosecutor sought, and received, wide-ranging 

subpoenas and search warrants for 29 organizations and 

individuals, seeking millions of documents that had been created 

over a period of several years. Various targets (collectively 

"the Unnamed Movants") moved the John Doe judge to quash the

subpoenas and search warrants and to return any property seized 

by the special prosecutor. The John Doe judge, the Hon. Gregory 

A. Peterson, presiding, granted the motions to quash and ordered 

the return of all property seized. Reserve Judge Peterson 

 1 We have granted the amicus briefs on the merits filed by: 

Wisconsin Right to Life; Citizens for Responsible Government 

Advocates, Inc.; The Wisconsin Government Accountability Board; 

The Honorable Bradley A. Smith, Center for Competitive Politics, 

and Wisconsin Family Action; Campaign Legal Center, Democracy 

21, Common Cause in Wisconsin, and League of Women Voters of 

Wisconsin; Former Federal Election Commission Members Lee Ann 

Elliott, David Mason, Hans von Spakovsky, and Darryl Wold; and 

Wyoming Liberty Group.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

2013AP2508-W 

4

stayed the order, however, and also halted the John Doe 

investigation pending our resolution of the cases before us.

¶3 The first case we address is an original action 

brought by Unnamed Movants Nos. 6 and 7, State ex rel. Two 

Unnamed Petitioners v. Peterson ("Two Unnamed Petitioners"). 

Unnamed Movants Nos. 6 and 7 seek a declaration of rights that 

the special prosecutor's theory of the case is invalid under 

Wisconsin law. Specifically, they ask that we declare that 

coordinated issue advocacy of the kind alleged by the special 

prosecutor is not regulated under Wis. Stat. Ch. 11 (2011-12),2

Wisconsin's campaign finance law.

¶4 The second case we review is a petition brought by the 

special prosecutor for a supervisory writ and an appeal of 

Reserve Judge Peterson's decision and order quashing the 

subpoenas and search warrants, State ex rel. Schmitz v. Peterson

("Schmitz v. Peterson"). The special prosecutor argues that 

Reserve Judge Peterson improperly quashed the subpoenas and

search warrants because the records in the John Doe 

investigation establish a reasonable belief that the Unnamed 

Movants violated Wisconsin's campaign finance law. This case is 

before us on the Unnamed Movants' petitions to bypass the court 

of appeals pursuant to Wis. Stat. § 809.60 (2013-14).

¶5 The third case we address is a petition for a 

supervisory writ and a review of a decision of the court of 

 2 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

2013AP2508-W 

5

appeals, State ex rel. Three Unnamed Petitioners v. Peterson

("Three Unnamed Petitioners"). This petition for supervisory 

writ was brought by Unnamed Movants Nos. 2, 6, and 7, and 

broadly challenges whether the John Doe investigation can be 

initiated in five separate counties under a single John Doe 

judge, and whether the special prosecutor was properly 

appointed. The court of appeals denied the supervisory writ and 

Unnamed Movants Nos. 2, 6, and 7 appealed that decision to this 

court.

¶6 Our order granting and consolidating3 each of these 

cases identified 14 issues presented by the complex nature of 

the cases. These issues related to the procedural nature of the 

John Doe investigation, as well as whether the conduct alleged 

by the special prosecutor is actually a violation of Ch. 11. 

Subsequent briefing by the parties has revealed that the cases 

can be resolved on much narrower grounds than those that were 

originally submitted, and we have written this opinion 

accordingly. 

¶7 We can resolve the original action, Two Unnamed 

Petitioners, by first examining whether the statutory 

definitions of "committee," "contributions," "disbursements," 

and "political purposes" in Wis. Stat. §§ 11.01(4), (6), (7), 

 3 In our December 16, 2014, grant order we consolidated the 

cases for the purpose of briefing and oral argument. We 

subsequently consolidated these three cases into one opinion 

because each case arises out of the same facts.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

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6

and (16) are limited to express advocacy4 or whether they 

encompass the conduct of coordination between a candidate or a 

campaign committee and an independent organization that engages 

in issue advocacy. Second, if the definitions extend to issue 

advocacy coordination, what then constitutes prohibited 

"coordination?"5

¶8 Next, we can resolve the supervisory writ petition in 

Schmitz v. Peterson by answering whether the evidence gathered 

in the John Doe proceedings provides a reasonable belief that 

Wisconsin law was violated by a campaign committee's 

coordination with independent advocacy organizations that 

engaged in express advocacy.6

¶9 Finally, we can resolve the supervisory writ petition 

in Three Unnamed Petitioners by examining: (1) Whether the 

Director of State Courts ("Director") violated a plain legal 

duty in appointing reserve judge, Barbara A. Kluka, as the John 

Doe judge to preside over a multi-county John Doe proceeding; 

(2) Whether the Chief Judge of the First Judicial District 

violated a plain legal duty in appointing reserve judge, Gregory 

A. Peterson, as the John Doe judge to preside over a multi-

 4 Express advocacy is a communication that expressly 

advocates for the election or defeat of 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.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

2013AP2508-W 

7

county John Doe proceeding; (3) Whether a John Doe judge 

violated a plain legal duty by convening a John Doe proceeding 

over multiple counties, which is then coordinated by the 

district attorney of one of the counties; (4) Whether a John Doe 

judge violated a plain legal duty by appointing a special 

prosecutor to perform the functions of a district attorney in 

multiple counties in a John Doe proceeding when (a) the district 

attorney in each county requests the appointment; (b) but none 

of the nine grounds for appointing a special prosecutor under 

Wis. Stat. § 978.045(1r) apply; (c) no charges have yet been 

issued; (d) the district attorney in each county has not refused 

to continue the investigation or prosecution of any potential

charge; and (e) no certification that no other prosecutorial 

unit was able to do the work for which the special prosecutor 

was sought was made to the Department of Administration; and (5) 

If, arguendo, there was a defect in the appointment of the 

special prosecutor in the John Doe proceedings at issue in these 

matters, what effect, if any, would such a defect have on the 

competency of the special prosecutor to conduct the 

investigation; or the competency of the John Doe judge to 

conduct these proceedings?7

I. HOLDINGS

A.

 7 These are issues one through five from our December 16, 

2014, grant order.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

2013AP2508-W 

8

¶10 In Two Unnamed Petitioners, we hold that the 

definition of "political purposes" in Wis. Stat. § 11.01(16) is 

unconstitutionally overbroad and vague under the First Amendment 

to the United States Constitution and Article 1, Section 3 of 

the Wisconsin Constitution8 because its language "'is so sweeping 

that its sanctions may be applied to constitutionally protected 

conduct which the state is not permitted to regulate.'" State 

v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting 

Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 

(1987)). However, a readily available limiting construction 

exists that we will apply and that will prevent the chilling of 

otherwise protected speech; namely, "political purposes" is 

limited to express advocacy and its functional equivalent9 as 

those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976), 

and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 

449 (2007) (WRTL II). With this limiting construction in place, 

Chapter 11 does not proscribe any of the alleged conduct of any 

of the Unnamed Movants. The special prosecutor has not alleged 

 8 See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶23 n.9, 

358 Wis. 2d 1, 851 N.W.2d 337, reconsideration denied, 2015 WI 

1, 360 Wis. 2d 178, 857 N.W.2d 620 (concluding that the freedom 

of speech rights protected under the Wisconsin and United States 

Constitutions are coextensive.) See also Kenosha Co. v. C&S 

Management, Inc., 223 Wis. 2d 373, 389, 588 N.W.2d 236 (1999).

9 The functional equivalent of express advocacy occurs when 

the "'ad is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate.'" 

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 to 

Life, Inc., 551 U.S. 449, 469-70 (2007) (WRTL II)).
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

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9

any express advocacy, and issue advocacy, whether coordinated or 

not, is "beyond the reach of [Ch. 11]." Wis. Right to Life, 

Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II). 

Accordingly, we invalidate the special prosecutor's theory of 

the case, and we grant the relief requested by the Unnamed 

Movants. 

¶11 To be clear, this conclusion ends the John Doe 

investigation because the special prosecutor's legal theory is 

unsupported in either reason or law. Consequently, the 

investigation is closed. Consistent with our decision and the 

order entered by Reserve Judge Peterson, we order that the 

special prosecutor and the district attorneys involved in this 

investigation must cease all activities related to the 

investigation, return all property seized in the investigation 

from any individual or organization, and permanently destroy all 

copies of information and other materials obtained through the 

investigation. All Unnamed Movants are relieved of any duty to 

cooperate further with the investigation.

B.

¶12 In Schmitz v. Peterson, we hold that the special 

prosecutor has failed to prove that Reserve Judge Peterson 

violated a plain legal duty when he quashed the subpoenas and 

search warrants and ordered the return of all property seized by 

the special prosecutor. In quashing the subpoenas and search 

warrants, Reserve Judge Peterson exercised his discretion under 

the John Doe statute, Wis. Stat. § 968.26, to determine the 
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

2013AP2508-W 

10

extent of the investigation. Because the purpose of a 

supervisory writ does not include review of a judge's 

discretionary acts, State ex rel. Kalal v. Circuit Court for 

Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110, 

the supervisory writ sought by the special prosecutor is denied, 

and Reserve Judge Peterson's order is affirmed.

C.

¶13 Finally, in Three Unnamed Petitioners, we hold that 

the Unnamed Movants have failed to prove that either Reserve 

Judge Kluka or Reserve Judge Peterson violated a plain legal 

duty by: (1) accepting an appointment as a reserve judge; (2) 

convening a multi-county John Doe proceeding; or (3) appointing 

a special prosecutor. Although the circumstances surrounding 

the formation of the John Doe investigation raise serious 

concerns, and although the appointment of the special prosecutor 

may well have been improper, such concerns do not satisfy the 

stringent preconditions for a supervisory writ.10 Put another 

way, were we to grant the supervisory writ in this case, we 

would risk "transform[ing] the writ into an all-purpose 

alternative to the appellate review process," which we cannot 

do. Id. Accordingly, we deny the supervisory writ and affirm 

the decision of the court of appeals.

 10 See infra Section V.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

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11

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY11 12

¶14 In the spring of 2010, a John Doe proceeding (John Doe 

I) was commenced for the purpose of investigating the alleged 

misuse of public resources in the Milwaukee County Executive's 

Office. This investigation resulted in criminal charges being 

filed against four individuals——Tim Russell, Kevin Kavanaugh, 

Kelly Rindfleisch, and Darlene Wink——in January 2012.13

¶15 John Doe I also triggered a second John Doe proceeding 

(John Doe II), the investigation at issue here. On August 10, 

2012, Milwaukee County Assistant District Attorney David Robles 

filed a petition for the commencement of John Doe II in the 

 11 In setting forth the facts, we respect the terms of the

secrecy order issued by Reserve Judge Kluka and thus our

majority opinion will set forth only the facts necessary for our 

resolution of this case. See State ex rel. Niedziejko v. 

Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964). However, we 

can interpret the secrecy order and modify it to the extent 

necessary for the public to understand our decision herein. If 

a fact is necessary to include in order to render explicable a 

justice's analysis of an issue presented, it is not precluded by 

the secrecy order. We do not discuss the identity of the 

Unnamed Movants or the specific allegations against them. We 

do, however, discuss the actions of the prosecutors and the 

judges involved.

12 We recognize that in the ordinary case our procedural 

background would not be given with such exacting precision. 

Conversely, we recognize that in the ordinary case without a 

secrecy order, our factual background would be more precise, in 

that we would, among other things, identify the parties. Be 

that as it may, in the interest of as much transparency as 

possible we set forth as many of the facts as we can. 

13 Records from John Doe I have been released to the public 

by the original John Doe judge and are no longer subject to any 

secrecy order.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

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Milwaukee County circuit court. This petition sought leave to 

investigate alleged campaign finance violations under Wis. Stat. 

Ch. 11, and requested a secrecy order to cover the investigation 

in anticipation that documents would be sought from the targeted 

individuals. In support of his request, Robles' petition 

referred to an affidavit by Investigator Robert Stelter.

¶16 Stelter's affidavit indicates that emails obtained in 

response to a search warrant in John Doe I suggested that there 

may have been coordination of fundraising between campaign

committees and other related, independent groups. Reserve Judge 

Neal Nettesheim, the John Doe I judge, authorized the use of the 

information obtained in John Doe I for the purpose of requesting 

the commencement of John Doe II.

¶17 On August 23, 2012, the Chief Judge of the First 

Judicial District, Jeffrey Kremers, assigned and forwarded the 

John Doe petition to Reserve Judge Kluka. On September 5, 2012, 

using a form titled "Application and Order for Specific Judicial 

Assignment," Director of State Courts John Voelker (with thenChief Justice Shirley Abrahamson's name directly above)14

assigned Reserve Judge Kluka to preside over the John Doe 

proceeding in Milwaukee County. That same day, Reserve Judge 

Kluka authorized the commencement of the John Doe proceeding and 

also granted the requested secrecy order.

 14 The actual text of the assignment orders read: "Shirley 

Abrahamson Chief Justice By: Electronically signed by [sic] A. 

John Voelker, Director of State Courts."
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

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¶18 On September 6, 2012, Investigator Stelter filed an 

affidavit in support of a request for search warrants and 

subpoenas. The request covered a wide swath of desired 

information, including emails, conference call records, and bank 

records, dating from 2009 to 2012. In support of this request, 

Investigator Stelter provided details of numerous emails between 

a candidate committee and individuals and/or groups.

¶19 On December 13, 2012, Investigator Stelter filed 

another affidavit in support of a request for further search 

warrants and subpoenas. This affidavit provided additional 

details about the parties and how they operated in coordination 

with each other. The theory of the case, as put forward by the 

special prosecutor, is two-fold: (1) that the independent groups 

and the candidate committee worked "hand in glove" such that the 

independent groups became mere subcommittees of the candidate's 

committee, thus triggering reporting and disclosure requirements 

under Wis. Stat. §§ 11.10(4); and (2) that the coordinated issue 

advocacy amounted to an unlawful in-kind contribution to the 

candidate committee under Wis. Admin. Code § GAB 1.20.

¶20 On January 18, 2013, Milwaukee County District 

Attorney John Chisholm met with then-Attorney General J.B. Van 

Hollen to discuss the ongoing investigation. District Attorney 

Chisholm sought to determine whether, given the statewide nature 

and gravity of the investigation, the Department of Justice 

("DOJ") wished to become involved. On May 31, 2013, Attorney 

General Van Hollen sent District Attorney Chisholm a letter 
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 

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14

declining DOJ involvement in the investigation. Attorney 

General Van Hollen cited, among other things, potential 

conflicts of interest and the appearance of impropriety.

¶21 In July 2013, three more petitions to commence John 

Doe proceedings were filed: District Attorney Jane Kohlwey filed 

a petition in Columbia County circuit court on July 22, 2013; 

District Attorney Larry Nelson filed a petition in Iowa County

circuit court on July 25, 2013; and District Attorney Kurt 

Klomberg filed a petition in Dodge County circuit court on July 

26, 2013. 

¶22 On August 7, 2013, using a form titled "Application 

and Order for Specific Judicial Assignment," Director Voelker 

(with then-Chief Justice Shirley Abrahamson's name directly 

above) assigned Reserve Judge Kluka to preside over the Iowa 

County John Doe proceeding. On August 21, 2013, Reserve Judge 

Kluka entered an order commencing the John Doe proceeding in 

Iowa County and also entered a secrecy order. 

¶23 Also on August 7, 2013, using a form titled 

"Application and Order for Specific Judicial Assignment," 

Director Voelker (with then-Chief Justice Shirley Abrahamson's 

name directly above) assigned Reserve Judge Kluka to preside 

over the Dodge County John Doe proceeding. On August 21, 2013, 

Reserve Judge Kluka entered an order commencing the Dodge County 

John Doe proceeding and also entered a secrecy order.

¶24 On August 14, 2013, using a form titled "Application 

and Order for Specific Judicial Assignment," Director Voelker 
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15

(with then-Chief Justice Shirley Abrahamson's name directly 

above) assigned Reserve Judge Kluka to preside over the Columbia 

County John Doe proceeding. On August 21, 2013, Reserve Judge 

Kluka entered an order commencing the John Doe proceeding and 

also entered a secrecy order.

¶25 On August 21, 2013, Dane County District Attorney 

Ismael Ozanne filed a petition in Dane County circuit court to 

commence a John Doe proceeding. On August 21, 2013, using a 

form titled "Application and Order for Specific Judicial 

Assignment," Director Voelker (with then-Chief Justice Shirley 

Abrahamson's name directly above) assigned Reserve Judge Kluka 

to preside over the Dane County John Doe proceeding. On August 

21, 2013, Reserve Judge Kluka entered an order commencing the 

Dane County John Doe proceeding and also entered a secrecy 

order.

¶26 Also on August 21, 2013, the District Attorneys from 

all five counties sent a joint letter to Reserve Judge Kluka 

requesting the appointment of a special prosecutor to oversee 

the entire investigation. The District Attorneys encouraged 

Reserve Judge Kluka to appoint a special prosecutor on her own 

motion and in the exercise of her inherent authority. Their 

letter expressed concerns that it would be inefficient for five 

district attorneys to handle one investigation and that there 

may be a perception of bias given their partisan affiliations. 

The letter recommended Francis Schmitz for the position.
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¶27 On August 23, 2013, Reserve Judge Kluka entered

separate, but identical, orders in all five John Doe proceedings 

appointing Francis Schmitz as special prosecutor with 

jurisdiction across the five counties. Mirroring the District 

Attorneys' position on the matter, Reserve Judge Kluka cited, as 

the basis of her appointment, concerns of efficiency and the 

appearance of impropriety. Reserve Judge Kluka made the 

appointment pursuant to her purported "authority" under State v. 

Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, as 

well as her purported "inherent authority" under State v. 

Cummings, 199 Wis. 2d 721, 736, 546 N.W.2d 406 (1996). Each 

order fixed the special prosecutor's rate of pay at $130 per 

hour and stated that a copy should be sent to the Department of 

Administration.

¶28 On October 1, 2013, Reserve Judge Kluka authorized 29 

subpoenas duces tecum to, among others, Unnamed Movants Nos. 1, 

2, 3, 4, 5, and 8, based on an affidavit submitted to her by 

Investigator Stelter. These subpoenas compelled production of 

documents evidencing the conduct of coordination among the 

subpoenaed parties and a candidate committee, particularly the 

interaction between Unnamed Movants Nos. 1 and 2. That same day 

Reserve Judge Kluka authorized search warrants for the homes and 

offices of Unnamed Movants Nos. 6 and 7. The search warrants 

were executed at approximately 6:00 a.m. on October 3, 2013, in 

pre-dawn, armed, paramilitary-style raids in which bright 

floodlights were used to illuminate the targets' homes. 
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¶29 The breadth of the documents gathered pursuant to 

subpoenas and seized pursuant to search warrants is amazing. 

Millions of documents, both in digital and paper copy, were 

subpoenaed and/or seized. Deputies seized business papers, 

computer equipment, phones, and other devices, while their 

targets were restrained under police supervision and denied the 

ability to contact their attorneys. The special prosecutor 

obtained virtually every document possessed by the Unnamed 

Movants relating to every aspect of their lives, both personal

and professional, over a five-year span (from 2009 to 2013). 

Such documents were subpoenaed and/or seized without regard to 

content or relevance to the alleged violations of Ch. 11. As 

part of this dragnet, the special prosecutor also had seized 

wholly irrelevant information, such as retirement income 

statements, personal financial account information, personal 

letters, and family photos.

¶30 Motions to quash the subpoenas were filed by Unnamed 

Movant No. 1 on October 17, 2013, and by Unnamed Movants Nos. 2 

and 3 on October 25, 2013. On October 29, 2013, before ruling 

on the motions, Reserve Judge Kluka recused herself from the 

Milwaukee County proceeding, citing only an unspecified 

"conflict." The Milwaukee County proceeding was reassigned by 

Chief Judge Kremers to Reserve Judge Gregory Peterson on October 

29, 2013.

¶31 The next day, on October 30, 2013, Reserve Judge Kluka 

disqualified herself from the remaining John Doe proceedings. 
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On November 1, 2013, Chief Judge Potter of the Sixth Judicial 

District assigned Reserve Judge Peterson to preside over the 

John Doe proceedings in Columbia County and Dodge County. On 

November 1, 2013, Chief Judge Duvall of the Seventh Judicial 

District assigned Reserve Judge Peterson to preside over the 

John Doe proceeding in Iowa County. On November 4, 2013, Chief 

Judge Daley of the Fifth Judicial District assigned Reserve 

Judge Peterson to preside over the John Doe proceeding in Dane 

County. Thereafter, on November 4, 2013, Director Voelker (with 

then-Chief Justice Shirley Abrahamson's name directly above)

assigned Reserve Judge Peterson to preside over the Milwaukee 

County John Doe proceeding. On November 11, 2013, Director 

Voelker (with then-Chief Justice Shirley Abrahamson's name 

directly above) assigned Reserve Judge Peterson to preside over 

the John Doe proceedings in Iowa County and Dane County. On 

November 14, 2013, Director Volker (with then-Chief Justice 

Shirley Abrahamson's name directly above) assigned Reserve Judge 

Peterson to preside over the John Doe proceedings in Columbia 

County and Dodge County.

¶32 Also on November 14, 2013, Unnamed Movants Nos. 2, 6, 

and 7 filed with the court of appeals a petition for supervisory 

writs of mandamus and prohibition directed at Reserve Judges 

Kluka and Peterson (Three Unnamed Petitioners). The Unnamed 

Movants alleged procedural defects involving the appointment of 

a reserve judge to oversee a multi-county John Doe investigation

and the appointment of the special prosecutor. The Unnamed 
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Movants asked the court of appeals to declare the John Doe 

investigation void ab initio.

¶33 In an order dated November 22, 2013, the court of 

appeals summarily dismissed what it deemed the Unnamed Movants'

"first and sixth claims," namely, that there is no statutory 

authority to appoint or assign a reserve judge to preside over a 

John Doe proceeding, and that the John Doe judge circumvented 

the statutory functions of the clerks of court in five counties 

by requiring certain documents be sent to a post office box. 

Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished 

order 6-7 (Wis. Ct. App. Nov. 22, 2013). Regarding the first 

claim, the court of appeals reasoned that there is no statute 

that limits the ability of reserve judges to oversee John Doe 

investigations. Id. Moreover, the court of appeals noted that

the statute authorizing the appointment of reserve judges 

explicitly states that reserve judges "shall perform the same 

duties as other judges." Id. (citing Wis. Stat. § 753.075). 

The court of appeals ordered the respondents to address the 

remaining claims concerning the legality of a multi-county John 

Doe proceeding, the legality of a special prosecutor handling a 

multi-county John Doe proceeding, and the legality of the 

special prosecutor's appointment under Wis. Stat. § 978.045. 

Id.

¶34 While that case was pending at the court of appeals, 

Unnamed Movant No. 6 also filed a petition in Dodge County 

circuit court on December 4, 2013, for the return of the
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property taken pursuant to the October 1 search warrant. On 

December 20, 2013, Unnamed Movant No. 7 filed a substantially 

similar petition in Dane County circuit court. After a response 

by the special prosecutor, Reserve Judge Peterson granted the 

motions to quash the subpoenas and the petitions to return 

property on January 10, 2014. Reserve Judge Peterson reasoned:

I conclude the subpoenas do not show probable cause 

that the moving parties committed any violations of 

the campaign finance laws. I am persuaded the 

statutes only prohibit coordination by candidates and 

independent organizations for a political purpose, and 

political purpose, with one minor exception not 

relevant here . . . requires express advocacy. There 

is no evidence of express advocacy. 

. . .

Before there is coordination there must be political 

purposes; without political purposes, coordination is 

not a crime.

. . .

As relevant here, acts are for political purposes when 

they are made to influence the recall or retention of 

a person holding office. Wis. Stat. § 11.01(16). If 

the statute stopped here, the definition of political 

purposes might well be unconstitutionally vague. 

Buckley v. Valeo, 424 U.S. 1, 77 (1976). But the 

definition continues: acts for political purposes 

include, but are not limited to, making a 

communication that expressly advocates the recall or 

retention of a clearly identified candidate. Wis.

Stat. § 11.01(16)(a). In GAB 1.28, the GAB attempted 

to flesh out other acts that would constitute 

political purposes, but because of constitutional 

challenges it has stated it will not enforce that 

regulation. So the only clearly defined political 

purpose is one that requires express advocacy. 

The state is not claiming that any of the independent 

organizations expressly advocated. Therefore, the 
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subpoenas fail to show probable cause that a crime was 

committed.

¶35 As for the search warrants executed on the homes and 

offices of Unnamed Movants Nos. 6 and 7, Reserve Judge Peterson 

reasoned:

The same legal conclusions should apply to all parties 

who have raised challenges in this case. Therefore, 

for the reasons stated above regarding the limitations 

in the scope of the campaign finance laws, I conclude 

that the warrants lack probable cause.

¶36 The special prosecutor requested a stay of the order, 

which was granted on January 27, 2014. In his order granting 

the stay, Reserve Judge Peterson also clarified that he was 

incorrect in stating that the probable cause standard applied to 

subpoenas. Nevertheless, he concluded that a subpoena is not 

"valid when based on an invalid interpretation of the law." As 

a condition of the stay, Reserve Judge Peterson ordered the 

State not to examine any of the property seized pursuant to 

search warrants.

¶37 On January 30, 2014, the court of appeals issued an 

opinion and order in Three Unnamed Petitioners addressing the 

remaining issues and denying the supervisory writ. Regarding 

the legality of a multi-county John Doe proceeding, the court of 

appeals reasoned that there were five separate proceedings in 

five separate counties and that it is not unusual for courts to 

hold joint proceedings or to issue joint orders in nonconsolidated cases that share a common factual basis, raise the 

same legal issue, or involve overlapping parties. Three Unnamed 

Petitioners, Nos. 2013AP2504-W-2508-W, unpublished slip op. & 
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2013AP2508-W 

22

order 3-4 (Wis. Ct. App. Jan. 30, 2014). The court of appeals 

used the same reasoning to justify the legality of a special 

prosecutor handling multi-county John Doe proceedings. Id. at 

4-7. As for the legality of the special prosecutor’s 

appointment under Wis. Stat. § 978.045, the court of appeals 

determined that the special prosecutor was appointed pursuant to 

Reserve Judge Kluka's "authority" under Carlson, and "inherent 

authority" under Cummings, not under Wis. Stat. § 978.045, the 

special prosecutors statute. Id. On February 19, 2014, the 

Unnamed Movants filed a petition for review in this court, which 

we granted on December 16, 2014.

¶38 Meanwhile, on February 7, 2014, Unnamed Movants Nos. 6 

and 7 filed a petition for leave to commence an original action 

in the Wisconsin Supreme Court under Article VII, Section 3(2) 

of the Wisconsin Constitution15 (Two Unnamed Petitioners). The 

original action sought a declaration confirming the ruling of 

Reserve Judge Peterson in his January 10, 2014, order. The 

special prosecutor filed a response to this petition on February 

25, 2014. We granted the original action on December 16, 2014.

 15 "The supreme court has appellate jurisdiction over all 

courts and may hear original actions and proceedings. The 

supreme court may issue all writs necessary in aid of its 

jurisdiction." Wis. Const. art. VII, § 3(2). 

"The supreme court limits its exercise of original 

jurisdiction to exceptional cases in which a judgment by the 

court significantly affects the community at large." Wis.

Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶4, 243 

Wis. 2d 512, 627 N.W.2d 807. We exercised original jurisdiction 

because this case meets that test. 
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¶39 On February 21, 2014, the special prosecutor filed a 

petition for a supervisory writ and a writ of mandamus in the 

court of appeals (Schmitz v. Peterson). The special prosecutor 

sought the supervisory writ in order to vacate Reserve Judge 

Peterson's January 10, 2014, order and to direct Reserve Judge 

Peterson to enforce the subpoenas and search warrants. Unnamed 

Movants Nos. 1, 2, 3, 4, 5, 6, 7, and 8 filed responses to the 

petition on March 31, 2014. Shortly thereafter, the Unnamed 

Movants brought a petition to bypass the court of appeals. We

granted bypass on December 16, 2014.

¶40 Finally, on November 3, 2014, Unnamed Movants Nos. 6 

and 7 filed a motion with Reserve Judge Peterson requesting an 

order to show cause as to why the John Doe proceeding should not 

be ended. Reserve Judge Peterson denied that motion but 

concluded that if appellate courts agreed with his 

interpretation of Ch. 11, the "consequence will no doubt be the 

end of the John Doe investigation."
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III. TWO UNNAMED PETITIONERS

¶41 We turn first to Two Unnamed Petitioners, the original 

action filed with the Wisconsin Supreme Court. This case 

requires us to interpret Wisconsin's campaign finance law, Wis.

Stat. Ch. 11. By its very nature, this task involves 

fundamental questions regarding the scope of the government's 

ability to regulate political speech. To resolve this case, we 

must engage in statutory interpretation of the phrase "political 

purposes," which includes all activities "done for the purpose 

of influencing [an] election." Wis. Stat. § 11.01(16). We 

conclude, consistent with the First Amendment of the United 

States Constitution and Article I, Section 3 of the Wisconsin 

Constitution, that the plain language of "political purposes" in 

Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague 

if it is not given a limiting construction and applied to only 

express advocacy and its functional equivalent. This conclusion 

invalidates the special prosecutor's theory of the case and ends 

the John Doe investigation. Therefore, we agree with the 

Unnamed Movants and grant their requested relief.

A. Standard of Review

¶42 Statutory interpretation is a question 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 this case, our statutory interpretation 

implicates the constitutionality of specific provisions in 
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Chapter 11, which is also a question of law which we review de 

novo. Janssen, 219 Wis. 2d at 370. 

¶43 Statutes are presumed to be constitutional, "and the 

party seeking to overcome the presumption must prove the statute 

unconstitutional beyond a reasonable doubt." Id. When the 

statute implicates the exercise of First Amendment rights, 

however, "[t]he burden shifts to the proponent of the statute." 

Id. at 370-71. Here, the proponent is the special prosecutor.

B. The First Amendment and the Doctrines of Vagueness and 

Overbreadth

i. First Amendment Principles

¶44 In addressing the scope of Wisconsin's campaign 

finance law we are keenly aware that this task bears directly on 

the ability of all citizens in our State to engage in the 

democratic process. The special prosecutor's theories implicate 

one of the foundational principles of our nation: the freedom of 

speech, specifically, political speech. We therefore begin our 

analysis with the words of the First Amendment: "Congress shall 

make no law . . . abridging the freedom of speech." U.S. Const. 

amend. I.16 Article I, Section 3 of the Wisconsin Constitution 

guarantees that: "Every person may freely speak, write and 

publish his sentiments on all subjects, being responsible for 

the abuse of that right, and no laws shall be passed to restrain 

or abridge the liberty of speech or of the press."

 16 The First Amendment is applicable to the States through 

the Fourteenth Amendment.
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¶45 While the First Amendment protects a broad range of 

speech and conduct, "there is practically universal agreement 

that a major purpose of that Amendment was to protect the free 

discussion of governmental affairs. . . . of course includ(ing) 

discussions of candidates . . . ." Buckley, 424 U.S. at 14 

(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Indeed, 

"[t]he right of citizens to inquire, to hear, to speak, and to 

use information to reach consensus is a precondition to 

enlightened self-government and a necessary means to protect 

it." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 

(2010). "In a republic [such as ours] where the people are 

sovereign, the ability of the citizenry to make informed choices 

among candidates for office is essential, for the identities of 

those who are elected will inevitably shape the course that we 

follow as a nation." Buckley, 424 U.S. at 14-15. These values 

reflect our "profound national commitment to the principle that 

debate on public issues should be uninhibited, robust, and wideopen." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)

(emphasis added).

¶46 Our protection of the freedom of political speech 

reflects our firm belief that "[d]iscussion of public issues and 

debate on the qualifications of candidates are integral to the 

operation of the system of government established by our 

Constitution." Buckley, 424 U.S. at 14. "At the founding, 

speech was open, comprehensive, and vital to society's 

definition of itself; there were no limits on the sources of 
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speech and knowledge." Citizens United, 558 U.S. at 353. 

Therefore, "[t]he First Amendment affords the broadest 

protection to [] political expression in order 'to assure (the) 

unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people.'" Buckley, 

424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484

(1957)). 

¶47 Accordingly, "the First Amendment 'has its fullest and 

most urgent application precisely to the conduct of campaigns 

for political office.'" McCutcheon v. Fed. Election Comm'n, 134 

S. Ct. 1434, 1441 (2014) (quoting Monitor Patriot Co. v. Roy, 

401 U.S. 265, 272 (1971)). There exists "no right more basic in 

our democracy than the right to participate in electing our 

political leaders." Id. at 1440-41. Political speech is thus a 

fundamental right and is afforded the highest level of 

protection. Indeed, freedom of speech, especially political 

speech, is the right most fundamental to our democracy. To that 

end, we must conduct a particularly "[c]lose examination of the 

specificity of the statutory limitation . . . where, as here, 

the legislation imposes criminal penalties in an area permeated 

by First Amendment interests." Buckley, 424 U.S. at 40-41. 

"The First Amendment does not permit laws that force speakers to 

retain a campaign finance attorney, conduct demographic 

marketing research, or seek declaratory rulings before 

discussing the most salient political issues of our day. Prolix 

laws chill speech for the same reason that vague laws chill 
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speech: People 'of common intelligence must necessarily guess at 

[the law's] meaning and differ as to its application.'" 

Citizens United, 558 U.S. at 324 (quoting Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926)). 

¶48 However, there are certain, limited circumstances in 

which the government may regulate and impose burdens upon the 

exercise of free speech. In the campaign finance context, these 

include disclosure and reporting requirements, as well as 

contribution limits to candidates.17 The justification for 

imposing such restrictions is to "prevent[] corruption and the 

appearance of corruption." WRTL II, 551 U.S. at 478 (quotations 

omitted). The interest in preventing the corruption of public 

officials, however, does not justify the regulation of all

political speech. Rather, the United States Supreme Court has 

drawn an important "distinction between discussion of issues and 

candidates and advocacy of election or defeat of candidates." 

Buckley, 424 U.S. at 42. The compelling governmental interest 

that justifies the regulation of express advocacy (the 

prevention of quid pro quo18 corruption) "'might not apply to'" 

the regulation of issue advocacy. WRTL II, 551 U.S. at 471 

(quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 209 

n.88 (2003)). Indeed, "[s]pending large sums of money in 

 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 

another action or thing of more or less equal value." Black's 

Law Dictionary 1367 (9th ed. 2009).
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connection with elections, but not in connection with an effort 

to control the exercise of an officeholder's official duties, 

does not give rise to such quid pro quo corruption." 

McCutcheon, 134 S. Ct. at 1450. "Nor does the possibility that 

an individual who spends large sums may garner 'influence over 

or access to' elected officials or political parties." Id. at 

1451 (quoting Citizens United, 558 U.S. at 359). 

¶49 A key reason that issue advocacy is afforded greater 

protection under the First Amendment is that "[f]reedom of 

discussion, if it would fulfill its historic function in this 

nation, must embrace all issues about which information is 

needed or appropriate to enable the members of society to cope 

with the exigencies of their period." Thornhill v. Alabama, 310 

U.S. 88, 102 (1940). "Discussion of issues cannot be suppressed 

simply because the issues may also be pertinent in an election." 

WRTL II, 551 U.S. at 474.

¶50 In order to give the fullest protection possible to 

the right to the exercise of political speech, "the government's 

authority to regulate in this area extends only to money raised 

and spent for speech that is clearly election related[, that is, 

express advocacy]; ordinary political speech about issues, 

policy, and public officials[, that is, issue advocacy,] must 

remain unencumbered." Barland II, 751 F.3d at 810 (emphasis 

added). Thus, in order to avoid a chilling effect on otherwise 

protected speech, "when the regulatory scheme reaches beyond 

candidates, their campaign committees, and political 
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parties. . . . [the] government may regulate . . . only with 

narrow specificity." Id. at 811 (quotations omitted). "In 

short, [we] must give the benefit of any doubt to protecting 

rather than stifling speech." WRTL II, 551 U.S. at 469; see 

also McCutcheon, 134 S. Ct. at 1451 (quoting WRTL II, 551 U.S. 

at 457) ("'[T]he First Amendment requires [courts] to err on the 

side of protecting political speech rather than suppressing 

it.'").

¶51 To that end, "in the domain of campaign-finance law, 

the First Amendment requires a heightened degree of regulatory 

clarity and a close fit between the government's means and its 

end." Barland II, 751 F.3d at 808. This "close fit" 

requirement is intended to prevent the dangerous chilling effect 

an unclear or imprecise law has on protected speech. Id. at 

835. To guard against inhibiting protected political speech, 

courts use the overbreadth and vagueness doctrines. These 

doctrines "reflect[] the conclusion that the possible harm to 

society from allowing unprotected speech to go unpunished is 

outweighed by the possibility that protected speech will be 

muted." Janssen, 219 Wis. 2d at 372 (citation omitted).

ii. Overbreadth and Vagueness

¶52 "A statute is overbroad when its language, given its 

normal meaning, is so sweeping that its sanctions may be applied 

to constitutionally protected conduct which the state is not 

permitted to regulate." Id. at 374 (citation omitted). The 

overbreadth doctrine "recognize[s] that broadly written statutes 
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substantially inhibiting free expression should be open to 

attack even by a party whose own conduct remains unprotected 

under the First Amendment." State v. Stevenson, 2000 WI 71, 

¶11, 236 Wis. 2d 86, 613 N.W.2d 90. "The danger inherent in 

overbroad statutes is that such statutes provide [the government 

with] practically unbridled administrative and prosecutorial 

discretion that may result in select[ive] prosecution based on 

certain views deemed objectionable by law enforcement." Id., 

¶13. Thus, "[o]verbroad statutes may undesirably dissuade 

persons from exercising their rights by 'chilling' their 

protected speech or expression." Janssen, 219 Wis. 2d at 372 

(citation omitted). In other words, the threat to free 

expression created by overbroad statutes is that, by potentially 

sweeping in constitutionally protected activity, individuals and 

groups may self-censor out of fear of vindictive or selective 

prosecution.

¶53 When faced with an overbroad statute, courts have 

several options.

First, courts may apply a limiting construction to 

rehabilitate the statute when such a narrowing and 

validating construction is readily available. Second, 

courts may cure the constitutional defect by severing 

the unconstitutional provisions of a statute and 

leaving the remainder of the legislation intact. 

Finally, courts may determine that the statute is not 

amenable to judicial limitation or severance and 

invalidate the entire statute upon a determination 

that it is unconstitutional on its face.

Stevenson, 236 Wis. 2d 86, ¶15 (internal citations omitted).
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¶54 Related to the overbreadth doctrine is the vagueness 

doctrine,19 which "requires legislatures to set reasonably clear 

guidelines for law enforcement officials and triers of fact in 

order to prevent 'arbitrary and discriminatory enforcement.'" 

State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 

657, 292 N.W.2d 807 (1980) (quoting Smith v. Goguen, 415 U.S. 

566, 572-73 (1974)). A vague statute "is one which operates to 

hinder free speech through the use of language which is so vague 

as to allow the inclusion of protected speech in the prohibition 

or to leave the individual with no clear guidance as to the 

nature of the acts which are subject to punishment." Id. at

656. "Where First Amendment rights are involved, an even 

'greater degree of specificity' is required." Buckley, 424 U.S. 

at 77 (citations omitted). Thus, when a criminal statute 

implicates First Amendment rights, the statutory language must 

have the "utmost clarity and exactitude." Stevenson, 236 

Wis. 2d 86, ¶30. Thus, the vagueness doctrine concerns the 

imping[ement] upon three first amendment values: (1) 

it does not provide individuals with fair warning of 

 19 "The problems of vagueness and overbreadth in statutes, 

although raising separate problems, often arise together." 

State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 

656-57, 292 N.W.2d 807 (1980). "Where statutes have an 

overbroad sweep, just as where they are vague, 'the hazard of 

loss or substantial impairment of those precious [First 

Amendment] rights may be critical,' since those covered by the 

statute are bound to limit their behavior to that which is 

unquestionably safe." Keyishian v. Bd. of Regents of Univ. of 

State of N.Y., 385 U.S. 589, 609 (1967) (internal citation 

omitted).
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what is prohibited; (2) lacking precise or articulated 

standards, it allows for arbitrary or discriminatory 

enforcement; and (3) it causes citizens to 'forsake 

activity protected by the First Amendment for fear it 

may be prohibited.'

State v. Thiel, 183 Wis. 2d 505, 521 n.9, 515 N.W.2d 847 (1994) 

(quoting M.S. News Co. v. Casado, 721 F.2d 1281, 1290 (10th Cir. 

1983)). In other words, "[b]ecause First Amendment freedoms 

need breathing space to survive, government may regulate in 

[this] area only with narrow specificity." Barland II, 751 F.3d 

at 811 (quotations omitted). 

C. The Definition of "Political Purposes" in Wis. Stat. 

§ 11.01(16) is Overbroad and Vague Unless Limited to Express 

Advocacy and Its Functional Equivalent.

¶55 The special prosecutor alleges that the Unnamed 

Movants engaged in illegally coordinated issue advocacy. 

However, the basis for his theory has evolved over the course of 

the various legal challenges to his investigation, and he 

appears unable to decide just how the Unnamed Movants have 

broken the law.20 

¶56 Today, the special prosecutor alleges two theories of 

illegal coordination: (1) that the coordination between the 

Unnamed Movants is so extensive that the supposedly independent 

groups became subcommittees for the candidate's campaign under 

Wis. Stat. § 11.10(4); and (2) that the coordinated issue 

 20 The original complaint initiating John Doe II alleged 

only coordinated fundraising between the Unnamed Movants. Over 

time, the theory of coordination evolved to include coordinated 

issue advocacy.
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advocacy amounts to an in-kind contribution under Wis. Admin. 

Code § GAB 1.20. The special prosecutor's theories, if adopted 

as law, would require an individual to surrender his political 

rights to the government and retain campaign finance attorneys 

before discussing salient political issues. See Citizens 

United, 558 U.S. at 324. We find no support for the special 

prosecutor's theories in Wis. Stat. Ch. 11. Chapter 11's 

definition of "political purposes," which underlies Wisconsin's 

campaign finance law, is both overbroad and vague and thus 

unconstitutionally chills speech because people "'of common 

intelligence must necessarily guess at [the law's] meaning and 

differ as to its application.'" Id. (quoting Connally, 269 U.S. 

at 391). 

¶57 However, by limiting the definition of "political 

purposes" to express advocacy and its functional equivalent, we 

ensure that all issue advocacy will remain unencumbered. This 

limiting construction21 allows us to protect political speech, a 

vital First Amendment right, and allows us to guard against the 

theories of the special prosecutor and those who would rely on 

overbroad and vague statutes to silence those with whom they 

disagree. 

 21 Adopting a limiting construction is the only feasible 

option because the statutory definition of "political purposes" 

is not severable and because simply declaring the definition 

unconstitutional without adopting a limiting construction would 

effectively eliminate all of Wis. Stat. Ch. 11.
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i. The Definition and Scope of "Political Purposes" in Wis. 

Stat. § 11.01(16) Must Be Limited to Only Express Advocacy.

¶58 We begin our analysis by noting that Wisconsin's 

campaign finance law "is labyrinthian and difficult to decipher 

without a background in this area of the law." Barland II, 751 

F.3d at 808. Indeed, "[t]o a lay reader [Chapter 11] require[s] 

almost any group that wants to say almost anything about a 

candidate or election to register as a political committee." 

Id. at 810 (citing Wis. Right to Life, Inc. v. Paradise, 138 

F.3d 1183, 1184 (7th Cir. 1998)). However, in analyzing the 

statutes, it becomes readily apparent that the entire regulatory 

scheme depends on but a few key terms: "committee," 

"contribution," "disbursement," and "political purposes."

¶59 "Committee" is defined in Wis. Stat. § 11.01(4) as 

"any person other than an individual and any combination of 2 or 

more persons, permanent or temporary, which makes or accepts 

contributions or makes disbursements, whether or not engaged in 

activities which are exclusively political, except that a 

'committee' does not include a political 'group' under this 

chapter." As one can see from the statutory definition, 

committee status under Wisconsin campaign finance law depends on 

the definitions of "contributions" and "disbursements."

¶60 "Contribution" has a very lengthy definition, but the 

relevant portion is contained in Wis. Stat. § 11.01(6)(a)1, 

which states that "contribution" means

[a] gift, subscription, loan, advance, or deposit of 

money or anything of value, except a loan of money by 
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a commercial lending institution made by the 

institution in accordance with applicable laws and 

regulations in the ordinary course of business, made 

for political purposes. In this subdivision "anything 

of value" means a thing of merchantable value.

(emphasis added). The definition of "disbursement" largely 

parallels the definition of "contribution," the relevant portion 

of which states that a "disbursement" is

[a] purchase, payment, distribution, loan, advance, 

deposit, or gift of money or anything of value, except 

a loan of money by a commercial lending institution 

made by the institution in accordance with applicable 

laws and regulations in the ordinary course of 

business, made for political purposes. In this 

subdivision, "anything of value" means a thing of 

merchantable value.

Wis. Stat. § 11.01(7)(a)1 (emphasis added). It is apparent from 

the emphasized language that whether or not something is a 

contribution or disbursement depends on the definition of 

"political purposes."

¶61 "Political purposes" is defined, in relevant part, as 

an act

done for the purpose of influencing the election or 

nomination for election of any individual to state or 

local office, for the purpose of influencing the 

recall from or retention in office of an individual 

holding a state or local office, for the purpose of 

payment of expenses incurred as a result of a recount 

at an election, or for the purpose of influencing a 

particular vote at a referendum. In the case of a 

candidate, or a committee or group which is organized 

primarily for the purpose of influencing the election 

or nomination for election of any individual to state 

or local office, for the purpose of influencing the 

recall from or retention in office of an individual 

holding a state or local office, or for the purpose of 

influencing a particular vote at a referendum, all 

administrative and overhead expenses for the 
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maintenance of an office or staff which are used 

principally for any such purpose are deemed to be for 

a political purpose.

(a) Acts which are for "political purposes" include 

but are not limited to:

1. The making of a communication which expressly 

advocates the election, defeat, recall or retention of 

a clearly identified candidate or a particular vote at 

a referendum.

Wis. Stat. § 11.01(16) (emphasis added).

¶62 Thus, the lynchpin of Wisconsin's campaign finance law 

is whether an act is done for "political purposes." Chapter 11 

regulates "disbursements" and "contributions," and the phrase 

"political purposes" is used in the definition of each of those 

words. See Wis. Stat. §§ 11.01(7) (defining "disbursement"), 

11.01(6) (defining "contribution"). If an act is not done for 

"political purposes," then it is not a disbursement or a 

contribution, and it therefore is not subject to regulation 

under Ch. 11.

¶63 The Seventh Circuit in Barland II held that the phrase 

"political purposes," as defined in Wis. Stat. § 11.01, is both 

vague and overbroad. Barland II, 751 F.3d at 833. The court 

reasoned that the U.S. Supreme Court in Buckley held that the 

phrase "influence an election," which also appears in the 

definition of "political purposes," is vague and overbroad. Id.

at 833 ("The [Buckley] Court held that this kind of broad and 

imprecise language risks chilling issue advocacy, which may not 

be regulated; the same reasoning applies here."). Further, the 

court concluded the phrase "include but are not limited to" 
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renders the definition of "political purposes" vague and 

overbroad because "[t]he 'not limited to' language holds the 

potential for regulatory mischief." Id.; see also Elections Bd. 

of State of Wis. v. Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 677, 

597 N.W.2d 721 (1999) (WMC) (concluding that the express 

advocacy standard under Wis. Stat. § 11.01(16)(a)1 must still be 

consistent with Buckley, lest it become a trap for the innocent 

and unwary.)

¶64 The special prosecutor has completely disregarded 

these principles. The lack of clarity in Ch. 11, which the 

special prosecutor relies upon, leads us to the unsettling 

conclusion that it is left to government bureaucrats and/or 

individual prosecutors to determine how much coordination 

between campaign committees and independent groups is "too much" 

coordination. In essence, under his theory, every candidate, in 

every campaign in which an issue advocacy group participates, 

would get their own John Doe proceeding and their own special 

prosecutor to determine the extent of any coordination. This is 

not, and cannot, be the law in a democracy.

¶65 More fundamentally, however, the fact that these 

questions arise at all is proof that the definition of 

"political purposes" "holds the potential for regulatory 

mischief. Perhaps [the express advocacy language] was included 

to leave room for regulation of the 'functional equivalent' of 

express advocacy as that term was later explained in [WRTL II].

Beyond that, however, the language contains persistent vagueness 
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and overbreadth." Barland II, 751 F.3d at 833. In fact, the 

Government Accountability Board ("GAB") conceded this point in 

Barland II and suggested a limiting construction to the Seventh 

Circuit that would "confine the definitions [of "political 

purposes"] to express advocacy and its functional equivalent." 

Id. That is precisely the construction the Seventh Circuit 

adopted, and we conclude that same limiting construction should 

apply here as well.

¶66 To be clear, the reason that the definition of 

"political purposes" in § 11.01(16) is unconstitutional is 

because the phrase "influencing [an] election" is so broad that 

it sweeps in protected speech, as well as speech that can be 

subject to regulation. "Influencing [an] election" obviously 

includes express advocacy, but without a limiting construction 

it could just as easily include issue advocacy aired during the 

closing days of an election cycle. This is precisely the kind 

of overbroad language that the Supreme Court has repeatedly 

rejected. "Discussion of issues cannot be suppressed simply 

because the issues may also be pertinent in an election." WRTL 

II, 551 U.S. at 474 (emphasis added). We must have clear rules 

that protect political speech, and we must continue to reject 

the idea that some protected speech may be chilled or restricted 

simply because it is "difficult to distinguish from unprotected 

speech." Id. at 494 (Scalia, J., concurring). "[L]aws 

targeting political speech are the principal object of the First 

Amendment guarantee. The fact that the line between electoral 
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advocacy and issue advocacy dissolves in practice is an 

indictment of the statute, not a justification of it." Id.

¶67 We therefore hold that the definition of "political 

purposes" in Wis. Stat. § 11.01(16) is unconstitutionally 

overbroad and vague. In order to cure this overbreadth and 

vagueness, we adopt a construction of § 11.01(16) that limits 

the definition of "political purposes" to include only express 

advocacy and its functional equivalent, as those terms are 

defined in Buckley and WRTL II. This construction is "readily 

available" due to the Seventh Circuit's decision in Barland II. 

See Stevenson, 236 Wis. 2d 86, ¶15; Barland II, 751 F.3d at 834 

(explaining that "[t]he [Wisconsin Supreme Court] and []

Attorney General have acknowledged that when Chapter 11 is 

applied beyond candidates, their committees, and political 

parties, it must be narrowly construed to comply with Buckley's 

express-advocacy limitation; the administration of the state's 

campaign-finance system has generally reflected this 

understanding for many decades.").22 Given that Chapter 11's 

requirements depend on whether an act is done for "political 

 22 Although Barland II did not involve an allegation of 

coordination, that distinction is meaningless in determining 

whether the definition of "political purposes" is vague or 

overbroad. It may well be that the distinction between issue 

and express advocacy is little more than "a line in the sand 

drawn on a windy day." WRTL II, 551 U.S. at 499 (Scalia, J., 

concurring) (citation omitted). However, "'[p]rotected speech 

does not become unprotected merely because it resembles the 

latter. The Constitution requires the reverse.'" Id. at 475 

(majority opinion) (quoting Ashcroft v. Free Speech Coal., 535 

U.S. 234, 255 (2002)).
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purposes," the effect of this limiting construction places

"issue advocacy . . . beyond the reach of [Wisconsin's] 

regulatory scheme." Barland II, 751 F.3d at 815.

ii. The Special Prosecutor's Theories of Coordination Depend on 

Coordinated Issue Advocacy, Which Is Not Regulated Under Chapter 

11.

¶68 Having reached our conclusion about the scope of 

conduct regulated by Chapter 11, we now turn to the special 

prosecutor's theories of coordination and whether the alleged 

conduct is regulated under Wisconsin law.23 The special 

 23 We note that in Wis. Coal. for Voter Participation, Inc. 

v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. 

App. 1999) (WCVP), the court of appeals concluded that conduct 

substantially identical to the subject of this investigation, 

coordinated issue advocacy, is regulated under Wisconsin law. 

The key language from that case upon which the special 

prosecutor's theories rest, is that "the term 'political 

purposes' is not restricted by the cases, the statutes or the 

code to acts of express advocacy. It encompasses many acts 

undertaken to influence a candidate's election . . . ." WCVP, 

231 Wis. 2d at 680.

The court of appeals' statement regarding "political 

purposes" is incorrect. It was incorrect when WCVP was decided 

in 1999, and it is incorrect today. Just four months prior to 

the WCVP decision, this court stated that 

Buckley stands for the proposition that it is 

unconstitutional to place reporting or disclosure 

requirements on communications which do not 'expressly 

advocate the election or defeat of a clearly 

identified candidate.' Any standard of express 

advocacy must be consistent with this principle in 

order to avoid invalidation on grounds of vagueness 

and/or overbreadth.

(continued)
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prosecutor has disregarded the vital principle that in our 

nation and our state political speech is a fundamental right and 

is afforded the highest level of protection. The special 

prosecutor's theories, rather than "assur[ing] [the] unfettered 

interchange of ideas for the bringing about of political and 

social changes desired by the people," Roth, 354 U.S. at 484, 

instead would assure that such political speech will be 

investigated with paramilitary-style home invasions conducted in 

the pre-dawn hours and then prosecuted and punished. In short, 

the special prosecutor completely ignores the command that, when 

seeking to regulate issue advocacy groups, such regulation must 

be done with "narrow specificity." Barland II, 751 F.3d at 811 

(quotations omitted). 

 

Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227 

Wis. 2d 650, 669, 597 N.W.2d 721 (1999) (WMC) (citations 

omitted). This should have been enough to "restrict" the 

definition of "political purposes" in Chapter 11. If "it is 

unconstitutional to place reporting or disclosure requirements 

on communications which do not 'expressly advocate the election 

or defeat of a clearly identified candidate,'" then "political 

purposes" cannot extend as broadly as WCVP and the special 

prosecutor claim. At the very least, WCVP ignores WMC and is 

inconsistent with its explanation of Buckley.

In any event, even assuming that it was good law to begin 

with, WCVP is no longer a correct interpretation of "political 

purposes" in Chapter 11. As discussed above, recent case law 

has clearly restricted the scope of permissible regulation in 

campaign finance law to express advocacy and its functional 

equivalent. See WRTL II, 551 U.S. 449; Citizens United v. Fed. 

Election Comm'n, 558 U.S. 310 (2010); Barland II, 751 F.3d 804. 

Therefore, to the extent that WCVP implies that the definition 

of "political purposes" in Chapter 11 extends beyond express 

advocacy and its functional equivalent, WCVP is overruled.
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¶69 The limiting construction that we apply makes clear 

that the special prosecutor's theories are unsupportable in law 

given that the theories rely on overbroad and vague statutes. 

By limiting the definition of "political purposes" to express 

advocacy and its functional equivalent, political speech 

continues to be protected as a fundamental First Amendment 

right. 

¶70 The special prosecutor's first theory of illegal 

coordination is that ostensibly independent, advocacy groups 

operated "hand in glove" with the candidate's committee, which 

made the independent groups subcommittees under Wis. Stat. 

§ 11.10(4). The relevant part of this statute states that

[a]ny committee which is organized or acts with the 

cooperation of or upon consultation with a candidate 

or agent or authorized committee of a candidate, or 

which acts in concert with or at the request or 

suggestion of a candidate or agent or authorized 

committee of a candidate is deemed a subcommittee of 

the candidate's personal campaign committee.

Wis. Stat. § 11.10(4) (emphasis added). The special prosecutor 

argues that coordinated issue advocacy is prohibited under this 

provision because the statute itself only requires cooperation 

between a candidate's committee and another committee and that 

the statute does not require that such cooperation be limited to 

express advocacy.

¶71 The first flaw in the special prosecutor's theory is 

that it is left to the whim of each regulatory bureaucrat and/or 

prosecutor to subjectively determine how much coordination is 

"too much." Indeed, the special prosecutor, because he relies 
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on vague and overbroad statutes, will be the only one to know 

how much coordination is "too much." This cannot be; such an 

interpretation of § 11.10(4) is unconstitutionally overbroad and 

vague under the First Amendment. See Princess Cinema, 96 

Wis. 2d at 657 (citations omitted) ("The void for vagueness 

doctrine '. . . incorporates the notions of fair notice or 

warning. . . . (i)t requires legislatures to set reasonably 

clear guidelines for law enforcement officials and triers of 

fact in order to prevent "arbitrary and discriminatory 

enforcement."'").

¶72 However, there is another, more obvious flaw in the 

special prosecutor's theory. Wisconsin Stat. § 11.10(4) refers 

to a "committee" that coordinates with a candidate's committee 

and in order to be a "committee," an entity must "make[] or 

accept[] contributions or make[] disbursements." In order to 

come within the purview of regulated acts both "contributions" 

and "disbursements" must be "made for political purposes." Wis. 

Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1. Applying the necessary 

limiting construction to the phrase "for political purposes," we 

conclude that in order to meet the statutory definition of 

"committee," a committee must engage in express advocacy and its 

functional equivalent. This conclusion is fatal to the special 

prosecutor's subcommittee theory because he does not allege that 

the Unnamed Movants engaged in express advocacy. Put simply, 

because the Unnamed Movants did not engage in express advocacy, 
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they could not be considered a "committee" subject to Chapter 

11's regulation. 

¶73 The special prosecutor's second theory of illegal 

coordination is that the coordinated issue advocacy should have 

been reported as "in-kind contributions" by the candidate's 

committee. This "in-kind contribution" theory rests on the 

assumption that any issue advocacy engaged in by the Unnamed 

Movants was done for the benefit of the candidate and therefore 

should have been reported. Once again, the special prosecutor's 

theory fails.

¶74 An "in-kind contribution" is defined in the GAB's 

regulations as "a disbursement by a contributor to procure a 

thing of value or service for the benefit of a registrant who 

authorized the disbursement." GAB 1.20(1)(e) (emphasis added). 

By its plain language, the definition of an in-kind contribution 

depends on the making of a "disbursement." As a result of the 

limiting construction of "political purposes," there can be no 

"disbursement" under Chapter 11, or the corresponding 

regulations, without express advocacy or its functional 

equivalent. Even assuming that the special prosecutor is 

correct and the Unnamed Movants engaged in issue advocacy at the 

specific request of the candidate or the candidate's committee, 

those actions do not give rise to a reportable "in-kind 

contribution" because under Ch. 11 issue advocacy cannot be a 

"disbursement." 
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¶75 In sum, we hold that, consistent with the First 

Amendment to the United States Constitution and Article I, 

Section 3 of the Wisconsin Constitution, the definition of 

"political purposes" in Wis. Stat. § 11.01(16) is 

unconstitutionally overbroad and vague because its language "is 

so sweeping that its sanctions may be applied to 

constitutionally protected conduct which the state is not 

permitted to regulate." Janssen, 219 Wis. 2d at 374. However, 

there is a readily available limiting construction that will 

prevent the chilling of otherwise protected speech, and we hold 

that "political purposes" is limited to express advocacy and its 

functional equivalent as those terms are defined in Buckley and 

WRTL II. With this limiting construction in place, Chapter 11 

does not regulate the alleged conduct of the Unnamed Movants. 

The special prosecutor has not alleged any express advocacy, and 

issue advocacy, whether coordinated or not, is "beyond the reach 

of the regulatory scheme." Barland II, 751 F.3d at 815. 

Accordingly, we grant the relief requested by the Unnamed 

Movants.

¶76 To be clear, this conclusion ends the John Doe 

investigation because the special prosecutor's legal theory is 

unsupported in either reason or law. Consequently, the 

investigation is closed. Consistent with our decision and the 

order entered by Reserve Judge Peterson, we order that the 

special prosecutor and the district attorneys involved in this 

investigation must cease all activities related to the 
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investigation, return all property seized in the investigation 

from any individual or organization, and permanently destroy all 

copies of information and other materials obtained through the 

investigation. All Unnamed Movants are relieved of any duty to 

cooperate further with the investigation.
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IV. SCHMITZ V. PETERSON

¶77 We turn now to the second case presented for our 

review, Schmitz v. Peterson. This case is before us on 

petitions to bypass the court of appeals filed by the Unnamed 

Movants. In this case, the special prosecutor seeks a 

supervisory writ in order to reverse Reserve Judge Peterson's 

decision to quash the subpoenas and search warrants issued by 

Reserve Judge Kluka. The specific issue presented is whether 

the evidence gathered in the John Doe proceedings provide a 

reasonable belief that Wisconsin's campaign finance law was 

violated by a campaign committee's coordination with independent 

advocacy organizations.

¶78 We hold that the special prosecutor has failed to 

prove that Reserve Judge Peterson violated a plain legal duty 

when he quashed the subpoenas and search warrants and ordered 

the return of all property seized by the special prosecutor. In 

quashing the subpoenas and search warrants, Reserve Judge 

Peterson exercised his discretion under the John Doe statute, 

Wis. Stat. § 968.26, to determine the extent of the 

investigation. Because the purpose of a supervisory writ does 

not include review of a judge's discretionary acts, Kalal, 271 

Wis. 2d 633, ¶24, the supervisory writ sought by the special 

prosecutor is denied, and Reserve Judge Peterson's order is 

affirmed.

A. Standard of Review
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¶79 The decisions of John Doe judges "are not subject to 

direct appeal" to the court of appeals "because an order issued 

by a John Doe judge is not an order of 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 a John Doe judge's actions "pursuant to a 

petition for supervisory writ." Id., ¶41; see also Wis. Stat. 

§ 809.51(1).

¶80 It is well settled that "[a] writ of supervision is 

not a substitute for an appeal." Kalal, 271 Wis. 2d 633, ¶17 

(quotations omitted). In order to prevail on a supervisory 

writ, the petitioner 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 is plain and it 

must have acted or intends to act in violation of that duty; and 

(4) the request for relief is made promptly and speedily." Id.

(quoting Burnett v. Alt, 224 Wis. 2d 72, 96-97, 589 N.W.2d 21 

(1999)) (emphasis added). "A plain duty 'must be clear and 

unequivocal and, under the facts, the responsibility to act must 

be imperative.'" Id., ¶22 (quoting State ex rel. Kurkierewicz 

v. Cannon, 42 Wis. 2d 368, 377–78, 166 N.W.2d 255 (1969)).

¶81 "A supervisory writ 'is considered an extraordinary 

and drastic remedy that is to be issued only upon some grievous 

exigency.'" Id., ¶17 (citation omitted). The obligation of a 

judge to correctly find facts and apply the law is not the type 

of plain legal duty contemplated by the supervisory writ 
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procedure, "as it would extend supervisory jurisdiction to a 

virtually unlimited range of decisions involving the finding of 

facts and application of law." Id., ¶24. Instead,

[t]he obligation of judges to correctly apply the law 

is general and implicit in the entire structure of our 

legal system. The supervisory writ, however, serves a 

narrow function: to provide for the direct control of 

lower courts, judges, and other judicial officers who 

fail to fulfill non-discretionary duties, causing harm 

that cannot be remedied through the appellate review 

process. To adopt [a contrary] interpretation of the 

plain duty requirement in supervisory writ procedure 

would transform the writ into an all-purpose 

alternative to the appellate review process.

Id. (emphasis added) (citations omitted).

B. Nature of John Doe Proceedings

¶82 Before analyzing Reserve Judge Peterson's decision to 

quash the subpoenas and search warrants, it is necessary for us 

to provide background regarding the proper conduct of John Doe 

proceedings, which have been in use in Wisconsin since its days 

as a territory. In re Doe, 317 Wis. 2d 364, ¶13. This 

discussion is necessary to educate the public on the nature of 

this important investigatory tool, and also to provide guidance 

to the lower courts on the proper conduct of John Doe 

proceedings.

¶83 Wisconsin's John Doe proceeding, codified in Wis. 

Stat. § 968.26, serves two important purposes. State ex rel. 

Reimann v. Circuit Court for Dane Cnty., 214 Wis. 2d 605, 621, 

571 N.W.2d 385 (1997). "First, and most obvious, a John Doe 

proceeding is intended as an investigatory tool used to 

ascertain whether a crime has been committed and if so, by whom. 
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Second, the John Doe proceeding is designed to protect innocent 

citizens from frivolous and groundless prosecutions." Id.

(citations omitted). In order to fulfill the dual purposes of 

the John Doe statute, a John Doe judge

serves an essentially judicial function. The judge 

considers the testimony presented. It is the 

responsibility of the John Doe judge to utilize his or 

her training in constitutional and criminal law and in 

courtroom procedure in determining the need to 

subpoena witnesses requested by the district attorney,

in presiding at the examination of witnesses, and in 

determining probable cause. It is the judge's 

responsibility to ensure procedural fairness.

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

(footnote omitted).

¶84 "Wisconsin Stat. § 968.26 outlines a four-step process 

for John Doe proceedings." In re Doe, 317 Wis. 2d 364, ¶14. 

"First, the judge must determine whether a complainant has 

alleged 'objective, factual assertions sufficient to support a 

reasonable belief that a crime has been committed.'" Id.

(citation omitted). Second, if the complainant meets this 

burden, "the judge must proceed with a hearing at which 'the 

judge shall examine the complainant under oath and any witnesses 

produced by him or her.'" Id., ¶15 (quoting Wis. Stat. § 968.26 

(2007-08)). Third, when this hearing is over, "a judge must 

determine whether probable cause exists as to each essential 

element of the alleged crime." Id., ¶16. "Finally, if the 

judge determines that probable cause is present—that is, that a 

crime probably has been committed—and who the perpetrator of the 

alleged crime is, the judge may order that a criminal complaint 
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be reduced to writing . . . ." Id., ¶17. This process gives a 

John Doe judge "broad discretion to decide whether to file a 

criminal complaint, even upon a finding of probable cause." Id.

¶85 In order to commence a John Doe proceeding, the 

complainant, whether it be the district attorney or anyone else, 

must demonstrate to the John Doe judge "that he has reason to 

believe that a crime has been committed within the 

jurisdiction." State v. Doe, 78 Wis. 2d 161, 165, 254 

N.W.2d 210 (1977). If "the judge finds that the complainant has 

failed to establish 'reason to believe[]' [that a crime has been 

committed,] that judge may deny the John Doe petition without 

conducting an examination." Reimann, 214 Wis. 2d at 625. Thus, 

the John Doe judge must act as a gate-keeper and screen out 

"petitions that are spurious, frivolous, or groundless." Id. at 

624. "In determining whether the petition is worthy of further 

treatment, a circuit court judge [presiding over a John Doe 

proceeding] must act as a neutral and detached magistrate." Id.

at 625 (emphasis added).

¶86 Therefore, from the earliest stages of the proceeding, 

to the conclusion of the investigation, "[t]he proceedings of 

the John Doe are constantly under the scrutiny of a judge." 

Doe, 78 Wis. 2d at 165. The John Doe judge does not act as 

"chief investigator" or as a mere arm of the prosecutor. 

Washington, 83 Wis. 2d at 823. Rather, the John Doe judge 

serves as a check on the prosecutor and on the complainant to
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ensure that the subject(s) of the investigation receive(s) due 

process of law. See Doe, 78 Wis. 2d at 164-65.

¶87 In this way, Wisconsin's John Doe proceeding is very 

different than a grand jury, and when conducted appropriately, 

provides much greater protections to the target of an 

investigation. Id. at 165. This is due in no small part to the 

role played by the John Doe judge, which is to ensure that the 

investigation stays focused on the conduct alleged in the 

petition to commence the John Doe proceeding. Washington, 83 

Wis. 2d at 841-42. Further,

[a]nyone familiar with the functions of the grand jury 

or who has dealt with it knows the hazards of a runaway grand jury, which can go beyond the restraints of 

the prosecutor, the executive, or of the judiciary. 

Such hazards do not exist in the Wisconsin John Doe.

While John Doe proceedings can be abused, the document 

produced by a John Doe does not ipso facto force the 

defendant to trial. The complaint which emanates from 

it is issued under the aegis of a judge but 

nevertheless must subsequently stand the scrutiny of 

an open court inspection in an adversary proceeding at 

the preliminary examination as a prerequisite to the 

filing of an information, arraignment, and trial.

Doe, 78 Wis. 2d at 170-71. Thus, "[a] John Doe 

proceeding . . . serves both as an inquest into the discovery of 

crime and as a screen to prevent 'reckless and ill-advised'

prosecutions." Reimann, 214 Wis. 2d at 621 (citation omitted).

¶88 The text of the John Doe statute gives the John Doe 

judge broad powers. Within his discretion, the John Doe judge 

is able to determine the extent of the investigation and whether 
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the investigation is conducted in secret. Wis. Stat. 

§ 968.26(3).24 We have long recognized the need for secrecy in 

John Doe proceedings and have identified several reasons that 

justify such secrecy. Cummings, 199 Wis. 2d at 736.

These include: (1) keeping knowledge from an 

unarrested defendant which could encourage escape; (2) 

preventing the defendant from collecting perjured 

testimony for the trial; (3) preventing those 

interested in thwarting the inquiry from tampering 

with prosecutive testimony or secreting evidence; (4) 

rendering witnesses more free in their disclosures; 

and (5) preventing testimony which may be mistaken or 

untrue or irrelevant from becoming public.

Id. These reasons illustrate how important a John Doe 

proceeding can be as an investigative tool. The secrecy orders 

available to a John Doe proceeding serve to protect the 

 24 The full text of this subsection is:

The extent to which the judge may proceed in an 

examination under sub. (1) or (2) is within the 

judge's discretion. The examination may be adjourned 

and may be secret. Any witness examined under this 

section may have counsel present at the examination 

but the counsel shall not be allowed to examine his or 

her client, cross-examine other witnesses, or argue 

before the judge. Subject to s. 971.23, if the 

proceeding is secret, the record of the proceeding and 

the testimony taken shall not be open to inspection by 

anyone except the district attorney unless it is used 

by the prosecution at the preliminary hearing or the 

trial of the accused and then only to the extent that 

it is so used. A court, on the motion of a district 

attorney, may compel a person to testify or produce 

evidence under s. 972.08 (1). The person is immune 

from prosecution as provided in s. 972.08 (1), subject 

to the restrictions under s. 972.085.

Wis. Stat. § 968.26(3).
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integrity of the investigation.25 Such orders help encourage 

witnesses who may be reluctant or fearful to testify by keeping 

their testimony secret. The secrecy of a John Doe investigation 

also protects innocent targets of the investigation by 

preventing the disclosure of "testimony which may be mistaken or 

untrue." Id.

¶89 Consistent with this broad authority, "[t]he John Doe 

judge should act with a view toward issuing a complaint or 

determining that no crime has occurred." Washington, 83 

Wis. 2d at 823. Accordingly, the scope of any John Doe 

investigation "is essentially limited to the subject matter of 

the complaint upon which the John Doe is commenced." Id. at 

822; see also In re Doe, 317 Wis. 2d 364, ¶23. "The John Doe 

judge has no authority to ferret out crime wherever he or she 

thinks it might exist." Washington, 83 Wis. 2d at 822 (emphasis 

added). This final limitation is crucial to the fair 

administration of a John Doe proceeding. Without it, John Doe 

proceedings could easily devolve into judicially sanctioned 

general warrants.

 25 We do not disregard the secrecy order issued in the John 

Doe proceeding. See Niedziejko, 22 Wis. 2d at 398. However, we 

interpret and modify the secrecy order to the extent necessary 

for the public to understand our decision herein. Consequently, 

if a fact is necessary to include in order to render explicable 

a justice's analysis of an issue presented, it is not precluded 

by the secrecy order.
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¶90 The purpose of the Fourth Amendment to the United 

States Constitution26 and of Article I, Section 11 of the 

Wisconsin Constitution27 "was to abolish searches by general 

warrants, which authorized searches in any place or for any 

thing." State ex rel. City of Milwaukee v. Newman, 96 Wis. 258, 

267, 71 N.W. 438 (1897). Such general warrants, also known as 

Writs of Assistance, "were used in the American colonies to

search wherever government officials chose with nearly absolute 

and unlimited discretion." State v. Tye, 2001 WI 124, ¶8, 248 

Wis. 2d 530, 636 N.W.2d 473. "These early warrants lacked 

specificity and allowed government officers in the late 

eighteenth century to enter homes, shops, and other places, and 

 26 The Fourth Amendment provides that

[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be 

violated, and no warrants shall issue, but upon 

probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and 

the persons 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 in their 

persons, houses, papers, and effects against 

unreasonable searches and seizures shall not be 

violated; and no warrant shall issue but upon probable 

cause, supported by oath or affirmation, and 

particularly describing the place to be searched and 

the persons or things to be seized.

Wis. Const. art. I, § 11.
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in the event the officers encountered resistance, they could 

break down doors and forcibly search closed trunks and chests." 

In re John Doe Proceeding, 2004 WI 65, ¶36, 272 Wis. 2d 208, 680 

N.W.2d 792. To combat such unchecked power, the Fourth 

Amendment requires reasonable searches and mandates that 

warrants "particularly describ[e] the place to be searched." 

U.S. Const. amend. IV.

¶91 Reasonableness and particularity are not just 

requirements of search warrants, however. Subpoenas issued by 

courts, and by extension John Doe judges, must also satisfy 

these requirements of the Fourth Amendment. In re John Doe 

Proceeding, 272 Wis. 2d 208, ¶38. A John Doe proceeding, with 

its broad investigatory powers, must never be allowed to become 

a fishing expedition.

¶92 It is difficult, if not impossible, to overstate the 

importance of the role of the John Doe judge. If he does not 

conduct the investigation fairly, as a neutral and detached 

magistrate, the risk of harm to innocent targets of the 

investigation-and we remain mindful that all such targets are 

presumed innocent-is too great. Through the use of a John Doe 

proceeding, "law enforcement officers are able to obtain the 

benefit of powers not otherwise available to them, i.e., the 

power to subpoena witnesses, to take testimony under oath, and 

to compel the testimony of a reluctant witness." Washington, 83 

Wis. 2d at 822-23. Such powers, if not wielded with care and 

skill may serve to transform a John Doe proceeding into an 
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implement of harassment and persecution by a vengeful or 

unethical prosecutor. Thus, John Doe judges must be mindful of 

this danger and zealously guard the rights of all citizens 

against over-reach.

¶93 The foregoing discussion emphasizes that John Doe 

proceedings are a necessary investigative tool "to 'ascertain 

whether [a] crime has been committed and by whom.'" Cummings, 

199 Wis. 2d at 736 (quoting Wolke v. Fleming, 24 Wis. 2d 606, 

613, 129 N.W.2d 841 (1964)). John Doe proceedings have been 

utilized in Wisconsin since it was a territory and have no doubt 

served our state well. But the simple fact that the John Doe 

proceeding has a long and near constant use should not blind us 

to the potential for abuse. We must be mindful of the purpose 

of the John Doe proceeding and why it was originally instituted. 

This purpose was aptly explained by this court more than 125 

years ago:

When this statute was first enacted the common-law 

practice was for the magistrate to issue the warrant 

on a complaint of mere suspicion, and he was protected 

in doing so. This was found to be a very unsafe 

practice. Many arrests were made on groundless 

suspicion, when the accused were innocent of the crime 

and there was no testimony whatever against them. The 

law delights as much in the protection of the innocent 

as in the punishment of the guilty. This statute was 

made to protect citizens from arrest and imprisonment 

on frivolous and groundless suspicion. . . . 'Our 

statute is framed so as to exclude in a great measure 

the abuses to which such a practice might lead, and 

undoubtedly was designed to throw the duty of judging, 

in this respect, entirely upon the magistrate. It 

should not regard mere allegations of suspicion, but 

the grounds of the suspicion-the facts and 

circumstances-must be laid before him, and these 
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should be sufficient to make it appear that a crime 

has been actually committed, and that there is 

probable cause for charging the individual complained 

of therewith.'

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

(citations omitted).

¶94 In sum, Wis. Stat. § 968.26 grants John Doe judges 

broad authority to conduct an investigation into alleged crimes. 

A John Doe judge is also given "those powers necessary" to carry 

out this duty. Cummings, 199 Wis. 2d at 736. Nevertheless, 

"[a]s to all aspects of the conduct of the judicial function, 

the [John Doe] judge is the governor of the proceedings, and as 

such is responsible for maintaining the good order, dignity, and 

insofar as it is compatible with the administration of justice, 

efficiency of those proceedings." In re Doe, 317 Wis. 2d 364, 

¶22. This duty applies with equal force in all John Doe 

proceedings, regardless of the target'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 Violate a Plain Legal Duty 

When He Quashed the Subpoenas and Search Warrants Issued in This 

Case.

¶95 As is clear from the above discussion, John Doe judges 

are given enormous discretion to control the scope and conduct 

of a John Doe proceeding. With this important point in mind, we 

now turn to the specific issue before us: whether Reserve Judge 

Peterson violated a plain legal duty when he quashed the 
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subpoenas and search warrants and ordered the return of all 

seized property. He did not.

¶96 "A plain duty 'must be clear and unequivocal and, 

under the facts, the responsibility to act must be imperative.'" 

Kalal, 271 Wis. 2d 633, ¶22 (quoting Kurkierewicz, 42 Wis. 2d at 

377–78). Although a supervisory writ is the proper vehicle for 

the special prosecutor to seek review of Reserve Judge 

Peterson's decision, the writ procedure serves a very narrow 

function which is distinct from the normal appellate process. 

Id., ¶24. The purpose of a supervisory writ is "to provide for 

the direct control of lower courts, judges, and other judicial 

officers who fail to fulfill non-discretionary duties, causing 

harm that cannot be remedied through the appellate review 

process." Id. (emphasis added).

¶97 Here, the special prosecutor argues that Reserve Judge 

Peterson failed to comply with his duty to correctly apply the 

law and erroneously concluded that Wisconsin campaign finance 

law does not regulate the Unnamed Movants' alleged conduct. The 

special prosecutor essentially argues that Reserve Judge 

Peterson misapplied the law and prematurely ended the John Doe 

investigation. This argument misses the point of the 

supervisory writ procedure and asks us to adopt a standard of 

review that we explicitly rejected in Kalal. See id., ¶¶23-24 

("In essence, the Kalals argue that the judge . . . has a plain 

duty to correctly find facts and apply the law. We cannot 

accept this proposition, as it would extend supervisory 
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jurisdiction to a virtually unlimited range of decisions 

involving the finding of facts and application of law."). As 

was the case in Kalal, if we were to adopt the special 

prosecutor's understanding of a plain legal duty, we "would 

transform the writ into an all-purpose alternative to the 

appellate review process." Id., ¶24. This we will not do.

¶98 A John Doe judge is given the discretion to determine 

the extent of the investigation. Wis. Stat. § 968.26(3). In 

doing so, he or she "should act with a view toward issuing a 

complaint or determining that no crime has occurred." 

Washington, 83 Wis. 2d at 823. In his decision to quash the 

subpoenas and search warrants, Reserve Judge Peterson concluded 

that the subpoenas and search warrants do not provide a 

reasonable belief that the Unnamed Movants "committed any 

violations of the campaign finance laws." Reserve Judge 

Peterson further concluded that "[t]he State is not claiming 
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that any of the independent organizations expressly advocated.28 

Therefore the subpoenas29 fail to show probable cause that a 

crime was committed." In a subsequent order granting a stay of 

his decision to quash, Reserve Judge Peterson clarified that, 

although he mistakenly phrased his decision in the context of 

whether the subpoenas showed probable cause, the subpoenas and 

search warrants were premised "on an invalid interpretation of 

 28 The special prosecutor now claims that coordinated 

express advocacy did in fact occur between Unnamed Movants 1 and 

6 and two express advocacy groups, neither of which are parties 

to the current lawsuits. The special prosecutor and the Unnamed 

Movants presented Reserve Judge Peterson with the evidence of 

coordination regarding the first express advocacy group. 

Reserve Judge Peterson considered this evidence when deciding 

whether or not to quash the subpoenas or order the return of 

seized property. Reserve Judge Peterson definitively concluded 

that "[t]here is no evidence of express advocacy." We will not 

disturb that decision as, under the John Doe statute, it was 

Reserve Judge Peterson's to make. More fundamentally, however, 

as a member of the first express advocacy group, the candidate 

at issue in this case and his agents had an absolute 

constitutional right to interact with a political organization 

of which he was a member, and improper coordination cannot be 

presumed by such contacts. Colo. Republican Fed. Campaign Comm. 

v. Fed. Eletion. Comm'n, 518 U.S. 604, 619 (1996). Further, the 

special prosecutor chose not to present evidence pertaining to 

the second express advocacy group to Reserve Judge Peterson. 

Arguments not presented to the court in the first instance are 

deemed waived. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 

501 (1997).

29 Although he refers only to the subpoenas issued in the 

John Doe investigation, Reserve Judge Peterson later clarified 

that "for the reasons stated above regarding the limitations on 

the scope of the campaign finance laws, I conclude that 

the . . . warrants [issued for Unnamed Movants Nos. 6 and 7] 

lack probable cause."
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the law. That . . . was the underlying problem with the 

subpoenas."30

¶99 Reserve Judge Peterson's decision is consistent with 

his discretion to determine the extent of the John Doe 

investigation. In addition, "[i]t is within the discretion of 

the trial court to quash a subpoena." State v. Horn, 126 

Wis. 2d 447, 456, 377 N.W.2d 176 (Ct. App. 1985), aff'd, 139 

Wis. 2d 473, 407 N.W.2d 854 (1987). Because supervisory writs 

are not appropriate vehicles to review a judge's discretionary 

acts, see Kalal, 271 Wis. 2d 633, ¶24, the special prosecutor 

has failed to show that Reserve Judge Peterson violated a plain 

legal duty by quashing the subpoenas and search warrants. 

Therefore, the supervisory writ sought by the special prosecutor 

is denied, and Reserve Judge Peterson's order is affirmed.31

 30 We note that as a result of our interpretation of Chapter 

11 in Two Unnamed Petitioners, Reserve Judge Peterson's 

interpretation is correct as a matter of law.

31 While we base our conclusion solely on Reserve Judge 

Peterson's exercise of discretion under the John Doe statute, we 

note that there are serious flaws with the subpoenas and search 

warrants, which were originally issued by Reserve Judge Kluka. 

As we explained above, a John Doe judge does not act as "chief 

investigator" or as a mere arm of the prosecutor. State v. 

Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978). Rather, 

a John Doe judge serves as a check on the prosecutor and on the 

complainant to ensure that the subject(s) of the investigation 

receive(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 that cannot be ignored. Judges cannot simply 

assume that the prosecutor is always well-intentioned. Due to 

the exceptionally broad nature of the subpoenas and search 

warrants, it is doubtful that they should have ever been issued 

in the first instance.

(continued)
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V. THREE UNNAMED PETITIONERS

¶100 Finally, we turn to Three Unnamed Petitioners, in 

which the Unnamed Movants appeal an opinion and order of the 

court of appeals denying their petition for a supervisory writ. 

This case requires us to determine whether either Reserve Judge

Kluka or Peterson violated a plain legal duty by: (1) accepting 

an appointment as a reserve judge; (2) convening a multi-county 

John Doe proceeding; or (3) appointing a special prosecutor.32

¶101 We affirm the decision of the court of appeals and 

deny the Unnamed Movants' petition for a supervisory writ. We 

hold that the Unnamed Movants have not met the burden of proof 

required for a supervisory writ. Specifically, they have not 

established that either Reserve Judge Kluka or Peterson violated 

a plain legal duty by: (1) accepting an appointment as a reserve 

 

The special prosecutor alleges that the Unnamed Movants 

engaged in "illegal" coordination of issue advocacy sometime 

between 2011 and 2012. The subpoenas and search warrants, 

however, sought records-many of which were personal and had 

nothing to do with political activity-and information ranging 

from 2009 through 2013. If the illegal conduct took place 

during a discrete timeframe in 2011 and 2012, as the special 

prosecutor alleges, what possible relevance could documents from 

a full two years prior have to the crime alleged? By 

authorizing such sweeping subpoenas and search warrants, Reserve 

Judge Kluka failed in her duty to limit the scope of the 

investigation to the subject matter of the complaint. See In re 

Doe, 2009 WI 46, ¶23, 317 Wis. 2d 364, 766 N.W.2d 542. These 

subpoenas and search warrants also come dangerously close to 

being general warrants of the kind which, in part, provoked our 

forefathers to separate from the rule of Empire.

32 This case presents issues one through five in our 

December 16, 2014 grant order. See supra ¶9.
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judge; (2) convening a multi-county John Doe proceeding; or (3) 

appointing a special prosecutor. "The obligation of judges to 

correctly apply the law is general and implicit in the entire 

structure of our legal system." Kalal, 271 Wis. 2d 633, ¶24. 

The Unnamed Movants' argument does not fit the purpose of a 

supervisory writ, which requires a "clear and unequivocal" duty 

to act on the part of the judge. Id., ¶22. If we were to adopt 

the Unnamed Movants' argument, we "would transform the writ into 

an all-purpose alternative to the appellate review process." 

Id., ¶24. Because the Unnamed Movants have not identified a 

violation of a plain legal duty, their petition for a 

supervisory writ is denied.

A. Standard of Review

¶102 "[T]he authority of both judges and prosecutors in a 

John Doe proceeding[] . . . are questions of statutory 

interpretation which this court reviews de novo without 

deference to the circuit court or court of appeals." Cummings, 

199 Wis. 2d at 733. Thus, "[w]hether a John Doe judge has 

exceeded his or her powers is a question of law that this court 

determines independently." State ex rel. Individual Subpoenaed 

to Appear at Waukesha Cnty. v. Davis, 2005 WI 70, ¶17, 281 

Wis. 2d 431, 697 N.W.2d 803 (citing Cummings, 199 Wis. 2d at 

733).

¶103 For a supervisory writ to issue, the petitioner for 

the writ must establish that: "(1) an appeal is an inadequate 

remedy; (2) grave hardship or irreparable harm will result; (3) 
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the duty of the trial court is plain and it must have acted or 

intends to act in violation of that duty; and (4) the request 

for relief is made promptly and speedily." Kalal, 271 

Wis. 2d 633, ¶17 (emphasis added).

¶104 A "'writ of supervision is not a substitute for an 

appeal.'" Id. (citation committed). "A supervisory writ 'is 

considered an extraordinary and drastic remedy that is to be 

issued only upon some grievous exigency.'" Id. (citation 

omitted).

¶105 Although a court exercises its discretion in deciding 

whether or not to issue a writ, "[t]he exercise of that 

discretion often involves . . . resolving questions of law in 

order to determine whether the circuit court's duty is plain." 

State ex rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008 

WI App 120, ¶9, 313 Wis. 2d 508, 756 N.W.2d 573. "A plain duty 

'must be clear and unequivocal and, under the facts, the 

responsibility to act must be imperative.'" Kalal, 271 

Wis. 2d 633, ¶22 (citation omitted). The obligation of a judge 

to correctly find facts and apply the law is not the type of 

plain legal duty contemplated by the supervisory writ procedure, 

"as it would extend supervisory jurisdiction to a virtually 

unlimited range of decisions involving the finding of facts and 

application of law." Id., ¶24; see also supra ¶80.

¶106 Consequently, for a writ to issue in this case, the 

Unnamed Movants must demonstrate that the John Doe judges

violated a plain legal duty, either in accepting an appointment 
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as a reserve judge, in convening a John Doe proceeding over 

multiple counties, or in appointing a special prosecutor.

B. The Unnamed Movants Have Failed to Prove the Violation of a 

Plain Legal Duty.

i. No Violation of a Plain Legal Duty Occurred in the 

Appointment and Assignment of Reserve Judge Kluka or Reserve 

Judge Peterson to Preside Over a Multi-County John Doe 

Proceeding.

¶107 We first discuss whether Reserve Judge Kluka or 

Reserve Judge Peterson violated a plain legal duty either in 

accepting an appointment as a reserve judge or in convening a 

multi-county John Doe proceeding. We hold that the Unnamed 

Movants failed to prove that Reserve Judge Kluka or Reserve 

Judge Peterson violated a plain legal duty by accepting an 

appointment as a reserve judge or in convening a John Doe 

proceeding over multiple counties.

1. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in 

Accepting Her Appointment as a Reserve Judge.

¶108 We begin our discussion of this issue by explaining 

the distinction between the appointment and assignment of a 

reserve judge. A former judge is appointed to be a reserve 

judge by the Chief Justice. Once a former judge has been 

appointed to be a reserve judge then that reserve judge can be 

assigned to a particular case or to a particular circuit court 

calendar.
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¶109 The Director of State Courts has the power to assign 

reserve judges, but he does not have the power to appoint 

reserve judges. See SCR 70.1033; SCR 70.23.34 The Chief Justice 

is the sole individual with the power to both appoint and assign 

reserve judges. See Wis. Const. art. VII, § 24(3)35; Wis. Stat. 

§ 753.07536; SCR 70.23(1).37

 33 "The director of state courts shall have the 

responsibility and authority regarding the assignment of reserve 

judges and the interdistrict assignment of active judges at the 

circuit court level where necessary to the ordered and timely 

disposition of the business of the court."

34 "The director of state courts may make interdistrict 

judicial assignments at the circuit court level." SCR 70.23(1). 

"The director of state courts may also make a permanent 

assignment to a judicial district of a reserve judge who can be 

assigned by a chief judge in the same manner as an active 

circuit judge under this section." SCR 70.23(2). "[I]f the 

chief judge deems it necessary the chief judge shall call upon 

the director of state courts to assign a judge from outside the 

judicial administrative district or a reserve judge." SCR 

70.23(4).

35 "A person who has served as a supreme court justice or 

judge of a court of record may, as provided by law, serve as a 

judge of any court of record except the supreme court on a 

temporary basis if assigned by the chief justice of the supreme 

court."

36

(1)Definitions. In this section:

(a)'Permanent reserve judge' means a judge appointed 

by the chief justice to serve an assignment for a 

period of 6 months. Permanent reserve judges shall 

perform the same duties as other judges and may be 

reappointed for subsequent periods.

(continued)
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¶110 The relevant orders in the record state that Reserve 

Judge Kluka was assigned, not appointed, to serve as the John 

Doe judge in each of the five counties. Once the Milwaukee 

County District Attorney's Office filed a petition for the 

commencement of a John Doe proceeding in Milwaukee County, Chief 

Judge Kremers "assigned and forwarded" the petition to "Reserve 

Judge Kluka" on August 23, 2012. Thereafter, on September 5, 

2012, the Director of State Courts, with then-Chief Justice 

Shirley Abrahamson's name directly above, assigned Reserve Judge 

Kluka to preside over the matter using a form titled 

"Application and Order for Specific Judicial Assignment." The 

actions taken by Chief Judge Kremers and the Director of State 

Courts suggest that Kluka possessed reserve judge status at the 

time her assignments were made. However, nothing in the record 

 

(b)'Temporary reserve judge' means a judge appointed 

by the chief justice to serve such specified duties on 

a day-by-day basis as the chief justice may direct.

(2)Eligibility. The chief justice of the supreme 

court may appoint any of the following as a reserve 

judge:

(a)Any person who has served a total of 6 or more 

years as a supreme court justice, a court of appeals 

judge or a circuit judge.

(b)Any person who was eligible to serve as a reserve 

judge before May 1, 1992.

37 "The chief justice may assign active or reserve judges, 

other than municipal judges, to serve temporarily in any court 

or branch of a circuit court for such purposes and period of 

time as the chief justice determines to be necessary."
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definitively establishes that the then-Chief Justice had 

previously appointed Kluka as a reserve judge.

¶111 The absence of a record on this point is very likely 

because no one disputes that Kluka was lawfully appointed as a 

reserve judge. Indeed, the Unnamed Movants do not challenge 

Reserve Judge Kluka's authority to preside over the Milwaukee 

County John Doe proceeding. Rather, according to the Unnamed 

Movants, "the problem arose later, when the Director of State 

Courts extended that [assignment] to four more counties in one 

functionally-consolidated proceeding or investigation." In 

fact, in their reply brief, the Unnamed Movants state "the core 

issue is not who appointed a reserve judge: it is whether the 

five-county structure is lawful at all." Because the Unnamed 

Movants have failed to show that Reserve Judge Kluka was not 

lawfully appointed, it follows that they have failed to prove 

that she violated a plain legal duty in accepting her

appointment as a reserve judge.

2. Reserve Judge Peterson Did Not Violate a Plain Legal Duty in 

Accepting His Appointment as a Reserve Judge.

¶112 Similarly, the Unnamed Movants also have failed to 

meet their burden with respect to Reserve Judge Peterson. On 

October 29, 2013, Chief Judge Kremers assigned Reserve Judge 

Peterson to serve as the John Doe judge in Milwaukee County, 

after Reserve Judge Kluka withdrew, in an order titled: 

"REASSIGNMENT AND EXCHANGE." The document also states: 

"Reassigned to Reserve Judge Gregory A. Peterson according to 
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the rules." See SCR 70.23 (providing that the chief judge can 

request the assignment of a reserve judge by the Director of 

State Courts). As explained above, only the Chief Justice has 

the authority to appoint reserve judges.

¶113 Similar to the issue with Reserve Judge Kluka, the 

Unnamed Movants do not question Reserve Judge Peterson's 

authority to preside over the Milwaukee County John Doe 

proceeding. Their contention is that it was unlawful for 

Reserve Judge Peterson to accept assignment to four more 

counties "in one functionally-consolidated proceeding or 

investigation." Because the Unnamed Movants have failed to show 

that Reserve Judge Peterson was not lawfully appointed, they 

have failed to prove that Reserve Judge Peterson violated a 

plain legal duty in accepting his appointment as a reserve 

judge.

3. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in 

Convening a Multi-County John Doe Proceeding.

¶114 The Unnamed Movants contend that no one may appoint or 

assign a reserve judge to serve as a John Doe judge 

simultaneously in five counties. The Unnamed Movants argue that 

"the question properly is not whether anything in the enabling 

statute 'prevents' or 'prohibits' what happened here. The right 

question is whether anything in the statutes permits what 

happened here." The Unnamed Movants emphatically state that 

"[t]he answer to that question is no." However, in examining 

this issue, we look to whether the John Doe statute clearly 
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prohibits the procedural posture of this John Doe investigation. 

The answer is no.

¶115 Pursuant to Wis. Stat. § 968.26(1)38 five separate John 

Doe proceedings were initiated by the district attorneys of the 

five counties; however, it was for one investigation conducted 

by a special prosecutor. The investigation was expanded because 

the initial investigation in Milwaukee County suggested that 

persons residing in four additional counties could be involved 

with potential campaign finance violations and Wis. Stat. 

§ 978.05(1) provides that a district attorney shall:

[p]rosecute all criminal actions before any court 

within his or her prosecutorial unit and have sole 

responsibility for prosecution of all criminal actions 

arising from violations of chs. 5 to 12 . . . that are 

alleged to be committed by a resident of his or her 

prosecutorial unit. . . . 

See also Wis. Stat. §§ 971.19(11)-(12) (providing that the venue 

for a criminal proceeding under campaign finance laws shall be 

the county of the defendant's residence unless the defendant 

chooses to be tried in the county where the crime occurred). 

The Director of State Courts, with then-Chief Justice Shirley 

Abrahamson's name directly above, then executed five separate 

orders assigning Reserve Judge Kluka to preside over the five 

separate proceedings. While these five separate proceedings are 

 38 "If a district attorney requests a judge to convene a 

proceeding to determine whether a crime has been committed in 

the court's jurisdiction, the judge shall convene a proceeding 

described under sub. (3) and shall subpoena and examine any 

witnesses the district attorney identifies."
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a single investigation, they have not been consolidated. 

Rather, the John Doe proceedings at issue have merely been 

running parallel to one another.

¶116 Nothing in the John Doe statute prohibits the 

initiation of five parallel John Doe proceedings. Put another 

way, nothing in the John Doe statute explicitly told Reserve 

Judge Kluka that she could not preside over five John Doe 

proceedings. To initiate a John Doe proceeding, a district 

attorney must simply make the request, which is exactly what 

happened here. See Wis. Stat. § 968.26(1). Because nothing in 

the John Doe statute expressly prohibits the initiation of five 

parallel John Doe proceedings concerning a single investigation, 

we cannot conclude that Reserve Judge Kluka violated a plain 

legal duty in convening the five separate proceedings. As such, 

a supervisory writ cannot issue.

¶117 The Unnamed Movants argue that they have shown a 

violation of a plain legal duty. They argue that "[t]he 

investigation was constituted in direct contravention of 

Wisconsin statutes and without authority. The John Doe 

judge . . . had a plain duty to comply with Wisconsin statutes 

in the conduct of a statutorily-constituted investigation." We 

rejected an identical argument in Kalal.

¶118 In Kalal, a circuit court judge ordered that a 

criminal complaint be brought against the Kalals under Wis. 

Stat. § 968.02(3), which allows a circuit judge to order a 

criminal complaint be issued if a district attorney "refuses" to 
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issue a complaint. Kalal, 271 Wis. 2d 633, ¶¶12-13. The Kalals 

argued that "the circuit judge has a plain duty to correctly 

determine the presence of this threshold refusal before 

authorizing the issuance of a criminal complaint." Id., ¶23. 

We held that this argument failed to establish the violation of 

a plain legal duty. "To the extent that a circuit judge's 

decision to permit the filing of a complaint under Wis. Stat. 

§ 968.02(3) is legally or factually unsupported, the 

defendant . . . may seek its dismissal in the circuit court 

after it has been filed, and may pursue standard appellate 

remedies thereafter." Id., ¶25. "But the statutory 

prerequisite that the judge find a refusal to prosecute by the 

district attorney does not impose upon the circuit judge a 

plain, clear, non-discretionary, and imperative duty of the sort 

necessary for a supervisory writ." Id.

¶119 We explained that, "[i]n essence, the Kalals argue 

that the judge sitting ex parte in a hearing under Wis. Stat. 

§ 968.02(3) has a plain duty to correctly find facts and apply 

the law." Id., ¶23. "We cannot accept this proposition, as it 

would extend supervisory jurisdiction to a virtually unlimited 

range of decisions involving the finding of facts and 

application of law." Id., ¶24. "The obligation of judges to 

correctly apply the law is general and implicit in the entire 

structure of our legal system." Id. "The supervisory writ, 

however, serves a narrow function: to provide for the direct 

control of lower courts . . . [that] fail to fulfill non-
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discretionary duties . . . ." Id. (citations omitted). "To 

adopt the Kalals' interpretation of the plain duty requirement 

in supervisory writ procedure would transform the writ into an 

all-purpose alternative to the appellate review process." Id.

¶120 The Unnamed Movants have not identified a "plain, 

clear, non-discretionary, and imperative duty of the sort 

necessary for a supervisory writ." Id., ¶25. In this 

supervisory writ action, the Unnamed Movants must do more than 

point out the fact that the statutes do not explicitly authorize 

the commencement of parallel John Doe proceedings in multiple 

counties. Further, they must do more than argue that five 

parallel investigations and proceedings were "implicitly" 

prohibited by the statute. They must show that by commencing 

five parallel John Doe proceedings Reserve Judge Kluka violated 

a plain, clear, non-discretionary, and imperative duty of the 

sort necessary for a supervisory writ. They have not even tried 

to make such a showing.

¶121 We understand the Unnamed Movants' concerns and agree 

that the kind of multi-county investigation that occurred here 

does raise serious questions. Typically, statewide or multicounty investigations are conducted by the Attorney General or 

by the GAB. See Wis. Stat. §§ 165.50(1) (Attorney General), 

5.05 (Government Accountability Board). However, Wis. Stat. 

§ 968.26 is silent as to whether a John Doe judge can preside 

over a multi-county John Doe. It is axiomatic that silence on 

the point does not (and cannot) result in the creation of a 
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plain legal duty. Here, Reserve Judge Kluka and the special 

prosecutor initially ran the investigation and proceeding out of 

a single post office box in Milwaukee controlled by the special 

prosecutor. They also put the case names and numbers of all 

five proceedings on every search warrant, subpoena, and order. 

However, the concerns expressed by the Unnamed Movants are more 

properly addressed to the legislature, not a court in a 

supervisory writ petition. Should the legislature wish to 

prohibit multi-county John Does, it is free to do so. We, 

however, cannot "transform the writ into an all-purpose 

alternative to the appellate review process" or announce new 

rules for future cases as part of that process. Kalal, 271 Wis. 

2d 633, ¶24. To do so would be an instance of judicial 

overreach incompatible with the nature and purpose of a 

supervisory writ.

¶122 Therefore, we hold that Reserve Judges Kluka and

Peterson did not violate a plain legal duty by: (1) accepting an 

appointment as a reserve judge; or (2) convening a multi-county 

John Doe proceeding, and thus we deny the Unnamed Movants' 

petition for a supervisory writ.

ii. Reserve Judge Kluka Did Not Violate a Plain Legal Duty by 

Appointing Francis Schmitz to be the Special Prosecutor.

¶123 We now turn to whether Reserve Judge Kluka violated a 

plain legal duty in appointing the special prosecutor, and if 

so, what effect that would have on the court and special 

prosecutor's competency. We conclude that the Unnamed Movants 
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have failed to prove that Reserve Judge Kluka violated a plain 

legal duty in appointing the special prosecutor.

1. Under Carlson, Reserve Judge Kluka Reasonably Concluded that 

She Had the Authority to Appoint the Special Prosecutor on Her 

Own Motion.

¶124 In appointing the special prosecutor Reserve Judge 

Kluka relied, in part, on Carlson.39 Carlson concerned a court's

statutory authority to appoint a special prosecutor under Wis. 

Stat. § 978.045.40 In Carlson, the court of appeals explained

 39 To be clear, we do not rely on State v. Carlson, 2002 WI 

App 44, 250 Wis. 2d 562, 641 N.W.2d 563. There are certainly 

distinctions to be made between the facts of Carlson and the 

facts of the instant case. We discuss Carlson only as it 

relates to the larger question of whether Reserve Judge Kluka 

violated a plain legal duty at the time the appointment was 

made.

40 Wisconsin Stat. § 978.045, the "special prosecutors" 

statute, provides:

(1g)A court on its own motion may appoint a special 

prosecutor under sub. (1r) or a district attorney may 

request a court to appoint a special prosecutor under 

that subsection. Before a court appoints a special 

prosecutor on its own motion or at the request of a 

district attorney for an appointment that exceeds 6 

hours per case, the court or district attorney shall 

request assistance from a district attorney, deputy 

district attorney or assistant district attorney from 

other prosecutorial units or an assistant attorney 

general. A district attorney requesting the 

appointment of a special prosecutor, or a court if the 

court is appointing a special prosecutor on its own 

motion, shall notify the department of administration,

on a form provided by that department, of the district 

attorney's or the court's inability to obtain 

assistance from another prosecutorial unit or from an 

assistant attorney general.

(continued)
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(1r)Any judge of a court of record, by an order 

entered in the record stating the cause for it, may 

appoint an attorney as a special prosecutor to 

perform, for the time being, or for the trial of the 

accused person, the duties of the district attorney. 

An attorney appointed under this subsection shall have 

all of the powers of the district attorney. The judge 

may appoint an attorney as a special prosecutor at the 

request of a district attorney to assist the district 

attorney in the prosecution of persons charged with a 

crime, in grand jury proceedings or John Doe 

proceedings under s. 968.26, in proceedings under ch. 

980, or in investigations. The judge may appoint an 

attorney as a special prosecutor if any of the 

following conditions exists:

(a)There is no district attorney for the county.

(b)The district attorney is absent from the county.

(c)The district attorney has acted as the attorney for 

a party accused in relation to the matter of which the 

accused stands charged and for which the accused is to 

be tried.

(d)The district attorney is near of kin to the party 

to be tried on a criminal charge.

(e)The district attorney is physically unable to 

attend to his or her duties or has a mental incapacity 

that impairs his or her ability to substantially 

perform his or her duties.

(f)The district attorney is serving in the U.S. armed 

forces.

(g)The district attorney stands charged with a crime 

and the governor has not acted under s. 17.11.

(h)The district attorney determines that a conflict of 

interest exists regarding the district attorney or the 

district attorney staff.

(i)A judge determines that a complaint received under 

s. 968.26 (2) (am) relates to the conduct of the 

(continued)
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that the plain language of the special prosecutors statute 

"authorizes two distinct ways in which a court may appoint a 

special prosecutor." Carlson, 250 Wis. 2d 562, ¶8. The first 

is on the court's own motion. Id. The second is at the request 

of a district attorney. Id. Where the appointment is on the 

court's own motion, the court of appeals interpreted Wis. Stat. 

§ 978.045(1r) as giving a court "unfettered authority" to make 

the appointment, as long as the court entered an order "stating 

the cause therefor." Id., ¶¶ 5, 9 (quotation omitted) ("In 

short, if a court makes a special prosecutor appointment on its 

own motion, it is constrained only in that it must enter an 

order in the record stating the cause for the appointment."). 

"[A]ny restriction, if one exists, is triggered only when the 

appointment is made at the request of a district attorney, not 

when the appointment is made by a court on its own motion." 

Id., ¶8. 

¶125 Carlson thus concluded that a court need satisfy only 

one of the nine conditions listed under Wis. Stat. § 978.045(1r) 

when the district attorney requests the appointment of a special 

prosecutor, but when the court makes the appointment on its own 

motion, it need only enter an order stating the cause therefor. 

"A plain reading of the statute tells us that when a court makes 

this appointment on its own motion, all that is required of the 

court is that it enter an order in the record 'stating the cause 

 

district attorney to whom the judge otherwise would 

refer the complaint.
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therefor.'" Id., ¶9 (quoting Wis. Stat. § 978.045(1r) (1999-

2000) which addresses, in part, John Doe proceedings and a John 

Doe judge's ability to appoint a special prosecutor for such 

proceedings).

¶126 Reserve Judge Kluka relied on Carlson to appoint, on 

her own motion, the special prosecutor. Thus, in order to 

justify the appointment under Carlson, Reserve Judge Kluka was 

simply required to enter an order "stating the cause therefor,"

which is exactly what she did in citing concerns of efficiency 

and the appearance of impropriety.

¶127 We note that Carlson is problematic to the point of 

being suspect. This is so because Carlson disregards the fact 

that one of the nine conditions enumerated under Wis. Stat. 

§ 978.045(1r) must exist for the appointment of a special 

prosecutor, regardless of whether the appointment is made on the 

court's own motion or at the district attorney's request. The 

Carlson court's failure to import this language from the 

governing statute is an inexplicable-and very likely fataldefect in its holding. While we agree with the Unnamed Movants' 

interpretation of Wis. Stat. § 978.045, we do not take the 

ultimate step of overruling Carlson because to do so would go 
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further than the supervisory writ allows.41 Simply put, despite 

Carlson's questionable validity we cannot reasonably conclude 

that Reserve Judge Kluka violated a plain legal duty in making 

the appointment.

¶128 The issue presented also asks whether Reserve Judge 

Kluka violated a plain legal duty in making the special 

prosecutor appointment where no charges have yet been issued; 

where the district attorney in each county has not refused to 

continue the investigation or prosecution of any potential 

charge; and where no certification that no other prosecutorial 

unit was able to do the work for which the special prosecutor 

was sought was made to the Department of Administration. Again, 

Carlson gave the John Doe judge "unfettered authority" to 

appoint the special prosecutor, so the absence of these 

additional circumstances does not demonstrate that Reserve Judge 

Kluka violated a plain legal duty in making the appointment.

2. Reserve Judge Kluka Also Relied on Her Inherent Authority in 

Appointing the Special Prosecutor.

¶129 Reserve Judge Kluka also stated that she appointed the 

special prosecutor pursuant to her "inherent authority" under 

Cummings. The relevant issue in Cummings was whether a John Doe 

 41 The procedural posture of this case prevents us from 

overruling Carlson. If this issue were to arise in a nonsupervisory writ case we may very well overrule Carlson. 

However, the supervisory writ is not an "all-purpose alternative 

to the appellate review process." State ex rel. Kalal v. 

Circuit Court for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 

681 N.W.2d 110. 
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judge has the ability to seal a search warrant. Id. at 733. 

There the defendant argued that no statutory authority conferred 

such power on John Doe judges. In rejecting the defendant's 

argument, we reasoned: 

[A] John Doe judge has been granted jurisdiction, the 

legal right to exercise its authority, pursuant to 

Wis. Stat. § 968.27. A grant of jurisdiction by its 

very nature includes those powers necessary to fulfill 

the jurisdictional mandate. The statutory 

jurisdiction of a John Doe judge has been defined as 

the authority of the judge to conduct a John Doe 

investigation [in order to ascertain whether a crime 

has been committed and by whom]. . . . The ability to 

seal a search warrant is exactly that type of power 

which a John Doe judge needs to fulfill [that] 

jurisdictional mandate.

Id. at 736-37. Thus, while Cummings did not specifically 

address a John Doe judge's inherent authority to appoint a 

special prosecutor, it provides broad language supporting the 

idea that a John Doe judge possesses inherent authority where it 

is necessary to facilitate its jurisdictional mandate. Stated 

otherwise, a John Doe judge's inherent authority is limited to 

what is necessary to enable the judge to properly conduct a John 

Doe proceeding. State ex rel. Individual Subpoenaed, 281 

Wis. 2d 431, ¶26; see In re John Doe Proceeding, 272 Wis. 2d 

208, ¶10.

¶130 The Unnamed Movants argue that the only cases invoking 

a court's inherent authority to appoint a special prosecutor 

have 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). 

We agree, but that is because no court has addressed whether a 
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John Doe judge has inherent authority to appoint a special 

prosecutor, which necessarily occurs before charging. That 

there is an absence of case law addressing whether a John Doe 

judge has inherent authority to appoint a special prosecutor 

does not necessarily mean the John Doe judge in this case 

violated a plain legal duty in doing so.42

¶131 Arguably, the broad language in Cummings could be used 

to support Reserve Judge Kluka's actions in this case. Because 

no law expressly prohibits a John Doe judge from exercising his

inherent authority to appoint a special prosecutor, the Unnamed 

Movants cannot prove that Reserve Judge Kluka violated a plain 

legal duty in exercising that authority to appoint the special 

prosecutor.

¶132 Due to the existing precedent, Reserve Judge Kluka's 

legal duty was not plain, clear, and unequivocal with an 

imperative responsibility to act under the facts. Because the 

Unnamed Movants have not established that Reserve Judge Kluka 

violated a plain legal duty in appointing the special 

prosecutor, we deny their petition for a supervisory writ and 

affirm the court of appeals.43

 42 While we do not endorse Reserve Judge Kluka's 

interpretation of her inherent authority in this instance, we 

cannot say her conduct of appointing a special prosecutor was 

violative of a plain legal duty.

43 We need not address what effect an unlawful appointment 

would have had because no violation of a plain legal duty 

occurred.
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VI. CONCLUSION

¶133 Our lengthy discussion of these three cases can be 

distilled into a few simple, but important, points. It is 

utterly clear that the special prosecutor has employed theories 

of law that do not exist in order to investigate citizens who

were wholly innocent of any wrongdoing. In other words, the 

special prosecutor was the instigator of a "perfect storm" of 

wrongs that was visited upon the innocent Unnamed Movants and 

those who dared to associate with them. It is fortunate,

indeed, for every other citizen of this great State who is 

interested in the protection of fundamental liberties that the 

special prosecutor chose as his targets innocent citizens who 

had both the will and the means to fight the unlimited resources 

of an unjust prosecution. Further, these brave individuals 

played a crucial role in presenting this court with an 

opportunity to re-endorse its commitment to upholding the 

fundamental right of each and every citizen to engage in lawful 

political activity and to do so free from the fear of the 

tyrannical retribution of arbitrary or capricious governmental 

prosecution. Let one point be clear: our conclusion today ends 

this unconstitutional John Doe investigation.

A.

¶134 In Two Unnamed Petitioners, we hold that the 

definition of "political purposes" in Wis. Stat. § 11.01(16) is 

unconstitutionally overbroad and vague under the First Amendment 

to the United States Constitution and Article I, Section 3 of 
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the Wisconsin Constitution because its language "'is so sweeping 

that its sanctions may be applied to constitutionally protected 

conduct which the state is not permitted to regulate.'" 

Janssen, 219 Wis. 2d at 374 (quoting Bachowski, 139 Wis. 2d at 

411). However, a readily available limiting construction exists 

that we will apply and that will prevent the chilling of 

otherwise protected speech; namely, that "political purposes" is 

limited to express advocacy and its functional equivalent as 

those terms are defined in Buckley and WRTL II. With this 

limiting construction in place, Chapter 11 does not proscribe 

any of the alleged conduct of any of the Unnamed Movants. The 

special prosecutor has not alleged any express advocacy, and 

issue advocacy, whether coordinated or not, is "beyond the reach 

of [Ch. 11]." Barland II, 751 F.3d at 815. Accordingly, we 

invalidate the special prosecutor's theory of the case, and we 

grant the relief requested by the Unnamed Movants.

¶135 To be clear, this conclusion ends the John Doe 

investigation because the special prosecutor's legal theory is 

unsupported in either reason or law. Consequently, the 

investigation is closed. Consistent with our decision and the 

order entered by Reserve Judge Peterson, we order that the 

special prosecutor and the district attorneys involved in this 

investigation must cease all activities related to the 

investigation, return all property seized in the investigation 

from any individual or organization, and permanently destroy all 

copies of information and other materials obtained through the 
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investigation. All Unnamed Movants are relieved of any duty to 

cooperate further with the investigation.

B.

¶136 In Schmitz v. Peterson, we hold that the special 

prosecutor has failed to prove that Reserve Judge Peterson 

violated a plain legal duty when he quashed the subpoenas and 

search warrants and ordered the return of all property seized by 

the special prosecutor. In quashing the subpoenas and search 

warrants, Reserve Judge Peterson exercised his discretion under 

the John Doe statute, Wis. Stat. § 968.26, to determine the 

extent of the investigation. Because the purpose of a 

supervisory writ does not include review of a judge's 

discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory 

writ sought by the special prosecutor is denied, and Reserve 

Judge Peterson's order is affirmed.

C.

¶137 Finally, in Three Unnamed Petitioners, we hold that 

the Unnamed Movants have failed to prove that either Reserve 

Judge Kluka or Reserve Judge Peterson violated a plain legal 

duty by: (1) accepting an appointment as a reserve judge; (2) 

convening a multi-county John Doe proceeding; or (3) appointing 

a special prosecutor. Although the circumstances surrounding 

the formation of the John Doe investigation raise serious 

concerns, and the appointment of the special prosecutor may well 

have been improper, such concerns do not satisfy the stringent 

standards of a supervisory writ. Put another way, if we were to 
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grant the supervisory writ in this case, we would risk 

"transform[ing] the writ into an all-purpose alternative to the 

appellate review process," which we cannot do. Id. 

Accordingly, we deny the supervisory writ and affirm the 

decision of the court of appeals.

By the Court.—Declaration of rights; relief granted; John 

Doe investigation ordered closed in Two Unnamed Petitioners.

By the Court.—Petition for supervisory writ denied and 

order affirmed in Schmitz v. Peterson.

By the Court.—Petition for supervisory writ denied and 

decision affirmed in Three Unnamed Petitioners.

¶138 ANN WALSH BRADLEY, J., did not participate.
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¶139 DAVID T. PROSSER, J. (concurring). The court is 

confronted with three separate but overlapping cases related to 

a John Doe investigation involving [————————————————————————————

————————————————————————————————————————————————————————], and a 

substantial number of organizations and individuals who are 

associates and political allies of [——————————————].

¶140 This is the second John Doe investigation initiated by 

the Milwaukee County District Attorney's Office that has focused 

on [——————————————] and [————] political circle. The present 

investigation concerns alleged campaign finance violations, but 

the scope of the investigation is sufficiently broad that it 

amounts to a fishing expedition into the lives, work, and 

thoughts of countless citizens.

¶141 For all practical purposes, the court has merged the 

two writ cases1 into the original action2 and invited the parties 

to submit briefs on all issues, even if an issue was not part of 

the party's original case.

¶142 The consolidated case presents at least 14 issues. 

Collectively they are complex and difficult. They also are 

important to the people of Wisconsin. Many of these issues are 

addressed in the majority opinion. I write separately to 

provide my own analysis and perspective on the following issues:

 1 State ex rel. Schmitz v. Peterson, 2014AP417-W through 

2014AP421-W; State ex rel. Three Unnamed Petitioners v. 

Peterson, 2013AP2504-W through 2013AP2508-W.

2 State ex rel. Two Unnamed Petitioners v. Peterson, No. 

2014AP296-OA.
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2

(1) Issues 4 and 5 related to the appointment of the 

special prosecutor.

(2) Issue 14 related to several search warrants. However, 

the record in this matter requires discussion of search warrants 

and subpoenas beyond the warrants identified in Issue 14.

(3) Issue 6 related to the application of Wis. Stat. 

§ 11.26(13m) to contributions in recalls.

(4) Issues relating to several different provisions in 

Chapter 11 of the Wisconsin Statutes.

¶143 This concurring opinion discusses issues arising out 

of a John Doe investigation that is subject to multiple broad 

secrecy orders. Full adherence to these secrecy orders in their 

original breadth is impossible because full adherence would mean 

that the court could not acknowledge what the John Doe is about 

or discuss fully the numerous issues bearing on the scope, 

conduct, and propriety of the investigation.

¶144 "Secrecy of John Doe proceedings and the records 

thereof is not maintained for its own sake." State v. O'Connor, 

77 Wis. 2d 261, 252 N.W.2d 671 (1977). Instead, "[t]he policy 

underlying secrecy is directed to promoting the effectiveness of 

the investigation. Therefore, any secrecy order 'should be 

drawn as narrowly as is reasonably commensurate with its 

purposes.'" State ex rel. Unnamed Person No. 1 v. State, 2003 

WI 30, ¶61, 260 Wis. 2d 653, 660 N.W.2d 260 (quoting O'Connor, 

77 Wis. 2d at 286). In making determinations about the scope of 

a secrecy order, "[a] balance must be struck between the 

public's right to be informed about the workings of its 
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government and the legitimate need to maintain the secrecy of 

certain John Doe proceedings." Id., ¶66.

¶145 It is important to protect the targets of a John Doe 

investigation when it is determined that they have not committed 

a crime. This protection extends to the identity of individual 

people as well as the content of their private communications 

and other records obtained in the course of the investigation. 

Here, there is no similar interest in protecting the actions of 

the John Doe judge or the special prosecutor. Because the 

majority orders the John Doe investigation "closed," it cannot 

be said that the continued secrecy of certain facts in this 

matter——the scope and nature of the investigation, search 

warrants, and subpoenas, for example——is necessary to protect 

the integrity of this or a future John Doe investigation. 

Accordingly, I conclude that discussion of these facts is not 

inconsistent with the secrecy order.

¶146 Thus, this concurring opinion does not name 

individuals or organizations, except the individuals and 

organizations who initiated and conducted the John Doe 

investigation. State and local government officials who 

initiate sweeping criminal investigations of Wisconsin citizens 

cannot expect to keep their conduct secret indefinitely, and 

appellate courts reviewing state and local government conduct do 

not provide the public with the full reasoning for their 

decisions if they are unwilling or unable to discuss the facts 

essential to these decisions. See majority op., ¶14 n.11, ¶88 

n.25.
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¶147 My interpretation of the secrecy order is essential to 

the discussion of certain procedural issues and is taken (1) 

after discussion with the court, (2) with knowledge that much 

information about the investigation has already been disclosed, 

and (3) with experience that additional disclosure in the future 

is likely.

¶148 In my view, all issues of law in this matter are 

subject to de novo review.

¶149 I join Section III of the majority opinion, and I 

concur in the result of Section IV. Although I agree with most 

of the discussion in Section IV, I would reach the result as a 

matter of law.

I

¶150 Scott Walker was elected governor of Wisconsin on 

November 2, 2010. He was sworn in as governor on January 3, 

2011.

¶151 On February 14, 2011, Governor Walker proposed a 

Budget Repair Bill that was intended to deal with the state's 

fiscal situation for the remaining months of the 2009-2011 

biennium and for the 2011-2013 biennium beginning on July 1, 

2011. Legislation to implement the governor's plan was 

introduced in both the Senate and Assembly. The proposed 

legislation included provisions requiring additional public 

employee contributions for health care and pensions. The two 

bills also included provisions curtailing collective bargaining 

rights for most state and local public employees and making 

appropriations.
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¶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, 798 N.W.2d 436, and 

Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 

N.W.2d 337. See also Wis. Educ. Ass'n Council v. Walker, 705 

F.3d 640 (7th Cir. 2013).

¶153 Act 10 was highly controversial. Intense opposition 

in the legislature included more than 60 consecutive hours of 

debate in the Assembly and the departure of all 14 Democratic 

senators from the state for nearly a month to deprive the Senate 

of a sufficient quorum to pass the original bill. Public 

opposition to Act 10 included massive demonstrations at the 

Wisconsin State Capitol. The demonstrations were so large that 

they garnered national and international attention. There were 

many smaller demonstrations throughout Wisconsin.

¶154 After its passage, the Act 10 legislation was 

challenged in the Dane County Circuit Court on procedural 

grounds to prevent its publication as an act. It was later 

challenged again in both federal and state courts in an effort 

to invalidate several of its provisions on constitutional 

grounds. The main challenge to Act 10 was not resolved by this 

court until mid-2014. Madison Teachers, 358 Wis. 2d 1.

¶155 The introduction and passage of Act 10 also led to 

efforts (1) to defeat a supreme court justice in April 2011, 

producing an exceptionally close election and the first 

statewide candidate recount in Wisconsin history; (2) to recall 

16 state senators in July and August 2011, nine of whom were 
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forced to run for reelection; and (3) to recall the governor, 

lieutenant governor, and five state senators in June 2012. Four 

of the five senators had to run for reelection.

¶156 Two Republican state senators were defeated in 2011 

and one Republican state senator was defeated in 2012. The 

latter election shifted control of the state senate to the 

Democrats. This was the second time in recent years that a 

recall election in Wisconsin shifted control of the state senate 

to the Democratic party.3

¶157 The John Doe investigation under review is ostensibly 

about alleged criminal activity by [——————————————], ———————————

———————————], and [——————————] during the multiple recall 

elections described above. In an affidavit in support of the 

petition for the John Doe proceeding in August 2012, an 

investigator in the Milwaukee County District Attorney's office 

wrote:

3. The purposes and goals of this John Doe 

investigation would be to:

a. Determine the nature and extent of an 

agreement or understanding related to the solicitation 

by [————————————————————————————————], and [——————————

——————————————————], [————————————————————————————————

——————————————————] in the 2011 and 2012 recall 

elections, for contributions to organizations 

regulated by Title 26 U.S.C. 501(c)4 contrary to 

 3 The first Wisconsin legislator to be successfully 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 stadium for the Milwaukee 

Brewers. Senator Petak's recall shifted control of the Senate 

to the Democratic Party.
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Wisconsin Stats sec. 11.10(4), 11.26, 11.27 and 

11.61(1)(b);

b. Determine whether the circumstances 

under which the solicitation and use of said campaign 

contributions were to circumvent the provisions of 

Wisconsin Stats sec. 11.26 and 11.27(1) by individuals 

and others identified above, for a criminal purpose in 

order to avoid the requirements of Wisconsin Stats. 

Sec. 11.06(1) and 11.27(1).

¶158 In fact, however, the Milwaukee County District 

Attorney's Office targeted [——————————————] circle for 

investigation before [——————————————————————], and it has framed 

the present investigation to include alleged campaign finance 

violations dating from 2009 through the 2012 recall elections.

¶159 Almost immediately after the introduction of Governor 

Walker's Budget Repair Bill, talk of his recall began to 

surface. However, because Walker was elected in 2010 and did 

not take office until January 3, 2011, he could not be recalled 

under the constitution until 2012 "after the first year of the 

term for which the incumbent was elected." Wis. Const. art. 

XIII, § 12. Consequently, Walker's opponents focused their 

attention in the short term on a pending race for the supreme 

court and the recall of eight Republican state senators elected 

in 2008: Robert Cowles (District 2); Alberta Darling (District 

8); Sheila Harsdorf (District 10); Luther Olsen (District 14); 

Randy Hopper (District 18); Glenn Grothman (District 20); Mary 

Lazich (District 28); and Dan Kapanke (District 32). Formal 

recall efforts for these senators began on March 2, 2011.

¶160 Opponents of Governor Walker and the senators who 

voted for Act 10 succeeded in obtaining the required signatures 
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to force recall elections for Senators Cowles, Darling, 

Harsdorf, Olsen, Hopper, and Kapanke. They failed to obtain 

sufficient signatures to force recall elections for Senators 

Grothman and Lazich.

¶161 Supporters of Governor Walker attempted to recall 

eight Democratic state senators, namely, Lena Taylor (District 

4); Spencer Coggs (District 6); James Holperin (District 12); 

Mark Miller (District 16); Robert Wirch (District 22); Julie 

Lassa (District 24); Fred Risser (District 26); and Dave Hansen 

(District 30). Their formal efforts began as early as February 

22 (District 12). They succeeded in obtaining the required 

number of signatures to force recall elections for Senators 

Holperin, Wirch, and Hansen. They failed to obtain sufficient 

signatures to force recall elections for Senators Taylor, Coggs, 

Miller, Lassa, and Risser.

¶162 In the 2011 recall elections, Senators Randy Hopper 

and Dan Kapanke were defeated. Senators Cowles, Darling, 

Harsdorf, Holperin, Olsen, Wirch, and Hansen were reelected.

¶163 Opponents of Governor Walker sought to recall Walker 

and Lieutenant Governor Rebecca Kleefisch and four Republican 

state senators, namely, Scott Fitzgerald (District 13); Van 

Wanggaard (District 21), Terry Moulton (District 23); and Pam 

Galloway (District 29), in 2012. Supporters of Governor Walker 

attempted to recall Senator Robert Jauch (District 25). 

Insufficient signatures were submitted to recall Senator Jauch. 

However, all the Republican targets faced recall elections in 

2012, except Senator Galloway, who resigned on March 16, 2012. 
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She was replaced by Representative Jerry Petrowski, who ran in 

the recall general election.

¶164 The timing of the recall elections in 2011 and 2012 

was complicated by multiple different filing dates for recall 

petitions and a substantial number of primary elections. Recall 

petitions were filed with the Government Accountability Board 

(GAB) on April 1, 2011 (Senator Kapanke); April 7, 2011 (Senator 

Hopper); April 18, 2011 (Senator Olsen); April 19, 2011 (Senator 

Harsdorf); April 21, 2011 (Senators Darling, Holperin, Wirch, 

and Hansen); and April 25, 2011 (Senator Cowles).

¶165 Primary elections were held on July 12, 2011, in 

Senate Districts 2, 8, 10, 14, 18, and 32. Primary elections 

were held on July 19, 2011, in Districts 12 and 22.

¶166 In 2011 the recall general elections were held on July 

19, 2011 (District 30); August 9, 2011 (Districts 2, 8, 10, 14, 

18, and 32); and August 16, 2011 (Districts 12 and 22).

¶167 In 2012 the primary elections for governor, lieutenant 

governor, and the four senate seats in Districts 13, 21, 23, and 

29 were held on May 8. The recall general elections were held 

on June 5, 2012. Senator Van Wanggaard was defeated. Governor 

Walker, Lieutenant Governor Kleefisch, and Senators Fitzgerald 

and Moulton were reelected. Representative Petrowski was 

elected as a Republican to succeed Senator Galloway.

¶168 The seemingly insignificant factual details of these 

multiple elections are important to show the unprecedented, 

unscheduled electoral activity in Wisconsin during 2011 and 
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2012, and to relate these multiple elections to Wisconsin 

campaign finance laws.

II

¶169 Wisconsin statutory law on recalls is contained 

primarily in Wis. Stat. § 9.10. This section is intended "to 

facilitate the operation 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 

the first year of the term for which the incumbent was elected." 

Wis. Const. art. XIII, § 12.

¶170 "[A] petition for recall of an officer shall be signed 

by electors equal to at least 25% of the vote cast for the 

office of governor at the last election within the same district 

or territory as that of the officeholder being recalled." Wis. 

Stat. § 9.10(1)(b).

¶171 Wisconsin Stat. § 9.10(2) outlines the petition 

requirements, including the design of recall petition forms. 

Paragraph (2)(d) provides:

No petition may be offered for filing for the 

recall of an officer unless the petitioner first files 

a registration statement under s. 11.05(1) or (2) with 

the filing officer with whom the petition is filed. 

The petitioner shall append to the registration a 

statement indicating his or her intent to circulate a 

recall petition, the name of the officer for whom 

recall is sought and, in the case of a petition for 

the recall of a city, village, town, town sanitary 

district, or school district officer, a statement of a 

reason for the recall which is related to the official 

responsibilities of the official for whom removal is 

sought. . . . The last date that a petition for the 

recall of an officer may be offered for filing is 5 

p.m. on the 60th day commencing after 
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registration. . . . No signature may be counted 

unless the date of the signature is within the period 

provided in this paragraph.

¶172 Paragraph (2)(d) is significant in several respects. 

First, a recall effort cannot formally begin until a 

registration statement is filed under Wis. Stat. § 11.05(1) or 

(2). However, the organization of a recall campaign may begin 

much earlier than the date of registration, and the planners and 

organizers are not required to report any activity or 

expenditure to launch the campaign except expenditures by 

already-registered political committees.

¶173 Second, supporters of a recall campaign have 60 days 

after registration to circulate and file their recall petitions. 

However, organizers of the Scott Walker recall petition shrewdly 

selected Tuesday, November 15, 2011, to register their recall 

efforts. Under Wis. Stat. § 990.001(4)(a), which deals with how 

time is computed under the Wisconsin Statutes, the first day is 

excluded in counting the 60 days. Under Wis. Stat. 

§ 990.001(4)(c), if the deadline for filing a document is on a 

day when the filing office is closed, the filing "may be done on 

the next succeeding day that is not a Sunday or a legal 

holiday." The Walker recall petition was due on January 14, 

2012. However, January 14 was a Saturday, which meant that the 

petition did not have to be filed until Tuesday, January 17, 

because January 16 was a legal holiday (Martin Luther King's 

birthday). This gave the organizers 64 days to circulate and 

file the Walker, Kleefisch, Fitzgerald, Wanggaard, Moulton, and 

Galloway recall petitions.
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¶174 Third, Wis. Stat. § 9.10(2)(b) makes plain that no 

stated reason is required to recall a state officer, as opposed 

to a local official.

¶175 Wisconsin Stat. § 9.10(3)(b) provides that:

Within 10 days after the petition is offered for 

filing, the officer against whom the petition is filed 

may file a written challenge with the official, 

specifying any alleged insufficiency. If a challenge 

is filed, the petitioner may file a written rebuttal 

to the challenge with the official within 5 days after 

the challenge is filed. If a rebuttal is filed, the 

officer against whom the petition is filed may file a 

reply to any new matter raised in the rebuttal within 

2 days after the rebuttal is filed. Within 14 days 

after the expiration of the time allowed for filing a 

reply to a rebuttal, the official shall file the 

certificate or an amended certificate.

¶176 Subsection (3)(b) continues:

Within 31 days after the petition is offered for 

filing, the official with whom the petition is offered 

for filing shall determine by careful examination 

whether the petition on its face is sufficient and so 

state in a certificate attached to the petition. If 

the official finds that the amended petition is 

sufficient, the official shall file the petition and 

call a recall election to be held on the Tuesday of 

the 6th week commencing after the date of filing of 

the petition. 

(Emphasis added.)

¶177 Subsection (3)(f) provides that "If a recall primary 

is required, the date specified under par. (b) shall be the date 

of the recall primary and the recall election shall be held on 

the Tuesday of the 4th week commencing after the recall primary 

or, if that Tuesday is a legal holiday, on the first day after 

that Tuesday which is not a legal holiday."
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¶178 Subsection (3), too, is important in this matter. 

First, the statute builds in certain protections for a public 

officer against whom a recall petition is filed. Consequently, 

no recall primary or recall election may proceed until the 

official with whom the petition is filed certifies the recall 

and orders a recall election. The review process can be very 

time consuming, especially if all available process is utilized.

¶179 In this case, recall elections were certified by the 

Government Accountability Board as follows:

2011

 Officer Recall Certified

District 2 (Robert Cowles) June 3, 2011

District 8 (Alberta Darling) June 3, 2011

District 10 (Sheila Harsdorf) June 3, 2011

District 12 (Jim Holperin) June 10, 2011

District 14 (Luther Olsen) June 3, 2011

District 18 (Randy Hopper) June 3, 2011

District 22 (Robert Wirch) June 10, 2011

District 30 (Dave Hansen) June 10, 2011

District 32 (Dan Kapanke) June 3, 2011

2012

 Officer Recall Certified

Governor Scott Walker March 30, 2012

Lt. Governor Rebecca Kleefisch March 30, 2012

District 13 (Scott Fitzgerald) March 30, 2012

District 21 (Van Wanggaard) March 30, 2012
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District 23 (Terry Moulton) March 30, 2012

District 29 (Pam Galloway) March 30, 2012

¶180 Second, Wis. Stat. § 11.26 sets limits on 

contributions, as defined in Wis. Stat. § 11.01(6). However, 

subsection (13m) of § 11.26 contains two specific exceptions to 

these contribution limits:

Contributions utilized for the following purposes 

are not subject to limitation by this section:

(a) For the purpose of payment of legal fees and 

other expenses incurred as a result of a recount at an 

election.

(b) For the purpose of payment of legal fees and 

other expenses incurred in connection with the 

circulation, offer to file or filing, or with the 

response to the circulation, offer to file or filing, 

of a petition to recall an officer prior to the time a 

recall primary or election is ordered, or after that 

time if incurred in contesting or defending the order.

(Emphasis added.)

¶181 The plain language of Wis. Stat. § 11.26(13m) provides 

that there is no limitation on contributions for payments made 

for certain purposes from the date a recall campaign is 

registered until the date a recall election is ordered. There 

also is no limitation on contributions for payment of legal fees 

and other expenses incurred as a result of a recount.

¶182 For the nine successful recall petitions in 2011, the 

periods of exemption were as follows:

District 2 March 2, 2011—June 3, 2011 = 94 days

District 8 March 2, 2011—June 3, 2011 = 94 days

District 10 March 2, 2011—June 3, 2011 = 94 days

District 12 February 22, 2011—June 10, 2011 = 109 days
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District 14 March 2, 2011—June 3, 2011 = 94 days

District 18 March 2, 2011—June 3, 2011 = 94 days

District 22 February 24, 2011—June 10, 2011 = 107 days

District 30 February 25, 2011—June 10, 2011 = 106 days

District 32 March 2, 2011—June 3, 2011 = 94 days

¶183 For the six successful recall petitions for 2012, the 

periods of exemption were as follows:

Governor November 15, 2011—March 30, 2012 = 137 days

Lt. Governor November 15, 2011—March 30, 2012 = 137 days

District 13 November 15, 2011—March 30, 2012 = 137 days

District 21 November 15, 2011—March 30, 2012 = 137 days

District 23 November 15, 2011—March 30, 2012 = 137 days

District 29 November 15, 2011—March 30, 2012 = 137 days

¶184 There were two recounts during the period under 

review——the statewide recount of the 2011 supreme court election 

and the recount in Senate District 21 in 2012.

¶185 During periods of exemption, individuals and 

organizations that are permitted to make contributions to recall 

campaigns may make unlimited contributions to support or oppose 

a recall effort. If these individuals and organizations are 

permitted to support or oppose recall efforts with unlimited 

contributions during exempt periods, they are likewise permitted 

to seek contributions during these periods and to make

contributions during these periods that will be lawful in 

periods that are not exempt under Wis. Stat. § 11.26(13m). 

¶186 In 2011 there were 156 exempt days between February 22 

and December 31 related to recall elections. In 2012 there were 
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90 exempt days between January 1 through March 30 related to 

recall elections.

¶187 In sum, irrespective of any First Amendment or due 

process limitations on the regulation of campaign finance, 

Wisconsin campaign finance statutes were largely inapplicable 

during 246 of the days under investigation, by virtue of Wis. 

Stat. § 11.26(13m). This figure does not include exempt days 

for fundraising and contributions to pay for the 2011 statewide 

recount for the supreme court.

III

¶188 On June 5, 2012, Governor Walker won the recall 

election with more than 53 percent of the vote. Walker was the 

third governor in United States history to be recalled. He was 

the first to be reelected.

¶189 Approximately two months later, on August 10, 2012, a 

Milwaukee County assistant district attorney, David Robles, 

filed a petition for commencement of this John Doe investigation 

in Milwaukee County. The petition was filed in Milwaukee County 

Circuit Court. The petition sought leave to investigate alleged 

campaign finance violations and requested a secrecy order to 

cover the investigation in anticipation that documents would be 

sought from "[——————————————————————————————————————————————————

———————————————————————————————————————————————————————————————] 

personal campaign committee . . . and . . . related 

organizations."

¶190 The petition necessitated the appointment of a John 

Doe judge. The judge appointed was Barbara Kluka, a prominent 
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reserve judge from Kenosha County. Issues related to this 

appointment are presently before the court. I am not persuaded 

that there are defects in Judge Kluka's appointment.

¶191 On September 5, 2012, Judge Kluka granted the petition 

and issued an order for commencement of the John Doe proceeding. 

The same day, Judge Kluka granted a secrecy order.

¶192 The next day, the Milwaukee County District Attorney's 

Office sought and received search warrants for the private email accounts of 13 individuals, including [——————————————]. 

The private e-mail accounts were obtained from [————————————————

————————————————]. The search warrants required the recipient 

"electronic communication service providers" to produce

all communications stored in the account[s] including 

all incoming and outgoing e-mail; subscriber names, 

user names, screen names or other identities 

associated with the account[s]; mailing addresses, 

residential addresses, business addresses, other email addresses, telephone numbers or other contact or 

identifying information for [these] account[s] (in 

electronic or other form); billing records; contact 

lists, information about length of service, types of 

services or related information; connection logs and 

records of user activity, and any information related 

to sent and received communications, including any 

"chat" or "instant messaging" or related information 

for said account[s] . . . .

(Emphasis added.) The time frame for the search warrants was 

from April 11, 2009, to July 1, 2012.

¶193 The district attorney's office also obtained either a 

search warrant or a subpoena duces tecum for conference call 

records from [——————————————————] and for three bank accounts 

from a bank. All these search warrants and subpoenas were 

subject to a secrecy order.
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¶194 On December 12, 2012, the Milwaukee District 

Attorney's Office asked for additional search warrants and 

subpoenas for the private e-mail accounts of 11 additional 

individuals, as well as additional private accounts for five 

previously named individuals, including [————————————]. These 

accounts were obtained from [12 electronic communication service 

providers]. E-mail accounts were sought from January 1, 2011, 

through July 31, 2012. The office also sought bank account 

records from [a bank] and conference call records from two 

providers. All these search warrants and subpoenas were subject 

to a secrecy order.

¶195 On January 18, 2013, Milwaukee County District 

Attorney John Chisholm met with then-Attorney General J.B. Van 

Hollen to discuss the ongoing investigation. District Attorney 

Chisolm sought to determine whether, given the statewide nature 

of the investigation, the Attorney General's office wished to 

become involved in the investigation. On May 31, 2013, Attorney 

General Van Hollen sent District Attorney Chisholm a letter 

declining involvement in the investigation. Attorney General 

Van Hollen cited, among other things, potential conflicts of 

interest [——————————————————————————————————————————————————————

————————————————————————————].

¶196 On June 20, 2013, the Government Accountability Board 

met in closed session in Madison to discuss the investigation. 

The Board passed two motions [——————————————————————————————————

————————————————————————————————————————————————————————————————
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——————————————————] and one to hire special investigators to 

assist with the investigation.

¶197 On July 16, 2013, Francis Schmitz was chosen as a 

special investigator for the GAB.

¶198 In July 2013, three more petitions to commence John 

Doe proceedings were filed: District Attorney Jane Kohlwey filed 

a petition in Columbia County on July 22, District Attorney 

Larry Nelson filed a petition in Iowa County on July 25, and 

District Attorney Kurt Klomberg filed a petition in Dodge County 

on July 26. On August 21, District Attorney Ismael Ozanne filed 

a petition in Dane County to commence a John Doe proceeding. 

All these petitions included a request that the proceedings be 

subject to a secrecy order.

¶199 Also on August 21, 2013, the district attorneys from 

the five counties involved (Milwaukee, Columbia, Iowa, Dodge, 

and Dane) sent a letter to John Doe Judge Barbara Kluka 

requesting the appointment of a special prosecutor to oversee 

the entire investigation. The letter recommended Francis 

Schmitz. On August 23, Judge Kluka appointed Schmitz to be the 

special prosecutor for each of the five John Doe investigations.

¶200 On or about October 1, 2013, Special Prosecutor 

Schmitz applied to Judge Kluka for additional subpoenas and 

search warrants, supported by lengthy affidavits. The subpoena 

applications sought information about 29 businesses and 

organizations, including political party organizations, about a 

large number of persons who were not candidates, and about all 

candidates and campaign committees involved in 2011 and 2012 
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recall elections. The application sought subpoenas for at least 

21 businesses, organizations, and party organizations to 

disclose information about and relationships with all the 

enumerated businesses, organizations, and individuals noted 

above. The special prosecutor issued more than 30 subpoenas.

¶201 There also were search warrant applications for 

residences and/or offices of five individuals. These search 

warrants were very broad in nature and covered the time period 

from March 1, 2009 to the date the warrants were issued.

¶202 The search warrants and subpoenas authorized on or 

about October 1 by Judge Kluka are at issue before the court.

IV

¶203 The first issue for discussion here is the legality of 

the appointment of Francis Schmitz as the John Doe special 

prosecutor. On August 21, 2013, district attorneys from the 

five counties involved in the John Doe investigation sent a 

letter to Judge Kluka requesting the appointment of a special 

prosecutor to oversee the entire investigation. The letter 

recommended the appointment of Francis Schmitz. On August 23, 

Judge Kluka appointed Schmitz to be the special prosecutor, at a 

rate of $130 per hour, for the John Doe investigation in each of 

the five counties.

¶204 Wisconsin Stat. § 978.045, entitled "Special 

prosecutors," constitutes most of the statutory authority for 

the appointment of special prosecutors.4

 This section, which 

 4 See also Wis. Stat. §§ 978.03(3), 978.043.
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dates back to 1989,5 has four subsections. The first two 

subsections read, in part, as follows:

(1g) A court on its own motion may appoint a 

special prosecutor under sub. (1r) or a district 

attorney may request a court to appoint a special 

prosecutor under that subsection. Before a court 

appoints a special prosecutor on its own motion or at 

the request of a district attorney for an appointment 

that exceeds 6 hours per case, the court or district 

attorney shall request assistance from a district 

attorney, deputy district attorney or assistant 

district attorney from other prosecutorial units or an 

assistant attorney general. A district attorney 

requesting the appointment of a special prosecutor, or 

a court if the court is appointing a special 

prosecutor on its own motion, shall notify the 

department of administration, on a form provided by 

that department, of the district attorney's or the 

court's inability to obtain assistance from another 

prosecutorial unit or from an assistant attorney 

general.

(1r) Any judge of a court of record, by an order 

entered in the record stating the cause for it, may 

appoint an attorney as a special prosecutor to 

perform, for the time being, or for the trial of the 

accused person, the duties of the district attorney. 

An attorney appointed under this subsection shall have 

all of the powers of the district attorney. The judge 

may appoint an attorney as a special prosecutor at the 

request of a district attorney to assist the district 

attorney in the prosecution of persons charged with a 

crime, in grand jury proceedings or John Doe 

proceedings under s. 968.26, in proceedings under ch. 

980, or in investigations. The judge may appoint an 

attorney as a special prosecutor if any of the 

following conditions exist:

Wis. Stat. § 978.045(1g)-(1r).

 5 1989 Wis. Act 117, § 5.
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¶205 At this point, the subsection lists nine "conditions" 

that justify appointment of a special prosecutor:

(a) There is no district attorney for the 

county.

(b) The district attorney is absent from the 

county.

(c) The district attorney has acted as the 

attorney for a party accused in relation to the matter 

of which the accused stands charged and for which the 

accused is to be tried.

(d) The district attorney is near of kin to the 

party to be tried on a criminal charge.

(e) The district attorney is physically unable 

to attend to his or her duties or has a mental 

incapacity that impairs his or her ability to 

substantially perform his or her duties.

(f) The district attorney is serving in the U.S. 

armed forces.

(g) The district attorney stands charged with a 

crime and the governor has not acted under s. 17.11.

(h) The district attorney determines that a 

conflict of interest exists regarding the district 

attorney or the district attorney staff.

(i) A judge determines that a complaint received 

under s. 968.26(2)(am) relates to the conduct of the 

district attorney to whom the judge otherwise would 

refer the complaint.

Wis. Stat. § 978.045(1r).

¶206 Section 978.045 is clear. The court appoints special 

prosecutors under these two subsections. The court can make an 

appointment on its own motion or it can make an appointment upon 

the request of a district attorney. When the court appoints on 

its own motion, it appoints under the conditions in subsection 
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(1r). When the court appoints upon the request of a district 

attorney, it appoints "under that subsection," that is, under 

the conditions of subsection (1r).

¶207 Section 978.045 spells out prerequisites for 

appointments under (1g) and (1r). One of these prerequisites is 

for the court or district attorney first to request assistance 

from other prosecutors, including "an assistant attorney 

general," before appointing a special prosecutor. Because the 

Milwaukee County District Attorney made a request for assistance 

to the Wisconsin Attorney General, this prerequisite arguably 

was satisfied.6

 However, the assumption that the prerequisite 

was satisfied is grounded on the proposition that if the 

district attorney or court asks the Department of Justice for 

assistance, they do not have to ask any other prosecutorial 

unit. This may be a tenuous proposition.

¶208 A second prerequisite is found in the nine conditions 

of subsection (1r). "The judge may appoint an attorney as a 

 6 It is not clear to the writer whether a court from one 

county is required to make an appointment if a district 

attorney, deputy district attorney, or assistant district 

attorney from another county, or an assistant attorney general, 

responds to a request for assistance from the court or from the 

district attorney in the court's home county. Wis. Stat. 

§ 978.045(1g). A district attorney may, on his own, appoint an 

attorney to serve as a special prosecutor "without state 

compensation." Wis. Stat. § 978.045(3)(a). A district attorney 

from a large county also may appoint "temporary counsel as may 

be authorized by the department of administration." Wis. Stat. 

§ 978.03(3). Judicial appointment of a special counsel in these 

situations would appear unnecessary but fully authorized if the 

appointment is consistent with subsection (1r).
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special prosecutor if any of the following conditions exists." 

(Emphasis added.) If none of the enumerated conditions exists, 

the judge is not authorized to make an appointment under 

subsections (1g) and (1r).

¶209 There are several reasons why one of the nine 

conditions must exist in order for the court to make an 

appointment. First, the Department of Administration is 

required to pay for a special prosecutor who is properly 

appointed under these subsections. Wis. Stat. § 978.045(2)(b) 

("The department of administration shall pay the compensation 

ordered by the court from the appropriation under s. 

20.475(1)(d).") (emphasis added). The department does not 

appear to have authority to reject payment for a properly 

appointed special prosecutor. However, the legislature did 

establish conditions for these appointments before requiring the 

department of administration to pay.

¶210 Second, if the conditions in subsection (1r) did not 

have to be followed, courts could grant requests from district 

attorneys for an unlimited number of special prosecutors to 

supplement district attorney staffs.7 In other words, individual 

 7 According to one study, Wisconsin employed only two-thirds 

of the number of prosecutors needed in 2012. See Eric Litke, 

Wisconsin Needs 215 More Prosecutors, Study Says, Green Bay 

Press-Gazette (Apr. 14, 2013), available at 

http://archive.greenbaypressgazette.com/article/20130413/GPG0198

/304130026/Wisconsin-needs-215-more-prosecutors-study-says. 

During the 2011-13 budget cycle, 42 of the 71 district attorneys 

in the state requested funding for additional positions; none of 

the requests was granted. Id.
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judges could effectively disregard the number of positions for 

assistant district attorneys set out in statute. Cf. Wis. Stat. 

§ 16.505. District attorneys in the state's largest counties 

already may appoint "temporary counsel" as authorized by the 

department of administration. Wis. Stat. § 978.03(3). Section 

978.045 does not permit an alliance between a district attorney 

and a judge to override statutory limitations on prosecutor 

appointments. 

¶211 Third, if the conditions in subsection (1r) did not 

have to be followed, courts could appoint special prosecutors on 

their own motion for "investigations" of interest to an 

individual judge without any involvement by the local district 

attorney. This would present a significant separation of powers 

issue.

¶212 Fourth, courts could appoint special prosecutors with 

"all the powers of the district attorney," without the 

accountability of any checks on the special prosecutor's 

conduct, except from the appointing court. A special prosecutor 

appointed on the court's own motion would not necessarily be 

overseen by a district attorney. The special prosecutor could 

not be recalled or defeated for reelection, never having been 

elected to the special prosecutor position. The special 

prosecutor could be appointed by a reserve judge who would never 

again face the electorate.

¶213 All these concerns are blunted if the court adheres to 

the conditions in subsection (1r). None of these concerns is 

addressed when the conditions are disregarded.
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¶214 In State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 

641 N.W.2d 451, the court of appeals appeared to reach a 

different conclusion. The court of appeals noted that Wis. 

Stat. § 978.045 "authorizes two distinct ways in which a court

may appoint a special prosecutor." Id., ¶8. The court said:

Carlson directs us to the sentence in the statute that 

authorizes the court's appointment of a special 

prosecutor when it is at the request of a district 

attorney. . . . We agree with Carlson that the part 

of the statute that he relies upon for his argument 

lists, and arguably restricts, the circumstances in 

which a court may appoint a special prosecutor.[4] 

However, any restriction, if one exists, is triggered 

only when the appointment is made at the request of a 

district attorney, not when the appointment is made 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 appoint an attorney as a 

special prosecutor at the request of a district 

attorney to assist the district attorney in the 

prosecution of persons charged with a crime, in grand 

jury or John Doe proceedings or in investigations." 

Wis. Stat. § 978.045(1r)[(1999-2000)].

Id., ¶8 n.4. The quoted statutory sentence has been broadened 

to include "proceedings under ch. 980." Wis. Stat.

§ 978.045(1r).

¶216 The Carlson court's analysis is correct except for the 

language "not when the appointment is made by a court on its own 

motion." The court of appeals' interpretation of the "on its 

own motion" language is mistaken because it reads out of 

subsection (1r) the prerequisite that "[T]he judge may appoint 

an attorney as a special prosecutor if any" of the nine 
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conditions exists. (Emphasis added.) The court of appeals' 

interpretation would provide courts, including reserve judges, 

free rein to make special prosecutor appointments. In my view, 

such an interpretation contradicts the plain language and the 

obvious policy embedded in the statute.

¶217 The statutory history of the section supports this 

interpretation. As noted previously, Wis. Stat. § 978.045 was 

created by 1989 Wis. Act 117, § 5. The first version of the 

section read in part as follows:

(1) If there is no district attorney for the 

county, if the district attorney is absent from the 

county, has acted as attorney for a party accused in 

relation to the matter of which the accused stands 

charged and for which he or she is to be tried, is 

near of kin to the party to be tried on a criminal 

charge, is unable to attend to his or her duties or is 

serving in the armed forces of the United States, or 

if the district attorney stands charged with a crime 

and the governor has not acted under s. 17.11, any 

judge of a court of record, by an order entered in the 

record stating the cause therefor, may appoint some

suitable attorney to perform, for the time being, or 

for the trial of the accused person, the duties of the 

district attorney, and the attorney so appointed shall 

have all the powers of the district attorney while so 

acting.

¶218 This original subsection based judicial appointment of 

a special prosecutor on the existence of one or more specified 

conditions. The statutory history of § 978.045 shows that this 

qualification has been carried forward consistently in each 

revision of the statute.

¶219 It should also be noted that the original section 

listed six conditions permitting judicial appointment. Since 

1989 three more conditions have been added. Why would the 
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legislature keep adding new justifications for the appointment 

of a special prosecutor if the appointing court could simply 

enter an order in the record "stating the cause" for the 

appointment? A court must state the cause for an appointment in 

its order so that the department of administration is informed 

why it must pay for compensation.

¶220 Section 978.045(1g) reads in part: "A district 

attorney requesting the appointment of a special prosecutor, or 

a court if the court is appointing a special prosecutor on its 

own motion, shall notify the department of administration, on a 

form provided by that department, of the district attorney's or 

the court's inability to obtain assistance from another 

prosecutorial unit or from an assistant attorney general." 

(Emphasis added.) In fact, the principal form used by courts 

when they appoint a special prosecutor is CR-210, developed by 

the Wisconsin Court Records Management Committee of the 

Wisconsin Supreme Court. See Exhibit 1. The Department of 

Administration approves this form.

¶221 Form CR-210 tracks Wis. Stat. § 978.045(1r). At the 

bottom, Form CR-210 states: "This form shall not be modified. 

It may be supplemented by additional material." (Emphasis 

added.)

¶222 Five district attorneys asked Judge Kluka to appoint a 

special prosecutor. They asked her to appoint Francis Schmitz. 

They explained the reasoning for the appointment of a special 

prosecutor. They advised her how to justify the appointment of 
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a special prosecutor. They even explained the amount that 

Attorney Schmitz would accept as compensation.

¶223 Two days later Judge Kluka made the requested 

appointment of Francis Schmitz. The appointment order was 

titled "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978." 

The order disregarded CR-210 and created a new document 

following the analysis in the district attorneys' letter. It 

twice cited the letter and even repeated the unusual citation of 

State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), and 

the mis-citation of State v. Carlson in the letter.

¶224 Judge Kluka's order stated:

I make this appointment in light of the facts and 

circumstances set forth in the August 21, 2013 letter 

submitted by the District Attorneys for the counties 

of Columbia, Dane, Dodge, Iowa and Milwaukee. I make 

this appointment under my authority as expressed in 

State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 

N.W.2d 562 [sic]. I find that a John Doe run by five 

different local prosecutors, each with a partial 

responsibility for what is and ought to be one overall 

investigation and prosecution, is markedly inefficient 

and ineffective. Consequently, I also make this 

appointment as part of my inherent authority under 

State v. Cummings, 199 Wis. 2d 721, 735, 546 

N.W.2d 406, 411 (1996).

¶225 Inasmuch as Judge Kluka appointed a special prosecutor 

for each of five counties two days after receiving a joint 

letter signed by the district attorney in each of the five 

counties, and inasmuch as the judge appointed the very person 

the district attorneys recommended to be special prosecutor and 

authorized precisely the amount of compensation the district 

attorneys said their nominee would accept, and inasmuch as the 

judge twice cited the letter of request from the district 
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attorneys in her order, followed the letter's legal analysis, 

utilized the cases contained in the letter, and even repeated a 

mis-citation of a case in the letter, it is simply not possible 

to contend that the court was acting on its own motion. Judge 

Kluka did not check personally to see whether any other 

prosecutorial units could assist in the John Doe. Instead, she 

accepted as fact and law everything the district attorneys 

presented to her. Thus, even under the half-correct decision in 

Carlson, the special prosecutor appointment violated the 

appointment statute if it did not satisfy one of the nine 

"conditions" in subsection (1r).

¶226 Judge Kluka made a gesture to comply with the statute. 

Her order stated: "The Attorney General and the District 

Attorneys . . . all note that their individual status as 

partisan elected prosecutors gives rise to the potential for the 

appearance of impropriety. I find that the Special Prosecutor 

will eliminate any appearance of impropriety."

¶227 This "finding" is plainly insufficient. The Milwaukee 

County District Attorney's Office had been investigating [——————

————————————] since August 10, 2012, the day it petitioned for 

the second John Doe, without concern for the "appearance of 

impropriety." It obviously had been investigating [——————————] 

even longer in light of the materials presented in the 

affidavits supporting the petition for the John Doe and the 

search warrants and subpoenas requested in 2012. This is 

markedly different from the Department of Justice, which in 2013 

[—————————————————————————————————————————————————].
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¶228 In any event, "the appearance of impropriety" is not 

the same as "a conflict of interest" as set out in Wis. Stat. 

§ 978.045(1r)(h). If this potential "appearance" were deemed a 

conflict of interest, the five district attorneys and their 

staffs should have withdrawn from the case. They did not.

¶229 Thus, Judge Kluka's order failed to satisfy any of the 

nine conditions stated in subsection (1r). That is why the 

judge disregarded CR-210 and submitted a different order.

¶230 That also is why the order attempts to sever the 

relationship between the district attorneys and the court and to 

claim that the judge was acting on her own motion. The problem 

is twofold, beyond the implausibility of the claim. A court 

acting on its own motion also must satisfy one or more of the 

conditions in subsection (1r) if the judge is acting under Wis. 

Stat. § 978.045. The court simply cannot read out these 

conditions of the statute. Moreover, the statute itself links 

district attorneys and the court's appointment of special 

prosecutors for John Does. See also Wis. Stat. § 968.26.

¶231 The judge's second gambit to support the appointment 

of the special prosecutor was to invoke "inherent authority" 

under Cummings, 199 Wis. 2d at 735. This theory is completely 

at odds with the title of the order: "APPOINTMENT OF SPECIAL 

PROSECUTOR UNDER CHAPTER 978." Appointments made under the 

"inherent authority" of the court, if such authority exists in 

this matter, do not require payment by the Department of 

Administration because they are not made in conformity with 

Chapter 978.
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¶232 In my view, the Cummings case does not recognize 

"inherent authority" to appoint a special prosecutor, especially 

in a John Doe matter. In Cummings, the court stated the 

relevant issues as follows: "(1) does a John Doe judge have the 

power to issue a search warrant; (2) does a John Doe judge have 

the power to seal a search warrant . . . ." Cummings, 199 

Wis. 2d at 729. The court then observed:

Next, defendant asserts that a John Doe judge 

does not have the authority to seal a search warrant.

It is true that there is no statutory authority in 

Wisconsin granting judges this ability. However, a 

John Doe judge has been granted jurisdiction, the 

legal right to exercise its authority, pursuant to 

Wis. Stat. § [968.26]. A grant of jurisdiction by its 

very nature includes those powers necessary to fulfill 

the jurisdictional mandate.

Id. at 735-36. "The ability to seal a search warrant is exactly 

that type of power which a John Doe judge needs to fulfill the 

above jurisdictional mandate." Id. at 736-37.

¶233 The same cannot be said about the "inherent authority" 

to appoint a special prosecutor for a John Doe proceeding.

¶234 Judicial power to appoint a John Doe special 

prosecutor is governed by statute, in the same way that John Doe 

proceedings themselves have always been governed 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 conditions for the appointment of a special 

prosecutor paid for by the state, and those conditions have not 

been satisfied here.
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¶236 The other statute is the John Doe statute, Wis. Stat. 

§ 968.26. This statute reads in part:

(1) If a district attorney requests a judge to 

convene a proceeding to determine whether a crime has 

been committed in the court's jurisdiction, the judge 

shall convene a proceeding described under sub. (3) 

and shall subpoena and examine any witnesses the 

district attorney identifies.

. . . .

(am) . . . [I]f a person who is not a district 

attorney complains to a judge that he or she has 

reason to believe that a crime has been committed

within the judge's jurisdiction, the judge shall refer 

the complaint to the district attorney . . . .

(b) . . . [T]he district attorney [then] shall, 

within 90 days of receiving the referral, issue 

charges or refuse to issue charges. If the district 

attorney refuses to issue charges . . . [t]he judge 

shall convene a proceeding . . . if he or she 

determines that a proceeding is necessary to determine 

if a crime has been committed. . . .

(c) In [such] a proceeding . . . the judge shall 

subpoena and examine under oath the complainant and 

any witnesses that the judge determines to be 

necessary and appropriate to ascertain whether a crime 

has been committed and by whom committed. The judge 

shall consider the credibility of testimony in support 

of and opposed to the person's complaint.

(d) . . . [T]he judge may issue a criminal 

complaint if the judge finds sufficient credible 

evidence to warrant a prosecution of the 

complaint. . . .

¶237 This statute suggests that a judge has authority to 

proceed with a John Doe and, perhaps eventually, appoint a 

special prosecutor (but not under Chapter 978) if "the district 

attorney refuses to issue charges . . . ." Whatever the statute 
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implies, it is inapplicable in this case because of the 

proactive involvement of the district attorneys.

¶238 The Cummings case notes that "a John Doe judge does 

not have the statutory powers of a court. . . . This 

conclusion is indubitably correct. . . . [A] John Doe 

judge . . . enjoys those powers conferred to all judges by 

statute." Cummings, 199 Wis. 2d at 738.

¶239 Judicial power to appoint a special prosecutor is 

governed by statute. If "inherent authority" were permitted to 

trump the applicable statutes governing John Doe appointments, 

the restrictions in these statutes would be rendered 

meaningless. This court cannot permit that to happen. Cf.

State v. Henley, 2010 WI 97, ¶76, 328 Wis. 2d 544, 787 

N.W.2d 350. Judge Kluka's appointment of the special prosecutor 

was invalid.

V

¶240 The second issue for discussion is the validity of the 

search warrants and subpoenas sought by the special prosecutor 

on or about October 1, 2013. As noted above, the John Doe judge 

approved extremely broad search warrants for five individuals 

and at least 31 very broad subpoenas.

¶241 Motions to quash some of the subpoenas were filed on 

October 17 and October 25, 2013. On October 29, Judge Kluka 

recused herself from the entire proceeding, citing an 

unspecified conflict. Thereafter, the John Doe was reassigned 

to Reserve Judge Gregory Peterson of Eau Claire, who previously 

served as a member of the Wisconsin Court of Appeals.
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¶242 Following various writ applications in the court of 

appeals and petitions in two circuit courts, the new John Doe 

judge granted the motions to quash the subpoenas and to return 

property seized under the search warrants. The judge's decision 

was issued on January 10, 2014. This court must determine 

whether Judge Peterson's decision should be affirmed or 

reversed.

¶243 Judge Peterson's decision is grounded in his 

interpretation of Wisconsin election law as affected by the 

First Amendment. He noted specifically that the "subpoenas 

reach into the areas of First Amendment freedom of speech and 

freedom of association. As a result, I must apply a standard of 

exacting scrutiny and, in interpreting statutes, give the 

benefit of any doubt to protecting speech and association."

¶244 The judge wrote:

I am granting the motions to quash and ordering 

return of any property seized as a result of the 

subpoenas. I conclude the subpoenas do not show 

probable cause that the moving parties committed any 

violations of the campaign finance laws. I am 

persuaded the statutes only prohibit coordination by 

candidates and independent organizations for a 

political purpose, and political purpose, with one 

minor exception not relevant here . . . requires 

express advocacy. There is no evidence of express 

advocacy.

¶245 Judge Peterson then wrote that "The subpoenaed parties 

raise other issues in their briefs, some quite compellingly. 

However, given the above decision, it is not necessary to 

address those issues." This writing will address some of the 
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issues related to the search warrants and subpoenas as Judge 

Peterson's decision can be affirmed on additional grounds.

¶246 The Fourth Amendment to the United States Constitution 

reads as follows:

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and 

the persons or things to be seized.

The equivalent provision in the Wisconsin Constitution is found 

in Article I, Section 11.8

¶247 These constitutional provisions are implemented in 

Wisconsin by several statutes, including Wis. Stat. §§ 968.12 

(Search warrant), 968.13 (Search warrant: property subject to 

seizure), 968.14 (Use of force), 968.15 (Search warrants; when 

executable), 968.16 (Detention and Search of persons on 

premises), 968.17 (Return of search warrant), 968.18 (Receipt 

for seized property), 968.19 (Custody of property seized), 

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 intercept communications), 

968.29 (Authorization for disclosure and use of intercepted 

wire, electronic or oral communications), 968.30 (Procedure for 

interception of wire, electronic or oral communications), and 

 8 The Supreme Court has incorporated the Fourth Amendment 

into the Fourteenth Amendment so that it applies to the states. 

See Ker v. California, 374 U.S. 23, 33 (1963).
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968.375 (Subpoenas and warrants for records or communications of 

customers of an electronic communication service or remote 

computing service provider). Nestled among these search warrant 

statutes is Wis. Stat. § 968.135, which deals with "Subpoena for 

documents."

¶248 Judicial interpretation of the Fourth Amendment can 

narrow application of the Wisconsin search warrant statutes. 

The statutes, in turn, may provide limitations on warrants that 

are not required by the Fourth Amendment.

¶249 Questions about the search warrants and subpoenas 

arise here in the context of a John Doe proceeding. The nature 

of such a proceeding must be understood.

¶250 The John Doe statute, as amended in 2009, 2009 Wis. 

Act 24, reads in part as follows:

(1) If a district attorney requests a judge to 

convene a proceeding to determine whether a crime has 

been committed in the court's jurisdiction, the judge 

shall convene a proceeding described under sub. (3) 

and shall subpoena and examine any witnesses the 

district attorney identifies.

. . . .

(3) The extent to which a judge may proceed in 

an examination under sub. (1) or (2) is within the 

judge's discretion. The examination may be adjourned 

and may be secret. . . .

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

¶251 In Cummings, this court held that "a John Doe judge 

may issue and seal a search warrant under appropriate 

circumstances." Cummings, 199 Wis. 2d at 730. The court added: 

"The John Doe statute need not specifically mention the issuance 
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of search warrants for a John Doe judge to have such power." 

Id. at 734-35. The court said:

[S]tatutes should be interpreted in a manner which 

supports their underlying purpose. This court has 

repeatedly held that the John Doe proceeding was 

designed as an investigatory tool to be used as an 

"inquest for the discovery of crime." Washington, 83 

Wis. 2d at 822. Denying John Doe judges the ability 

to issue search warrants would seriously reduce the 

investigatory power of the John Doe proceeding.

Id. at 735 (citations omitted).

¶252 The fact that a John Doe judge may issue search 

warrants and subpoenas for documents does not mean that the 

Fourth Amendment has no application in a John Doe proceeding. 

On the contrary, special vigilance on the part of a John Doe 

judge may be required. 

¶253 The documents initiating a John Doe investigation 

"need not name a particular accused; nor need it set forth facts 

sufficient to show that a crime has probably been committed. 

The John Doe is, at its inception, not so much a procedure for 

the determination of probable cause as it is an inquest for the 

discovery of crime . . . ." Washington, 83 Wis. 2d at 822. 

Because the threshold for commencing a John Doe investigation is 

relatively low, a John Doe judge is responsible for limiting its 

scope to prevent the investigation from getting out of hand. 

This is why "The John Doe investigation is essentially limited 

to the subject matter of the complaint upon which the John Doe 

is commenced. The John Doe judge has no authority to ferret out 

crime wherever he or she thinks it might exist." Id. Likewise,

a district attorney's use of a John Doe is limited.
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¶254 This limitation on the scope of the John Doe is 

particularly relevant to the scope of search warrants and 

subpoenas. In Custodian of Records v. State, 2004 WI 65, ¶34, 

272 Wis. 2d 208, 680 N.W.2d 792, a John Doe case, this court 

observed:

[D]oes the issuance of a subpoena in a John Doe 

proceeding, the sole purpose of such proceeding being 

to investigate alleged criminal activity, have the 

potential to affect Fourth Amendment rights? The 

issue of whether the subpoena is overbroad and 

oppressive, and thus unreasonable, was raised by [the 

head of the Legislative Technology Services Bureau 

(LTSB)]. This is a Fourth Amendment concern. Hale v. 

Henkel, 201 U.S. 43, 71 (1906) (noting that a subpoena 

duces tecum may implicate Fourth Amendment rights).

¶255 The court ultimately concluded, following the two-step 

test set out in Katz v. United States, 389 U.S. 347 (1967), that 

there was a reasonable expectation of privacy in the data stored 

on backup tapes in the LTSB and thus the subpoena was overbroad. 

Id., ¶43. The court added:

When we examine whether the Fourth Amendment was 

violated, we determine whether the government 

intrusion was reasonable. Overly broad subpoenas 

typically are held unreasonable in that their lack of 

specificity allows the government to go on an 

indiscriminate fishing expedition, similar to that 

provided by a general warrant. Marron v. United 

States, 275 U.S. 192, 196 (1927); Boyd [v. United 

States, 116 U.S. 616, 625-26 (1886)]. As the United 

States Supreme Court has explained, a subpoena is 

"equally [as] indefensible as a search warrant would 

be if couched in similar [general] terms. Hale, 201 

U.S. at 77.

Custodian of Records, 272 Wis. 2d 208, ¶50.
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¶256 This case involves multiple unnamed parties but it 

also involves many, many additional organizations and 

individuals. One unnamed party writes of its subpoena: 

The scope of the subpoenas required——explicitly, 

implicitly, or in effect——all material of any kind 

that related in any way to the identified elections 

and to the identified individuals or entities. Other 

than naming organizations and individuals, there was 

no attempt to limit or to filter the material 

subpoenaed or to distinguish between potentially 

regulated speech and unregulated speech.

¶257 Another unnamed party declared in its brief:

At no point does the subpoena seek to differentiate 

materials and documents which relate to the subject of 

the John Doe, to wit: the recall elections of 2011 and 

2012, from other activities in which the movants were 

engaged during that period. The broad sweeping 

request demands production of all the specific items 

in the possession of the movant organizations and 

their representatives.

¶258 The subpoenas issued on or about October 1, 2013, are 

actually narrower than the search warrants issued in 2012, as 

described in the quoted material in ¶192 above.

¶259 To illustrate the breadth of the search warrants and 

subpoenas, the special prosecutor now has possession of every 

private e-mail sent by [———————————] or received by [——————————] 

between April 11, 2009, and July 31, 2012, together with other 

information demanded from certain internet service providers. 

The special prosecutor has [————————————] private e-mails for 

more than 20 months [——————————————————————————————————————————] 

and 19 months [——————————————————————————————————]——as a result 

of this John Doe investigation. This does not include 
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information prosecutors obtained from government e-mail accounts 

that are alluded to in the record.

¶260 The substance of the captured e-mails inevitably 

includes communications with family members and personal 

friends, public officials and members of [————————] staff, party 

leaders and political strategists, fundraisers, contributors, 

and other allies, lawyers, health care providers, and other 

professional acquaintances. It is inconceivable that a public 

official [————————] would not subjectively expect a reasonable 

degree of privacy in his private e-mail accounts.9

¶261 The issue before us involves much more than [—————————

—————] and the many other individuals and organizations directly 

affected by the search warrants and subpoenas. The issue before 

us is central to our time. How much information about our 

people is government entitled to obtain——without people's 

consent and perhaps without their knowledge?

¶262 The precedent set by this case has the potential to 

affect the privacy rights of millions of Wisconsin citizens. 

"Among online adults, 92% use email, with 61% using it on an 

average day."10 Cell phones and smart phones are, of course, 

 9 Cf. United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 

2010) ("[A] subscriber enjoys a reasonable expectation of 

privacy in the contents of emails 'that are stored with, or sent 

or received through, a commercial ISP.'") (citation omitted).

10 See Kristen Purcell, Search and Email Still Top 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-stilltop-the-list-of-most-popular-online-activities. 
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ubiquitous in our society, but countless numbers of people 

communicate by e-mail and texting. The ability of government to 

capture——without notice——the substance of our non-aural 

communications is not dissimilar to government wiretaps that 

record the substance of telephone conversations. The only 

difference is that wiretaps disclose the content of telephone 

conversations in real time.11

¶263 Concerns about privacy are especially critical when 

people engage in aspects of speech and association during 

political campaigns, "an area of the most fundamental First 

Amendment activities." Buckley v. Valeo, 424 U.S. 1, 14 (1976). 

The Supreme Court provided guidance in Zurcher v. Stanford 

Daily, 436 U.S. 547, 564 (1978), when it said:

[I]n issuing warrants and determining the 

reasonableness of a search, state and federal 

magistrates should be aware that "unrestricted power 

of search and seizure could also be an instrument for 

stifling liberty of expression." Marcus v. Search 

Warrant, 367 U.S. 717, 729 (1961). Where the 

materials sought to be seized may be protected by the 

First Amendment, the requirements of the Fourth 

Amendment must be applied with "scrupulous 

exactitude." Stanford v. Texas, 379 U.S. [476, 485 

 11 Wisconsin Stat. § 968.28 limits the interception of 

electronic communications without a court order under Wis. Stat. 

§ 968.30. Court orders for interception may be obtained only 

for specified offenses ranging from homicide, felony murder, and 

kidnapping to soliciting a child for prostitution, Wis. Stat. 

§ 968.28, and such orders may not exceed 30 days in duration 

without specific judicial extension. Wis. Stat. § 968.30(5). 

These statutory limitations and protections for interception do 

not appear to apply when search warrants are issued for past 

electronic communications that must be retrieved from electronic 

storage.
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(1965)]. A seizure reasonable as to one type of 

material in one setting may be unreasonable in a 

different setting or with respect to another kind of 

material." Roaden v. Kentucky, 413 U.S. 496, 501 

(1973). Hence, in Stanford v. Texas, the Court 

invalidated a warrant authorizing the search of a 

private home for all books, records, and other 

materials relating to the Communist Party, on the 

ground that whether or not the warrant would have been 

sufficient in other contexts, it authorized the 

searchers to rummage among and make judgments about 

books and papers and was the functional equivalent of 

a general warrant, one of the principal targets of the 

Fourth Amendment. Where presumptively protected 

materials are sought to be seized, the warrant 

requirement should be administered to leave as little 

as possible to the discretion or whim of the officer 

in the field.

¶264 The violation of Fourth Amendment rights requires 

special attention when it has a chilling effect on First 

Amendment freedoms. Cf. NAACP v. Alabama, 357 U.S. 449 (1958).

¶265 The search warrants and subpoenas in this case are so 

broad and so extensive that they make the fruits of the 

legendary Watergate break-in look insignificant by comparison.12 

After all, the special prosecutor has access to thousands and 

 12 On Memorial Day weekend in 1972, an intelligence 

gathering team from Richard Nixon's Committee to ReElect the 

President broke into the Democratic National Committee's (DNC) 

headquarters at the Watergate complex in Washington, D.C. The 

operatives wiretapped the telephones of the chairman of the DNC 

and the executive director of the Association of State 

Democratic Chairmen. A member of the team also photographed 

certain documents. One phone tap did not work and 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 was forced to resign, in part for attempting to 

cover up a burglary to gain political intelligence that he did 

not personally authorize.
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thousands of electronic communications about the 2010 election, 

Act 10, the 2011-13 state budget, other legislation, all the 

recall elections and the strategies and fundraising efforts 

employed in them, [——————————], litigation, and the thenupcoming 2012 general election. As the substance of this John 

Doe leaks out, as it already has, the search warrants and 

subpoenas have an eerie similarity to SLAPP suits in a civil 

context.13 SLAPP suits have the effect, whether intended or not, 

to cost defendants tremendous amounts of money, to extract 

privileged information from them, and to cause the defendants 

and others to withdraw from the political process out of fear of 

harassment.

¶266 The special prosecutor insists that he had probable 

cause for all his investigative efforts. This is sharply 

disputed. In any event, probable cause for a search warrant may 

be wholly devoid of probable cause that the recipient of the 

search warrant or subpoena or even the subject of the search 

warrant or subpoena has committed any crime. Rather, the 

supposed probable cause is that evidence that will aid in the 

conviction of some crime will be found in the place to be 

searched, particularly if the items to be seized include 

 13 "SLAPP is an acronym for Strategic Lawsuit Against Public 

Participation. Vultaggio v. Yasko, 215 Wis. 2d 326, 359, 572 

N.W.2d 450 (1998) (Bradley, J., dissenting); Briggs v. Eden 

Council, 969 P.2d 564, 565 n.1 (Cal. 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.
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everything found at that place——here, the e-mail accounts of 

people who have been targeted.

¶267 This sort of probable cause must be weighed against 

the privacy being invaded by the search warrants and subpoenas. 

The special prosecutor has not been targeting terrorists or 

mobsters who impose an imminent danger to society. Covering up 

the breathtaking extent of the John Doe investigation through 

secrecy orders is highly problematic and cannot last.14

¶268 I conclude the following:

1. The search warrants and subpoenas issued on or 

about October 1, 2013, are invalid because they were presented 

by a special prosecutor who had none of the powers of a district 

attorney because his appointment was invalid.

2. The search warrants and subpoenas issued on or 

about October 1, 2013, were unconstitutionally overbroad because 

they covered a time period before recall elections were even 

contemplated, thereby exceeding the subject matter of the 

 14 The precise scope of a permissible secrecy order 

will . . . vary from proceeding to proceeding. 

However, as we observed in [State v. O'Connor, 77 

Wis. 2d 261, 252 N.W.2d 671 (1977)], "[s]ecrecy of 

John Doe proceedings and the records thereof is not 

maintained for its own sake." Id. at 283. The policy 

underlying secrecy is directed to promoting the 

effectiveness of the investigation. Id. at 286. 

Therefore, any secrecy order "should be drawn as 

narrowly as is reasonably commensurate with its 

purposes." 

State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶61, 

260 Wis. 2d 653, 688-89, 660 N.W.2d 260.
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investigation; included all periods of exemption within the time 

period——246 days——thereby permitting secret investigation of 

lawful First Amendment activities; lacked the level of 

particularity required as to those things that might lawfully be 

seized; and improperly invaded the privacy of persons who were 

not suspects by seeking information virtually without 

limitation.

3. The search warrants and subpoenas issued in 

September and December 2012 were unconstitutionally overbroad, 

for the reasons stated in point 2, but especially because they 

dated back more than 21 months before recalls were contemplated, 

a period unrelated to the recall elections in 2011 and 2012, the 

purported subject of the John Doe.

¶269 Consequently, I would affirm the decision of Judge 

Peterson to quash the subpoenas and return seized property and 

expand his ruling to cover the search warrants and subpoenas 

issued in September and December of 2012. 

VI

¶270 Chapter 11 of the Wisconsin Statutes is the source of 

most Wisconsin statutory law on the regulation of campaign 

finance. Much of the chapter was created in 1974, Chapter 334, 

Laws of 1973, in the wake of the Watergate scandal. Various 

provisions have been revised over the years, but the 2011-12 

version of the statutes contains a number of provisions that are 

suspect or unconstitutional. These will be discussed below.

A
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¶271 Section 11.01 sets out the definitions used in Chapter 

11. Subsection (16) defines "political purpose," which Judge 

Peterson and the majority opinion deem critical to the 

interpretation and enforcement of the chapter.

¶272 Section 11.01(16) reads in part as follows:

(16) An act is for "political purposes" when it 

is done for the purpose of influencing the election or 

nomination for election of any individual to state or 

local office, for the purpose of influencing the 

recall from or retention in office of an individual 

holding a state or local office, . . . or for the 

purpose of influencing a particular vote at a 

referendum. In the case of a candidate, or a committee 

or group which is organized primarily for the purpose 

of influencing the election or nomination for election 

of any individual to state or local office, for the 

purpose of influencing the recall from or retention in 

office of an individual holding a state or local 

office, or for the purpose of influencing a particular 

vote at a referendum, all administrative and overhead 

expenses for the maintenance of an office or staff 

which are used principally for any such purpose are 

deemed to be for a political purpose. 

(a) Acts which are for "political purposes" 

include but are not limited to: 

1. The making of a communication which expressly 

advocates the election, defeat, recall or retention of 

a clearly identified candidate or a particular vote at 

a referendum. 

2. The conduct of or attempting to influence an 

endorsement or nomination to be made at a convention 

of political party members or supporters concerning, 

in whole or in part, any campaign for state or local 

office. 

(b) A "political purpose" does not include 

expenditures made for the purpose of supporting or 

defending a person who is being investigated for, 

charged with or convicted of a criminal violation of 

state or federal law, or an agent or dependent of such 

a person.
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¶273 "Political purpose" is a very imprecise term, 

especially when it is defined by phrases such as "influencing

the recall from or retention in office of an individual." 

(Emphasis added.) What does "influencing" mean?

¶274 Paragraph (a) provides that "Acts which are for 

'political purposes' include but are not limited to: 1. The 

making of a communication which expressly advocates the 

election, defeat, recall or retention of a clearly identified 

candidate . . . ." (Emphasis added.) Plainly, the statute 

seeks to reach "acts" beyond express advocacy that "influence" 

elections. Consequently, there are no bright lines in the 

subsection, as drafted, leaving it so vague that it has the 

potential of chilling constitutionally permissible activity that 

permits no regulation.

¶275 The definition of "political purpose" has been 

controversial for years. The original definition, dating back 

to 1974, read, in part: "an act is for 'political purposes' 

when, by its nature, intent or manner it directly or indirectly 

influences or tends to influence voting at any election." 

¶276 Attorney General Bronson La Follette was asked to 

address this definition in an opinion. The Attorney General 

wrote:

This section . . . evidences a legislative intent 

to restrict and regulate a broad scope of political 

activity, including that which may not be directly 

related to the electoral process. This sweeping 

effort to regulate First Amendment activity, in light 

of Buckley, may be constitutionally overbroad unless 

subject to narrow interpretation and application.
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. . . .

The Court adopted the standard of "express advocacy" 

of the election or defeat of a particular candidate as 

an acceptably narrow definition of activity subject to 

regulation.

. . . .

I am of the opinion that the "express" advocacy 

standard should be applied by the [State Elections] 

Board to all phases of political activity regulated 

under ch. 11.

65 Wis. Op. Att'y Gen. 145, 151-52 (1976).

¶277 The Elections Board ran into trouble in 1999 in 

Elections Board v. Wisconsin Manufacturers & Commerce, 227 

Wis. 2d 650, 597 N.W.2d 721 (1999), in a dispute about express 

advocacy. The issue appeared again in Wisconsin Prosperity 

Network v. Myse, 2012 WI 27, 339 Wis. 2d 243, 810 N.W.2d 356.

¶278 When the government enacts criminal penalties to 

regulate First Amendment activities that do not constitute 

express advocacy, it is standing on perilous ground.

B

¶279 The affidavit supporting the commencement of the John 

Doe twice cited Wis. Stat. § 11.26, which is the statute 

entitled "Limitations on contributions." This statute limits 

individual contributions to the campaign committee of a 

candidate for 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 contributions 

from a committee other than a political party or legislative 

campaign committee to the committee of a candidate for governor 

to 4% of the value of the disbursement level in the schedule 
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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 other than a party committee may contribute only 

$1,000 to the committee of a candidate for state senator. Wis. 

Stat. § 11.26(2)(b).

¶280 The individual contribution limits in the statute for 

candidates for governor, lieutenant governor, and state senator 

were exactly the same in 2011-2012 as they were in 1975. See

Wis. Stat. § 11.26(1)(a) and (b) (1975-76). If the limits on 

individual contributions to the committees of these candidates 

had kept pace with the buying power of our currency, the 

contribution limits at the start of 2011 would have had to be 

4.42 times higher——i.e., $44,201.67 for governor. Over the 

years the limit on contributions from a committee to the 

committee of a candidate for state senator increased from $500 

in 1975 to $1,000 in 2011, provided the candidate in 1975 had no 

primary. Wis. Stat. §§ 11.26(2)(b) and 11.31(1)(e). If the 

1975 candidate had a primary, the maximum committee contribution 

for the election was $800.

¶281 Individual contribution limits have been consistently 

upheld beginning with Buckley, 424 U.S. at 23-35. Buckley

acknowledged, however, that given "the important role of 

contributions in financing political campaigns, contribution 

restrictions could have a severe impact on political dialogue if 

the limitations prevent candidates and political committees from 

amassing resources necessary for effective advocacy." Id. at 

21. Inasmuch as static contribution limits render contributions 
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today worth only 25 percent of their value 35 years ago, many 

candidates are forced to look for support from expenditures 

outside their own committees.

C

¶282 Subsection (9) of Wis. Stat. § 11.26 is critically 

important in relation to the contribution limits. It provides:

(9)(a) No individual who is a candidate for state 

or local office may receive and accept more than 65 

percent of the value of the total disbursement level 

determined under s. 11.31 for the office for which he 

or she is a candidate during any primary and election 

campaign combined from all committees subject to a 

filing requirement, including political party and 

legislative campaign committees. 

(b) No individual who is a candidate for state or 

local office may receive and accept more than 45 

percent of the value of the total disbursement level 

determined under s. 11.31 for the office for which he 

or she is a candidate during any primary and election 

campaign combined from all committees other than 

political party and legislative campaign committees 

subject to a filing requirement.

¶283 The practical effect of subsection (9) is that all

political party committees may contribute no more than $700,830 

directly to the campaign committee of a candidate for governor, 

nor more than $22,425 directly to the committee of a candidate 

for state senator, except for exempt contributions under Wis. 

Stat. § 11.26(13m). However, in all actual elections, including 

recall elections, every dollar received from a non-party 

committee reduces the amount that the candidate may receive from 

a party committee.

¶284 Political action committees collectively may 

contribute no more to a candidate for governor than 45 percent 
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of the schedule in Wis. Stat. § 11.31, namely, $486,090, or to a 

candidate for state senator, no more than $15,525, except for 

exempt contributions under Wis. Stat. § 11.26(13m). The effect 

of this law is obvious. Political party committees singularly 

or collectively and political action committees collectively are 

never permitted——at the same time——to give the maximum 

contributions allowed by law for regular election expenses. In 

fact, some political action committees may be precluded 

altogether from making a direct contribution to the committee of 

a candidate for governor or a candidate for state senator. 

¶285 To illustrate, all non-party committees may contribute 

only $15,525 to a state senate candidate. Thus, only 15 

political action committees may make the maximum contribution of 

$1,000 to the committee of a candidate for state senator. The 

sixteenth committee is limited to $525. The seventeenth 

committee and all other such committees cannot contribute at 

all. The contributions of these non-party committees must be 

reduced if party committees give more than $6,900.

¶286 Subsection (9) was challenged in the Wisconsin Supreme 

Court in Gard v. Wisconsin State Elections Board, 156 

Wis. 2d 28, 456 N.W.2d 809 (1990). John Gard, running in a 1987 

special election to fill a vacancy in the Assembly, won a hotly 

contested primary and a close general election. In the process, 

he received $7,607.32 more from political party committees than 

the total $11,213 from all committees permitted by subsection 

(9). He was prosecuted by the state elections board. The 
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petitioners argued that Wis. Stat. § 11.26(9)(a) was 

unconstitutional on several grounds.

First, [petitioners] claim that the aggregate limit on 

the amount of money committees may contribute to a 

candidate's campaign violates committee members' first 

amendment rights to political expression because it 

completely bars some committees from making even a 

symbolic expression of support evidenced by a 

contribution once the aggregate limit has been 

reached. Second, they argue that the aggregate limit 

on committee contributions is, in effect, a limit on 

the candidate's ability to spend, which impermissibly 

burdens a candidate's freedom of speech guaranteed by 

the first amendment under Buckley v. Valeo, 424 U.S. 

1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976). Third, they 

assert that the statute impermissibly burdens freedom 

of association also guaranteed by the first amendment 

by encouraging individuals to disassociate themselves 

from committees. Fourth, petitioners argue that the 

statute imposes a greater burden on the first 

amendment rights of committees than it does on the 

first amendment rights of individuals in violation of 

the equal protection clauses of the United States and 

Wisconsin Constitutions. Petitioners also assert that 

the statute imposes a greater burden on the first 

amendment rights of committees who contribute "late"

in a campaign than on committees who contribute 

"early" in a campaign in violation of equal protection 

guarantees.

Id. at 36.

¶287 This court upheld subsection (9) of the 1974 statute, 

holding that the state had a compelling interest, namely, to 

prevent corruption or the appearance of corruption, and that the 

provision was narrowly tailored to accomplish this objective.

¶288 The effect of the Gard decision has been to weaken 

political parties and to encourage non-party committees to 

engage in issue advocacy spending on campaigns, instead of 
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making direct, reportable contributions to candidates. This 

dynamic has been recognized for decades.

¶289 More recently, however, subsection (9) has come under 

significant scrutiny. In September 2014, United States District 

Judge Rudolph Randa entered an order enjoining the GAB from 

enforcing subsection (9). CRG Network v. Barland, 48 F. Supp. 

3d 1191 (E.D. Wis. Sept. 5, 2014). Judge Randa noted that the 

Supreme Court has demonstrated "increasing impatience" with the 

type of "'prophylaxis-upon-prophylaxis' approach" created by 

statutes such as Wis. Stat. § 11.26(9), and that the other 

provisions in place to prohibit unlawful circumvention of the 

base contribution limit rendered subsection (9) unnecessary and 

unconstitutional. Id. at 1195-96. Following the issuance of 

Judge Randa's order, the GAB issued a press release stating it 

would not seek enforcement of subsection (9). Mike B. 

Wittenwyler & Jodi E. Jensen, Decoding the Maze: Wisconsin's 

Campaign Finance Laws, 87 Wis. Law. 22, 25 (Oct. 2014).

D

¶290 Subsection (4) of § 11.26 reads:

No individual may make any contribution or 

contributions to all candidates for state and local 

offices and to any individuals who or committees which 

are subject to a registration requirement under s. 

11.05, including legislative campaign committees and 

committees of a political party, to the extent of more 

than a total of $10,000 in any calendar year.

¶291 Statutes limiting total contributions, as opposed to 

capping contributions to one candidate, were declared 

unconstitutional in McCutcheon v. Federal Election Commission, 
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134 S. Ct. 1434 (2014). In short, Wis. Stat. § 11.26(4) is 

unconstitutional.

¶292 Many people have violated subsection (4), often 

unintentionally, since its enactment. The State has pursued 

some violators criminally. Cf. State v. Gardner, No. 2011CF137, 

Washington Cnty., Wis., Cir. Ct. (Apr. 11, 2011).

¶293 Important for this review is the fact that the 

Government Accountability Board insisted on enforcing Wis. Stat. 

§§ 11.26(4) and 11.26(9) during the recall elections. See

MEMORANDUM from Kevin Kennedy to Interested Persons and 

Committees Involved With Recall Efforts, March 15, 2011. 

Kennedy's memo also sought to limit the exception to 

contribution limits for certain recall expenses. Wis. Stat. 

§ 11.26(13m).

E

¶294 The overall effect of Wisconsin's complicated, 

confusing, outdated, and sometimes unconstitutional campaign 

finance statutes is to compel candidates to depend increasingly 

upon expenditures by 501(c)(4) committees that engage in issue 

advocacy.15

¶295 The special prosecutor concedes that without "the 

authorization and consent of [a] candidate committee," an 

expenditure is independent and constitutionally protected. 

 15 This was especially evident in the 2011 Wisconsin Supreme 

Court election in which both candidates were bound by minimal 

contribution limits and tight spending limits because they 

accepted public funding.
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However, the special prosecutor contends that a committee's 

"coordination" with a candidate committee eliminates many 

constitutional protections, and that "there can never be 

'coordinated' fundraising between a candidate and a truly 

independent third party."

¶296 In view of the above, the pivotal concern with 

application of Chapter 11's campaign finance laws is Wis. Stat. 

§ 11.10(4). This subsection reads:

(4) No candidate may establish more than one 

personal campaign committee. Such committee may have 

subcommittees provided that all subcommittees have the 

same treasurer, who shall be the candidate's campaign 

treasurer. The treasurer shall deposit all funds 

received in the campaign depository account. Any 

committee which is organized or acts with the 

cooperation of or upon consultation with a candidate 

or agent or authorized committee of a candidate, or 

which acts in concert with or at the request or 

suggestion of a candidate or agent or authorized 

committee of a candidate is deemed a subcommittee of 

the candidate's personal campaign committee.

(Emphasis added.)

¶297 In evaluating the meaning of this provision, we must 

understand the definition of "committee" in Wis. Stat. 

§ 11.01(4):

"Committee" or "political committee" means any 

person other than an individual and any combination of 

2 or more persons, permanent or temporary, which makes 

or accepts contributions or makes disbursements, 

whether or not engaged in activities which are 

exclusively political, except that a "committee" does 

not include a political "group" under this chapter.

¶298 Put together, these two provisions are vague and 

absurdly overbroad. Committees include political party 

committees and legislative campaign committees. Committees 
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include campaign committees of a candidate's fellow party 

members. Committees include political action committees of 

every description. The two sections create dire consequences 

for candidates who exercise the most fundamental political 

discourse with committees of the candidate's own party and with 

the candidate's most ardent allies. By fundamental discourse, I 

mean "cooperation," "consultation," "requests" for support, and 

"suggestions."

¶299 Any person who believes that the statute does not 

apply to coordination between a candidate and his state 

political party must understand that the special prosecutor has 

in his possession 39 months of emails from [————————————————————

———————————————————————————————————————————————], obtained by 

secret search warrant. Anyone who believes that the special 

prosecutor was not interested in coordination among the 

Republican candidates in the state senate recalls would be 

mistaken.

¶300 Turning to non-party committees, how does Wis. Stat. 

§ 11.10(4) apply to a candidate who answers a candidate 

questionnaire from a committee, which asks the candidate pointed 

questions on issues, then asks whether the candidate will accept 

an endorsement and campaign contributions? Surely, a nonjudicial candidate is permitted to ask for financial support.

¶301 The "coordination" statute cannot be constitutional as 

written because it makes the candidate who behaves as a 

perfectly normal candidate, meeting with organizations and 

discussing plans, issues, and themes, run the intolerable risk 
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of impairing a committee that does no more than engage in issue 

advocacy. The committee is neutered if it is made a 

subcommittee of the candidate's committee because it cannot 

exceed the candidate's contribution limits. The committee is 

disqualified because it cannot receive and spend corporate 

dollars as a subcommittee of a candidate, and it cannot maintain 

the anonymity of its donors, as permitted by law, if it engages 

in issue advocacy that helps the candidate.

¶302 Under the statute as written, a candidate must 

surrender his First Amendment freedom to communicate if he is to 

prevent criminal liability.

¶303 A more carefully drafted statute might be able to pass 

constitutional muster. But not this statute, in the 

circumstances of this case. And no statute can vest government 

regulators and special prosecutors with broad discretion to 

decide whether First Amendment activities violate the law.

¶304 In my view, Wis. Stat. § 11.01(16) is unconstitutional 

if it is not limited to express advocacy; Wis. Stat. § 11.10(4) 

is unconstitutional as drafted; Wis. Stat. § 11.26(4) is 

unconstitutional; Wis. Stat. § 11.26(9) is unconstitutional; and 

Wis. Stat. § 11.26(13m) must be broadly interpreted under the 

circumstances facing Wisconsin in 2011-2012. As a result, the 

special prosecutor cannot sustain the theories of prosecutorion 

that served as the foundation for his John Doe investigation.

¶305 For the foregoing reasons, I respectfully concur in 

the decision to dismiss the John Doe investigation.
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¶306 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK joins Sections IV and V of this opinion, and 

that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN 

join Section IV of this opinion.
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¶307 ANNETTE KINGSLAND ZIEGLER, J. (concurring). During 

pre-dawn darkness in October 2013, several armed law enforcement 

officers wearing flak jackets, carrying battering rams, and 

using bright floodlights executed secret John Doe search 

warrants in the homes of Wisconsin residents. What was the 

prosecution searching for? The prosecution was in search of 

documents and electronic evidence, including personal computers 

and cell phones, to support alleged violations of Wisconsin's 

campaign finance law. The warrants sought evidence that had 

been around for more than four years. The warrants were 

executed shortly before morning, days after a judge signed them, 

while it was still dark outside. Law enforcement certainly has, 

and should have, a great deal of discretion when it comes to how 

and when a warrant will be executed, but ultimately courts may 

review the reasonableness of that execution.1

¶308 Because these searches were executed in pre-dawn 

darkness, they are essentially what courts and legal 

commentators refer to as a nighttime search.2 Because no 

 1 "'[I]t is generally left to the discretion of the 

executing officers to determine the details of how best to 

proceed with the performance of a search authorized by the 

warrant——subject of course to the general Fourth Amendment 

protection against unreasonable searches and seizures.'" State 

v. Sveum, 2010 WI 92, ¶53, 328 Wis. 2d 369, 787 N.W.2d 317

(alteration added in Sveum) (quoting Dalia v. United States, 441 

U.S. 238, 257 (1979)) (internal quotation marks omitted). 

2 For a more comprehensive discussion of the law regarding 

nighttime searches, see Claudia G. Catalano, Annotation, 

Propriety of Execution of Search Warrants at Nighttime, 41 

A.L.R. 5th 171 (1996).
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Wisconsin law specifically addresses the legality of nighttime 

searches of private homes, under the existing facts of this 

case, these pre-dawn searches could raise questions as to 

whether they would pass constitutional muster. I recognize that 

because no challenge has been made to the execution of the 

warrants, the record is without explanation as to why the search 

warrants were executed as they were. I also recognize that the 

State might have had a legitimate reason for executing the 

search warrants pre-dawn in paramilitary fashion. 

¶309 I join the majority opinion in all three cases. I 

write separately to explain that, even if the search warrants 

were lawfully issued, the execution of them could be subject to 

the reasonableness analysis of the Fourth Amendment to the 

United States Constitution and the Wisconsin Constitution's 

counterpart.3

 A totality of the circumstances analysis could 

include consideration of, among other things, the timing of the 

issuance and execution of the warrants, the manner in which the 

warrants were executed, whether public or officer safety 

concerns justified the manner of execution, and what type of 

evidence was being sought.

I. FUNDAMENTAL PRINCIPLES

 3 "Even if a court determines that a search warrant is 

constitutionally valid, the manner in which the warrant was 

executed remains subject to judicial review." Sveum, 328 

Wis. 2d 369, ¶53 (citing State v. Andrews, 201 Wis. 2d 383, 390, 

549 N.W.2d 210 (1996)).
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¶310 The Fourth Amendment "contain[s] two separate clauses, 

the first protecting the basic right to be free from 

unreasonable searches and seizures and the second requiring that 

warrants be particular and supported by probable cause." Payton 

v. New York, 445 U.S. 573, 584 (1980). The Fourth Amendment's 

second clause provides that "no warrants shall issue, but upon 

probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and the person 

or things to be seized." U.S. Const. amend. IV. With respect 

to the other clause, "[t]he Fourth Amendment to the United 

States Constitution and Article I, Section 11 of the Wisconsin 

Constitution protect '[t]he right of the people to be secure in 

their persons, houses, papers, and effects, against unreasonable 

searches and seizures.'" 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

 4 The Fourth Amendment to the United States Constitution 

provides in full:

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons 

or things to be seized.

Article I, Section 11 of the Wisconsin Constitution states:

The right of the people to be secure in their persons, 

houses, papers, and effects against unreasonable 

searches and seizures shall not be violated; and no 

warrant shall issue but upon probable cause, supported 

by oath or affirmation, and particularly describing 

(continued)
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¶311 "'The touchstone of the Fourth Amendment is 

reasonableness.'" State v. Tullberg, 2014 WI 134, ¶29, 359 

Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S. 

248, 250 (1991)). "'The Fourth Amendment does not proscribe all 

state-initiated searches and seizures; it merely proscribes 

those which are unreasonable.'" Id. (quoting Jimeno, 500 U.S. 

at 250). "Constitutional reasonableness relates not only to the 

grounds for a search or seizure but to the circumstances 

surrounding the search or seizure's execution." State v. 

Henderson, 2001 WI 97, ¶18, 245 Wis. 2d 345, 629 N.W.2d 613

(citing Tennessee v. Garner, 471 U.S. 1, 8 (1985)). "The 

determination of reasonableness is made by reference to the 

particular circumstances of each individual case, and balances 

the nature and quality of the intrusion on the individual's 

Fourth Amendment interests against the importance of the 

governmental interests alleged to justify the intrusion." Id.

(internal quotation marks omitted) (citations omitted). In 

other words, "reasonableness" is "determined by balancing the 

degree to which a challenged action intrudes on an individual's 

privacy and the degree to which the action promotes a legitimate 

government interest." Green v. Butler, 420 F.3d 689, 694 (7th 

Cir. 2005) (citing United States v. Knights, 534 U.S. 112, 118-

19 (2001); Ohio v. Robinette, 519 U.S. 33, 39 (1996)). A court 

determines whether a search was reasonably executed by 

 

the place to be searched and the persons or things to 

be seized.
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considering "the totality of the circumstances." United States 

v. Banks, 540 U.S. 31, 35-36 (2003).

A. Constitutional Protection of a Home

¶312 "The people's protection against unreasonable search 

and seizure in their 'houses' was drawn from the English commonlaw maxim, 'A man's home is his castle.'" Minnesota v. Carter, 

525 U.S. 83, 94 (1998) (Scalia, J., concurring). "Courts have 

long extolled the importance of the home, noting that the 

[Fourth Amendment] was drafted in part to codify 'the overriding 

respect for the sanctity of the home that has been embedded in 

our traditions since the 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). The United States Supreme Court has 

noted that "the 'physical entry of the home is the chief evil 

against which the wording of the Fourth Amendment is directed.'" 

Payton, 445 U.S. at 585 (quoting United States v. United States 

District Court, 407 U.S. 297, 313 (1972)). "The Fourth 

Amendment protects the individual's privacy in a variety of 

settings. In none is the zone of privacy more clearly defined 

than when bounded by the unambiguous physical dimensions of an 

individual's home——a zone that finds its roots in clear and 

specific constitutional terms: 'The right of the people to be 

secure in their . . . houses . . . shall not be violated.'" Id.

at 589 (ellipses added in Payton). "That language unequivocally 

establishes the proposition that '[a]t the very core [of the 

Fourth Amendment] stands the right of a man to retreat into his 

own home and there be free from unreasonable governmental 
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intrusion.'" Id. at 589-90 (alterations added in Payton) 

(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).5

B. Nighttime Search of a Home

¶313 A nighttime search of a home conflicts with the fact 

that "[a] home is entitled to special dignity and special 

sanctity." Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626 

(1962). "Searches of the dwelling house were the special object 

of this universal condemnation of official intrusion. Nighttime 

search was the evil in its most obnoxious form." Monroe v. 

Pape, 365 U.S. 167, 210 (1961) (Frankfurter, J., dissenting in 

part). "The Supreme Court has consistently recognized that a 

police search of a residence at night is a greater intrusion 

upon an individual's privacy interest than an ordinary search." 

United States v. Gibbons, 607 F.2d 1320, 1326 n.15 (10th Cir. 

 5 The Supreme Court has noted that a search of a cell phone 

or personal computer could carry some of the implications of a 

home search. The Court noted that "many [cell phones] are in 

fact minicomputers that also happen to have the capacity to be 

used as a telephone." Riley v. California, 573 U.S. ____, 134 

S. Ct. 2473, 2489 (2014). Given the "storage capacity of cell 

phones," "a cell phone search would typically expose to the 

government far more than the most exhaustive search of a house: 

A phone not only contains in digital form many sensitive records 

previously found in the home; it also contains a broad array of 

private information never found in a home in any form . . . ." 

Id. at 2489, 2491. In fact, some courts have required warrants 

to be more particular than just seeking all e-mails. See In re 

Applications for Search Warrants for Info. Associated with 

Target Email Accounts/Skype Accounts, No. 13-MJ-8163-JPO, 2013 

WL 4647554, at *8 (D. Kan. Aug. 27, 2013) (holding that "the 

warrants proposed by the government violate the Fourth 

Amendment" because they did not particularly describe the emails to be searched).
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1979). In Jones v. United States, the Supreme Court stated that 

it was "difficult to imagine a more severe invasion of privacy 

than the nighttime intrusion into a private home . . . ." Jones 

v. United States, 357 U.S. 493, 498 (1958); see also Coolidge v. 

New Hampshire, 403 U.S. 443, 477 (1971) (describing a "midnight 

entry" of a home as an "extremely serious intrusion"); United 

States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978) (citations 

omitted) ("[T]he Fourth Amendment protects citizens' reasonable 

expectations of privacy . . . [and] one's reasonable expectation 

of privacy in the home is entitled to a unique sensitivity from 

federal courts."); United States v. Martinez-Fuerte, 428 U.S. 

543, 561 (1976) (citation omitted) (noting that "the sanctity of 

private dwellings[ is] ordinarily afforded the most stringent 

Fourth Amendment protection").6

¶314 "At common law, prior to the adoption of the Fourth 

Amendment, there was a strong aversion to nighttime searches." 

United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3d 

Cir. 1968) (citations omitted). "This aversion was then and is 

now primarily focused on intrusions into the home." United 

 6 "Because the fourth amendment's proscriptions against 

unreasonable searches are virtually identical to those in art. 

I, sec. 11 of the Wisconsin Constitution, state law of search 

and seizure conforms to that developed under federal law."

State v. Long, 163 Wis. 2d 261, 266, 471 N.W.2d 248 (Ct. App. 

1991) (citing State v. Reed, 156 Wis. 2d 546, 551, 457 

N.W.2d 494 (Ct. App. 1990)). See also State v. Tullberg, 2014 

WI 134, ¶29 n.17, 359 Wis. 2d 421, 857 N.W.2d 120.
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States v. Tucker, 313 F.3d 1259, 1263 (10th Cir. 2002) (citing 

Gibbons, 607 F.2d at 1326). "Nighttime searches were regarded 

with revulsion [at common law] because of the indignity of 

rousing people from their beds." Com. v. Grimshaw, 595 N.E.2d 

302, 304 (Mass. 1992) (citing Com. v. DiStefano, 495 N.E.2d 328, 

332 (Mass. App. Ct. 1986)). "The significance of this aversion 

of the common law to nighttime searches is underscored by the 

Supreme Court's reminder that the search and seizure clause is 

properly 'construed in the light of what was deemed an 

unreasonable search and seizure when it was adopted.'" Boyance, 

398 F.2d at 897 (quoting Carroll v. United States, 267 U.S. 132, 

149 (1925)). When a home is invaded during pre-dawn darkness of 

night, special protections should apply because of the sanctity 

of a home. This is not to say that a home search can never 

occur in pre-dawn darkness, but when it does, that timing could 

be considered as a part of the totality of the circumstances 

reasonableness analysis of the Fourth Amendment.

¶315 Although Wisconsin does not have a statute directing 

that a judge must determine whether a nighttime search is 

justified, 23 states have statutory protections that allow a 

nighttime search only upon a "special showing and 

authorization." Wayne R. LaFave, Search and Seizure § 4.7(b) 

(5th ed. 2014). Similarly, the Federal Rules of Criminal 

Procedure implement the essentials of the Fourth Amendment by 

requiring that a warrant be served "during the daytime, unless 

the judge, for good cause expressly authorizes execution at 
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another time." Fed. R. Crim. P. 41(e)(2)(A)(ii).7 The federal 

rule and these 23 states recognize and codify Fourth Amendment 

protections against unreasonable nighttime searches and 

seizures. See United States v. Searp, 586 F.2d 1117, 1124 (6th 

Cir. 1978) (holding that Federal Rule 41's "night search 

provisions . . . explicate fundamental purposes of the Fourth 

 7 The Federal Rules of Criminal Procedure require special 

justification for a nighttime search. Fed. R. Crim. P. 

41(e)(2)(A)(ii). However, "'[d]aytime' means the hours between 

6:00 a.m. and 10:00 p.m. according to local time." Fed. R. 

Crim. P. 41(a)(2)(B). Although this Federal Rule may have been 

technically complied with because the searches at issue might 

have begun a few minutes after 6:00 a.m., technical compliance 

with the Federal Rule does not automatically render these 

searches immune from constitutional scrutiny in this state court 

matter. While federal rules attempt to provide for consistency 

from state to state, courts have often taken a practical 

approach when defining "nighttime" for Fourth Amendment 

purposes. See Claudia G. Catalano, Annotation, Propriety of 

Execution of Search Warrants at Nighttime, 41 A.L.R. 5th 171 

(1996). See also United States v. Palmer, 3 F.3d 300, 303 (9th 

Cir. 1993) (holding that Federal Rule of Criminal Procedure 41 

did not apply because "[t]he investigation in this case was 

initiated and controlled by the local law enforcement officials 

involved"). In the case at issue, although the Special 

Prosecutor is a former Federal Prosecutor, his investigation of 

this matter was not in the federal system. This investigation 

was initiated and controlled by local law enforcement officials.
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Amendment" (internal quotation marks omitted) (citation 

omitted)).8

¶316 When a court is confronted with a challenge to a 

search that is conducted in the pre-dawn darkness of night, it 

might consider whether the exigencies of the situation justify 

the greater intrusiveness of a search at this time. A court 

could look at factors including, but not limited to, the timing 

of the issuance and execution of the warrants, the manner in 

which the warrants were executed, whether public or officer 

safety concerns justified the manner of execution, and what type 

of evidence was being sought. Law enforcement is certainly 

endowed with a great deal of discretion regarding how and when 

to execute a warrant, but ultimately a court could be called 

upon to review the reasonableness of that execution under a 

totality of the circumstances analysis.

¶317 Certainly, the necessity of immediate police action 

may be evident from the facts and circumstances of the 

situation. Warrant execution in some criminal matters, such as 

some human trafficking or drug cases, may militate in favor of a 

warrant being executed at night or in a forceful manner because 

 8 A violation of these rules may result in suppression of 

the evidence if the violation rises to constitutional 

proportion. See, e.g., United States v. Bieri, 21 F.3d 811, 816 

(8th Cir. 1994) (citation omitted) ("We apply the exclusionary 

rule to violations of [the nighttime search provision of] Rule 

41 only if a defendant is prejudiced or reckless disregard of 

proper procedure is evident."); see also United States v. Berry, 

113 F.3d 121, 123 (8th Cir. 1997) (noting that a violation of 

Federal Rule of Criminal Procedure 41's nighttime search 

provision can be "of constitutional magnitude").
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the criminal activity is likely occurring at night, evidence may 

likely be lost if law enforcement waits, or dangerous activity 

is afoot. "It has been held that the danger of destruction or 

removal of the evidence is sufficient reason for nighttime 

execution of a search warrant, in part because such 

circumstances could even constitute exigent circumstances for a 

search without a warrant." Tucker, 313 F.3d at 1265 (citations 

omitted). See, e.g., United States v. Howard, 532 F.3d 755, 

760-61 (8th Cir. 2008) (upholding a nighttime search because a 

confidential informant advised police that drug trafficking 

occurred in the home "during all hours of the night"); Fair v. 

State, 664 S.E.2d 227, 235 (Ga. 2008) (upholding a 1:15 a.m. 

search "because the officers knew from experience that the peak 

time for drug dealers to conduct business was after midnight"). 

Law enforcement needs a wide berth when determining how and when 

to execute a warrant, but under the totality of the 

circumstances, the execution of the warrant must still be 

reasonable in order to pass constitutional muster. 

II. THE TOTALITY OF THE CIRCUMSTANCES

¶318 With Fourth Amendment principles in mind, 

understanding that the record is not complete because no 

challenge has been made to the warrant execution, the following 

discussion will nonetheless endeavor to consider the timing of 

the issuance and execution of the warrants, the manner of 

execution, whether public or officer safety concerns existed, 

and what type of evidence was being sought.

A. The Timing of the Issuance and Execution of the Warrants
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¶319 In the case at issue, Investigator Dean Nickel 

obtained two secret John Doe warrants from Reserve Judge Barbara 

Kluka to search the homes of Unnamed Movants Nos. 6 and 7. The 

warrants were obtained in the course of a secret John Doe 

investigation.9 Those warrants and their supporting affidavit 

did not set forth any particular time at which, or manner in 

which, the warrants would be executed. Unlike many warrants 

that must be executed at nighttime for fear of the evidence 

being destroyed or removed from the location or because of 

public or officer safety reasons, much of this evidence had been 

sitting on computers and in cyberspace for years.

¶320 This was not, as sometimes occurs, a situation where a 

judge was awoken in the middle of the night to issue a warrant 

because law enforcement needs to execute it promptly in order to 

seize the evidence. Reserve Judge Kluka signed the warrants at 

11:30 a.m. on Monday, September 30, 2013. However, they were 

not executed until Thursday, October 3, 2013, at approximately 

 9 A John Doe proceeding, known as "John Doe I," was 

commenced in the spring of 2010 "for the purpose of 

investigating the alleged misuse of public resources in the

Milwaukee County Executive's office." Majority op., ¶14. The 

John Doe I investigation "triggered a second John Doe proceeding 

(John Doe II), the investigation at issue here." Id., ¶15. On 

August 10, 2012, Milwaukee County Assistant District Attorney 

David Robles filed a petition for the commencement of John Doe 

II in the Milwaukee County circuit court. Id. On September 5, 

2012, "Reserve Judge Kluka authorized the commencement of the 

John Doe [II] proceeding and also granted the requested secrecy 

order." Id., ¶17.
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6:00 a.m.10 "A search warrant must be executed and returned not 

more than 5 days after the date of issuance." Wis. Stat. 

§ 968.15(1). These warrants were executed three days after they 

were issued. "The return of the search warrant shall be made 

within 48 hours after execution . . . ." Wis. Stat. 

§ 968.17(1). The warrants were returned on October 4, four days 

after they were issued and one day after they were executed. 

¶321 The warrants were executed in the pre-dawn darkness. 

On October 3 civil twilight began in Madison at 6:29 a.m. and 

sunrise began at 6:57 a.m.11 For all practical purposes, each of 

these searches was the equivalent of a nighttime search. 

Because no challenge to the warrant execution has been made, the 

record lacks any explanation as to why law enforcement did not 

execute the warrants any time during the preceding 66.5 hours——

or more specifically, the 29.5 daylight hours——between issuance 

and actual execution. 

 10 The return on the warrant to search Unnamed Movant No. 

6's house, in a box titled "Recovery Date," reads "10/03/2013 

06:15:00." Similarly, the return on the warrant to search 

Unnamed Movant No. 7's house, in a box titled "Recovery Date," 

reads "10/03/2013 6:03:13." The record does not indicate to 

what these times correspond. Media reports indicate that the 

searches lasted two and a half hours. See, e.g., Kittle, infra

note 12. The record is unclear.

11 See U.S. Naval Observatory: Astronomical Applications 

Department, Sun and Moon Data for 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).
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¶322 A nighttime search will often occur shortly after a 

judge has issued the warrant, as there is some urgency in 

needing to conduct the search in non-daylight hours. Courts 

often consider "nighttime" as the time when it is "dark" 

outside, between sunset and sunrise, between dusk and dawn, or 

when most people are asleep. See Claudia G. Catalano, 

Annotation, Propriety of Execution of Search Warrants at 

Nighttime, 41 A.L.R. 5th 171 (1996). This record, 

understandably, lacks any indication of why it was reasonable to 

execute these warrants in this manner, especially since the 

warrants had been issued three days earlier. The prosecution 

might have obtained the same evidence in the daylight by waiting 

a mere hour or two or by executing the warrants in any of the 

preceding daylight hours. Why did law enforcement execute these 

secret John Doe warrants days after obtaining them, in the predawn darkness, needing floodlights to illuminate the homes, and 

with such forceful presence? 

¶323 While there may be reasons why the warrants were 

executed when they were, the current state of the record 

provides no indication that the prosecution "felt some exigency" 

so as to necessitate the execution of the warrants in the predawn darkness three days after the warrants were issued. See

United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997) 

(upholding a 12:30 a.m. search for a large quantity of marijuana 

because the officers "obviously felt some exigency"). See also

Harris, 324 F.3d at 606 (upholding a nighttime search performed 

two hours and 15 minutes after the warrant was issued); Tucker, 
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313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113 

F.3d at 122 (same, 45 minutes); Boyance, 398 F.2d at 897 

(holding that a nighttime search performed 90 minutes after 

issuance of a warrant was unconstitutional because there was no 

indication that "the evidence within the house would be removed, 

hidden or destroyed before morning").

B. The Manner of Execution

¶324 Courts have also considered the specific manner in 

which warrants are executed as part of the totality of the 

circumstances. "The[se] search warrants were executed at 

approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, 

paramilitary-style raids in which bright floodlights were used 

to illuminate the targets' homes." Majority op., ¶28. 

"Deputies seized business papers, computer equipment, phones, 

and other devices, while their targets were restrained under 

police supervision and denied the ability to contact their 

attorneys." Id., ¶29. While there may be reasons why the 

warrants were executed in the manner that they were, the record 

lacks any such explanation as the execution was not challenged. 

¶325 Although not critical to my analysis, it is worth 

noting how some news outlets have described these searches. Had 

a hearing been held on the manner in which these searches were 

executed, it is uncertain whether the facts established in such 

a hearing would be consistent with these news reports or whether 

there is nonetheless "a legitimate government interest" in the 

execution of the searches. See Green, 420 F.3d at 694.
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¶326 Reportedly, about an hour before sunrise, police 

"surrounded" the homes of Unnamed Movants Nos. 6 and 7 and "hit 

them with floodlights."12 "Police didn't draw their guns. They 

didn't have to. Garish light blinded the groggy targets of the 

secret probe, startling neighbors. The uniforms, the lights, 

the early hour got everybody's attention."13 "One of the targets 

[said] police threatened to use battering rams to break down the 

front door, but the targets let them in."14 Each of these predawn searches of the homes of Unnamed Movants Nos. 6 and 7 

reportedly involved at least half a dozen sheriff's deputies and 

at least one official from the Milwaukee County District 

Attorney's Office.15 It has been reported that deputies 

"[s]hout[ed] [] at the front door"16 and, once inside, continued 

"yelling and running, into every room in the house."17

 12 M. D. Kittle, The day John Doe Rushed Through 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 least one 

representative from the Milwaukee County District Attorney's 

Office was on scene for the searches. The record is also 

unclear as to whether it is typical protocol for a Milwaukee 

County District Attorney's Office representative to be present 

when a search warrant is executed. 

16 Rich Lowry, Politicized Prosecution Run Amok in 

Wisconsin, National Review, Apr. 21, 2015, available at

http://www.nationalreview.com/article/417207/politicizedprosecution-run-amok-wisconsin-rich-lowry. 

17 David French, Wisconsin's Shame: "I Thought It Was a Home 

Invasion", National Review, Apr. 20, 2015, available at

(continued)
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¶327 Other media outlets described the searches as follows: 

The early-morning paramilitary-style raids on 

citizens' homes were conducted by law-enforcement 

officers, sometimes wearing bulletproof vests and 

lugging battering rams, pounding on doors and issuing 

threats. Spouses were separated as the police seized 

computers, including those of children still in 

pajamas. Clothes drawers, including the children's, 

were ransacked, cell phones were confiscated, and the 

citizens were told it would be a crime to tell anyone 

of the raids.18

¶328 At least one person who was subjected to a pre-dawn 

search of his or her residence reportedly described it as "a 

home invasion."19 The targets of the pre-dawn searches have 

described these experiences as "terrifying" and "traumatic."20

¶329 Due to the terms of the John Doe secrecy order itself, 

the targets were instructed not to tell other people about the 

searches. The search warrants stated: "This John Doe search 

warrant is issued subject to a secrecy order. By order of the 

court, pursuant to a secrecy order that applies to this 

proceeding, you are hereby commanded and ordered not to disclose 

to anyone, other than your attorney, the contents of this search 

warrant and/or the fact that you have received this search 

warrant. Violation of this secrecy order is punishable as 

 

http://www.nationalreview.com/article/417155/wisconsins-shame-ithought-it-was-home-invasion-david-french. 

18 George Will, Done in by John Doe, National Review, Oct. 

25, 2014, available at http://www.nationalreview.com/

article/391130/done-john-doe-george-will. 

19 French, supra note 17. 

20 Id.
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contempt of court." Reportedly, "[m]ultiple 

targets . . . received verbal instructions from investigators 

about the secrecy order applying to every member of the 

household."21 Despite the language of the secrecy order, some

have otherwise averred that the targets "were told not to tell 

their lawyers, or their friends, or their neighbors."22

C. Public and Officer Safety Concerns

¶330 As part of the totality of the circumstances, courts 

have also considered whether safety concerns of the public or 

the officers justify the timing and the manner of a warrant's 

execution. Although a paramilitary-style search in the darkness 

is undoubtedly justified in some circumstances, the current 

state of this record provides no indication that Unnamed Movants 

Nos. 6 and 7 "posed an immediate threat to the safety of the 

officers or others," were "actively resisting arrest or 

attempting to evade arrest by flight," or were "themselves 

violent or dangerous." See Estate of Smith v. Marasco, 430 F.3d 

140, 150 (3d Cir. 2005) (holding that these facts are important 

for determining whether a SWAT-type search was reasonable). In 

the present case, executing the warrants in paramilitary fashion 

during pre-dawn darkness arguably might have actually increased 

the risk of injury to the public or the officers. See Bravo v. 

 21 M. D. Kittle, Warrants Command John Doe Targets to Remain 

Silent, WisconsinWatchdog.org, May 14, 2015, available at

http://watchdog.org/218761/john-doe-warrants-raids/. 

22 Lowry, supra note 16 (emphasis added). 
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City of Santa Maria, 665 F.3d 1076, 1086 (9th Cir. 2011) ("SWAT 

officers' nighttime searches . . . both constitute much greater 

intrusions on one's privacy than ordinary daytime searches and 

carry a much higher risk of injury to persons and property."). 

¶331 A "nighttime police intrusion pose[s] a great threat 

to privacy, violate[s] the sanctity of home, and endanger[s] the 

police and slumbering citizens." Grimshaw, 595 N.E.2d at 304 

(citing 2 W.R. LaFave, Search and Seizure § 4.7(b), at 266 (2d 

ed. 1987)). In the present case, whether any public or officer 

safety concern justified the pre-dawn searches is unknown 

because the execution was not challenged. Cf. United States v. 

Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (upholding a 

nighttime search because of the defendant's "prior extensive 

involvement with law enforcement, the expressed fear of a 

concerned citizen that [the defendant] would retaliate 

violently, and the presence of children in the vicinity" during 

the daytime). 

D. The Evidence

¶332 I turn now to the nature of the evidence being sought. 

This case is not one where the alleged crime is occurring at 

night during the search. This is not a drug or human 

trafficking investigation where it is apparent that the evidence 

of the crime may no longer be present at the search location if 

the warrants are not executed promptly. The circumstances of 

this case do not plainly suggest that waiting until daybreak 

would have posed a safety risk to the public or officers. 
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¶333 These pre-dawn searches sought, among other things, 

electronic evidence, including e-mails and communications stored 

on cell phones and personal computers.23 The search warrants 

sought information from March 1, 2009, to September 30, 2013, 

the date that the warrants were issued. This evidence, which 

seemingly had been around for years and likely otherwise exists 

in cyberspace, did not appear to be "volatile" and no reason is 

readily apparent to explain why executing the warrants in a more 

traditional manner, by far less forceful means, would pose any 

"risk of personal injuries and property damage." See Tucker, 

313 F.3d at 1266 (upholding a nighttime search because "there 

was not just risk of destruction of the evidence but also risk 

of personal injuries and property damage due to the volatile 

nature of the chemicals and the process of methamphetamine 

manufacture"). 

¶334 While not jugular to the totality of the circumstances 

analysis, it seems that this electronic evidence was not in 

"danger of destruction or removal" from the homes before 

morning. See id. at 1265. The process of erasing a file on a 

personal computer "is time consuming and does not wipe out all 

 23 From Unnamed Movant No. 6's home, law enforcement 

officers seized tax records, check stubs, invoices, a binder 

containing documents, a box of documents, an external hard 

drive, and a laptop computer. From Unnamed Movant No. 7's home, 

officers seized three cell phones, three external hard drives, 

two computer towers, two laptop computers, two Apple iPods, a 

document folder, three compact discs, a thumb drive, a voice 

recorder, bank stubs, personal pocket calendars, and financial 

records.
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data."24 A cell phone's files may likewise be difficult to 

erase. "Smartphone forensics experts can retrieve just about 

anything from any phone," "whether or not a user deleted it from 

their phone."25 In fact, the affidavit in support of the 

warrants to search the homes of Unnamed Movants Nos. 6 and 7 

seemed to recognize that the evidence was not at risk of being 

destroyed, even if deleted. The affidavit itself declared that 

"computer files or remnants of such files can be recovered 

months or even years after they have been downloaded onto a 

storage medium, deleted, or viewed via the Internet." (Emphases 

added.) 

¶335 Even if the computers and cell phones had been totally 

destroyed, investigators still could have sought to obtain 

Unnamed Movants Nos. 6's and 7's e-mail messages from third 

parties, such as Internet service providers or e-mail service 

providers.26 Wisconsin law expressly authorizes subpoenas and 

search warrants to be issued to such third parties. See Wis. 

Stat. § 968.375. Milwaukee County prosecutors have used these 

 24 Christine Galves & Fred Galves, Ensuring the 

Admissibility of Electronic Forensic Evidence and Enhancing Its 

Probative Value at Trial, 19 Criminal Justice Magazine 1 (Spring 

2004), available at http://www.americanbar.org/

publications/criminal_justice_magazine_home/crimjust_cjmag_19_1_

electronic.html.

25 David Goldman, How Police Can Find Your Deleted Text 

Messages, CNN Money, May 22, 2013, available at

http://money.cnn.com/2013/05/22/technology/mobile/smartphoneforensics/.

26 Galves, supra note 24. 
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techniques in recent prosecutions of a somewhat similar nature. 

See State v. Rindfleisch, 2014 WI App 121, 359 Wis. 2d 147, 857 

N.W.2d 456 (holding that search warrants, which required Google 

Inc. and Yahoo Inc. to provide evidence from the defendant's 

personal e-mail messages, were sufficiently particular). 

¶336 In fact, previously during this very John Doe 

investigation, the State did obtain Unnamed Movants Nos. 6's and 

7's e-mails from their e-mail service providers. Specifically, 

on September 5, 2012, the same day that Reserve Judge Kluka 

commenced this John Doe investigation, she signed a warrant

requiring Yahoo Inc. to supply information from Unnamed Movant 

No. 6's Yahoo e-mail account. Also on September 5 Reserve Judge 

Kluka signed a similar warrant requiring Charter Communications 

Inc. to provide information from Unnamed Movant No. 7's Charter 

e-mail account. Each of these warrants required the production 

of, inter alia, "[t]he contents of all communications stored in 

the E-mail accounts for the subscriber(s) . . . , including all 

emails stored in the account, whether sent from or received in 

the account, including any 'chat or instant messaging,' as well 

as e-mails held in a 'Deleted' status," from April 1, 2009, to 

July 1, 2012. Yahoo and Charter complied with the warrants 

within six weeks and two weeks, respectively. Thus, at least 

some of the evidence that the prosecution hoped to obtain by 

searching the homes of Unnamed Movants Nos. 6 and 7 in October 

2013 could very well have been duplicative of the e-mail 

evidence that Yahoo and Charter produced pursuant to the 

September 2012 search warrants. 
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¶337 While not required, another avenue of obtaining 

evidence may have existed through subpoenas duces tecum, which 

could have been served on Unnamed Movants Nos. 6 and 7 as an 

alternative to the pre-dawn, paramilitary-style searches of 

their homes. See Wis. Stat. § 968.135. In fact, such subpoenas 

were issued on other Unnamed Movants. Specifically, on the same 

day that Reserve Judge Kluka issued the warrants to search the 

homes of Unnamed Movants Nos. 6 and 7, she issued subpoenas

duces tecum to the other six Unnamed Movants. These subpoenas 

duces tecum required the production of, inter alia, information 

regarding Unnamed Movants Nos. 6 and 7. Although law 

enforcement is not required to obtain information by subpoena 

instead of a warrant, the type of evidence being sought and the 

ways in which it may be obtained could possibly be of some 

significance in the totality of the circumstances test of 

reasonableness.

¶338 Milwaukee County Sheriff David A. Clarke, Jr. has been 

vocal in explaining his belief that it was unreasonable and 

unnecessary to execute these pre-dawn searches in the manner in 

which they were executed. He said, "[a] simple knock on the 

door by a couple of suit wearing investigators with . . . one 

uniform back-up [officer] to verify who they were was all that 

was necessary to execute this search warrant."27

 27 David French, Wisconsin's Shame: Sheriff Clarke Weighs 

In, National Review, Apr. 23, 2015, available at

http://www.nationalreview.com/corner/417406/wisconsins-shamesheriff-clarke-weighs-david-french. 
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III. CONCLUSION

¶339 "Constitutional reasonableness relates not only to the 

grounds for a search or seizure but to the circumstances 

surrounding the search or seizure's execution." Henderson, 245 

Wis. 2d 345, ¶18 (citing Garner, 471 U.S. at 8).28 "The 

determination of reasonableness is made by reference to the 

particular circumstances of each individual case, and balances 

the nature and quality of the intrusion on the individual's 

Fourth Amendment interests against the importance of the 

governmental interests alleged to justify the intrusion." Id.

(internal quotation marks omitted) (citations omitted). "The 

idea of the police unnecessarily forcing their way into the 

homes in the middle of the night . . . rousing the residents out 

of their beds, and forcing them to stand by in indignity in 

their night clothes while the police rummage through their 

belongings does indeed smack of a 'police state lacking in the 

respect for . . . the right of privacy dictated by the U.S. 

Constitution.'" Gooding v. United States, 416 U.S. 430, 462

(1974) (Marshall, J., dissenting) (quoting S. Rep. No. 91—538, 

p. 12 (1969)).

 28 See State v. Henderson, 2001 WI 97, ¶3, 245 Wis. 2d 345, 

629 N.W.2d 613 (recognizing that the Fourth Amendment 

reasonableness inquiry considers whether officers knocked and 

announced their presence before entry); see also United States 

v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (holding that 

"a nighttime intrusion is one element in considering the 

reasonableness of the search"); State v. Jackson, 742 N.W.2d 

163, 177 (Minn. 2007) (holding that "the search of a home at 

night is a factor to be considered in determining whether a 

search is reasonable under the Fourth Amendment").
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¶340 I join the majority opinion in all three cases. I 

write separately to explain that even if the search warrants

were lawfully issued, the execution of them could be subject to 

the reasonableness analysis of the Fourth Amendment to the 

United States Constitution and the Wisconsin Constitution's 

counterpart. A totality of the circumstances analysis could 

include consideration of, among other things, the timing of the 

issuance and execution of the warrants, the manner in which the 

warrants were executed, whether public or officer safety 

concerns justified the manner of execution, and what type of 

evidence was being sought.

¶341 For the foregoing reasons, I respectfully concur.
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¶342 SHIRLEY S. ABRAHAMSON, J. (concurring in part, 

dissenting in part).

Nos. 2014AP296-OA: Original Action: 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 three different cases 

related to John Doe proceedings underway in five different 

counties. These John Doe proceedings share a common objective: 

To investigate potential violations of Wisconsin's campaign 

finance law, Wis. Stat. ch. 11 (2011-12).1

 The proceedings also 

share a single John Doe judge, who was assigned to the 

proceedings in all five counties, and a single Special 

Prosecutor, who was appointed by the John Doe judge to conduct 

the investigation in all five counties.2

¶344 The John Doe cases were consolidated for purposes of 

briefing and oral argument, but not for any other purpose.3 

 1 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.

2 See majority op., ¶¶17-27.

3 The order consolidating the cases for purposes of briefing 

and oral argument is dated December 16, 2014, and is attached 

hereto, along with my concurrence and that of Justice Prosser, 

as Exhibit A.
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Briefs have been filed. The court, over dissent, canceled oral 

argument.4

¶345 The majority opinion and concurrences in these John 

Doe cases resolve issues raised by the parties; issues raised by 

the court in its December 16, 2014, order (attached hereto as 

Exhibit A); and new issues not previously raised by the parties 

or the court. These writings have far-reaching implications, 

not just for the John Doe investigation underlying the instant 

cases but also for this state's electoral process, future John 

Doe proceedings, and criminal proceedings generally.

¶346 I begin by addressing the majority opinion.

¶347 Lest the length, convoluted analysis, and overblown 

rhetoric of the majority opinion obscure its effect, let me 

state clearly: The majority opinion adopts an unprecedented and 

faulty interpretation of Wisconsin's campaign finance law and of 

the First Amendment. In doing so, the majority opinion delivers 

a significant blow to Wisconsin's campaign finance law and to 

its paramount objectives of "stimulating vigorous campaigns on a 

fair and equal basis" and providing for "a better informed 

electorate."5

¶348 Disregarding the statutory text that the majority 

opinion professes to interpret, the majority opinion takes the 

 4 Oral argument was canceled in the three cases pursuant to

an order entered by this court on March 27, 2015. That order, 

along with my dissent and that of Justice Prosser, is attached 

hereto as Exhibit B.

5 Wis. Stat. § 11.001(1).
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absolutist position that Chapter 11 does not reach any issue

advocacy and that any manner of government regulation of any

issue advocacy contravenes the First Amendment.6 Thus, within 

the realm of issue advocacy, the majority opinion's theme is 

"Anything Goes."7

¶349 But it is not just the letter of Wisconsin's campaign 

finance law that the majority opinion disregards. It also 

disregards the spirit of the law.8

¶350 The legislative declaration of policy set forth at 

Wis. Stat. § 11.001(1) provides that "[w]hen the true source of 

support or extent of support [for a candidate] is not fully 

disclosed, or when a candidate becomes overly dependent upon 

large private contributors, the democratic process is subjected 

to potential corrupting influence." To prevent such corrupting 

influence, the legislature has declared that "the state has a 

 6 See majority op., ¶¶10, 41, 50, 57, 66-67, 69.

Issue advocacy is speech that pertains to issues of public 

concern and does not expressly advocate the election or defeat 

of a candidate. Fed. Election Comm'n v. Wis. Right to Life, 

Inc., 551 U.S. 449, 456 (2007). In contrast, express advocacy 

is speech that expressly advocates the election or defeat of a 

candidate. Id. at 453.

7 "Anything Goes" is a song written by Cole Porter for his 

musical Anything Goes (1934). Many of the lyrics feature 

humorous (but dated) references to various figures of scandal 

and gossip in Depression-era high society. Many modern versions 

of the song omit the outdated 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. Dagnall, 2000 WI 82, ¶59, 236 Wis. 2d 339, 612 

N.W.2d 680; Harrington v. Smith, 28 Wis. 43, 59 (1871).
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compelling interest in designing a system for fully disclosing 

contributions and disbursements made on behalf of every 

candidate for public office. . . ."9

¶351 Despite these clear statements of legislative policy, 

the majority opinion holds that disbursements made on behalf of 

candidates need not be fully disclosed——indeed, they need not be 

disclosed at all——if such disbursements are made for issue 

advocacy.10

¶352 In taking this absolutist position, the majority 

opinion attempts to terminate the John Doe investigation 

underlying the instant cases in its infancy. The majority 

opinion's unsupported, ultra vires declaration that its 

resolution of the original action brought by two of the eight 

Unnamed Movants "ends the John Doe investigation" contradicts 

other aspects of the majority opinion and reveals the majority 

opinion's blatant attempt to reach its desired result by 

whatever means necessary.11

 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 acknowledge that the Special 

Prosecutor is pursuing multiple theories of criminal activity, 

not all of which revolve around issue advocacy. For example, 

the Special Prosecutor states that the John Doe investigation is 

premised in part "on a reason to believe that certain express 

advocacy groups who had filed sworn statements indicating they 

acted independently of certain campaign committees" did not in 

fact act independently. Despite the majority opinion's 

invalidating the Special Prosecutor's issue-advocacy-based 

theory of criminal activity, this express-advocacy-based theory 

lives on.

(continued)
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¶353 According to the United States Court of Appeals for 

the Seventh Circuit, no opinion of the United States Supreme 

Court or a federal court of appeals has established that the 

First Amendment forbids regulation of, or inquiry into, 

coordination between a candidate's campaign committee and issue 

advocacy groups.12 In repeatedly and single-mindedly declaring a 

rule that federal case law has declined to adopt, the majority 

opinion betrays its result-oriented, agenda-driven approach.

¶354 If the majority opinion succeeds in terminating the 

John Doe investigation, the majority opinion will deny the 

people of this state the opportunity to determine once and for 

 

The majority opinion also fails to acknowledge that the 

original action was brought by only two Unnamed Movants. It 

seems the Special Prosecutor's investigation of individuals and 

organizations that are not parties to the original action is not 

affected by this court's decision in the original action. See

Madison Teachers, Inc. v. Walker, 2013 WI 91, ¶20, 351 

Wis. 2d 237, 839 N.W.2d 388 (holding that a declaratory judgment 

was binding only insofar as the parties to the lawsuit were 

concerned; a declaratory judgment is not the equivalent of an 

injunction binding on the defendant state officers). Indeed, 

the majority opinion and concurring opinions imply that the 

original action does not bind the other Unnamed Movants by 

deciding the second and third John Doe cases within the John Doe 

trilogy. If the majority opinion's decision in the original 

action disposes of the John Doe investigation in its entirety, 

why address the other John Doe cases?

12 See O'Keefe v. Chisholm, 769 F.3d 936, 942 (7th Cir. 

2014). For discussions of the constitutionality of regulating 

coordinated issue advocacy, see Brent Ferguson, Beyond 

Coordination: Defining Indirect Campaign Contributions for the 

Super PAC Era, 42 Hastings Const. L.Q. 471 (2015); Richard 

Briffault, Coordination Reconsidered, 113 Columbia L. Rev. 

Sidebar 88 (2013); Bradley A. Smith, Super PACs and the Role of 

"Coordination" in Campaign Finance Law, 49 Willamette L. Rev. 

603 (2013).
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all whether the targets of the John Doe investigation are guilty 

of systematically violating Wisconsin's campaign finance law 

through undisclosed campaign coordination.

¶355 I write separately to provide an objective, precedentbased analysis of the statutory and constitutional issues 

presented in the John Doe cases.

¶356 I note at the outset that the statutory and 

constitutional issues presented in the John Doe cases do not

include whether the subpoenas and search warrants issued by the 

John Doe judge were unconstitutionally overbroad or executed in 

an unconstitutional manner.

¶357 The parties did not raise these issues and this court 

did not seek comment on them.13 These issues have not been 

briefed by some parties and have not been fully briefed by 

others. Nevertheless, these issues are discussed at length in 

the separate writings by Justices Prosser and Ziegler.

¶358 Justice Prosser declares that he is writing on Issue 

14. Issue 14 addresses whether there was probable cause for the 

search warrants issued in the John Doe proceedings. Issue 14 

does not concern the breadth or execution of the search 

warrants, does not concern subpoenas, and is limited to two 

Unnamed Movants (not five individuals, as Justice Prosser states 

in ¶201 of his concurrence). Issue 14 asks the parties to 

address the following issue:

 13 See items 1-14 in this court's order dated December 16, 

2014 (attached hereto as Exhibit A), setting forth the questions 

this court accepted for review. 
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Whether the affidavits underlying the warrants issued 

in the John Doe proceedings provided probable cause to 

believe that evidence of a criminal violation of Wis. 

Stat. §§ 11.27, 11.26(2)(a), 11.61(1), 939.31, and 

939.05 would be found in the private dwellings and 

offices of the two individuals whose dwellings and 

offices were searched and from which their property 

was seized.14

¶359 Justice Ziegler makes no similar attempt to tether her 

analysis to the issues this court accepted for review.

¶360 I turn now to my analysis of the three John Doe cases, 

which I address in three separate sections of this writing. I 

summarize my discussion and conclusions in each of the three 

cases as follows:

¶361 The First Case. This case is an original action filed 

by Unnamed Movants 6 and 7 against the John Doe judge and the 

Special Prosecutor.15 See ¶¶389-507, infra.

¶362 Two issues of law are presented in the original 

action.

¶363 First is whether Chapter 11 requires a candidate's 

campaign committee to report certain coordinated disbursements 

as contributions received by the candidate or candidate's 

campaign committee——namely, coordinated disbursements made for 

issue advocacy purposes. Under Chapter 11, a disbursement is 

coordinated if it is made by a third party "for the benefit of a 

 14 See this court's December 16, 2014, order, attached 

hereto as Exhibit A (emphasis added).

15 I refer to the eight challengers to the John Doe 

proceedings as Unnamed Movants because that has been the 

parties' practice in briefing. In the case captions for two of 

the three John Doe cases, the Unnamed Movants are referred to as 

Unnamed Petitioners.
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candidate" and "with the authorization, direction or control of 

or otherwise by prearrangement with the candidate or the 

candidate's agent."16

¶364 If Chapter 11 requires a candidate's campaign 

committee to report coordinated disbursements for issue advocacy 

as contributions received by the candidate or candidate's 

campaign committee, then the second issue presented is whether 

this reporting requirement is consistent with the state and 

federal constitutions.

¶365 The majority opinion concludes that Chapter 11 does 

not require a candidate's campaign committee to report any 

coordinated disbursements for issue advocacy as contributions 

received by the candidate or candidate's campaign committee. 

The majority opinion further concludes that such a requirement 

would be unconstitutional.17

¶366 The majority opinion frequently refers to "independent 

groups," "independent organizations," and "independent advocacy 

organizations." I agree with the United States Court of Appeals 

for the Seventh Circuit that the word "independent" should be 

considered to be in quotation marks throughout the John Doe 

 16 Wis. Stat. § 11.06(4)(d). See also Wis. Stat. § 11.06(7) 

(describing independent disbursements as disbursements made by a 

committee or individual who "does not act in cooperation or 

consultation with any candidate or authorized committee of a 

candidate" and who "does not act in concert with, or at the 

request or suggestion of, any candidate or agent or authorized 

committee of a candidate").

17 See majority op., ¶¶50, 57, 66-67.
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cases "because the Special Prosecutor suspected that the group's 

independence is ostensible rather than real."18

¶367 I conclude that Chapter 11 does require a candidate's 

campaign committee to report coordinated disbursements for issue 

advocacy as contributions received by the candidate or 

candidate's campaign committee. I further conclude this 

reporting requirement is consistent with the First Amendment.

¶368 To be clear: I do not conclude that Chapter 11 

regulates disbursements for issue advocacy made by truly 

independent third parties. Chapter 11 does not reach 

independent disbursements for issue advocacy, even when such 

disbursements are intended to influence an election.

¶369 The Second Case. This case is a supervisory writ 

petition filed by the Special Prosecutor in the court of appeals 

against the John Doe judge and the eight Unnamed Movants. The 

Special Prosecutor's writ petition seeks review of an order of 

the John Doe judge quashing subpoenas and ordering the return of 

property seized pursuant to search warrants. The order was 

based on the John Doe judge's conclusion of law that Chapter 11 

does not regulate coordinated disbursements for issue advocacy.19 

The writ petition is before this court on multiple petitions for 

bypass. See ¶¶508-541, infra.

¶370 The majority opinion concludes that even if the John 

Doe judge misinterpreted and misapplied Chapter 11 and the First 

 18 O'Keefe, 769 F.3d at 937.

19 See majority op., ¶¶34-36, 97.
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Amendment when exercising his discretion to quash subpoenas and 

order the return of property seized pursuant to search warrants, 

a supervisory writ is not warranted. The majority opinion 

reasons that the Special Prosecutor has failed to prove that the 

John Doe judge violated a plain legal duty.

¶371 I conclude that the majority opinion misinterprets and 

misapplies the plain legal duty criterion for the issuance of a 

supervisory writ.20 I conclude that correctly interpreting and 

applying the law is a plain legal duty. To properly exercise 

his discretion, the John Doe judge was required to correctly 

decide the question of law presented. This court can and 

should, in the exercise of its discretion, issue a supervisory 

writ to correct a John Doe judge's error of law when appellate 

review would provide no relief (or inadequate relief) for the 

harm caused by the error. Because the John Doe judge 

misinterpreted and misapplied the law and appellate review is 

not available, I would grant the Special Prosecutor's writ 

petition.

¶372 The Third Case. This case is a review of a court of 

appeals opinion and order denying a supervisory writ petition 

filed by Unnamed Movants 2, 6, and 7 against the John Doe judge, 

the chief judges of the counties in which the proceedings are 

underway, and the Special Prosecutor. See ¶¶542-554, infra.

¶373 The petition for review raises questions of law 

regarding the validity of the Special Prosecutor's appointment 

 20 See majority op., ¶97.
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and the competency of the Special Prosecutor to conduct the John 

Doe investigation. 

¶374 The majority opinion concludes that the court of 

appeals properly denied the three Unnamed Movants' writ petition 

because, like the Special Prosecutor in the second case, the 

three Unnamed Movants have failed to prove that the John Doe 

judge violated a plain legal duty.21

¶375 I agree with the majority opinion's affirmance of the 

court of appeals order denying the writ petition. I conclude, 

however, that the court of appeals can, should, and did properly 

decide the issues of law presented in the Unnamed Movants' writ 

petition. To properly exercise his discretion, the John Doe 

judge was required to correctly decide these questions of law.22

¶376 Three Additional Issues. Finally, there are three 

issues presented in this litigation that are relevant to the 

John Doe trilogy as a whole. I discuss these three issues in my 

analysis of the first case (the original action).

¶377 First, several motions to file amicus briefs on the 

merits of the John Doe cases have been filed in this court. I 

join the majority opinion's decision to grant them all.

¶378 Second, the Special Prosecutor filed a motion seeking 

the recusal of certain named justices. Three motions to file 

amicus briefs on the recusal issue have also been filed. 

Neither the named justices nor the court as a whole has 

 21 See majority op., ¶13.

22 See majority op., ¶¶105-106.
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responded to the Special Prosecutor's recusal motion. The 

recusal motion and the amicus motions remain pending, and the 

due process concerns they raise remain unresolved.

¶379 Third, this court——over my dissent——ordered extensive 

redactions and sealing in these John Doe cases.23 Even if some 

secrecy remains appropriate, the extent of the secrecy this 

court has imposed is unwarranted.

¶380 Despite my numerous dissents objecting to the level of 

secrecy imposed by this court in the John Doe trilogy, I have 

endeavored to adhere to this court's sealing and redaction 

orders. The same cannot be said for the majority opinion and 

the concurrences authored by Justices Prosser and Ziegler.

¶381 The majority opinion declares that "we can interpret 

the secrecy order and modify it to the extent necessary for the 

public to understand our decision herein." See majority op., 

¶14 n.11. Justice Prosser's concurrence discusses the policy 

reasons underlying secrecy in John Doe proceedings, concludes 

that they are inapplicable to certain facts underlying the John 

Doe trilogy, and thus determines that "discussion of these facts 

is not inconsistent with the secrecy order." See Justice 

Prosser's concurrence, ¶145.

¶382 The majority opinion and Justice Prosser's concurrence 

decide that the secrecy order does not bind the justices of this 

 23 See this court's December 16, 2014, order and my 

concurrence thereto (attached as Exhibit A) and this court's 

March 27, 2015, order regarding redactions and my dissent 

thereto (attached as Exhibit C).
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court. The secrecy order, in their view, binds only the parties 

and the public.

¶383 Because the majority of this court disregards its own 

secrecy order, Justice Prosser opines at length, without the 

benefit of briefs or facts, about allegedly overbroad search 

warrants and subpoenas. Moreover, he waxes eloquent about 

privacy and the limits that should be placed on search warrants 

seeking electronic material. But he has previously waxed 

eloquent about privacy rights and has nevertheless upheld 

searches of electronic material that he recognized raise 

substantial privacy concerns.24

¶384 Likewise, Justice Ziegler opines at length about the 

allegedly unconstitutional manner in which the search warrants 

were executed. She does so without the benefit of briefs or 

facts.

¶385 Both justices opine about issues not previously raised 

by the parties or the court without giving the parties an 

opportunity to brief or argue the facts or law relevant to those 

issues.

¶386 In my dissent to the court's redaction order dated 

March 27, 2015, I explained at length why this court had the 

power to disclose information that was ordered by the John Doe 

judge to be concealed. See my dissent to this court's March 27, 

2015, redaction order (attached hereto as Exhibit C). This 

 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.
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court disagreed, stating the following in its March 27, 2015, 

redaction order:

The John Doe investigation that is the subject of the 

several proceedings this court is reviewing remains an 

open investigation. While that may complicate how 

this court normally conducts its appellate review 

functions, the convenience of this court and the 

parties/counsel appearing before it does not provide a 

sufficient basis on which to ignore the statutory 

commands to maintain secrecy or the rules we have 

already established for maintaining the secrecy of 

John Doe materials.

¶387 It is unclear what has changed since this court issued 

its March 27, 2015, redaction order that enables the court to 

now exempt itself from the secrecy order.

¶388 For the reasons set forth, I write separately.
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No. 2014AP296-OA: Original Action: State of Wisconsin ex 

rel. Two Unnamed Petitioners v. Gregory A. Peterson, John Doe 

Judge, and Francis D. Schmitz, as Special Prosecutor

¶389 This original action was filed by Unnamed Movants 6 

and 7, naming the Special Prosecutor and the John Doe judge as 

defendants.

¶390 Unnamed Movants 6 and 7 seek a declaration that 

Chapter 11 restricts campaign finance regulation to express 

advocacy and regulation of issue advocacy violates the United 

States and Wisconsin constitutions.

¶391 The majority opinion grants Unnamed Movants 6 and 7 

their requested relief. I would not.

¶392 I conclude that coordinated disbursements for issue 

advocacy constitute regulated contributions under Chapter 11 and 

that such regulation does not violate the First Amendment. By 

coordinated disbursements, I mean disbursements made by third 

parties "for the benefit of a candidate" and "with the 

authorization, direction or control of or otherwise by 

prearrangement with the candidate or the candidate's agent."25 

By issue advocacy, I mean speech regarding issues of public 

concern that does not expressly advocate the election or defeat 

of a candidate.26

 25 See Wis. Stat. § 11.06(4)(d). See also § 11.06(7) 

(describing independent disbursements as disbursements made by a 

committee or individual who "does not act in cooperation or 

consultation with any candidate or authorized committee of a 

candidate" and who "does not act in concert with, or at the 

request or suggestion of, any candidate or agent or authorized 

committee of a candidate").

26 Wis. Right to Life, 551 U.S. at 456.
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¶393 Because I conclude that the Special Prosecutor has a 

valid legal theory to support his investigation, I would allow 

the John Doe proceedings to continue. Accordingly, I dissent.

¶394 I address the statutory and constitutional issues 

presented in this original action as follows:

• In Part I, I describe the alleged election-related 

activities of Unnamed Movants 6 and 7 that are the 

subject of the John Doe investigation.

• In Part II, I determine that the Special Prosecutor's 

theory of criminal activity is supported by Chapter 

11. I disagree with the majority opinion's holding 

that coordinated issue advocacy, like independent 

issue advocacy, is beyond the reach of Chapter 11.

• In Part III, I conclude that the Special Prosecutor's 

theory of criminal activity does not contravene the 

state or federal constitution. I disagree with the 

majority opinion's declarations that the Special 

Prosecutor's interpretation of Chapter 11 renders 

Chapter 11 unconstitutional and that a narrowing 

construction must be applied to prevent Chapter 11's 

invalidation.

¶395 In Part IV, I address three issues that are common to 

the three cases before the court:

• In section A, I consider the motions to file amicus 

briefs regarding the merits of the three cases. I 

join the majority opinion's decision to grant them 

all.
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• In section B, I discuss this court's insistence on

continued observance of the sweeping John Doe secrecy 

order to which the three John Doe cases are subject. 

In my view, the extent of secrecy mandated by the 

court is not warranted.

• In section C, I consider the Special Prosecutor's 

motion requesting the recusal of certain justices from 

the John Doe cases. The recusal motion is still 

pending (including any due process concerns), as are 

three motions to file amicus briefs on the recusal 

issue. 

I

¶396 I cannot begin this writing with the usual recitation 

of facts. There have been no findings of substantive fact by a 

court or judge, nor stipulations of fact by the parties.27 This 

 27 The only facts set forth in the petition and briefs filed 

by Unnamed Movants 6 and 7 are procedural in nature, regarding 

the appointment of the John Doe Judge and the Special Prosecutor 

and the issuance and execution of subpoenas and search warrants.

Justice Ziegler's concurrence in the John Doe trilogy is 

based solely on unsubstantiated allegations made in the parties' 

briefs regarding the execution of the search warrants issued by 

the John Doe judge. Although there have been no findings or 

stipulations of fact regarding the execution of the search 

warrants, Justice Ziegler nevertheless writes at length to 

suggest that the execution of the search warrants rendered them 

unconstitutional under the Fourth Amendment. She states: 

"[E]ven if the search warrants were lawfully issued, the 

execution of them could be subject to the reasonableness 

analysis of the Fourth Amendment . . . ." Justice Ziegler's 

concurrence, ¶¶309, 340. This issue has not been litigated and 

is not, in my view, properly before this court.
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dearth of facts is in sharp contrast to the undisputed facts 

underlying all prior original actions this court has accepted.28

¶397 Although Unnamed Movants 6 and 7 claim that the 

election-related activities alleged by the Special Prosecutor 

are not regulated by Chapter 11, neither their petition for 

leave to commence an original action nor their briefs in this 

court specify the election-related activities to which they are 

referring.

¶398 The Special Prosecutor's brief, on the other hand, 

sets forth information he has gathered regarding the electionrelated activities of Unnamed Movants 6 and 7, among others. On 

the basis of this information, the Special Prosecutor asserts 

that he has reason to believe that a particular candidate or 

candidate's campaign committee coordinated with one or more 

501(c) nonprofit entities; that these 501(c) nonprofit entities 

made disbursements for issue ads in coordination with the 

candidate or candidate's campaign committee; that the ads were 

intended to benefit the candidate's campaign; and that the 

candidate's campaign committee unlawfully failed to report these 

 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-finding tribunal, and 

although it may refer issues of fact to a circuit 

court or referee for determination, it generally will 

not exercise its original jurisdiction in matters 

involving contested issues of fact. Upon granting a 

petition to commence an original action, the court may 

require the parties to file pleadings and stipulations 

of fact.
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coordinated disbursements as contributions received by the 

candidate or candidate's campaign committee.29

¶399 According to the Special Prosecutor, the candidate and 

candidate's campaign committee coordinated with the 501(c) 

nonprofit entities in large part through two political 

operatives, namely Unnamed Movants 6 and 7. The Special 

Prosecutor contends that Unnamed Movants 6 and 7 were paid by 

the candidate's campaign committee and by one or more of the 

 29 The Special Prosecutor has a second and related theory 

based on Wis. Stat. § 11.10(4). Section 11.10(4) provides that 

a putatively separate committee that "acts with the cooperation 

of or upon consultation with a candidate or agent or authorized 

committee of a candidate, or which acts in concert with or at 

the request or suggestion of a candidate or agent or authorized 

committee of a candidate is deemed a subcommittee of the 

candidate's personal campaign committee."

The Special Prosecutor asserts that coordination between 

various 501(c) entities and the candidate's campaign committee 

may have rendered one or more of the 501(c) entities statutory 

subcommittees, whose receipt of contributions and disbursement 

of funds are reportable by the candidate's campaign committee. 

Under this theory, the candidate's campaign committee violated 

Chapter 11 by failing to report issue advocacy disbursements 

made by a subcommittee of the candidate's campaign committee. 

The subcommittee theory is not as fully developed in the Special 

Prosecutor's brief as the theory set forth above. Because I 

conclude that the Special Prosecutor's primary theory is 

sufficient to support the continuation of the John Doe 

proceedings, it is unnecessary to decide whether the 

subcommittee theory does so as well. Accordingly, I do not 

address the subcommittee theory.

I note, as well, that the John Doe judge determined that 

the Special Prosecutor offered no evidence of express advocacy. 

The Special Prosecutor disagrees. I do not address this factual 

dispute.
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501(c) nonprofit entities. Thus, Unnamed Movants 6 and 7 are 

alleged to have acted in a dual capacity.

¶400 One of the Special Prosecutor's central allegations is 

that Unnamed Movants 6 and 7 created and managed a particular 

501(c) nonprofit organization to run issue ads for the benefit 

of the candidate and the candidate's campaign, while the 

candidate asked donors to contribute to the 501(c) nonprofit 

organization instead of to the candidate's campaign committee in 

a blatant attempt to avoid the regulations governing 

contributions to candidates and their campaign committees. 

Further, says the Special Prosecutor, while the 501(c) nonprofit 

entities purchased the issue ads, the candidate——via Unnamed 

Movants 6 and 7——controlled their content, timing, and 

placement. 

¶401 The "coordination" alleged by the Special Prosecutor 

thus includes consultation between the candidate, the 

candidate's campaign committee, Unnamed Movants 6 and 7, various 

501(c) nonprofit entities, and associated individuals regarding 

the content, timing, and placement of issue ads.

¶402 The Special Prosecutor contends that the objective 

underlying this alleged coordination was to ensure that issue 

ads purchased by the 501(c) nonprofit entities provided the 

maximum benefit possible to the candidate's campaign. For 

example, coordination would ensure correct and consistent 

messaging in the issue ads purchased by the 501(c) nonprofit 

entities.
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¶403 Such coordination could also serve to circumvent 

Chapter 11's contribution restrictions and disclosure 

requirements. Untold millions of dollars in undisclosed 

contributions could be funneled into a 501(c) nonprofit entity 

that purchases issue ads written or approved by a candidate or 

the candidate's campaign manager. "If campaigns tell potential 

contributors to divert money to nominally independent groups 

that have agreed to do the campaigns' bidding, these 

contribution limits become porous, and the requirement that 

politicians' campaign committees disclose the donors and amounts 

become useless."30

¶404 The Special Prosecutor contends in the instant case 

that coordination transformed the 501(c) nonprofit entities' 

disbursements for issue advocacy into reportable contributions 

to the candidate or candidate's campaign committee that the 

candidate's campaign committee failed to report, violating 

Chapter 11.31

¶405 At this stage in the John Doe proceedings, the Special 

Prosecutor need not prove that the 501(c) nonprofit entities in 

fact made coordinated disbursements for issue advocacy that were 

reportable by the candidate's campaign committee as 

contributions received by the candidate or candidate's campaign 

committee. Rather, this original action requires the court to 

determine only whether the Special Prosecutor has a valid legal 

 30 O'Keefe, 769 F.3d at 941.

31 See Wis. Stat. §§ 11.27 and 11.61(1)(b).
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theory to support his investigation. If charges are eventually 

filed, only then will a court face the question of whether the 

alleged coordination took place.

¶406 According to the majority opinion, even if the alleged 

coordination took place, Chapter 11 does not regulate it, and 

thus the Special Prosecutor does not have a valid legal theory 

to support his investigation. The majority opinion allows a 

501(c) nonprofit entity to work hand-in-glove with a candidate 

or candidate's campaign committee without violating Chapter 11 

so long as the 501(c) nonprofit entity engages only in issue 

advocacy.

¶407 I address the statutory and constitutional issues 

presented in turn.

II

¶408 The first question presented is whether Chapter 11 

requires a candidate's campaign committee to report certain 

disbursements by 501(c) nonprofit entities as contributions 

received by the candidate or candidate's campaign committee——

namely, disbursements for issue advocacy made in coordination 

with the candidate or candidate's campaign committee. I 

conclude that it does.

¶409 Chapter 11 is not easy to read or understand. It has 

been described as "labyrinthian [sic] and difficult to decipher 

without a background in this area of the law."32 Nevertheless, 

through careful reading and cognizance of certain fundamentals 

 32 Wis. Right to Life v. Barland (Barland II), 751 F.3d 804, 

808 (7th Cir. 2014) (emphasis added).
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of campaign finance law, Chapter 11 can be and has been 

deciphered. State and federal courts have successfully 

interpreted and applied its provisions in a number of cases.33

¶410 With that in mind, I turn to an examination of the 

provisions of Chapter 11 at issue in this original action.

¶411 As an initial matter, there is no dispute that under 

Wis. Stat. § 11.05(2g), a candidate's campaign committee is a 

"registrant" for purposes of Chapter 11. It is also undisputed 

that under Wis. Stat. § 11.06(1), "each registrant" must report 

all "contributions received" and all "disbursements made."

¶412 But what constitutes a "contribution" or 

"disbursement" under Chapter 11? Because the parties contest 

the proper interpretation of these words (and thus the scope of 

the reporting obligation to which a candidate's campaign 

committee is subject), I turn to their statutory definitions.

¶413 "Contribution" is defined as, among other things, "[a] 

gift, subscription, loan, advance, or deposit of money or 

anything of value . . . made for political purposes." Wis. 

Stat. § 11.01(6)(a) (emphasis added).34 "Disbursement" is 

 33 See, e.g., id.

34 Section 11.01(6)(a) reads in relevant part as follows:

(6)(a) Except as provided in par. (b), "contribution" 

means any of the following:

1. A gift, subscription, loan, advance, or deposit of 

money or anything of value, except a loan of money by 

a commercial lending institution made by the 

institution in accordance with applicable laws and 

regulations in the ordinary course of business, made 

for political purposes. In this subdivision "anything 

of value" means a thing of merchantable value.
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defined as, among other things, "[a] purchase, payment, 

distribution, loan, advance, deposit, or gift of money or 

anything of value . . . made for political purposes." Wis. 

Stat. § 11.01(7)(a) (emphasis added).35

¶414 An act done "for political purposes" is defined by 

Wis. Stat. § 11.01(16) as an act "done for the purpose of 

influencing the election or nomination for election of any 

individual to state or local office . . . ." (Emphasis added.)36 

 35 Section 11.01(7)(a) reads in relevant part as follows:

(7)(a) Except as provided in par. (b), "disbursement" 

means any of the following:

1. A purchase, payment, distribution, loan, advance, 

deposit, or gift of money or anything of value, except 

a loan of money by a commercial lending institution 

made by the institution in accordance with applicable 

laws and regulations in the ordinary course of 

business, made for political purposes. In this 

subdivision, "anything of value" means a thing of 

merchantable value.

36 Section 11.01(16) reads in full as follows:

(16) An act is for "political purposes" when it is 

done for the purpose of influencing the election or 

nomination for election of any individual to state or 

local office, for the purpose of influencing the 

recall from or retention in office of an individual 

holding a state or local office, for the purpose of 

payment of expenses incurred as a result of a recount 

at an election, or for the purpose of influencing a 

particular vote at a referendum. In the case of a 

candidate, or a committee or group which is organized 

primarily for the purpose of influencing the election 

or nomination for election of any individual to state 

or local office, for the purpose of influencing the 

recall from or retention in office of an individual 

holding a state or local office, or for the purpose of 

influencing a particular vote at a referendum, all 

administrative and overhead expenses for the 

(continued)
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According to Unnamed Movants 6 and 7, the phrase "for the 

purpose of influencing [an] election," and thus the phrase "for 

political purposes," encompasses only express advocacy. The 

Special Prosecutor, on the other hand, contends that the phrase 

is broader and can encompass both express advocacy and issue 

advocacy.

¶415 The statutory definition of the phrase "for political 

purposes" specifically mentions express advocacy, stating: "Acts 

which are for 'political purposes' include but are not limited 

to . . . communication which expressly advocates the election, 

defeat, recall or retention of a clearly identified 

candidate . . . ."37 Thus, there is no question that 

 

maintenance of an office or staff which are used 

principally for any such purpose are deemed to be for 

a political purpose.

(a) Acts which are for "political purposes" include 

but are not limited to:

1. The making of a communication which expressly 

advocates the election, defeat, recall or retention of 

a clearly identified candidate or a particular vote at 

a referendum.

2. The conduct of or attempting to influence an 

endorsement or nomination to be made at a convention 

of political party members or supporters concerning, 

in whole or in part, any campaign for state or local 

office.

(b) A "political purpose" does not include 

expenditures made for the purpose of supporting or 

defending a person who is being investigated for, 

charged with or convicted of a criminal violation of 

state or federal law, or an agent or dependent of such 

a person.

37 Wis. Stat. § 11.01(16)(a).
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disbursements made for express advocacy are made "for political 

purposes" within the meaning of Chapter 11.

¶416 But the statutory definition of the phrase "for 

political purposes" makes equally clear that its meaning is not 

limited to express advocacy. Section 11.01(16) states that acts 

for political purposes "include but are not limited to" express 

advocacy. It further states that "[i]n the case of a 

candidate . . . all administrative and overhead 

expenses . . . are deemed to be for a political purpose."38 

Administrative and overhead expenses are not advocacy at all, 

let alone express advocacy.

¶417 Thus, the contention by Unnamed Movants 6 and 7 and 

the conclusion of the majority opinion that contributions and 

disbursements are reportable under Chapter 11 only when they are 

made for express advocacy purposes do not square with the 

statutory language.

¶418 Nor does their position square with the function that 

issue advocacy may play in elections. An issue ad may seek to 

raise awareness about an issue generally or to inform voters of 

a candidate's position on an issue. The latter category of 

issue advocacy may influence voters' impressions of certain 

 38 Wis. Stat. § 11.01(16).
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candidates and may therefore influence elections.39 Accordingly, 

I conclude that the statutory definition of the phrase "for 

political purposes" encompasses issue advocacy.

¶419 Not every issue ad, however, will benefit a particular 

candidate's campaign——even if it is intended to do so. When 

issue ads are developed independently of the candidate or the 

candidate's campaign committee, the issue advocacy "might be 

duplicative or counterproductive from a candidate's point of 

view."40

¶420 In contrast, when issue ads are developed in 

coordination with the candidate or the candidate's campaign 

committee, the disbursements made for such ads "are as useful to 

the candidate as cash . . . ."41 For this reason, the United 

 39 As the United States Supreme Court has explained, 

"[c]andidates, especially incumbents, are intimately tied to 

public issues involving legislative proposals and governmental 

actions." Buckley v. Valeo, 424 U.S. 1, 42 (1976). See also

Wis. Right to Life, 551 U.S. at 456-57 (explaining that the 

distinction between express advocacy and issue advocacy may 

dissolve in practice because, as Buckley put it, 

"[c]andidates . . . are intimately tied to public issues" 

(quoting Buckley, 424 U.S. at 42)).

40 Fed. Election Comm'n v. Colo. Republican Fed. Campaign 

Comm. (Colorado II), 533 U.S. 431, 446 (2001) (explaining why 

independent disbursements made for issue advocacy are "poor 

sources of leverage for a spender").

41 Id. at 446 (explaining why coordinated expenditures are 

treated as contributions under federal law).

(continued)
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States Supreme Court has consistently treated coordinated 

expenditures as regulated contributions.42 The United States 

Supreme Court has not differentiated between coordinated 

expenditures made for issue advocacy purposes and coordinated 

expenditures made for express advocacy purposes. The key factor 

for the Court has been coordination.

¶421 This brings me to the next relevant provision within 

Chapter 11: Wis. Stat. § 11.06(4).43 This provision dictates 

 

This is a point the United States Supreme Court has made 

again and again. For example, in Buckley, 424 U.S. at 46, the 

Court stated that "expenditures controlled by or coordinated 

with the candidate and his campaign might well have virtually 

the same value to the candidate as a contribution . . . ." 

Similarly, in McConnell v. Fed. Election Comm'n, 540 U.S. 93, 

221-22 (2003), overruled on other grounds by Citizens United v. 

Fed. Election Comm'n, 558 U.S. 310 (2010), the Court explained 

that "expenditures made after a 'wink or nod' often will be 'as 

useful to the candidate as cash.'"

42 See, e.g., McConnell, 540 U.S. at 214-15 (explaining that 

federal law "treats expenditures that are coordinated with a 

candidate as contributions to that candidate"); Colo. Republican 

Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 611 

(1996) (stating that contribution limits in federal campaign 

finance law apply not only to direct contributions but also to 

"coordinated expenditures," that is, indirect contributions); 

Buckley, 424 U.S. at 46 (providing that under federal law, 

"controlled or coordinated expenditures are treated as 

contributions rather than expenditures").

United States Supreme Court case law governing the 

constitutionality of campaign finance statutes discusses 

"expenditures," not "disbursements," because the word 

"expenditure" is used in federal law. The word "disbursement" 

is used in the Wisconsin statutes.

43 Section 11.06(4) provides in full as follows:

(4) When transactions reportable. (a) A contribution 

is received by a candidate for purposes of this 

chapter when it is under the control of the candidate 

(continued)
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when contributions are reportable by registrants. Two 

subsections are relevant here.

¶422 First, Wis. Stat. § 11.06(4)(a) declares as a general 

matter that a contribution is received by a candidate "when it 

is under the control of the candidate or campaign treasurer," or 

the candidate or treasurer accepts the benefit thereof. When a 

contribution is so received, it becomes reportable.

 

or campaign treasurer, or such person accepts the 

benefit thereof. A contribution is received by an 

individual, group or committee, other than a personal 

campaign committee, when it is under the control of 

the individual or the committee or group treasurer, or 

such person accepts the benefit thereof.

(b) Unless it is returned or donated within 15 days of 

receipt, a contribution must be reported as received 

and accepted on the date received. This subsection 

applies notwithstanding the fact that the contribution 

is not deposited in the campaign depository account by 

the closing date for the reporting period as provided 

in s. 11.20(8).

(c) All contributions received by any person acting as 

an agent of a candidate or treasurer shall be reported 

by such person to the candidate or treasurer within 15 

days of receipt. In the case of a contribution of 

money, the agent shall transmit the contribution to 

the candidate or treasurer within 15 days of receipt.

(d) A contribution, disbursement or obligation made or 

incurred to or for the benefit of a candidate is 

reportable by the candidate or the candidate's 

personal campaign committee if it is made or incurred 

with the authorization, direction or control of or 

otherwise by prearrangement with the candidate or the 

candidate's agent.

(e) Notwithstanding pars. (a) to (e), receipt of 

contributions by registrants under s. 11.05(7) shall 

be treated as received in accordance with that 

subsection.
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¶423 Second, Wis. Stat. § 11.06(4)(d) declares that when a 

disbursement is made "for the benefit of a candidate," it "is 

reportable by the candidate or the candidate's personal campaign 

committee if it is made . . . with the authorization, direction 

or control of or otherwise by prearrangement with the candidate 

or the candidate's agent." (Emphasis added.)

¶424 Although Wis. Stat. § 11.06(4)(d) fails to explicitly 

state that coordinated disbursements are reportable by the 

candidate's campaign committee as contributions to the candidate 

or candidate's campaign committee, this interpretation is 

compelled by the statutory context. All other subsections of 

§ 11.06(4) explicitly govern the receipt and reporting of 

contributions. The clear implication is that § 11.06(4)(d) 

governs the receipt and reporting of contributions.

¶425 This interpretation is also supported by common sense. 

Disbursements made in coordination with a candidate are as 

valuable to the candidate as cash, according to the United 

States Supreme Court, and are therefore treated as contributions 

under federal law.44 The same logic applies here: Disbursements 

made "by prearrangement with the candidate or the candidate's 

 44 Buckley, 424 U.S. at 46.
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agent" are as valuable to the candidate as cash and are 

therefore treated as contributions under Wisconsin law.45

¶426 In contrast, a disbursement made without 

prearrangement with a candidate or the candidate's agent is an 

independent disbursement, not a contribution to the candidate or 

candidate's campaign committee, and is governed by different 

rules.46

¶427 As this discussion makes clear, the words 

"contribution" and "disbursement" have distinct but intertwined 

meanings within Chapter 11. The Special Prosecutor's theory of 

criminal activity in the instant case relies upon the connection 

between the two. He argues that when a 501(c) nonprofit entity 

makes disbursements for issue advocacy in coordination with a 

candidate's campaign committee, such disbursements are 

reportable by the candidate's campaign committee as 

contributions received by the candidate or candidate's campaign 

committee. He further argues that he has reason to believe a 

 45 Wis. Stat. § 11.06(4)(d). See also Wis. Coalition for 

Voter Participation, Inc. v. State Elections Bd. (WCVP), 231 

Wis. 2d 670, 681, 605 N.W.2d 654 (Ct. App. 1999) (explaining 

that both federal campaign finance regulations and Chapter 11 

"treat expenditures that are 'coordinated' with, or made 'in 

cooperation with or with the consent of a candidate . . . or an 

authorized committee' as campaign contributions" (emphasis 

added)). The majority opinion apparently overrules WCVP to the 

extent that WCVP implies that the definition of the phrase "for 

political purposes" in Chapter 11 extends beyond express 

advocacy and its functional equivalent. See majority op., ¶68 

n.23.

46 See, e.g., Wis. Stat. § 11.06(2) (providing that 

independent disbursements are reportable only if they are for 

express advocacy purposes). 
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particular candidate's campaign committee is guilty of violating 

Chapter 11 by failing to fulfill this reporting obligation.47

¶428 For the reasons set forth, the Special Prosecutor's 

theory of criminal activity in the John Doe proceedings 

underlying this original action has a sound basis in the 

statutory text.

¶429 Because I agree with the Special Prosecutor that 

Chapter 11 requires a candidate's campaign committee to report 

coordinated disbursements for issue advocacy as contributions 

received by the candidate or candidate's campaign committee, I 

now consider whether this interpretation of Chapter 11 is 

constitutionally permissible. As might be expected, the Special 

Prosecutor says it is, while Unnamed Movants 6 and 7 and the 

majority opinion say it is not.

III

¶430 Two constitutional questions are presented in this 

original action. The first is whether Chapter 11's requirement 

that a candidate's campaign committee report coordinated

disbursements for issue advocacy as contributions to the 

candidate or candidate's campaign committee violates the First 

Amendment. The second is whether the provisions of Chapter 11 

that impose the reporting requirement at issue are 

 47 See Wis. Stat. § 11.27(1) (providing that "[n]o person 

may prepare or submit a false report or statement to a filing 

officer under this chapter"); Wis. Stat. § 11.61(1)(b) (stating 

that "[w]hoever intentionally violates . . . 11.27(1) . . . is 

guilty of a Class I felony if the intentional violation does not 

involve a specific figure or if the intentional violation 

concerns a figure which exceeds $100 in amount or value").
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unconstitutionally vague or overbroad. Whether the reporting 

requirement at issue is contrary to the First Amendment and 

whether the provisions imposing that requirement are 

unconstitutionally vague or overbroad are interrelated 

questions.48 I address these questions in turn.

¶431 The absolutist constitutional position advanced by 

Unnamed Movants 6 and 7 and adopted by the majority opinion 

hook, line, and sinker is that the First Amendment bars the 

State from regulating any issue advocacy in any manner. In 

their view, the First Amendment protects against state 

regulation of disbursements for issue advocacy regardless of 

whether the disbursements are made independently or in 

coordination with a candidate or candidate's campaign committee. 

I disagree.

¶432 The majority opinion's rhetoric would lead the reader 

to conclude that the case law provides a clear answer to the

First Amendment issue before the court, namely that the Unnamed 

Movants' position is correct and that the Special Prosecutor's 

position "is unsupported in either reason or law."49 The

majority opinion's view contradicts the views expressed by both 

the John Doe judge and the United States Court of Appeals for 

the Seventh Circuit.

 48 Center for Individual Freedom v. Madigan, 697 F.3d 464, 

479 (7th Cir. 2012) ("In the First Amendment context, vagueness 

and overbreadth are two sides of the same coin . . . .").

49 Majority op., ¶11.
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¶433 The John Doe judge observed that the First Amendment 

question presented in this original action has "spawned 

considerable litigation."50 It is, he explained, "an important 

question" that deserves, but does not yet have, "a definitive 

answer."51

¶434 Similarly, in O'Keefe v. Chisholm, 769 F.3d 936 (7th 

Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015), the Seventh 

Circuit Court of Appeals made it perfectly clear that the 

Special Prosecutor's theory is rooted in a live legal issue. 

The O'Keefe court stated that whether coordinated issue advocacy 

disbursements are regulable under the First Amendment is far 

from "beyond debate."52 On the contrary, it explained: The 

Special Prosecutor's theory of criminal activity in the John Doe 

 50 In his November 6, 2014, order denying the two Unnamed 

Movants' motion to have the Special Prosecutor show cause why 

the John Doe investigation should not be ended, the John Doe 

judge stated: 

[T]here is a strong public interest in having the 

appellate courts answer the statutory question that is 

at the heart of this litigation: when Wisconsin's 

campaign finance laws prohibit coordination between 

candidates and independent organizations for a 

political purpose, does that political purpose require 

express advocacy? This is an important question that 

has spawned considerable litigation. The citizens of 

this state need and deserve a definitive answer. They 

will not get one if I grant the motion.

This order was not publicly released. Other portions of 

the order refer to matters subject to the John Doe secrecy 

order. The above-quoted portion does not.

51 See the John Doe judge's November 6, 2014, order.

52 O'Keefe, 769 F.3d at 942.
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investigation underlying this litigation "reflects Buckley's 

interpretation of the First Amendment."53 Indeed, the O'Keefe

court stated, "[n]o opinion issued by the Supreme Court, or by 

any court of appeals, establishes ('clearly' or otherwise) that 

the First Amendment forbids regulation of coordination between 

campaign committees and issue-advocacy groups——let alone that 

the First Amendment forbids even an inquiry into that topic."54

¶435 This statement in O'Keefe is particularly telling 

considering that the majority opinion relies heavily on a prior

opinion of the same federal court of appeals: Wisconsin Right 

to Life, Inc. v. Barland (Barland II), 751 F.3d 804 (7th Cir. 

2014). Barland II does not render this original action an open-

 53 Id. at 941.

54 The relevant portion of the O'Keefe opinion provided in 

full as follows: 

Plaintiffs' claim to constitutional protection for 

raising funds to engage in issue advocacy coordinated 

with a politician's campaign committee [the same claim 

asserted by Unnamed Movants 6 and 7 in this original 

action] has not been established "beyond debate." To 

the contrary, there is a lively debate among judges 

and academic analysts. The Supreme Court regularly 

decides campaign-finance issues by closely divided 

votes. No opinion issued by the Supreme Court, or by 

any court of appeals, establishes ("clearly" or 

otherwise) that the First Amendment forbids regulation 

of coordination between campaign committees and issueadvocacy groups——let alone that the First Amendment 

forbids even an inquiry into 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, supra note 12; Smith, supra note 12.
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and-shut case, much as the majority opinion would like us to 

believe.

¶436 Like the John Doe judge and the Seventh Circuit Court 

of Appeals, I conclude that the constitutional question 

presented has not yet been definitively resolved. The answer 

must be deduced through careful analysis of a complex body of 

federal case law that has set forth principles governing the 

constitutionality of campaign finance statutes. In my view, 

this careful analysis reveals that Chapter 11's requirement that

a candidate's campaign committee report coordinated issue 

advocacy disbursements as contributions received by the 

candidate or candidate's campaign committee does not violate the 

First Amendment.

¶437 The federal case law governing the constitutionality 

of campaign finance statutes, much like Chapter 11, presents a

labyrinth that must be navigated. The starting point is Buckley 

v. Valeo, 424 U.S. 1 (1976), a long and complex opinion that 

considered whether various provisions of the Federal Election 

Campaign Act of 1971, as amended in 1974, were consistent with 

the First Amendment.

¶438 Buckley drew a distinction between contributions to 

candidates and their campaign committees, on the one hand, and 

independent expenditures for political expression, on the other
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hand.55 It declared that under the First Amendment, ceilings may 

be imposed on contributions but not on independent 

expenditures.56 The Buckley Court reached this conclusion by 

scrutinizing the burdens imposed on political speech by 

contributions and independent expenditure limits, respectively, 

and by evaluating those burdens in light of the governmental 

interests such limits serve.57

¶439 The Buckley Court first determined that the burden 

imposed on political speech by contribution limits is minimal: 

"A limitation on the amount of money a person may give to a 

candidate or campaign organization [] involves little direct 

restraint on his political communication, for it permits the 

symbolic expression of support evidenced by a contribution but 

does not . . . infringe [on] the contributor's freedom to 

discuss candidates and issues."58 The Court then declared that 

the government's interest in "the prevention of corruption and 

the appearance of corruption spawned by the real or imagined 

coercive influence of large financial contributions" provides a 

 55 See generally Buckley, 424 U.S. at 14-23. See also

Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 345 

(2010) ("The Buckley Court explained that the potential for quid 

pro quo corruption distinguished direct contributions to 

candidates from independent expenditures.").

56 Buckley, 424 U.S. at 23-59.

57 Id.

58 Id. at 21.
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"constitutionally sufficient justification" for this minimal 

burden.59

¶440 In contrast, the Buckley Court declared that 

independent expenditure limits "impose direct and substantial 

restraints on the quantity of political speech" that are not 

justified by the government's anti-corruption interest.60 Unlike 

contributions, the Court explained,

independent expenditures may [] provide little 

assistance to the candidate's campaign and indeed may 

prove counterproductive. The absence of 

prearrangement and coordination of an expenditure with 

the candidate or his agent not only undermines the 

value of the expenditure to the candidate, but also 

alleviates the danger that expenditures will be given 

as a quid pro quo for improper commitments from the 

candidate.61

¶441 After upholding contribution limits and striking down 

independent expenditure limits, the Buckley Court turned to the 

constitutionality of disclosure requirements. It concluded that 

such requirements are constitutionally permissible as applied 

both to contributions and to independent expenditures made for 

express advocacy purposes,62 reasoning that disclosure 

 59 Id. at 25-26.

60 Id. at 39.

61 Id. at 47.

62 As a matter of statutory interpretation (to avoid 

invalidation on vagueness grounds), the Buckley Court determined 

that the independent expenditure disclosure requirement applied 

only to independent expenditures made for express advocacy 

purposes, not to independent expenditures made for issue 

advocacy purposes. Buckley, 424 U.S. at 78-80. The Court did 

not so limit the contribution disclosure requirement. Id. at 

78.
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requirements impose no ceiling on political speech and are an 

effective anti-corruption measure.63 Indeed, the Court 

explained, disclosure requirements "appear to be the least 

restrictive means of curbing the evils of campaign ignorance and 

corruption that Congress found to exist."64

¶442 In all three regulatory contexts——that is, with regard 

to contribution limits, independent expenditure limits, and 

disclosure requirements——the Buckley Court made one point 

eminently clear: Coordinated expenditures constitute 

contributions to the candidate or candidate's campaign committee 

for purposes of federal law. More specifically, the Court held 

that federal law treats expenditures as contributions received 

by the candidate or candidate's campaign committee if the 

expenditures are prearranged or coordinated with the candidate 

or are "placed in cooperation with or with the consent of a 

candidate."65 After all, the Court explained, these expenditures 

are in reality "disguised contributions."66 Disguised 

contributions are subject to the limitations and disclosure 

requirements that govern all other contributions.67

 63 Buckley, 424 U.S. at 66.

64 Id. at 68.

65 Id. at 78.

66 Id. at 46-47. See also Ferguson, supra note 12, at 479 

(explaining that the United States Supreme Court "continues to 

clearly signal that the line between contributions and 

expenditures depends on a spender's independence").

67 Buckley, 424 U.S. at 46-47.
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¶443 In declaring that coordinated expenditures constitute

disguised contributions to the candidate or candidate's campaign 

committee, the Buckley Court did not specify whether it meant 

all coordinated expenditures or only coordinated expenditures 

made for express advocacy purposes. The Buckley Court's broad 

statement that coordinated expenditures constitute disguised 

contributions would seem to compel the conclusion that the type 

of advocacy such expenditures implement is irrelevant; the 

coordination is what matters. This is the approach taken by the

Special Prosecutor. Unnamed Movants 6 and 7, however, urge this 

court to hold that only coordinated expenditures for express 

advocacy constitute disguised contributions.

¶444 Subsequent case law sheds light on this issue. PostBuckley decisions have followed Buckley's holding that 

coordinated expenditures are subject to the limitations and 

disclosure requirements governing contributions. The case law 

discussing coordinated expenditures has not distinguished 

between coordinated expenditures for express advocacy and for 

issue advocacy.

¶445 Federal Election Commission v. Colorado Republican 

Federal Campaign Committee (Colorado II), 533 U.S. 431, 446 

(2001), is illustrative. The Colorado II Court reaffirmed 

Buckley's analysis of disguised contributions, explaining that 

there is no difference between coordinated expenditures and 

direct contributions to a candidate or candidate's campaign 

committee that would justify treating the two differently.68 

 68 Colorado II, 533 U.S. at 464-65.
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Coordinated expenditures, like contributions, might be given as 

a quid pro quo for improper commitments from the candidate.

¶446 The Colorado II Court summarized Buckley's discussion 

of disguised contributions as follows:

[In Buckley], the rationale for endorsing Congress's 

equation of coordinated expenditures and contributions 

was that the equation "prevent[s] attempts to 

circumvent the Act through prearranged or coordinated 

expenditures amounting to disguised contributions." 

The idea was that coordinated expenditures are as 

useful to the candidate as cash, and that such 

"disguised contributions" might be given "as a quid 

pro quo for improper commitments from the candidate"

(in contrast to independent expenditures, which are 

poor sources of leverage for a spender because they 

might be duplicative or counterproductive from a 

candidate's point of view). In effect, therefore, 

Buckley subjected limits on coordinated expenditures 

by individuals and nonparty groups to the same 

scrutiny it applied to limits on their cash 

contributions.69

 69 Id. at 446 (citations omitted).

Later on, the Colorado II Court further stated that

[t]here is no significant functional difference 

between a party's coordinated expenditure and a direct 

party contribution to the candidate, and there is good 

reason to expect that a party's right of unlimited 

coordinated spending would attract increased 

contributions to parties to finance exactly that kind 

of spending. Coordinated expenditures of money 

donated to a party are tailor-made to undermine 

contribution limits. Therefore the choice here is 

not, as in Buckley and Colorado I, between a limit on 

pure contributions and pure expenditures. The choice 

is between limiting contributions and limiting 

expenditures whose special value as expenditures is 

also the source of their power to corrupt.

Colorado II, 533 U.S. at 464-65.
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¶447 In Federal Election Commission v. Christian Coalition, 

52 F. Supp. 2d 45, 87-88 (D.D.C. 1999), the D.C. District Court 

rejected as untenable the notion that coordinated express 

advocacy expenditures and coordinated issue advocacy 

expenditures should be treated differently.70 Both constitute 

disguised contributions, the court held, and both should be 

treated as such.71

¶448 The Christian Coalition court made clear that issue 

advocacy is not beyond the reach of a state's regulatory power 

as a matter of constitutional law, explaining that the First 

Amendment permits "only narrowly tailored restrictions on speech 

that advance the Government's anti-corruption interest, but the 

Coalition's position allows for no restrictions at all on 

[coordinated issue advocacy] expenditures."72 The Christian 

Coalition court then declared that the distinction drawn in 

Buckley between issue advocacy and express advocacy is of no 

constitutional or statutory import in the realm of coordinated 

expenditures:

[I]mporting the 'express advocacy' standard into [the 

contribution regulation at issue] would misread 

 70 Federal Election Commission v. Christian Coalition, 52 F. 

Supp. 2d 45 (D.D.C. 1999).has had a far-reaching impact on state 

and federal regulation of campaign coordination. See Ferguson, 

supra note 12, at 481.

71 Christian Coalition, 52 F. Supp. 2d at 88.

72 Christian Coalition, 52 F. Supp. 2d at 88. See also

McConnell, 540 U.S. at 190 ("[T]he express advocacy restriction 

[imposed by Buckley] was an endpoint of statutory 

interpretation, not a first principle of constitutional law.").
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Buckley and collapse the distinction between 

contributions and independent expenditures in such a 

way as to give short shrift to the government's 

compelling interest in preventing real and perceived 

corruption that can flow from large campaign 

contributions.73

¶449 Christian Coalition recognizes that distinguishing 

between coordinated issue advocacy expenditures and coordinated 

express advocacy expenditures would ignore the basic fact that 

both can be "as useful to the candidate as cash."74 Indeed, the 

Christian Coalition court explained that

[c]oordinated expenditures for [communications that 

spread a negative message about an opponent] would be 

substantially more valuable than dollar-equivalent 

contributions [to a candidate] because they come with 

an 'anonymity premium' of great value to a candidate 

running a positive campaign. Allowing such 

coordinated expenditures would frustrate both the 

anticorruption and disclosure goals of the Act.75

¶450 In my opinion, Christian Coalition provides a 

persuasive reading of the First Amendment principles set forth 

 73 Christian Coalition, 52 F. Supp. 2d at 88.

74 McConnell, 540 U.S. at 221.

75 Christian Coalition, 52 F. Supp. 2d at 88.
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in Buckley and its progeny.76 It pays heed to the functionalist 

approach the case law takes to distinguishing between 

contributions to the candidate or candidate's campaign committee 

and independent expenditures,77 and it is careful not to extend 

prior campaign finance holdings beyond their intended scope. It 

is also supported by federal case law, which makes clear that 

campaign finance disclosure requirements can constitutionally 

reach beyond express advocacy and its functional equivalent and 

 76 The few Wisconsin authorities available on the subject of 

coordinated disbursements track the reasoning of Christian 

Coalition. See, e.g., Wis. Coalition for Voter Participation, 

Inc. v. State Elections Bd. (WCVP), 231 Wis. 2d 670, 605 

N.W.2d 654 (Ct. App. 1999) (addressing Chapter 11's regulation 

of coordinated issue advocacy disbursements in Justice Jon 

Wilcox's election campaign). In WCVP, the Wisconsin court of 

appeals explained that although Buckley imposed limits on the 

regulation of independent disbursements for issue ads, "neither 

Buckley nor [Chapter 11] limit the state's authority to regulate 

or restrict campaign contributions." Id. at 679. The WCVP

court further explained that Chapter 11 "treat[s] expenditures 

that are 'coordinated' with, or made 'in cooperation with or 

with the consent of a candidate . . . or an authorized 

committee' as campaign contributions."76 Id. at 681 Under WCVP, 

the mere fact that Chapter 11 regulates coordinated 

disbursements for issue ads does not conflict with the

constitutional principles set forth in Buckley.

See also Wis. El. Bd. Op. 00-2 (reaffirmed Mar. 26, 2008)

adopting the Christian Coalition approach to examining the 

conduct of the candidate and the entity disbursing funds and 

explaining that "the Courts seemed to be willing to merge 

express advocacy with issue advocacy if 'coordination' between 

the spender and the campaign is sufficient."

77 See, e.g., McConnell, 540 U.S. at 221 (2003) ("[T]he 

rationale for affording special protection to wholly independent

expenditures has nothing to do with the absence of agreement and 

everything to do with the functional consequences of different 

types of expenditures.").
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thus makes clear that the express/issue advocacy distinction is 

not constitutionally relevant in all campaign finance contexts.78

 78 In Citizens United, 558 U.S. at 368-69, the Court 

rejected the contention that "the disclosure requirements in 

§ 201 [of the Bipartisan Campaign Reform Act of 2002] must be 

confined to speech that is the functional equivalent of express 

advocacy." Id. at 368. The distinction between issue advocacy 

and express advocacy drawn by the Court in prior cases

considering restrictions on independent expenditures should not, 

the Citizens United Court held, be imported into the realm of 

disclosure requirements. By making clear that the express/issue 

advocacy distinction is relevant only with regard to independent

expenditures, Citizens United corroborates Christian Coalition's 

holding that the distinction is irrelevant to the limits and 

disclosure requirements applicable to coordinated expenditures.

Madigan, 697 F.3d at 484, relies on this discussion in 

Citizens United to support its conclusion that the express/issue 

advocacy distinction is constitutionally irrelevant in the 

context of disclosure requirements:

[M]andatory disclosure requirements are 

constitutionally permissible even if ads contain no 

direct candidate advocacy . . . . Whatever the status 

of the express advocacy/issue discussion distinction 

may be in other areas of campaign finance law, 

Citizens United left no doubt that disclosure 

requirements need not hew to it to survive First 

Amendment scrutiny. With just one exception, every 

circuit that has reviewed First Amendment challenges 

to disclosure requirements since Citizens United has 

concluded that such laws may constitutionally cover 

more than just express advocacy and its functional 

equivalents, and in each case the court upheld the 

law.

(Citation omitted.)

(continued)
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¶451 I move on to Wisconsin Right to Life v. Barland

(Barland II), 751 F.3d 804 (7th Cir. 2014). Despite 

implications to the contrary in the majority opinion, Barland II

is consistent with Christian Coalition. Barland II addresses

the regulation of independent spending under Chapter 11, while 

 

Madigan cites and relies on other federal cases that reach 

the same conclusion in light of Citizens United, including The 

Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681 

F.3d 544, 551 (4th Cir. 2012) (explaining that Citizens United

upheld disclosure requirements for communications "that are not

the functional equivalent of express advocacy"); Nat'l Org. for 

Marriage v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011) ("We find 

it reasonably clear, in light of Citizens United, that the 

distinction between issue discussion and express advocacy has no 

place in First Amendment review of these sorts of disclosureoriented laws."); and Human Life of Wash., Inc. v. Brumsickle, 

624 F.3d 990, 1016 (9th Cir. 2010) ("Given the Court's analysis 

in Citizens United, and its holding that the government may 

impose disclosure requirements on speech, the position that 

disclosure requirements cannot constitutionally reach issue 

advocacy is unsupportable.").

Since Madigan was decided, additional federal cases have 

interpreted Citizens United in the same manner, that is, as 

declaring that campaign finance disclosure requirements can 

cover more than express advocacy and its functional equivalent 

without running afoul of the First Amendment. See Vt. Right to 

Life Comm. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) ("In 

Citizens United, the [United States] Supreme Court expressly 

rejected the 'contention that the disclosure requirements must 

be limited to speech that is the functional equivalent of 

express advocacy,' because disclosure is a less restrictive 

strategy for deterring corruption and informing the 

electorate."); Iowa Right to Life Comm. v. Tooker, 717 F.3d 576, 

591 n.1 (8th Cir. 2013) ("Disclosure requirements need not 'be 

limited to speech that is the functional equivalent of express 

advocacy.'" (quoting Citizens United); Independence Inst. v. 

Fed. Election Comm'n, ___ F. Supp. 3d ___, 2014 WL 4959403

(D.D.C. Oct. 6, 2014) (stating that the Citizens United Court 

"in no uncertain terms . . . rejected the attempt to limit 

[federal campaign finance law] disclosure requirements to 

express advocacy and its functional equivalent").
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Christian Coalition tackles the regulation of coordinated

spending under federal law.

¶452 In Barland II, Wisconsin Right to Life (a 501(c) 

nonprofit entity) and its state political action committee 

challenged various provisions within Chapter 11 as 

unconstitutional only insofar as those provisions 

"trigger[ed] . . . restrictions and requirements for independent 

groups not under the control of a candidate or candidate's 

committee . . . ."79 The Barland II court was careful to note

that Wisconsin Right to Life and its state PAC "operate[d]

independently of candidates and their campaign committees."80

¶453 In contrast to the independent groups at issue in 

Barland II, in the instant case the Special Prosecutor contends 

that 501(c) nonprofit entities made disbursements for issue ads 

in coordination with a candidate's campaign committee. The 

disbursements at issue in the present case are not independent. 

Barland II does not extend beyond the context of independent 

political speech and is therefore not dispositive of the First 

Amendment question presented in this original action.

¶454 Given this case law, I would hold that in the eyes of 

both Chapter 11 and the First Amendment, coordinated 

disbursements are disguised contributions regardless of whether 

they are made for express advocacy or issue advocacy purposes. 

Accordingly, in contrast to the majority opinion, I would hold 

 79 Barland II, 751 F.3d at 829 (emphasis added).

80 Id. at 809.
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that Chapter 11's requirement that a candidate's campaign 

committee report coordinated issue advocacy disbursements as 

contributions is consistent with the First Amendment.

¶455 Unnamed Movants 6 and 7 further contend, and the 

majority opinion holds, that their interpretation of Chapter 11 

is compelled by the doctrines of overbreadth and vagueness. I 

turn to this argument now.

¶456 The Unnamed Movants' positions on overbreadth and 

vagueness are twofold.

¶457 First, they urge that the phrase "for political 

purposes," which is part of Chapter 11's definitions of the 

words "contribution"81 and "disbursement,"82 is unconstitutionally 

vague and overbroad unless the phrase is read to mean "for 

express advocacy purposes."

¶458 Second, Unnamed Movants 6 and 7 contend that the 

concept of "coordination" within Chapter 11 is fatally 

imprecise. In their view, the provisions of Chapter 11 that 

ostensibly regulate coordination, including § 11.06(4)(d), 

should be struck down as unconstitutionally vague and overbroad 

or, at the very least, limited to express advocacy.

¶459 I address these arguments in turn. To address 

overbreadth and vagueness arguments relating to the phrase "for 

political purposes," I return to Buckley and Barland II. 

Unnamed Movants 6 and 7 contend, and the majority opinion 

 81 See Wis. Stat. § 11.01(6)(a).

82 See Wis. Stat. § 11.01(7)(a).
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agrees, that an express-advocacy limiting construction must be 

applied in the instant case based on Buckley and Barland II. 

They misread the case law. 

¶460 The Buckley Court applied an express-advocacy limiting 

construction to two statutory provisions, one imposing a limit 

on expenditures and one requiring that expenditures be reported.

¶461 The provision imposing a limit on expenditures stated 

that "[n]o person may make any expenditure . . . relative to a 

clearly identified candidate during a calendar year which, when 

added to all other expenditures made by such person during the 

year advocating the election or defeat of such 

candidate, exceeds $1,000."83 The challengers in Buckley argued 

that the phrase "relative to a clearly identified candidate" is 

unconstitutionally vague. The Buckley Court agreed.

¶462 The Buckley Court explained that the challenged 

provision failed to clarify whether it covered both express 

advocacy and issue advocacy expenditures. The Court decided, 

however, that in the context of the provision as a whole, the 

phrase "relative to a clearly identified candidate" could mean 

"advocating the election or defeat of a candidate," that is, 

could mean express advocacy.84 The Court determined that this 

reading would avoid vagueness concerns. Thus, it construed the 

expenditure limit as applying only to express advocacy.

 83 Buckley, 424 U.S. at 39 (emphasis added).

84 Id. at 42.
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¶463 The second provision to which the Buckley Court 

applied an express-advocacy limiting construction required 

expenditures to be disclosed. The word "expenditure" was 

defined "in terms of the use of money or other valuable assets 

'for the purpose of . . . influencing' the nomination or 

election of candidates for federal office."85 The Court 

determined that vagueness concerns arose insofar as this 

expenditure disclosure provision applied to individuals other 

than candidates and political committees because the phrase "for 

the purpose . . . of influencing [an election]" carries the 

potential "for encompassing both issue discussion and advocacy 

of a political result."86

¶464 To avoid vagueness concerns, the Court again applied 

an express-advocacy limiting construction, this time to the 

phrase "for the purpose of . . . influencing [an election]." 

The Court held that the expenditure disclosure provision

required expenditures by entities other than candidates and 

political committees to be disclosed under only two 

circumstances: (1) when the expenditures were authorized or 

requested by a candidate or his agent (i.e., coordinated 

expenditures); and (2) when the expenditures were for express 

advocacy (i.e., independent express advocacy expenditures).87 

Independent issue advocacy expenditures were not required to be 

disclosed.

 85 Id. at 77.

86 Id. at 79.

87 Id. at 80.
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¶465 Importantly, the Buckley Court's application of these 

express-advocacy limiting constructions was confined to the 

realm of independent expenditures. As previously explained, the 

Buckley Court considered coordinated expenditures to be 

"disguised contributions."88 Buckley expressly rejected the 

argument that the statutory provisions imposing limits and 

disclosure requirements on contributions were unconstitutionally 

vague or overbroad.89

¶466 Further, in applying express-advocacy limiting 

constructions to the statutory provisions imposing limits and 

disclosure requirements on independent expenditures, the Buckley

Court did not establish as a matter of constitutional law that 

regulation 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 removes all issue 

advocacy from state regulation, the United States Supreme Court 

in McConnell v. Federal Election Commission, 540 U.S. 93, 190-91

 88 Id. at 46-47. See also Colorado II, 533 U.S. at 463-64 

(explaining that the imposition of a limiting construction on 

provisions imposing expenditure limits in Buckley and subsequent 

federal cases "ultimately turned on the understanding that the 

expenditures at issue were not potential alter egos for 

contributions, but were independent . . . . [T]he 

constitutionally significant fact . . . was the lack of 

coordination between the candidate and the source of the 

expenditure" (internal quotation marks and citation omitted) 

(emphasis added)).

89 See Buckley, 424 U.S. at 29-30, 78.

90 See O'Keefe, 769 F.3d at 942.
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(2003), overruled on other grounds by Citizens United v. Fed. 

Election Comm'n, 558 U.S. 310 (2010), explicitly ruled that it 

would be a "misapprehen[sion]" to read Buckley as holding that 

there exists "a constitutionally mandated line between express 

advocacy and so-called issue advocacy, and that speakers possess 

an inviolable First Amendment right to engage in the latter 

category of speech."91 Rather, said the McConnell Court,

a plain reading of Buckley makes clear that the 

express advocacy limitation, in both the expenditure 

and the disclosure contexts, was the product of 

statutory interpretation rather than a constitutional 

command. In narrowly reading the [federal law]

provisions in Buckley to avoid problems of vagueness 

and overbreadth, we nowhere suggested that a statute 

that was neither vague nor overbroad would be required 

to toe the same express advocacy line.92

¶468 With this United States Supreme Court precedent in 

mind, the Barland II court took up the issues of vagueness and 

overbreadth within Chapter 11.

¶469 The statutory provision considered by the Barland II

court that is relevant to this original action is Wis. Stat. 

§ 11.01(16), which (as explained previously) defines the phrase 

"for political purposes."

¶470 Pursuant to § 11.01(16), an act is done "for political 

purposes" when it is intended to influence an election. The 

 91 McConnell, 540 U.S. at 190.

92 Id. at 191-92 (footnote omitted).

See also Wis. Right to Life, 551 U.S. at 474 n.7 (Roberts, 

C.J., controlling opinion) ("Buckley's intermediate step of 

statutory construction on the way to its constitutional holding 

does not dictate a constitutional test.").
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Barland II court considered the meaning of the "influence an 

election" language in the context of reporting requirements and 

other duties and restrictions applicable to the independent

political speakers at issue in that case.

¶471 The Barland II court announced that as applied to 

independent political speakers, the phrase "for political 

purposes" must be narrowly construed to cover only "express 

advocacy and its functional equivalent."93 The factual scenario 

presented to this court in this original action was expressly 

excluded from Barland II's express-advocacy limiting 

construction.94 Barland II does not require this court to apply 

an express-advocacy limiting construction beyond the context of 

the independent political speech involved in that case.

¶472 Keeping in mind the express-advocacy limiting 

constructions applied in Buckley to the phrases "relative to a 

clearly identified candidate" and "for the purposes 

of . . . influencing . . . [an] election," and in Barland II to 

the phrase "for the purpose of influencing [an] election," I 

turn to the vagueness and overbreadth challenges advanced by 

Unnamed Movants 6 and 7 and accepted by the majority opinion in 

this original action.

 93 Barland II, 751 F.3d at 834.

94 Barland II, 751 F.3d at 834 ("As applied to political 

speakers other than candidates, their committees, and political 

parties, the statutory definition of 'political 

purposes' . . . [is] limited to express advocacy and its 

functional equivalent . . . .") (emphasis added).
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¶473 The fundamental point to remember in deciding campaign 

finance law cases is that context is key. When vagueness or 

overbreadth concerns arise in the campaign finance context, they 

arise with regard to particular conduct and specified political 

speakers. When a limiting construction has been applied to a 

campaign finance statute, it has been applied with regard to 

particular conduct and specified political speakers.95 Just 

because a phrase is vague or overbroad in one context within 

Chapter 11 does not mean it is vague or overbroad throughout the 

Chapter.

¶474 The provision at issue in the instant case is the 

requirement in Wis. Stat. § 11.06(1) that registrants report all 

contributions received. The definition of "contribution" under 

Chapter 11 comports with the definition of "contribution" 

considered in Buckley: Anything of value given for the purposes 

of influencing an election. The Buckley Court expressly 

declined to apply an express-advocacy limiting construction to 

the phrase "for the purpose of influencing [an] election" in the 

definition of "contribution," finding no constitutional 

infirmity:

The Act does not define the phrase "for the purpose of 

influencing" an election that determines when a gift, 

loan, or advance constitutes a contribution. Other 

 95 See Barland II, 751 F.3d at 837 ("The First Amendment 

vagueness and overbreadth calculus must be calibrated to the 

kind and degree of the burdens imposed on those who must comply 

with the regulatory scheme."). See also United States v. 

Williams, 553 U.S. 285, 293 (2008) ("[I]t is impossible to 

determine whether a statute reaches too far without first 

knowing what the statute covers.").
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courts have given that phrase a narrow meaning to 

alleviate various problems in other contexts. The use 

of the phrase presents fewer problems in connection 

with the definition of a contribution because of the 

limiting connotation created by the general 

understanding of what constitutes a political 

contribution.96

¶475 I would adhere to Buckley and its progeny. I would 

not construe Wis. Stat. § 11.06(1) as excluding coordinated 

disbursements for issue advocacy from its general requirement 

that "all contributions received" by a candidates or candidate's 

campaign committee be reported by the candidate's campaign 

committee. 

 96 Buckley, 424 U.S. at 23 n.24 (citations omitted). See 

also id. at 78-80, which addresses the vagueness challenge 

brought against disclosure and reporting requirements applicable 

to contributions and expenditures. The Court denied the 

challenge insofar as it reached contributions. With regard to 

expenditures, the Court denied the challenge insofar as it 

reached non-independent political speakers:

The general requirement that "political committees" 

and candidates disclose their expenditures could raise 

similar vagueness problems, for "political committee" 

is defined only in terms of amount of annual 

"contributions" and "expenditures," and could be 

interpreted to reach groups engaged purely in issue 

discussion. The lower courts have construed the words 

"political committee" more narrowly. To fulfill the 

purposes of the Act they need only encompass 

organizations that are under the control of a 

candidate or the major purpose of which is the 

nomination or election of a candidate. Expenditures 

of candidates and of "political committees" so 

construed can be assumed to fall within the core area 

sought to be addressed by Congress. They are, by 

definition, campaign related.

Buckley, 424 U.S. at 79 (footnotes omitted).
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¶476 The second contention advanced by Unnamed Movants 6 

and 7——that the concept of "coordination" is vague and overbroad

and thus must be limited to express advocacy or invalidated 

altogether——also fails.97

¶477 Unnamed Movants 6 and 7 do not tether their broader 

argument to a particular statutory text. They claim that the 

various provisions within Chapter 11 that might be interpreted 

as regulating coordination (such as § 11.06(4)(d), which 

provides that coordinated disbursements are reportable by a 

candidate's campaign committee) fail to define sufficiently the 

concept of coordination. Thus, Unnamed Movants 6 and 7 assert 

that the provisions are unconstitutionally vague and overbroad.

¶478 In McConnell v. Federal Election Commission, 540 U.S. 

93 (2003), overruled on other grounds by Citizens United v. Fed. 

Election Comm'n, 558 U.S. 310 (2010), the United States Supreme 

Court rejected a similar argument. The federal law under review 

in McConnell provided that coordinated expenditures were 

"expenditures made 'in cooperation, consultation, or concer[t] 

with, or at the request or suggestion of' a candidate."98 The 

McConnell Court stated that this "longstanding definition of 

coordination 'delineates its reach in words of common 

 97 For a discussion of state and federal campaign finance 

statutes that regulate or define campaign coordination, see 

Ferguson, supra note 12. This article argues not only that 

campaign coordination can be regulated consistent with the First 

Amendment but also that the coordination subject to regulation 

should include third-party expenditures that a candidate deems 

valuable, as evidenced by the candidate's conduct.

98 McConnell, 540 U.S. at 222 (2003).
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understanding.'"99 Thus, the Court observed, it had "survived 

without constitutional challenge for almost three decades."100 

The Court concluded that this "definition of coordination gives 

'fair notice to those to whom [it] is directed,' and is not 

unconstitutionally vague."101

¶479 The language of Wis. Stat. § 11.06(4)(d) is similar, 

though not identical, to the language at issue in McConnell. As 

in McConnell, this language delineates the reach of Chapter 11's 

concept of coordination "in words of common understanding."102

¶480 Center for Individual Freedom v. Madigan, 697 F.3d 464 

(7th Cir. 2012) is also instructive. In Madigan, a 501(c) 

nonprofit entity engaged in issue advocacy challenged the 

disclosure regime in effect in Illinois as unconstitutionally 

vague and overbroad on its face.103

¶481 As under Chapter 11, the Illinois statutes required 

contributions to be reported. The challengers took issue with 

the definition of "contribution," which included "[an] 

expenditure 'made in cooperation, consultation, or concert with

another political committee' . . . ."104 The Illinois statutes 

further provided that the word "contribution" included "any 

 99 Id. (quoted source omitted)

100 Id.

101 Id. at 223 (citation omitted).

102 Id. at 222 (internal quotation marks omitted).

103 Madigan, 697 F.3d at 470.

104 Id. at 494 (emphasis added).
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'electioneering communication made in concert or cooperation 

with or at the request, suggestion, or knowledge of a candidate, 

a political committee, or any of their agents.'"105

¶482 According to the challengers, these provisions "are 

vague because they do not specify the 'degree of actual 

agreement required.'"106 Citing McConnell, the Madigan court 

observed that the challenged provisions are "no less clear than 

the federal definition which has long passed muster in the 

Supreme Court."107 The Madigan court thus rejected the 

challengers' claim, concluding that "the coordination language 

of [Illinois' campaign finance law] is clear enough to provide a 

reasonably intelligent person 'fair warning' of what sort of 

conduct is covered."108

¶483 I would adhere to McConnell and Madigan and would 

decline to hold that the concept of "coordination" within 

Chapter 11 is unconstitutionally vague or overbroad. 

Accordingly, no limiting construction need be applied.

¶484 In sum, I conclude that Chapter 11's requirement that 

a candidate's campaign committee report coordinated 

disbursements for issue advocacy as contributions received by 

the candidate or candidate's campaign committee does not violate 

 105 Id. at 495.

106 Id. at 496.

107 Id.

108 Id. at 497.
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the First Amendment and that the provisions of Chapter 11 

imposing this requirement are neither vague nor overbroad.

¶485 In light of the statutory and constitutional validity 

of the Special Prosecutor's interpretation of Chapter 11 and 

given the strong policy against intervening in ongoing criminal 

investigations, I conclude that the John Doe proceedings should 

not be terminated.

IV

¶486 I now examine three issues that are common to all 

three of the John Doe cases before the court.

A

¶487 This court has received several non-party motions to 

file amicus briefs regarding the merits of the John Doe trilogy. 

I join the majority opinion's decision to grant these motions. 

A grant is consistent with the court's Internal Operating 

Procedures and past practices.

¶488 Motions to submit amicus briefs addressing the merits 

of the John Doe trilogy have been filed by the following: (1) 

Wyoming Liberty Group; (2) the Wisconsin Government 

Accountability Board; (3) various former members of the Federal 

Election Commission; (4) the Honorable Bradley A. Smith, the 

Center for Competitive Politics, and Wisconsin Family Action; 

(5) Campaign Legal Center, Democracy 21, Common Cause in 

Wisconsin, and League of Women Voters of Wisconsin; (6) Citizens 

for Responsible Government Advocates, Inc.; and (7) Wisconsin 

Right to Life.
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¶489 This court generally grants motions to file amicus 

briefs "if it appears that the movant has special knowledge or 

experience in the matter at issue in the proceedings so as to 

render a brief from the movant of significant value to the

court." Wis. S. Ct. IOP II-B.6.c. (May 4, 2012). I conclude 

that the movants listed above have special knowledge or 

experience and thus that their views would be of significant 

value to the court. Indeed, in a case of such profound public 

importance, this court can use all the help that is offered.

B

¶490 The Special Prosecutor requested the recusal of 

certain justices from the John Doe trilogy.

¶491 Non-party motions requesting to file amicus briefs on 

the recusal issue were filed by the following: (1) the James 

Madison Center for Free Speech; (2) the Ethics and Public Policy 

Center; and (3) a group of professors of legal ethics.

¶492 On a motion to disqualify a justice, justices have, in 

other cases, explained why they will participate109 or why they 

 109 See, e.g., State v. Henley, 2010 WI 12, 322 Wis. 2d 1, 

778 N.W.2d 853 (memorandum opinion by Justice Roggensack 

explaining her decision not to disqualify herself).

(continued)
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will not.110 The justices named in the recusal motion at issue 

are obviously participating. They have provided no response to 

the motion, however, choosing instead to remain silent. 

¶493 The Special Prosecutor's recusal motion can be read in 

multiple ways. It can easily be read as being directed only to 

the named justices, seeking their self-disqualification. It can 

also be read as directed to the court, seeking the court's 

review of a Justice's statement that he or she need not selfdisqualify. No Justice has made such a statement in the instant 

cases. Finally, the Special Prosecutor's recusal motion can be 

read as seeking the court's review of due process considerations 

should the named Justices choose not to self-disqualify.

¶494 The Special Prosecutor's recusal motion cites Caperton 

v. A.T. Massey Coal Co., 556 U.S. 868 (2009). In Caperton, the 

 

See also State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 

N.W.2d 863. In Allen, the defendant filed a motion before 

Justice Gableman individually seeking his recusal. Justice 

Gableman denied the motion without explanation on September 10, 

2009. Id., ¶15. The defendant then filed a supplemental motion 

addressed to the whole court, seeking review of whether Justice 

Gableman had properly considered whether he could act 

impartially or whether it appeared he could not act impartially. 

Id., ¶16. On January 15, 2010, Justice Gableman then filed a 

supplement to his September 10, 2009, order, explaining why he 

had denied the recusal motion. Id., ¶17. On February 4, 2010, 

he withdrew from participation in the court's consideration of 

the recusal motion. Id., ¶18. The remaining members of the 

court were evenly divided regarding whether to deny the 

defendant's recusal motion or order briefs and oral argument on 

the matter. Accordingly, the motion was not granted.

110 Early on in the instant litigation (long before any 

recusal motion was filed), Justice Ann Walsh Bradley advised all 

parties that she was not participating. Her statement of nonparticipation is attached hereto as Exhibit D.
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plaintiff moved to disqualify a justice of the Supreme Court of 

West Virginia on the grounds of bias resulting from campaign 

contributions and expenditures. The justice denied the 

plaintiff's motion, and the Supreme Court of West Virginia ruled 

against the plaintiff on the merits of the case. The United 

States Supreme Court reversed and remanded, ruling that due 

process required recusal under the circumstances presented.

¶495 Caperton teaches that there are "circumstances 'in 

which experience teaches that the probability of actual bias on 

the part of the judge or decisionmaker is too high to be 

constitutionally tolerable.'"111 

¶496 Caperton holds that "Due Process requires an objective 

inquiry into whether the contributor's influence on the election 

under all the circumstances 'would offer a possible temptation 

to the average . . . judge to . . . lead him [or her] not to 

hold the balance nice, clear and true.'"112 See also WilliamsYulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015) ("[E]ven if 

judges were able to refrain from favoring donors, the mere 

possibility that judges' decisions may be motivated by the 

desire to repay campaign contributions is likely to undermine 

the public's confidence in the judiciary.") (internal quotation 

marks omitted).

¶497 According to the Caperton Court, the participation of 

a justice who should have disqualified himself or herself 

 111 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 

(2009) (citations omitted).

112 Id. (citations omitted).
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violates a litigant's constitutional due process rights and 

necessitates a do-over.113 For a discussion of a justice's 

recusal in Wisconsin , see State v. Herrmann, ___ WI ___, ___ 

Wis. 2d ___, ___ N.W.2d ___.

¶498 If the Special Prosecutor is presenting a due process 

argument to the court as a whole——that is, if the Special 

Prosecutor is asking the court to declare whether participation 

by the justices named in the recusal motion violates due process 

rights——such a motion should be made more clearly.

¶499 In any event, the Special Prosecutor's recusal motion 

and the motions to file amicus briefs on the issue of recusal 

remain unresolved.

C

¶500 Over the extended lives of the John Doe trilogy in 

this court, the court has accepted the parties' filings under 

seal for long periods without examining or ruling on the 

validity of the parties' motions to seal. Since beginning to 

examine the sealed documents, the court has kept too many 

documents under seal and has allowed the parties to redact too 

much information from their filings.114

 113 Id. at 885-87.

114 The Special Prosecutor claims that much of the 

information the John Doe secrecy orders and this court's 

redaction orders intended to conceal has been divulged through 

media leaks. The Special Prosecutor pointedly wonders what the 

court is going to do, if anything, about these alleged leaks.

(continued)
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¶501 The court's decisions on sealing and redaction up to 

this point have been rooted entirely in the sweeping John Doe 

secrecy orders that were issued by the John Doe judge many 

months ago under very different circumstances. This court, in 

my opinion, should have independently determined whether the 

justifications for secrecy in John Doe proceedings still apply 

to the John Doe trilogy in this court. Instead, the court has,

for the most part, continued to seal or redact all documents 

that were sealed by the John Doe judge without making this 

determination, concluding that its obligation is to abide by the 

John Doe judge's secrecy order.

¶502 Although I have publicly disagreed with the court's 

orders regarding sealing and redactions,115 I have made every 

effort to abide by those orders. Precedent requires me and this 

court to abide by this court's secrecy orders. State ex rel. 

 

I anticipate that a motion to open this court's records and 

briefs regarding the John Doe trilogy will be filed when the 

three cases are completed. The sealed and redacted material 

will not be released, however, without a motion, opportunity to 

be heard, and court order.

115 For a full discussion of my reasons for objecting to the 

extensive sealing and redactions ordered by the court in these 

cases, please see my dissents in each of the following three 

orders issued by this court on March 27, 2015: (1) an order 

denying the Milwaukee Journal Sentinel's motion to intervene in 

the John Doe cases for the sole purpose of advocating for 

increased public access (attached hereto as Exhibit E); (2) an 

order canceling oral argument (attached hereto as Exhibit B); 

and (3) an order relating to redaction (attached hereto as 

Exhibit C).

See also my dissents to orders issued by this court on 

April 1, 2015, and April 17, 2015, as well as a letter dated May 

12, 2015 issued by Diane Fremgen, Clerk of Supreme Court.
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Niedziejko v. Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964), 

relied on by this court's sealing and redaction orders, provides 

that secrecy orders issued by a magistrate are binding on that 

magistrate. In the instant case, this court is the magistrate 

that issued the relevant secrecy orders. Thus, the secrecy 

orders bind not just the parties, but also this court.

¶503 The court's March 27, 2015, redaction order recognizes 

this principle, stating that "the fact that a John Doe 

proceeding becomes the subject of review in an appellate 

court . . . does not eliminate the secrecy of documents and 

other information that are covered by a secrecy order issued by 

a John Doe judge."

¶504 The majority opinion and Justice Prosser's concurrence 

disregard this principle.116 The majority opinion declares, 

without citation to any authority, that "we can interpret the 

secrecy order and modify it to the extent necessary for the 

public to understand our decision herein."117 Justice Prosser's 

concurrence discusses the policy reasons underlying secrecy in 

John Doe proceedings, concludes that they do not support 

continued concealment of certain facts underlying the John Doe 

trilogy, and then unilaterally determines that "those facts are 

now outside the scope of the secrecy order."118

 116 See, for example, the quote set forth in ¶256 of Justice 

Prosser's concurrence, pulled from an Unnamed Movant's brief. 

This quote is redacted in its entirety in the Unnamed Movant's 

redacted brief.

117 Majority op., ¶14 n.11.

118 Justice Prosser's concurrence, ¶145.
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¶505 The majority opinion and Justice Prosser's concurrence 

not only defy this court's March 27, 2015, redaction order; they 

also contradict that order's reasoning. The court's March 27, 

2015, redaction order explicitly concludes that a John Doe 

judge's secrecy order remains binding when the John Doe 

proceedings subject to that order reach this court.

¶506 In sum: I have repeatedly dissented to the excessive 

sealing and redactions this court has imposed in the John Doe 

trilogy and I have repeatedly dissented to this court's position 

that the John Doe secrecy order automatically binds this court, 

but I nevertheless conclude that the secrecy orders issued by 

this court (over my dissent) are binding on this court. As 

explained above, it is settled law that a "magistrate" who 

issues a secrecy order is bound by that secrecy order. The 

majority opinion and Justice Prosser's concurrence improperly 

ignore this principle.

* * * *

¶507 For the reasons set forth, I dissent to the majority 

opinion's resolution of the original action.
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2014AP417-W through 2014AP421-W: Supervisory Writ & Appeal: 

State of Wisconsin ex rel. Francis D. Schmitz v. Gregory A. 

Peterson, John Doe Judge

¶508 In the second John Doe case before the court, the 

Special Prosecutor petitioned the court of appeals for a 

supervisory writ and writ of mandamus seeking review of a 

decision and order of the John Doe judge dated January 10, 2014, 

which quashed subpoenas and ordered the return of property 

seized pursuant to search warrants.

¶509 The defendants are the John Doe judge and eight 

Unnamed Movants. Several Unnamed Movants filed petitions to 

bypass the court of appeals, which this court granted.

¶510 The John Doe judge's January 10, 2014, order was based 

on his conclusion of law that the Wisconsin statutes do not 

regulate disbursements for issue advocacy made by a 501(c) 

nonprofit entity in coordination with a candidate or candidate's 

campaign committee.119 The John Doe judge appears to have 

reached this conclusion of law based in part on First Amendment 

principles.

¶511 This court must decide whether to issue a supervisory 

writ reversing the John Doe judge's January 10, 2014, order. 

The majority opinion holds that no supervisory writ shall issue 

because the Special Prosecutor has not met one of the criteria 

for the issuance of a supervisory writ. According to the 

majority opinion, the Special Prosecutor has failed to prove 

 119 See majority op., ¶¶34-36, 75, 97. 
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that the John Doe judge violated a plain legal duty when he 

quashed subpoenas and ordered the return of property seized 

pursuant to search warrants.120

¶512 The majority opinion holds not that the John Doe 

judge's interpretation of Wisconsin's campaign finance statutes 

was correct (although the majority opinion's discussion of the 

original action implies as much), but rather that the validity 

of the John Doe judge's interpretation and application of 

statutes is not a proper basis upon which this court can issue a 

supervisory writ.121 I strongly disagree with the majority 

opinion.

¶513 The purpose of the supervisory writ sought by the 

Special Prosecutor is to provide for "the direct control 

of . . . judicial officers who fail to fulfill non-discretionary

duties, causing harm that cannot be remedied through the 

appellate review process."122 

¶514 The John Doe judge had a non-discretionary legal duty 

in the instant case to correctly interpret Wisconsin's campaign 

finance statutes to determine whether and how they address 

coordination between a candidate or candidate's campaign 

committee and a 501(c) nonprofit entity engaged in issue 

advocacy. For the reasons set forth in my dissent to the 

 120 See majority op., ¶12.

121 See majority op., ¶97.

122 See majority op., ¶81 (quoting State ex rel. Kalal v. 

Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110

(emphasis added)).
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original action, I conclude that the John Doe judge violated 

this nondiscretionary legal duty by misinterpreting and 

misapplying the law.123

¶515 A decision of a John Doe judge can be reviewed only by 

means of a supervisory writ. A decision of a John Doe judge 

cannot be reviewed by direct appeal. Because the John Doe judge 

"fail[ed] to fulfill [a] non-discretionary dut[y], causing harm 

that cannot be remedied through the appellate review process," I 

would grant the Special Prosecutor's writ petition.

¶516 In contrast, the majority opinion reaches the 

perplexing conclusion that although the foundation of the entire 

legal system rests on a judge's obligation to correctly 

interpret and apply the law, the John Doe judge's obligation to 

correctly interpret and apply the law is not the type of plain 

legal duty contemplated by the supervisory writ procedure. In 

reaching this conclusion, the majority opinion relies on a 

single conclusory sentence (devoid of citation to any authority)

that appears in State ex rel. Kalal v. Circuit Court, 2004 WI 

58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110.

¶517 In Kalal, a supervisory writ case, the petitioner 

argued that judges have a plain legal duty to correctly find the 

facts and apply the law.124 The Kalal court declared that it 

 123 My dissent in the instant case should be read in 

conjunction with my dissent in the original action. See ¶¶368-

486, infra.

124 State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶23, 

271 Wis. 2d 633, 681 N.W.2d 110.
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could not accept this proposition "as it would extend 

supervisory jurisdiction to a virtually unlimited range of 

decisions involving the finding of facts and application of 

law."125 The Kalal court explained its position as follows:

The obligation of judges to correctly apply the law is 

general and implicit in the entire structure of our 

legal system. The supervisory writ, however, serves a 

narrow function: to provide for the direct control of 

lower courts, judges, and other judicial officers who 

fail to fulfill non-discretionary duties, causing harm 

that cannot be remedied through the appellate review 

process. To adopt the Kalals' interpretation of the 

plain duty requirement in supervisory writ procedure 

would transform the writ into an all-purpose 

alternative to the appellate review process.126

¶518 The majority opinion takes this discussion in Kalal

out of context, reading it without any meaningful understanding 

of precedent or the nature of review by supervisory writ of a 

John Doe judge's order. Indeed, the majority opinion's 

interpretation of Kalal is so overbroad that Kalal and the 

majority opinion are reduced to balderdash.

¶519 To understand Kalal and the plain legal duty criterion

in supervisory writ cases, one must harken back to the classic 

expression of what constitutes a plain legal duty and then trace 

the evolution of the concept in the context of supervisory writ 

procedure. Kalal must be read and understood in historical 

context, in light of supervisory writ cases preceding and 

 125 Id., ¶24.

126 Id. (emphasis added, citations omitted).
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subsequent to Kalal, and in recognition of a court's discretion 

to grant or deny a requested supervisory writ.

¶520 The classic articulation of the plain legal duty 

concept was set forth in In re Petition of Pierce-Arrow Motor

Car Co., 143 Wis. 282, 127 N.W. 998 (1910). In Pierce-Arrow, 

the defendant sought to vacate service of a summons. The 

defendant requested that this court exercise its "general 

superintending control over all inferior courts" under Article 

VII, Section 3 of the Wisconsin Constitution.127

¶521 The Pierce-Arrow court concluded that the legal 

validity of service "may well admit of different opinions by 

equally able legal minds."128 The court determined that because 

the legal question of whether service was valid was debatable, 

the circuit court had not violated a plain legal duty.

¶522 The Pierce-Arrow court explained:

 127 In re Petition of Pierce-Arrow Motor Car Co., 143 Wis. 

282, 285, 127 N.W. 998 (1910).

At the time the Pierce-Arrow case was decided, Article VII, 

Section 3 of the Wisconsin Constitution stated in relevant part 

as follows: "The supreme court shall have a general 

superintending control over all inferior courts; it shall have 

the power to issue writs of . . . mandamus, injunction . . . and 

other original and remedial writs, and to hear and determine the 

same."

Since 1978, Article VII, Section 3(1) of the Wisconsin 

Constitution has provided that "[t]he supreme court shall have 

superintending and administrative authority over all courts." 

Section 3(2) states that "[t]he supreme court may issue all 

writs necessary in aid of its jurisdiction."

128 Pierce-Arrow, 143 Wis. at 287.
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One of the cardinal rules is that the duty of the 

court below must be plain. The situation must be such 

that hardly more than a statement of the facts is 

necessary to convince the legal mind as to the duty of 

the court. Where there is no such clear and obvious 

duty, based either upon common-law principles or upon 

express statute, but where questions of law or fact or 

both are involved of such difficulty that "a judge may 

reasonably, proceeding considerately, commit judicial 

error," the court will refuse to intervene under its 

power of superintending control, but will leave the

parties to their remedy by appeal.129

¶523 Pierce-Arrow represented the court's view of the plain 

legal duty criterion for the issuance of a supervisory writ up 

to 1921.130 Thereafter, the court's view of what constitutes a 

plain legal duty changed significantly.131

¶524 In 1921, the court decided In re Inland Steel Co., 174 

Wis. 140, 182 N.W. 917 (1921). In 1932, the court decided State 

ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm, 

208 Wis. 366, 370-71, 243 N.W. 763 (1932). In these two cases,

the court concluded that even though the question of law 

presented may be subject to reasonable debate, the court may 

exercise its original and supervisory power when an appeal would

not provide an adequate remedy.

 129 Pierce-Arrow, 143 Wis. at 286 (emphasis added).

130 See John D. Wickhem, The Power of Superintending Control 

of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 163 

(1941). This article is generally viewed as the best 

explanation of the Wisconsin constitutional provision regarding 

superintending authority and writs.

131 John D. Wickhem, The Power of Superintending Control of 

the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161 (1941).
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¶525 These cases make the following point clear: "[T]he 

fact that the duty of the trial court in the premises can only 

be determined by a careful consideration of the facts and the 

law applicable to the situation is no barrier to the exercise of 

th[e supervisory writ] power."132

¶526 In 1941, Justice John D. Wickhem, who served on the 

Wisconsin Supreme Court from 1930 to 1949, explained the 

developing case law on the concept of plain legal duty as 

follows:

The purpose of this [supervisory writ] jurisdiction is 

to protect the legal rights of a litigant when the 

ordinary processes of action, appeal and review are 

inadequate to meet the situation, and where there is 

need for such intervention to avoid grave hardship or 

complete denial of these rights.

. . . .

The later cases hold that an exercise of the court's 

superintending control may be justified in spite of 

the fact that a determination of the duty of the 

inferior court and the scope of the petitioner's 

rights may present difficult and close questions of 

law.133

¶527 A supervisory writ has been issued in numerous cases 

in which a ruling of a judge or a circuit court interpreting a 

statute was challenged as erroneous——even though the proper 

interpretation of the statute was not plain or raised a novel 

 132 See State ex rel. Hustisford Light, Power & Mfg. Co. v. 

Grimm, 208 Wis. 366, 371, 243 N.W. 763 (1932).

133 John D. Wickhem, The Power of Superintending Control of 

the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161, 164 

(1941).
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question——and either no appeal was permitted or appellate review 

would have come too late for effective redress.134

¶528 For example, in a recent case entitled Madison 

Metropolitan School District v. Circuit Court, 2011 WI 72, 336 

Wis. 2d 95, 800 N.W.2d 442, the court of appeals transformed an 

appeal into a supervisory writ. The issue before the court of 

appeals was whether the circuit court had exceeded its authority 

by interpreting the applicable statutes as allowing a circuit 

court to direct a school district to provide a child with 

alternative educational services.135

¶529 The circuit court contended in Madison Metropolitan 

School District that the supervisory writ should be denied, 

arguing that "its duty was not plain, because it was faced with 

a novel question of law requiring harmonization of several 

statutory provisions."136 In contrast, the school district 

argued that a supervisory writ should be granted because "the 

circuit court did not have authority, express or implied, to 

order" the school district to provide the child with alternative 

 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. Circuit Court, 2011 WI 72, 336 Wis. 2d 95, 800 

N.W.2d 442.

135 Article VII, Section 5(3) of the Wisconsin Constitution

provides: "The appeals court may issue all writs necessary in 

aid of its jurisdiction and shall have supervisory authority 

over all actions and proceedings in the courts in the district."

136 Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶84.
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educational services.137 The court of appeals sided with the 

school district, granting the writ.

¶530 This court spent 34 paragraphs (13 pages in the 

Wisconsin Reports) analyzing and interpreting the statutes at 

issue in order to determine the powers of the circuit 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 statutory analysis, this court affirmed the 

court of appeals decision granting the writ.

¶531 In deciding that a supervisory writ was warranted, the

Madison Metropolitan School District court explained that "the 

circuit court's duty was plain: to keep within the scope of its 

statutory authority."138 It then continued: "Because we have 

concluded that the circuit court's duty to keep within the 

bounds of its lawful authority was plain, its violation of that 

duty was clear when it ordered the District to provide 

educational resources . . . ."139

¶532 Notably, Kalal was never mentioned in the majority 

opinion in Madison Metropolitan School District, although the 

court was well aware of Kalal. Kalal was argued in the briefs 

and in the dissent.

¶533 Madison Metropolitan School District and numerous

other cases teach that Kalal does not mean that a supervisory 

 137 Id., ¶84.

138 Id.

139 Id., ¶85.
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writ cannot issue when a case presents a difficult or close 

question of law. Rather, Kalal is best understood as 

demonstrating that a reviewing court has discretion whether to 

issue a supervisory writ, even when the trial court or judge 

under review violated a plain legal duty. The reviewing court 

considers several factors and equitable principles in deciding 

whether to issue a supervisory writ.140

¶534 Indeed, in an opinion issued just one year before 

Kalal (and authored by then-Justice Sykes, who wrote Kalal), 

this court stated in no uncertain terms that a court's decision 

to issue a supervisory writ "is a discretionary determination 

that is reviewed for an erroneous exercise of that 

discretion."141

¶535 Thus, properly understood, Kalal involved a 

discretionary call. Kalal does not support the majority 

opinion's view that a supervisory writ cannot be issued when the 

legal issue presented is subject to reasonable debate.

¶536 If this court's interpretation of the applicable 

statutes differs from that of the John Doe judge (that is, if 

the John Doe judge misinterpreted the law), then the John Doe 

 140 See, for example, the following cases explaining that 

the issuance of a supervisory writ involves the exercise of 

discretion: Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶34; 

Kalal, 271 Wis. 2d at 649; State ex rel. Kurkierewicz v. Cannon, 

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. See also majority op., ¶105.
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judge erroneously exercised his discretion in issuing the 

January 10, 2014, order, and a supervisory writ is appropriate. 

Two examples illustrate this point.

¶537 Example 1. If the John Doe judge's order was based on 

an erroneous view of Chapter 11 or the First Amendment but is 

not reviewed by this court, no further review occurs and both 

the Special Prosecutor and the public at large are deprived of 

the enforcement of statutes intended to protect the integrity of 

Wisconsin's elections. This result amounts to a virtual 

nullification of a duly enacted law and imposes a serious 

hardship on the people of this state.

¶538 Example 2. If the John Doe judge had ruled in favor 

of the Special Prosecutor and the John Doe proceedings 

continued, then unless a supervisory writ were available to the 

Unnamed Movants, they could not challenge the John Doe judge's 

ruling until criminal charges were filed. Such a situation, 

Unnamed Movants 6 and 7 would surely claim, would impose a 

serious hardship on them.

¶539 In sum, a supervisory writ is the proper procedure for 

correcting a John Doe judge's erroneous application of the law

when an appeal is not available or would come too late for 

effective redress.142 The majority opinion errs in holding 

otherwise.

 142 Dressler, 163 Wis. 2d at 630; State ex rel. Storer 

Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 347, 388 N.W.2d 633 

(Ct. App. 1986).
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¶540 For the reasons set forth, I conclude that the court 

should decide whether the John Doe judge's January 10, 2014, 

order was based on a misinterpretation of Wisconsin's campaign 

finance statutes. Because I conclude that it was, I further 

conclude that the Special Prosecutor has met the criteria for 

the issuance of a supervisory writ. I would grant the writ 

petition.

¶541 Accordingly, I dissent.
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Nos. 2013AP2504-W through 2013AP2508-W: Supervisory Writ & 

Review State of Wisconsin ex rel. Three Unnamed Petitioners v. 

Gregory A. Peterson, John Doe Judge; Gregory Potter, Chief 

Judge;143 and Francis D. Schmitz, as Special Prosecutor

¶542 In this third case, the final case in the John Doe 

trilogy, Unnamed Movants 2, 6, and 7 seek review of an opinion 

and order of the court of appeals that denied the three Unnamed 

Movants' petition for supervisory writs of mandamus and 

prohibition. The respondents are the John Doe judge, the chief 

judges of the counties in which the cases are underway, and the 

Special Prosecutor.

¶543 In their petition to the court of appeals seeking 

supervisory writs, the three Unnamed Movants alleged, in 

relevant part, the following errors of law in the John Doe 

proceedings:

(1)The multi-county nature of the John Doe investigation 

is contrary to Wisconsin law.

(2)The John Doe judge had no authority to appoint the 

Special Prosecutor without satisfying the criteria 

set forth in Wis. Stat. § 978.045(1r).

(3)The John Doe Judge had no authority to appoint a 

special prosecutor to act in multiple counties.

¶544 These allegations raise multiple overlapping questions 

of law regarding the procedural validity of the Special 

Prosecutor's appointment, the competency of the Special 

 143 What I refer to as "the third case" comprises five 

cases. One of the defendants in each case is the chief judge of 

the county in which the case is pending.
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Prosecutor to conduct the John Doe investigation, and the 

legitimacy of a multi-county John Doe investigation under 

Wisconsin law.

¶545 The court of appeals rejected the arguments of the 

three Unnamed Movants and denied their writ petition. The 

majority opinion affirms the court of appeals order denying the 

writ petition. The petition for review in this court did not 

raise all the issues raised before the court of appeals or all 

the issues this court raised in its December 16, 2014, order 

(attached hereto as Exhibit A). I agree with the majority 

opinion that the court of appeals order should be affirmed. I 

reach this result, however, using significantly different 

reasoning than the majority opinion.

¶546 The majority opinion concludes that the John Doe 

judge's obligation to "correctly find facts and apply the law is 

not the type of plain legal duty contemplated by the supervisory 

writ procedure . . . ."144 Because the majority opinion 

determines that the three Unnamed Movants have failed to fulfill 

the plain legal duty criterion, it declares that they have 

failed to "satisfy the stringent preconditions for a supervisory 

writ."145

¶547 The majority opinion's discussion of the plain legal 

duty criterion is reminiscent of its analysis in the second case 

 144 Majority op., ¶105.

145 Majority op., ¶13.
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in the John Doe trilogy.146 For the reasons set forth in my 

dissent in the second case in the John Doe trilogy (see ¶¶498-

521, supra), I take issue with the majority opinion's 

explanation and application of the plain legal duty concept. I 

will not repeat that discussion here.

¶548 I conclude that the court of appeals was required to 

interpret and apply the applicable law to determine whether the 

John Doe judge had violated a plain legal duty. The court of 

appeals had discretion, however, whether to grant or deny the 

three Unnamed Movants' writ petition.

¶549 I consider whether the court of appeals properly 

exercised its discretion in denying the Unnamed Movants' writ 

petition by correctly interpreting and applying the applicable 

law.147 I decide the underlying legal questions faced by the 

court of appeals independently, but benefit from the court of 

appeals' analysis.148

 146 See majority op., ¶¶95-99 (discussing the plain legal 

duty issue presented in the second case within the John Doe 

trilogy), ¶107-132 (discussing the plain legal duty issues 

presented in the third case within the John Doe trilogy).

147 The court of appeals has discretion whether to issue a 

supervisory writ. If the court of appeals misinterpreted or 

misapplied applicable law, it erroneously exercised its 

discretion. City of Madison v. DWD, 2003 WI 76, ¶10, 262 

Wis. 2d 652, 664 N.W.2d 584. See also majority op., ¶102-106

(setting forth the standard of review applicable to the instant 

supervisory writ case).

148 City of Madison v. DWD, 2003 WI 76, ¶10, 262 

Wis. 2d 652, 664 N.W.2d 584.
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¶550 In determining that there were no procedural defects 

in the John Doe proceedings and thus that a supervisory writ was 

not warranted, the court of appeals relied on established case 

law, including State v. Cummings, 199 Wis. 2d 721, 546 

N.W.2d 406 (1996); State v. Carlson, 2002 WI App 44, 250 

Wis. 2d 562, 641 N.W.2d 451; State ex rel. Friedrich v. Circuit 

Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995); and State v. Bollig, 

222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App 1998)). These cases 

are persuasive.

¶551 I conclude that the court of appeals correctly decided 

the questions of law presented in the three Unnamed Movants' 

writ petition as follows:

(1) The initiation of multiple, parallel John Doe 

proceedings related to a single criminal 

investigation is permitted under Wisconsin law. This 

is an effective and efficient way of proceeding.

(2) The John Doe judge did not rely on Wis. Stat. 

§ 978.045(1r) to appoint the Special Prosecutor.

Rather, the John Doe judge made the appointment 

pursuant to inherent judicial authority. The John 

Doe judge had such authority regardless of whether 

the statutory conditions set forth in Wis. Stat. 

§ 978.045(1r) were met. Case law makes clear that a

John Doe judge's powers extend beyond the powers 
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conferred by statute to include all powers necessary 

to conduct the John Doe investigatory proceeding.149

(3) The John Doe judge issued five separate orders 

appointing the Special Prosecutor, one for each 

county's John Doe proceeding. The same prosecutor 

may serve multiple appointments in related 

proceedings. Thus, a John Doe judge may lawfully 

appoint the same special prosecutor to proceedings 

underway in several counties. This is an effective 

and efficient way of proceeding.

 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 authority stems both from the statutes and from powers 

inherent to a judge. . . . A John Doe judge's powers are not, 

however, limited to those enumerated in Wis. Stat. § 968.26 [the 

John Doe statute]. . . . A John Doe judge's inherent authority 

stems from a John Doe judge's judicial office. . . . [A] John 

Doe judge's inherent power encompasses all powers necessary for 

the John Doe judge to 'carry out his or her responsibilities 

with respect to the proper conduct of John Doe proceedings.'" 

(quoted source omitted)); In re John Doe Proceeding, 2003 WI 30, 

¶54, 260 Wis. 2d 653, 660 N.W.2d 260 ("A John Doe judge is also 

entitled to exercise the authority inherent in his or her 

judicial office."); State v. Cummings, 199 Wis. 2d 721, 736, 546 

N.W.2d 406 (1996) ("A grant of jurisdiction by its very nature 

includes those powers necessary to fulfill the jurisdictional 

mandate.").

Although the legislature created John Doe proceedings, the 

separation of powers doctrine bars the legislature from "unduly 

burdening," "materially impairing," or "substantially 

interfering" with the inherent powers of the judicial branch, 

including the inherent powers of the John Doe judge in the 

instant cases. See State v. Holmes, 106 Wis. 2d 31, 68-69, 315 

N.W.2d 703 (1982). See also majority op., ¶127, and Justice 

Prosser's concurrence, ¶¶208-210, 216, 239, both of which 

improperly allow the legislature to trump the inherent judicial 

powers of the John Doe judge.
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(4) Even if there were procedural errors in the Special

Prosecutor's appointment (and I do not believe there 

were), the Special Prosecutor has competency to 

proceed.150

¶552 The court of appeals was not presented with argument 

regarding the procedural validity of the John Doe judge's 

appointment and the competency of the John Doe judge to conduct 

the John Doe proceedings. That argument was, however, advanced 

in this court. It is without merit, as the majority opinion 

makes clear.151

¶553 Because the court of appeals properly interpreted and 

applied the applicable law, I conclude that it did not 

erroneously exercise its discretion in denying the three Unnamed 

Movants' writ petition. The court of appeals decision should be 

affirmed.

¶554 In closing, I note that even if this court determined 

that the John Doe proceedings were procedurally defective and 

 150 Whether the Special Prosecutor is deprived of competency 

on account of a procedural defect in his appointment turns on 

whether the defect was "central" to the purpose of Wis. Stat. 

§ § 978.045(1r) (setting forth conditions for the appointment of 

a special prosecutor).150 The court of appeals determined in In 

re Commitment of Bollig, 222 Wis. 2d 558, 571, 587 N.W.2d 908 

(Ct. App. 1998), that the purpose of § 978.045(1r) is to control 

costs, as the State pays an appointed special prosecutor for 

work that would ordinarily be performed by a district attorney. 

It seems implausible to suggest that the costs the State has 

incurred on account of a single special prosecutor's appointment 

are substantial enough to render the alleged defect in the 

Special Prosecutor's appointment central to the cost-controlling 

objective of § 978.045(1r).

151 See majority op., ¶¶108-113.
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that a supervisory writ is warranted, only those Unnamed Movants 

who raised the objection before the John Doe judge may be 

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, 681 N.W.2d 190 (stating that "the 

common-law waiver [forfeiture] rule applies to challenges to the 

circuit court's competency" and explaining that a competency 

challenge is waived as a matter of right if raised for the first 

time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558, 

564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in 

the appointment of a special prosecutor is waived (forfeited) if 

raised for the first time on appeal). 

¶555 For the reasons set forth, I write separately.
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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¶556 N. PATRICK CROOKS, J. (concurring in part, 

dissenting in part). The United States Supreme Court has 

recently acknowledged that "Judges are not politicians, even 

when they come to the bench by way of the ballot." WilliamsYulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015). WilliamsYulee involved whether a judicial conduct rule prohibiting 

judicial candidates from personally soliciting campaign funds 

violated the First Amendment to the United States Constitution. 

Id. In concluding that the First Amendment permits the 

particular regulation of speech at issue, the Supreme Court 

stressed:

In deciding cases, a judge is not to follow the 

preferences of his supporters, or provide any special 

consideration to his campaign donors. A judge instead 

must "observe the utmost fairness," striving to be 

"perfectly and completely independent, with nothing to 

influence or controul him but God and his conscience."

Id. at 1667 (citing Address of John Marshall, in Proceedings and 

Debates of the Virginia State Convention of 1829-1830, p. 616 

(1830)). 

¶557 These principles must serve as guideposts for all of 

us as judges in the courts of Wisconsin, whether or not the case 

or cases at issue involve significant political overtones, as 

these John Doe cases do.

¶558 It is with these important tenets in mind that I write 

separately. 

¶559 By erroneously concluding that campaign committees do 

not have a duty under Wisconsin's campaign-finance law, Wis. 
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Stat. ch. 11 (2011-12),1 to report receipt of in-kind 

contributions in the form of coordinated spending on issue 

advocacy,2 the majority rejects the special prosecutor's primary 

argument regarding criminal activity. Although the special 

prosecutor advances a secondary argument of criminal activity 

concerning coordinated express advocacy, the majority 

inexplicably ignores that argument. These mistakes lead the 

majority to terminate a valid John Doe3 investigation in an 

unprecedented fashion. 

¶560 With respect to the special prosecutor's primary 

argument, which is the focus of my writing, the majority 

misapplies the related doctrines of overbreadth and vagueness. 

Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is 

neither overbroad nor vague in its requirement that campaign 

committees report receipt of in-kind contributions. The 

majority also makes the troubling pronouncement that an act is 

 1 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.

2 In campaign-finance terminology, "issue advocacy" is 

generally understood to mean speech about public issues, whereas 

"express advocacy" refers to campaign or election-related 

speech. Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 

U.S. 449, 456 (2007).

3 "A John Doe proceeding is intended as an independent, 

investigatory tool used to ascertain whether a crime has been 

committed and if so, by whom." In re John Doe Proceeding, 2003 

WI 30, ¶22, 260 Wis. 2d 653, 660 N.W.2d 260. A John Doe 

proceeding, by virtue of its secrecy, serves as an essential 

investigative device that protects "'innocent citizens from 

frivolous and groundless prosecutions.'" Id. (citation 

omitted). 
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not a regulable disbursement or contribution under Chapter 11 

unless it involves express advocacy or its functional 

equivalent. This is an erosion of Chapter 11 that will 

profoundly affect the integrity of our electoral process. I 

cannot agree with this result. 

¶561 It is also imperative to note that the majority 

conveniently overlooks the special prosecutor's secondary 

argument of criminal activity in its effort to end this John Doe 

investigation. Specifically, the special prosecutor seeks to 

investigate whether particular express advocacy groups 

coordinated their spending with candidates or candidate 

committees in violation of their sworn statement of independence 

under Wis. Stat. § 11.06(7). Despite the fact that the special 

prosecutor utilizes a significant portion of his brief to 

present evidence of such illegal coordination, the majority 

determines, without explanation, that the John Doe investigation 

is over.

¶562 Has the majority abused its power in reaching this 

conclusion? The majority's rush to terminate this investigation 

is reminiscent of the action taken by the United States District 

Court for the Eastern District of Wisconsin in O'Keefe v. 

Schmitz, 19 F. Supp. 3d 861 (E.D. Wis.) order clarified, No. 14-

C-139, 2014 WL 2446316 (E.D. Wis. May 30, 2014) (O'Keefe v. 

Schmitz), an action that was both criticized and reversed by the 

United States Court of Appeals for the Seventh Circuit in 

O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014) cert. denied, 

No. 14-872, 2015 WL 260296 (U.S. May 18, 2015). Although the 
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focus of my writing lies elsewhere, the majority's error in this 

regard cannot be overlooked.

¶563 For these reasons, I respectfully dissent in State ex. 

rel. Two Unnamed Petitioners v. Peterson (Two Unnamed 

Petitioners).

¶564 However, like the majority, I conclude that the 

special prosecutor and certain Unnamed Movants have failed to 

meet their heavy burden of establishing that the John Doe judge 

violated a plain legal duty in either initiating these 

proceedings or quashing various subpoenas and search warrants 

related to the investigation. Accordingly, I concur with the 

majority in State ex. rel. Schmitz v. Peterson (Schmitz v. 

Peterson) and State ex. rel. Three Unnamed Petitioners v. 

Peterson (Three Unnamed Petitioners). In concurring in Schmitz

v. Peterson, it is significant for me that when an appellate 

court decides to issue a supervisory writ, it is a rare, 

discretionary decision. Madison Metro. Sch. Dist. v. Circuit 

Ct. for Dane Cnty., 2011 WI 72, ¶¶33-34, 336 Wis. 2d 95, 800 

N.W.2d 442. Here, the John Doe judge also made a discretionary 

decision in deciding a complex legal issue. Deference should be 

given where there is such discretion.

¶565 The John Doe investigation should not be terminated 

because the special prosecutor's primary argument regarding 

criminal activity is supported by Chapter 11, and the United 

States Supreme Court has not concluded that the First Amendment 

to the United States Constitution prohibits the type of 

regulation underlying that argument. See O'Keefe, 769 F.3d at 
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942.4 The special prosecutor seeks to investigate whether 

certain campaign committees failed to comply with their 

statutory obligation to report receipt of in-kind contributions 

(in the form of coordinated spending on issue advocacy) in 

connection with various recall elections. A campaign 

committee's duty to report such in-kind contributions is 

prescribed by Wis. Stat. § 11.06(1).5 

¶566 In Two Unnamed Petitioners, the majority holds that 

the special prosecutor fails to advance a valid argument under 

Wisconsin criminal law and rashly closes the John Doe 

investigation. In reaching its conclusion, the majority does 

not confront the plain language of Wis. Stat. § 11.06(1). 

Instead, it focuses more generally on Chapter 11's definition of 

 4 It is noteworthy that the United States Supreme Court 

denied certiorari review in O'Keefe v. Chisholm, 769 F.3d 936 

(7th Cir. 2014) cert. denied, No. 14-872, 2015 WL 260296 (U.S. 

May 18, 2015), a case in which the United States Court of 

Appeals for the Seventh Circuit determined that the Supreme 

Court has not decided whether the First Amendment prohibits the 

regulation of coordinated issue advocacy between a candidate or 

campaign committee and an issue advocacy group. If the Supreme 

Court eventually determines that the First Amendment allows that 

type of regulation, the decision would validate the special 

prosecutor's in-kind contribution argument. As discussed below, 

it can be argued that Williams-Yulee v. Florida Bar, 135 S. Ct. 

1656 (2015), supports the special prosecutor's position, but 

that decision, while helpful, is certainly not definitive on the 

issue. 

5 Wisconsin Stat. § 11.06(1) provides, in relevant 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 full 

reports . . . of all contributions received, contributions or 

disbursements made, and obligations incurred." (emphasis added). 
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"political purposes," because in its view, "If an act is not 

done for political purposes, then it is not a disbursement or a 

contribution, and it therefore is not subject to regulation 

under Ch. 11."6

¶567 The majority determines that the definition of 

"political purposes" in Wis. Stat. § 11.01(16) is 

unconstitutionally overbroad and vague regardless of the context 

in which it applies to regulate political speech under Chapter 

11.7

 This is so, the majority reasons, primarily because the 

definition encompasses an act done "for the purpose of 

influencing" an election.8 To support the notion that the phrase 

"for the purpose of influencing" an election is hopelessly 

overbroad and vague, even where it operates to regulate campaign 

contributions, the majority purports to borrow pages from 

Buckley v. Valeo, 424 U.S. 1 (1976), and Wis. 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 "political purposes" to express advocacy or 

its functional equivalent, because that construction is 

"'readily available' due to the Seventh Circuit's decision in 

Barland II."9 The upshot, according to the majority, is that an 

 6 Majority op., ¶62. 

7 Majority op., ¶67. 

8 Majority op., ¶66.

9 Majority op., ¶67.
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act is not a regulable disbursement or contribution under 

Chapter 11 unless it involves express advocacy or its functional 

equivalent.10

¶568 Turning to the special prosecutor's arguments 

regarding criminal activity, the majority summarily concludes: 

"The limiting construction that we apply makes clear that the 

special prosecutor's theories are unsupportable in law given 

that the theories rely on overbroad and vague statutes."11 The 

majority must therefore dismiss the special prosecutor's in-kind 

contribution argument on the basis that Wis. Stat. § 11.06(1) 

contains the terms "contribution" and "disbursement," thereby 

triggering the definition of "political purposes." It follows, 

according to the majority's logic, that § 11.06(1) is 

unconstitutionally overbroad and vague unless its reach is 

limited to express advocacy or its functional equivalent. Since 

the special prosecutor's in-kind contribution argument relies on 

coordinated issue advocacy, not express advocacy, the majority 

swiftly rejects that argument.12 

 10 See majority op., ¶¶62, 67. 

11 Majority op., ¶69.

12 While I disagree with the majority's dismissal of the 

special prosecutor's in-kind contribution argument, I do agree 

with the majority's criticism of some of the purported tactics 

used in gathering evidence in this particular John Doe 

investigation. As the majority identifies, some of these 

methods certainly appear to be improper and open to severe 

disagreement. See majority op., ¶¶28-29. At this point, the 

actual facts concerning the tactics used have not been fully 

established, but the allegations are very troubling. 
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¶569 As previously mentioned, I conclude that Wis. Stat. 

§ 11.06(1) is neither overbroad nor vague in its requirement 

that campaign committees report receipt of in-kind 

contributions. I recognize that under the special prosecutor's 

argument a reportable in-kind contribution requires a "political 

purpose," thus implicating the phrase "for the purpose of 

influencing" an election that the majority finds so troubling. 

However, in Buckley, the United States Supreme Court indicated 

that this phrase is hardly problematic "in connection with the 

definition of a contribution because of the limiting connotation 

created by the general understanding of what constitutes a 

political contribution." Buckley, 424 U.S. at 23 n.24. In 

other words, it is common sense——not the retention of a 

campaign-finance attorney——that tells people of ordinary 

intelligence what is and is not a campaign contribution.

¶570 The majority disregards this important language in 

Buckley, opting instead to justify its overbreadth and vagueness 

determination with the Supreme Court's discussion of the phrase 

"for the purpose of influencing" an election in a completely 

different context: the regulation of independent political 

expenditures. The majority's failure to perform a context 

specific analysis of the subject phrase in reaching its blanket 

conclusion that Chapter 11's definition of "political purposes" 

is overbroad and vague represents a fundamental misunderstanding 

of Buckley and its progeny, including Barland II. It further 

ignores the principle that "The First Amendment vagueness and 

overbreadth calculus must be calibrated to the kind and degree 
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of the burdens imposed on those who must comply with the 

regulatory scheme. The greater the burden on the regulated 

class, the more acute the need for clarity and precision." 

Barland II, 751 F.3d at 837. 

¶571 The majority's errors in Two Unnamed Petitioners

(including its failure to address Wis. Stat. § 11.06(1) in 

rejecting the special prosecutor's in-kind contribution 

argument) serve to terminate a valid John Doe investigation. 

They also work to limit the reach of Wisconsin's campaignfinance law in a manner that will undermine the integrity of our 

electoral process. I disagree with these consequences. 

I. TWO UNNAMED PETITIONERS (ORIGINAL ACTION)

¶572 To support my position that the John Doe investigation 

should move forward because the special prosecutor advances a 

valid argument under Wisconsin criminal law, I begin by 

identifying the relevant portions of Chapter 11 that support 

that argument. Next, I discuss some important principles 

pertaining to the related doctrines of overbreadth and 

vagueness, as well as significant campaign-finance law decisions 

embodying those principles. These general principles and 

decisions lead me to determine that there are no overbreadth and 

vagueness concerns with respect to the statute that supports the 

special prosecutor's primary argument regarding criminal 

activity. Finally, I discuss the question of whether the First 

Amendment to the United States Constitution forbids regulation 

of coordinated issue advocacy between a candidate or a campaign 

committee and an issue advocacy group. I conclude that the 
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absence of Supreme Court precedent regarding an issue that has 

sparked "lively debate among judges and academic analysts"13 is 

an important factor as to why this John Doe investigation should 

not be terminated. 

A. Under Chapter 11, a Campaign Committee Must Report its 

Receipt of In-Kind Contributions in the Form of Coordinated 

Spending on Issue Advocacy.

¶573 In the special prosecutor's own words, the "nondisclosure of reportable campaign contributions is at the heart 

of this [John Doe] investigation." The following illustrates 

the special prosecutor's in-kind contribution argument:

X is a nonprofit corporation that engages in political 

speech on issues of public importance. Y is a 

campaign committee14 regulated under Ch. 11. When X 

spends money on issue advocacy, it does not operate 

independently of Y. Rather, X coordinates its 

spending with Y, such that Y may be involved in the 

timing, content, or placement of issue advocacy that 

 13 O'Keefe, 769 F.3d at 942. 

14 Wis. Stat. § 11.01(15) defines a "personal campaign 

committee" as:

A committee which is formed or operating for the 

purpose of influencing the election or reelection of a 

candidate, which acts with the cooperation of or upon 

consultation with the candidate or the candidate's 

agent or which is operating in concert with or 

pursuant to the authorization, request or suggestion 

of the candidate or the candidate's agent.
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is made for its benefit. Y has received an in-kind 

contribution that must be reported under Chapter 11.15

¶574 The special prosecutor's in-kind contribution argument 

is rooted in Wis. Stat. § 11.06. That section, entitled 

"Financial report information; application; funding procedure," 

generally requires Chapter 11 registrants16 to "make full reports 

. . . of all contributions received, contributions or 

disbursements made, and obligations incurred." Wis. Stat. 

§ 11.06(1) (emphasis added). Candidates and their campaign 

committees have an absolute duty to register with the Government 

Accountability Board (GAB) under Wis. Stat. § 11.05(2g), so 

there appears to be no question that the general reporting 

obligations prescribed by § 11.06(1) apply to those entities. 

¶575 The term "contribution" is defined by Wis. Stat. 

§ 11.01(6)(a). It includes "A gift, subscription, loan, 

advance, or deposit of money or anything of value . . . made for 

political purposes." Wis. Stat. § 11.01(6)(a)1. The definition 

encompasses contributions that are received in cash, i.e., a 

 15 To be clear, the special prosecutor's main focus in this 

investigation is on certain campaign committees' failure to 

report receipt of in-kind contributions (in the form of 

coordinated spending on issue advocacy), not on certain issue 

advocacy groups' failure to report making such in-kind 

contributions. So what the majority mistakenly refers to as 

"illegal campaign coordination" is in reality a campaign 

committee's failure to report its receipt of an in-kind 

contribution.

16 Chapter 11 imposes registration requirements on political 

speakers such as candidates, their campaign committees, 

political committees, independent groups, and individuals. See

Wis. Stat. § 11.05. 
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"gift . . . of money," and those that are received "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 § GAB 1.20(1)(e) defines an "in-kind contribution" as "a 

disbursement by a contributor to procure a thing of value or 

service for the benefit of a registrant who authorized the 

disbursement." To constitute a cash or in-kind contribution, 

money must be given or spent for "political purposes," which is 

defined by Wis. Stat. § 11.01(16) to include an act done "for 

the purpose of influencing" an election. 

¶576 Reading the above definitions in conjunction with Wis. 

Stat. § 11.06(1), it is clear that a campaign committee has a 

duty to report its receipt of cash as contributions. It is 

equally clear that a campaign committee has a duty to report its 

receipt of services as contributions if it authorizes a third 

party to pay for those services for the benefit of the campaign. 

¶577 But what if a campaign committee does not necessarily 

authorize or control a third party's spending on services for 

the campaign's benefit, but instead prearranges that spending 

with the third party? Chapter 11 instructs that under these 

circumstances a candidate committee has received a reportable 

contribution as well. See Wis. Stat. § 11.06(4)(d) ("A . . . 

disbursement . . . made . . . for the benefit of a candidate is 

reportable by the candidate or the candidate's personal campaign 

committee if it is made or incurred with the authorization, 
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direction or control of or otherwise by prearrangement with the 

candidate or the candidate's agent.") (emphasis added).

¶578 As the foregoing discussion demonstrates, under 

Chapter 11, "contributions to a candidate's campaign must be 

reported whether or not they constitute express advocacy." 

WCVP, 231 Wis. 2d at 679 (emphasis in original). There is 

nothing in the plain language of Wis. Stat. § 11.06(1), 

§ 11.01(6)(a)1, § 11.06(4)(d), or Wis. Admin. Code § GAB 

1.20(1)(e) that limits receipt of reportable contributions to 

express advocacy or its functional equivalent. 

¶579 Returning to the illustration of the special 

prosecutor's in-kind contribution argument, it is evident that 

Chapter 11 supports that argument in one of two ways. First, Y, 

the campaign committee, may have received a reportable in-kind 

contribution if the nature of its coordination with X is such 

that Y authorized or controlled X's spending on issue advocacy. 

Second, Y may have received a reportable in-kind contribution if 

the nature of its coordination with X is such that the two 

entities prearranged X's spending on issue advocacy.

¶580 Thus, absent the majority's limiting construction that 

confines the term "contribution" to express advocacy or its 

function equivalent, the special prosecutor makes a valid 

argument under Wisconsin criminal law.17

 17 The intentional failure to disclose contributions 

received is a violation of criminal law. See Wis. Stat. 

§§ 11.27(1) and 11.61(1)(b). 
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B. The Key Inquiry in First Amendment Overbreadth and 

Vagueness Analysis is Whether the Statute at Issue Reaches a 

Substantial Amount of Constitutionally Protected Activity.

¶581 Having identified the portions of Chapter 11 that 

support the special prosecutor's in-kind contribution argument, 

I turn to the related doctrines of overbreadth and vagueness to 

highlight some important principles that the majority opinion 

overlooks. I also examine relevant campaign-finance decisions 

that embody those principles. 

i. Overbreadth and Vagueness 

¶582 "According to our First Amendment overbreadth 

doctrine, a statute is facially invalid if it prohibits a 

substantial amount of protected speech." United States v. 

Williams, 553 U.S. 285, 292 (2008) (emphasis added). The 

Supreme Court in Williams explained:

The doctrine seeks to strike a balance between 

competing social costs. On the one hand, the threat 

of enforcement of an overbroad law deters people from 

engaging in constitutionally protected speech, 

inhibiting the free exchange of ideas. On the other 

hand, invalidating a law that in some of its 

applications is perfectly constitutional—particularly 

a law directed at conduct so antisocial that it has 

been made criminal—has obvious harmful effects. In 

order to maintain an appropriate balance, we have 

vigorously enforced the requirement that a statute's 

overbreadth be substantial, not only in an absolute 

sense, but also relative to the statute's plainly 

legitimate sweep. Invalidation for overbreadth is 

strong medicine that is not to be casually employed.

Id. (emphasis added) (internal citations and quotations 

omitted). When engaging in overbreadth analysis, a court's 

first step "is to construe the challenged statute; it is 
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impossible to determine whether a statute reaches too far 

without first knowing what the statute covers." Id. at 293 

(emphasis added). Once a court interprets the statute at issue, 

the second step is to determine whether it "criminalizes a 

substantial amount of protected expressive activity." Id. at 

297.

¶583 "Like the overbreadth doctrine, the void-for-vagueness 

doctrine protects against the ills of a law that 'fails to 

provide a person of ordinary intelligence fair notice of what is 

prohibited, or is so standardless that it authorizes or 

encourages seriously discriminatory enforcement.'" Ctr. for 

Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir. 

2012) (quoted source and citation omitted). Where the statute 

at issue implicates First Amendment rights, a greater degree of 

precision and guidance is required. Id. at 479; see also

Buckley, 424 U.S. at 77 ("Where First Amendment rights are 

involved, an even 'greater degree of specificity' is required.") 

(quoted source and citation omitted). That said, "'perfect 

clarity and precise guidance have never been required even of 

regulations that restrict expressive activity.'" Williams, 553 

U.S. at 304 (quoted source and citation omitted). Similar to 

overbreadth analysis, a court engaging in First Amendment 

vagueness analysis must interpret the statute at issue and 

determine whether it restricts a substantial amount of 

constitutionally protected activity. Madigan, 697 F.3d at 479. 

If it does not, a facial challenge to the statute must fail. 

Id.
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¶584 The takeaway is that "The First Amendment vagueness 

and overbreadth calculus must be calibrated to the kind and 

degree of the burdens imposed on those who must comply with the 

regulatory scheme. The greater the burden on the regulated 

class, the more acute the need for clarity and precision." 

Barland II, 751 F.3d at 837.

ii. Relevant Campaign-Finance Decisions

¶585 That First Amendment overbreadth and vagueness 

analysis is context specific is best exemplified by Buckley, the 

case in which the United States Supreme Court created the 

express-advocacy limitation that is at the heart of this case. 

In Buckley, the Supreme Court considered various challenges to 

the Federal Election Campaign Act of 1971's (FECA) restrictions 

on contributions and independent expenditures. The main 

provisions under review involved: (1) limitations on individual 

and group political contributions; (2) limitations on 

independent expenditures; and (3) disclosure requirements for 

individual and group political contributions and independent 

expenditures. Buckley, 424 U.S. at 7. 

¶586 Prior to addressing the subject enactments, Buckley

discussed the kind and degree of burdens imposed on political 

speakers through limitations on the giving and spending of money 

in political campaigns. Regarding limitations on contributions, 

the Supreme Court explained:

a limitation upon the amount that any one person or 

group may contribute to a candidate or political 

committee entails only a marginal restriction upon the 

contributor's ability to engage in free communication. 

A contribution serves as a general expression of 
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support for the candidate and his views, but does not 

communicate the underlying basis for the support 

. . . . A limitation on the amount of money a person 

may give to a candidate or campaign organization thus 

involves little direct restraint on his political 

communication, for it permits the symbolic expression 

of support evidenced by a contribution but does not in 

any way infringe the contributor's freedom to discuss 

candidates and issues.

Id. at 20-21 (emphasis added). In comparison, limitations on 

independent expenditures "represent substantial rather than 

merely theoretical restraints on the quantity and diversity of 

political speech." Id. at 19. This is because "A restriction 

on the amount of money a person or group can spend on political 

communication during a campaign necessarily reduces the quantity 

of expression by restricting the number of issues discussed, the 

depth of their exploration, and the size of the audience 

reached." Id.

¶587 Bearing in mind the relative burdens on political 

speech imposed by limitations on contributions and independent 

expenditures, the Supreme Court turned to address constitutional 

challenges to FECA's $1,000 limitation on individual and group 

political contributions to any single candidate per election. 

Under FECA, the term "contribution" was defined to include "a 

gift, subscription, loan, advance, or deposit of money or 

anything of value . . . made for the purpose of influencing" an 

election. Id. at 182. The appellants did not challenge the 

subject enactment as unconstitutionally overbroad and vague on 

the basis that it incorporated the phrase "for the purpose of 

influencing" an election. However, in a footnote, Buckley all
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but assured that the phrase poses little overbreadth and 

vagueness concerns in the context of regulating contributions:

The Act does not define the phrase "for the purpose of 

influencing" an election that determines when a gift, 

loan, or advance constitutes a contribution. Other 

courts have given that phrase a narrow meaning to 

alleviate various problems in other contexts. . . . 

The use of the phrase presents fewer problems in 

connection with the definition of a contribution 

because of the limiting connotation created by the 

general understanding of what constitutes a political 

contribution.

Id. at 23 n.24 (internal citations omitted). 

¶588 Given the Supreme Court's recognition that limitations 

on contributions impose marginal burdens on free speech, its 

decision not to require a more precise definition of the term 

"contribution" is entirely consistent with the context specific 

inquiry that must take place when engaging in overbreadth and 

vagueness analysis. Ultimately, Buckley upheld FECA's 

limitation on individual and group political contributions, 

finding a "sufficiently important interest" in preventing quid 

pro quo corruption or the appearance thereof. Id. at 25-28. 

¶589 The Supreme Court then considered FECA's $1,000 

limitation on independent expenditures "relative to a clearly 

identified candidate." Id. at 39. In that context, the 

appellants successfully asserted a vagueness challenge to the 

subject enactment's use of the above quoted phrase. Significant 

to the Supreme Court's determination was the fact that the 

limitation on independent expenditures posed a substantial 

burden on political speech. See id. at 39-44. It reasoned that 

the indefiniteness of the phrase "relative to a clearly 
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identified candidate" "fails to clearly mark the boundary 

between permissible and impermissible speech . . . ." Id. at 

41. Thus, it searched for a narrowing construction to save the 

statute from unconstitutionality.

¶590 The Supreme Court found that narrowing construction in 

the text of the subject enactment itself:

The section prohibits any expenditure . . . relative 

to a clearly identified candidate during a calendar 

year which, when added to all other expenditures . . . 

advocating the election or defeat of such candidate, 

exceeds, $1,000. This context clearly permits, if 

indeed it does not require, the phrase "relative to" a 

candidate to be read to mean "advocating the election 

or defeat of" a candidate.

Id. at 42 (internal quotations omitted). It then determined

that the readily apparent limiting construction simply 

"refocuse[d] the vagueness question," Id., "[f]or the 

distinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often dissolve 

in practical application." Id. As a result, the Supreme Court 

further narrowed FECA's limitation on independent expenditures 

to "expenditures for communications that in express terms 

advocate the election or defeat of a clearly identified 

candidate for federal office." Id. at 44.

¶591 The express advocacy limitation created in Buckley was 

therefore "an endpoint of statutory interpretation, not a first 

principle of constitutional law." McConnell v. Fed. Election 

Comm'n, 540 U.S. 93, 190 (2003), overruled on other grounds by 

Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010). 

Ultimately, the Supreme Court determined that FECA's limitation 
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on independent expenditures, even as narrowly construed, 

impermissibly burdened the constitutional right of free 

expression. Buckley, 424 U.S. at 47-51. 

¶592 Perhaps most significant for purposes of the instant 

action is Buckley's discussion of FECA's disclosure requirements 

for contributions and independent expenditures. The enactment 

at issue imposed reporting obligations on individuals and groups 

that made contributions or independent expenditures aggregating 

over $100 in a calendar year "other than by contribution to a 

political committee or candidate." Id. at 74-75. 

¶593 FECA defined the terms "contribution" and 

"expenditure" to include anything of value made "for the purpose 

of influencing" an election. Id. at 77. This time Buckley took

issue with that phrase, but only as it operated to regulate 

independent expenditures. Id. at 77-80.18 To avoid overbreadth 

and vagueness concerns, the Supreme Court construed 

"expenditure" for purposes of the subject enactment "to reach 

only funds that expressly advocate the election or defeat of a 

clearly identified candidate." Id. at 80. So construed, the 

enactment withstood constitutional scrutiny, as Buckley found 

disclosure to be "a reasonable and minimally restrictive method 

of furthering First Amendment values by opening the basic 

 18 It is worth noting that Buckley found no overbreadth or 

vagueness concerns with respect to FECA's definition of 

"contribution" even though that definition included 

"expenditures placed in cooperation with or with the consent of 

a candidate, his agents, or an authorized committee of the 

candidate." Buckley v. Valeo, 424 U.S. 1, 78 (1976).
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processes of our federal election system to public view." Id. 

at 82. 

¶594 The foregoing discussion reveals that the majority 

misconstrues Buckley. Buckley's conclusion is that the phrase 

"for the purpose of influencing" an election poses First 

Amendment overbreadth and vagueness concerns in regard to 

independent expenditures, not contributions received.19

¶595 In the aftermath of Buckley, the Supreme Court has 

continued to utilize the express advocacy limitation to curb 

FECA restrictions on independent expenditures. For example, in 

Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 245-49 (1986) (MCFL), the Supreme Court applied Buckley's 

 19 This court previously examined Buckley for the purpose of 

clarifying the meaning of the term "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, a Wisconsin corporation sought and received 

assurance from the Elections Board of the State of Wisconsin 

(the Board) that certain advertisements it wanted to broadcast 

prior to a general election did not qualify as express advocacy. 

Id. at 653, 677 n.24. The Board later determined that the ads 

that were broadcast constituted express advocacy under a 

context-based approach toward defining the term. Id. at 678-79. 

We turned to Buckley to decide whether the corporation had 

fair warning that its ads constituted express advocacy, 

ultimately concluding that it did not. Id. at 662-81. As part 

of our discussion, we recognized that the United States Supreme 

Court created the express advocacy limitation in Buckley to 

avoid overbreadth and vagueness concerns with respect to FECA's 

regulation of independent expenditures. See id. at 664-66. So 

it would be a mistake to rely on WMC for the proposition that 

the express advocacy limitation is necessary to cure 

constitutional infirmities with respect to Chapter 11's 

regulation of campaign contributions received. See majority 

op., ¶68 n. 23. 
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express advocacy limitation to FECA's prohibition on 

corporations using treasury funds to make independent 

expenditures in connection with any federal election. Tracking 

Buckley's overbreadth and vagueness analysis with respect to 

FECA's disclosure requirements on independent expenditures, the 

Supreme Court in MCFL determined that FECA's broad definition of 

the term "expenditure," i.e., anything of value made "for the 

purposes of influencing" an election, posed overbreadth concerns 

in the context of the "more intrusive provision that directly 

regulate[d] independent spending." Id. at 246-49. Accordingly, 

it held that the term "expenditure" in the subject provision was 

limited to communications for express advocacy. Id. at 249.

¶596 That Buckley's express advocacy limitation was the 

product of statutory interpretation designed to avoid 

overbreadth and vagueness concerns solely with respect to the 

statutory language at issue is confirmed by McConnell, 540 U.S. 

at 191-93. There, the Supreme Court considered challenges to 

the Bipartisan Campaign Reform Act of 2002 (BCRA). Id. at 189. 

BCRA created a new term, "electioneering communication,"20 which 

placed restrictions on communications for express advocacy as 

well as issue advocacy. Id. The plaintiffs asserted 

 20 The term "electioneering communication" was defined to 

encompass "any broadcast, cable, or satellite communication" 

that "refers to a clearly identified candidate for Federal 

office" and appears within 60 days of a federal general election 

or 30 days of a federal primary election. McConnell v. Fed. 

Election Comm'n, 540 U.S. 93, 189 (2003) overruled on other 

grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310 

(2010).
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constitutional challenges to the new term as it applied to both 

the expenditure and disclosure contexts. Id. at 190. In 

essence, they argued that the term "electioneering 

communication" must be limited to communications for express 

advocacy because "Buckley drew a constitutionally mandated line 

between express advocacy and so-called issue advocacy, and that 

speakers possess an inviolable First Amendment right to engage 

in the latter category of speech." Id. 

¶597 McConnell patently rejected that contention, 

reasoning:

a plain reading of Buckley makes clear that the 

express advocacy limitation, in both the expenditure 

and the disclosure contexts, was the product of 

statutory interpretation rather than a constitutional 

command. In narrowly reading the FECA provisions in 

Buckley to avoid problems of vagueness and 

overbreadth, we nowhere suggested that a statute that 

was neither vague nor overbroad would be required to 

toe the same express advocacy line. Nor did we 

suggest as much in MCFL . . . in which we addressed 

the scope of another FECA expenditure limitation and 

confirmed the understanding that Buckley's express 

advocacy category was a product of statutory 

construction.

In short, the concept of express advocacy and the 

concomitant class of magic words were born of an 

effort to avoid constitutional infirmities. . . . We 

have long rigidly adhered to the tenet never to 

formulate a rule of constitutional law broader than is 

required by the precise facts to which it is to be 

applied, . . . for [t]he nature of judicial review 

constrains us to consider the case that is actually 

before us, . . . Consistent with that principle, our 

decisions in Buckley and MCFL were specific to the 

statutory language before us; they in no way drew a 

constitutional boundary that forever fixed the 

permissible scope of provisions regulating campaignrelated speech.
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Id. at 191-93 (emphasis added) (internal citations and 

quotations omitted). Thus, it would be error for a court to 

rely on Buckley to narrow a statute's reach to express advocacy 

where it does not pose the same overbreadth and vagueness 

concerns that drove the Supreme Court's analysis in Buckley. 

See id. at 194.

¶598 The Seventh Circuit's decision in Barland II is 

entirely consistent with the notion that Buckley's express 

advocacy limitation is context specific. There, Wisconsin Right 

to Life (WRTL), a nonprofit tax-exempt corporation, "sued to 

block enforcement of many state statutes and rules against 

groups that spend money for political speech independently of 

candidates and parties." Barland II, 751 F.3d at 807 (emphasis 

added). Specifically, the complaint alleged "that the 

challenged laws are vague and overbroad and unjustifiably burden 

the free-speech rights of independent political speakers in 

violation of the First Amendment." Id. (emphasis added). Lest 

there be any confusion, the Seventh Circuit specified: "Neither 

[WRTL] nor its state PAC contributes to candidates or other 

political committees, nor are they connected with candidates, 

their campaign committees, or political parties. That is to 

say, they operate independently of candidates and their campaign 

committees." Id. at 809. 

¶599 So when the Seventh Circuit considered WRTL's 

overbreadth and vagueness challenge to Chapter 11's definition 

of "political purposes," it did so in the context of that term's 

restrictions on independent expenditures, not contributions 
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received. Any other reading contravenes the principle that 

courts should not "formulate a rule of constitutional law 

broader than is required by the precise facts to which it is to 

be applied . . . ." McConnell, 540 U.S. at 193 (citation and 

quotations omitted). To be clear, the GAB's concession in 

Barland II was that Chapter 11's definition of "political 

purposes" was overbroad and vague "in the sense meant by Buckley

. . . ." Barland II, 751 F.3d at 832. As demonstrated, Buckley

was concerned with the phrase "for the purpose of influencing" 

an election where it operated to regulate independent 

expenditures, not contributions. Thus, it is incorrect to rely 

on Barland II to support the notion that the subject phrase 

poses overbreadth and vagueness concerns in the context of 

Chapter 11's regulation of contributions received.21

¶600 In sum, the key inquiry in First Amendment overbreadth 

and vagueness analysis is whether the statute at issue reaches a 

substantial amount of constitutionally protected speech. As a 

result, a court's analysis in this regard must be context 

specific——"the greater the burden on the regulated class, the 

more acute the need for clarity and precision." Id. at 837. 

 21 The majority states that "Although Barland II did not 

involve an allegation of coordination, that distinction is 

meaningless in determining whether the definition of 'political 

purposes' is vague or overbroad." Majority op., ¶67 n.22. 

Actually, it makes all the difference. Under Chapter 11, 

coordinated disbursements are treated as contributions. 
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Buckley embodies that principle in its disparate treatment of 

contributions and independent expenditures under FECA.22

C. There are No Overbreadth and Vagueness Concerns with 

Respect to Wis. Stat. § 11.06(1).

¶601 Wisconsin Stat. § 11.06(1) is neither overbroad nor 

vague in its requirement that campaign committees report receipt 

of in-kind contributions in the form of coordinated spending on 

issue advocacy.

¶602 As noted, the primary inquiry is whether Wis. Stat. 

§ 11.06(1) reaches a substantial amount of constitutionally 

protected speech. Madigan, 697 F.3d at 479. Of course, in 

order to answer that question, it is necessary to examine the 

plain language of the statute. Williams, 553 U.S. at 293.

¶603 Generally speaking, Wis. Stat. § 11.06(1) requires 

registrants to "make full reports . . . of all contributions 

received, contributions or disbursements made, and obligations 

incurred." Registrants must file frequent and detailed reports 

under § 11.06; Barland II summarized a variety of those 

reporting obligations as follows:

For contributions received in excess of $20, the 

report must include the date of the contribution, the 

name and address of the contributor, and the 

cumulative total contributions made by that 

contributor for the calendar year. For contributions 

 22 For a thorough discussion that supports my interpretation 

of Buckley's distinction between contributions and independent 

expenditures, see generally Brent Ferguson, Beyond Coordination: 

Defining Indirect Campaign Contributions for the Super PAC Era, 

42 Hastings Const. L.Q. 471 (2015). 
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received in excess of $100, the registrant must obtain 

and report the name and address of the donor's place 

of employment. All other income in excess of $20—

including transfers of funds, interest, returns on 

investments, rebates, and refunds received—must be 

listed and described.

Registrants must report all disbursements. For every 

disbursement in excess of $20, the registrant must 

include the name and address of the recipient, the 

date of the disbursement, and a statement of its 

purpose. Individuals and committees not primarily 

organized for political purposes need only report 

disbursements made for the purpose of expressly 

advocat[ing] the election or defeat of a clearly 

identified candidate. In other words, committees in 

this category need not report general operating 

expenses; for all other committees, administrative and 

overhead expenses must be reported as disbursements. 

All disbursements that count as contributions to 

candidates or other committees must be reported. 

Barland II, 751 F.3d at 814 (internal citations and quotations 

omitted). "No person may prepare or submit a false report or 

statement to a filing officer under [Chapter 11]." Wis. Stat. 

§ 11.27(1). A registrant 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 

constitutionally protected speech, the terms "contribution" and 

"disbursement" must be construed.23 As previously noted, a 

"contribution" includes a "gift . . . of money . . . or anything 

 23 Wisconsin Stat. § 11.06(1) includes the term "obligation" 

as well. Under Chapter 11, "incurred obligation" is defined as 

"every express obligation to make any contribution or 

disbursement . . . 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 

separately analyze it.
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of value . . . made for political purposes." Wis. Stat. § 

11.01(6)(a)1. The definition encompasses a "disbursement by a 

contributor to procure a thing of value or service for the 

benefit of a registrant who authorized the disbursement." Wis. 

Admin. Code § GAB 1.20(1)(e). A disbursement made for the 

benefit of a candidate that is prearranged with the candidate or 

the candidate's agent is treated as a contribution to the 

candidate or the campaign committee that must be reported as a 

contribution received. Wis. Stat. § 11.06(4)(d).

¶605 A "disbursement" includes "A purchase, payment, 

distribution, loan, advance, deposit, or gift of money or 

anything of value . . . made for political purposes." Wis. 

Stat. § 11.01(7)(a)1. 

¶606 A "contribution" and a "disbursement" must be made for 

"political purposes." "Political purposes" is defined to 

include an act done "for the purpose of influencing" an 

election. Wis. Stat. § 11.01(16). 

¶607 To reiterate, the phrase "for the purpose of 

influencing" an election has caused overbreadth and vagueness 

problems in the context of campaign-finance regulation where it 

serves to restrict independent expenditures. See Buckley, 424 

U.S. at 77-80; MCFL, 479 U.S. at 249; Barland II, 751 F.3d at 

833. That is because restraints on independent expenditures 

have the potential to encumber a substantial amount of protected 

speech. Buckley, 424 U.S. at 19. At first blush, then, Wis. 

Stat. § 11.06(1)'s reporting requirement for "disbursements" 

raises the specter of unconstitutionality as far as independent 
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spending is concerned. But Wis. Stat. § 11.06(2) solves that 

dilemma, exempting from § 11.06(1)'s reporting requirement 

independent disbursements that do not "expressly advocate the 

election or defeat of a clearly identified candidate . . . ." 

Thus, with respect to § 11.06(1)'s regulation of independent 

disbursements, there are no overbreadth and vagueness concerns 

in the sense meant by Buckley. 

¶608 That leaves the question of whether the phrase "for 

the purpose of influencing" an election, incorporated in Wis. 

Stat. § 11.06(1) through the definition of "contribution," 

raises constitutional concerns in the sense meant by Buckley. 

Clearly, the answer is "no." 

¶609 For starters, restrictions on contributions pose 

marginal as opposed to substantial burdens on speech. Id. at 

20-21; see also Fed. Election Comm'n v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 440 (2001) (Colorado II) 

("Restraints on expenditures generally curb more expressive and 

associational activity than limits on contributions do."). The 

main rationale is that restraints on contributions have little 

direct impact on political communication, as they permit the 

symbolic expression of support and leave the contributor free to 

discuss candidates and issues. Buckley, 424 U.S. at 21. 

Arguably, that justification might not apply with equal force to 

contributions that take the form of coordinated issue advocacy, 

since such contributions do "communicate the underlying basis 

for the [contributor's] support." Id. But there is a simple 

solution to that problem: stop coordinating. In the absence of 
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coordination, the contributor is free to discuss candidates and 

issues.

¶610 That restrictions on contributions impose marginal 

burdens on free speech is especially true where the restriction 

at issue involves disclosure rather than a ceiling on the amount 

of money a person can give to a campaign. See Citizens United 

v. Fed. Election Comm'n, 558 U.S. 310, 369 (2010) ("The Court 

has explained that disclosure is a less restrictive alternative 

to more comprehensive regulations of speech."). Even the 

majority is forced to acknowledge the fact that disclosure 

requirements pose less significant burdens on the exercise of 

free speech.24 So it is important to keep in mind that Wis. 

Stat. § 11.06(1) requires disclosure of contributions made and 

received. 

¶611 In light of the more modest burdens that Wis. Stat. 

§ 11.06(1) imposes on the free speech rights of those that make 

and receive contributions, it is clear that less precision and 

clarity is required with respect to what is regulated. See

Barland II, 751 F.3d at 837 ("The greater the burden on the 

regulated class, the more acute the need for clarity and 

precision."). That leads me to conclude that the phrase "for 

the purpose of influencing" an election is not problematic where 

it operates to regulate contributions under § 11.06(1). Indeed, 

Buckley supports my position. See Buckley, 424 U.S. at 23 n.24 

("The use of the phrase presents fewer problems in connection 

 24 Majority op., ¶48. 
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with the definition of a contribution because of the limiting 

connotation created by the general understanding of what 

constitutes a political contribution."). 

¶612 It is common sense that a gift of money to a candidate 

or a campaign committee constitutes an act made for the purpose 

of influencing an election. It is also common sense that money 

spent on services for the benefit of a candidate or a campaign 

committee that authorized the spending is an act done for the 

purpose of influencing an election. Similarly, where a 

candidate or a candidate's agent and a third party prearrange 

the third party's spending for the benefit of the candidate, 

common sense says the spending is done for the purpose of 

influencing an election. The point is that the aforementioned 

actions are connected with a candidate or his or her campaign. 

¶613 Therefore, I conclude that Wis. Stat. § 11.06(1) is 

neither overbroad nor vague in its requirement that candidate 

committees report receipt of in-kind contributions in the form 

of coordinated spending on issue advocacy. 

¶614 The majority disagrees, although it does not address 

Wis. Stat. § 11.06(1) in reaching its conclusion that the 

special prosecutor fails to advance a valid argument under 

Wisconsin criminal law. Rather, the majority dismisses the 

special prosecutor's primary argument by analyzing the GAB's 

definition of the term "in-kind contribution."25 That approach 

is inconsistent with First Amendment overbreadth and vagueness 

 25 See majority op., ¶74. 
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analysis. See Williams, 553 U.S. at 293 ("The first step in 

overbreadth analysis is to construe the challenged statute; it 

is impossible to determine whether a statute reaches too far 

without first knowing what the statute covers."); Madigan, 697 

F.3d at 479 ("'In a facial challenge to the overbreadth and 

vagueness of a law, a court's first task is to determine whether 

the enactment reaches a substantial amount of constitutionally 

protected conduct.'") (quoted source and citation omitted). 

Wisconsin Admin. Code § GAB 1.20(1)(e), standing alone, does not 

regulate protected speech——it is a definition. 

¶615 Had the majority performed a context specific First 

Amendment overbreadth and vagueness analysis, it presumably 

would have concluded that Wis. Stat. § 11.06(1) is 

unconstitutionally overbroad and vague in the sense meant by 

Buckley because it contains the terms "contribution" and 

"disbursement," thereby triggering "political purposes" and the 

phrase "for the purpose of influencing" an election.26 But a 

correct reading of Buckley and its progeny leads to a conclusion 

that there are no constitutional infirmities with respect to 

§ 11.06(1). 

¶616 The majority's contrary conclusion ignores the 

legislature's intent in enacting Chapter 11. When searching for 

a limiting construction to cure an overly broad or vague 

statute, "we examine the language of the statute as well as its 

legislative history to determine whether the legislature 

 26 See majority op., ¶¶66-67.
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intended the statute to be applied in its newly-construed form." 

State v. Janssen, 219 Wis. 2d 362, 380, 580 N.W.2d 260 (1998). 

By rejecting the special prosecutor's in-kind contribution 

argument and holding that contributions received need not be 

reported under Wis. Stat. § 11.06(1) unless they involve express 

advocacy or its functional equivalent, the majority disregards 

the legislature's declaration of policy in creating Chapter 11:

ensuring that the public is fully informed of the true source of 

financial support to candidates for public office. Wis. Stat. § 

11.001. 

¶617 The majority's errors will have a detrimental effect 

on the integrity of Wisconsin's electoral process, particularly 

in the context of campaign contributions. Under the majority's 

holding, an act is not a campaign contribution unless it 

involves express advocacy or its functional equivalent.27 The 

majority claims that its limiting construction is necessary to 

place issue advocacy beyond Chapter 11's reach,28 but at what 

cost? Surely gifts of money to a campaign trigger the same quid 

pro quo corruption concerns that justify the regulation of 

communications for express advocacy or its functional 

equivalent, and yet gifts of money would not constitute 

contributions under the majority's holding. Since Buckley, the 

United States Supreme Court has consistently upheld restraints 

on such campaign contributions. See O'Keefe, 769 F.3d at 941. 

 27 Majority op., ¶67.

28 Majority op., ¶¶66-67. 
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Thus, I question the propriety of the majority's decision to 

tear down those restraints. 

¶618 In sum, I conclude that Chapter 11 supports the 

special prosecutor's in-kind contribution argument. The 

majority's contrary determination is the product of a 

fundamental misunderstanding and misapplication of Buckley and 

its progeny, including Barland II, as well as the First 

Amendment overbreadth and vagueness principles that those 

decisions embody. 

D. The Question of Whether the First Amendment Prohibits 

Regulation of Coordinated Issue Advocacy Should Not Prevent the 

John Doe Investigation From Moving Forward.

¶619 Having concluded that the special prosecutor makes a 

valid argument under Wisconsin criminal law, the question 

remains whether the First Amendment to the United States 

Constitution prohibits regulation of coordinated issue 

advocacy.29 This question should be addressed by the United 

States Supreme Court because it has sparked "lively debate among 

judges and academic analysts." Id. at 942.

 29 Speech that is protected under the First Amendment is not 

necessarily immune to governmental regulation. See WilliamsYulee, 135 S. Ct. at 1667 ("[N]obody argues that solicitation of 

campaign funds by judicial candidates is a category of 

unprotected speech. As explained above, the First Amendment 

fully applies to Yulee's speech. The question is instead whether 

that Amendment permits the particular regulation of speech at 

issue here."). This point appears lost on the majority. See, 

e.g., majority op., ¶¶66-67. 
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¶620 In O'Keefe, the plaintiffs filed suit seeking an 

injunction that would halt this John Doe investigation 

permanently, regardless of whether the special prosecutor could 

demonstrate a violation of Wisconsin law. Id. at 938. In 

addition, the complaint sought damages against five defendants, 

including the special prosecutor and the Milwaukee County 

District Attorney. Id. The United States District Court for 

the Eastern District of Wisconsin "held that the First Amendment 

to the Constitution (as applied to the states through the 

Fourteenth) forbids not only penalties for coordination between 

political committees and groups that engage in issue advocacy, 

but also any attempt by the state to learn just what kind of 

coordination has occurred." Id. As a result, the district 

court rejected the defendants' argument that they enjoyed 

qualified immunity. Id. at 939.

¶621 In reversing the district court's order that rejected 

the defendants' qualified immunity defense, the Seventh Circuit, 

in an opinion authored by Judge Easterbrook, reasoned: 

No opinion issued by the Supreme Court, or by any 

court of appeals, establishes ("clearly" or otherwise) 

that the First Amendment forbids regulation of 

coordination between campaign committees and issueadvocacy groups—let alone that the First Amendment 

forbids even an inquiry into that topic. The district 

court broke new ground. Its views may be vindicated, 

but until that day public officials enjoy the benefit 

of qualified immunity from liability in damages.

Id. at 942.

¶622 It is important to note that the United States Supreme 

Court has endorsed FECA's treatment of coordinated expenditures 
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as contributions. As previously mentioned, in Buckley, the 

Supreme Court upheld FECA's limitations on individual and group 

political contributions notwithstanding the fact that 

"contribution" was defined to include coordinated expenditures. 

Buckley, 424 U.S. at 23-59. It also upheld FECA's disclosure 

requirements on contributions so defined. Id. at 78. In 

Colorado II, the Supreme Court upheld FECA's limitations on 

coordinated expenditures between political parties and 

candidates. Colorado II, 533 U.S. at 465. Also, in McConnell, 

it upheld BCRA's treatment of coordinated disbursements for 

electioneering communications as contributions, even though the 

term "electioneering communication" was defined to include issue 

advocacy. McConnell, 540 U.S. at 203. 

¶623 The basic rationale underlying the Supreme Court's 

endorsement of such restrictions is that coordinated 

expenditures "are as useful to the candidate as cash . . . ." 

Colorado II, 533 U.S. at 446. Thus, they are "disguised 

contributions" that "might be given 'as a quid pro quo for 

improper commitments from the candidate' (in contrast to 

independent expenditures, which are poor sources of leverage for 

a spender because they might be duplicative or counterproductive 

from a candidate's point of view." Id. (citing Buckley, 424 

U.S. at 47). Since the prevention of quid pro quo corruption or 

its appearance remains a permissible goal justifying regulations 

on political speech, McCutcheon v. Fed. Election Comm'n, 134 S. 

Ct. 1434, 1441 (2014), it is certainly likely that the 
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regulation of coordinated issue advocacy will withstand First 

Amendment scrutiny. 

¶624 Moreover, as noted previously, the Supreme Court 

recently determined that the First Amendment permits the 

regulation of judicial candidates' speech. Williams-Yulee, 135 

S. Ct. at 1662. The Supreme Court reasoned that states have a 

compelling interest in preserving public confidence in their 

judges by preventing quid pro quo corruption or its appearance. 

Id. at 1667-68. Thus, an argument can be made that WilliamsYulee bolsters the special prosecutor's contention that the 

First Amendment permits the regulation of coordinated issue 

advocacy, since that is an area where corruption or its 

appearance is a significant concern as well. 

¶625 Because the special prosecutor makes a valid argument 

under Wisconsin criminal law, and because the United States 

Supreme Court has not concluded that the First Amendment 

prohibits the regulation of coordinated issue advocacy, the John 

Doe investigation should not be terminated. Not only do the 

majority's errors serve to end a valid John Doe investigation, 

they work to limit the reach of Wisconsin's campaign-finance law 

in a manner that will undermine the integrity of our electoral 

process. I disagree with these consequences and therefore 

respectfully dissent in Two Unnamed Petitioners.

II. SCHMITZ v. PETERSON AND THREE UNNAMED PETITIONERS

¶626 The questions presented in Schmitz v. Peterson and 

Three Unnamed Petitioners boil down to whether the John Doe 

judge violated a plain legal duty in either initiating these 
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proceedings or quashing various subpoenas and search warrants 

related to the investigation. Both the special prosecutor in 

Schmitz v. Peterson and the Unnamed Movants in Three Unnamed 

Petitioners carry a heavy burden in this regard, as a 

supervisory writ is an "extraordinary and drastic remedy that is 

to be issued only upon some grievous exigency." State ex. rel. 

Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶17, 271 Wis. 

2d 633, 681 N.W.2d 110. I agree with the majority that neither 

the special prosecutor nor the Unnamed Movants have established 

the prerequisites for a writ to issue.30

¶627 However, I wish to clarify that the majority's 

decision in Schmitz v. Peterson should not be construed as 

holding that the evidence gathered in the John Doe proceedings 

fails to provide a reasonable belief that Wisconsin's campaignfinance law was violated. The majority's decision to deny the 

writ rests solely on the fact that Reserve Judge Gregory 

Peterson made a discretionary decision to quash the subpoenas 

and search warrants at issue. By the very nature of the 

supervisory writ standard, the majority's conclusion takes no 

position on the propriety of Reserve Judge Peterson's decision 

in this regard.

III. CONCLUSION

¶628 By erroneously concluding that campaign committees do 

not have a duty under Wisconsin's campaign-finance law to report 

receipt of in-kind contributions in the form of coordinated 

 30 See majority op., ¶¶78, 101.
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spending on issue advocacy, the majority rejects the special 

prosecutor's primary argument regarding criminal activity. 

Although the special prosecutor advances a secondary argument of 

criminal activity concerning coordinated express advocacy, the 

majority inexplicably ignores that argument. These mistakes 

lead the majority to terminate a valid John Doe investigation in 

an unprecedented fashion. 

¶629 With respect to the special prosecutor's primary 

argument, which is the focus of my writing, the majority 

misapplies the related doctrines of overbreadth and vagueness. 

Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is 

neither overbroad nor vague in its requirement that campaign 

committees report receipt of in-kind contributions. The 

majority also makes the troubling pronouncement that an act is 

not a regulable disbursement or contribution under Ch. 11 unless 

it involves express advocacy or its functional equivalent. This 

is an erosion of Ch. 11 that will profoundly affect the 

integrity of our electoral process. I cannot agree with this 

result. 

¶630 It is also imperative to note that the majority 

conveniently overlooks the special prosecutor's secondary 

argument of criminal activity in its effort to end this John Doe 

investigation. Specifically, the special prosecutor seeks to 

investigate whether particular express advocacy groups 

coordinated their spending with candidates or candidate 

committees in violation of their sworn statement of independence 

under Wis. Stat. § 11.06(7). Despite the fact that the special 
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prosecutor utilizes a significant portion of his brief to 

present evidence of such illegal coordination, the majority 

determines, without explanation, that the John Doe investigation 

is over.

¶631 Has the majority abused its power in reaching this 

conclusion? The majority's rush to terminate this investigation 

is reminiscent of the action taken by the United States District 

Court for the Eastern District of Wisconsin in O'Keefe v. 

Schmitz, 19 F. Supp. 3d at 875, an action that was both 

criticized and reversed by the United States Court of Appeals 

for the Seventh Circuit in O'Keefe, 769 F.3d at 942. Although 

the focus of my writing lies elsewhere, the majority's error in 

this regard cannot be overlooked.

¶632 For these reasons, I respectfully dissent in State ex. 

rel. Two Unnamed Petitioners v. Peterson (Two Unnamed 

Petitioners). 

¶633 However, because I agree that the special prosecutor 

and certain Unnamed Movants have failed to meet their heavy 

burden of establishing that the John Doe judge violated a plain 

legal duty in either initiating these proceedings or quashing 

various subpoenas and search warrants related to the 

investigation, I respectfully concur with the majority in State 

ex. rel. Schmitz v. Peterson (Schmitz v. Peterson) and State ex. 

rel. Three Unnamed Petitioners v. Peterson (Three Unnamed 

Petitioners). In concurring in Schmitz v. Peterson, it is 

significant for me that when an appellate court decides to issue 

a supervisory writ, it is a rare, discretionary decision. 
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Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶33-34. Here, the 

John Doe judge also made a discretionary decision in deciding a 

complex legal issue. Deference should be given where there is 

such discretion.

¶634 For the foregoing reasons, I concur in part and 

dissent in part. To be clear, I agree with the majority's 

decision to deny the petition for supervisory writ and affirm 

Reserve Judge Gregory Peterson's order in Schmitz v. Peterson. 

I also agree with the majority's decision to deny the petition 

for supervisory writ and affirm the court of appeals' decision 

in Three Unnamed Petitioners. However, contrary to the 

majority, I would deny the relief sought in Two Unnamed 

Petitioners and allow the John Doe investigation to continue. 
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