363 Wis.2d 1
866 N.W.2d 165
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.
Nos. 2014AP296–OA
2014AP417–W
2014AP418–W
2014AP419–W
2014AP420–W
2014AP421–W
2013AP2504–W
2013AP2505–W
2013AP2506–W
2013AP2507–W
2013AP2508–W.
Supreme Court of Wisconsin.
July 16, 2015.
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 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 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.
Opinion
MICHAEL J. GABLEMAN, J.
¶ 1 These cases arise from a John Doe proceeding originally initiated in Milwaukee County, and subsequently expanded to four additional counties, Iowa 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 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 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), 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...
