                                                               2015 WI 103

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2013AP2504-W through 2013AP2508-W, 2014AP296-OA &
                       2014AP417-W through 2014AP421-W
COMPLETE TITLE:        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.

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

                       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.



                                  MOTION FOR RECONSIDERATION

OPINION FILED:         December 2, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee, Iowa, Dodge, Dane and Columbia
   JUDGE:              Gregory A. Peterson (Reserve)
JUSTICES:
   CONCURRED:
   CONCUR/DISSENT:   ABRAHAMSON, J., concurs and dissents. (Opinion
                     Filed)
  DISSENTED:
  NOT                A.W. BRADLEY, R.G. BRADLEY, J.J., did not
  PARTICIPATING:     participate.
                     N. PATRICK CROOKS, Jr., passed away while these
                     motions were pending and prior to their final
                     resolution by the court.

ATTORNEYS:




                                     2
                                                                       2015 WI 103
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
Nos. 2013AP2504-W through 2013AP2508-W
     2014AP296-OA
     2014AP417-W through 2014AP421-W
(L.C. Nos.   2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23)

STATE OF WISCONSIN                            :               IN SUPREME COURT

In the Matter of John Doe Proceeding

State of Wisconsin ex rel. Three Unnamed
Petitioners,

             Petitioner,                                                  FILED
      v.                                                              DEC 2, 2015
The Honorable Gregory A. Peterson, John Doe                            Diane M. Fremgen
Judge, the Honorable Gregory Potter, Chief                          Clerk of Supreme Court
Judge and Francis D. Schmitz, as Special
Prosecutor,

          Respondents.
_____________________________________________

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.
_____________________________________________
                                Nos.   2013AP2504-W through 2013AP2508-W
                                                            2014AP296-OA
                                         2014AP417-W through 2014AP421-W

State of Wisconsin ex rel. Francis D. Schmitz,

          Petitioner,

    v.

Honorable Gregory A. Peterson, John Doe Judge,

          Respondent,

Eight Unnamed Movants,

          Interested Party.




    MOTION for reconsideration of a decision of the Supreme

Court.   Motion for reconsideration and motion for stay denied;

mandate clarified.



    ¶1    PER CURIAM.    Attorney Francis Schmitz, who has been

designated as the special prosecutor representing the State of

Wisconsin throughout the proceedings in this court, has filed a

motion for reconsideration of a portion of this court's July 16,

2015 decision.   Attorney Schmitz also asks this court to stay
its mandate regarding the documents and data gathered during the

investigation while the prosecution team determines whether to

seek federal review of our decision.     In response, some of the

Unnamed Movants (as that term was defined in the July 16, 2015

majority opinion) challenge whether Attorney Schmitz retains any

authority to act as the special prosecutor.     The Unnamed Movants

also argue that the motions should be denied because they fail
to meet the relevant standards for relief.


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                                                                   2014AP296-OA
                                                2014AP417-W through 2014AP421-W


    ¶2      We first address the question of Attorney Schmitz's

authority and hold that, as of the date of this opinion, with

the exception of the limited tasks explicitly imposed on him by

this opinion, Attorney Schmitz's authority to act as the special

prosecutor   in     what    has   become    known   as    "John   Doe   II"1   is

terminated because his appointment was invalid.               We further deny

both the motion for reconsideration and the motion for a stay.

As described below, we clarify the portion of the mandate in the

July 16, 2015 decision that required Attorney Schmitz to return

and destroy documents and electronic data obtained during the

John Doe II investigation.

    ¶3      Before    we    can   address     the   substance     of    Attorney

Schmitz's motions, we must address whether his motions should be

dismissed because he lacks authority to continue acting as the

John Doe special prosecutor.           One of the issues we asked the

parties to address in State ex rel. Three Unnamed Petitioners v.

Peterson,    Case    Nos.     2013AP2504-08-W,      was     whether     Attorney

Schmitz's appointment as the special prosecutor was valid.                  Some
of the Unnamed Movants argue that in light of a legal conclusion

in Justice David T. Prosser's July 16, 2015 concurring opinion

    1
       We use the term "John Doe II" to refer to the John Doe
proceedings and the accompanying investigation in five counties
that was initially presided over by Reserve Judge Barbara A.
Kluka and since the fall of 2013 has been presided over by
Reserve Judge Gregory A. Peterson. We use the term "John Doe I"
to refer to the earlier John Doe proceeding and investigation in
Milwaukee County (Case No. 10JD7) that was presided over by
Reserve Judge Neal Nettesheim.


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                                                                                  2014AP296-OA
                                                               2014AP417-W through 2014AP421-W


that    Attorney        Schmitz's       appointment             was       invalid,           which    was

joined by three other justices, Attorney Schmitz lacks standing

to pursue a motion for reconsideration or a motion for a stay of

this court's decision.                  On    the other hand, Attorney Schmitz

argues that the legal ruling of this court in Three Unnamed

Petitioners, Case Nos. 2013AP2504-08-W, was an affirmance of the

court       of     appeals'         decision           denying            the        Three     Unnamed

Petitioners' petition for a supervisory writ, which means that

he continues to have standing to act as the special prosecutor

in   all    respects,         including       by       filing    new          motions        and    other

papers in this court.                  Resolving this issue requires that we

clarify the legal effect of the opinions we issued on July 16,

2015.

       ¶4        When we were addressing the merits of Three Unnamed

Petitioners, Case Nos. 2013AP2504-08-W, the court's task was to

determine whether the court of appeals had properly denied the

Three      Unnamed      Petitioners'          petition         for        a    supervisory           writ.

Accordingly,           we    looked    to     the       standard          of        review    and     the
standard     for       obtaining       such    a       writ.         In       the    July     16,    2015

majority opinion, this court determined that the Three Unnamed

Petitioners        could      not     meet    one       of     the    requirements             for    the

issuance of a supervisory writ——namely, that the John Doe judge

at the time of Attorney Schmitz's appointment, Reserve Judge

Barbara Kluka, had violated a plain duty under then-existing law

in     appointing           Attorney    Schmitz.               Accordingly,             this        court
affirmed         the   court     of    appeals'           decision            denying        the    Three


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                                               Nos.    2013AP2504-W through 2013AP2508-W
                                                                            2014AP296-OA
                                                         2014AP417-W through 2014AP421-W


Unnamed Petitioners' petition for a supervisory writ.                              Given

that standard of review, the determination of no violation of a

plain legal duty was the extent of this court's legal ruling in

Case       Nos.    2013AP2504-08-W          with    respect     to   the   question     of

whether      the       Three   Unnamed      Petitioners       were     entitled   to   the

supervisory writ they had requested from the court of appeals.

       ¶5         Indeed, because the issue was presented at that point

in time in the context of a supervisory writ petition and the

court determined that the writ standard had not been satisfied,

there was no need for the majority opinion to reach the issue of

whether Attorney Schmitz could continue to act as the special

prosecutor.             See    State   ex    rel.     Two    Unnamed    Petitioners     v.

Peterson, 2015 WI 85, ¶132 n.43, 363 Wis. 2d 1, 866 N.W.2d 165.

("We need not address what effect an unlawful appointment would

have had because no violation of a plain legal duty occurred.").

       ¶6         On   the     other   hand,       Justice     Prosser's     concurring

opinion proceeded to discuss the underlying legal issue——namely,

whether Attorney Schmitz's appointment as the special prosecutor
had    been        valid.2       Justice     Prosser        interpreted    the    special


       2
       This was not the first time that, despite the court having
denied a supervisory writ because the petitioner could not
demonstrate a violation of a plain legal duty, the court has
gone on to discuss the underlying legal issue. See, e.g., State
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶26,
271 Wis. 2d 633, 681 N.W.2d 110 ("Although the Kalals have
failed to establish the existence of a plain duty and are not
entitled to a supervisory writ, we will address the statutory
interpretation question presented by this case.").


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                                                                          2014AP296-OA
                                                       2014AP417-W through 2014AP421-W


prosecutor       statute,     Wis.     Stat.      § 978.045,        to    contain           two

prerequisites that must be satisfied in order for an appointment

of a special prosecutor to be valid:                      (1) the court or district

attorney seeking the appointment of a special prosecutor must

first seek assistance from other prosecutors, including from an

assistant attorney general, and (2) one of the nine conditions

set   forth      in   Wis.    Stat.    § 978.045(1r)           must      apply    to        the

situation.       Justice Prosser concluded that the appointment of

Attorney Schmitz as a special prosecutor for the John Doe II

proceedings      in   the    five    counties        at    issue   had    been    invalid

because    the    appointment        had   not    satisfied        one    of     the    nine

conditions in subsection (1r) of the special prosecutor statute.

      ¶7    Three other justices joined this portion of Justice

Prosser's     concurring        opinion.             Two     Unnamed       Petitioners,

363 Wis. 2d      1,   ¶306    (Prosser,        J.,    concurring,        joined        as   to

Section IV by Chief Justice Roggensack, Justice Ziegler, and

Justice Gableman).           It should be noted, however, that there was

no mandate at the end of Justice Prosser's opinion.3                           Indeed, as


      3
       There also was no part of the mandate at the end of the
majority opinion that addressed the legal conclusion in Justice
Prosser's concurring opinion that the appointment of Attorney
Schmitz as the special prosecutor had been invalid. The mandate
at the end of the majority opinion merely stated "Petition for
supervisory writ denied and decision affirmed in Three Unnamed
Petitioners."    This tracked the holding set forth in the
majority opinion that the petition for supervisory writ must be
denied   because   the  Three   Unnamed   Petitioners  had  not
demonstrated that the John Doe judge had violated a plain legal
duty.


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                                                               2014AP417-W through 2014AP421-W


in the majority opinion, there was no discussion in Justice

Prosser's      concurring          opinion         of     the      effect       of     the        legal

determination        that    Attorney            Schmitz's        appointment          as    special

prosecutor      was    invalid.             In     essence,            given    the    procedural

posture, while there were four justices who reached the same

conclusion about a question of law, there was no legal ruling by

the   court    at     that       point      in    time       on    the    issue       of    Attorney

Schmitz's past or present authority as the John Doe II special

prosecutor.

      ¶8      The fact that the court confined its legal ruling to

affirming the court of appeals' denial of the supervisory writ

petition      that    was        the     subject        of     its       review      due     to    the

applicable standard does not mean that Attorney Schmitz should

be able to continue to act as the special prosecutor in all

respects as if his appointment were valid.                                 That would ignore

the   reality       shown     in       Justice        Prosser's          concurrence         that    a

majority      of    the     justices        of     this       court       conclude         that     his

appointment was invalid.                 That legal conclusion of four justices
set forth in Justice Prosser's concurrence remains regardless of

any   subsequent       actions         or    inactions            by    Attorney      Schmitz       or

anyone else.         Attorney Schmitz, however, has chosen to continue

to act as the special prosecutor by filing his current motions

for reconsideration and a stay in this court.                                  Moreover, he has

specifically        made     a    continuing            claim      in     his     filings         that,

because of the denial of the supervisory writ filed by the Three
Unnamed Petitioners, he retains complete authority to act as the


                                                  7
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                                                                       2014AP296-OA
                                                    2014AP417-W through 2014AP421-W


special prosecutor going forward, despite the writings issued by

this court on July 16, 2015.              Because we are presented with his

continued   filings      brought     in    his    capacity      as   the    appointed

special prosecutor, we now must address the underlying legal

question of Attorney Schmitz's authority to act as the special

prosecutor under the appointment orders issued by the initial

John Doe II judge.          If Attorney Schmitz lacks the authority to

act   as   the    special    prosecutor       because     his    appointment      was

invalid, then his motions could be dismissed simply on that

ground without considering the arguments made in those motions.

      ¶9    For    the     reasons    set     forth      in   Justice       Prosser's

July 16,    2015    concurring       opinion,       we    hold       that    Attorney

Schmitz's appointment as the special prosecutor in the John Doe

II proceedings pending in each of the five counties was invalid.

Two Unnamed Petitioners, 363 Wis. 2d 1, ¶¶203-39 (Prosser, J.,

concurring).        With     three   justices       having      already      declared




                                          8
                                           Nos.    2013AP2504-W through 2013AP2508-W
                                                                        2014AP296-OA
                                                     2014AP417-W through 2014AP421-W


agreement with Justice Prosser's reasoning, there is no reason

to repeat that reasoning here.4

      ¶10   The    next   question,      which      was    not    addressed     in    the

July 16,    2015     opinions,      is     what      is     the     effect    of       the

determination that Attorney Schmitz's appointment was invalid.

Because the appointment process and order did not comply with

the   special     prosecutor     statute,         was     the     appointment        order

essentially a nullity from the beginning, rendering void all of

Attorney    Schmitz's     acts   as      the      special       prosecutor,     or    did

Attorney Schmitz lose his authority to act at a later time?

      ¶11   We    conclude   that        the   proper       answer    is     that     the

authority of someone who is appointed as a special prosecutor

ends at the point in time when a court makes a legal ruling that

the appointment was invalid and orders as a matter of law that

      4
       We note that over the last few months, the legislature has
passed and the governor has signed two pieces of legislation
that affect the conduct of John Doe proceedings in a number of
ways, including the appointment of special prosecutors.       See
2015 Wis. Act 55 (the 2015 "Executive Budget Act") and
2015 Wis. Act 64.    As a result of those enactments, it is now
clear that in order for an individual to be appointed as a
special prosecutor in a John Doe proceeding, one of the
conditions listed in the special prosecutor statute must exist.
Wis. Stat. § 978.045(cm) ("The judge may not appoint an attorney
as a special prosecutor to assist the district attorney in John
Doe proceedings under s. 968.26 unless a condition under
par. (bm)1. to 8. exists or unless the 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.     This paragraph does not prohibit assistance
authorized by s. 978.05(8).").      This statutory revision is
consistent with the reasoning of Justice Prosser's July 16, 2015
concurring opinion.


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                                                                                 2014AP296-OA
                                                              2014AP417-W through 2014AP421-W


the individual's authority is terminated.                                While four justices

of this court reached a legal conclusion as part of the July 16,

2015 writings that Attorney Schmitz's appointment was invalid,

there was not a legal ruling from the court at that juncture and

no   order       that        Attorney       Schmitz        cease    acting      as     a    special

prosecutor         in    the    John     Doe    II    proceedings.              Given      Attorney

Schmitz's         continuing          reliance       on     Judge        Kluka's      appointment

orders      as     the       basis    for     continuing       to    act       as    the   special

prosecutor, we now issue a legal ruling and order that, because

of   the     invalidity         of    his     appointment,          Attorney         Schmitz     must

cease taking any actions as the John Doe II special prosecutor

as of the date of this opinion and order, except for the actions

this       court        directs       below     to     conclude          the     John      Doe    II

investigation.

       ¶12       We     do    not    hold    that     because       of    the       invalidity    of

Attorney         Schmitz's          appointment,       all     of    his       actions      as    the

special prosecutor since his appointment, including his filing

of briefs, motions, memoranda, etc. before the John Doe judge,
the court of appeals, and this court, were nullities at the time

they were taken.5                   Such a ruling would unfairly void actions

relied      on     by    the    special       prosecutor,          the    lower      courts,     law

enforcement,            and     the     individuals/entities                that       have      been


       5
       Rather           than voiding an appointed individual's authority to
act from the            time of an invalid appointment, we hold that the
individual's            authority to act as a special prosecutor is
prospectively           voidable by a court.


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                                                          2014AP417-W through 2014AP421-W


involved with the John Doe investigations and proceedings.                                  A

John Doe judge did sign orders that appointed Attorney Schmitz

as   the     special    prosecutor      in    each       of    the    five   John    Doe   II

proceedings.       Both he and the John Doe judges relied on those

orders.      As a result of that reliance, the John Doe judge issued

search     warrants     and     took    other        actions.          Nullifying       those

actions now because of his invalid appointment would unfairly

upset that reliance without providing any countervailing benefit

to the administration of justice.

       ¶13    Moreover, making all of a special prosecutor's actions

void ab initio when an appointment order has failed to comply

with the special prosecutor statute would carry the potential

for grave mischief.           If that were the law, a defendant who was

being      criminally     prosecuted         by     a    special       prosecutor       could

potentially wait until after a judgment of conviction had been

entered and then obtain a ruling from the trial court (or even

an appellate court) that the conviction was invalid because the

special prosecutor's actions in filing the criminal complaint
and trying the case were legal nullities.                             Such a rule could

undo    convictions      that    were    otherwise            valid    in    all    respects

simply because the appointing judge failed to ensure that the

appointment      process        and    order        complied         with    the     special

prosecutor      statute.         Where       there       are    no     other    bases      for

overturning      what     a   special        prosecutor         has     done,      including

obtaining a criminal conviction, and no personal rights of the
defendant      have    been   violated,           justice      would    be     thwarted    by


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allowing     a     defendant     to   undo     otherwise      valid     prosecutorial

actions.

      ¶14    The rule that we adopt, however, does not leave a

defendant (or a subject of a John Doe investigation) without any

remedy where a special prosecutor has been invalidly appointed.

Where the defendant learns of the grounds for the invalidity of

the appointment, the defendant has an incentive to bring that

issue to the attention of a court as soon as possible in order

to obtain a ruling on whether the appointment was invalid and

whether     the    special     prosecutor      may    continue     to   act    in    that

capacity.        A ruling on that issue would then provide clarity to

all as to whether and how the case may proceed.

      ¶15    Our ruling herein, that Attorney Schmitz's authority

to act as the special prosecutor in John Doe II terminates with

the release of this opinion (except to comply with the limited,

specified obligations imposed in this opinion), means that the

actions Attorney Schmitz has previously taken, including filing

the current motion for reconsideration and motion for a stay,
were within his authority at that time.                    Consequently, we do not

dismiss the current motions, as requested by some of the Unnamed

Movants.

      ¶16    Having now terminated Attorney Schmitz's authority to

act as the special prosecutor, we recognize that to this point

he   has    been    the   sole    named   party       in   these   three      John   Doe

proceedings to appear on behalf of the prosecution.                            We note
that Attorney Schmitz has indicated in his recent filings that


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                                                  2014AP417-W through 2014AP421-W


the prosecution intends to seek review of our July 16, 2015

decision in the United States Supreme Court.                    Our decision to

terminate Attorney Schmitz's authority is not meant to interfere

with the ability of the prosecution team to seek Supreme Court

review.    We simply conclude that, where a court rules that an

individual has not been validly appointed to act as a special

prosecutor on behalf of the state, it would be illogical to

allow the individual to continue to file pleadings and briefs on

the state's behalf.6        To allow such ongoing conduct would render

meaningless    the    legal    conclusion      of   an    invalid    appointment.

Nonetheless, in view of the fact that Attorney Schmitz has been

the only member of the prosecution team named as a party in

these matters, this ruling has the potential to create problems

with respect to who may act on behalf of the prosecution in this

court or elsewhere going forward.

     ¶17   We recognize that the five district attorneys have not

been named parties in the proceedings in this court.                      In fact,

this court denied a motion to add them as parties as part of its
December   16,       2014     order   granting       review     of    the    three

proceedings.     That       motion,   however,      was   not   brought     by   the

district attorneys; it was a motion filed by the Three Unnamed

Petitioners at the time of the filing of their petition for

     6
       While we hold that a special prosecutor may not continue
to act on the merits in such a situation, we do not intend to
foreclose the special prosecutor from seeking reconsideration or
review of the decision terminating his/her authority, to the
extent it is otherwise available.


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                                                                            2014AP296-OA
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review to forcibly add all five of the district attorneys as

parties in Case Nos. 2013AP2504-08-W.                        The district attorneys

did not express a desire to become named parties at that point.

Indeed, at that point in time there was no need to add the

district          attorneys     as    parties      because     the    prosecution       was

represented by Attorney Schmitz as the special prosecutor.

       ¶18        The fact that the district attorneys were not named

parties to the proceedings in this court, however, does not mean

that       none    of    them   has    been     involved      in     the   John   Doe   II

investigation           and   the    proceedings       in    this    court.7      To    the

contrary, the district attorneys from the five counties and some

or all of their assistants have been admitted to participate in

       7
       The dissent criticizes the court for referring to the John
Doe II "prosecution team" in this opinion, implying that there
was no group of prosecutors, investigators, and others who
prosecuted the John Doe II investigation, and that Attorney
Schmitz worked alone in prosecuting the John Doe II.       Although
the court will not disclose any of the specific individuals who
clearly worked with Attorney Schmitz on the John Doe II
investigation, as the dissent well knows, the John Doe record is
replete   with  prosecution   documents   that    were  signed   by
individuals other than Attorney Schmitz.       Given the size and
scope of the investigation and the voluminous filings in this
court, it would have been impossible for Attorney Schmitz to
pursue   the   investigation   and   the    subsequent    appellate
proceedings singlehandedly after he became the nominal leader of
the prosecution. Finally and most importantly, in his reply in
support of the current motions, Attorney Schmitz himself makes
multiple references to the "prosecution team" and asserts that,
while he consulted members of that team about various matters,
he exercised the final decision-making authority during the time
he acted as the special prosecutor. To claim that there has not
been and is not now a "prosecution team," when the dissent
clearly knows otherwise, is disingenuous.


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the John Doe II proceedings.                   It should be remembered that it

was the Milwaukee County District Attorney and his office that

initiated the John Doe II proceeding, led the prosecution for

the first year, and then sought the involvement of the four

other district attorneys.

       ¶19     While the court did not see a need to force all five

of the district attorneys into becoming named parties at the

time    it    granted     review,      the    situation         has    now   changed       as    a

result of the legal ruling in this opinion that Attorney Schmitz

will    no    longer     be   able     to    represent      the       prosecution     as    the

special prosecutor.              Accordingly, one or more of the district

attorneys could seek to intervene in these actions, which would

allow    for       the     prosecution        to      be    represented          in    future

proceedings.             Given   the    inability          of    Attorney      Schmitz          to

continue acting as the special prosecutor based on his invalid

appointment, such a motion to intervene by one or more of the

district attorneys would receive prompt review by this court.

       ¶20     We now turn to the substance of Attorney Schmitz's
motion       for   reconsideration.            The    court's         Internal    Operating

Procedures (IOPs) set forth the standard we have applied to such

motions:

            Reconsideration, in the sense of a rehearing of
       the case, is seldom granted. A change of decision on
       reconsideration will ensue only when the court has
       overlooked controlling legal precedent or important
       policy    considerations    or  has   overlooked   or
       misconstrued   a   controlling or   significant  fact
       appearing in the record.
Wis. S. Ct. IOP II.J.

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      ¶21    We conclude that Attorney Schmitz's motion does not

present any grounds to reconsider our prior decision.

      ¶22    The thrust of the motion for reconsideration is an

argument that this court erred by not allowing Attorney Schmitz

(or presumably the district attorneys) to continue the current

John Doe II investigation to the extent of investigating whether

there was coordination related to express advocacy.

      ¶23    We conclude that the argument that the previous search

warrants and subpoenas were valid because they sought evidence

of coordination of express advocacy has been forfeited.                          When

the Unnamed Movants filed motions with the John Doe judge for

the   return   of   seized   property       and    to   quash     subpoenas,     they

argued that the state's theory of criminal liability on the

basis   of   coordination    of   issue      advocacy       was   unsupported     by

statutory and constitutional law.                 Attorney Schmitz's response

to those motions was a frontal counter-attack to the Unnamed

Movants'     arguments   regarding      the       ability    of    the   state    to

regulate     the   coordination   of   issue       advocacy,      both   under    the
relevant provisions in Chapter 11 of the Wisconsin Statutes and

under the federal and state constitutions.                   His response never

claimed that the subpoenas and search warrants that were the

subjects of the Unnamed Movants' motions were valid because they

were directed at finding evidence of coordination of express

advocacy and never provided any examples of evidence of such

express advocacy coordination.          Indeed, in his January 10, 2014
order granting the Unnamed Movants' motions, the John Doe judge


                                       16
                                                   Nos.    2013AP2504-W through 2013AP2508-W
                                                                                2014AP296-OA
                                                             2014AP417-W through 2014AP421-W


specifically concluded that "[t]he State is not claiming that

any of the independent organizations expressly advocated" and

"[t]here is no evidence of express advocacy."                                The John Doe

judge granted the motions for return of seized property and for

quashing subpoenas on the ground that the state's theory that

coordination of issue advocacy is regulated by Chapter 11 was

legally incorrect.

       ¶24        It is true that, after the John Doe judge rejected the

arguments Attorney Schmitz actually made to support the search

warrants          and    subpoenas,       he   then       attempted    to    bring   express

advocacy into the appellate writ case (State ex rel. Schmitz v.

Peterson, Case Nos. 2014AP417-21-W) by including a second issue

in his writ petition that asked whether "the record"8 provided a

reasonable          belief        that     a   campaign       committee      had     violated

Wisconsin's             campaign         finance      laws     by     coordinating       with

independent             disbursement       committees        that    engaged   in     express

advocacy.           Indeed, when the supervisory writ petition came to

this court via petitions for bypass, this court's December 16,
2014 order included this second issue in its list of issues to

be briefed.              Attorney Schmitz's attempt to introduce express

advocacy coordination in the appellate court and this court's

initial inclusion of his new issue, however, do not change the

fact       that    he     never    raised      this   issue     or    made   this    argument

       8
       This would have to be the record that was before the John
Doe judge, namely, what the parties had presented to him in
their filings.


                                                 17
                                                   Nos.   2013AP2504-W through 2013AP2508-W
                                                                               2014AP296-OA
                                                            2014AP417-W through 2014AP421-W


before the John Doe judge.                    By failing to raise the issue and

argument       in    front      of     the   John     Doe    judge,       Attorney      Schmitz

forfeited his ability to argue that the subpoenas and search

warrants at issue were valid because they were actually intended

to obtain evidence of coordination of express advocacy.                                    See,

e.g., Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78,

¶83, 350 Wis. 2d 554, 835 N.W.2d 160 (where party attempted to

make fundamentally different argument on appeal than it had made

before the trial court, this court deemed the argument forfeited

and declined to address it); Tatera v. FMC Corp., 2010 WI 90,

¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 ("Arguments raised for

the    first    time       on   appeal       are    generally      deemed       forfeited.").

Accordingly,         the     argument        was    not     addressed      in    the    court's

July 16, 2015 decision.

       ¶25     Indeed, even if the court had reached the merits of

this issue, the nature of the matter before this court would

have    required       the      same    result      as    set     forth    in    the    court's

July 16, 2015 decision.                 It must be remembered that it was the
John Doe judge's January 10, 2014 order that this court was

asked    to     review       in      both    the    original       action       (Two    Unnamed

Petitioners v. Peterson, Case No. 2014AP296-OA) and the writ

proceeding          (State      ex    rel.    Schmitz        v.    Peterson,      Case     Nos.

2014AP417-21-W).           As     noted      above,       the     only    means    by    which

Attorney       Schmitz       attempted       to     bring    coordination         of    express

advocacy before any appellate court was his listing of express




                                               18
                                                  Nos.    2013AP2504-W through 2013AP2508-W
                                                                               2014AP296-OA
                                                            2014AP417-W through 2014AP421-W


advocacy      coordination        as    an        issue     in       his    petition         for     a

supervisory writ.

       ¶26    As    was    thoroughly        explained          in    the       July   16,     2015

majority opinion, in order to obtain a supervisory writ from an

appellate     court       ordering     the    John        Doe    judge      to     reverse         his

January 10, 2014 order, Attorney Schmitz was required to prove

that:        "(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."             Kalal, 271 Wis. 2d 633, ¶17.

       ¶27    Attorney Schmitz could not meet this standard for the

issuance      of    a     supervisory        writ        regarding         investigation           of

express advocacy.          Given that he was asking this court to direct

the John Doe judge to reverse his January 10, 2014 order, how

could Attorney Schmitz show that the John Doe judge had violated

a plain legal duty by failing to rely on a theory that Attorney

Schmitz never presented to that judge?                               It simply cannot be
done.     Thus, given the limited nature of the writ proceeding

that    Attorney        Schmitz   initiated          for    review         of    the    John       Doe

judge's ruling and the standards that he was therefore obligated

to meet, the writ petition would have been denied even if the




                                              19
                                          Nos.    2013AP2504-W through 2013AP2508-W
                                                                       2014AP296-OA
                                                    2014AP417-W through 2014AP421-W


express advocacy coordination argument had been considered on

the merits.9

     ¶28      We now turn to the issue of what should become of the

multitude      of   documents     and    electronic        files   that   Attorney

Schmitz and the prosecution team amassed in the course of the

John Doe II investigation, including via subpoenas and search

warrants.      Having been advised in the motion for reconsideration

that the prosecution team presently intends to seek review of

the July 16, 2015 decision in the United States Supreme Court

and in order to eliminate any confusion about what should happen

to the evidence collected during the John Doe II investigation,

we modify and clarify the portion of the July 16, 2015 mandate

relating to the return of property seized in the investigation

and the destruction of copies of documents and other materials

obtained through the investigation.               The intent of this portion

of our mandate was to require that the prosecution team divest

itself   of    documents    and    data    that     were    the    product   of   an

investigation       based   on    an    invalid    theory     under   Wisconsin's
campaign finance laws in order to ensure that the prosecution




     9
       The court also notes the very careful way in which
Attorney Schmitz has phrased his express advocacy argument. He
asserts that there is evidence (somewhere) of coordination
between a campaign committee and other organizations, which
happened to engage (at some point in time) in express advocacy.
He does not affirmatively assert that any particular piece of
express advocacy was the subject of specific coordination.


                                         20
                                          Nos.    2013AP2504-W through 2013AP2508-W
                                                                       2014AP296-OA
                                                    2014AP417-W through 2014AP421-W


team would comply with the court's order to cease all activities

related to the John Doe II investigation.

    ¶29    We still hold to these results, but we modify the

means to accomplish them in order to avoid impeding in any way

the ability of the prosecution team to seek certiorari review in

the United States Supreme Court.                 It is for that reason that,

with certain exceptions, we do not impose an immediate deadline

for Attorney Schmitz and his prosecution team to complete the

obligations we impose below.              Unless otherwise noted, all of

these obligations must be completed within 30 days following the

completion   of   proceedings       in   the     U.S.    Supreme   Court   on   any

petition for certiorari review.               If no petition for certiorari

review is filed, these actions must be completed within 30 days

after the deadline for filing a petition for certiorari review.

    ¶30    We do impose these obligations on Attorney Schmitz.

Although   we   have   now   held    that      he   no   longer    possesses    the

authority to act as the special prosecutor in conducting the

John Doe II investigation or filing documents on behalf of the
state, he must still be allowed to perform the tasks that this

court now assigns to him in order to rectify the results of the

investigation, which we have determined was based on a faulty

reading of the law.      If Attorney Schmitz could not be required

to perform these tasks, there would be no party currently before

the court to whom these tasks could be assigned.                    Moreover, in

his reply in support of his motion for reconsideration, Attorney
Schmitz strongly contended that he was the person in charge of


                                         21
                                             Nos.    2013AP2504-W through 2013AP2508-W
                                                                          2014AP296-OA
                                                       2014AP417-W through 2014AP421-W


the John Doe investigation and solely exercised final decision-

making authority.        Given this assertion, it is appropriate that

this    court     requires    him     to   ensure     that   certain     actions     are

performed (whether by him or by members of his prosecution team)

and to make representations that those required actions have

been completed.

       ¶31   We    now   turn    to    the      specific     tasks     that   must    be

performed.        First, we continue to require, to the extent it has

not already been done, that Attorney Schmitz and his prosecution

team return to the rightful owner any computer hardware and

other items of tangible personal property that were seized by

the prosecution team or law enforcement officers in the course

of     executing     search     warrants        or   obtained     in    response      to

subpoenas issued as part of the John Doe II investigation.                           This

must be completed within 30 days of the date of this decision.

The return of these items will not impede the preparation of a

petition for certiorari review because Attorney Schmitz and his

prosecution team will not be obligated to return any copy of
data that resided on any such computer hardware, although they

will be required at a later date to turn over all such copies to

the clerk of this court, as described below.

       ¶32   Second, we require that Attorney Schmitz gather all

documents and copies thereof (whether in hard copy or in digital

form) and all electronic data and copies thereof obtained as a

result of the John Doe II investigation from all persons who
worked for or were associated with him and the prosecution team


                                           22
                                             Nos.   2013AP2504-W through 2013AP2508-W
                                                                         2014AP296-OA
                                                      2014AP417-W through 2014AP421-W


in the John Doe proceedings/investigations.                      The documents and

electronic data that must be gathered also include all copies of

documents and of electronic data that were obtained during the

John Doe I investigation but were authorized by Judge Nettesheim

in an August 10, 2012 order in Milwaukee County Case No. 10JD7

to be used in the subsequent John Doe II investigation.10                         The

universe of individuals from whom such documents and electronic

data should be gathered must include all individuals, other than

the John Doe judge and the employees of the five offices of the

clerks of circuit court, who were granted access by the John Doe

judge to the documents and/or electronic data obtained or used

in   the   John   Doe      II    investigation.             (This     would   include

individuals    who   were        granted      access       to   the   documents   and

electronic    data   that       were   the      subject    of   Judge   Nettesheim's

August 10, 2012 order authorizing use of those documents in a

subsequent    John   Doe    II     proceeding        and    investigation.)       The

documents and electronic data should be collected and organized

in a manner that allows the clerk of this court to retrieve

     10
       We do not require that Attorney Schmitz gather and submit
to the clerk of this court the work product generated by members
of the prosecution team.    For example, he is not obligated to
gather and submit memoranda, notes, and email messages generated
by the prosecution team, even if those documents reference
materials gathered or used during the John Doe II investigation.
On the other hand, if there is a copy of a document or a
computer file containing a copy of electronic data obtained or
used during the course of the John Doe II investigation, the
copy of the document or the computer file must be detached from
the work product document and submitted to the clerk of this
court as set forth in this opinion.


                                           23
                                           Nos.      2013AP2504-W through 2013AP2508-W
                                                                          2014AP296-OA
                                                       2014AP417-W through 2014AP421-W


specific documents or sets of electronic data, in the event that

such retrieval is subsequently ordered.

      ¶33   All   of   the    documents        and    electronic           data   described

above and all of the copies of such documents and electronic

data shall be described on a written index.                               The index shall

describe, with reasonable specificity and consistent with the

organization described in the preceding paragraph, the documents

or electronic data that have been collected.

      ¶34   Third,     we    require   that          all   of       the    documents   and

electronic data (and all copies thereof) be submitted under seal

to the clerk of this court.11          Once this submission has occurred,

no document or piece of electronic data (or any copies thereof)

that was gathered in the course of the John Doe II investigation

or   that   was   gathered     in   the     John       Doe      I    investigation     but


      11
        In  his   reply    in   support    of   the   motion  for
reconsideration, Attorney Schmitz stated that the electronic
data obtained by the prosecution team in the course of the John
Doe II investigation was stored on a portable hard drive that
was in the possession of an investigator in the office of the
Milwaukee County district attorney.      That portable hard drive
and   any  other   portable   storage   devices   containing such
electronic data must be included within the materials that are
submitted to the clerk of this court.         If files containing
electronic data obtained in the course of the John Doe II
investigation are currently stored on the hard drives of
computers used by members of the prosecution team or other
individuals who were granted access to such data, Attorney
Schmitz shall ensure that such prosecution team members copy
such data to some form of portable memory (CD-ROM, portable hard
drive, flash drive, etc.), which shall be submitted to the clerk
of this court, and that the applicable data files are deleted
from the computer hard drives.


                                          24
                                         Nos.    2013AP2504-W through 2013AP2508-W
                                                                      2014AP296-OA
                                                   2014AP417-W through 2014AP421-W


authorized to be used in the John Doe II investigation should

remain in the possession of Attorney Schmitz, any member of the

prosecution team, or anyone who was authorized by the John Doe

judge to have access to documents, materials, and electronic

data gathered in the course of the John Doe II investigation.

The prosecution team should be completely divested of all such

documents, materials, and electronic data.                The clerk shall not

file them as part of the appellate record in this case, but

shall merely maintain them in a sealed and secure manner pending

further order of the court.

       ¶35    Fourth, at the time that the documents and electronic

data are submitted to the clerk of this court, Attorney Schmitz

shall file with the clerk of this court and with the John Doe

judge the index of the documents and electronic data described

above.

       ¶36    Fifth,    in   addition   to      filing   the    index,       Attorney

Schmitz shall file an affidavit with both this court and the

John Doe judge in which he avers that, to the best of his
knowledge, he has collected and submitted to the clerk of this

court all originals and all copies of documents and electronic

data   that    were    obtained   in    the     course   of    the    John    Doe    II

investigation     and    that   were    obtained     during     the    John    Doe    I

investigation but were authorized to be used in the John Doe II

investigation.         The affidavit shall also include an averment

that Attorney Schmitz has received written statements from all
members of the prosecution team and all individuals who were


                                        25
                                       Nos.     2013AP2504-W through 2013AP2508-W
                                                                     2014AP296-OA
                                                  2014AP417-W through 2014AP421-W


granted access to John Doe II documents and electronic data that

those persons have turned over to him all such documents and

electronic data within their possession and that they no longer

possess     any   such   documents    or    electronic      data   (or     copies

thereof).

      ¶37    Finally, because we are not requiring Attorney Schmitz

and the prosecution team to return and destroy all documents and

electronic    data   immediately,     we   do    require    Attorney     Schmitz,

within 30 days of the date of this decision, to provide written

notices to all individuals and organizations whose documents or

electronic data were obtained by the prosecution team in the

course of the John Doe II investigation or were obtained in the

course of the John Doe I investigation and were authorized to be

used in the John Doe II investigation.12                   The notice should

describe,    with    particularity,    the      nature     and   scope   of    the

documents or electronic data that the prosecution team obtained,

and   from    whom   the   documents       and/or    electronic     data      were

obtained.     It should also notify the individual or organization
that the documents and/or electronic data will be submitted to


      12
       For example, if the prosecution team served a subpoena on
Individual A's internet service provider that asked for all of
Individual A's emails during a specified time period, Attorney
Schmitz must notify Individual A that his/her emails from that
time period were obtained from the specific internet service
provider.   Attorney Schmitz is not obligated to notify all of
the other individuals who are listed as recipients or senders of
Individual A's emails or are mentioned within the text of
Individual A's emails.


                                      26
                                                Nos.   2013AP2504-W through 2013AP2508-W
                                                                            2014AP296-OA
                                                         2014AP417-W through 2014AP421-W


the clerk of this court pursuant to this court's order and that

the   clerk    of   this    court       will        maintain      the    documents        and/or

electronic data under seal and in a secure manner until further

order of the court.

      ¶38     Having     modified       and     clarified          the    mandate        in   our

July 16, 2015 decision, we turn to the motion for a stay filed

by Attorney Schmitz.             In order to obtain a stay pending appeal,

Attorney      Schmitz    would     be    required           to:     (1)       make   a    strong

showing that he or the prosecution team is likely to succeed on

the merits of any further appeal; (2) show that, unless a stay

is granted, he and the prosecution team will suffer irreparable

injury; (3) show that no substantial harm will come to other

interested parties; and (4) show that a stay will do no harm to

the public interest.             State v. Gudenschwager, 191 Wis. 2d 431,

440, 529 N.W.2d 225 (1995).                   In light of our modification and

clarification       of    the     court's        mandate          with    respect        to   the

disposition of the documents and electronic data obtained in the

John Doe II investigation or authorized to be used in the John
Doe II investigation, we conclude that Attorney Schmitz cannot

show that he or the prosecution team will suffer irreparable

injury.       The prosecution team will continue to possess all of

its   work    product      and    all     of     the    evidence         gathered        in   the

investigation, subject to the previous orders issued by the John

Doe   judge,    during     the     time    that        it    would       be   preparing       any

petition for U.S. Supreme Court review and until the conclusion
of proceedings in that Court.                    Thus, the prosecution team can


                                               27
                                     Nos.   2013AP2504-W through 2013AP2508-W
                                                                 2014AP296-OA
                                              2014AP417-W through 2014AP421-W


suffer no injury during that time.           Even after that time, the

documents and electronic data will not be destroyed, but will be

stored by the clerk of this court in a sealed and secure manner

pending further order of this court.             Thus, in the event that

the investigation would be allowed to proceed at some future

date,     the   documents   and   electronic      data       would   still    be

available.      They could also potentially be available for use in

related    civil   proceedings,    if    there    is     a    request   and    a

determination that such use is proper under the circumstances.

Consequently, while we have modified and clarified the court's

mandate in a manner that grants much of the relief sought by

Attorney Schmitz, we deny his motion for a stay.

    ¶39     For the foregoing reasons,

    IT IS ORDERED that the motion for reconsideration and the

motion for stay are denied.

    IT IS FURTHER ORDERED that the mandate of this court is

modified and clarified as set forth above.

    IT IS FURTHER ORDERED that Attorney Francis Schmitz shall
immediately cease acting as the special prosecutor, except that

he shall perform the specific tasks imposed on him by the court

in this opinion.

    By the Court.—The motion for reconsideration is denied, the

motion for stay is denied, and the mandate is clarified, as

described in the opinion.

    ¶40     ANN WALSH BRADLEY, J., and REBECCA G. BRADLEY, J., did
not participate.


                                    28
                                Nos.   2013AP2504-W through 2013AP2508-W
                                                            2014AP296-OA
                                         2014AP417-W through 2014AP421-W


    ¶41   N. PATRICK CROOKS, J., passed away while these motions

were pending and prior to their final resolution by the court.




                               29
           No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


       ¶42       SHIRLEY S. ABRAHAMSON, J.            (concurring in part and

dissenting in part).           I agree with the per curiam that the July

16,    2015      majority    opinion     authored     by   Justice      Gableman    is

significantly flawed and must be modified.1                    I do not, however,

join the per curiam denying the Special Prosecutor's motion for

reconsideration.2

       ¶43       In response to the motion for reconsideration, the per

curiam significantly modifies the July 16, 2015 majority opinion

by    creative       writing    devoid    of    supporting      legal      authority.

Furthermore, events subsequent to the motion for reconsideration

have overtaken the per curiam.

       ¶44       Although professing to be even-handed in its treatment

of    the    Special    Prosecutor     and     the   Unnamed    Movants,     the   per

curiam is anything but even-handed.                  The per curiam terminates

the Special Prosecutor's authority to act as Special Prosecutor

from this date forward and leaves the prosecution and State

totally      unrepresented      in   future     proceedings     in   the    John   Doe

trilogy.           Yet the per curiam nonetheless assigns the Special


       1
       Throughout my writing, I will refer to Justice Gableman's
July 16, 2015 majority opinion as such, or as "the majority
opinion." The full citation to the majority opinion is State ex
rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363
Wis. 2d 1, 866 N.W.2d 165.      I refer to today's per curiam
opinion    denying   the   Special   Prosecutor's   motion   for
reconsideration as "the per curiam."
       2
       For an example of the court granting rather than denying a
motion for reconsideration in order to clarify a previous
decision, see State v. Johnson, 2014 WI 16, 353 Wis. 2d 119, 846
N.W.2d 1.      See also Wis. S. Ct. IOP II. J. (governing
reconsideration).


                                           1
         No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


Prosecutor new tasks and new deadlines without providing the

Special Prosecutor (a private practitioner) any compensation or

assistance.

    ¶45        The per curiam appears to derail any meaningful review

of the July 16, 2015 majority opinion, to stop any and all

further investigation, and to prevent the release of information

obtained during the investigation.

    ¶46        In    sum,     the    per     curiam      embraces     confusing     and

conflicting         positions,      all    the   while     leaving    many   important

issues unresolved, including those posed by events subsequent to

the motion for reconsideration.

    ¶47        Specifically,        the    per   curiam     fails    to   address   six

events that have occurred since Justice Gableman's July 16, 2015

majority opinion and the Special Prosecutor's August 4, 2015

motion     for        reconsideration.              These     intervening       events

significantly and immediately affect a response to the motion

for reconsideration.           But the per curiam ignores the intervening

events.
    ¶48        The six intervening events in chronological order are

as follows:

    1. The legislature enacted 2015 Wis. Act 55 (effective July

          14, 2015) and 2015 Wis. Act 64 (effective October 25,

          2015), revising the John Doe statutes.                     The current, as-

          revised statutes are attached hereto as Attachment B.

          The statutory revisions address, among other matters, the

          authority      of   reserve      judges     to   preside    over   John   Doe
          proceedings, secrecy orders, return of seized material,

                                             2
         No.    2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


          and     notice     to     persons         with    an       interest       in     seized

          materials.

    2. On       October      28,    2015,       Unnamed       Movant        No.     2    filed    a

          document labelled a "notice of statutory changes."                                     In

          essence, the "notice" is a motion seeking relief.                                    The

          motion asserts that Act 64 affects, among other things,

          existing      John       Doe     secrecy      orders        and     the       continued

          authority of reserve judges who were appointed John Doe

          Judges      before      Act     64    was    enacted.           The     position       of

          Unnamed     Movant       No.     2    appears    to    be       that    one     of   the

          statutory revisions terminates existing secrecy orders in

          John Doe I and John Doe II as to everyone except a judge,

          district      attorney,          other      prosecutor,           law     enforcement

          officer, interpreter, or court reporter.3                          Unnamed Movant

          No.     2   also     contends          that      various        other         statutory

          revisions       affect         the    John    Doe      I    and       John     Doe     II

          investigations           going       forward.        As     a     result,       Unnamed

          Movant No. 2 argues this court should grant the Unnamed
          Movants relief according to the terms of the statutory

          revisions.

    3. On       October      29,    2015,       counsel       for     the     Reserve       Judge

          appointed to preside over John Doe II proceedings advised

          the court that the Reserve Judges appointed to preside

          over the John Doe I and John Doe II proceedings will take



    3
         See Wis. Stat. § 968.26(4)(a) (2015); 2015 Wis. Act 64,
§ 12j.


                                                3
 No.    2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


  no further action unless and until this court determines

  that it is appropriate for them to proceed.

4. On   November      11,       2015,    the     Special      Prosecutor         filed     a

  response to Unnamed Movant No. 2's motion, arguing that

  the statutory revisions are inapplicable to the instant

  cases; and that if the revised statutes are applicable to

  the    instant      cases       they       interfere       with      existing        court

  orders       and     are       unconstitutional            violations          of      the

  separation of powers doctrine.

5. On   November          12,    2015,       a   district        attorney        and     two

  assistant          district         attorneys          filed      a      supplemental

  memorandum         in    support       of      their    petition         for    limited

  intervention            seeking        to       preserve          documents           from

  destruction. These petitioners for limited intervention

  argue     that     Unnamed       Movant        No.   2's    filing       (which       they

  consider a motion) improperly seeks to expand the scope

  of Justice Gableman's July 16, 2015 majority opinion to

  require the destruction of not only materials obtained in
  the John Doe II investigation but also materials acquired

  in     the   John        Doe    I     investigation            and      that    limited

  intervention            is    required         to    afford       the     petitioners

  procedural and substantive due process.

6. On November 19, 2015, Unnamed Movant No. 2 filed a "reply

  regarding notice of statutory change."                            The filing of a

  reply further demonstrates that Unnamed Movant No. 2's

  "notice of statutory changes" is really a motion.                                    Among
  other things, the reply clarifies Unnamed Movant No. 2's

                                         4
          No.    2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


           position regarding the effect of the statutory revisions

           on the John Doe I and John Doe II investigations and

           responds to the Special Prosecutor's argument that the

           application of the revised statutes to the instant cases

           unconstitutionally          violates        the    separation      of     powers

           doctrine.

      ¶49       In short, these intervening events raise the issue of

whether recently-enacted statutory revisions effective July 14

and   October         25,   2015,     apply       to   the    John   Doe     proceedings

commenced prior to the effective date of the revised statutes.

      ¶50       These   intervening      events        make    clear   that        the   per

curiam is too little, too late.                   The per curiam fails to come to

grips with the present circumstances in which the court and

parties     find      themselves.       The       court    leaves    these    and    other

important issues for another day, although they are of immediate

significance and ripe for decision, having been fully briefed.

      ¶51       The per curiam is too little: It does not address the

effect of the revised John Doe statutes on the majority opinion,
the per curiam, and the pending John Doe proceedings commenced

prior to the effective date of the revised statutes. It merely

references        the   recently      revised      John      Doe   statutes    once,     in

footnote        4,4   and   ignores    the    other       filings    relating       to   the

revised statute.



      4
       Per curiam, ¶9 n.4.   The per curiam's reference to 2015
Act 64 is ambiguous. Does it mean that the per curiam views Act
64 as applying (or not applying) to John Doe II?

                                                                             (continued)
                                              5
        No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


       ¶52    The per curiam is too late:         As a result of these six

intervening events, the per curiam is responding to pre-October

28, 2015 circumstances, not present circumstances.                    Therefore,

the per curiam is an interim, temporary document that will have

to be modified and clarified.               The court is dealing with the

John Doe trilogy in a piecemeal fashion.                Thus, each opinion or

order will be short-lived, requiring expeditious revision.                       The

per    curiam's    piecemeal      approach    creates    more    work      for   the

litigants, the lawyers, and this court.

       ¶53    I would grant the motion for reconsideration, order

oral    argument     on     the    issues    raised     in    the    motion      for

reconsideration and the effect of the revised John Doe statutes,

and then issue a decision.           Oral argument would allow the court

and the public to consider the numerous issues raised by the

parties and the six intervening events in the crucible of an

open, adversary proceeding.

       ¶54    I turn now to the substance of the too-little-too-late

per curiam.
       ¶55    The per curiam is confronted with five sealed motions

(and responses thereto):

         1. A   motion    for     reconsideration     filed     by   the   Special

              Prosecutor.




     In addition to 2015 Wis. Act 64, which Unnamed Movant 2
discusses in its motion, the per curiam also cites 2015 Wis. Act
55 (effective July 13, 2015), which modifies the Special
Prosecutor statute. See Wis. Stat. § 978.045(1r)(bm) (2015).


                                        6
      No.    2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


          2. Three motions for limited intervention.                       One was filed

            by two investigators; a second was filed by a law

            enforcement officer.          A third was filed by a district

            attorney and two assistant district attorneys, but is

            not addressed by the court.                    This third motion is

            substantially       similar       to   the   other       two    motions    for

            limited intervention and received the same response

            from the Unnamed Movants.

          3. A motion filed by Unnamed Movants Nos. 4 and 5 for

            immediate remand to John Doe Judge Gregory Peterson.

    ¶56     Today     four    justices    deny      four       of   the     five    sealed

motions in the per curiam and two separate orders.

    ¶57     The motion for reconsideration is denied in the per

curiam, but Justice Gableman's July 16, 2015 majority opinion is

significantly modified.

    ¶58     Two of the three motions for limited intervention are

denied in a separate order.             No explanation is offered for the

denial.
    ¶59     The per curiam ignores the third motion for limited

intervention    by     a     district    attorney        and    assistant       district

attorneys.       It    is     still     pending      before         the    court.      No

explanation is offered for not responding to the motion. (Is the

court holding this motion to try to induce the district attorney

and two assistant district attorneys to seek full intervention

so the prosecution and State are represented hereafter?)




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      ¶60       The motion to remand matters to John Doe Reserve Judge

Peterson is denied in a second order.                     No explanation is offered

for the denial.

      ¶61       My    separate    writings       about    the     per   curiam   and     two

orders, one denying limited intervention and the other denying

the remand to the John Doe Judge, should be read together.5

      ¶62       In this writing, I address the per curiam denying the

Special Prosecutor's motion for reconsideration.

      ¶63       Lest the reader get lost in the per curiam's thicket,

let   me        begin     by     summarizing       the      per     curiam's      salient

modifications of the majority opinion.

      ¶64       First, the per curiam does not modify the majority

opinion's            misguided    conclusion         that       the      State        cannot

constitutionally          regulate   coordinated          issue     advocacy     at    all.6

The Special Prosecutor has called the court's attention to a

recent decision of the United States Court of Appeals for the

Third Circuit that is contrary to the July 16, 2015 majority

opinion.        The Third Circuit recognized on July 16, 2015, that
the   United         States    Supreme   Court      has    consistently        held    that

      5
       The order denying limited intervention and my separate
writing is attached hereto as Attachment D.    The order denying
the motion to remand matters to John Doe Judge Peterson and my
separate writing is attached hereto as Attachment E.
      6
       "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 issue-advocacy groups——let alone that the First
Amendment forbids even an inquiry into that topic." O'Keefe v.
Chisholm, 769 F.3d 936, 942 (7th Cir. 2014), cert. denied, 135
S. Ct. 2311 (2015).


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         No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


disclosure      requirements         are    not     constitutionally       limited   to

express advocacy; "there is not a 'rigid barrier between express

advocacy and so-called issue advocacy.'"7

     ¶65       Second,    the       per    curiam      does   modify     the   majority

opinion's mandate regarding the validity of the appointment and

continuing authority of the Special Prosecutor.8

     ¶66       The per curiam modifies the majority opinion's mandate

by   "order[ing]         as     a    matter       of    law    that      the   [Special

Prosecutor's] authority is terminated" from this date forward.9

Thus the prosecution and State are left totally unrepresented

hereafter.        If     the    Special     Prosecutor        is   not   permitted   to

represent the prosecution's and State's interests, then who may?

     7
       Del. Strong Families v. Att'y Gen., 793 F.3d 304, 308 (3d
Cir. 2015) (quoting McConnell v. FEC, 540 U.S. 93, 193 (2003))
(emphasis added); see also Lyle Denniston, Constitution Check:
What's   the   Next   Big  Controversy   on   Campaign   Finance,
Constitution         Daily        (July        21,         2015),
http://blog.constitutioncenter.org/2015/07/constitution-check-
whats-the-next-big-controversy-on-campaign-finance/         (last
visited Nov. 5, 2015) (describing the Third Circuit's decision
and the Wisconsin John Doe trilogy as conflicting).
     8
       The majority opinion affirmed the court of appeals'
decision, leaving the Special Prosecutor's appointment and
authority intact.    Majority op., ¶132 ("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."); see also majority op., ¶137.
     9
       Per curiam, ¶11. The Special Prosecutor's authority to
act as special prosecutor "is prospectively voidable . . . ."
Per curiam, ¶12 n.5.

     The per curiam intimates that the Special Prosecutor may
seek reconsideration or review of this aspect of the per curiam
decision terminating his authority. Per curiam, ¶16 n.6.


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           No.       2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


      ¶67        The     per   curiam     has     painted    itself    into    a    corner

without          a    way    out    by    eliminating       representation      for    the

prosecution and State in John Doe II proceedings from today on.

And there are many matters to be decided in the John Doe II

proceedings still before the court.

      ¶68        In February 2014, Three Unnamed                   Petitioners alerted

the court that if the Unnamed Petitioners prevailed on their

argument that the Special Prosecutor's appointment was invalid,

the five district attorneys would need to be parties in order to

continue proceedings in the Special Prosecutor's absence.10                              A

copy of the Three Unnamed Petitioners' motion to add the five

district attorneys as parties is attached hereto as Attachment

C.

      ¶69        The four justices joining the per curiam ignored the

Three      Unnamed        Petitioners'     admonitions       and    denied    the   motion

without explanation on December 16, 2014.11

      ¶70        Now, more than a year and a half after the motion was

made, almost one year after the motion was denied, and more than
four months after the July 16, 2015 majority opinion ordered the

investigation closed, the per curiam is desperately trying to

find someone other than the Special Prosecutor who can represent

the   State's           interests    so    the    court     can    conduct   adversarial


      10
           See Attachment C, attached, at 4.
      11
       See December 16, 2014 order granting review, at 7; see
also December 16, 2014 order granting review, at ¶4 (Abrahamson,
C.J., concurring) ("[T]he five district attorneys . . . , in my
opinion, should be made parties as requested.").


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          No.    2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


proceedings on the many remaining issues.                     The per curiam has

thus far failed in this endeavor.

     ¶71        Third, the per curiam modifies the majority opinion's

mandate, by eliminating the "search and destroy" mission that

the majority opinion ordered.12

     ¶72        The majority opinion directed the "special prosecutor

and the district attorneys involved in this investigation [to]

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."13

     ¶73        The   "search    and     destroy"   mandate     in    the   majority

opinion is so broad and difficult to understand and implement

that parties on both sides of the "v." have proposed a variety

of ways of clarifying and modifying the mandate or remanding the

implementation of the majority opinion to the John Doe Judge.

     ¶74        The   per     curiam    modifies    the    majority    opinion    by

ordering the Special Prosecutor to undertake a "clear and hold"
mission.14            Thus,     the    per    curiam      modifies    the    Special


     12
          Per curiam, ¶¶28-29.
     13
          Majority op., ¶135.
     14
       During the Vietnam War, United States forces employed two
counterinsurgency strategies.    The first involved "search and
destroy" missions, whereby forces would be inserted into hostile
territory to search out the enemy, attack them and their
supplies, and quickly withdraw.     The second strategy involved
efforts to "clear and hold."        They focused on maintaining
control of important agricultural areas and population centers.
See Gordon L. Rottman, Vietnam Infantry Tactics 61-62 (2011).


                                             11
            No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


Prosecutor's rules of engagement.                   The Special Prosecutor and

the "prosecution team" must divest themselves of the documents

and electronic files from the John Doe investigations and submit

them under seal to the Clerk of the Supreme Court.15

       ¶75        The per curiam constructs the new "clear and hold"

mandate out of whole cloth, without sufficient information about

what and where the materials are to be "cleared and held."                          The

per curiam is entering an order in a factual vacuum.                         The four

justices joining the per curiam do not know the full extent and

nature of the items and material gathered in the course of the

investigation.            Moreover,   the    four    justices      joining   the    per

curiam       do    not   know   whether   this    mandate    can    be    implemented

within the times they allotted.16                Simply put, the four justices

are issuing the per curiam mandate in the dark.

       ¶76        Consequently,    implementing      the   per   curiam's     mandate

will    pose       difficulties.      Moreover,      after   the    per    curiam   is


       15
            Per curiam, ¶¶28-37.
       16
       The per curiam sets forth specific times by which the
Special Prosecutor must implement various aspects of the new
"clear and hold" mandate.

     Computer hardware and other items of "tangible personal
property" are to be returned to their owners within 30 days of
the per curiam's release. Per curiam, ¶31. Written notice must
also be provided within 30 days of the per curiam "to all
individuals and organizations whose documents or electronic data
were obtained by the prosecution . . . ." Per curiam, ¶37. The
remainder of the per curiam's "clear and hold" mandate must be
implemented within 30 days of the completion of proceedings in
the United States Supreme Court or 30 days after the deadline to
file a petition for writ of certiorari, if no petition is filed.
Per curiam, ¶29.


                                            12
           No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


released many issues remain unresolved and will dominate this

court's work for a long time to come.

      ¶77        Fourth, by modifying the majority opinion's mandate,

the   per        curiam    effectively       grants    the   Special       Prosecutor's

motion for a stay of the majority opinion's "search and destroy"

mandate, at least pending review by the United States Supreme

Court.17         In     modifying   the     majority   opinion,      the    per    curiam

provides         that     documents    and     electronic     data     will       not    be

destroyed until further order of the court.18                          But the four

justices joining the per curiam say nothing about when such an

order might be issued and what it might say.

      ¶78        I concur in the concept of a stay.               The stay the per

curiam grants does not, however, appear to preserve John Doe

materials to use in future criminal prosecutions.                          Nor does the

per   curiam       assure    that     the    materials   will   be     preserved        and

available for use by the Special Prosecutor and others in their

defense of presently pending civil litigation relating to the

John Doe trilogy.19




      17
           Per curiam, ¶29.
      18
           Per curiam, ¶37.
      19
       The John Doe investigations have spawned a number of
lawsuits alleging, among other things, civil rights violations
by the prosecutors and law enforcement officers, and unlawful
activities by the Government Accountability Board.    See, e.g.,
O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014), cert. denied,
135 S. Ct. 2311 (2015); Archer v. Chisholm, No. 15-cv-922-LA
(E.D. Wis.); O'Keefe v. Wis. Gov't Accountability Bd., No.
2014CV1139 (Waukesha Cnty. Cir. Ct.).


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          No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


     ¶79        The   per   curiam     states      that    materials      "could    also

potentially be available for use in related civil proceedings,

if there is a request and a determination that such use is

proper under the circumstances."20                  This cryptic aside does not

assure that the materials will actually be available for use in

related     litigation,        let     alone      that    the   materials    will     be

preserved until the relevant statutes of limitations on civil

litigation have run.            Nor does the per curiam explain how the

Special Prosecutor or others may access the materials except

through     a     "request,"     or     what      uses    are   "proper     under    the

circumstances."21           According to various reports, similar future

litigation has been threatened.22

     ¶80        Fifth, the per curiam modifies the functions of the

Special     Prosecutor       from     this   date    forward.      The     per     curiam

terminates the authority of the Special Prosecutor to act as

special prosecutor and assigns him new tasks without giving the

     20
          Per curiam, ¶38.
     21
        The per curiam does not explain whether making materials
available for use in related litigation is consistent with the
revised John Doe statutes.    See Wis. Stat. § 968.26(4)(a)-(b)
(2015).   Unnamed Movant No. 2's motion argues that Wis. Stat.
§ 968.26(4)(b) bars at least John Doe Judges Peterson and
Nettesheim from authorizing the disclosure of materials going
forward.    Nonetheless, Unnamed Movant No. 2's motion also
suggests that this court may allow the use and production of
certain materials, like investigators' notes or memoranda, in
civil litigation.
     22
       See, e.g., Collin Levy, The Wisconsin Targets Tell Their
Story, Wall St. J., July 22, 2015; M.D. Kittle, John Doe Horror
Stories: 'I felt completely helpless in my own home,'
WisconsinWatchdog.org,    July    23,    2015,    available  at
http://watchdog.org/230683/john-doe-deborah-jordahl-raids/.


                                             14
           No.    2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


Special          Prosecutor    (who     is      a    private    practitioner),        any

resources or payment for his services.23

      ¶81        The John Doe investigation is based in large part on

the idea of "follow the money."24                   Here, it is unclear where the

money to support the per curiam's orders will come from.                              The

four justices have imposed an "unfunded mandate" on someone.

But on whom?          The Special Prosecutor personally?                 The State?    A

county?      Which one?

      ¶82        Sixth, as stated previously, the per curiam is silent

regarding what modifications, if any, will be needed to the July

16, 2015 majority opinion and to the per curiam in light of the

recent statutory revisions to the John Doe statutes and the

related filings.25            For example, one non-statutory provision of

2015 Wis. Act 64, Section 12j, states that John Doe secrecy

orders "in effect on the effective date of this subsection may

apply      only     to"   John    Doe    judges,       district       attorneys,   other

prosecuting attorneys, law enforcement personnel, interpreters

and     court      reporters.26         Under       Section    12j,    secrecy     orders


      23
           Per curiam, ¶¶28-36.
      24
           See All the President's Men (Warner Bros. 1976).
      25
           See 2015 Wis. Act 64; 2015 Wis. Act 55.

     This part of the revisions of the John Doe statutes raises
the question of whether Section 12j terminates the secrecy
orders entered in John Doe I and John Doe II, and if so, whether
Section 12j violates the separation of powers doctrine.
      26
           2015 Wis. Act 64, Section 12j states in full:

      "A secrecy order entered under section 968.26 of the
      statutes that is in effect on the effective date of
                                                    (continued)
                               15
          No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


covering other individuals are "terminated on the effective date

of this subsection."27           The effective date of 2015 Wis. Act 64 is

October 25, 2015.          The court leaves these and other important

issues for another day although they are fully briefed and of

immediate significance.

     ¶83        I turn now to examining the flaws in the per curiam in

the following order:

     1. The motion for reconsideration is veiled in secrecy.                 The

           per curiam may be open to challenge on First Amendment

           and state grounds.        The per curiam also does not address

           leaks of sealed information.         See ¶¶84-91, infra.

     2. The       per   curiam    overreaches   to   terminate    the    Special

           Prosecutor's authority to act as special prosecutor from

           this date forward.       See ¶¶92-109, infra.

     3. In terminating the authority of the Special Prosecutor,

           the per curiam unfairly leaves the prosecution and the

           State unrepresented from this date forward and deprives

           the Special Prosecutor, prosecutors, and law enforcement
           of     the    opportunity      to    preserve     materials      from

           destruction.     See ¶¶110-125, infra.


     this subsection may apply only to persons listed in
     section 968.26(4)(a) of the statutes, as created by
     this act. A secrecy order covering persons not listed
     in section 968.26(4)(a) of the statutes, as created by
     this act, is terminated on the effective date of this
     subsection."

See also Wis. Stat. § 968.26(4)(a).
     27
          2015 Wis. Act 64, § 12j.


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     4. The question remains whether the per curiam is impeding

       review by the United States Supreme Court by terminating

       the authority of the Special Prosecutor.                    See ¶¶126-130,

       infra.

     5. Based     on   its    erroneous       conclusion      that     the       Special

       Prosecutor        never        presented       evidence       of      illegally

       coordinated express advocacy to the John Doe Judge, the

       per curiam erroneously concludes that the investigation

       into coordinated express advocacy cannot continue.                            See

       ¶¶131-144, infra.

     6. The per curiam constructs the "clear and hold" mandate in

       a factual vacuum and the mandate will require further

       clarification.           Indeed the Unnamed Movants do not agree

       in      their    recommendations         to     the    court       about      the

       disposition of the materials.               See ¶¶145-149, infra.

     7. The per curiam is unclear about whom it binds.                       See ¶150,

       infra.

     8. The per curiam ignores the Special Prosecutor's argument
       that evidence obtained through the subpoenas and search

       warrants        should    be     retained      under      the      good    faith

       exception in Fourth Amendment suppression jurisprudence.

       See ¶¶151-152, infra.

     9. The     per    curiam     leaves       many     foreseeable          questions

       unanswered.       See ¶¶153-155, infra.

                                         * * * *

1.    The motion for         reconsideration is veiled in secrecy.                  The
per curiam may be open to challenge on First Amendment and state

                                         17
          No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


 grounds.        The per curiam also does not address leaks of sealed

                                   information.

     ¶84        Thirty-three    filings,     including     the    motion     for

reconsideration (and responses) and nearly every other filing in

this court since July 16, 2015, are sealed.                 For a listing of

the 33 sealed filings since July 16, 2015, see Attachment A,

attached.28       Thus, the parties' factual and legal arguments are

closed to the public.29

     ¶85        Why the secrecy?     And by whose order?      All the filings

were automatically sealed, without any review by this court and

without any instruction or order from this court.

     ¶86        To illustrate the excessive sealing of material since

July 16, 2015, I note two particularly egregious examples.30

     ¶87        First, both the complaint and amended complaint in the

federal case entitled Archer v. Chisholm, No. 15-cv-922-LA (E.D.

     28
       The only documents not under seal are Justice Prosser's
separate writing explaining his rationale for denying a motion
for his recusal, and documents that I filed.

     In addition to the new filings placed under seal,                      some
redactions relating to documents filed before July 16,                     2015,
still remain unresolved, even after the court released                      many
other redacted documents in the lead-up to the July 16,                     2015
opinions.
     29
       At least redacted versions of the parties' briefs and
other documents were publicly available relating to the July 16,
2015 majority opinion.
     30
       Another example is the Special Prosecutor's motion for
reconsideration. The motion makes predominantly legal arguments
and does not disclose the identity of the Unnamed Movants, the
specific contents of any document or information obtained in the
John Doe investigation, or any information that appears
objectionable to either the prosecution or the Unnamed Movants.


                                        18
          No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


Wis.) are appended to proposed intervenors' sealed motions.                  The

Archer complaints are not under seal in the federal court.                   How

can this court justify the sealing of complaints that are open

in federal court?        It cannot.

     ¶88        Second, the Special Prosecutor filed a letter stating

that he intends to respond to Unnamed Movant 2's "notice of

statutory changes."          Although the letter explicitly stated that

it was not being filed under seal; that it does not contain any

confidential information; and that no redactions are needed, the

letter was automatically sealed without any review by the court

and without any instruction or order from the court.

     ¶89        The   general    rule     is   that     court    filings     are

presumptively open for public inspection.              Placing filings under

seal is the exception to the rule.31              In the face of virtually

total secrecy of filings since July 16, 2015, the public cannot

understand the basis for the four justices' decisions.                      "The

crucial prophylactic aspects of the administration of justice

cannot function in the dark; no community catharsis can occur if
justice is 'done in a corner [or] in any covert manner.'"32




     31
       See, e.g., Press-Enters. Co. v. Superior Court, 464
U.S. 501, 508-10 (1984); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 580 & n.17 (1980); In re Providence Journal Co.,
293 F.3d 1, 13 (1st Cir. 2002); Grove Fresh Distrib., Inc. v.
Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); Brown &
Williamson Tobacco Corp. v. Fed. Trade Comm'n, 710 F.2d 1165,
1177-81 (6th Cir. 1983).
     32
       Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571
(1980) (quotation omitted) (alteration in original).


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            No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


       ¶90        The automatic sealing of virtually all filings since

July    16,       2015     without     explanation      raises     significant      First

Amendment,          state    constitutional,          statutory,    and    common       law

issues,       and    may    be   challenged      as    erroneous.33       Any    need    to

maintain the secrecy of portions of any filings should have been

addressed promptly by the participating justices and material

redacted for the public if necessary.

       ¶91        My primary concern to this point has been that this

court continues to seal too much from public view.                              The court

has failed to release documents that need not be sealed or that

are already publicly available.34                 At the same time, the court's

failure       to     enforce     its    sealing       orders   has,    unfortunately,

allowed a growing tide of leaks, flouting the court's orders

without fear of consequences.35               This situation does not engender


       33
       See Brown & Williamson Tobacco Corp. v. Fed. Trade
Comm'n, 710 F.2d 1165, 1176 (6th Cir. 1983) ("[W]e conclude that
the District Court erred by failing to state findings or
conclusions which justify nondisclosure to the public.       The
order of the District Court sealing the documents in the case
is, therefore, vacated.").
       34
       Unnamed Movant No. 2's filing points out that much of the
material filed under seal has been released by court orders and
suggests that a substantial amount of the materials under seal
in this court may be unsealed consistent with concerns about
revealing the names of the Unnamed Movants or others who were
investigated.   See also my concurrence/dissent to the majority
op., ¶¶501-506.
       35
       See, e.g., Jason Stein & Mary Spicuzza, More Documents
Leaked in John Doe Case, Milwaukee J. Sentinel (Sept. 17, 2015);
Molly Beck, Emails raise questions of impartiality, suggest
Scott Walker was target of John Doe, Wis. State J. (Aug. 29,
2015); Editorial, We 'the Sheeple', Wall St. J. (Aug. 27, 2015).


                                            20
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confidence in the transparency or sealing of the proceedings, in

the rule of law, or in this court's ability or willingness to

enforce its orders.

          2.      The per curiam overreaches to terminate the Special

          Prosecutor's authority to act as special prosecutor from

                                    this date forward.

     ¶92        The per curiam immediately goes astray when it states

that "[b]ecause we are presented with [the Special Prosecutor's]

continued filings . . . we now must address the underlying legal

question of [the Special Prosecutor's] authority to act as the

special prosecutor . . . ."36             "Now?"     "Must?"       Really?     The

issue of the Special Prosecutor's authority was addressed by the

court of appeals and this court in the supervisory writ action

by three Unnamed Movants.

     ¶93        Addressing    the    issue    of   the   Special    Prosecutor's

appointment and authority, the July 16, 2015 majority opinion

affirmed        the   court   of   appeals,   holding    that   John   Doe   Judge

Kluka's appointment of the Special Prosecutor did not violate a
plain legal duty.37            Thus, the Special Prosecutor's authority

remained intact.

     ¶94        A majority of the justices joined the part of Justice

Prosser's concurrence concluding that "Judge Kluka's appointment

of the Special Prosecutor was invalid."38

     36
          Per curiam, ¶8.
     37
          Majority op., ¶¶132, 137.
     38
          Justice Prosser's concurrence to majority op., ¶239.


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      ¶95        The    per     curiam      is     correct     that    Justice   Gableman's

majority opinion controls.39

      ¶96        By joining both Justice Gableman's majority opinion

and   Justice          Prosser's      concurrence,           four     justices   created    at

least two sets of votes that logically do not align:                                 The four

justices         held    that    the       Special      Prosecutor's      appointment      was

simultaneously valid and invalid.                         Compare majority op., ¶¶132

n.43, 137, Justice Ziegler's concurrence to majority op., ¶¶309,

340, and Justice Prosser's concurrence to majority op., ¶¶149,

239, 306.

      ¶97        The    four     justices          attempt     to      mask   this    logical

inconsistency.           The per curiam creates an artificial distinction

between the "legal ruling" in Justice Gableman's July 16, 2015

majority opinion that John Doe Judge Kluka's appointment of the

Special Prosecutor did not violate a plain legal duty and the

"reality shown" by the "legal conclusion" in Justice Prosser's

concurrence            that     the       Special       Prosecutor's      appointment      was

invalid.40        These labels, "legal ruling," "legal conclusion," and
"reality         shown,"      are     devoid       of    any   meaning    and    should    not

obscure the fact that in the opinions issued on July 16, 2015,

four justices voted that the Special Prosecutor's appointment

was simultaneously valid and invalid, or that the per curiam

reverses         the     July       16,     2015     majority       opinion's    conclusion

regarding the validity of the Special Prosecutor's appointment

and authority.
      39
           Per curiam, ¶7 & n.3.
      40
           See per curiam, ¶¶7-9.

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       ¶98        These conflicting votes of the four justices resulted,

I believe, from a change in this court's internal operating

procedures for processing and mandating opinions.                            Since the

change       was    adopted    in     September    2014,    the   court    no   longer

discusses         draft    opinions    in   conference      unless   a    majority   of

justices votes to do so.41              From September 2014 to June 2015, no

in    person       court    conference      was   held   on   any    draft    opinion,

including the drafts in the John Doe trilogy.

       ¶99        Thoughtful discussion and careful collegial review of

the draft opinions in the John Doe trilogy would have revealed

the   internally          contradictory      nature    of   the   several     opinions

joined in different parts by four justices.

       ¶100 Although the July 16, 2015 majority opinion applied

the correct, limited standard of review for a writ proceeding,42

the per curiam does an about-face.                    The per curiam overreaches

and "makes a legal ruling"43 that the Special Prosecutor lacks

authority to act as special prosecutor from the date of the per

curiam forward.44

       41
       The procedure adopted in September 2014 for processing
opinions is set forth in full in State v. Gonzalez, 2014 WI 124,
¶30-31, 359 Wis. 2d 1, 856 N.W.2d 580 (Abrahamson, C.J.,
concurring).
       42
            Majority op., ¶¶127-28 & n.41.
       43
            Per curiam, ¶12.
       44
       Per curiam, ¶¶2, 11. In contrast, the per curiam relies
on the limited standard of review in writ proceedings to hold
that the Special Prosecutor could not prevail on his argument
that the John Doe investigation should proceed as to coordinated
express advocacy. Per curiam, ¶27.


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       ¶101 This conclusion is misguided for several reasons.

       ¶102 First, the per curiam reargues an issue already argued

and considered.            A motion for reconsideration "is not intended

to    be     an     opportunity     to   reargue    issues      already    argued    and

considered.          Rather, the primary purpose [of reconsideration] is

to alert the court to errors or omissions in its decision."45

The    per        curiam   does    not   assert    that   any    error    or    omission

appears in the majority opinion's conclusion that the Special

Prosecutor's appointment remains intact.

       ¶103 Second,         under    the   per    curiam's      logic,    the    Special

Prosecutor's authority to proceed would still be intact if he

had not brought a motion for reconsideration.46                      Does this make

sense?       Not to me.

       ¶104 Third, only Unnamed Movants 2, 6, and 7 challenged the

appointment and authority of the Special Prosecutor.47                         The other

Unnamed Movants did not raise this issue.                         Why does the per

curiam not hold that the other Unnamed Movants forfeited the

argument that the Special Prosecutor lacked authority?                          The per
curiam does not even consider this question.                       In contrast, the

per    curiam        is    quick    to   hold     that    the   Special     Prosecutor




       45
       See   Michael   S.  Heffernan,                    Appellate       Practice    and
Procedure in Wisconsin § 22.4 (2014).
       46
            See per curiam, ¶16.
       47
            See my concurrence/dissent to the majority op., ¶¶542,
554.


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forfeited his argument that the John Doe II investigation should

continue into investigating coordinated express advocacy.48

       ¶105 Fourth, the per curiam applies two different rules to

the   two         petitions     for    supervisory          writs.       In   the   petition

brought           by   three    Unnamed    Movants          for      a   supervisory    writ

invalidating           the     appointment      and     authority        of   the    Special

Prosecutor, the per curiam "'transform[s] the writ into an all-

purpose alternative to the appellate review process . . . .'"49

by    concluding         that    the    Special        Prosecutor's        appointment    is

invalid without regard to the limited nature of this court's

review of a decision on a supervisory writ.

       ¶106 In contrast, relying on the limited nature of the writ

proceeding,50           the     per    curiam        bars    relief      to   the    Special
       48
            Per curiam, ¶¶23-24.
       49
        Majority op., ¶137                (quoting State ex rel. Kalal v.
Circuit   Court,  2004  WI                58,   ¶24,  271 Wis. 2d 633, 681
N.W.2d 110).

     The per curiam relies on Kalal to justify its decision on
the underlying legal issue, namely that the appointment of the
Special Prosecutor was invalid. Kalal is inapposite. The Kalal
court held that the Kalals failed to establish the existence of
a plain legal duty and were not entitled to a supervisory writ.
271 Wis. 2d at ¶26.    The Kalal court went on to discuss the
statutory interpretation question presented but did not change
its result, that is, the court's conclusion remained that the
Kalals were not entitled to a supervisory writ because no plain
legal duty existed. 271 Wis. 2d at ¶57.

     In the instant case, the July 16, 2015 majority opinion
declared that the parties were not entitled to a supervisory
writ because no plain legal duty existed.    Majority op., ¶137.
The per curiam decides the underlying legal issue and now
reverses the majority opinion's denial of the supervisory writ.
       50
            Per curiam, ¶27.

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Prosecutor on his petition for a supervisory writ to reverse the

John Doe Judge's decision to quash the subpoenas and search

warrants.

      ¶107 These            two    approaches       seem   inconsistent         and     result-

oriented.

      ¶108 In addition to faulty "analysis," the per curiam fails

to provide any assistance, resources, or compensation to the

Special Prosecutor when he is implementing the new "clear and

hold"      mandate      and       fulfilling        his   new    functions.          The   four

justices impose an unfunded mandate on someone, but we do not

know who that someone is.                     The record is unclear whether the

Special Prosecutor has been compensated for all his work and

whether he is now being compensated.

      ¶109 In          sum,       the   per    curiam's         rationale      simply      seems

invented to justify the pre-ordained desired result.

                  3.    In terminating the authority of the Special

        Prosecutor, the per curiam unfairly leaves the prosecution

            and the State unrepresented from this date forward and
             deprives the Special Prosecutor, prosecutors, and law

                 enforcement officers of the opportunity to preserve

                                   materials from destruction.

      ¶110 The per curiam recognizes that its ruling that the

Special      Prosecutor           cannot      continue     to     act    in    his    official

capacity "has the potential to create problems with respect to

who   may        act   on    behalf     of    the    prosecution        in    this    court   or

elsewhere going forward."51                   The four justices should have seen
      51
           Per curiam, ¶16.

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this problem coming, but they did not.                    Now, the per curiam does

next to nothing to resolve it.

      ¶111 The per curiam suggests that one or more of the five

district         attorneys       whose     petitions      to     commence       John     Doe

proceedings started this investigation might seek to intervene

to represent the prosecution and State in future proceedings.52

The   per        curiam    assures       the    reader    that    such    a     motion    to

intervene would receive prompt attention, but does not assure

that such a motion would be granted.53

      ¶112 The          four    justices       have   already    explicitly      denied     a

motion      to    add     the   five     district     attorneys    as    parties,        even

though the Three Unnamed Petitioners warned more than a year and

a half ago that if the five district attorneys were not joined

and the court concluded that the Special Prosecutor could not

continue to act in his official capacity, the prosecution would

be    left       entirely       unrepresented.54           As    the     Three     Unnamed

Petitioners         wrote       (see     Attachment      C),     the     five     district

attorneys had an interest in the outcome of the John Doe trilogy
and would incur significant expenses depending on the outcome:

      [I]f the petitioners are correct on the merits, the
      appointment of the special prosecutor was improper at
      the outset and is unsustainable now. Each of the five
      52
           Per curiam, ¶19.
      53
           Per curiam, ¶19.
      54
       See December 16, 2014 order granting review, at 7
(denying a motion to make the district attorneys parties); see
also December 16, 2014 order granting review, at ¶4 (Abrahamson,
C.J., concurring) ("[T]he five district attorneys . . . in my
opinion, should be made parties as requested.").


                                                27
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       district attorneys would have to proceed without him
       and without the state Department of Administration
       shouldering much of the prosecutorial costs of these
       proceedings.      Accordingly, these   five   district
       attorneys   necessarily   have an  actual   and   non-
       speculative interest in the outcome of this case.
       That interest is distinct from the interests of all
       other parties.55
       ¶113 Now,           despite       the    Three      Unnamed       Petitioners'        clear

warnings, the per curiam engages in revisionist history, stating

that    "at        that    point    in       time   there    was    no     need   to    add   the

district          attorneys        as    parties         because    the     prosecution        was
represented by . . . the special prosecutor."56                             But the need was

clear and the problem was foreseeable.                         Now, at this late date,

after       the     majority    opinion         has      terminated      the   investigation,

even if one or more of the district attorneys were allowed to

intervene, an overwhelming amount of materials would have to be

scrutinized and absorbed in order for a district attorney to get

up to speed on this legally and factually complex case.                                       The

learning          curve    to   assume        responsibility        for    challenging        past

orders and opinions of this court and for representing the State

in     all        future    legal       proceedings         would     be    steep      and    time

consuming.           Such intervention might impose significant expenses

on the counties.

       ¶114 Even           though       no   one    represents       the    prosecution        and

state going forward, an order issued today (in which I dissent)

refuses to allow investigators and a law enforcement officer to

       55
       See Petitioners' Motion to Add Five Respondents 4 (Feb.
19, 2014).
       56
             Per curiam, ¶17.


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intervene          for     the   limited            purpose       of    preserving        certain

materials from the John Doe investigations from destruction.57                                    A

third motion to intervene for the same limited purpose filed by

a   district          attorney   and      two       assistant      district     attorneys       is

being ignored, without explanation.

      ¶115 The per curiam errs in denying the motions for limited

intervention.

      ¶116 Limited intervention is required to protect rights.

Denying the motions for limited intervention, especially when

the     Special          Prosecutor         cannot          continue     acting      as     such,

demonstrates             hostility        to        the      Special      Prosecutor,           the

"prosecution            team,"   and      the       State    on   the    part   of    the      four

justices.         The July 16, 2015 majority opinion is critical of the

conduct          of     the   Special        Prosecutor,           prosecutors,       and       law

enforcement officers, including their conduct in execution of

the search warrants.                 The criticism is piled on even though

there      is     no    evidence     or     factual         findings     in   the    record     to

support      this        criticism     or      to    describe      the   execution        of    the
search warrants.58            Baseless attacks by this court on the Special

Prosecutor,            prosecutors,       and       law   enforcement      officers       (or    on

anyone else) are, in my opinion, inexcusable.

      57
       See the order of even date denying motions for limited
intervention.
      58
       The majority opinion and Justice Ziegler's concurrence to
the majority opinion relied on facts that were not in the
record, citing blogs and media reports as authoritative sources
on how the search warrants were executed.    See, e.g., majority
op., ¶¶28, 68; Justice Ziegler's concurrence to the majority
op., ¶¶320 & n.10, 326-29 & nn.12-22.


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       ¶117 Since July 16, 2015, these attacks in the majority

opinion           have    been     cited      as     verifying      that     the     Special

Prosecutor,          prosecutors,       and    law    enforcement         officers    in    the

John    Doe        investigations        were       engaged    in    misconduct.           For

example, the Amended Complaint in Archer v. Chisholm, No. 15-cv-

922-LA (E.D. Wis.), Docket No. 17, describes the July 16, 2015

majority opinion as "finding" and "holding" that the Special

Prosecutor,              prosecutors,         and     law      enforcement           officers

"instigated 'a perfect storm of wrongs that was visited upon the

innocent'          targets       'and   those       who   dared     to     associate       with

them.'"59

       ¶118 The Amended Archer Complaint, under the heading "The

Wisconsin          Supreme    Court's      Repudiation        of    the    Investigation,"

also alleges that the July 16, 2015 majority opinion "found that

the targets of the investigation were victims of 'the tyrannical

retribution of arbitrary or capricious government prosecution'"60

and "found" that they "subjected targets to 'paramilitary-style

home invasions conducted in the pre-dawn hours' in retaliation
for their free speech . . . ."61



       59
       Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.), Dkt.
No. 17, at ¶96 (internal quotation marks omitted) (quoting
majority op., ¶133).
       60
       Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.), Dkt.
No. 17, at ¶¶95-96 (internal quotation marks omitted) (quoting
majority op., ¶133).
       61
       Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.), Dkt.
No. 17, at ¶97 (internal quotation marks omitted) (quoting
majority op., ¶68).


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       ¶119 In contrast, the material released from John Doe files

apparently has proved helpful to prosecutors and law enforcement

officers in cases in which their conduct has been challenged.

See, e.g., O'Keefe v. Schmitz, No. 14-C-139, 2014 WL 1379934, at

*8 (E.D. Wis. Apr. 8, 2014), rev'd in part sub nom. O'Keefe v.

Chisholm, 769 F.3d 936 (7th Cir. 2014), cert. denied, 135 S. Ct.

2311    (2015)         (citing     sealed       material     from     John      Doe   II     in

discussing immunity under 42 U.S.C. § 1983).

       ¶120 The use of released John Doe I materials in the Archer

case    has       apparently      caused    a    modification        of   the    claims      of

abusive behavior by those who executed the search warrants.62

       ¶121 Now, the very same four justices who criticized the

prosecutors and law enforcement officers for their participation

in   the      John     Doe   II   investigation       deny    the     movants     (who      are

government officers and employees) the opportunity to intervene

for the limited purpose of preserving materials, including audio

recordings, that they assert reveal the truth about the John Doe

II investigation, including execution of the search warrants.
       ¶122 Instead, the per curiam suggests that the materials to

be     held       by   the   Clerk    of        the   Supreme       Court    "could        also


       62
       See Archer v. Chisholm, No. 15-cv-922-LA (E.D. Wis.),
Dkt. No. 17; Daniel Bice, Audio of John Doe Raid Contradicts
Claims by Longtime Scott Walker Aide, Milwaukee J. Sentinel,
Aug.           4,           2015,          available           at
http://www.jsonline.com/blogs/news/320568172.html; Scott Bauer,
Audio contradicts Scott Walker aide's description of raid, Wis.
State      J.,      Aug.      5,     2015,      available      at
http://host.madison.com/wsj/news/local/govt-and-politics/audio-
contradicts-scott-walker-aide-s-description-of-
raid/article_64e5ec3a-3b65-57e8-bc2c-f9a0dc37e505.html.


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potentially be available for use in related civil proceedings,

if there is a request and a determination that such use is

proper under the circumstances."63                        This aside is yet another

"too little, too late" aspect of the per curiam.

          ¶123 The per curiam's aside is too little: it gives no

assurance that the materials to be held by the Clerk will be

available for prosecutors and law enforcement officers' defenses

in civil proceedings stemming from the John Doe investigations

at    all,           let   alone   that     they       will   be    preserved    until     the

applicable statutes of limitations have run.                                The per curiam

also gives too little direction to non-parties on how to request

access to the materials and what requests would be "proper under

the circumstances."64

          ¶124 The per curiam is too late:                    Now that the prosecution

is totally unrepresented in future proceedings in these cases,

and limited intervention has been denied, nobody is left to

advocate for the preservation of these materials for use in

proceedings stemming from the John Doe investigations.
          ¶125 Will         this   aspect    of    the    per      curiam   be   subject    to

challenge as due process gone awry?

     4.         The question remains whether the per curiam is impeding

     review by the United States Supreme Court by terminating the

                           authority of the Special Prosecutor.




          63
               Per curiam, ¶38.
          64
               Per curiam, ¶38.


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       ¶126 On another topic relating to the termination of the

authority of the Special Prosecutor, the per curiam explicitly

addresses the issue of who may seek review in the United States

Supreme Court.               The per curiam declares that its "decision to

terminate [the Special Prosecutor's] authority is not meant to

interfere          with   the    ability       of       the    prosecution     team       to    seek

Supreme Court review."65                Who is the "prosecution team?"                     The per

curiam uses the phrase "prosecution team" 32 times.                                  The phrase

is never defined.               Isn't the Special Prosecutor a member of the

"prosecution           team,"    and     thus      eligible       to    seek   Supreme         Court

review under the per curiam's approach?

       ¶127 The per curiam recasts my point about the inability to

identify members of the prosecution team as "implying that there

was    no     group       of    prosecutors,            investigators        and    others       who

prosecuted the John Doe II investigation, and that [the Special

Prosecutor]            worked    alone    in       prosecuting         the   John    Doe       II."66

Clearly           there   were        prosecutors,            investigators,        and     others

involved          in   the     John    Doe    II     investigation.            Obviously         the
Special           Prosecutor      did        not        work    alone.         However,          the

"prosecution team" is nowhere depicted as a static group of

people.           Didn't people serve with the Special Prosecutor and

then leave the task?                  Didn't new people periodically join the

Special Prosecutor?              The per curiam does not say who the members

of    the     prosecution        team    are       or    who    may    replace      the    Special


       65
            Per curiam, ¶16 (emphasis added).
       66
            Per curiam, ¶18 n.7.


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Prosecutor        for    numerous   purposes,     including      United   States

Supreme Court review.

     ¶128 The       per    curiam   further   declares    that    it   wants   to

"avoid[] impeding in any way the ability of the prosecution team

to seek certiorari review in the United States Supreme Court."67

Nevertheless, the Special Prosecutor is the only person named in

the John Doe trilogy as representing the prosecution.

     ¶129 I agree with the four justices joining the per curiam

that in the interests of federalism, comity, and the supremacy

of federal law,68 the per curiam should not place roadblocks in

the way of federal review of the decisions in the John Doe

trilogy.

     ¶130 What a mess this court has wrought!

     5.         Based on its erroneous conclusion that the Special

  Prosecutor never presented evidence of illegally coordinated

        express advocacy to the John Doe Judge, the per curiam

  erroneously concludes that the investigation into coordinated

                        express advocacy cannot continue.
     ¶131 The       Special    Prosecutor's     motion   for   reconsideration

seeks an order permitting the John Doe investigation to continue

as to coordinated express advocacy——a valid legal theory even

under the majority opinion's flawed, absolutist interpretation

that "Anything Goes" with regard to issue advocacy.69
     67
          Per curiam, ¶29 (emphasis added).
     68
          U.S. Const. art. VI, cl. 2.
     69
          See my concurring/dissenting opinion to the majority op.,
¶348.


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       ¶132 The late Justice N. Patrick Crooks and I dissented

from the July 16, 2015 majority opinion, in part because the

majority opinion failed to consider this evidence.70                                  The per

curiam, like the majority opinion, avoids addressing this issue,

this time hiding behind the doctrine of forfeiture and applying

a   limited         standard     of     review        to     the   Special     Prosecutor's

petition for a supervisory writ.71

       ¶133 The        record     demonstrates              that   the    investigation     of

coordinated           express      advocacy           should       proceed.           Unlawful

coordination, not merely unlawful coordinated issue                                 advocacy,

has been the focus of the John Doe investigation from the very

beginning.

       ¶134 For        example,       on    May       31,    2013,      Wisconsin     Attorney

General J.B. Van Hollen wrote to the Milwaukee County District

Attorney declining to participate in the John Doe investigation.

The letter describes the John Doe investigation as "relating to

potential           campaign      finance         violations            involving     campaign

coordination."72             The letter explains elsewhere that the specific
area    of        campaign    finance      law    that       may   be    applicable    to   the



       70
       See Justice Crooks' concurrence/dissent to the majority
opinion, ¶¶559-63; see also my concurrence/dissent to the
majority op., ¶352 n.11.
       71
       See per curiam, ¶¶25-26. In contrast, this very limited
standard of review is ignored, as I have stated, by the per
curiam in terminating the Special Prosecutor's appointment and
authority from this date forward. Per curiam, ¶¶6, 7.
       72
       See App'x to Response Brief of Special Prosecutor, vol.
1, at 090 (emphasis added).


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investigation is "coordination."73                    No reference is made in this

letter to either issue advocacy or express advocacy.                           Rather,

coordination is the prominent theme of the letter discussing the

investigation.

       ¶135 Another example showing that coordination, not merely

coordinated issue advocacy, was the focus of the investigation

is    the     August     10,    2012       petition    to   commence   the    John   Doe

proceedings.          The petition focuses on coordination, and is not

limited to express or issue advocacy.                       The petition states that

the investigation will focus on violations of Wis. Stat. ch. 11,

and   in      particular       on    the    coordination      of   personal   political

campaign committees and '501(c)(4)' organizations to circumvent

the restrictions of ch. 11.74

       ¶136 Likewise,          the     affidavits      underlying    search    warrants

and subpoenas addressed evidence of coordination, not limited to

evidence of coordinated issue advocacy or coordinated express

advocacy.75



       73
       See App'x to Response Brief of Special Prosecutor, vol.
1, at 090.
       74
       A 501(c)(4) is described in the record as an organization
able to involve itself in express advocacy, provided that
"supporting or opposing candidates" does not become the
organization's primary purpose.
       75
       Affidavits for search warrants and subpoenas state that
the use of the 501(c)(4)s was alleged to be for the purpose of
circumventing the reporting and contribution provisions of Wis.
Stat.   §§ 11.10(4),  11.06(1),  and   11.27(1),   which  would
constitute a violation of Wis. Stat. §§ 11.26, 11.27, and
11.61(1)(b).


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      ¶137 That          no     distinction         was    made     between      coordinated

express          advocacy      and    coordinated          issue    advocacy      in    these

documents         is    not   surprising.            The   emphasis      on    investigating

coordination,           regardless      of     whether      the    coordination        was   of

issue advocacy or express advocacy, was supported by federal and

Wisconsin         law    at    the    time.         The    law    did    not   establish     an

inflexible         distinction         or     set    up    a     rigid    barrier      between

coordinated issue advocacy and coordinated express advocacy for

all purposes.76

      ¶138 In granting review in the John Doe trilogy, this court

asked the parties to address "[w]hether the records in the John

Doe proceedings provide a reasonable belief that Wisconsin law

was   violated           by    a     campaign       committee's         coordination     with

independent            advocacy      organizations         that     engaged     in     express

advocacy speech.              If so, which records support such a reasonable

belief?"77



      76
        See, e.g., McConnell v. FEC, 540 U.S. 93, 193 (2003)
(stating there is no "rigid barrier between express advocacy and
so-called    issue  advocacy");   Wis.   Coalition   for   Voter
Participation v. State Elections Bd., 231 Wis. 2d 670, 682, 605
N.W.2d 654 (Ct. App. 1999) (stating "we think the [State
Elections] Board was correct in observing . . . that '[i]f the
mailing and the message were done in consultation with or
coordination with the Justice Wilcox campaign, the [content of
the   message]   is  immaterial")   (quotation  omitted)   (some
alterations in original).

     It is the majority opinion that erroneously erected a rigid
barrier between coordinated issue advocacy and express advocacy
on July 16, 2015, long after the investigation began.
      77
           See December 16, 2014 order granting review at #10.

                                                                                 (continued)
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     ¶139 According            to   the    record,    evidence    of    coordinated

express     advocacy      on    which     the    Special   Prosecutor   relies   was

presented both to the John Doe Judge and to this court.                      The per

curiam errs in concluding that the Special Prosecutor forfeited

his argument that the search warrants and subpoenas were valid

because they sought evidence of coordinated express advocacy.78

     ¶140 I       agree    with     the    following       statements   in   Justice

Crooks' concurring and dissenting opinion to the July 16, 2015

majority opinion, stating at ¶561 as follows:

     It is also imperative to note that the majority
     conveniently   overlooks   the  special   prosecutor's
     secondary argument of criminal activity in [the
     majority's] 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

     Care must be taken when reading the word "independent" in
such   phrases  as   "independent  organizations,"  "independent
disbursement committees," or "independent advocacy organization"
in the December 16, 2014 court order granting review, the July
16, 2015 majority opinion and the per curiam.          The word
"independent" should be considered to be in quotation marks
"because the Special Prosecutor suspected that the group's
independence is ostensible rather than real."        O'Keefe v.
Chisholm, 769 F.3d 936, 937 (7th Cir. 2014), cert. denied, 135
S. Ct. 2311 (2015).
     78
       Moreover, even if a party forfeits an issue by failing to
raise it first in a prior proceeding, "we have discretion to
disregard alleged forfeiture or waiver and consider the merits
of any issue because the rules of forfeiture and waiver are
rules of 'administration and not of power.'"    State v. Beamon,
2013 WI 47, ¶49, 347 Wis. 2d 559, 830 N.W.2d 681 (quoting State
v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983)).


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       of such illegal coordination, the majority [opinion]
       determines, without explanation, that the John Doe
       investigation is over.
       ¶141 The          John   Doe    Judge   made    clearly     erroneous      factual

findings when he stated that the "State is not claiming that any

of    the     independent         organizations       expressly    advocated,"79        and

"[t]here is no evidence of express advocacy"80 justifying the

issuance of a supervisory writ.

       ¶142 After the John Doe Judge accepted the Unnamed Movants'

arguments          distinguishing       between     coordinated     express      advocacy

and coordinated issue advocacy, the Special Prosecutor raised

the   issue         of   coordinated     express      advocacy     in    his    court    of

appeals       petition      for    supervisory        writ.      This    court    granted

bypass to review the issue.81

       ¶143 The          legal     arguments        and   evidence        the     Special

Prosecutor presented to the John Doe Judge and to this court

provide "reason to believe" a crime was committed by coordinated

express       advocacy.          The   Special      Prosecutor    need    not    prove    a

criminal           violation      at    the     inception     of        the     John    Doe

investigation and need not demonstrate probable cause at the

outset.           All that the Special Prosecutor must demonstrate is a

"reason to believe" a crime was committed.82                     He has done so.


       79
            Majority op., ¶34.
       80
            Majority op., ¶34.
       81
       See December 16, 2014 order granting review on the issue
of express advocacy, #10.
       82
       State ex rel. Reimann v. Circuit Court, 214 Wis. 2d 605,
623, 571 N.W.2d 385 (1997) (citing Wis. Stat. § 968.26).


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       ¶144 Accordingly, reconsideration should be granted and the

investigation into coordinated express advocacy should continue.

       6.     The per curiam constructs the "clear and hold" mandate

         in a factual vacuum and the mandate will require further

        clarification.      Indeed the Unnamed Movants do not agree in

       their recommendations to the court about the disposition of

                                      the materials.

       ¶145 The per curiam's "clear and hold" mandate is built on

a shaky foundation.           It will not hold up under the stress of

implementation.       The per curiam constructs its new mandate out

of    whole   cloth   by    piecing        together    information       about      what

investigative       materials       exist     and    their    location      from     the

parties' filings, without any guarantee that these facts and

arguments     are   correct     or    exhaustive.          Simply   put,     the    four

justices do not have the facts.                  They are writing in a factual

vacuum, issuing the per curiam mandate in the dark.

       ¶146 The per curiam compounds this error by crafting its

new mandate without notice to the parties and without giving
them    an    opportunity      to     address       what   materials       should     be

"cleared" and how they should be "held."

       ¶147 Ignoring the Special Prosecutor's admonition about the

risks of issuing an order not fully understanding the items and

materials at issue, the per curiam offers explicit instructions

for different types of materials.

       ¶148 The court does not have access to all these materials

and lacks full knowledge about each of them or their value to
the    Special   Prosecutor,         the    "prosecution     team,"    the    Unnamed

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Movants,          or    the    "universe    of    individuals"           of   which    the    per

curiam       writes.           Especially    significant            is   that   the    Unnamed

Movants do not agree in their recommendations to the court about

what should be done with different kinds of materials.                                 Parties

on both sides of the "v." disagree about the materials involved.

       ¶149 Given             this   disagreement       and    uncertainty        about       the

materials involved, it is likely that the per curiam's "clear

and hold" mandate, like the July 16, 2015 majority opinion's

"search       and       destroy"     mandate,     cannot       be    implemented       without

further interpretation, clarification, and modification.

            7.         The per curiam is unclear about whom it binds.

       ¶150 The per curiam imposes obligations not only on the

Special Prosecutor but also on unnamed persons, including the

undefined "prosecution team."83                   As I have stated previously, the

per    curiam          uses    the   undefined        phrase   "prosecution           team"   32

times.        To what extent does the majority opinion or per curiam

bind anyone other than the two Unnamed Movants who filed the

original action or the eight Unnamed Movants and the Special
Prosecutor?             Not clear!84

  8.        The per curiam ignores the Special Prosecutor's argument

that evidence obtained through the subpoenas and search warrants

       83
            See, e.g., per curiam, ¶¶31-32, 34, 36.
       84
        The original action was brought by Two Unnamed Movants.
A question arises whether the Special Prosecutor's investigation
of individuals and organizations that are not parties to the
original action is affected by the majority opinion and per
curiam.    See my concurrence/dissent to the majority op., ¶352
n.11; Madison Teachers, Inc. v. Walker, 2013 WI 91, ¶20, 351
Wis. 2d 237, 839 N.W.2d 388 (limiting the scope of a judgment).


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   should be retained under the good faith exception in Fourth

                      Amendment suppression jurisprudence.

     ¶151 The          per   curiam     recognizes      that     the      Special

Prosecutor's authority was intact when the subpoenas and search

warrants were issued.85           The subpoenas and search warrants were

based     on    the    campaign   finance     laws   existing   at     that   time

regulating coordinated advocacy.86

     ¶152 The          per   curiam    does    not    address    the      Special

Prosecutor's reliance on the "good faith exception" in Fourth

Amendment suppression jurisprudence to support retention of John

Doe evidence that need not be suppressed in subsequent criminal

proceedings.

        9.      The per curiam leaves many foreseeable questions

                                   unanswered.

     ¶153 Some of the foreseeable but unanswered questions are

as follows:

  • How will the parties and interested non-parties be able to

     access the materials to be maintained under seal by the
     Clerk of the Supreme Court?87

  • At least one federal civil rights lawsuit arising out of

     the John Doe investigations is currently pending and others



     85
          Per curiam, ¶13.
     86
       See, e.g., Wis. Coalition for Voter Participation, Inc.
v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct.
App. 1999); Wis. El. Bd. Op. 00-2 (reaffirmed Mar. 26, 2008).
     87
          Per curiam, ¶38.


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    will likely be filed in the future.88                  How will the court

    address the interests of persons involved in these lawsuits

    if they seek access to or use of these materials?                             Will

    these materials be preserved until the applicable statutes

    of     limitations     have    run?        What   effect,    if   any,   do    the

    recent statutory revisions to the John Doe statutes have on

    these questions?89

  • What continuing authority, if any, do the two John Doe

    Judges have?         May materials continue to be filed before the

    John       Doe   Judges   or   only    in    this   court?        What   is   the

    authority of the John Doe Judge over materials, including

    motions, filed with the John Doe Judge after the records

    were sent to this court in January 2015?90                   May the John Doe

    judge continue to issue orders authorizing the release of

    88
         See, e.g.,      Archer v. Chisholm, No. 15-cv-922-LA (E.D.
Wis.).

     The authority of the Government Accountability Board is
also being challenged in a proceeding arising out of these
investigations.   See O'Keefe v. Wis. Gov't Accountability Bd.,
No. 2014CV1139 (Waukesha Cnty. Cir. Ct.).
    89
         See Wis. Stat. § 968.26(1b)(b).
    90
       Records filed with the John Doe Judge after the records
were transmitted to this court in January 2015 were ordinarily
not transmitted to this court. For example, a motion was filed
by Unnamed Movants with the John Doe Judge on July 17, 2015 (the
day after the majority opinion was released) seeking relief from
the John Doe Judge.    The motion included confidential material
that Waukesha County Circuit Court Judge Lee Dreyfus (presiding
in O'Keefe v. Wisconsin Government Accountability Board, No.
2014CV1139 (Waukesha Cnty. Cir. Ct.)) apparently authorized to
be released to the John Doe Judge.    This confidential material
has been filed under seal in this court.


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      materials          seized      in   the     investigations           for    use    in   the

      defense of pending lawsuits?                         What effect, if any, do the

      recent statutory revisions to the John Doe statutes have on

      these questions?91

  • To what extent does the majority opinion or per curiam bind

      anyone other than the two Unnamed Movants who filed the

      original          action     or     the    eight       Unnamed    Movants         and   the

      Special Prosecutor?

  • What          is     the   significance           of     the     secrecy      and     record

      inspection provisions of Wis. Stat. § 968.26(3) (2013-14)

      in these proceedings?

  • How          will    the   court      address      present       and     future      matters

      before the court (of which there are many) in the absence

      of any representation for the prosecution and State?

      ¶154 These           questions        are       not     merely       hypothetical        or

conjectural;            they   are    immediately           relevant    to       the    majority

opinion, the per curiam, and motions and other filings currently

pending before the court.                 The per curiam's attempts to resolve
issues      are    piecemeal,        superficial,           and     temporary.          The   per

curiam      ensures       that    the     John       Doe    trilogy    will       continue     to

dominate the court's work immediately and for a long time to

come.

      ¶155 I            repeat,      in     response           to      the       motion       for

reconsideration, the per curiam significantly modifies the July

16,     2015      majority        opinion       by    creative        writing      devoid      of


      91
           See Wis. Stat. § 968.26(1b)(b).


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supporting legal authority.            Furthermore, events subsequent to

the motion for reconsideration have overtaken the per curiam.

In   sum,    the   per    curiam   embraces   confusing    and   conflicting

positions,     all       the   while   leaving   many     important   issues

unresolved, including those posed by events subsequent to the

motion for reconsideration.

      ¶156 For the reasons set forth, I concur in part, dissent

in part, and write separately.




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      ATTACHMENT A: All Sealed Filings After 7/16/15




                                1
           Party or              Document               Date
            Sender                                     Filed
   1.  Special            Motion              for    8/4/15
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W   & 2013AP2508-W.ssa
       Prosecutor         reconsideration,
                          stay,                or
                          clarification        of
                          mandate
   2.  Unnamed Movant Letter to court                8/6/15
       2
   3.  Unnamed Movant Letter         to    Chief     8/7/15
       2                  Justice
   4.  Chief Justice      E-mail exchange            8/7/15
   5.  Unnamed Movant Letter         to    Chief     8/7/15
       7                  Justice
   6.  Judge        Neal Letter      to    Chief     8/10/15
       Nettesheim         Justice
   7.  Unnamed            Letter     to    Chief     8/10/15
       Movants 4 and Justice
       5
   8.  Unnamed Movant Letter         to    Chief     8/10/15
       7 (joined by Justice
       Unnamed Movant
       2)
   9.  Special            Letter to Supreme          8/11/15
       Prosecutor         Court Clerk
  10. Unnamed Movant E-mail          to    Chief     8/12/15
       2                  Justice
  11. Judge Gregory E-mail to counsel                8/12/15
       Peterson           for Unnamed Movant
                          2
  12. Judge         Neal E-mail      to    Chief     8/12/15
       Nettesheim         Justice
  13. Unnamed Movant Response to motion              8/13/15
       1                  for reconsideration
  14. Judge         Neal E-mail      to    Chief     8/13/15
       Nettesheim         Justice
  15. Special             Letter to Justices         8/14/15
       Prosecutor         of Supreme Court
  16. Unnamed Movant Letter to Justices              8/14/15
       7                  of Supreme Court
  17. Unnamed             Response to motion         8/14/15
       Movants 2, 3, for reconsideration
       6, 7, & 8
  18. Unnamed             Response to motion         8/14/15
       Movants 4 & 5      for reconsideration
  19. Investigators       Motion for limited         8/19/15
                          intervention
  20. Special             Motion    to    strike     8/25/15
       Prosecutor         portions of Unnamed
                          Movants 2, 3, 6, 7,
                          & 8's response to
                          the     motion      for
                          reconsideration or,
                             2
                          alternatively,      for
                          leave to file a
                          reply
  21. Unnamed Movant Response to motion              8/28/15
No.   2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2508-W.ssa


                       ATTACHMENT B




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                       ATTACHMENT C




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                       ATTACHMENT D




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                       ATTACHMENT E




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