                                                                2015 WI 85

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:           2013AP296-OA & 2014AP417-W through 2014AP421-W &
                    2013AP2504-W through 2013AP2508-W
COMPLETE TITLE:     State of Wisconsin ex rel. Two Unnamed Petitioners,
                              Petitioner,
                         v.
                    The Honorable Gregory A. Peterson, John Doe Judge and
                    Francis D. Schmitz, Special Prosecutor,
                              Respondents.

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

                    State of Wisconsin ex rel. Francis D. Schmitz,
                              Petitioner,
                         v.
                    Honorable Gregory A. Peterson, John Doe Judge,
                              Respondent,
                    Eight Unnamed Movants,
                              Interested Party.

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

                    In the Matter of John Doe Proceeding

                    State of Wisconsin ex rel. Three Unnamed Petitioners,
                              Petitioner,
                         v.
                    the Honorable Gregory A. Peterson, John Doe judge,
                    the Honorable Gregory Potter, Chief Judge and
                    Francis D. Schmitz, as Special Prosecutor,
                              Respondents.

                                          ORIGINAL ACTION
                     ------------------------------------------------------
                    PETITION FOR SUPERVISORY WRIT BEFORE THE SUPREME COURT,
                       APPEAL AND BYPASS TO THE SUPREME COURT FROM CIRCUIT
                                            COURT ORDER
                    -------------------------------------------------------
                           PETITION FOR REVIEW BEFORE THE SUPREME COURT

OPINION FILED:      July 16, 2015
SUBMITTED ON
BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
  COURT:            Circuit
  COUNTY:           Milwaukee, Iowa, Dodge, Dane and Columbia
  JUDGE:                 Gregory A. Peterson (Reserve)

JUSTICES:
  CONCURRED:      PROSSER, J., ROGGENSACK, C.J. (joining Sections IV and
                  V), ZIEGLER, J. (joining Section IV) and GABLEMAN, J.
                  (joining Section IV) concur (Opinion filed).
                  ZIEGLER, J. concurs (Opinion filed).
  CONCUR/DISSENT: ABRAHAMSON, J. concurs and dissents (Opinion filed).
                  CROOKS, J. concurs and dissents (Opinion filed).
  DISSENTED:
  NOT
  PARTICIPATING:         BRADLEY, J., did not participate.

ATTORNEYS:
       For         the     Petitioners    (case     nos.     2013AP2504-W      through
2013AP2508-W and 2014AP296-OA) and Interested Parties (case nos.
2014AP417-W through 2014AP421-W) there were briefs by Attorney
Dean A. Strang, StrangBradley, LLC, Madison; Attorney Steven M.
Biskupic and Attorney Michelle L. Jacobs, Biskupic & Jacobs,
S.C., Mequon; Attorney Dennis P. Coffey, Mawicke & Goisman, SC,
Milwaukee;          Attorney    Matthew    W.    O’Neill,    Fox   O’Neill     Shannon,
S.C.,        Milwaukee;       Attorney    James    B.    Barton,    Hansen     Reynolds
Dickinson          Crueger     LLC,   Milwaukee;     Attorney      Eric   J.   Wilson,
Godfrey        &    Kahn,     S.C.,   Madison;     and     Attorney   Jeffrey    James
Morgan, LeBell, Dobrowski & Morgan, LLP, Milwaukee.


       For         the     Respondents    (case     nos.     2013AP2504-W      through
2013AP2508-W, 2014AP417-W through 2014AP421-W and 2014AP296-OA)
there were briefs by Assistant Attorney General David C. Rice,
with whom on the briefs was Attorney General J. B. Van Hollen
(term of office ending December 31, 2014) and Attorney General
Brad Schimel (term of office commencing January 1, 2015) and
Special Prosecutor Francis D. Schmitz (Petitioner in case nos.
2014AP417-W through 2014AP421-W), Milwaukee.


       Amici Curiae briefs were filed by Attorney Benjamin T. Barr
(pro hac vice), Cheyenne, WY and Attorney Stephen R. Klein (pro
hac vice), Cheyenne, WY on behalf of the Wyoming Liberty Group

                                             2
with whom on the brief was Attorney Matthew M. Fernholz and
Cramer, Multhauf & Hammes, LLP, Waukesha; Attorney James Bopp,
Jr., Terre Haute, IN, on behalf of the James Madison Center for
Free Speech and on behalf of Wisconsin Right to Life, Inc. with
whom on the briefs was Attorney Michael D. Dean and Michael D.
Dean, LLC, Brookfield; Attorney James R. Troupis and Troupis Law
Office, LLC, Cross Plains, on behalf of the Ethics and Public
Policy     Center;        Attorney    Adam       J.    White    (pro     hac     vice),
Washington, D.C. and Boyden Gray & Associates, Washington, D.C.,
on behalf of Former Members of the Federal Election Commission
Lee Ann Elliot, David Mason, Hans von Spakovsky and Darryl Wold
with   whom    on    the    brief    were    Attorney     James    R.    Troupis    and
Attorney      Paul   M.     Ferguson,    Cross        Plains;   Attorney       Jonathan
Becker, Attorney Nathan W. Judnic and Attorney Kevin J. Kennedy
on   behalf    of    the    Wisconsin       Government     Accountability        Board,
Madison; Attorney Richard M. Esenberg, Attorney Brian W. McGrath
and the Wisconsin Institute for Law & Liberty, Milwaukee, on
behalf   of    The   Hon.    Bradley    A.      Smith,   Center    for    Competitive
Politics, and Wisconsin Family Action; Attorney J. Gerald Hebert
(pro hac vice), Attorney Tara Malloy (pro hac vice), Attorney
Paul S. Ryan (pro hac vice), Attorney Megan P. McAllen (pro hac
vice) and The Campaign Legal Center, Washington D.C., Attorney
Fred Wertheimer (pro hac vice) and Democracy 21, Washington,
D.C. and Attorney Donald J. Simon (pro hac vice) and Sonosky,
Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C. on
behalf of Campaign Legal Center, Democracy 21, Common Cause in
Wisconsin and League of Women Voters of Wisconsin with whom on
the brief was Attorney Susan M. Crawford and Cullen Weston Pines
& Bach LLP, Madison; Attorney David B. Rivkin, Jr. (pro hac
vice), Attorney Lee A. Casey (pro hac vice), Attorney Mark W.
Delaquil (pro hac vice), Attorney Andrew M. Grossman (pro hac
vice), Attorney Richard B. Raile (pro hac vice) and Baker &
Hostetler     LLP,    Washington,       D.C.     on    behalf     of    Citizens   for
Responsible Government Advocates, Inc. with whom on the brief
                                            3
was Attorney Christopher M. Meuler and Friebert Finerty & St.
John, S.C., Milwaukee; Attorney Matthew Menendez (pro hac vice),
Attorney Daniel I. Weiner (pro hac vice), Attorney Alicia L.
Bannon (pro hac vice) and Brennan Center for Justice at NYU
School of Law on behalf of Professors of Legal Ethics, with whom
on the brief was Attorney Thomas R. Cannon, Milwaukee.




                                4
                                                                           2015 WI 85
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No. 2014AP296-OA & 2014AP417-W through 2014AP421-W &
2013AP2504-W through 2013AP2508-W
(L.C. No.   2013JD11 & 2013JD9 & 2013JD6 & 2013JD1 & 2012JD23)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin ex rel. Two Unnamed
Petitioners,

            Petitioner,

      v.                                                             FILED
The Honorable Gregory A. Peterson, John Doe                     JUL 16, 2015
Judge and
                                                                   Diane M. Fremgen
Francis D. Schmitz, Special Prosecutor,                         Clerk of Supreme Court


            Respondents.




State of Wisconsin ex rel. Francis D. Schmitz,

            Petitioner,

      v.

Honorable Gregory A. Peterson, John Doe Judge,

            Respondent,

Eight Unnamed Movants,

            Interested Party.




In the Matter of John Doe Proceeding
State of Wisconsin ex rel. Three Unnamed
Petitioners,

            Petitioner,

      v.

the Honorable Gregory A. Peterson, John Doe
judge,

the Honorable Gregory Potter, Chief Judge and

Francis D. Schmitz, as Special Prosecutor,

            Respondents.




      ORIGINAL ACTION for declaratory judgment.                 Declaration of

rights; relief granted; John Doe investigation ordered closed.

      PETITION for supervisory writ and appeal from an order of a

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

Dane County, and Columbia County, Gregory A. Peterson, Reserve
Judge.     Petition for supervisory writ denied and order affirmed.

      PETITION for supervisory writ and review of a decision of

the Court of Appeals.       Petition for supervisory writ denied and

decision affirmed.



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

John Doe proceeding originally initiated in Milwaukee County,

and   subsequently    expanded   to    four     additional      counties,   Iowa



                                       2
  No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                      2013AP2508-W


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

not   consolidated,             these   proceedings           have       been   overseen    by   a

single       John       Doe     judge   and    organized            by     a    single    special

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

refer        to    all        five   proceedings             as    a      single    "John     Doe

investigation."               The investigation has been ongoing for several

years and has been the subject of much litigation. 1

        ¶2        According to the special prosecutor, the purpose of

the   John        Doe    investigation        is       to   root    out    allegedly      illegal

campaign coordination between certain issue advocacy groups and

a candidate for elective office.                        To further the investigation,

the     special          prosecutor      sought,            and    received,       wide-ranging

subpoenas          and     search       warrants            for    29     organizations       and

individuals, seeking millions of documents that had been created

over a period of several years.                          Various targets (collectively

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

subpoenas and search warrants and to return any property seized

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

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

the   return        of    all    property      seized.             Reserve      Judge    Peterson

        1
       We have granted the amicus briefs on the merits filed by:
Wisconsin Right to Life; Citizens for Responsible Government
Advocates, Inc.; The Wisconsin Government Accountability Board;
The Honorable Bradley A. Smith, Center for Competitive Politics,
and Wisconsin Family Action; Campaign Legal Center, Democracy
21, Common Cause in Wisconsin, and League of Women Voters of
Wisconsin; Former Federal Election Commission Members Lee Ann
Elliott, David Mason, Hans von Spakovsky, and Darryl Wold; and
Wyoming Liberty Group.


                                                   3
  No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                      2013AP2508-W


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

investigation pending our resolution of the cases before us.

        ¶3      The    first     case     we   address       is     an    original      action

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

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

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

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

Wisconsin       law.      Specifically,          they   ask       that    we    declare     that

coordinated issue advocacy of the kind alleged by the special

prosecutor is not regulated under Wis. Stat. Ch. 11 (2011-12), 2
Wisconsin's campaign finance law.

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

special       prosecutor        for   a   supervisory        writ       and    an    appeal    of

Reserve        Judge     Peterson's       decision       and       order        quashing      the

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

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

Reserve       Judge     Peterson      improperly        quashed      the       subpoenas      and

search        warrants         because     the       records       in      the       John     Doe

investigation          establish      a   reasonable       belief        that    the   Unnamed

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

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

of appeals pursuant to Wis. Stat. § 809.60 (2013-14).
        ¶5      The    third     case     we     address      is    a     petition      for     a

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

        2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                               4
  No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                      2013AP2508-W


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

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

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

broadly challenges whether the John Doe investigation can be

initiated         in     five    separate       counties         under   a    single      John   Doe

judge,        and       whether      the       special         prosecutor       was        properly

appointed.             The court of appeals denied the supervisory writ and

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

court.
        ¶6        Our order granting and consolidating 3 each of these

cases identified 14 issues presented by the complex nature of

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

John Doe investigation, as well as whether the conduct alleged

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

Subsequent briefing by the parties has revealed that the cases

can be resolved on much narrower grounds than those that were

originally             submitted,        and     we       have      written     this        opinion

accordingly.

        ¶7        We    can     resolve        the       original    action,        Two    Unnamed
Petitioners,             by      first      examining            whether       the        statutory

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

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



        3
       In our December 16, 2014, grant order we consolidated the
cases for the purpose of briefing and oral argument.          We
subsequently consolidated these three cases into one opinion
because each case arises out of the same facts.


                                                     5
     No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                         2013AP2508-W


and    (16)         are    limited    to    express         advocacy 4    or     whether    they

encompass the conduct of coordination between a candidate or a

campaign committee and an independent organization that engages

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

advocacy            coordination,          what        then       constitutes      prohibited

"coordination?" 5

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

Schmitz v. Peterson by answering whether the evidence gathered
in the John Doe proceedings provides a reasonable belief that

Wisconsin            law     was     violated          by     a     campaign      committee's

coordination              with     independent         advocacy       organizations         that

engaged in express advocacy. 6

           ¶9      Finally, we can resolve the supervisory writ petition

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

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

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

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

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

violated a plain legal duty in appointing reserve judge, Gregory

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


           4
       Express advocacy is a communication that expressly
advocates for the election or defeat of a clearly identified
candidate.
           5
               This is issue seven from our December 16, 2014, grant
order.
           6
               This is issue ten from our December 16, 2014, grant order.


                                                  6
  No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                      2013AP2508-W


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

violated a plain legal duty by convening a John Doe proceeding

over        multiple     counties,        which        is        then    coordinated         by     the

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

judge       violated      a    plain      legal       duty       by     appointing       a     special

prosecutor to perform the functions of a district attorney in

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

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

of the nine grounds for appointing a special prosecutor under

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

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

to continue the investigation or prosecution of any potential

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

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

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

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

special prosecutor in the John Doe proceedings at issue in these

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

competency          of        the    special          prosecutor              to   conduct          the

investigation;           or    the     competency           of    the     John     Doe    judge      to

conduct these proceedings? 7

                                          I. HOLDINGS

                                                A.



        7
       These are issues one through five from our December 16,
2014, grant order.


                                                  7
  No.       2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                     2013AP2508-W


        ¶10    In   Two     Unnamed    Petitioners,      we   hold     that     the

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

unconstitutionally overbroad and vague under the First Amendment

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

the Wisconsin Constitution 8 because its language "'is so sweeping

that its sanctions may be applied to constitutionally protected

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

v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting
Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533

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

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

otherwise       protected    speech;       namely,   "political    purposes"    is

limited to express advocacy and its functional equivalent 9 as

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

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

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

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

of the Unnamed Movants.            The special prosecutor has not alleged

        8
       See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶23 n.9,
358 Wis. 2d 1, 851 N.W.2d 337, reconsideration denied, 2015 WI
1, 360 Wis. 2d 178, 857 N.W.2d 620 (concluding that the freedom
of speech rights protected under the Wisconsin and United States
Constitutions are coextensive.)    See also Kenosha Co. v. C&S
Management, Inc., 223 Wis. 2d 373, 389, 588 N.W.2d 236 (1999).
        9
       The functional equivalent of express advocacy occurs when
the "'ad is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.'"
Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 820 (7th Cir.
2014) (Barland II) (citing Fed. Election Comm'n v. Wis. Right to
Life, Inc., 551 U.S. 449, 469-70 (2007) (WRTL II)).


                                            8
  No.     2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                   2013AP2508-W


any express advocacy, and issue advocacy, whether coordinated or

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

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

Accordingly, we invalidate the special prosecutor's theory of

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

Movants.

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

investigation because the special prosecutor's legal theory is

unsupported        in     either       reason       or    law.        Consequently,           the

investigation is closed.                   Consistent with our decision and the

order    entered        by    Reserve       Judge   Peterson,        we    order       that   the

special prosecutor and the district attorneys involved in this

investigation           must     cease        all    activities           related       to    the

investigation, return all property seized in the investigation

from any individual or organization, and permanently destroy all

copies of information and other materials obtained through the

investigation.           All Unnamed Movants are relieved of any duty to

cooperate further with the investigation.

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

prosecutor     has       failed       to    prove     that    Reserve          Judge    Peterson

violated a plain legal duty when he quashed the subpoenas and

search warrants and ordered the return of all property seized by

the special prosecutor.                    In quashing the subpoenas and search

warrants, Reserve Judge Peterson exercised his discretion under

the   John    Doe    statute,         Wis.    Stat.      § 968.26,        to    determine     the


                                                9
  No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                      2013AP2508-W


extent        of    the     investigation.         Because     the   purpose    of   a

supervisory          writ      does    not    include     review     of   a    judge's

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

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

the supervisory writ sought by the special prosecutor is denied,

and Reserve Judge Peterson's order is affirmed.

                                             C.

        ¶13     Finally, in Three Unnamed Petitioners, we hold that
the Unnamed Movants have failed to prove that either Reserve

Judge Kluka or Reserve Judge Peterson violated a plain legal

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

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

a special prosecutor.                 Although the circumstances surrounding

the     formation         of   the    John   Doe   investigation      raise    serious

concerns, and although the appointment of the special prosecutor

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

stringent preconditions for a supervisory writ. 10                        Put another

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

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

alternative to the appellate review process," which we cannot

do.     Id.        Accordingly, we deny the supervisory writ and affirm
the decision of the court of appeals.




        10
             See infra Section V.


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  No.        2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                      2013AP2508-W


              II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 11        12


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

I) was commenced for the purpose of investigating the alleged

misuse of public resources in the Milwaukee County Executive's

Office.         This investigation resulted in criminal charges being

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

Kelly Rindfleisch, and Darlene Wink——in January 2012. 13

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

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

2012, Milwaukee County Assistant District Attorney David Robles

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

        11
       In setting forth the facts, we respect the terms of the
secrecy order issued by Reserve Judge Kluka and thus our
majority opinion will set forth only the facts necessary for our
resolution of this case.      See State ex rel. Niedziejko v.
Coffey, 22 Wis. 2d 392, 398, 126 N.W.2d 96 (1964). However, we
can interpret the secrecy order and modify it to the extent
necessary for the public to understand our decision herein. If
a fact is necessary to include in order to render explicable a
justice's analysis of an issue presented, it is not precluded by
the secrecy order.     We do not discuss the identity of the
Unnamed Movants or the specific allegations against them.     We
do, however, discuss the actions of the prosecutors and the
judges involved.
        12
       We recognize that in the ordinary case our procedural
background would not be given with such exacting precision.
Conversely, we recognize that in the ordinary case without a
secrecy order, our factual background would be more precise, in
that we would, among other things, identify the parties.     Be
that as it may, in the interest of as much transparency as
possible we set forth as many of the facts as we can.
        13
       Records from John Doe I have been released to the public
by the original John Doe judge and are no longer subject to any
secrecy order.


                                         11
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                                                                      2013AP2508-W


Milwaukee County circuit court.                    This petition sought leave to

investigate alleged campaign finance violations under Wis. Stat.

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

in anticipation that documents would be sought from the targeted

individuals.            In    support   of    his        request,     Robles'    petition

referred to an affidavit by Investigator Robert Stelter.

        ¶16     Stelter's affidavit indicates that emails obtained in

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

may     have     been    coordination        of    fundraising        between    campaign

committees and other related, independent groups.                         Reserve Judge

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

information obtained in John Doe I for the purpose of requesting

the commencement of John Doe II.

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

Judicial District, Jeffrey Kremers, assigned and forwarded the

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

using a form titled "Application and Order for Specific Judicial

Assignment," Director of State Courts John Voelker (with then-

Chief        Justice    Shirley      Abrahamson's           name     directly     above) 14

assigned       Reserve       Judge   Kluka    to        preside    over   the   John   Doe

proceeding in Milwaukee County.                     That same day, Reserve Judge

Kluka authorized the commencement of the John Doe proceeding and

also granted the requested secrecy order.


        14
       The actual text of the assignment orders read: "Shirley
Abrahamson Chief Justice By: Electronically signed by [sic] A.
John Voelker, Director of State Courts."


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  No.     2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                   2013AP2508-W


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

affidavit       in    support      of     a   request       for    search     warrants      and

subpoenas.           The     request      covered       a    wide     swath    of       desired

information, including emails, conference call records, and bank

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

Investigator Stelter provided details of numerous emails between

a candidate committee and individuals and/or groups.

        ¶19    On    December       13,       2012,    Investigator         Stelter      filed

another affidavit in support of a request for further search

warrants       and    subpoenas.          This       affidavit      provided     additional

details about the parties and how they operated in coordination

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

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

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

independent groups became mere subcommittees of the candidate's

committee, thus triggering reporting and disclosure requirements

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

advocacy amounted to an unlawful in-kind contribution to the

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

        ¶20    On     January      18,        2013,    Milwaukee        County       District

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

Hollen to discuss the ongoing investigation.                           District Attorney

Chisholm sought to determine whether, given the statewide nature

and   gravity        of    the   investigation,         the       Department    of      Justice

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

General       Van    Hollen      sent   District       Attorney       Chisholm      a   letter


                                                13
  No.     2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through
                                                                   2013AP2508-W


declining       DOJ    involvement         in        the     investigation.            Attorney

General       Van     Hollen     cited,         among        other       things,      potential

conflicts of interest and the appearance of impropriety.

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

Doe proceedings were filed: District Attorney Jane Kohlwey filed

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

District Attorney Larry Nelson filed a petition in Iowa County

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

Klomberg filed a petition in Dodge County circuit court on July

26, 2013.

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

and Order for Specific Judicial Assignment," Director Voelker

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

above) assigned Reserve Judge Kluka to preside over the Iowa

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

Kluka entered an order commencing the John Doe proceeding in

Iowa County and also entered a secrecy order.

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

"Application          and    Order     for      Specific          Judicial       Assignment,"

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

name directly above) assigned Reserve Judge Kluka to preside

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

Reserve Judge Kluka entered an order commencing the Dodge County

John Doe proceeding and also entered a secrecy order.

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

and Order for Specific Judicial Assignment," Director Voelker


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

above) assigned Reserve Judge Kluka to preside over the Columbia

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

Kluka entered an order commencing the John Doe proceeding and

also entered a secrecy order.

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

Ismael Ozanne filed a petition in Dane County circuit court to

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

form     titled      "Application      and    Order     for    Specific       Judicial

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

Abrahamson's name directly above) assigned Reserve Judge Kluka

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

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

Dane    County      John   Doe   proceeding     and    also    entered    a    secrecy

order.

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

all five counties sent a joint letter to Reserve Judge Kluka

requesting the appointment of a special prosecutor to oversee

the    entire      investigation.       The    District    Attorneys      encouraged

Reserve Judge Kluka to appoint a special prosecutor on her own

motion and in the exercise of her inherent authority.                            Their

letter expressed concerns that it would be inefficient for five

district attorneys to handle one investigation and that there

may be a perception of bias given their partisan affiliations.

The letter recommended Francis Schmitz for the position.




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        ¶27   On        August   23,    2013,     Reserve     Judge      Kluka     entered

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

appointing         Francis       Schmitz        as    special       prosecutor           with

jurisdiction across the five counties.                      Mirroring the District

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

the basis of her appointment, concerns of efficiency and the

appearance         of     impropriety.          Reserve     Judge     Kluka   made       the

appointment pursuant to her purported "authority" under State v.
Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, as

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

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

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

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

Administration.

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

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

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

Investigator Stelter.               These subpoenas compelled production of

documents     evidencing         the    conduct      of   coordination        among      the

subpoenaed parties and a candidate committee, particularly the

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

Reserve Judge Kluka authorized search warrants for the homes and

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

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

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

floodlights were used to illuminate the targets' homes.


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        ¶29    The    breadth     of    the    documents       gathered       pursuant    to

subpoenas and seized pursuant to search warrants is amazing.

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

subpoenaed          and/or    seized.     Deputies          seized    business        papers,

computer       equipment,       phones,       and    other     devices,       while    their

targets were restrained under police supervision and denied the

ability       to    contact     their   attorneys.            The    special    prosecutor

obtained       virtually        every   document       possessed       by     the   Unnamed

Movants relating to every aspect of their lives, both personal

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

Such documents were subpoenaed and/or seized without regard to

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

part of this dragnet, the special prosecutor also had seized

wholly        irrelevant       information,          such     as     retirement       income

statements,          personal    financial         account     information,         personal

letters, and family photos.

        ¶30    Motions to quash the subpoenas were filed by Unnamed

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

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

on the motions, Reserve Judge Kluka recused herself from the

Milwaukee          County     proceeding,          citing      only     an     unspecified

"conflict."          The Milwaukee County proceeding was reassigned by

Chief Judge Kremers to Reserve Judge Gregory Peterson on October

29, 2013.

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

disqualified herself from the remaining John Doe proceedings.


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On November 1, 2013, Chief Judge Potter of the Sixth Judicial

District assigned Reserve Judge Peterson to preside over the

John Doe proceedings in Columbia County and Dodge County.                             On

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

District assigned Reserve Judge Peterson to preside over the

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

Judge    Daley      of    the    Fifth      Judicial   District    assigned       Reserve

Judge Peterson to preside over the John Doe proceeding in Dane

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

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

assigned Reserve Judge Peterson to preside over the Milwaukee

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

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

directly above) assigned Reserve Judge Peterson to preside over

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

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

Shirley Abrahamson's name directly above) assigned Reserve Judge

Peterson to preside over the John Doe proceedings in Columbia

County and Dodge County.

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

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

writs of mandamus and prohibition directed at Reserve Judges

Kluka and Peterson (Three Unnamed Petitioners).                            The Unnamed

Movants alleged procedural defects involving the appointment of

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

and   the     appointment        of   the    special    prosecutor.        The    Unnamed


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Movants       asked    the      court    of    appeals        to   declare      the    John    Doe

investigation void ab initio.

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

appeals summarily dismissed what it deemed the Unnamed Movants'

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

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

John Doe proceeding, and that the John Doe judge circumvented

the statutory functions of the clerks of court in five counties

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

Three Unnamed Petitioners, Nos. 2013AP2504-W-2508-W, unpublished
order 6-7 (Wis. Ct. App. Nov. 22, 2013).                             Regarding the first

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

that limits the ability of reserve judges to oversee John Doe

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

the     statute       authorizing        the       appointment        of    reserve       judges

explicitly states that reserve judges "shall perform the same

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

The   court     of     appeals        ordered      the    respondents       to     address     the

remaining claims concerning the legality of a multi-county John

Doe proceeding, the legality of a special prosecutor handling a

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

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

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

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

circuit       court       on    December      4,     2013,     for   the     return      of    the


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property taken pursuant to the October 1 search warrant.                    On

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

similar petition in Dane County circuit court.             After a response

by the special prosecutor, Reserve Judge Peterson granted the

motions    to   quash   the   subpoenas    and   the   petitions   to   return

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

        I conclude the subpoenas do not show probable cause
        that the moving parties committed any violations of
        the campaign finance laws.        I am persuaded the
        statutes only prohibit coordination by candidates and
        independent organizations for a political purpose, and
        political purpose, with one minor exception not
        relevant here . . . requires express advocacy.   There
        is no evidence of express advocacy.

        . . .

        Before there is coordination there must be political
        purposes; without political purposes, coordination is
        not a crime.

        . . .

        As relevant here, acts are for political purposes when
        they are made to influence the recall or retention of
        a person holding office. Wis. Stat. § 11.01(16). If
        the statute stopped here, the definition of political
        purposes might well be unconstitutionally vague.
        Buckley v. Valeo, 424 U.S. 1, 77 (1976).       But the
        definition continues: acts for political purposes
        include,    but   are  not   limited   to,   making    a
        communication that expressly advocates the recall or
        retention of a clearly identified candidate.        Wis.
        Stat. § 11.01(16)(a).   In GAB 1.28, the GAB attempted
        to flesh out other acts that would constitute
        political purposes, but because of constitutional
        challenges it has stated it will not enforce that
        regulation.     So the only clearly defined political
        purpose is one that requires express advocacy.

        The state is not claiming that any of the independent
        organizations expressly advocated.    Therefore, the

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          subpoenas fail to show probable cause that a crime was
          committed.
          ¶35   As for the search warrants executed on the homes and

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

reasoned:

          The same legal conclusions should apply to all parties
          who have raised challenges in this case.    Therefore,
          for the reasons stated above regarding the limitations
          in the scope of the campaign finance laws, I conclude
          that the warrants lack probable cause.
          ¶36   The special prosecutor requested a stay of the order,

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

the    stay,       Reserve   Judge   Peterson       also    clarified    that    he    was

incorrect in stating that the probable cause standard applied to

subpoenas.          Nevertheless, he concluded that a subpoena is not

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

a   condition        of   the   stay,     Reserve   Judge    Peterson    ordered       the

State not to examine any of the property seized pursuant to

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

opinion and order in Three Unnamed Petitioners addressing the
remaining issues and denying the supervisory writ.                          Regarding

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

appeals reasoned that there were five separate proceedings in

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

hold       joint    proceedings      or     to    issue    joint   orders       in    non-

consolidated cases that share a common factual basis, raise the

same legal issue, or involve overlapping parties.                       Three Unnamed

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


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

used the same reasoning to justify the legality of a special

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

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

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

determined that the special prosecutor was appointed pursuant to

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

authority" under Cummings, not under Wis. Stat. § 978.045, the
special prosecutors statute.               Id.     On February 19, 2014, the

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

we granted on December 16, 2014.

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

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

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

of the Wisconsin Constitution 15 (Two Unnamed Petitioners).                   The

original action sought a declaration confirming the ruling of

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

special prosecutor filed a response to this petition on February

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

        15
       "The supreme court has appellate jurisdiction over all
courts and may hear original actions and proceedings.     The
supreme court may issue all writs necessary in aid of its
jurisdiction." Wis. Const. art. VII, § 3(2).

     "The supreme court limits its exercise of original
jurisdiction to exceptional cases in which a judgment by the
court significantly affects the community at large."       Wis.
Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶4, 243
Wis. 2d 512, 627 N.W.2d 807. We exercised original jurisdiction
because this case meets that test.


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           ¶39   On February 21, 2014, the special prosecutor filed a

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

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

sought the supervisory writ in order to vacate Reserve Judge

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

Peterson to enforce the subpoenas and search warrants.                   Unnamed

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

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

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

granted bypass on December 16, 2014.
           ¶40   Finally, on November 3, 2014, Unnamed Movants Nos. 6

and 7 filed a motion with Reserve Judge Peterson requesting an

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

be    ended.        Reserve     Judge   Peterson    denied   that   motion    but

concluded          that    if    appellate     courts     agreed     with     his

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

end of the John Doe investigation."




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                               III. TWO UNNAMED PETITIONERS

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

action       filed       with    the    Wisconsin          Supreme    Court.         This    case

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

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

fundamental questions regarding the scope of the government's

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

must engage in statutory interpretation of the phrase "political

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

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

conclude,          consistent        with    the     First       Amendment    of     the   United

States Constitution and Article I, Section 3 of the Wisconsin

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

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

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

express advocacy and its functional equivalent.                              This conclusion

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

the    John        Doe    investigation.             Therefore,       we     agree    with   the

Unnamed Movants and grant their requested relief.
                                     A. Standard of Review

           ¶42   Statutory interpretation is a question of law, which

this court reviews de novo.                       Covenant Healthcare Sys., Inc. v.

City        of   Wauwatosa,          2011    WI     80,    ¶21,     336    Wis. 2d 522,      800

N.W.2d 906.               In    this        case,       our      statutory    interpretation

implicates          the    constitutionality               of     specific    provisions      in




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Chapter 11, which is also a question of law which we review de

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

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

party seeking to overcome the presumption must prove the statute

unconstitutional           beyond      a    reasonable      doubt."        Id.     When   the

statute        implicates        the   exercise        of   First     Amendment      rights,

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

Id. at 370-71.            Here, the proponent is the special prosecutor.
      B. The First Amendment and the Doctrines of Vagueness and

                                           Overbreadth

                            i. First Amendment Principles

        ¶44     In    addressing           the   scope      of    Wisconsin's       campaign

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

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

democratic process.              The special prosecutor's theories implicate

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

speech, specifically, political speech.                          We therefore begin our

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

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

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

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

publish his sentiments on all subjects, being responsible for

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

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

        16
       The First Amendment is applicable to the States through
the Fourteenth Amendment.


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        ¶45    While the First Amendment protects a broad range of

speech and conduct, "there is practically universal agreement

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

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

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

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

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

use     information          to    reach    consensus         is    a    precondition       to

enlightened         self-government        and       a   necessary      means    to   protect

it."     Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339
(2010).        "In a republic [such as ours] where the people are

sovereign, the ability of the citizenry to make informed choices

among candidates for office is essential, for the identities of

those who are elected will inevitably shape the course that we

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

reflect our "profound national commitment to the principle that

debate on public issues should be uninhibited, robust, and wide-

open."        N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)

(emphasis added).
        ¶46     Our    protection      of       the      freedom   of    political     speech

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

debate on the qualifications of candidates are integral to the

operation       of     the    system       of    government        established        by   our

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

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

definition of itself; there were no limits on the sources of


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speech       and       knowledge."            Citizens    United,      558      U.S.    at     353.

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

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

unfettered            interchange        of    ideas     for   the    bringing         about     of

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

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

(1957)).

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

most urgent application precisely to the conduct of campaigns

for political office.'"                  McCutcheon v. Fed. Election Comm'n, 134
S. Ct. 1434, 1441 (2014) (quoting Monitor Patriot Co. v. Roy,

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

our    democracy            than   the   right    to     participate       in    electing       our

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

fundamental             right      and    is    afforded       the    highest          level     of

protection.              Indeed,     freedom      of     speech,     especially        political

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

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

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

the legislation imposes criminal penalties in an area permeated

by    First          Amendment     interests."          Buckley,     424     U.S.      at    40-41.
"The First Amendment does not permit laws that force speakers to

retain           a     campaign      finance          attorney,      conduct        demographic

marketing             research,      or        seek     declaratory        rulings           before

discussing the most salient political issues of our day.                                     Prolix

laws chill speech for the same reason that vague laws chill


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speech: People 'of common intelligence must necessarily guess at

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

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

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

        ¶48     However, there are certain, limited circumstances in

which the government may regulate and impose burdens upon the

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

include        disclosure       and    reporting       requirements,         as   well     as

contribution        limits      to     candidates. 17         The    justification        for

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

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

omitted).         The interest in preventing the corruption of public

officials,        however,      does     not   justify       the    regulation      of    all

political speech.            Rather, the United States Supreme Court has

drawn an important "distinction between discussion of issues and

candidates and advocacy of election or defeat of candidates."

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

that         justifies    the     regulation          of     express       advocacy      (the

prevention of quid pro quo 18 corruption) "'might not apply to'"
the regulation of issue advocacy.                          WRTL II, 551 U.S. at 471

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

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

        17
             See generally Barland II, 751 F.3d 804.
        18
       Quid pro quo is a Latin term meaning "what for whom" and
is defined as "[a]n action or thing that is exchanged for
another action or thing of more or less equal value."   Black's
Law Dictionary 1367 (9th ed. 2009).


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connection with elections, but not in connection with an effort

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

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

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

an individual who spends large sums may garner 'influence over

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

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

        ¶49    A key reason that issue advocacy is afforded greater

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

discussion, if it would fulfill its historic function in this

nation,       must   embrace     all    issues     about    which       information    is

needed or appropriate to enable the members of society to cope

with the exigencies of their period."                    Thornhill v. Alabama, 310
U.S. 88, 102 (1940).            "Discussion of issues cannot be suppressed

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

WRTL II, 551 U.S. at 474.

        ¶50    In order to give the fullest protection possible to

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

authority to regulate in this area extends only to money raised

and spent for speech that is clearly election related[, that is,
express       advocacy];     ordinary       political       speech       about    issues,

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

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

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

protected      speech,     "when    the    regulatory       scheme      reaches     beyond

candidates,          their      campaign         committees,            and      political


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parties. . . . [the]            government         may    regulate . . . only          with

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

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

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

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

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

side    of    protecting        political     speech       rather     than    suppressing

it.'").
        ¶51    To that end, "in the domain of campaign-finance law,

the First Amendment requires a heightened degree of regulatory

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

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

requirement is intended to prevent the dangerous chilling effect

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

835.      To guard against inhibiting protected political speech,

courts       use   the    overbreadth      and      vagueness    doctrines.           These

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

society from allowing unprotected speech to go unpunished is

outweighed         by   the   possibility       that     protected     speech    will    be

muted."       Janssen, 219 Wis. 2d at 372 (citation omitted).
                          ii. Overbreadth and Vagueness

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

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

to constitutionally protected conduct which the state is not

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

overbreadth doctrine "recognize[s] that broadly written statutes


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substantially          inhibiting     free    expression    should     be   open    to

attack even by a party whose own conduct remains unprotected

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

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

overbroad statutes is that such statutes provide [the government

with]     practically       unbridled       administrative       and   prosecutorial

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

certain views deemed objectionable by law enforcement."                            Id.,
¶13.          Thus,    "[o]verbroad     statutes     may   undesirably      dissuade

persons        from    exercising     their       rights   by    'chilling'      their

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

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

expression created by overbroad statutes is that, by potentially

sweeping in constitutionally protected activity, individuals and

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

prosecution.

        ¶53     When   faced   with    an    overbroad     statute,     courts     have

several options.

        First, courts may apply a limiting construction to
        rehabilitate the statute when such a narrowing and
        validating construction is readily available. Second,
        courts may cure the constitutional defect by severing
        the unconstitutional provisions of a statute and
        leaving the remainder of the legislation intact.
        Finally, courts may determine that the statute is not
        amenable to judicial limitation or severance and
        invalidate the entire statute upon a determination
        that it is unconstitutional on its face.
Stevenson, 236 Wis. 2d 86, ¶15 (internal citations omitted).




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           ¶54       Related to the overbreadth doctrine is the vagueness

doctrine, 19 which "requires legislatures to set reasonably clear

guidelines for law enforcement officials and triers of fact in

order           to   prevent    'arbitrary   and    discriminatory       enforcement.'"

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

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

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

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

as to allow the inclusion of protected speech in the prohibition

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

nature of the acts which are subject to punishment."                              Id. at
656.             "Where   First    Amendment       rights   are    involved,     an   even

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

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

implicates First Amendment rights, the statutory language must

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

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

           imping[ement] upon three first amendment values: (1)
           it does not provide individuals with fair warning of

           19
       "The problems of vagueness and overbreadth in statutes,
although raising separate problems, often arise together."
State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646,
656-57, 292 N.W.2d 807 (1980).       "Where statutes have an
overbroad sweep, just as where they are vague, 'the hazard of
loss or substantial impairment of those precious [First
Amendment] rights may be critical,' since those covered by the
statute are bound to limit their behavior to that which is
unquestionably safe."  Keyishian v. Bd. of Regents of Univ. of
State of N.Y., 385 U.S. 589, 609 (1967) (internal citation
omitted).


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        what is prohibited; (2) lacking precise or articulated
        standards, it allows for arbitrary or discriminatory
        enforcement; and (3) it causes citizens to 'forsake
        activity protected by the First Amendment for fear it
        may be prohibited.'
State v. Thiel, 183 Wis. 2d 505, 521 n.9, 515 N.W.2d 847 (1994)

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

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

need     breathing       space      to    survive,      government       may    regulate     in

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

at 811 (quotations omitted).

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

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

                      Advocacy and Its Functional Equivalent.

        ¶55     The     special      prosecutor           alleges      that    the     Unnamed

Movants        engaged         in   illegally          coordinated       issue       advocacy.

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

the     various        legal     challenges       to      his    investigation,       and   he

appears       unable     to     decide     just     how    the    Unnamed      Movants   have

broken the law. 20
        ¶56     Today, the special prosecutor alleges two theories of

illegal       coordination:         (1)    that      the    coordination       between      the

Unnamed Movants is so extensive that the supposedly independent

groups became subcommittees for the candidate's campaign under

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

        20
       The original complaint initiating John Doe II alleged
only coordinated fundraising between the Unnamed Movants.  Over
time, the theory of coordination evolved to include coordinated
issue advocacy.


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

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

as law, would require an individual to surrender his political

rights to the government and retain campaign finance attorneys

before        discussing    salient     political       issues.        See     Citizens

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

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

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

campaign       finance     law,   is   both    overbroad      and   vague     and   thus

unconstitutionally          chills     speech    because      people    "'of    common

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

differ as to its application.'"                Id. (quoting Connally, 269 U.S.
at 391).

        ¶57     However,    by    limiting     the     definition    of      "political

purposes" to express advocacy and its functional equivalent, we

ensure that all issue advocacy will remain unencumbered.                            This

limiting construction 21 allows us to protect political speech, a

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

theories of the special prosecutor and those who would rely on

overbroad and vague statutes to silence those with whom they

disagree.



        21
       Adopting a limiting construction is the only feasible
option because the statutory definition of "political purposes"
is not severable and because simply declaring the definition
unconstitutional without adopting a limiting construction would
effectively eliminate all of Wis. Stat. Ch. 11.


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   i. The Definition and Scope of "Political Purposes" in Wis.

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

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

campaign finance law "is labyrinthian and difficult to decipher

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

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

almost    any       group    that       wants   to   say       almost    anything      about   a

candidate or election to register as a political committee."

Id. at 810 (citing Wis. Right to Life, Inc. v. Paradise, 138
F.3d 1183, 1184 (7th Cir. 1998)).                             However, in analyzing the

statutes, it becomes readily apparent that the entire regulatory

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

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

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

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

more persons, permanent or temporary, which makes or accepts

contributions or makes disbursements, whether or not engaged in

activities          which    are       exclusively        political,          except   that    a

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

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

committee status under Wisconsin campaign finance law depends on

the definitions of "contributions" and "disbursements."

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

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

which states that "contribution" means

        [a] gift, subscription, loan, advance, or deposit of
        money or anything of value, except a loan of money by

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        a   commercial   lending   institution  made   by the
        institution in accordance with applicable laws and
        regulations in the ordinary course of business, made
        for political purposes. In this subdivision "anything
        of value" means a thing of merchantable value.

(emphasis     added).       The   definition   of    "disbursement"     largely
parallels the definition of "contribution," the relevant portion
of which states that a "disbursement" is

        [a] purchase, payment, distribution, loan, advance,
        deposit, or gift of money or anything of value, except
        a loan of money by a commercial lending institution
        made by the institution in accordance with applicable
        laws and regulations in the ordinary course of
        business, made for political purposes.        In this
        subdivision, "anything of value" means a thing of
        merchantable value.
Wis. Stat. § 11.01(7)(a)1 (emphasis added).               It is apparent from

the   emphasized       language   that   whether    or   not    something   is   a

contribution      or    disbursement     depends    on    the    definition      of

"political purposes."

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

an act

        done for the purpose of influencing the election or
        nomination for election of any individual to state or
        local office, for the purpose of influencing the
        recall from or retention in office of an individual
        holding a state or local office, for the purpose of
        payment of expenses incurred as a result of a recount
        at an election, or for the purpose of influencing a
        particular vote at a referendum.    In the case of a
        candidate, or a committee or group which is organized
        primarily for the purpose of influencing the election
        or nomination for election of any individual to state
        or local office, for the purpose of influencing the
        recall from or retention in office of an individual
        holding a state or local office, or for the purpose of
        influencing a particular vote at a referendum, all
        administrative   and   overhead   expenses   for   the

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        maintenance of an office or staff which are used
        principally for any such purpose are deemed to be for
        a political purpose.

        (a) Acts which are for "political purposes" include
        but are not limited to:

        1. The making of a communication which expressly
        advocates the election, defeat, recall or retention of
        a clearly identified candidate or a particular vote at
        a referendum.
 Wis. Stat. § 11.01(16) (emphasis added).

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

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

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

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

words.         See Wis. Stat. §§ 11.01(7) (defining "disbursement"),
11.01(6) (defining "contribution").                  If an act is not done for

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

contribution,       and    it    therefore      is   not    subject    to     regulation

under Ch. 11.

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

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

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

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

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

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

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

imprecise language risks chilling issue advocacy, which may not

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

court    concluded     the      phrase   "include     but    are   not      limited       to"


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renders       the     definition        of       "political        purposes"       vague      and

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

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

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

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

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

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

and unwary.)
        ¶64    The    special       prosecutor          has    completely          disregarded

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

special       prosecutor       relies      upon,       leads    us    to    the     unsettling

conclusion      that     it    is    left       to    government      bureaucrats          and/or

individual          prosecutors       to        determine      how     much       coordination

between campaign committees and independent groups is "too much"

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

every campaign in which an issue advocacy group participates,

would get their own John Doe proceeding and their own special

prosecutor to determine the extent of any coordination.                                   This is

not, and cannot, be the law in a democracy.
        ¶65    More    fundamentally,             however,      the     fact       that     these

questions       arise     at    all        is     proof     that      the     definition       of

"political          purposes"       "holds        the     potential         for     regulatory

mischief.       Perhaps [the express advocacy language] was included

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

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

Beyond that, however, the language contains persistent vagueness


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and overbreadth."                  Barland II, 751 F.3d at 833.                In fact, the

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

Barland II and suggested a limiting construction to the Seventh

Circuit          that    would      "confine       the   definitions        [of   "political

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

Id.         That    is       precisely     the    construction       the    Seventh   Circuit

adopted, and we conclude that same limiting construction should

apply here as well.
           ¶66    To     be    clear,      the    reason    that      the    definition    of

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

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

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

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

includes express advocacy, but without a limiting construction

it could just as easily include issue advocacy aired during the

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

of    overbroad          language       that     the   Supreme      Court   has   repeatedly

rejected.              "Discussion of issues cannot be suppressed simply

because the issues may also be pertinent in an election."                                 WRTL
II, 551 U.S. at 474 (emphasis added).                          We must have clear rules

that protect political speech, and we must continue to reject

the idea that some protected speech may be chilled or restricted

simply because it is "difficult to distinguish from unprotected

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

targeting political speech are the principal object of the First

Amendment guarantee.                 The fact that the line between electoral


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advocacy        and     issue     advocacy       dissolves    in     practice     is       an

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

        ¶67     We therefore hold that the definition of "political

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

overbroad and vague.                 In order to cure this overbreadth and

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

the definition of "political purposes" to include only express

advocacy       and     its     functional    equivalent,      as    those    terms        are

defined in Buckley and WRTL II.                    This construction is "readily
available" due to the Seventh Circuit's decision in Barland II.

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

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

Attorney       General        have   acknowledged     that    when    Chapter        11    is

applied        beyond        candidates,    their    committees,       and     political

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

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

campaign-finance               system      has      generally        reflected         this

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

requirements depend on whether an act is done for "political

        22
        Although Barland II did not involve an allegation of
coordination, that distinction is meaningless in determining
whether the definition of "political purposes" is vague or
overbroad.   It may well be that the distinction between issue
and express advocacy is little more than "a line in the sand
drawn on a windy day."    WRTL II, 551 U.S. at 499 (Scalia, J.,
concurring) (citation omitted).    However, "'[p]rotected speech
does not become unprotected merely because it resembles the
latter.   The Constitution requires the reverse.'"    Id. at 475
(majority opinion) (quoting Ashcroft v. Free Speech Coal., 535
U.S. 234, 255 (2002)).


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purposes,"          the   effect    of   this    limiting    construction     places

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

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

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

Coordinated Issue Advocacy, Which Is Not Regulated Under Chapter

                                           11.

        ¶68     Having    reached    our   conclusion       about   the    scope   of

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

prosecutor's theories of coordination and whether the alleged

conduct        is    regulated     under   Wisconsin    law. 23      The     special



        23
       We note that in Wis. Coal. for Voter Participation, Inc.
v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct.
App. 1999) (WCVP), the court of appeals concluded that conduct
substantially identical to the subject of this investigation,
coordinated issue advocacy, is regulated under Wisconsin law.
The key language from that case upon which the special
prosecutor's theories rest, is that "the term 'political
purposes' is not restricted by the cases, the statutes or the
code to acts of express advocacy.     It encompasses many acts
undertaken to influence a candidate's election . . . ."   WCVP,
231 Wis. 2d at 680.

     The court of appeals' statement regarding "political
purposes" is incorrect. It was incorrect when WCVP was decided
in 1999, and it is incorrect today.    Just four months prior to
the WCVP decision, this court stated that

        Buckley stands for the proposition that it is
        unconstitutional to place reporting or disclosure
        requirements on communications which do not 'expressly
        advocate   the  election  or   defeat  of   a  clearly
        identified candidate.'      Any standard of express
        advocacy must be consistent with this principle in
        order to avoid invalidation on grounds of vagueness
        and/or overbreadth.

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

nation and our state political speech is a fundamental right and

is    afforded    the   highest    level    of    protection.    The     special

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

interchange of ideas for the bringing about of political and

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

instead      would    assure   that    such      political   speech     will    be

investigated with paramilitary-style home invasions conducted in

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

the special prosecutor completely ignores the command that, when

seeking to regulate issue advocacy groups, such regulation must

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


Elections Bd. of State of Wis. v. Wis. Mfrs. & Commerce, 227
Wis. 2d 650,   669,  597   N.W.2d 721  (1999) (WMC)  (citations
omitted).    This should have been enough to "restrict" the
definition of "political purposes" in Chapter 11.    If "it is
unconstitutional to place reporting or disclosure requirements
on communications which do not 'expressly advocate the election
or defeat of a clearly identified candidate,'" then "political
purposes" cannot extend as broadly as WCVP and the special
prosecutor claim.   At the very least, WCVP ignores WMC and is
inconsistent with its explanation of Buckley.

     In any event, even assuming that it was good law to begin
with, WCVP is no longer a correct interpretation of "political
purposes" in Chapter 11.    As discussed above, recent case law
has clearly restricted the scope of permissible regulation in
campaign finance law to express advocacy and its functional
equivalent. See WRTL II, 551 U.S. 449; Citizens United v. Fed.
Election Comm'n, 558 U.S. 310 (2010); Barland II, 751 F.3d 804.
Therefore, to the extent that WCVP implies that the definition
of "political purposes" in Chapter 11 extends beyond express
advocacy and its functional equivalent, WCVP is overruled.


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        ¶69    The limiting construction that we apply makes clear

that the special prosecutor's theories are unsupportable in law

given that the theories rely on overbroad and vague statutes.

By limiting the definition of "political purposes" to express

advocacy       and        its   functional        equivalent,     political     speech

continues      to    be     protected   as    a     fundamental    First      Amendment

right.

        ¶70    The    special     prosecutor's        first     theory   of     illegal

coordination         is    that   ostensibly       independent,    advocacy     groups

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

made     the    independent       groups     subcommittees       under   Wis.    Stat.

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

        [a]ny committee which is organized or acts with the
        cooperation of or upon consultation with a candidate
        or agent or authorized committee of a candidate, or
        which acts in concert with or at the request or
        suggestion of a candidate or agent or authorized
        committee of a candidate is deemed a subcommittee of
        the candidate's personal campaign committee.
Wis. Stat. § 11.10(4) (emphasis added).                   The special prosecutor

argues that coordinated issue advocacy is prohibited under this
provision because the statute itself only requires cooperation

between a candidate's committee and another committee and that

the statute does not require that such cooperation be limited to

express advocacy.

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

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

prosecutor to subjectively determine how much coordination is

"too much."          Indeed, the special prosecutor, because he relies


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on vague and overbroad statutes, will be the only one to know

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

interpretation of § 11.10(4) is unconstitutionally overbroad and

vague    under   the       First    Amendment.          See   Princess      Cinema,    96

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

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

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

clear guidelines for law enforcement officials and triers of

fact     in    order       to     prevent    "arbitrary        and     discriminatory

enforcement."'").
        ¶72   However, there is another, more obvious flaw in the

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

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

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

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

come within the purview of regulated acts both "contributions"

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

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

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

conclude      that    in   order    to     meet   the    statutory     definition      of

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

functional equivalent.             This conclusion is fatal to the special

prosecutor's subcommittee theory because he does not allege that

the Unnamed Movants engaged in express advocacy.                            Put simply,

because the Unnamed Movants did not engage in express advocacy,




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they could not be considered a "committee" subject to Chapter

11's regulation.

        ¶73   The    special       prosecutor's       second         theory       of   illegal

coordination is that the coordinated issue advocacy should have

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

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

assumption that any issue advocacy engaged in by the Unnamed

Movants was done for the benefit of the candidate and therefore

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

theory fails.

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

regulations as "a disbursement by a contributor to procure a

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

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

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

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

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

"disbursement"         under        Chapter        11,        or     the      corresponding

regulations,         without       express        advocacy         or      its     functional
equivalent.          Even    assuming      that      the      special       prosecutor        is

correct and the Unnamed Movants engaged in issue advocacy at the

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

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

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

"disbursement."




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

Amendment          to    the        United       States      Constitution         and       Article    I,

Section 3          of    the        Wisconsin          Constitution,        the       definition       of

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

unconstitutionally overbroad and vague because its language "is

so         sweeping          that         its      sanctions         may         be     applied        to

constitutionally                  protected       conduct         which    the        state    is      not

permitted to regulate."                      Janssen, 219 Wis. 2d at 374.                      However,
there is a readily available limiting construction that will

prevent the chilling of otherwise protected speech, and we hold

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

functional equivalent as those terms are defined in Buckley and

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

does not regulate the alleged conduct of the Unnamed Movants.

The special prosecutor has not alleged any express advocacy, and

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

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

Accordingly,            we        grant    the     relief         requested       by    the     Unnamed

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

investigation because the special prosecutor's legal theory is

unsupported             in    either         reason         or    law.       Consequently,             the

investigation is closed.                         Consistent with our decision and the

order       entered          by    Reserve       Judge      Peterson,       we    order       that    the

special prosecutor and the district attorneys involved in this

investigation                must        cease     all       activities          related       to      the


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investigation, return all property seized in the investigation

from any individual or organization, and permanently destroy all

copies of information and other materials obtained through the

investigation.    All Unnamed Movants are relieved of any duty to

cooperate further with the investigation.




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                                  IV. SCHMITZ V. PETERSON

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

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

petitions to bypass the court of appeals filed by the Unnamed

Movants.            In     this     case,       the    special     prosecutor      seeks     a

supervisory writ in order to reverse Reserve Judge Peterson's

decision to quash the subpoenas and search warrants issued by

Reserve Judge Kluka.                 The specific issue presented is whether

the    evidence       gathered       in    the    John     Doe   proceedings      provide    a

reasonable       belief       that    Wisconsin's          campaign     finance      law   was

violated by a campaign committee's coordination with independent

advocacy organizations.
        ¶78    We    hold     that    the       special     prosecutor      has   failed    to

prove that Reserve Judge Peterson violated a plain legal duty

when he quashed the subpoenas and search warrants and ordered

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

quashing       the       subpoenas        and     search      warrants,     Reserve       Judge

Peterson exercised his discretion under the John Doe statute,

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

investigation.             Because the purpose of a supervisory writ does

not include review of a judge's discretionary acts, Kalal, 271
Wis. 2d 633, ¶24, the supervisory writ sought by the special

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

affirmed.

                                   A. Standard of Review




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           ¶79   The decisions of John Doe judges "are not subject to

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

by a John Doe judge is not an order of a 'circuit court' or a

'court of record.'"               In re John Doe Proceeding, 2003 WI 30,

¶¶23, 41, 260 Wis. 2d 653, 660 N.W.2d 260.                     Nonetheless, a party

may seek review of a John Doe judge's actions "pursuant to a

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

§ 809.51(1).
           ¶80   It is well settled that "[a] writ of supervision is

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

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

writ, the petitioner must prove the following: "(1) an appeal is

an inadequate remedy; (2) grave hardship or irreparable harm

will result; (3) the duty of the trial court is plain and it

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

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

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

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

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

be imperative.'"            Id., ¶22 (quoting State ex rel. Kurkierewicz
v. Cannon, 42 Wis. 2d 368, 377–78, 166 N.W.2d 255 (1969)).

           ¶81   "A    supervisory    writ   'is    considered     an   extraordinary

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

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

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

of    plain       legal    duty    contemplated         by   the   supervisory    writ


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procedure, "as it would extend supervisory jurisdiction to a

virtually unlimited range of decisions involving the finding of

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

           [t]he obligation of judges to correctly apply the law
           is general and implicit in the entire structure of our
           legal system. The supervisory writ, however, serves a
           narrow function: to provide for the direct control of
           lower courts, judges, and other judicial officers who
           fail to fulfill non-discretionary duties, causing harm
           that cannot be remedied through the appellate review
           process.   To adopt [a contrary] interpretation of the
           plain duty requirement in supervisory writ procedure
           would   transform   the   writ  into   an    all-purpose
           alternative to the appellate review process.
Id. (emphasis added) (citations omitted).

                         B. Nature of John Doe Proceedings

           ¶82   Before analyzing Reserve Judge Peterson's decision to

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

to provide background regarding the proper conduct of John Doe

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

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

discussion is necessary to educate the public on the nature of

this important investigatory tool, and also to provide guidance

to     the       lower   courts     on      the    proper       conduct    of    John    Doe

proceedings.

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

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

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

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

proceeding         is    intended      as     an    investigatory         tool   used     to

ascertain whether a crime has been committed and if so, by whom.

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Second, the John Doe proceeding is designed to protect innocent

citizens       from     frivolous       and    groundless     prosecutions."         Id.

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

the John Doe statute, a John Doe judge

        serves an essentially judicial function.      The judge
        considers the testimony presented.         It is the
        responsibility of the John Doe judge to utilize his or
        her training in constitutional and criminal law and in
        courtroom   procedure  in   determining  the   need  to
        subpoena witnesses requested by the district attorney,
        in presiding at the examination of witnesses, and in
        determining probable cause.        It is the judge's
        responsibility to ensure procedural fairness.
State v. Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978)

(footnote omitted).

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

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

"First,       the    judge   must   determine        whether      a    complainant    has

alleged 'objective, factual assertions sufficient to support a

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

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

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

judge shall examine the complainant under oath and any witnesses

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

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

determine whether probable cause exists as to each essential

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

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

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

alleged crime is, the judge may order that a criminal complaint

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be reduced to writing . . . ."                      Id., ¶17.           This process gives a

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

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

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

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

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

believe        that       a    crime         has        been       committed         within        the

jurisdiction."                State     v.     Doe,          78    Wis. 2d 161,           165,     254
N.W.2d 210 (1977).             If "the judge finds that the complainant has

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

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

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

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

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

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

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

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

at 625 (emphasis added).

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

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

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

Doe, 78 Wis. 2d at 165.                  The John Doe judge does not act as
"chief        investigator"       or    as     a        mere      arm   of    the     prosecutor.

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

serves as a check on the prosecutor and on the complainant to




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ensure that the subject(s) of the investigation receive(s) due

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

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

different than a grand jury, and when conducted appropriately,

provides       much       greater    protections      to      the    target    of    an

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

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

investigation         stays    focused    on    the   conduct       alleged   in    the

petition to commence the John Doe proceeding.                         Washington, 83
Wis. 2d at 841-42.           Further,

        [a]nyone familiar with the functions of the grand jury
        or who has dealt with it knows the hazards of a run-
        away grand jury, which can go beyond the restraints of
        the prosecutor, the executive, or of the judiciary.
        Such hazards do not exist in the Wisconsin John Doe.
        While John Doe proceedings can be abused, the document
        produced by a John Doe does not ipso facto force the
        defendant to trial. The complaint which emanates from
        it is issued under the aegis of a judge but
        nevertheless must subsequently stand the scrutiny of
        an open court inspection in an adversary proceeding at
        the preliminary examination as a prerequisite to the
        filing of an information, arraignment, and trial.
Doe,      78     Wis. 2d at         170-71.           Thus,      "[a]      John     Doe

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

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

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

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

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

is able to determine the extent of the investigation and whether




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the     investigation        is    conducted    in   secret.        Wis.       Stat.

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

John Doe proceedings and have identified several reasons that

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

        These   include:   (1)   keeping    knowledge   from   an
        unarrested defendant which could encourage escape; (2)
        preventing the defendant from collecting perjured
        testimony   for  the   trial;    (3)   preventing   those
        interested in thwarting the inquiry from tampering
        with prosecutive testimony or secreting evidence; (4)
        rendering witnesses more free in their disclosures;
        and (5) preventing testimony which may be mistaken or
        untrue or irrelevant from becoming public.
Id.          These    reasons     illustrate   how   important      a   John    Doe

proceeding can be as an investigative tool.                The secrecy orders

available        to   a   John    Doe   proceeding    serve    to   protect     the

        24
             The full text of this subsection is:

        The extent to which the judge may proceed in an
        examination under sub. (1) or (2) is within the
        judge's discretion.   The examination may be adjourned
        and may be secret.    Any witness examined under this
        section may have counsel present at the examination
        but the counsel shall not be allowed to examine his or
        her client, cross-examine other witnesses, or argue
        before the judge.      Subject to s. 971.23, if the
        proceeding is secret, the record of the proceeding and
        the testimony taken shall not be open to inspection by
        anyone except the district attorney unless it is used
        by the prosecution at the preliminary hearing or the
        trial of the accused and then only to the extent that
        it is so used.   A court, on the motion of a district
        attorney, may compel a person to testify or produce
        evidence under s. 972.08 (1).     The person is immune
        from prosecution as provided in s. 972.08 (1), subject
        to the restrictions under s. 972.085.

Wis. Stat. § 968.26(3).



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integrity of the investigation. 25                       Such orders help encourage

witnesses who may be reluctant or fearful to testify by keeping

their testimony secret.                 The secrecy of a John Doe investigation

also         protects     innocent         targets       of       the   investigation          by

preventing the disclosure of "testimony which may be mistaken or

untrue."        Id.

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

judge        should    act     with    a   view    toward         issuing    a    complaint    or

determining           that     no     crime   has       occurred."           Washington,       83
Wis. 2d at        823.          Accordingly,           the    scope     of       any   John    Doe

investigation "is essentially limited to the subject matter of

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

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

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

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

added).           This        final    limitation            is    crucial       to    the    fair

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

proceedings           could     easily     devolve       into       judicially         sanctioned

general warrants.




        25
       We do not disregard the secrecy order issued in the John
Doe proceeding. See Niedziejko, 22 Wis. 2d at 398. However, we
interpret and modify the secrecy order to the extent necessary
for the public to understand our decision herein. Consequently,
if a fact is necessary to include in order to render explicable
a justice's analysis of an issue presented, it is not precluded
by the secrecy order.


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        ¶90       The    purpose    of    the    Fourth      Amendment       to    the     United

States        Constitution 26       and     of    Article         I,    Section 11       of    the

Wisconsin          Constitution 27       "was    to    abolish         searches    by    general

warrants,          which      authorized    searches        in    any     place    or    for   any

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

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

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

search wherever government officials chose with nearly absolute

and unlimited discretion."                  State v. Tye, 2001 WI 124, ¶8, 248
Wis. 2d 530,            636    N.W.2d 473.            "These      early     warrants       lacked

specificity             and    allowed     government            officers     in     the       late

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


        26
             The Fourth Amendment provides that

        [t]he right of the people to be secure in their
        persons,   houses,   papers,   and  effects,  against
        unreasonable searches and seizures, shall not be
        violated, and no warrants shall issue, but upon
        probable cause, supported by oath or affirmation, and
        particularly describing the place to be searched, and
        the persons or things to be seized.

U.S. Const. amend. IV.
        27
             Article I, Section 11 provides that

        [t]he right of the people to be secure in their
        persons,   houses,    papers,   and  effects   against
        unreasonable searches and seizures shall not be
        violated; and no warrant shall issue but upon probable
        cause,   supported   by   oath   or affirmation,   and
        particularly describing the place to be searched and
        the persons or things to be seized.

Wis. Const. art. I, § 11.



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in the event the officers encountered resistance, they could

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

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

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

Amendment        requires         reasonable          searches        and    mandates          that

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

U.S. Const. amend. IV.

        ¶91    Reasonableness             and     particularity             are      not       just

requirements of search warrants, however.                             Subpoenas issued by

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

these requirements of the Fourth Amendment.                                 In re John Doe
Proceeding, 272 Wis. 2d 208, ¶38.                          A John Doe proceeding, with

its broad investigatory powers, must never be allowed to become

a fishing expedition.

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

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

conduct       the    investigation         fairly,         as   a   neutral       and     detached

magistrate,          the    risk    of     harm       to    innocent        targets       of     the

investigation-and we remain mindful that all such targets are
presumed innocent-is too great.                       Through the use of a John Doe

proceeding, "law enforcement officers are able to obtain the

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

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

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

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

skill    may     serve      to    transform       a   John      Doe   proceeding          into   an


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implement      of    harassment       and    persecution   by    a   vengeful     or

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

this    danger      and   zealously    guard     the   rights   of   all   citizens

against over-reach.

        ¶93   The    foregoing    discussion       emphasizes    that      John   Doe

proceedings are a necessary investigative tool "to 'ascertain

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

199 Wis. 2d at 736 (quoting Wolke v. Fleming, 24 Wis. 2d 606,
613, 129 N.W.2d 841 (1964)).                  John Doe proceedings have been

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

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

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

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

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

This purpose was aptly explained by this court more than 125

years ago:

        When this statute was first enacted the common-law
        practice was for the magistrate to issue the warrant
        on a complaint of mere suspicion, and he was protected
        in doing so.     This was found to be a very unsafe
        practice.     Many arrests were made on groundless
        suspicion, when the accused were innocent of the crime
        and there was no testimony whatever against them. The
        law delights as much in the protection of the innocent
        as in the punishment of the guilty. This statute was
        made to protect citizens from arrest and imprisonment
        on frivolous and groundless suspicion. . . .      'Our
        statute is framed so as to exclude in a great measure
        the abuses to which such a practice might lead, and
        undoubtedly was designed to throw the duty of judging,
        in this respect, entirely upon the magistrate.      It
        should not regard mere allegations of suspicion, but
        the   grounds    of   the  suspicion-the   facts   and
        circumstances-must be laid before him, and these

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        should be sufficient to make it appear that a crime
        has been actually committed, and that there is
        probable cause for charging the individual complained
        of therewith.'
State     v.     Keyes,    75     Wis. 288,       294-95,     44        N.W. 13    (1889)

(citations omitted).

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

broad authority to conduct an investigation into alleged crimes.

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

out this duty.            Cummings, 199 Wis. 2d at 736.                   Nevertheless,
"[a]s to all aspects of the conduct of the judicial function,

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

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

insofar as it is compatible with the administration of justice,

efficiency of those proceedings."                  In re Doe, 317 Wis. 2d 364,
¶22.      This    duty     applies       with    equal   force     in    all   John   Doe

proceedings, regardless of the target's station in life, or the

crime     alleged,    be    it    drug     trafficking       in    the     inner    city,

malfeasance in the corporate boardroom, or corruption in the

halls of government.
  C. Reserve Judge Peterson Did Not Violate a Plain Legal Duty

When He Quashed the Subpoenas and Search Warrants Issued in This

                                          Case.

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

are given enormous discretion to control the scope and conduct

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

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

Peterson       violated    a     plain    legal     duty    when    he     quashed    the


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subpoenas       and    search       warrants       and       ordered    the       return    of     all

seized property.          He did not.

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

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

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

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

the     special       prosecutor        to        seek       review        of     Reserve        Judge

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

function which is distinct from the normal appellate process.

Id., ¶24.        The purpose of a supervisory writ is "to provide for
the direct control of lower courts, judges, and other judicial

officers who fail to fulfill non-discretionary duties, causing

harm     that       cannot     be    remedied          through       the     appellate       review

process."       Id. (emphasis added).

        ¶97    Here, the special prosecutor argues that Reserve Judge

Peterson failed to comply with his duty to correctly apply the

law and erroneously concluded that Wisconsin campaign finance

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

special        prosecutor        essentially            argues        that        Reserve        Judge

Peterson misapplied the law and prematurely ended the John Doe

investigation.                This    argument              misses     the       point      of     the

supervisory writ procedure and asks us to adopt a standard of

review that we explicitly rejected in Kalal.                                    See id., ¶¶23-24
("In essence, the Kalals argue that the judge . . . has a plain

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

accept        this     proposition,          as        it     would     extend       supervisory


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jurisdiction          to     a    virtually       unlimited           range    of     decisions

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

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

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

transform       the    writ       into     an    all-purpose          alternative          to   the

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

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

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

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

complaint       or         determining          that     no     crime       has       occurred."

Washington, 83 Wis. 2d at 823.                         In his decision to quash the
subpoenas and search warrants, Reserve Judge Peterson concluded

that     the    subpoenas          and     search      warrants        do     not    provide     a

reasonable       belief          that     the    Unnamed       Movants        "committed        any

violations       of    the        campaign       finance       laws."          Reserve      Judge

Peterson further concluded that "[t]he State is not claiming




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that any of the independent organizations expressly advocated. 28

Therefore the subpoenas 29 fail to show probable cause that a

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

his decision to quash, Reserve Judge Peterson clarified that,

although he mistakenly phrased his decision in the context of

whether the subpoenas showed probable cause, the subpoenas and

search warrants were premised "on an invalid interpretation of



        28
       The special prosecutor now claims that coordinated
express advocacy did in fact occur between Unnamed Movants 1 and
6 and two express advocacy groups, neither of which are parties
to the current lawsuits. The special prosecutor and the Unnamed
Movants presented Reserve Judge Peterson with the evidence of
coordination  regarding   the  first    express  advocacy  group.
Reserve Judge Peterson considered this evidence when deciding
whether or not to quash the subpoenas or order the return of
seized property.   Reserve Judge Peterson definitively concluded
that "[t]here is no evidence of express advocacy." We will not
disturb that decision as, under the John Doe statute, it was
Reserve Judge Peterson's to make.    More fundamentally, however,
as a member of the first express advocacy group, the candidate
at issue in this case and his agents had an absolute
constitutional right to interact with a political organization
of which he was a member, and improper coordination cannot be
presumed by such contacts. Colo. Republican Fed. Campaign Comm.
v. Fed. Eletion. Comm'n, 518 U.S. 604, 619 (1996). Further, the
special prosecutor chose not to present evidence pertaining to
the second express advocacy group to Reserve Judge Peterson.
Arguments not presented to the court in the first instance are
deemed waived. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d
501 (1997).
        29
       Although he refers only to the subpoenas issued in the
John Doe investigation, Reserve Judge Peterson later clarified
that "for the reasons stated above regarding the limitations on
the scope of the campaign finance laws, I conclude that
the . . . warrants [issued for Unnamed Movants Nos. 6 and 7]
lack probable cause."


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the     law.         That . . . was         the      underlying    problem       with    the

subpoenas." 30

        ¶99     Reserve Judge Peterson's decision is consistent with

his     discretion          to    determine       the   extent     of     the    John    Doe

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

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

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

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

are not appropriate vehicles to review a judge's discretionary

acts, see Kalal, 271 Wis. 2d 633, ¶24, the special prosecutor
has failed to show that Reserve Judge Peterson violated a plain

legal        duty    by     quashing      the   subpoenas    and     search      warrants.

Therefore, the supervisory writ sought by the special prosecutor

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

        30
       We note that as a result of our interpretation of Chapter
11 in Two Unnamed Petitioners, Reserve Judge Peterson's
interpretation is correct as a matter of law.
        31
       While we base our conclusion solely on Reserve Judge
Peterson's exercise of discretion under the John Doe statute, we
note that there are serious flaws with the subpoenas and search
warrants, which were originally issued by Reserve Judge Kluka.
As we explained above, a John Doe judge does not act as "chief
investigator" or as a mere arm of the prosecutor.       State v.
Washington, 83 Wis. 2d 808, 823, 266 N.W.2d 597 (1978). Rather,
a John Doe judge serves as a check on the prosecutor and on the
complainant to ensure that the subject(s) of the investigation
receive(s) due process of law.         See State v. Doe, 78
Wis. 2d 161, 164-65, 254 N.W.2d 210 (1977).         This is an
important function that cannot be ignored. Judges cannot simply
assume that the prosecutor is always well-intentioned.    Due to
the exceptionally broad nature of the subpoenas and search
warrants, it is doubtful that they should have ever been issued
in the first instance.

                                                                                (continued)
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                          V. THREE UNNAMED PETITIONERS

        ¶100 Finally,      we   turn   to   Three   Unnamed   Petitioners,     in

which the Unnamed Movants appeal an opinion and order of the

court of appeals denying their petition for a supervisory writ.

This case requires us to determine whether either Reserve Judge

Kluka or Peterson violated a plain legal duty by: (1) accepting

an appointment as a reserve judge; (2) convening a multi-county

John Doe proceeding; or (3) appointing a special prosecutor. 32

        ¶101 We affirm the decision of the court of appeals and

deny the Unnamed Movants' petition for a supervisory writ.                     We

hold that the Unnamed Movants have not met the burden of proof

required for a supervisory writ.                Specifically, they have not

established that either Reserve Judge Kluka or Peterson violated

a plain legal duty by: (1) accepting an appointment as a reserve


     The special prosecutor alleges that the Unnamed Movants
engaged in "illegal" coordination of issue advocacy sometime
between 2011 and 2012.      The subpoenas and search warrants,
however, sought records-many of which were personal and had
nothing to do with political activity-and information ranging
from 2009 through 2013.      If the illegal conduct took place
during a discrete timeframe in 2011 and 2012, as the special
prosecutor alleges, what possible relevance could documents from
a full two years prior have to the crime alleged?             By
authorizing such sweeping subpoenas and search warrants, Reserve
Judge Kluka failed in her duty to limit the scope of the
investigation to the subject matter of the complaint. See In re
Doe, 2009 WI 46, ¶23, 317 Wis. 2d 364, 766 N.W.2d 542.     These
subpoenas and search warrants also come dangerously close to
being general warrants of the kind which, in part, provoked our
forefathers to separate from the rule of Empire.
        32
       This case presents issues one through                      five   in   our
December 16, 2014 grant order. See supra ¶9.


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judge; (2) convening a multi-county John Doe proceeding; or (3)

appointing a special prosecutor.                       "The obligation of judges to

correctly apply the law is general and implicit in the entire

structure of our legal system."                        Kalal, 271 Wis. 2d 633, ¶24.

The Unnamed Movants' argument does not fit the purpose of a

supervisory writ, which requires a "clear and unequivocal" duty

to act on the part of the judge.                      Id., ¶22.     If we were to adopt

the Unnamed Movants' argument, we "would transform the writ into

an    all-purpose          alternative      to    the    appellate      review      process."

Id., ¶24.           Because the Unnamed Movants have not identified a
violation          of     a   plain    legal          duty,    their      petition    for     a

supervisory writ is denied.

                                   A. Standard of Review

           ¶102 "[T]he authority of both judges and prosecutors in a

John         Doe        proceeding[] . . . are            questions         of      statutory

interpretation             which    this     court        reviews      de    novo     without

deference to the circuit court or court of appeals."                                Cummings,

199    Wis. 2d at          733.     Thus,    "[w]hether         a   John    Doe   judge     has

exceeded his or her powers is a question of law that this court

determines independently."                  State ex rel. Individual Subpoenaed
to Appear at Waukesha Cnty. v. Davis, 2005 WI 70, ¶17, 281

Wis. 2d 431,            697   N.W.2d 803     (citing          Cummings,     199   Wis. 2d at

733).

           ¶103 For a supervisory writ to issue, the petitioner for

the writ must establish that: "(1) an appeal is an inadequate

remedy; (2) grave hardship or irreparable harm will result; (3)


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the duty of the trial court is plain and it must have acted or

intends to act in violation of that duty; and (4) the request

for     relief     is     made        promptly        and   speedily."          Kalal,         271

Wis. 2d 633, ¶17 (emphasis added).

        ¶104 A "'writ of supervision is not a substitute for an

appeal.'"        Id. (citation committed).                    "A supervisory writ 'is

considered an extraordinary and drastic remedy that is to be

issued      only    upon       some     grievous       exigency.'"         Id.      (citation
omitted).

        ¶105    Although a court exercises its discretion in deciding

whether     or     not    to     issue     a     writ,      "[t]he     exercise         of    that

discretion       often        involves . . . resolving           questions         of    law    in

order to determine whether the circuit court's duty is plain."

State ex rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008

WI App 120, ¶9, 313 Wis. 2d 508, 756 N.W.2d 573.                              "A plain duty

'must      be    clear     and    unequivocal          and,     under    the     facts,        the

responsibility           to     act    must      be     imperative.'"           Kalal,         271

Wis. 2d 633, ¶22 (citation omitted).                        The obligation of a judge

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

plain legal duty contemplated by the supervisory writ procedure,

"as   it    would    extend       supervisory          jurisdiction      to    a    virtually

unlimited range of decisions involving the finding of facts and

application of law."             Id., ¶24; see also supra ¶80.
        ¶106 Consequently, for a writ to issue in this case, the

Unnamed        Movants     must       demonstrate        that    the    John     Doe         judges

violated a plain legal duty, either in accepting an appointment


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as a reserve judge, in convening a John Doe proceeding over

multiple counties, or in appointing a special prosecutor.

 B. The Unnamed Movants Have Failed to Prove the Violation of a

                                   Plain Legal Duty.

        i. No Violation of a Plain Legal Duty Occurred in the

  Appointment and Assignment of Reserve Judge Kluka or Reserve

        Judge Peterson to Preside Over a Multi-County John Doe

                                       Proceeding.

        ¶107 We     first      discuss      whether       Reserve      Judge      Kluka       or

Reserve Judge Peterson violated a plain legal duty either in

accepting an appointment as a reserve judge or in convening a

multi-county        John     Doe   proceeding.           We    hold   that    the   Unnamed

Movants failed          to    prove    that    Reserve        Judge   Kluka    or   Reserve

Judge    Peterson       violated      a   plain     legal      duty    by    accepting        an

appointment       as    a    reserve      judge    or    in    convening      a   John    Doe

proceeding over multiple counties.

  1. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in

              Accepting Her Appointment as a Reserve Judge.

        ¶108 We begin our discussion of this issue by explaining

the   distinction        between      the     appointment       and    assignment        of    a

reserve judge.              A former judge is appointed to be a reserve

judge    by   the      Chief   Justice.           Once   a    former    judge     has     been

appointed to be a reserve judge then that reserve judge can be

assigned to a particular case or to a particular circuit court

calendar.




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        ¶109 The Director of State Courts has the power to assign

reserve       judges,    but   he   does   not   have   the   power   to   appoint

reserve judges.         See SCR 70.10 33; SCR 70.23. 34       The Chief Justice

is the sole individual with the power to both appoint and assign

reserve judges.         See Wis. Const. art. VII, § 24(3) 35; Wis. Stat.

§ 753.075 36; SCR 70.23(1). 37




        33
       "The   director   of   state   courts  shall   have   the
responsibility and authority regarding the assignment of reserve
judges and the interdistrict assignment of active judges at the
circuit court level where necessary to the ordered and timely
disposition of the business of the court."
        34
       "The director of state courts may make interdistrict
judicial assignments at the circuit court level." SCR 70.23(1).
"The director of state courts may also make a permanent
assignment to a judicial district of a reserve judge who can be
assigned by a chief judge in the same manner as an active
circuit judge under this section."    SCR 70.23(2).   "[I]f the
chief judge deems it necessary the chief judge shall call upon
the director of state courts to assign a judge from outside the
judicial administrative district or a reserve judge."       SCR
70.23(4).
        35
        "A person who has served as a supreme court justice or
judge of a court of record may, as provided by law, serve as a
judge of any court of record except the supreme court on a
temporary basis if assigned by the chief justice of the supreme
court."
        36


        (1)Definitions.        In this section:

        (a)'Permanent reserve judge' means a judge appointed
        by the chief justice to serve an assignment for a
        period of 6 months.     Permanent reserve judges shall
        perform the same duties as other judges and may be
        reappointed for subsequent periods.

                                                                      (continued)
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        ¶110 The relevant orders in the record state that Reserve

Judge Kluka was assigned, not appointed, to serve as the John

Doe judge in each of the five counties.                         Once the Milwaukee

County        District   Attorney's    Office       filed   a    petition     for   the

commencement of a John Doe proceeding in Milwaukee County, Chief

Judge Kremers "assigned and forwarded" the petition to "Reserve

Judge Kluka" on August 23, 2012.                   Thereafter, on September 5,

2012,        the   Director   of   State    Courts,    with     then-Chief    Justice

Shirley Abrahamson's name directly above, assigned Reserve Judge

Kluka        to    preside    over    the    matter     using      a   form    titled

"Application and Order for Specific Judicial Assignment."                           The

actions taken by Chief Judge Kremers and the Director of State

Courts suggest that Kluka possessed reserve judge status at the

time her assignments were made.                  However, nothing in the record



        (b)'Temporary reserve judge' means a judge appointed
        by the chief justice to serve such specified duties on
        a day-by-day basis as the chief justice may direct.

        (2)Eligibility.   The chief justice of the supreme
        court may appoint any of the following as a reserve
        judge:

        (a)Any person who has served a total of 6 or more
        years as a supreme court justice, a court of appeals
        judge or a circuit judge.

        (b)Any person who was eligible to serve as a reserve
        judge before May 1, 1992.
        37
       "The chief justice may assign active or reserve judges,
other than municipal judges, to serve temporarily in any court
or branch of a circuit court for such purposes and period of
time as the chief justice determines to be necessary."


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definitively        establishes       that       the    then-Chief        Justice       had

previously appointed Kluka as a reserve judge.

        ¶111 The absence of a record on this point is very likely

because no one disputes that Kluka was lawfully appointed as a

reserve judge.         Indeed, the Unnamed Movants do not challenge

Reserve Judge Kluka's authority to preside over the Milwaukee

County John Doe proceeding.                 Rather, according to the Unnamed

Movants, "the problem arose later, when the Director of State

Courts extended that [assignment] to four more counties in one

functionally-consolidated            proceeding         or    investigation."           In

fact, in their reply brief, the Unnamed Movants state "the core

issue is not who appointed a reserve judge: it is whether the

five-county structure is lawful at all."                          Because the Unnamed

Movants have failed to show that Reserve Judge Kluka was not

lawfully appointed, it follows that they have failed to prove

that     she    violated      a     plain    legal      duty       in    accepting      her

appointment as a reserve judge.

 2. Reserve Judge Peterson Did Not Violate a Plain Legal Duty in

               Accepting His Appointment as a Reserve Judge.

        ¶112 Similarly,       the    Unnamed     Movants      also      have   failed    to

meet their burden with respect to Reserve Judge Peterson.                               On

October 29, 2013, Chief Judge Kremers assigned Reserve Judge

Peterson to serve as the John Doe judge in Milwaukee County,

after     Reserve     Judge       Kluka     withdrew,        in    an    order   titled:

"REASSIGNMENT       AND    EXCHANGE."             The    document        also    states:

"Reassigned to Reserve Judge Gregory A. Peterson according to


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the rules."          See SCR 70.23 (providing that the chief judge can

request the assignment of a reserve judge by the Director of

State Courts).             As explained above, only the Chief Justice has

the authority to appoint reserve judges.

        ¶113 Similar to the issue with Reserve Judge Kluka, the

Unnamed     Movants          do     not    question             Reserve        Judge      Peterson's

authority       to        preside    over           the       Milwaukee        County      John    Doe

proceeding.           Their       contention             is    that       it   was    unlawful     for

Reserve     Judge         Peterson        to    accept          assignment           to   four    more

counties       "in         one     functionally-consolidated                     proceeding          or

investigation."            Because the Unnamed Movants have failed to show

that Reserve Judge Peterson was not lawfully appointed, they

have    failed       to    prove    that       Reserve          Judge      Peterson       violated    a

plain    legal       duty    in     accepting            his    appointment          as   a     reserve

judge.

  3. Reserve Judge Kluka Did Not Violate a Plain Legal Duty in

               Convening a Multi-County John Doe Proceeding.

        ¶114 The Unnamed Movants contend that no one may appoint or

assign     a     reserve          judge        to     serve          as    a   John       Doe     judge

simultaneously in five counties.                          The Unnamed Movants argue that

"the question properly is not whether anything in the enabling

statute 'prevents' or 'prohibits' what happened here.                                      The right

question       is    whether        anything          in       the    statutes        permits     what

happened here."              The Unnamed Movants emphatically state that

"[t]he answer to that question is no."                                    However, in examining

this issue, we look to whether the John Doe statute clearly


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prohibits the procedural posture of this John Doe investigation.

The answer is no.

        ¶115 Pursuant to Wis. Stat. § 968.26(1) 38 five separate John

Doe proceedings were initiated by the district attorneys of the

five counties; however, it was for one investigation conducted

by a special prosecutor.            The investigation was expanded because

the    initial      investigation    in   Milwaukee    County    suggested   that

persons residing in four additional counties could be involved

with     potential      campaign    finance    violations       and   Wis.   Stat.

§ 978.05(1) provides that a district attorney shall:

        [p]rosecute all criminal actions before any court
        within his or her prosecutorial unit and have sole
        responsibility for prosecution of all criminal actions
        arising from violations of chs. 5 to 12 . . . that are
        alleged to be committed by a resident of his or her
        prosecutorial unit. . . .
See also Wis. Stat. §§ 971.19(11)-(12) (providing that the venue

for a criminal proceeding under campaign finance laws shall be

the county of the defendant's residence unless the defendant

chooses to be tried in the county where the crime occurred).

The Director of State Courts, with then-Chief Justice Shirley

Abrahamson's name directly above, then executed five separate

orders assigning Reserve Judge Kluka to preside over the five

separate proceedings.           While these five separate proceedings are


        38
       "If a district attorney requests a judge to convene a
proceeding to determine whether a crime has been committed in
the court's jurisdiction, the judge shall convene a proceeding
described under sub. (3) and shall subpoena and examine any
witnesses the district attorney identifies."


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a   single      investigation,              they       have       not     been     consolidated.

Rather,      the     John    Doe      proceedings           at    issue     have    merely        been

running parallel to one another.

          ¶116 Nothing       in       the     John      Doe        statute       prohibits          the

initiation of five parallel John Doe proceedings.                                      Put another

way, nothing in the John Doe statute explicitly told Reserve

Judge      Kluka     that    she      could      not    preside          over    five      John     Doe

proceedings.          To     initiate        a   John       Doe    proceeding,         a    district

attorney must simply make the request, which is exactly what

happened here.            See Wis. Stat. § 968.26(1).                      Because nothing in
the John Doe statute expressly prohibits the initiation of five

parallel John Doe proceedings concerning a single investigation,

we cannot conclude that Reserve Judge Kluka violated a plain

legal duty in convening the five separate proceedings.                                      As such,

a supervisory writ cannot issue.

          ¶117 The    Unnamed         Movants      argue         that     they    have      shown     a

violation       of    a     plain       legal    duty.            They    argue     that      "[t]he

investigation         was      constituted             in        direct     contravention            of

Wisconsin       statutes          and     without       authority.               The       John     Doe

judge . . . had a plain duty to comply with Wisconsin statutes

in the conduct of a statutorily-constituted investigation."                                         We

rejected an identical argument in Kalal.
          ¶118 In    Kalal,       a     circuit        court       judge        ordered      that     a

criminal      complaint       be      brought      against         the     Kalals      under      Wis.

Stat.      § 968.02(3),       which         allows     a     circuit       judge    to      order     a

criminal complaint be issued if a district attorney "refuses" to


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issue a complaint.              Kalal, 271 Wis. 2d 633, ¶¶12-13.                          The Kalals

argued that "the circuit judge has a plain duty to correctly

determine          the    presence        of        this        threshold        refusal         before

authorizing the issuance of a criminal complaint."                                         Id., ¶23.

We held that this argument failed to establish the violation of

a plain legal duty.                    "To the extent that a circuit judge's

decision to permit the filing of a complaint under Wis. Stat.

§ 968.02(3)          is         legally        or         factually          unsupported,           the

defendant . . . may              seek     its       dismissal         in   the      circuit       court

after    it    has       been    filed,       and        may    pursue     standard        appellate

remedies       thereafter."                Id.,          ¶25.          "But        the     statutory
prerequisite that the judge find a refusal to prosecute by the

district       attorney         does    not     impose         upon    the    circuit       judge     a

plain, clear, non-discretionary, and imperative duty of the sort

necessary for a supervisory writ."                         Id.

        ¶119 We      explained         that,     "[i]n         essence,      the        Kalals    argue

that the judge sitting ex parte in a hearing under Wis. Stat.

§ 968.02(3) has a plain duty to correctly find facts and apply

the law."          Id., ¶23.       "We cannot accept this proposition, as it
would extend supervisory jurisdiction to a virtually unlimited

range     of       decisions        involving             the     finding          of     facts     and

application of law."                Id., ¶24.             "The obligation of judges to

correctly apply the law is general and implicit in the entire

structure of our legal system."                            Id.        "The supervisory writ,

however, serves a narrow function: to provide for the direct

control       of    lower        courts . . . [that]               fail       to    fulfill        non-


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discretionary       duties . . . ."          Id.    (citations      omitted).             "To

adopt the Kalals' interpretation of the plain duty requirement

in supervisory writ procedure would transform the writ into an

all-purpose alternative to the appellate review process."                           Id.

        ¶120 The    Unnamed    Movants       have    not   identified      a    "plain,

clear,     non-discretionary,         and    imperative      duty     of    the       sort

necessary     for    a   supervisory        writ."         Id.,   ¶25.         In     this

supervisory writ action, the Unnamed Movants must do more than

point out the fact that the statutes do not explicitly authorize

the commencement of parallel John Doe proceedings in multiple

counties.      Further,       they   must    do     more   than   argue     that      five

parallel     investigations          and     proceedings      were       "implicitly"

prohibited by the statute.             They must show that by commencing

five parallel John Doe proceedings Reserve Judge Kluka violated

a plain, clear, non-discretionary, and imperative duty of the

sort necessary for a supervisory writ.                 They have not even tried

to make such a showing.
        ¶121 We understand the Unnamed Movants' concerns and agree

that the kind of multi-county investigation that occurred here

does raise serious questions.                Typically, statewide or multi-

county investigations are conducted by the Attorney General or

by the GAB.         See Wis. Stat. §§ 165.50(1) (Attorney General),
5.05    (Government      Accountability          Board).    However,       Wis.      Stat.

§ 968.26 is silent as to whether a John Doe judge can preside

over a multi-county John Doe.                It is axiomatic that silence on

the point does not (and cannot) result in the creation of a


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plain legal duty.               Here, Reserve Judge Kluka and the special

prosecutor initially ran the investigation and proceeding out of

a single post office box in Milwaukee controlled by the special

prosecutor.             They also put the case names and numbers of all

five proceedings on every search warrant, subpoena, and order.

However, the concerns expressed by the Unnamed Movants are more

properly         addressed      to     the    legislature,             not    a    court    in     a

supervisory         writ    petition.          Should       the      legislature         wish     to

prohibit multi-county John Does, it is free to do so.                                            We,

however,         cannot     "transform         the        writ      into      an    all-purpose

alternative to the appellate review process" or announce new

rules for future cases as part of that process.                               Kalal, 271 Wis.
2d    633,       ¶24.      To   do    so     would    be       an   instance       of    judicial

overreach         incompatible         with    the        nature       and     purpose      of     a

supervisory writ.

           ¶122 Therefore,      we     hold     that       Reserve        Judges     Kluka       and

Peterson did not violate a plain legal duty by: (1) accepting an

appointment as a reserve judge; or (2) convening a multi-county

John       Doe   proceeding,         and   thus      we   deny      the      Unnamed     Movants'

petition for a supervisory writ.

     ii. Reserve Judge Kluka Did Not Violate a Plain Legal Duty by

       Appointing Francis Schmitz to be the Special Prosecutor.

           ¶123 We now turn to whether Reserve Judge Kluka violated a

plain legal duty in appointing the special prosecutor, and if

so,    what       effect    that      would    have       on     the    court      and     special

prosecutor's competency.                   We conclude that the Unnamed Movants


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have failed to prove that Reserve Judge Kluka violated a plain

legal duty in appointing the special prosecutor.

 1. Under Carlson, Reserve Judge Kluka Reasonably Concluded that

 She Had the Authority to Appoint the Special Prosecutor on Her

                                    Own Motion.

        ¶124 In     appointing    the   special    prosecutor      Reserve   Judge

Kluka relied, in part, on Carlson. 39             Carlson concerned a court's

statutory authority to appoint a special prosecutor under Wis.

Stat. § 978.045. 40         In Carlson, the court of appeals explained

        39
       To be clear, we do not rely on State v. Carlson, 2002 WI
App 44, 250 Wis. 2d 562, 641 N.W.2d 563.    There are certainly
distinctions to be made between the facts of Carlson and the
facts of the instant case.     We discuss Carlson only as it
relates to the larger question of whether Reserve Judge Kluka
violated a plain legal duty at the time the appointment was
made.
        40
       Wisconsin Stat.            § 978.045,      the   "special    prosecutors"
statute, provides:

        (1g)A court on its own motion may appoint a special
        prosecutor under sub. (1r) or a district attorney may
        request a court to appoint a special prosecutor under
        that subsection.    Before a court appoints a special
        prosecutor on its own motion or at the request of a
        district attorney for an appointment that exceeds 6
        hours per case, the court or district attorney shall
        request assistance from a district attorney, deputy
        district attorney or assistant district attorney from
        other prosecutorial units or an assistant attorney
        general.      A   district  attorney   requesting   the
        appointment of a special prosecutor, or a court if the
        court is appointing a special prosecutor on its own
        motion, shall notify the department of administration,
        on a form provided by that department, of the district
        attorney's   or  the   court's  inability   to   obtain
        assistance from another prosecutorial unit or from an
        assistant attorney general.

                                                                     (continued)
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      (1r)Any judge of a court of record, by an order
      entered in the record stating the cause for it, may
      appoint an attorney as a special prosecutor to
      perform, for the time being, or for the trial of the
      accused person, the duties of the district attorney.
      An attorney appointed under this subsection shall have
      all of the powers of the district attorney. The judge
      may appoint an attorney as a special prosecutor at the
      request of a district attorney to assist the district
      attorney in the prosecution of persons charged with a
      crime,   in  grand   jury  proceedings  or   John  Doe
      proceedings under s. 968.26, in proceedings under ch.
      980, or in investigations.   The judge may appoint an
      attorney as a special prosecutor if any of the
      following conditions exists:

      (a)There is no district attorney for the county.

      (b)The district attorney is absent from the county.

      (c)The district attorney has acted as the attorney for
      a party accused in relation to the matter of which the
      accused stands charged and for which the accused is to
      be tried.

      (d)The district attorney is near of kin to the party
      to be tried on a criminal charge.

      (e)The district attorney is physically unable to
      attend to his or her duties or has a mental incapacity
      that impairs his or her ability to substantially
      perform his or her duties.

      (f)The district attorney is serving in the U.S. armed
      forces.

      (g)The district attorney stands charged with a crime
      and the governor has not acted under s. 17.11.

      (h)The district attorney determines that a conflict of
      interest exists regarding the district attorney or the
      district attorney staff.

      (i)A judge determines that a complaint received under
      s. 968.26 (2) (am) relates to the conduct of the
                                                     (continued)
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that    the   plain   language   of    the   special   prosecutors    statute

"authorizes two distinct ways in which a court may appoint a

special prosecutor."        Carlson, 250 Wis. 2d 562, ¶8.          The first

is on the court's own motion.          Id.   The second is at the request

of a district attorney.          Id.   Where the appointment is on the

court's own motion, the court of appeals interpreted Wis. Stat.

§ 978.045(1r) as giving a court "unfettered authority" to make

the appointment, as long as the court entered an order "stating

the cause therefor."          Id., ¶¶ 5, 9 (quotation omitted) ("In
short, if a court makes a special prosecutor appointment on its

own motion, it is constrained only in that it must enter an

order in the record stating the cause for the appointment.").

"[A]ny restriction, if one exists, is triggered only when the

appointment is made at the request of a district attorney, not

when the appointment is made by a court on its own motion."

Id., ¶8.

        ¶125 Carlson thus concluded that a court need satisfy only

one of the nine conditions listed under Wis. Stat. § 978.045(1r)

when the district attorney requests the appointment of a special

prosecutor, but when the court makes the appointment on its own

motion, it need only enter an order stating the cause therefor.

"A plain reading of the statute tells us that when a court makes

this appointment on its own motion, all that is required of the
court is that it enter an order in the record 'stating the cause

        district attorney to whom the judge otherwise would
        refer the complaint.


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therefor.'"       Id., ¶9 (quoting Wis. Stat. § 978.045(1r) (1999-

2000) which addresses, in part, John Doe proceedings and a John

Doe judge's ability to appoint a special prosecutor for such

proceedings).

        ¶126 Reserve Judge Kluka relied on Carlson to appoint, on

her   own   motion,     the    special      prosecutor.       Thus,     in       order    to

justify the appointment under Carlson, Reserve Judge Kluka was

simply required to enter an order "stating the cause therefor,"

which is exactly what she did in citing concerns of efficiency

and the appearance of impropriety.
        ¶127 We note that Carlson is problematic to the point of

being suspect.        This is so because Carlson disregards the fact

that one     of   the   nine     conditions      enumerated       under     Wis.    Stat.

§ 978.045(1r)      must    exist      for    the     appointment       of    a    special

prosecutor, regardless of whether the appointment is made on the

court's own motion or at the district attorney's request.                                The

Carlson     court's     failure       to    import    this    language       from        the

governing     statute     is     an   inexplicable-and        very     likely      fatal-

defect in its holding.           While we agree with the Unnamed Movants'

interpretation     of     Wis.    Stat.     § 978.045,       we   do   not       take    the

ultimate step of overruling Carlson because to do so would go




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further than the supervisory writ allows. 41                     Simply put, despite

Carlson's       questionable        validity     we   cannot     reasonably       conclude

that Reserve Judge Kluka violated a plain legal duty in making

the appointment.

        ¶128 The issue presented also asks whether Reserve Judge

Kluka        violated    a   plain     legal     duty      in    making    the       special

prosecutor appointment where no charges have yet been issued;

where the district attorney in each county has not refused to

continue        the   investigation        or    prosecution       of     any    potential

charge; and where no certification that no other prosecutorial

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

was sought was made to the Department of Administration.                             Again,

Carlson       gave    the    John    Doe    judge      "unfettered        authority"     to
appoint        the    special   prosecutor,           so   the    absence       of    these

additional circumstances does not demonstrate that Reserve Judge

Kluka violated a plain legal duty in making the appointment.

 2. Reserve Judge Kluka Also Relied on Her Inherent Authority in

                        Appointing the Special Prosecutor.

        ¶129 Reserve Judge Kluka also stated that she appointed the

special prosecutor pursuant to her "inherent authority" under

Cummings.        The relevant issue in Cummings was whether a John Doe

        41
       The procedural posture of this case prevents us from
overruling Carlson.    If this issue were to arise in a non-
supervisory writ case we may very well overrule Carlson.
However, the supervisory writ is not an "all-purpose alternative
to the appellate review process."      State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633,
681 N.W.2d 110.


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judge has the ability to seal a search warrant.                     Id. at 733.

There the defendant argued that no statutory authority conferred

such power on John Doe judges.                 In rejecting the defendant's

argument, we reasoned:

        [A] John Doe judge has been granted jurisdiction, the
        legal right to exercise its authority, pursuant to
        Wis. Stat. § 968.27.    A grant of jurisdiction by its
        very nature includes those powers necessary to fulfill
        the    jurisdictional    mandate.      The    statutory
        jurisdiction of a John Doe judge has been defined as
        the authority of the judge to conduct a John Doe
        investigation [in order to ascertain whether a crime
        has been committed and by whom]. . . . The ability to
        seal a search warrant is exactly that type of power
        which a John Doe judge needs to fulfill [that]
        jurisdictional mandate.
Id.   at    736-37.      Thus,    while    Cummings   did    not    specifically

address     a   John   Doe   judge's   inherent    authority       to   appoint   a

special prosecutor, it provides broad language supporting the

idea that a John Doe judge possesses inherent authority where it

is necessary to facilitate its jurisdictional mandate.                     Stated

otherwise, a John Doe judge's inherent authority is limited to

what is necessary to enable the judge to properly conduct a John

Doe     proceeding.       State   ex   rel.     Individual   Subpoenaed,      281

Wis. 2d 431, ¶26; see In re John Doe Proceeding, 272 Wis. 2d

208, ¶10.

        ¶130 The Unnamed Movants argue that the only cases invoking

a court's inherent authority to appoint a special prosecutor

have arisen after charges have been filed.              See, e.g., State v.

Lloyd, 104 Wis. 2d 49, 56-57, 310 N.W.2d 617 (Ct. App. 1981).

We agree, but that is because no court has addressed whether a


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John     Doe    judge     has     inherent    authority          to   appoint    a    special

prosecutor,         which    necessarily          occurs    before     charging.         That

there is an absence of case law addressing whether a John Doe

judge has inherent authority to appoint a special prosecutor

does     not    necessarily        mean     the    John    Doe    judge   in     this       case

violated a plain legal duty in doing so. 42

        ¶131 Arguably, the broad language in Cummings could be used

to support Reserve Judge Kluka's actions in this case.                                Because

no law expressly prohibits a John Doe judge from exercising his

inherent authority to appoint a special prosecutor, the Unnamed

Movants cannot prove that Reserve Judge Kluka violated a plain

legal duty in exercising that authority to appoint the special

prosecutor.
        ¶132 Due to the existing precedent, Reserve Judge Kluka's

legal        duty   was     not    plain,    clear,        and    unequivocal        with    an

imperative responsibility to act under the facts.                               Because the

Unnamed Movants have not established that Reserve Judge Kluka

violated        a    plain        legal   duty      in      appointing      the       special

prosecutor, we deny their petition for a supervisory writ and

affirm the court of appeals. 43


        42
       While   we   do   not   endorse Reserve Judge  Kluka's
interpretation of her inherent authority in this instance, we
cannot say her conduct of appointing a special prosecutor was
violative of a plain legal duty.
        43
       We need not address what effect an unlawful appointment
would have had because no violation of a plain legal duty
occurred.


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                                           VI. CONCLUSION

           ¶133 Our lengthy discussion of these three cases can be

distilled         into     a   few        simple,       but    important,           points.      It   is

utterly clear that the special prosecutor has employed theories

of law that do not exist in order to investigate citizens who

were wholly innocent of any wrongdoing.                                   In other words, the

special prosecutor was the instigator of a "perfect storm" of

wrongs that was visited upon the innocent Unnamed Movants and

those       who   dared        to    associate          with      them.         It    is     fortunate,

indeed,       for    every      other       citizen          of   this    great        State    who   is

interested in the protection of fundamental liberties that the

special prosecutor chose as his targets innocent citizens who

had both the will and the means to fight the unlimited resources

of    an     unjust       prosecution.             Further,          these     brave       individuals

played        a   crucial           role     in        presenting        this        court     with   an

opportunity          to     re-endorse            its       commitment         to     upholding       the

fundamental right of each and every citizen to engage in lawful

political         activity          and    to     do    so    free    from      the     fear    of    the

tyrannical retribution of arbitrary or capricious governmental

prosecution.          Let one point be clear: our conclusion today ends

this unconstitutional John Doe investigation.

                                                       A.

           ¶134 In    Two       Unnamed           Petitioners,            we        hold     that     the

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

unconstitutionally overbroad and vague under the First Amendment

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


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the Wisconsin Constitution because its language "'is so sweeping

that its sanctions may be applied to constitutionally protected

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

Janssen, 219 Wis. 2d at 374 (quoting Bachowski, 139 Wis. 2d at

411).     However, a readily available limiting construction exists

that    we   will      apply    and     that    will      prevent      the   chilling    of

otherwise protected speech; namely, that "political purposes" is

limited to express advocacy and its functional equivalent as

those terms are defined in Buckley and WRTL II.                                  With this
limiting construction in place, Chapter 11 does not proscribe

any of the alleged conduct of any of the Unnamed Movants.                               The

special prosecutor has not alleged any express advocacy, and

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

of [Ch. 11]."            Barland II, 751 F.3d at 815.                   Accordingly, we

invalidate the special prosecutor's theory of the case, and we

grant the relief requested by the Unnamed Movants.

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

investigation because the special prosecutor's legal theory is

unsupported       in      either      reason        or   law.       Consequently,       the

investigation is closed.               Consistent with our decision and the

order    entered       by    Reserve    Judge       Peterson,     we    order    that   the

special prosecutor and the district attorneys involved in this

investigation          must    cease      all        activities        related    to    the

investigation, return all property seized in the investigation

from any individual or organization, and permanently destroy all

copies of information and other materials obtained through the


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investigation.          All Unnamed Movants are relieved of any duty to

cooperate further with the investigation.

                                               B.

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

prosecutor       has     failed       to    prove     that   Reserve       Judge      Peterson

violated a plain legal duty when he quashed the subpoenas and

search warrants and ordered the return of all property seized by

the special prosecutor.                    In quashing the subpoenas and search

warrants, Reserve Judge Peterson exercised his discretion under

the   John      Doe    statute,       Wis.    Stat.     § 968.26,     to    determine        the

extent     of     the        investigation.            Because   the       purpose      of    a

supervisory           writ     does     not     include      review        of    a     judge's

discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory
writ sought by the special prosecutor is denied, and Reserve

Judge Peterson's order is affirmed.

                                               C.

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

the Unnamed Movants have failed to prove that either Reserve

Judge Kluka or Reserve Judge Peterson violated a plain legal

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

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

a special prosecutor.                  Although the circumstances surrounding

the     formation       of     the     John    Doe     investigation       raise      serious

concerns, and the appointment of the special prosecutor may well

have been improper, such concerns do not satisfy the stringent

standards of a supervisory writ.                     Put another way, if we were to


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grant        the    supervisory     writ    in   this     case,    we    would    risk

"transform[ing] the writ into an all-purpose alternative to the

appellate          review     process,"     which    we     cannot       do.       Id.

Accordingly,         we     deny   the   supervisory      writ    and    affirm   the

decision of the court of appeals.

        By the Court.—Declaration of rights; relief granted; John

Doe investigation ordered closed in Two Unnamed Petitioners.

        By    the    Court.—Petition       for   supervisory      writ   denied    and

order affirmed in Schmitz v. Peterson.
        By    the    Court.—Petition       for   supervisory      writ   denied    and

decision affirmed in Three Unnamed Petitioners.

        ¶138 ANN WALSH BRADLEY, J., did not participate.




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     ¶139 DAVID        T.    PROSSER,    J.       (concurring).         The    court      is

confronted with three separate but overlapping cases related to

a John Doe investigation involving [————————————————————————————

————————————————————————————————————————————————————————], and a

substantial     number       of    organizations      and      individuals        who    are

associates and political allies of [——————————————].

     ¶140 This is the second John Doe investigation initiated by

the Milwaukee County District Attorney's Office that has focused
on [——————————————] and [————] political circle.                             The present

investigation concerns alleged campaign finance violations, but

the scope of the investigation is sufficiently broad that it

amounts   to    a    fishing       expedition       into    the     lives,    work,      and

thoughts of countless citizens.

     ¶141 For all practical purposes, the court has merged the

two writ cases 1 into the original action 2 and invited the parties
to submit briefs on all issues, even if an issue was not part of

the party's original case.

     ¶142 The        consolidated      case      presents      at   least    14    issues.

Collectively        they    are    complex    and   difficult.         They       also   are

important to the people of Wisconsin.                  Many of these issues are

addressed      in    the    majority    opinion.           I   write   separately         to

provide my own analysis and perspective on the following issues:

     1
       State ex rel. Schmitz v. Peterson, 2014AP417-W through
2014AP421-W; State ex rel. Three Unnamed Petitioners v.
Peterson, 2013AP2504-W through 2013AP2508-W.
     2
       State ex rel. Two Unnamed Petitioners v. Peterson, No.
2014AP296-OA.


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       (1)    Issues     4    and    5     related      to     the   appointment       of    the

special prosecutor.

       (2) Issue 14 related to several search warrants.                              However,

the record in this matter requires discussion of search warrants

and subpoenas beyond the warrants identified in Issue 14.

       (3)    Issue    6     related       to    the       application    of    Wis.        Stat.

§ 11.26(13m) to contributions in recalls.

       (4)    Issues     relating         to    several       different       provisions      in
Chapter 11 of the Wisconsin Statutes.

       ¶143 This concurring opinion discusses issues arising out

of a John Doe investigation that is subject to multiple broad

secrecy orders.        Full adherence to these secrecy orders in their

original breadth is impossible because full adherence would mean

that the court could not acknowledge what the John Doe is about

or    discuss    fully       the    numerous         issues     bearing   on     the    scope,

conduct, and propriety of the investigation.
       ¶144 "Secrecy         of     John       Doe    proceedings       and    the     records

thereof is not maintained for its own sake."                           State v. O'Connor,
77 Wis. 2d 261, 252 N.W.2d 671 (1977).                          Instead, "[t]he policy

underlying secrecy is directed to promoting the effectiveness of

the   investigation.              Therefore,         any    secrecy    order     'should      be

drawn    as     narrowly       as    is        reasonably       commensurate      with       its

purposes.'"       State ex rel. Unnamed Person No. 1 v. State, 2003

WI 30, ¶61, 260 Wis. 2d 653, 660 N.W.2d 260 (quoting O'Connor,

77 Wis. 2d at 286).            In making determinations about the scope of

a    secrecy    order,       "[a]     balance         must     be    struck    between       the

public's       right   to      be    informed          about     the   workings        of     its

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government and the legitimate need to maintain the secrecy of

certain John Doe proceedings."                   Id., ¶66.

      ¶145 It is important to protect the targets of a John Doe

investigation when it is determined that they have not committed

a crime.     This protection extends to the identity of individual

people as well as the content of their private communications

and other records obtained in the course of the investigation.

Here, there is no similar interest in protecting the actions of

the   John   Doe    judge        or    the   special       prosecutor.             Because    the

majority orders the John Doe investigation "closed," it cannot

be said that the continued secrecy of certain facts in this

matter——the     scope          and     nature        of   the    investigation,           search

warrants, and subpoenas, for example——is necessary to protect

the   integrity         of     this    or    a    future    John       Doe    investigation.

Accordingly, I conclude that discussion of these facts is not

inconsistent with the secrecy order.
      ¶146 Thus,             this     concurring          opinion       does        not      name

individuals        or        organizations,          except      the     individuals          and

organizations           who     initiated         and     conducted          the     John    Doe

investigation.                State    and       local     government        officials       who

initiate sweeping criminal investigations of Wisconsin citizens

cannot expect to keep their conduct secret indefinitely, and

appellate courts reviewing state and local government conduct do

not   provide      the        public    with      the     full    reasoning         for     their

decisions if they are unwilling or unable to discuss the facts

essential to these decisions.                     See majority op., ¶14 n.11, ¶88

n.25.

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     ¶147 My interpretation of the secrecy order is essential to

the discussion of certain procedural issues and is taken (1)

after discussion with the court, (2) with knowledge that much

information about the investigation has already been disclosed,

and (3) with experience that additional disclosure in the future

is likely.

     ¶148 In    my     view,      all    issues      of   law    in    this       matter    are

subject to de novo review.
     ¶149 I    join     Section         III   of   the    majority         opinion,      and    I

concur in the result of Section IV.                      Although I agree with most

of the discussion in Section IV, I would reach the result as a

matter of law.

                                              I

     ¶150 Scott       Walker       was    elected        governor      of    Wisconsin         on

November 2, 2010.           He was sworn in as governor on January 3,

2011.

     ¶151 On        February      14,     2011,     Governor       Walker      proposed        a

Budget Repair Bill that was intended to deal with the state's

fiscal   situation      for       the    remaining        months      of    the    2009-2011

biennium and for the 2011-2013 biennium beginning on July 1,

2011.     Legislation          to       implement        the    governor's         plan     was

introduced     in    both    the     Senate        and    Assembly.          The    proposed

legislation     included          provisions        requiring       additional           public

employee contributions for health care and pensions.                                    The two

bills also included provisions curtailing collective bargaining

rights   for   most     state      and    local     public      employees         and    making

appropriations.

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         ¶152 The    history        of    this       legislation——which           became      2011

Wis. Act 10 (Act 10)——is discussed in State ex rel. Ozanne v.

Fitzgerald,     2011     WI    43,       334     Wis. 2d 70,       798      N.W.2d 436,        and

Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851

N.W.2d 337.         See also Wis. Educ. Ass'n Council v. Walker, 705

F.3d 640 (7th Cir. 2013).

         ¶153 Act 10 was highly controversial.                         Intense opposition

in the legislature included more than 60 consecutive hours of

debate in the Assembly and the departure of all 14 Democratic

senators from the state for nearly a month to deprive the Senate

of   a    sufficient    quorum           to   pass     the   original        bill.       Public

opposition     to     Act   10      included         massive     demonstrations          at    the

Wisconsin State Capitol.                 The demonstrations were so large that

they garnered national and international attention.                                There were

many smaller demonstrations throughout Wisconsin.
         ¶154 After    its       passage,            the   Act    10     legislation           was

challenged      in    the     Dane       County       Circuit     Court      on    procedural

grounds to prevent its publication as an act.                                 It was later

challenged again in both federal and state courts in an effort

to   invalidate       several        of       its     provisions       on    constitutional

grounds.      The main challenge to Act 10 was not resolved by this

court until mid-2014.            Madison Teachers, 358 Wis. 2d 1.

         ¶155 The introduction and passage of Act 10 also led to

efforts (1) to defeat a supreme court justice in April 2011,

producing      an     exceptionally            close       election         and    the     first

statewide candidate recount in Wisconsin history; (2) to recall

16 state senators in July and August 2011, nine of whom were

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forced to run for reelection; and (3) to recall the governor,

lieutenant governor, and five state senators in June 2012.                        Four

of the five senators had to run for reelection.

     ¶156 Two Republican state senators were defeated in 2011

and one Republican state senator was defeated in 2012.                            The

latter   election    shifted     control     of   the      state   senate    to    the

Democrats.      This was the second time in recent years that a

recall election in Wisconsin shifted control of the state senate
to the Democratic party. 3
     ¶157 The John Doe investigation under review is ostensibly

about alleged criminal activity by [——————————————], ———————————

———————————],      and   [——————————]        during     the     multiple      recall

elections described above.             In an affidavit in support of the

petition     for   the   John    Doe    proceeding         in   August    2012,    an

investigator in the Milwaukee County District Attorney's office

wrote:

          3.   The purposes and              goals    of    this   John     Doe
     investigation would be to:

                a.   Determine the nature and extent of an
     agreement or understanding related to the solicitation
     by [————————————————————————————————], and [——————————
     ——————————————————], [————————————————————————————————
     ——————————————————] in the 2011 and 2012 recall
     elections,    for    contributions  to   organizations
     regulated by Title 26 U.S.C. 501(c)4 contrary to

     3
       The first Wisconsin legislator to be successfully recalled
was Senator George Petak (R-Racine), who lost a recall election
on June 4, 1996.     In 1995 Senator Petak voted for a bill to
authorize financing for a new baseball stadium for the Milwaukee
Brewers.   Senator Petak's recall shifted control of the Senate
to the Democratic Party.


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     Wisconsin Stats           sec.   11.10(4),         11.26,    11.27    and
     11.61(1)(b);

               b.   Determine   whether  the  circumstances
     under which the solicitation and use of said campaign
     contributions were to circumvent the provisions of
     Wisconsin Stats sec. 11.26 and 11.27(1) by individuals
     and others identified above, for a criminal purpose in
     order to avoid the requirements of Wisconsin Stats.
     Sec. 11.06(1) and 11.27(1).
     ¶158 In     fact,    however,       the      Milwaukee      County    District

Attorney's      Office    targeted           [——————————————]         circle      for

investigation before [——————————————————————], and it has framed
the present investigation to include alleged campaign finance

violations dating from 2009 through the 2012 recall elections.

     ¶159 Almost immediately after the introduction of Governor

Walker's     Budget   Repair     Bill,     talk    of    his     recall   began   to

surface.     However, because Walker was elected in 2010 and did

not take office until January 3, 2011, he could not be recalled

under the constitution until 2012 "after the first year of the

term for which the incumbent was elected."                       Wis. Const. art.

XIII,   § 12.     Consequently,       Walker's      opponents        focused   their

attention in the short term on a pending race for the supreme
court and the recall of eight Republican state senators elected

in 2008: Robert Cowles (District 2); Alberta Darling (District

8); Sheila Harsdorf (District 10); Luther Olsen (District 14);

Randy Hopper (District 18); Glenn Grothman (District 20); Mary

Lazich (District 28); and Dan Kapanke (District 32).                           Formal

recall efforts for these senators began on March 2, 2011.

     ¶160 Opponents      of     Governor     Walker      and   the   senators     who

voted for Act 10 succeeded in obtaining the required signatures

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to    force     recall       elections          for     Senators        Cowles,    Darling,

Harsdorf, Olsen, Hopper, and Kapanke.                           They failed to obtain

sufficient      signatures         to    force       recall   elections     for        Senators

Grothman and Lazich.

       ¶161 Supporters         of       Governor       Walker     attempted       to    recall

eight Democratic state senators, namely, Lena Taylor (District

4); Spencer Coggs (District 6); James Holperin (District 12);

Mark Miller (District 16); Robert Wirch (District 22); Julie
Lassa (District 24); Fred Risser (District 26); and Dave Hansen

(District 30).         Their formal efforts began as early as February

22    (District      12).     They       succeeded       in   obtaining     the        required

number    of    signatures         to    force       recall   elections     for        Senators

Holperin, Wirch, and Hansen.                    They failed to obtain sufficient

signatures to force recall elections for Senators Taylor, Coggs,

Miller, Lassa, and Risser.

       ¶162 In the 2011 recall elections, Senators Randy Hopper

and    Dan     Kapanke      were    defeated.            Senators       Cowles,        Darling,

Harsdorf, Holperin, Olsen, Wirch, and Hansen were reelected.

       ¶163 Opponents of Governor Walker sought to recall Walker

and Lieutenant Governor Rebecca Kleefisch and four Republican

state    senators,       namely,        Scott        Fitzgerald    (District       13);    Van

Wanggaard (District 21), Terry Moulton (District 23); and Pam

Galloway (District 29), in 2012.                      Supporters of Governor Walker

attempted       to    recall        Senator          Robert     Jauch     (District       25).

Insufficient signatures were submitted to recall Senator Jauch.

However, all the Republican targets faced recall elections in

2012, except Senator Galloway, who resigned on March 16, 2012.

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She was replaced by Representative Jerry Petrowski, who ran in

the recall general election.

      ¶164 The timing of the recall elections in 2011 and 2012

was complicated by multiple different filing dates for recall

petitions and a substantial number of primary elections.                        Recall

petitions were filed with the Government Accountability Board

(GAB) on April 1, 2011 (Senator Kapanke); April 7, 2011 (Senator

Hopper); April 18, 2011 (Senator Olsen); April 19, 2011 (Senator
Harsdorf); April 21, 2011 (Senators Darling, Holperin, Wirch,

and Hansen); and April 25, 2011 (Senator Cowles).

      ¶165 Primary      elections    were          held    on    July   12,   2011,    in

Senate Districts 2, 8, 10, 14, 18, and 32.                         Primary elections

were held on July 19, 2011, in Districts 12 and 22.

      ¶166 In 2011 the recall general elections were held on July

19, 2011 (District 30); August 9, 2011 (Districts 2, 8, 10, 14,

18, and 32); and August 16, 2011 (Districts 12 and 22).

      ¶167 In 2012 the primary elections for governor, lieutenant

governor, and the four senate seats in Districts 13, 21, 23, and

29 were held on May 8.           The recall general elections were held

on June 5, 2012.        Senator Van Wanggaard was defeated.                   Governor

Walker, Lieutenant Governor Kleefisch, and Senators Fitzgerald

and   Moulton    were    reelected.            Representative           Petrowski     was

elected as a Republican to succeed Senator Galloway.

      ¶168 The seemingly insignificant factual details of these

multiple   elections     are    important          to     show   the    unprecedented,

unscheduled     electoral      activity       in    Wisconsin      during     2011    and



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2012,   and   to    relate     these    multiple     elections    to    Wisconsin

campaign finance laws.

                                         II

     ¶169 Wisconsin      statutory        law   on    recalls     is    contained

primarily in Wis. Stat. § 9.10.               This section is intended "to

facilitate the operation of article XIII, section 12, of the

[Wisconsin]     [C]onstitution,"         Wis.      Stat.   §    9.10(7),    which

provides for the recall of "any incumbent elective officer after
the first year of the term for which the incumbent was elected."

Wis. Const. art. XIII, § 12.

     ¶170 "[A] petition for recall of an officer shall be signed

by electors equal to at least 25% of the vote cast for the

office of governor at the last election within the same district

or territory as that of the officeholder being recalled."                   Wis.

Stat. § 9.10(1)(b).

     ¶171 Wisconsin      Stat.         § 9.10(2)     outlines     the    petition

requirements,      including    the    design   of    recall    petition   forms.

Paragraph (2)(d) provides:

          No petition may be offered for filing for the
     recall of an officer unless the petitioner first files
     a registration statement under s. 11.05(1) or (2) with
     the filing officer with whom the petition is filed.
     The petitioner shall append to the registration a
     statement indicating his or her intent to circulate a
     recall petition, the name of the officer for whom
     recall is sought and, in the case of a petition for
     the recall of a city, village, town, town sanitary
     district, or school district officer, a statement of a
     reason for the recall which is related to the official
     responsibilities of the official for whom removal is
     sought. . . . The last date that a petition for the
     recall of an officer may be offered for filing is 5
     p.m.    on    the    60th    day    commencing   after

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        registration. . . .   No signature may be counted
        unless the date of the signature is within the period
        provided in this paragraph.
       ¶172 Paragraph (2)(d) is significant in several respects.

First,     a    recall      effort        cannot         formally       begin     until   a

registration statement is filed under Wis. Stat. § 11.05(1) or

(2).     However, the organization of a recall campaign may begin

much earlier than the date of registration, and the planners and

organizers       are     not      required        to     report        any   activity     or

expenditure         to   launch    the     campaign           except    expenditures      by

already-registered political committees.
       ¶173 Second, supporters of a recall campaign have 60 days

after registration to circulate and file their recall petitions.

However, organizers of the Scott Walker recall petition shrewdly

selected Tuesday, November 15, 2011, to register their recall

efforts.       Under Wis. Stat. § 990.001(4)(a), which deals with how

time is computed under the Wisconsin Statutes, the first day is

excluded       in     counting      the    60          days.       Under     Wis.     Stat.

§ 990.001(4)(c), if the deadline for filing a document is on a

day when the filing office is closed, the filing "may be done on

the    next    succeeding      day    that        is    not    a   Sunday    or   a   legal

holiday."       The Walker recall petition was due on January 14,

2012.     However, January 14 was a Saturday, which meant that the

petition did not have to be filed until Tuesday, January 17,

because January 16 was a legal holiday (Martin Luther King's

birthday).          This gave the organizers 64 days to circulate and

file the Walker, Kleefisch, Fitzgerald, Wanggaard, Moulton, and

Galloway recall petitions.

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     ¶174 Third,    Wis.     Stat.   § 9.10(2)(b)   makes   plain   that   no

stated reason is required to recall a state officer, as opposed

to a local official.

     ¶175 Wisconsin Stat. § 9.10(3)(b) provides that:

          Within 10 days after the petition is offered for
     filing, the officer against whom the petition is filed
     may file a written challenge with the official,
     specifying any alleged insufficiency.   If a challenge
     is filed, the petitioner may file a written rebuttal
     to the challenge with the official within 5 days after
     the challenge is filed.    If a rebuttal is filed, the
     officer against whom the petition is filed may file a
     reply to any new matter raised in the rebuttal within
     2 days after the rebuttal is filed.     Within 14 days
     after the expiration of the time allowed for filing a
     reply to a rebuttal, the official shall file the
     certificate or an amended certificate.
     ¶176 Subsection (3)(b) continues:

     Within 31 days after the petition is offered for
     filing, the official with whom the petition is offered
     for filing shall determine by careful examination
     whether the petition on its face is sufficient and so
     state in a certificate attached to the petition.    If
     the official finds that the amended petition is
     sufficient, the official shall file the petition and
     call a recall election to be held on the Tuesday of
     the 6th week commencing after the date of filing of
     the petition.
(Emphasis added.)

     ¶177 Subsection (3)(f) provides that "If a recall primary

is required, the date specified under par. (b) shall be the date

of the recall primary and the recall election shall be held on

the Tuesday of the 4th week commencing after the recall primary

or, if that Tuesday is a legal holiday, on the first day after

that Tuesday which is not a legal holiday."



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      ¶178 Subsection     (3),    too,        is   important    in   this   matter.

First, the statute builds in certain protections for a public

officer against whom a recall petition is filed.                     Consequently,

no   recall   primary    or    recall    election      may     proceed   until   the

official with whom the petition is filed certifies the recall

and orders a recall election.             The review process can be very

time consuming, especially if all available process is utilized.

      ¶179 In this case, recall elections were certified by the
Government Accountability Board as follows:

                                        2011

               Officer                             Recall Certified

      District 2 (Robert Cowles)                     June 3, 2011

      District 8 (Alberta Darling)                   June 3, 2011

      District 10 (Sheila Harsdorf)                  June 3, 2011

      District 12 (Jim Holperin)                     June 10, 2011

      District 14 (Luther Olsen)                     June 3, 2011

      District 18 (Randy Hopper)                     June 3, 2011

      District 22 (Robert Wirch)                     June 10, 2011

      District 30 (Dave Hansen)                      June 10, 2011

      District 32 (Dan Kapanke)                      June 3, 2011
                                        2012

         Officer                                    Recall Certified

      Governor Scott Walker                          March 30, 2012

      Lt. Governor Rebecca Kleefisch                 March 30, 2012

      District 13 (Scott Fitzgerald)                 March 30, 2012

      District 21 (Van Wanggaard)                    March 30, 2012

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      District 23 (Terry Moulton)                March 30, 2012

      District 29 (Pam Galloway)                 March 30, 2012
      ¶180 Second,    Wis.      Stat.     § 11.26      sets    limits     on

contributions, as defined in Wis. Stat. § 11.01(6).                However,

subsection (13m) of § 11.26 contains two specific exceptions to

these contribution limits:

           Contributions utilized for the following purposes
      are not subject to limitation by this section:

           (a) For the purpose of payment of legal fees and
      other expenses incurred as a result of a recount at an
      election.

            (b) For the purpose of payment of legal fees and
      other    expenses incurred   in  connection   with  the
      circulation, offer to file or filing, or with the
      response to the circulation, offer to file or filing,
      of a petition to recall an officer prior to the time a
      recall primary or election is ordered, or after that
      time if incurred in contesting or defending the order.
(Emphasis added.)

      ¶181 The plain language of Wis. Stat. § 11.26(13m) provides

that there is no limitation on contributions for payments made

for   certain   purposes    from    the   date    a   recall   campaign   is

registered until the date a recall election is ordered.                 There

also is no limitation on contributions for payment of legal fees

and other expenses incurred as a result of a recount.

      ¶182 For the nine successful recall petitions in 2011, the

periods of exemption were as follows:

      District 2                   March 2, 2011—June 3, 2011 = 94 days

      District 8                   March 2, 2011—June 3, 2011 = 94 days

      District 10                  March 2, 2011—June 3, 2011 = 94 days

      District 12          February 22, 2011—June 10, 2011 = 109 days
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     District 14                   March 2, 2011—June 3, 2011 = 94 days

     District 18                   March 2, 2011—June 3, 2011 = 94 days

     District 22           February 24, 2011—June 10, 2011 = 107 days

     District 30           February 25, 2011—June 10, 2011 = 106 days

     District 32                   March 2, 2011—June 3, 2011 = 94 days
     ¶183 For the six successful recall petitions for 2012, the

periods of exemption were as follows:

     Governor              November 15, 2011—March 30, 2012 = 137 days

     Lt. Governor          November 15, 2011—March 30, 2012 = 137 days

     District 13           November 15, 2011—March 30, 2012 = 137 days

     District 21           November 15, 2011—March 30, 2012 = 137 days

     District 23           November 15, 2011—March 30, 2012 = 137 days

     District 29           November 15, 2011—March 30, 2012 = 137 days
     ¶184 There     were    two    recounts      during    the   period      under

review——the statewide recount of the 2011 supreme court election

and the recount in Senate District 21 in 2012.
     ¶185 During      periods      of        exemption,     individuals         and

organizations that are permitted to make contributions to recall

campaigns may make unlimited contributions to support or oppose
a recall effort.       If these individuals and organizations are

permitted to support or oppose recall efforts with unlimited

contributions during exempt periods, they are likewise permitted

to   seek   contributions      during        these   periods     and    to   make

contributions     during   these    periods      that     will   be    lawful   in

periods that are not exempt under Wis. Stat. § 11.26(13m).

     ¶186 In 2011 there were 156 exempt days between February 22

and December 31 related to recall elections.               In 2012 there were
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90 exempt days between January 1 through March 30 related to

recall elections.

     ¶187 In sum, irrespective of any First Amendment or due

process    limitations    on     the    regulation        of   campaign    finance,

Wisconsin    campaign    finance       statutes    were    largely     inapplicable

during 246 of the days under investigation, by virtue of Wis.

Stat. § 11.26(13m).           This figure does not include exempt days

for fundraising and contributions to pay for the 2011 statewide
recount for the supreme court.

                                         III

     ¶188 On    June     5,    2012,     Governor    Walker      won   the   recall

election with more than 53 percent of the vote.                   Walker was the

third governor in United States history to be recalled.                      He was

the first to be reelected.

     ¶189 Approximately two months later, on August 10, 2012, a

Milwaukee    County     assistant       district    attorney,      David     Robles,

filed a petition for commencement of this John Doe investigation

in Milwaukee County.          The petition was filed in Milwaukee County

Circuit Court.    The petition sought leave to investigate alleged

campaign finance violations and requested a secrecy order to

cover the investigation in anticipation that documents would be

sought from "[——————————————————————————————————————————————————

———————————————————————————————————————————————————————————————]

personal          campaign                committee . . . and . . . related

organizations."

     ¶190 The petition necessitated the appointment of a John

Doe judge.     The judge appointed was Barbara Kluka, a prominent

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reserve    judge   from    Kenosha     County.      Issues    related   to   this

appointment are presently before the court.                  I am not persuaded

that there are defects in Judge Kluka's appointment.

       ¶191 On September 5, 2012, Judge Kluka granted the petition

and issued an order for commencement of the John Doe proceeding.

The same day, Judge Kluka granted a secrecy order.

       ¶192 The next day, the Milwaukee County District Attorney's

Office sought and received search warrants for the private e-
mail   accounts    of   13      individuals,     including    [——————————————].

The private e-mail accounts were obtained from [————————————————

————————————————].        The search warrants required the recipient

"electronic communication service providers" to produce

       all communications stored in the account[s] including
       all incoming and outgoing e-mail; subscriber names,
       user   names,   screen   names or   other  identities
       associated with the account[s]; mailing addresses,
       residential addresses, business addresses, other e-
       mail addresses, telephone numbers or other contact or
       identifying information for [these] account[s] (in
       electronic or other form); billing records; contact
       lists, information about length of service, types of
       services or related information; connection logs and
       records of user activity, and any information related
       to sent and received communications, including any
       "chat" or "instant messaging" or related information
       for said account[s] . . . .
(Emphasis added.)         The time frame for the search warrants was

from April 11, 2009, to July 1, 2012.

       ¶193 The district attorney's office also obtained either a

search warrant or a subpoena duces tecum for conference call

records from [——————————————————] and for three bank accounts

from   a   bank.    All      these   search    warrants   and   subpoenas    were

subject to a secrecy order.
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     ¶194 On       December        12,        2012,     the      Milwaukee     District

Attorney's       Office    asked        for   additional      search    warrants     and

subpoenas    for    the     private       e-mail      accounts     of   11   additional

individuals, as well as additional private accounts for five

previously named individuals, including [————————————].                            These

accounts were obtained from [12 electronic communication service

providers].       E-mail accounts were sought from January 1, 2011,

through July 31, 2012.                  The office also sought bank account
records    from    [a     bank]    and    conference      call     records    from   two

providers.       All these search warrants and subpoenas were subject

to a secrecy order.

     ¶195 On       January        18,     2013,       Milwaukee     County     District

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

Hollen to discuss the ongoing investigation.                       District Attorney

Chisolm sought to determine whether, given the statewide nature

of the investigation, the Attorney General's office wished to

become involved in the investigation.                   On May 31, 2013, Attorney

General    Van    Hollen    sent        District      Attorney    Chisholm    a   letter

declining involvement in the investigation.                         Attorney General

Van Hollen cited, among other things, potential conflicts of

interest    [——————————————————————————————————————————————————————

————————————————————————————].

     ¶196 On June 20, 2013, the Government Accountability Board

met in closed session in Madison to discuss the investigation.

The Board passed two motions [——————————————————————————————————

————————————————————————————————————————————————————————————————



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——————————————————]           and     one    to       hire    special       investigators          to

assist with the investigation.

      ¶197 On    July       16,     2013,    Francis          Schmitz       was    chosen     as   a

special investigator for the GAB.

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

Doe proceedings were filed: District Attorney Jane Kohlwey filed

a   petition    in    Columbia        County      on        July    22,    District    Attorney

Larry Nelson filed a petition in Iowa County on July 25,                                       and
District Attorney Kurt Klomberg filed a petition in Dodge County

on July 26.      On August 21, District Attorney Ismael Ozanne filed

a petition in Dane County to commence a John Doe proceeding.

All these petitions included a request that the proceedings be

subject to a secrecy order.

      ¶199 Also on August 21, 2013, the district attorneys from

the five counties involved (Milwaukee, Columbia, Iowa, Dodge,

and   Dane)     sent    a     letter        to    John        Doe     Judge    Barbara      Kluka

requesting the appointment of a special prosecutor to oversee

the   entire     investigation.                  The        letter    recommended        Francis

Schmitz.      On August 23, Judge Kluka appointed Schmitz to be the

special prosecutor for each of the five John Doe investigations.

      ¶200 On     or    about         October          1,     2013,       Special    Prosecutor

Schmitz    applied     to     Judge     Kluka          for    additional          subpoenas    and

search warrants, supported by lengthy affidavits.                                  The subpoena

applications         sought         information             about     29      businesses       and

organizations, including political party organizations, about a

large number of persons who were not candidates, and about all

candidates and campaign committees involved in 2011 and 2012

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recall elections.         The application sought subpoenas for at least

21     businesses,      organizations,             and     party       organizations         to

disclose      information       about       and        relationships      with      all     the

enumerated      businesses,          organizations,            and    individuals         noted

above.      The special prosecutor issued more than 30 subpoenas.

       ¶201 There       also        were    search       warrant       applications         for

residences and/or offices of five individuals.                                These search

warrants were very broad in nature and covered the time period
from March 1, 2009 to the date the warrants were issued.

       ¶202 The      search     warrants         and    subpoenas      authorized      on    or

about October 1 by Judge Kluka are at issue before the court.

                                             IV

       ¶203 The first issue for discussion here is the legality of

the    appointment      of     Francis      Schmitz       as    the    John   Doe     special

prosecutor.          On August 21, 2013, district attorneys from the

five    counties      involved       in    the    John    Doe    investigation        sent    a

letter to Judge Kluka requesting the appointment of a special

prosecutor      to    oversee       the    entire       investigation.          The   letter

recommended the appointment of Francis Schmitz.                            On August 23,

Judge Kluka appointed Schmitz to be the special prosecutor, at a

rate of $130 per hour, for the John Doe investigation in each of

the five counties.

       ¶204 Wisconsin           Stat.        § 978.045,              entitled       "Special

prosecutors," constitutes most of the statutory authority for

the appointment of special prosecutors. 4                            This section, which

       4
           See also Wis. Stat. §§ 978.03(3), 978.043.


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dates    back   to   1989, 5    has   four   subsections.     The   first   two

subsections read, in part, as follows:

          (1g) A court on its own motion may appoint a
     special prosecutor under sub. (1r) or a district
     attorney may request a court to appoint a special
     prosecutor under that subsection.      Before a court
     appoints a special prosecutor on its own motion or at
     the request of a district attorney for an appointment
     that exceeds 6 hours per case, the court or district
     attorney shall request assistance from a district
     attorney,   deputy  district  attorney   or  assistant
     district attorney from other prosecutorial units or an
     assistant attorney general.      A district attorney
     requesting the appointment of a special prosecutor, or
     a court if the court is appointing a special
     prosecutor on its own motion, shall notify the
     department of administration, on a form provided by
     that department, of the district attorney's or the
     court's inability to obtain assistance from another
     prosecutorial unit or from an assistant attorney
     general.

          (1r) Any judge of a court of record, by an order
     entered in the record stating the cause for it, may
     appoint an attorney as a special prosecutor to
     perform, for the time being, or for the trial of the
     accused person, the duties of the district attorney.
     An attorney appointed under this subsection shall have
     all of the powers of the district attorney. The judge
     may appoint an attorney as a special prosecutor at the
     request of a district attorney to assist the district
     attorney in the prosecution of persons charged with a
     crime,   in  grand   jury   proceedings  or  John  Doe
     proceedings under s. 968.26, in proceedings under ch.
     980, or in investigations.    The judge may appoint an
     attorney as a special prosecutor if any of the
     following conditions exist:
Wis. Stat. § 978.045(1g)-(1r).




     5
         1989 Wis. Act 117, § 5.


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     ¶205 At this point, the subsection lists nine "conditions"

that justify appointment of a special prosecutor:

          (a)    There    is     no    district    attorney     for    the
     county.

          (b)    The   district       attorney    is   absent   from   the
     county.

          (c) The district attorney has acted as the
     attorney for a party accused in relation to the matter
     of which the accused stands charged and for which the
     accused is to be tried.

          (d) The district attorney is near of kin to the
     party to be tried on a criminal charge.

          (e) The district attorney is physically unable
     to attend to his or her duties or has a mental
     incapacity that impairs his or her ability to
     substantially perform his or her duties.

          (f) The district attorney is serving in the U.S.
     armed forces.

          (g) The district attorney stands charged with a
     crime and the governor has not acted under s. 17.11.

          (h) The district attorney determines that a
     conflict of interest exists regarding the district
     attorney or the district attorney staff.

          (i)    A judge determines that a complaint received
     under s.    968.26(2)(am) relates to the conduct of the
     district    attorney to whom the judge otherwise would
     refer the   complaint.
Wis. Stat. § 978.045(1r).
     ¶206 Section 978.045 is clear.              The court appoints special

prosecutors under these two subsections.               The court can make an

appointment on its own motion or it can make an appointment upon

the request of a district attorney.              When the court appoints on

its own motion, it appoints under the conditions in subsection

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(1r).       When the court appoints upon the request of a district

attorney, it appoints "under that subsection," that is, under

the conditions of subsection (1r).

       ¶207 Section         978.045         spells          out    prerequisites       for

appointments under (1g) and (1r).                     One of these prerequisites is

for the court or district attorney first to request assistance

from       other    prosecutors,          including         "an    assistant      attorney

general," before appointing a special prosecutor.                           Because the

Milwaukee County District Attorney made a request for assistance

to the Wisconsin Attorney General, this prerequisite arguably

was satisfied. 6          However, the assumption that the prerequisite

was    satisfied      is    grounded        on      the   proposition      that   if   the

district attorney or court asks the Department of Justice for

assistance,        they    do    not    have     to   ask    any   other   prosecutorial

unit.      This may be a tenuous proposition.

       ¶208 A second prerequisite is found in the nine conditions

of subsection (1r).               "The judge may appoint an attorney as a


       6
       It is not clear to the writer whether a court from one
county is required to make an appointment if a district
attorney, deputy district attorney, or assistant district
attorney from another county, or an assistant attorney general,
responds to a request for assistance from the court or from the
district attorney in the court's home county.        Wis. Stat.
§ 978.045(1g). A district attorney may, on his own, appoint an
attorney to serve as a special prosecutor "without state
compensation." Wis. Stat. § 978.045(3)(a). A district attorney
from a large county also may appoint "temporary counsel as may
be authorized by the department of administration." Wis. Stat.
§ 978.03(3). Judicial appointment of a special counsel in these
situations would appear unnecessary but fully authorized if the
appointment is consistent with subsection (1r).


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special prosecutor if any of the following conditions exists."

(Emphasis added.)             If none of the enumerated conditions exists,

the   judge      is     not       authorized             to    make       an    appointment               under

subsections (1g) and (1r).

      ¶209 There            are     several             reasons         why    one        of       the     nine

conditions       must       exist           in    order       for       the    court       to       make    an

appointment.            First,          the        Department             of    Administration              is

required       to     pay     for       a    special          prosecutor            who    is       properly

appointed under these subsections.                                 Wis. Stat. § 978.045(2)(b)

("The department of administration shall pay the compensation
ordered     by        the     court              from        the    appropriation                  under    s.

20.475(1)(d).")         (emphasis                added).            The    department              does    not

appear    to     have       authority             to    reject          payment      for       a    properly

appointed      special        prosecutor.                    However,         the    legislature           did

establish conditions for these appointments before requiring the

department of administration to pay.

      ¶210 Second, if the conditions in subsection (1r) did not

have to be followed, courts could grant requests from district

attorneys      for     an     unlimited            number          of    special      prosecutors            to

supplement district attorney staffs. 7                              In other words, individual


      7
       According to one study, Wisconsin employed only two-thirds
of the number of prosecutors needed in 2012.      See Eric Litke,
Wisconsin Needs 215 More Prosecutors, Study Says, Green Bay
Press-Gazette      (Apr.     14,     2013),      available     at
http://archive.greenbaypressgazette.com/article/20130413/GPG0198
/304130026/Wisconsin-needs-215-more-prosecutors-study-says.
During the 2011-13 budget cycle, 42 of the 71 district attorneys
in the state requested funding for additional positions; none of
the requests was granted. Id.


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judges could effectively disregard the number of positions for

assistant district attorneys set out in statute.                          Cf. Wis. Stat.

§ 16.505.         District attorneys in the state's largest counties

already may appoint "temporary counsel" as authorized by the

department of administration.                     Wis. Stat. § 978.03(3).         Section

978.045 does not permit an alliance between a district attorney

and    a    judge    to    override          statutory    limitations     on   prosecutor

appointments.
       ¶211 Third, if the conditions in subsection (1r) did not

have to be followed, courts could appoint special prosecutors on

their      own      motion       for     "investigations"       of   interest     to    an

individual judge without any involvement by the local district

attorney.         This would present a significant separation of powers

issue.

       ¶212 Fourth, courts could appoint special prosecutors with

"all       the    powers        of     the     district    attorney,"      without     the

accountability            of     any     checks      on   the   special     prosecutor's

conduct, except from the appointing court.                       A special prosecutor

appointed on the court's own motion would not necessarily be

overseen by a district attorney.                      The special prosecutor could

not be recalled or defeated for reelection, never having been

elected      to     the        special    prosecutor       position.        The   special

prosecutor could be appointed by a reserve judge who would never

again face the electorate.

       ¶213 All these concerns are blunted if the court adheres to

the conditions in subsection (1r).                        None of these concerns is

addressed when the conditions are disregarded.

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      ¶214 In State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562,

641    N.W.2d 451,    the    court     of     appeals   appeared      to    reach    a

different   conclusion.          The   court    of   appeals    noted      that    Wis.

Stat. § 978.045 "authorizes two distinct ways in which a court

may appoint a special prosecutor."             Id., ¶8.      The court said:

      Carlson directs us to the sentence in the statute that
      authorizes the court's appointment of a special
      prosecutor when it is at the request of a district
      attorney. . . . We agree with Carlson that the part
      of the statute that he relies upon for his argument
      lists, and arguably restricts, the circumstances in
      which a court may appoint a special prosecutor.[4]
      However, any restriction, if one exists, is triggered
      only when the appointment is made at the request of a
      district attorney, not when the appointment is made by
      a court on its own motion.
Id. (emphasis added).

      ¶215 Footnote 4 in the court's opinion reads as follows:

           The part of the statute that Carlson relies upon
      states: "The judge may appoint an attorney as a
      special prosecutor at the request of a district
      attorney to assist the district attorney in the
      prosecution of persons charged with a crime, in grand
      jury or John Doe proceedings or in investigations."
      Wis. Stat. § 978.045(1r)[(1999-2000)].
Id., ¶8 n.4.      The quoted statutory sentence has been broadened

to    include    "proceedings          under     ch.    980."         Wis.        Stat.

§ 978.045(1r).

      ¶216 The Carlson court's analysis is correct except for the

language "not when the appointment is made by a court on its own

motion."    The court of appeals' interpretation of the "on its

own    motion"   language       is   mistaken     because     it    reads    out    of

subsection (1r) the prerequisite that "[T]he judge may appoint

an    attorney   as   a     special    prosecutor       if   any"    of     the    nine
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conditions exists.          (Emphasis added.)               The court of appeals'

interpretation would provide courts, including reserve judges,

free rein to make special prosecutor appointments.                       In my view,

such an interpretation contradicts the plain language and the

obvious policy embedded in the statute.

       ¶217 The    statutory     history        of   the    section    supports      this

interpretation.         As noted previously, Wis. Stat. § 978.045 was

created by 1989 Wis. Act 117, § 5.                    The first version of the
section read in part as follows:

            (1) If there is no district attorney for the
       county, if the district attorney is absent from the
       county, has acted as attorney for a party accused in
       relation to the matter of which the accused stands
       charged and for which he or she is to be tried, is
       near of kin to the party to be tried on a criminal
       charge, is unable to attend to his or her duties or is
       serving in the armed forces of the United States, or
       if the district attorney stands charged with a crime
       and the governor has not acted under s. 17.11, any
       judge of a court of record, by an order entered in the
       record stating the cause therefor, may appoint some
       suitable attorney to perform, for the time being, or
       for the trial of the accused person, the duties of the
       district attorney, and the attorney so appointed shall
       have all the powers of the district attorney while so
       acting.
       ¶218 This original subsection based judicial appointment of

a special prosecutor on the existence of one or more specified

conditions.       The statutory history of § 978.045 shows that this

qualification      has    been     carried      forward      consistently      in    each

revision of the statute.

       ¶219 It    should    also    be    noted      that    the    original   section

listed six conditions permitting judicial appointment.                              Since

1989   three     more    conditions      have    been      added.     Why   would     the
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legislature keep adding new justifications for the appointment

of a special prosecutor if the appointing court could simply

enter       an    order   in    the    record       "stating     the   cause"    for   the

appointment?         A court must state the cause for an appointment in

its order so that the department of administration is informed

why it must pay for compensation.

       ¶220 Section          978.045(1g)        reads     in     part:    "A     district

attorney requesting the appointment of a special prosecutor, or

a court if the court is appointing a special prosecutor on its

own motion, shall notify the department of administration, on a
form provided by that department, of the district attorney's or

the     court's       inability        to     obtain     assistance      from    another

prosecutorial         unit     or     from    an     assistant    attorney      general."

(Emphasis added.)              In fact, the principal form used by courts

when they appoint a special prosecutor is CR-210, developed by

the     Wisconsin         Court      Records        Management    Committee      of    the

Wisconsin Supreme Court.                    See Exhibit 1.         The Department of

Administration approves this form.
       ¶221 Form CR-210 tracks Wis. Stat. § 978.045(1r).                          At the

bottom, Form CR-210 states: "This form shall not be modified.

It    may    be    supplemented        by    additional     material."          (Emphasis

added.)

       ¶222 Five district attorneys asked Judge Kluka to appoint a

special prosecutor.             They asked her to appoint Francis Schmitz.

They explained the reasoning for the appointment of a special

prosecutor.         They advised her how to justify the appointment of



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a   special      prosecutor.               They     even    explained      the    amount       that

Attorney Schmitz would accept as compensation.

      ¶223 Two            days     later      Judge        Kluka    made       the     requested

appointment          of    Francis         Schmitz.         The    appointment         order    was

titled "APPOINTMENT OF SPECIAL PROSECUTOR UNDER CHAPTER 978."

The     order        disregarded           CR-210     and    created       a     new    document

following the analysis in the district attorneys' letter.                                        It

twice cited the letter and even repeated the unusual citation of

State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), and
the mis-citation of State v. Carlson in the letter.

      ¶224 Judge Kluka's order stated:

      I make this appointment in light of the facts and
      circumstances set forth in the August 21, 2013 letter
      submitted by the District Attorneys for the counties
      of Columbia, Dane, Dodge, Iowa and Milwaukee. I make
      this appointment under my authority as expressed in
      State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641
      N.W.2d 562 [sic]. I find that a John Doe run by five
      different local prosecutors, each with a partial
      responsibility for what is and ought to be one overall
      investigation and prosecution, is markedly inefficient
      and ineffective.     Consequently, I also make this
      appointment as part of my inherent authority under
      State   v.   Cummings,   199  Wis. 2d 721,  735,   546
      N.W.2d 406, 411 (1996).
      ¶225 Inasmuch as Judge Kluka appointed a special prosecutor

for   each      of    five       counties     two     days    after     receiving        a    joint

letter    signed          by   the      district     attorney      in   each     of     the    five

counties, and inasmuch as the judge appointed the very person

the district attorneys recommended to be special prosecutor and

authorized       precisely           the    amount    of     compensation        the    district

attorneys said their nominee would accept, and inasmuch as the

judge    twice        cited      the       letter of        request     from     the    district
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attorneys in her order, followed the letter's legal analysis,

utilized the cases contained in the letter, and even repeated a

mis-citation of a case in the letter, it is simply not possible

to contend that the court was acting on its own motion.                                              Judge

Kluka     did     not      check          personally        to       see    whether          any     other

prosecutorial units could assist in the John Doe.                                       Instead, she

accepted    as        fact    and         law    everything          the    district          attorneys

presented to her.             Thus, even under the half-correct decision in

Carlson,        the     special            prosecutor          appointment             violated        the
appointment       statute          if      it    did     not     satisfy         one    of    the     nine

"conditions" in subsection (1r).

       ¶226 Judge Kluka made a gesture to comply with the statute.

Her     order     stated:          "The         Attorney       General          and    the     District

Attorneys . . . all                note         that     their        individual             status     as

partisan elected prosecutors gives rise to the potential for the

appearance of impropriety.                       I find that the Special Prosecutor

will eliminate any appearance of impropriety."

       ¶227 This "finding" is plainly insufficient.                                    The Milwaukee

County District Attorney's Office had been investigating [——————

————————————] since August 10, 2012, the day it petitioned for

the    second     John       Doe,        without       concern       for    the       "appearance       of

impropriety."           It obviously had been investigating [——————————]

even     longer       in     light         of     the     materials             presented       in     the

affidavits       supporting              the    petition       for    the       John    Doe    and     the

search    warrants           and     subpoenas           requested         in    2012.         This    is

markedly different from the Department of Justice, which in 2013

[—————————————————————————————————————————————————].

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        ¶228 In any event, "the appearance of impropriety" is not

the same as "a conflict of interest" as set out in Wis. Stat.

§ 978.045(1r)(h).        If this potential "appearance" were deemed a

conflict    of    interest,      the    five    district       attorneys      and    their

staffs should have withdrawn from the case.                    They did not.

        ¶229 Thus, Judge Kluka's order failed to satisfy any of the

nine conditions stated in subsection (1r).                           That is why the

judge disregarded CR-210 and submitted a different order.
       ¶230 That    also   is     why    the    order    attempts       to    sever    the

relationship between the district attorneys and the court and to

claim that the judge was acting on her own motion.                           The problem

is twofold, beyond the implausibility of the claim.                               A court

acting on its own motion also must satisfy one or more of the

conditions in subsection (1r) if the judge is acting under Wis.

Stat.    § 978.045.        The    court     simply       cannot      read     out    these

conditions of the statute.               Moreover, the statute itself links

district     attorneys     and     the     court's       appointment         of     special

prosecutors for John Does.             See also Wis. Stat. § 968.26.
       ¶231 The judge's second gambit to support the appointment

of the special prosecutor was to invoke "inherent authority"

under Cummings, 199 Wis. 2d at 735.                   This theory is completely

at odds with the title of the order: "APPOINTMENT OF SPECIAL

PROSECUTOR    UNDER     CHAPTER     978."        Appointments         made    under    the

"inherent authority" of the court, if such authority exists in

this    matter,    do   not      require       payment    by    the    Department       of

Administration      because      they    are    not   made      in    conformity      with

Chapter 978.

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          ¶232 In      my    view,    the    Cummings      case       does    not     recognize

"inherent authority" to appoint a special prosecutor, especially

in    a    John     Doe     matter.         In    Cummings,      the    court       stated   the

relevant issues as follows: "(1) does a John Doe judge have the

power to issue a search warrant; (2) does a John Doe judge have

the   power       to    seal    a     search      warrant . . . ."            Cummings,      199

Wis. 2d at 729.             The court then observed:

               Next, defendant asserts that a John Doe judge
          does not have the authority to seal a search warrant.
          It is true that there is no statutory authority in
          Wisconsin granting judges this ability.     However, a
          John Doe judge has been granted jurisdiction, the
          legal right to exercise its authority, pursuant to
          Wis. Stat. § [968.26]. A grant of jurisdiction by its
          very nature includes those powers necessary to fulfill
          the jurisdictional mandate.
Id. at 735-36.              "The ability to seal a search warrant is exactly

that type of power which a John Doe judge needs to fulfill the

above jurisdictional mandate."                    Id. at 736-37.

          ¶233 The same cannot be said about the "inherent authority"

to appoint a special prosecutor for a John Doe proceeding.

          ¶234 Judicial         power       to     appoint       a     John     Doe    special
prosecutor is governed by statute, in the same way that John Doe

proceedings         themselves        have       always   been       governed   by     statute.

State v. Washington, 83 Wis. 2d 808, 819, 266 N.W.2d 597 (1978).

          ¶235 One statute, Wis. Stat. § 978.045, has already been

discussed.          It sets conditions for the appointment of a special

prosecutor paid for by the state, and those conditions have not

been satisfied here.



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    ¶236 The other statute is the John Doe statute, Wis. Stat.

§ 968.26.   This statute reads in part:

         (1) If a district attorney requests a judge to
    convene a proceeding to determine whether a crime has
    been committed in the court's jurisdiction, the judge
    shall convene a proceeding described under sub. (3)
    and shall subpoena and examine any witnesses the
    district attorney identifies.

            . . . .

         (am) . . . [I]f a person who is not a district
    attorney complains to a judge that he or she has
    reason to believe that a crime has been committed
    within the judge's jurisdiction, the judge shall refer
    the complaint to the district attorney . . . .

          (b) . . . [T]he district attorney [then] shall,
    within 90 days of receiving the referral, issue
    charges or refuse to issue charges.     If the district
    attorney refuses to issue charges . . . [t]he judge
    shall    convene  a   proceeding . . . if  he  or   she
    determines that a proceeding is necessary to determine
    if a crime has been committed. . . .

         (c) In [such] a proceeding . . . the judge shall
    subpoena and examine under oath the complainant and
    any witnesses that the judge determines to be
    necessary and appropriate to ascertain whether a crime
    has been committed and by whom committed.    The judge
    shall consider the credibility of testimony in support
    of and opposed to the person's complaint.

         (d) .       . . [T]he   judge  may   issue   a  criminal
    complaint        if the judge finds sufficient credible
    evidence          to   warrant    a   prosecution   of    the
    complaint.       . . .
    ¶237 This statute suggests that a judge has authority to

proceed   with   a    John   Doe   and,    perhaps   eventually,   appoint   a

special prosecutor (but not under Chapter 978) if "the district

attorney refuses to issue charges . . . ."             Whatever the statute



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implies,       it    is    inapplicable       in    this       case      because    of     the

proactive involvement of the district attorneys.

      ¶238 The Cummings case notes that "a John Doe judge does

not     have    the       statutory     powers      of   a     court. . . .               This

conclusion          is    indubitably       correct. . . .                [A]     John     Doe

judge . . . enjoys           those     powers      conferred        to    all    judges     by

statute."       Cummings, 199 Wis. 2d at 738.

      ¶239 Judicial          power     to   appoint      a    special      prosecutor       is

governed by statute.               If "inherent authority" were permitted to

trump the applicable statutes governing John Doe appointments,

the     restrictions          in     these       statutes       would       be     rendered

meaningless.             This court cannot permit that to happen.                          Cf.
State     v.    Henley,       2010     WI    97,    ¶76,      328     Wis. 2d 544,         787

N.W.2d 350.         Judge Kluka's appointment of the special prosecutor

was invalid.

                                             V

      ¶240 The second issue for discussion is the validity of the

search warrants and subpoenas sought by the special prosecutor

on or about October 1, 2013.                As noted above, the John Doe judge

approved extremely broad search warrants for five individuals

and at least 31 very broad subpoenas.

      ¶241 Motions to quash some of the subpoenas were filed on

October 17 and October 25, 2013.                     On October 29, Judge Kluka

recused        herself      from      the    entire          proceeding,         citing     an

unspecified conflict.               Thereafter, the John Doe was reassigned

to Reserve Judge Gregory Peterson of Eau Claire, who previously

served as a member of the Wisconsin Court of Appeals.

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      ¶242 Following various writ applications in the court of

appeals and petitions in two circuit courts, the new John Doe

judge granted the motions to quash the subpoenas and to return

property seized under the search warrants.                       The judge's decision

was   issued   on   January       10,     2014.      This       court       must   determine

whether     Judge    Peterson's           decision    should          be      affirmed      or

reversed.

      ¶243 Judge         Peterson's        decision        is     grounded           in    his
interpretation      of    Wisconsin       election     law       as    affected       by   the

First   Amendment.         He     noted    specifically         that        the    "subpoenas

reach into the areas of First Amendment freedom of speech and

freedom of association.            As a result, I must apply a standard of

exacting    scrutiny       and,     in     interpreting          statutes,         give    the

benefit of any doubt to protecting speech and association."

      ¶244 The judge wrote:

            I am granting the motions to quash and ordering
      return of any property seized as a result of the
      subpoenas.    I conclude the subpoenas do not show
      probable cause that the moving parties committed any
      violations of the campaign finance laws.           I am
      persuaded the statutes only prohibit coordination by
      candidates   and   independent   organizations   for   a
      political purpose, and political purpose, with one
      minor   exception   not   relevant   here . . . requires
      express advocacy.    There is no evidence of express
      advocacy.
      ¶245 Judge Peterson then wrote that "The subpoenaed parties

raise other issues in their briefs, some quite compellingly.

However,    given    the     above       decision,    it     is       not    necessary      to

address those issues."             This writing will address some of the



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issues related to the search warrants and subpoenas as Judge

Peterson's decision can be affirmed on additional grounds.

      ¶246 The Fourth Amendment to the United States Constitution

reads as follows:

           The right of the people to be secure in their
      persons,   houses,   papers,   and  effects,  against
      unreasonable searches and seizures, shall not be
      violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and
      the persons or things to be seized.
The equivalent provision in the Wisconsin Constitution is found

in Article I, Section 11. 8
      ¶247 These    constitutional         provisions       are      implemented    in

Wisconsin by several statutes, including Wis. Stat. §§ 968.12

(Search warrant), 968.13 (Search warrant: property subject to

seizure), 968.14 (Use of force), 968.15 (Search warrants; when

executable),    968.16      (Detention          and    Search       of    persons   on

premises), 968.17 (Return of search warrant), 968.18 (Receipt

for   seized   property),        968.19    (Custody      of     property     seized),

968.20    (Return   of   property      seized),       968.205       (Preservation   of
certain evidence), 968.23 (Forms), 968.27 (Definitions), 968.28

(Application    for      court    order        to   intercept       communications),

968.29    (Authorization        for   disclosure      and     use    of   intercepted

wire, electronic or oral communications), 968.30 (Procedure for

interception of wire, electronic or oral communications), and


      8
       The Supreme Court has incorporated the Fourth Amendment
into the Fourteenth Amendment so that it applies to the states.
See Ker v. California, 374 U.S. 23, 33 (1963).


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968.375 (Subpoenas and warrants for records or communications of

customers     of   an    electronic          communication      service     or   remote

computing service provider).             Nestled among these search warrant

statutes is Wis. Stat. § 968.135, which deals with "Subpoena for

documents."

      ¶248 Judicial       interpretation          of   the   Fourth   Amendment    can

narrow   application       of    the   Wisconsin       search    warrant      statutes.

The statutes, in turn, may provide limitations on warrants that
are not required by the Fourth Amendment.

      ¶249 Questions       about       the    search     warrants     and    subpoenas

arise here in the context of a John Doe proceeding.                         The nature

of such a proceeding must be understood.

      ¶250 The John Doe statute, as amended in 2009, 2009 Wis.

Act 24, reads in part as follows:

           (1) If a district attorney requests a judge to
      convene a proceeding to determine whether a crime has
      been committed in the court's jurisdiction, the judge
      shall convene a proceeding described under sub. (3)
      and shall subpoena and examine any witnesses the
      district attorney identifies.

            . . . .

           (3) The extent to which a judge may proceed in
      an examination under sub. (1) or (2) is within the
      judge's discretion.   The examination may be adjourned
      and may be secret. . . .
Wis. 2d 968.26(1), (3).
      ¶251 In Cummings, this court held that "a John Doe judge

may   issue    and       seal    a     search      warrant      under       appropriate

circumstances."         Cummings, 199 Wis. 2d at 730.             The court added:

"The John Doe statute need not specifically mention the issuance

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of search warrants for a John Doe judge to have such power."

Id. at 734-35.     The court said:

     [S]tatutes should be interpreted in a manner which
     supports their underlying purpose.      This court has
     repeatedly held that the John Doe proceeding was
     designed as an investigatory tool to be used as an
     "inquest for the discovery of crime."    Washington, 83
     Wis. 2d at 822.   Denying John Doe judges the ability
     to issue search warrants would seriously reduce the
     investigatory power of the John Doe proceeding.
Id. at 735 (citations omitted).

     ¶252 The     fact   that     a   John   Doe   judge    may    issue   search

warrants    and   subpoenas     for   documents    does    not    mean   that    the

Fourth Amendment has no application in a John Doe proceeding.

On the contrary, special vigilance on the part of a John Doe

judge may be required.

     ¶253 The     documents      initiating    a   John    Doe     investigation

"need not name a particular accused; nor need it set forth facts

sufficient to show that a crime has probably been committed.

The John Doe is, at its inception, not so much a procedure for

the determination of probable cause as it is an inquest for the

discovery    of   crime . . . ."        Washington,       83     Wis. 2d at     822.

Because the threshold for commencing a John Doe investigation is

relatively low, a John Doe judge is responsible for limiting its

scope to prevent the investigation from getting out of hand.

This is why "The John Doe investigation is essentially limited

to the subject matter of the complaint upon which the John Doe

is commenced.     The John Doe judge has no authority to ferret out

crime wherever he or she thinks it might exist."                  Id.    Likewise,

a district attorney's use of a John Doe is limited.

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     ¶254 This    limitation      on    the   scope   of   the   John   Doe    is

particularly     relevant    to   the    scope   of   search     warrants     and

subpoenas.     In Custodian of Records v. State, 2004 WI 65, ¶34,

272 Wis. 2d 208, 680 N.W.2d 792, a John Doe case, this court

observed:

     [D]oes the issuance of a subpoena in a John Doe
     proceeding, the sole purpose of such proceeding being
     to investigate alleged criminal activity, have the
     potential to affect Fourth Amendment rights?        The
     issue of whether the subpoena is overbroad and
     oppressive, and thus unreasonable, was raised by [the
     head of the Legislative Technology Services Bureau
     (LTSB)]. This is a Fourth Amendment concern. Hale v.
     Henkel, 201 U.S. 43, 71 (1906) (noting that a subpoena
     duces tecum may implicate Fourth Amendment rights).
     ¶255 The court ultimately concluded, following the two-step

test set out in Katz v. United States, 389 U.S. 347 (1967), that

there was a reasonable expectation of privacy in the data stored

on backup tapes in the LTSB and thus the subpoena was overbroad.

Id., ¶43.    The court added:

          When we examine whether the Fourth Amendment was
     violated,   we   determine  whether   the   government
     intrusion was reasonable.     Overly broad subpoenas
     typically are held unreasonable in that their lack of
     specificity allows the government to go on an
     indiscriminate fishing expedition, similar to that
     provided by a general warrant.      Marron v. United
     States, 275 U.S. 192, 196 (1927); Boyd [v. United
     States, 116 U.S. 616, 625-26 (1886)].   As the United
     States Supreme Court has explained, a subpoena is
     "equally [as] indefensible as a search warrant would
     be if couched in similar [general] terms.    Hale, 201
     U.S. at 77.
Custodian of Records, 272 Wis. 2d 208, ¶50.




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       ¶256 This     case   involves      multiple   unnamed   parties   but    it

also     involves      many,       many    additional       organizations      and

individuals.       One unnamed party writes of its subpoena:

       The scope of the subpoenas required——explicitly,
       implicitly, or in effect——all material of any kind
       that related in any way to the identified elections
       and to the identified individuals or entities. Other
       than naming organizations and individuals, there was
       no attempt to limit or to filter the material
       subpoenaed or to distinguish between potentially
       regulated speech and unregulated speech.
       ¶257 Another unnamed party declared in its brief:

       At no point does the subpoena seek to differentiate
       materials and documents which relate to the subject of
       the John Doe, to wit: the recall elections of 2011 and
       2012, from other activities in which the movants were
       engaged during that period.       The broad sweeping
       request demands production of all the specific items
       in the possession of the movant organizations and
       their representatives.
       ¶258 The subpoenas issued on or about October 1, 2013, are

actually narrower than the search warrants issued in 2012, as

described in the quoted material in ¶192 above.

       ¶259 To illustrate the breadth of the search warrants and

subpoenas, the special prosecutor now has possession of every

private e-mail sent by [———————————] or received by [——————————]

between April 11, 2009, and July 31, 2012, together with other

information     demanded     from    certain    internet    service   providers.

The special prosecutor has [————————————] private e-mails for

more than 20 months [——————————————————————————————————————————]

and 19 months [——————————————————————————————————]——as a result

of     this   John   Doe     investigation.          This   does   not   include



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information prosecutors obtained from government e-mail accounts

that are alluded to in the record.

      ¶260 The      substance     of   the     captured       e-mails      inevitably

includes        communications     with     family         members   and    personal

friends, public officials and members of [————————] staff, party

leaders    and     political     strategists,       fundraisers,     contributors,

and   other      allies,   lawyers,    health       care    providers,     and   other

professional acquaintances.            It is inconceivable that a public
official [————————] would not subjectively expect a reasonable

degree of privacy in his private e-mail accounts. 9
      ¶261 The issue before us involves much more than [—————————

—————] and the many other individuals and organizations directly

affected by the search warrants and subpoenas.                   The issue before

us is central to our time.                How much information about our

people     is     government     entitled      to    obtain——without        people's

consent and perhaps without their knowledge?

      ¶262 The precedent set by this case has the potential to

affect the privacy rights of millions of Wisconsin citizens.

"Among online adults, 92% use email, with 61% using it on an

average day." 10       Cell phones and smart phones are, of course,

      9
       Cf. United States v. Warshak, 631 F.3d 266, 288 (6th Cir.
2010) ("[A] subscriber enjoys a reasonable expectation of
privacy in the contents of emails 'that are stored with, or sent
or received through, a commercial ISP.'") (citation omitted).
      10
        See Kristen Purcell, Search and Email Still Top the List
of Most Popular Online Activities, Pew Research Center Internet
Project               (Aug.               9,               2011),
http://www.pewinternet.org/2011/08/09/search-and-email-still-
top-the-list-of-most-popular-online-activities.


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ubiquitous       in   our    society,       but      countless      numbers     of    people

communicate by e-mail and texting.                    The ability of government to

capture——without            notice——the         substance         of     our        non-aural

communications        is    not    dissimilar        to    government       wiretaps       that

record     the   substance         of    telephone        conversations.            The   only

difference is that wiretaps disclose the content of telephone

conversations in real time. 11

      ¶263 Concerns         about       privacy     are    especially       critical      when

people     engage     in     aspects      of    speech      and     association        during

political    campaigns,           "an   area    of    the    most      fundamental        First

Amendment activities."             Buckley v. Valeo, 424 U.S. 1, 14 (1976).
The   Supreme     Court      provided       guidance        in    Zurcher      v.   Stanford

Daily, 436 U.S. 547, 564 (1978), when it said:

      [I]n    issuing     warrants    and    determining    the
      reasonableness    of   a  search,   state   and   federal
      magistrates should be aware that "unrestricted power
      of search and seizure could also be an instrument for
      stifling liberty of expression."       Marcus v. Search
      Warrant, 367 U.S. 717, 729 (1961).             Where the
      materials sought to be seized may be protected by the
      First Amendment, the requirements of the Fourth
      Amendment    must     be   applied    with    "scrupulous
      exactitude."    Stanford v. Texas, 379 U.S. [476, 485

      11
       Wisconsin Stat. § 968.28 limits the interception of
electronic communications without a court order under Wis. Stat.
§ 968.30.   Court orders for interception may be obtained only
for specified offenses ranging from homicide, felony murder, and
kidnapping to soliciting a child for prostitution, Wis. Stat.
§ 968.28, and such orders may not exceed 30 days in duration
without specific judicial extension.    Wis. Stat. § 968.30(5).
These statutory limitations and protections for interception do
not appear to apply when search warrants are issued for past
electronic communications that must be retrieved from electronic
storage.


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     (1965)].    A seizure reasonable as to one type of
     material in one setting may be unreasonable in a
     different setting or with respect to another kind of
     material."    Roaden v. Kentucky, 413 U.S. 496, 501
     (1973).    Hence, in Stanford v. Texas, the Court
     invalidated a warrant authorizing the search of a
     private home for all books, records, and other
     materials relating to the Communist Party, on the
     ground that whether or not the warrant would have been
     sufficient in other contexts, it authorized the
     searchers to rummage among and make judgments about
     books and papers and was the functional equivalent of
     a general warrant, one of the principal targets of the
     Fourth Amendment.      Where presumptively protected
     materials are sought to be seized, the warrant
     requirement should be administered to leave as little
     as possible to the discretion or whim of the officer
     in the field.
     ¶264 The        violation    of   Fourth      Amendment     rights    requires

special     attention     when    it   has     a   chilling    effect     on   First

Amendment freedoms.        Cf. NAACP v. Alabama, 357 U.S. 449 (1958).

     ¶265 The search warrants and subpoenas in this case are so

broad     and   so    extensive    that    they     make   the    fruits    of   the

legendary Watergate break-in look insignificant by comparison. 12

After all, the special prosecutor has access to thousands and


     12
       On Memorial Day weekend in 1972, an intelligence
gathering team from Richard Nixon's Committee to ReElect the
President broke into the Democratic National Committee's (DNC)
headquarters at the Watergate complex in Washington, D.C.   The
operatives wiretapped the telephones of the chairman of the DNC
and the executive director of the Association of State
Democratic Chairmen.    A member of the team also photographed
certain documents.   One phone tap did not work and the other
yielded little information.    When the burglars returned for a
second visit, they were apprehended.       Cf. Keith W. Olsen,
Watergate: The Presidential Scandal That Shook America (2003).
President Nixon was forced to resign, in part for attempting to
cover up a burglary to gain political intelligence that he did
not personally authorize.


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thousands of electronic communications about the 2010 election,

Act 10, the 2011-13 state budget, other legislation, all the

recall      elections       and         the   strategies      and        fundraising          efforts

employed          in    them,     [——————————],            litigation,          and     the     then-

upcoming 2012 general election.                       As the substance of this John

Doe   leaks        out,    as     it     already      has,    the       search      warrants        and

subpoenas have an eerie similarity to SLAPP suits in a civil

context. 13        SLAPP suits have the effect, whether intended or not,

to    cost    defendants          tremendous         amounts       of        money,    to     extract

privileged information from them, and to cause the defendants

and others to withdraw from the political process out of fear of

harassment.

       ¶266 The special prosecutor insists that he had probable

cause       for    all    his     investigative            efforts.           This     is     sharply

disputed.          In any event, probable cause for a search warrant may

be wholly devoid of probable cause that the recipient of the

search warrant or subpoena or even the subject of the search

warrant       or       subpoena     has       committed      any    crime.            Rather,       the

supposed probable cause is that evidence that will aid in the

conviction         of    some     crime       will    be   found        in    the     place    to    be

searched,          particularly          if    the    items        to    be     seized        include



       13
       "SLAPP is an acronym for Strategic Lawsuit Against Public
Participation.   Vultaggio v. Yasko, 215 Wis. 2d 326, 359, 572
N.W.2d 450 (1998) (Bradley, J., dissenting); Briggs v. Eden
Council, 969 P.2d 564, 565 n.1 (Cal. 1999)." Lassa v. Rongstad,
2006 WI 105, ¶108 n.1, 294 Wis. 2d 187, 718 N.W.2d 673 (Prosser,
J., dissenting). See also id., ¶161 n.10.


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everything found at that place——here, the e-mail accounts of

people who have been targeted.

      ¶267 This sort of probable cause must be weighed against

the privacy being invaded by the search warrants and subpoenas.

The   special   prosecutor   has   not   been   targeting    terrorists   or

mobsters who impose an imminent danger to society.              Covering up

the breathtaking extent of the John Doe investigation through

secrecy orders is highly problematic and cannot last. 14

      ¶268 I conclude the following:

           1.    The search warrants and subpoenas issued on or

about October 1, 2013, are invalid because they were presented

by a special prosecutor who had none of the powers of a district

attorney because his appointment was invalid.

           2.    The search warrants and subpoenas issued on or

about October 1, 2013, were unconstitutionally overbroad because

they covered a time period before recall elections were even

contemplated,    thereby     exceeding   the    subject     matter   of   the


      14
          The precise scope of a permissible secrecy order
      will . . . vary   from   proceeding  to   proceeding.
      However, as we observed in [State v. O'Connor, 77
      Wis. 2d 261, 252 N.W.2d 671 (1977)], "[s]ecrecy of
      John Doe proceedings and the records thereof is not
      maintained for its own sake." Id. at 283. The policy
      underlying secrecy is directed to promoting the
      effectiveness of the investigation.     Id. at 286.
      Therefore, any secrecy order "should be drawn as
      narrowly as is reasonably commensurate with its
      purposes."

State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶61,
260 Wis. 2d 653, 688-89, 660 N.W.2d 260.


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investigation; included all periods of exemption within the time

period——246      days——thereby     permitting         secret    investigation        of

lawful     First    Amendment      activities;         lacked     the        level   of

particularity required as to those things that might lawfully be

seized; and improperly invaded the privacy of persons who were

not     suspects    by    seeking        information           virtually       without

limitation.

            3.     The   search    warrants       and    subpoenas        issued     in
September and December 2012 were unconstitutionally overbroad,

for the reasons stated in point 2, but especially because they

dated back more than 21 months before recalls were contemplated,

a period unrelated to the recall elections in 2011 and 2012, the

purported subject of the John Doe.

       ¶269 Consequently,      I   would      affirm    the    decision      of   Judge

Peterson to quash the subpoenas and return seized property and

expand his ruling to cover the search warrants and subpoenas

issued in September and December of 2012.

                                         VI

       ¶270 Chapter 11 of the Wisconsin Statutes is the source of

most   Wisconsin    statutory      law     on   the    regulation       of    campaign

finance.    Much of the chapter was created in 1974, Chapter 334,

Laws of 1973, in the wake of the Watergate scandal.                            Various

provisions have been revised over the years, but the 2011-12

version of the statutes contains a number of provisions that are

suspect or unconstitutional.         These will be discussed below.

                                         A



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      ¶271 Section 11.01 sets out the definitions used in Chapter

11.    Subsection (16) defines "political purpose," which Judge

Peterson   and   the   majority     opinion     deem   critical     to   the

interpretation and enforcement of the chapter.

      ¶272 Section 11.01(16) reads in part as follows:

           (16) An act is for "political purposes" when it
      is done for the purpose of influencing the election or
      nomination for election of any individual to state or
      local office, for the purpose of influencing the
      recall from or retention in office of an individual
      holding a state or local office, . . . or for the
      purpose of influencing a particular vote at a
      referendum. In the case of a candidate, or a committee
      or group which is organized primarily for the purpose
      of influencing the election or nomination for election
      of any individual to state or local office, for the
      purpose of influencing the recall from or retention in
      office of an individual holding a state or local
      office, or for the purpose of influencing a particular
      vote at a referendum, all administrative and overhead
      expenses for the maintenance of an office or staff
      which are used principally for any such purpose are
      deemed to be for a political purpose.

           (a) Acts which are for             "political    purposes"
      include but are not limited to:

           1. The making of a communication which expressly
      advocates the election, defeat, recall or retention of
      a clearly identified candidate or a particular vote at
      a referendum.

           2. The conduct of or attempting to influence an
      endorsement or nomination to be made at a convention
      of political party members or supporters concerning,
      in whole or in part, any campaign for state or local
      office.

           (b) A "political purpose" does not include
      expenditures made for the purpose of supporting or
      defending a person who is being investigated for,
      charged with or convicted of a criminal violation of
      state or federal law, or an agent or dependent of such
      a person.
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      ¶273 "Political         purpose"      is       a     very       imprecise          term,

especially when it is defined by phrases such as "influencing

the   recall    from   or     retention       in    office       of   an    individual."

(Emphasis added.)      What does "influencing" mean?

      ¶274 Paragraph        (a)    provides        that       "Acts      which     are     for

'political     purposes'     include      but      are    not    limited     to:    1.     The

making   of     a   communication         which          expressly       advocates         the

election, defeat, recall or retention of a clearly identified

candidate . . . ."           (Emphasis     added.)            Plainly,      the     statute

seeks to reach "acts" beyond express advocacy that "influence"

elections.       Consequently,        there     are      no     bright     lines    in     the

subsection, as drafted, leaving it so vague that it has the

potential of chilling constitutionally permissible activity that

permits no regulation.
      ¶275 The      definition       of    "political            purpose"        has     been

controversial for years.            The original definition, dating back

to 1974, read, in part: "an act is for 'political purposes'

when, by its nature, intent or manner it directly or indirectly

influences or tends to influence voting at any election."

      ¶276 Attorney     General       Bronson       La     Follette        was   asked     to

address this definition in an opinion.                          The Attorney General

wrote:

           This section . . . evidences a legislative intent
      to restrict and regulate a broad scope of political
      activity, including that which may not be directly
      related to the electoral process.        This sweeping
      effort to regulate First Amendment activity, in light
      of Buckley, may be constitutionally overbroad unless
      subject to narrow interpretation and application.


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               . . . .

      The Court adopted the standard of "express advocacy"
      of the election or defeat of a particular candidate as
      an acceptably narrow definition of activity subject to
      regulation.

               . . . .

      I am of the opinion that the "express" advocacy
      standard should be applied by the [State Elections]
      Board to all phases of political activity regulated
      under ch. 11.
65 Wis. Op. Att'y Gen. 145, 151-52 (1976).
      ¶277 The       Elections       Board     ran     into       trouble          in    1999    in

Elections      Board     v.    Wisconsin       Manufacturers             &    Commerce,          227

Wis. 2d 650, 597 N.W.2d 721 (1999), in a dispute about express

advocacy.       The     issue       appeared       again    in     Wisconsin            Prosperity

Network v. Myse, 2012 WI 27, 339 Wis. 2d 243, 810 N.W.2d 356.

      ¶278 When        the    government           enacts    criminal             penalties       to

regulate      First     Amendment       activities          that    do       not        constitute

express advocacy, it is standing on perilous ground.

                                               B

      ¶279 The affidavit supporting the commencement of the John

Doe   twice     cited     Wis.       Stat.     § 11.26,       which          is    the     statute

entitled "Limitations on contributions."                           This statute limits

individual      contributions          to      the     campaign          committee          of    a

candidate      for     governor       or     lieutenant          governor          to     $10,000,

§ 11.26(1)(a), and $1,000 to the committee of a candidate for

state senator, § 11.26(1)(b).                  The statute limits contributions

from a committee other than a political party or legislative

campaign committee to the committee of a candidate for governor

to 4% of the value of the disbursement level in the schedule
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under Wis. Stat. § 11.31.                    Wis. Stat. § 11.26(2)(a).                    This now

amounts    to    $43,128.            Wis.       Stat.    § 11.31(1)(a).              However,       a

committee       other       than     a    party    committee         may        contribute       only

$1,000 to the committee of a candidate for state senator.                                        Wis.

Stat. § 11.26(2)(b).

       ¶280 The individual contribution limits in the statute for

candidates for governor, lieutenant governor, and state senator

were exactly the same in 2011-2012 as they were in 1975.                                          See
Wis. Stat. § 11.26(1)(a) and (b) (1975-76).                                   If the limits on

individual contributions to the committees of these candidates

had    kept     pace    with       the      buying      power       of    our     currency,       the

contribution limits at the start of 2011 would have had to be

4.42    times    higher——i.e.,             $44,201.67        for     governor.            Over    the

years    the     limit       on    contributions             from    a        committee    to     the

committee of a candidate for state senator increased from $500

in 1975 to $1,000 in 2011, provided the candidate in 1975 had no

primary.        Wis. Stat. §§ 11.26(2)(b) and 11.31(1)(e).                                  If the

1975 candidate had a primary, the maximum committee contribution

for the election was $800.

       ¶281 Individual contribution limits have been consistently

upheld    beginning         with     Buckley,          424   U.S.        at    23-35.      Buckley

acknowledged,          however,          that     given       "the       important        role    of

contributions          in    financing          political       campaigns,         contribution

restrictions could have a severe impact on political dialogue if

the limitations prevent candidates and political committees from

amassing resources necessary for effective advocacy."                                       Id. at

21.     Inasmuch as static contribution limits render contributions

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today worth only 25 percent of their value 35 years ago, many

candidates   are   forced    to    look       for   support    from    expenditures

outside their own committees.

                                          C

     ¶282 Subsection    (9)       of   Wis.     Stat.   § 11.26       is   critically

important in relation to the contribution limits.                    It provides:

          (9)(a) No individual who is a candidate for state
     or local office may receive and accept more than 65
     percent of the value of the total disbursement level
     determined under s. 11.31 for the office for which he
     or she is a candidate during any primary and election
     campaign combined from all committees subject to a
     filing requirement, including political party and
     legislative campaign committees.

          (b) No individual who is a candidate for state or
     local office may receive and accept more than 45
     percent of the value of the total disbursement level
     determined under s. 11.31 for the office for which he
     or she is a candidate during any primary and election
     campaign combined from all committees other than
     political party and legislative campaign committees
     subject to a filing requirement.
     ¶283 The practical effect of subsection (9) is that all

political party committees may contribute no more than $700,830

directly to the campaign committee of a candidate for governor,

nor more than $22,425 directly to the committee of a candidate

for state senator, except for exempt contributions under Wis.

Stat. § 11.26(13m).    However, in all actual elections, including

recall   elections,    every       dollar       received      from     a   non-party

committee reduces the amount that the candidate may receive from

a party committee.

     ¶284 Political         action        committees          collectively       may

contribute no more to a candidate for governor than 45 percent

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of the schedule in Wis. Stat. § 11.31, namely, $486,090, or to a

candidate for state senator, no more than $15,525, except for

exempt contributions under Wis. Stat. § 11.26(13m).                          The effect

of this law is obvious.             Political party committees singularly

or collectively and political action committees collectively are

never    permitted——at        the     same       time——to       give     the     maximum

contributions allowed by law for regular election expenses.                            In

fact,    some     political       action        committees      may     be     precluded

altogether from making a direct contribution to the committee of

a candidate for governor or a candidate for state senator.
       ¶285 To illustrate, all non-party committees may contribute

only    $15,525   to   a    state     senate      candidate.           Thus,    only    15

political action committees may make the maximum contribution of

$1,000 to the committee of a candidate for state senator.                              The

sixteenth     committee      is     limited      to     $525.      The       seventeenth

committee and all other such committees cannot contribute at

all.    The contributions of these non-party committees must be

reduced if party committees give more than $6,900.
       ¶286 Subsection (9) was challenged in the Wisconsin Supreme

Court    in     Gard   v.     Wisconsin         State     Elections       Board,       156

Wis. 2d 28, 456 N.W.2d 809 (1990).                John Gard, running in a 1987

special election to fill a vacancy in the Assembly, won a hotly

contested primary and a close general election.                       In the process,

he received $7,607.32 more from political party committees than

the total $11,213 from all committees permitted by subsection

(9).     He was prosecuted by the state elections board.                               The



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petitioners      argued         that     Wis.     Stat.    § 11.26(9)(a)       was

unconstitutional on several grounds.

     First, [petitioners] claim that the aggregate limit on
     the amount of money committees may contribute to a
     candidate's campaign violates committee members' first
     amendment rights to political expression because it
     completely bars some committees from making even a
     symbolic   expression   of   support  evidenced   by   a
     contribution   once the    aggregate  limit   has   been
     reached.   Second, they argue that the aggregate limit
     on committee contributions is, in effect, a limit on
     the candidate's ability to spend, which impermissibly
     burdens a candidate's freedom of speech guaranteed by
     the first amendment under Buckley v. Valeo, 424 U.S.
     1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976). Third, they
     assert that the statute impermissibly burdens freedom
     of association also guaranteed by the first amendment
     by encouraging individuals to disassociate themselves
     from committees.    Fourth, petitioners argue that the
     statute imposes a greater burden on the first
     amendment rights of committees than it does on the
     first amendment rights of individuals in violation of
     the equal protection clauses of the United States and
     Wisconsin Constitutions. Petitioners also assert that
     the statute imposes a greater burden on the first
     amendment rights of committees who contribute "late"
     in a campaign than on committees who contribute
     "early" in a campaign in violation of equal protection
     guarantees.
Id. at 36.

     ¶287 This court upheld subsection (9) of the 1974 statute,

holding that the state had a compelling interest, namely, to

prevent corruption or the appearance of corruption, and that the

provision was narrowly tailored to accomplish this objective.

     ¶288 The effect of the Gard decision has been to weaken

political     parties    and     to    encourage    non-party   committees     to

engage   in   issue     advocacy       spending    on   campaigns,   instead   of



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making    direct,      reportable        contributions    to   candidates.            This

dynamic has been recognized for decades.

       ¶289 More recently, however, subsection (9) has come under

significant scrutiny.             In September 2014, United States District

Judge    Rudolph    Randa    entered       an    order   enjoining    the     GAB    from

enforcing subsection (9).                CRG Network v. Barland, 48 F. Supp.

3d 1191 (E.D. Wis. Sept. 5, 2014).                  Judge Randa noted that the

Supreme Court has demonstrated "increasing impatience" with the

type    of   "'prophylaxis-upon-prophylaxis'               approach"        created    by

statutes     such   as   Wis.      Stat.    § 11.26(9),     and    that      the    other

provisions in place to prohibit unlawful circumvention of the

base contribution limit rendered subsection (9) unnecessary and

unconstitutional.         Id. at 1195-96.            Following the issuance of
Judge Randa's order, the GAB issued a press release stating it

would     not   seek     enforcement        of    subsection      (9).        Mike     B.

Wittenwyler & Jodi E. Jensen, Decoding the Maze: Wisconsin's

Campaign Finance Laws, 87 Wis. Law. 22, 25 (Oct. 2014).

                                            D

       ¶290 Subsection (4) of § 11.26 reads:

            No individual may make any contribution or
       contributions to all candidates for state and local
       offices and to any individuals who or committees which
       are subject to a registration requirement under s.
       11.05, including legislative campaign committees and
       committees of a political party, to the extent of more
       than a total of $10,000 in any calendar year.
       ¶291 Statutes limiting total contributions, as opposed to

capping      contributions          to     one     candidate,        were     declared

unconstitutional in McCutcheon v. Federal Election Commission,


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134 S. Ct. 1434 (2014).                 In short, Wis. Stat. § 11.26(4) is

unconstitutional.

     ¶292 Many        people     have        violated          subsection       (4),      often

unintentionally, since its enactment.                          The State has pursued

some violators criminally.              Cf. State v. Gardner, No. 2011CF137,

Washington Cnty., Wis., Cir. Ct. (Apr. 11, 2011).

     ¶293 Important        for        this    review          is    the    fact    that     the

Government Accountability Board insisted on enforcing Wis. Stat.

§§ 11.26(4)     and    11.26(9)        during       the       recall      elections.        See
MEMORANDUM     from      Kevin        Kennedy          to     Interested       Persons      and

Committees     Involved        With     Recall           Efforts,      March      15,     2011.

Kennedy's      memo     also     sought           to        limit    the     exception       to

contribution limits for certain recall expenses.                                  Wis. Stat.

§ 11.26(13m).

                                              E

     ¶294 The         overall     effect           of        Wisconsin's       complicated,

confusing,     outdated,        and    sometimes            unconstitutional        campaign

finance statutes is to compel candidates to depend increasingly

upon expenditures by 501(c)(4) committees that engage in issue

advocacy. 15

     ¶295 The     special        prosecutor            concedes      that    without       "the

authorization     and     consent        of        [a]      candidate      committee,"       an

expenditure     is      independent          and         constitutionally         protected.


     15
       This was especially evident in the 2011 Wisconsin Supreme
Court election in which both candidates were bound by minimal
contribution limits and tight spending limits because they
accepted public funding.


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However,   the    special          prosecutor       contends     that       a   committee's

"coordination"        with      a    candidate         committee       eliminates          many

constitutional        protections,          and     that      "there     can      never     be

'coordinated'        fundraising          between      a    candidate       and    a      truly

independent third party."

     ¶296 In      view     of       the    above,      the     pivotal      concern        with

application of Chapter 11's campaign finance laws is Wis. Stat.

§ 11.10(4).      This subsection reads:

          (4) No candidate may establish more than one
     personal campaign committee.   Such committee may have
     subcommittees provided that all subcommittees have the
     same treasurer, who shall be the candidate's campaign
     treasurer.    The treasurer shall deposit all funds
     received in the campaign depository account. Any
     committee which is organized or acts with the
     cooperation of or upon consultation with a candidate
     or agent or authorized committee of a candidate, or
     which acts in concert with or at the request or
     suggestion of a candidate or agent or authorized
     committee of a candidate is deemed a subcommittee of
     the candidate's personal campaign committee.
(Emphasis added.)

     ¶297 In evaluating the meaning of this provision, we must

understand     the       definition         of     "committee"         in       Wis.   Stat.

§ 11.01(4):

          "Committee" or "political committee" means any
     person other than an individual and any combination of
     2 or more persons, permanent or temporary, which makes
     or accepts contributions or makes disbursements,
     whether or not engaged in activities which are
     exclusively political, except that a "committee" does
     not include a political "group" under this chapter.
     ¶298 Put     together,          these       two   provisions        are      vague    and

absurdly     overbroad.              Committees            include     political          party

committees     and    legislative          campaign         committees.           Committees
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include     campaign     committees             of    a    candidate's       fellow            party

members.       Committees          include      political        action     committees               of

every description.            The two sections create dire consequences

for    candidates     who     exercise          the       most   fundamental          political

discourse with committees of the candidate's own party and with

the candidate's most ardent allies.                       By fundamental discourse, I

mean "cooperation," "consultation," "requests" for support, and

"suggestions."
       ¶299 Any   person       who       believes         that   the   statute        does          not

apply     to   coordination            between       a     candidate       and       his       state

political party must understand that the special prosecutor has

in his possession 39 months of emails from [————————————————————

———————————————————————————————————————————————],                            obtained               by

secret search warrant.                  Anyone who believes that the special

prosecutor      was     not    interested             in     coordination            among          the

Republican     candidates          in     the     state     senate     recalls        would          be

mistaken.

       ¶300 Turning to non-party committees, how does Wis. Stat.

§ 11.10(4)      apply    to        a     candidate         who   answers         a    candidate

questionnaire from a committee, which asks the candidate pointed

questions on issues, then asks whether the candidate will accept

an    endorsement     and     campaign          contributions?             Surely,         a    non-

judicial candidate is permitted to ask for financial support.

       ¶301 The "coordination" statute cannot be constitutional as

written     because     it    makes         the      candidate       who    behaves            as     a

perfectly      normal    candidate,             meeting      with      organizations                and

discussing plans, issues, and themes, run the intolerable risk

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of impairing a committee that does no more than engage in issue

advocacy.      The     committee         is     neutered      if     it     is     made     a

subcommittee   of     the     candidate's       committee       because       it    cannot

exceed the candidate's contribution limits.                         The committee is

disqualified     because      it     cannot     receive      and     spend       corporate

dollars as a subcommittee of a candidate, and it cannot maintain

the anonymity of its donors, as permitted by law, if it engages

in issue advocacy that helps the candidate.
     ¶302 Under      the      statute      as    written,       a     candidate         must

surrender his First Amendment freedom to communicate if he is to

prevent criminal liability.

     ¶303 A more carefully drafted statute might be able to pass

constitutional       muster.           But      not    this     statute,           in     the

circumstances of this case.              And no statute can vest government

regulators   and     special       prosecutors        with    broad       discretion       to

decide whether First Amendment activities violate the law.

     ¶304 In my view, Wis. Stat. § 11.01(16) is unconstitutional

if it is not limited to express advocacy; Wis. Stat. § 11.10(4)

is   unconstitutional         as     drafted;     Wis.       Stat.     § 11.26(4)         is

unconstitutional; Wis. Stat. § 11.26(9) is unconstitutional; and

Wis. Stat. § 11.26(13m) must be broadly interpreted under the

circumstances facing Wisconsin in 2011-2012.                        As a result, the

special prosecutor cannot sustain the theories of prosecutorion

that served as the foundation for his John Doe investigation.

     ¶305 For the foregoing reasons, I respectfully concur in

the decision to dismiss the John Doe investigation.



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     ¶306 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins Sections IV and V of this opinion, and

that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN

join Section IV of this opinion.




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       ¶307 ANNETTE KINGSLAND ZIEGLER, J.                        (concurring).        During

pre-dawn darkness in October 2013, several armed law enforcement

officers      wearing      flak      jackets,        carrying      battering       rams,   and

using       bright    floodlights           executed       secret     John     Doe    search

warrants in the homes of Wisconsin residents.                                What was the

prosecution searching for?                      The prosecution was in search of

documents and electronic evidence, including personal computers

and cell phones, to support alleged violations of Wisconsin's
campaign finance law.                The warrants sought evidence that had

been       around    for   more      than       four    years.       The     warrants      were

executed shortly before morning, days after a judge signed them,

while it was still dark outside.                       Law enforcement certainly has,

and should have, a great deal of discretion when it comes to how

and when a warrant will be executed, but ultimately courts may

review the reasonableness of that execution. 1
       ¶308 Because          these    searches          were     executed     in     pre-dawn

darkness,        they      are       essentially          what      courts      and     legal

commentators         refer    to     as     a    nighttime       search. 2     Because       no
       1
       "'[I]t is generally left to the discretion of the
executing officers to determine the details of how best to
proceed with the performance of a search authorized by the
warrant——subject of course to the general Fourth Amendment
protection against unreasonable searches and seizures.'"   State
v. Sveum, 2010 WI 92, ¶53, 328 Wis. 2d 369, 787 N.W.2d 317
(alteration added in Sveum) (quoting Dalia v. United States, 441
U.S. 238, 257 (1979)) (internal quotation marks omitted).
       2
       For      a more comprehensive discussion of the law regarding
nighttime        searches,  see  Claudia  G.   Catalano, Annotation,
Propriety       of Execution of Search Warrants at Nighttime, 41
A.L.R. 5th      171 (1996).

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Wisconsin law specifically addresses the legality of nighttime

searches      of    private      homes,   under      the    existing        facts     of    this

case,       these     pre-dawn     searches        could    raise        questions     as    to

whether they would pass constitutional muster.                            I recognize that

because      no     challenge     has   been       made    to   the      execution    of     the

warrants, the record is without explanation as to why the search

warrants were executed as they were.                       I also recognize that the

State       might    have   had    a    legitimate        reason      for    executing      the

search warrants pre-dawn in paramilitary fashion.

        ¶309 I join the majority opinion in all three cases.                                  I

write separately to explain that, even if the search warrants

were lawfully issued, the execution of them could be subject to

the    reasonableness         analysis     of      the     Fourth     Amendment       to     the

United       States     Constitution       and      the    Wisconsin         Constitution's

counterpart. 3         A totality of the circumstances analysis could

include consideration of, among other things, the timing of the

issuance and execution of the warrants, the manner in which the

warrants       were     executed,       whether       public        or      officer    safety

concerns justified the manner of execution, and what type of

evidence was being sought.

                            I. FUNDAMENTAL PRINCIPLES




        3
       "Even if a court determines that a search warrant is
constitutionally valid, the manner in which the warrant was
executed remains subject to judicial review."        Sveum, 328
Wis. 2d 369, ¶53 (citing State v. Andrews, 201 Wis. 2d 383, 390,
549 N.W.2d 210 (1996)).


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        ¶310 The Fourth Amendment "contain[s] two separate clauses,

the     first     protecting     the    basic     right     to   be    free    from

unreasonable searches and seizures and the second requiring that

warrants be particular and supported by probable cause."                      Payton

v. New York, 445 U.S. 573, 584 (1980).                 The Fourth Amendment's

second clause provides that "no warrants shall issue, but upon

probable        cause,    supported     by      oath   or    affirmation,        and

particularly describing the place to be searched, and the person

or things to be seized."            U.S. Const. amend. IV.            With respect

to    the    other   clause,   "[t]he    Fourth    Amendment     to    the    United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution protect '[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures.'"            State v. Robinson, 2010 WI 80, ¶24,
327 Wis. 2d 302, 786 N.W.2d 463 (quoting U.S. Const. amend. IV;

Wis. Const. art. 1, § 11). 4

        4
       The Fourth Amendment to the United States Constitution
provides in full:

        The right of the people to be secure in their persons,
        houses, papers, and effects, against unreasonable
        searches and seizures, shall not be violated, and no
        Warrants   shall  issue,  but  upon   probable  cause,
        supported by Oath or affirmation, and particularly
        describing the place to be searched, and the persons
        or things to be seized.

Article I, Section 11 of the Wisconsin Constitution states:

        The right of the people to be secure in their persons,
        houses, papers, and effects against unreasonable
        searches and seizures shall not be violated; and no
        warrant shall issue but upon probable cause, supported
        by oath or affirmation, and particularly describing
                                                        (continued)
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        ¶311 "'The        touchstone             of         the     Fourth         Amendment        is

reasonableness.'"              State       v.    Tullberg,          2014     WI    134,    ¶29,    359

Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S.

248, 250 (1991)).           "'The Fourth Amendment does not proscribe all

state-initiated           searches         and    seizures;          it      merely       proscribes

those which are unreasonable.'"                        Id. (quoting Jimeno, 500 U.S.

at 250).       "Constitutional reasonableness relates not only to the

grounds      for    a     search         or    seizure        but    to      the    circumstances

surrounding        the     search         or    seizure's          execution."            State    v.
Henderson,       2001     WI    97,       ¶18,    245       Wis. 2d 345,           629    N.W.2d 613

(citing      Tennessee         v.       Garner,       471    U.S.       1,    8    (1985)).       "The

determination        of    reasonableness              is     made      by   reference       to    the

particular circumstances of each individual case, and balances

the    nature      and    quality        of     the    intrusion        on    the     individual's

Fourth      Amendment          interests         against          the      importance       of    the

governmental interests alleged to justify the intrusion."                                         Id.

(internal       quotation        marks         omitted)       (citations           omitted).        In

other words, "reasonableness" is "determined by balancing the

degree to which a challenged action intrudes on an individual's

privacy and the degree to which the action promotes a legitimate

government interest."                   Green v. Butler, 420 F.3d 689, 694 (7th
Cir. 2005) (citing United States v. Knights, 534 U.S. 112, 118-

19 (2001); Ohio v. Robinette, 519 U.S. 33, 39 (1996)).                                      A court

determines         whether          a    search        was        reasonably         executed       by


        the place to be searched and the persons or things to
        be seized.


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considering "the totality of the circumstances."                         United States

v. Banks, 540 U.S. 31, 35-36 (2003).

                    A. Constitutional Protection of a Home

        ¶312 "The people's protection against unreasonable search

and seizure in their 'houses' was drawn from the English common-

law maxim, 'A man's home is his castle.'"                        Minnesota v. Carter,

525 U.S. 83, 94 (1998) (Scalia, J., concurring).                             "Courts have

long        extolled   the    importance      of    the     home,   noting      that    the

[Fourth Amendment] was drafted in part to codify 'the overriding

respect for the sanctity of the home that has been embedded in

our traditions since the origins of the Republic.'"                             State v.
Scull, 2015 WI 22, ¶19, 361 Wis. 2d 288, 862 N.W.2d 562 (quoting

Payton, 445 U.S. at 601).               The United States Supreme Court has

noted that "the 'physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.'"

Payton, 445 U.S. at 585 (quoting United States v. United States

District        Court,   407    U.S.     297,      313     (1972)).          "The   Fourth

Amendment       protects     the     individual's         privacy   in   a    variety    of

settings.        In none is the zone of privacy more clearly defined

than when bounded by the unambiguous physical dimensions of an

individual's        home——a    zone    that       finds    its   roots   in    clear    and

specific constitutional terms: 'The right of the people to be

secure in their . . . houses . . . shall not be violated.'"                             Id.
at 589 (ellipses added in Payton).                   "That language unequivocally

establishes the proposition that '[a]t the very core [of the

Fourth Amendment] stands the right of a man to retreat into his

own     home     and   there    be    free    from        unreasonable       governmental
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intrusion.'"             Id.   at   589-90    (alterations    added   in    Payton)

(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). 5

                           B. Nighttime Search of a Home

       ¶313 A nighttime search of a home conflicts with the fact

that       "[a]   home    is   entitled      to   special   dignity   and   special

sanctity."        Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626

(1962).       "Searches of the dwelling house were the special object

of this universal condemnation of official intrusion.                   Nighttime

search was the evil in its most obnoxious form."                        Monroe v.
Pape, 365 U.S. 167, 210 (1961) (Frankfurter, J., dissenting in

part).        "The Supreme Court has consistently recognized that a

police search of a residence at night is a greater intrusion

upon an individual's privacy interest than an ordinary search."

United States v. Gibbons, 607 F.2d 1320, 1326 n.15 (10th Cir.


       5
       The Supreme Court has noted that a search of a cell phone
or personal computer could carry some of the implications of a
home search.    The Court noted that "many [cell phones] are in
fact minicomputers that also happen to have the capacity to be
used as a telephone."    Riley v. California, 573 U.S. ____, 134
S. Ct. 2473, 2489 (2014).    Given the "storage capacity of cell
phones," "a cell phone search would typically expose to the
government far more than the most exhaustive search of a house:
A phone not only contains in digital form many sensitive records
previously found in the home; it also contains a broad array of
private information never found in a home in any form . . . ."
Id. at 2489, 2491. In fact, some courts have required warrants
to be more particular than just seeking all e-mails. See In re
Applications for Search Warrants for Info. Associated with
Target Email Accounts/Skype Accounts, No. 13-MJ-8163-JPO, 2013
WL 4647554, at *8 (D. Kan. Aug. 27, 2013) (holding that "the
warrants   proposed   by  the   government  violate  the  Fourth
Amendment" because they did not particularly describe the e-
mails to be searched).


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1979).      In Jones v. United States, the Supreme Court stated that

it was "difficult to imagine a more severe invasion of privacy

than the nighttime intrusion into a private home . . . ."                  Jones

v. United States, 357 U.S. 493, 498 (1958); see also Coolidge v.

New Hampshire, 403 U.S. 443, 477 (1971) (describing a "midnight

entry" of a home as an "extremely serious intrusion"); United

States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978) (citations

omitted) ("[T]he Fourth Amendment protects citizens' reasonable

expectations of privacy . . . [and] one's reasonable expectation

of privacy in the home is entitled to a unique sensitivity from

federal courts."); United States v. Martinez-Fuerte, 428 U.S.
543, 561 (1976) (citation omitted) (noting that "the sanctity of

private dwellings[ is] ordinarily afforded the most stringent

Fourth Amendment protection"). 6

        ¶314 "At common law, prior to the adoption of the Fourth

Amendment, there was a strong aversion to nighttime searches."

United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3d

Cir. 1968) (citations omitted).              "This aversion was then and is

now    primarily     focused   on   intrusions    into   the   home."    United

        6
       "Because the fourth amendment's proscriptions against
unreasonable searches are virtually identical to those in art.
I, sec. 11 of the Wisconsin Constitution, state law of search
and seizure conforms to that developed under federal law."
State v. Long, 163 Wis. 2d 261, 266, 471 N.W.2d 248 (Ct. App.
1991) (citing State v. Reed, 156 Wis. 2d 546, 551, 457
N.W.2d 494 (Ct. App. 1990)).    See also State v. Tullberg, 2014
WI 134, ¶29 n.17, 359 Wis. 2d 421, 857 N.W.2d 120.




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States v. Tucker, 313 F.3d 1259, 1263 (10th Cir. 2002) (citing

Gibbons, 607 F.2d at 1326).                       "Nighttime searches were regarded

with    revulsion           [at     common   law]      because         of     the   indignity    of

rousing people from their beds."                         Com. v. Grimshaw, 595 N.E.2d

302, 304 (Mass. 1992) (citing Com. v. DiStefano, 495 N.E.2d 328,

332 (Mass. App. Ct. 1986)).                      "The significance of this aversion

of the common law to nighttime searches is underscored by the

Supreme Court's reminder that the search and seizure clause is

properly           'construed        in    the     light      of       what     was    deemed   an

unreasonable search and seizure when it was adopted.'"                                     Boyance,
398 F.2d at 897 (quoting Carroll v. United States, 267 U.S. 132,

149 (1925)).             When a home is invaded during pre-dawn darkness of

night, special protections should apply because of the sanctity

of a home.             This is not to say that a home search can never

occur in pre-dawn darkness, but when it does, that timing could

be considered as a part of the totality of the circumstances

reasonableness analysis of the Fourth Amendment.

        ¶315 Although Wisconsin does not have a statute directing

that        a    judge      must    determine      whether         a   nighttime       search    is

justified, 23 states have statutory protections that allow a

nighttime            search         only     upon        a      "special            showing     and

authorization."               Wayne R. LaFave, Search and Seizure § 4.7(b)
(5th        ed.    2014).          Similarly,      the       Federal        Rules     of   Criminal

Procedure implement the essentials of the Fourth Amendment by

requiring that a warrant be served "during the daytime, unless

the    judge,         for    good    cause       expressly      authorizes          execution    at


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another time."          Fed. R. Crim. P. 41(e)(2)(A)(ii). 7          The federal

rule and these 23 states recognize and codify Fourth Amendment

protections          against   unreasonable         nighttime   searches      and

seizures.          See United States v. Searp, 586 F.2d 1117, 1124 (6th

Cir.       1978)    (holding   that    Federal   Rule    41's   "night     search

provisions . . . explicate            fundamental    purposes   of   the   Fourth




       7
       The Federal Rules of Criminal Procedure require special
justification for a nighttime search.         Fed. R. Crim. P.
41(e)(2)(A)(ii).   However, "'[d]aytime' means the hours between
6:00 a.m. and 10:00 p.m. according to local time."       Fed. R.
Crim. P. 41(a)(2)(B). Although this Federal Rule may have been
technically complied with because the searches at issue might
have begun a few minutes after 6:00 a.m., technical compliance
with the Federal Rule does not automatically render these
searches immune from constitutional scrutiny in this state court
matter. While federal rules attempt to provide for consistency
from state to state, courts have often taken a practical
approach   when   defining  "nighttime"   for   Fourth  Amendment
purposes.    See Claudia G. Catalano, Annotation, Propriety of
Execution of Search Warrants at Nighttime, 41 A.L.R. 5th 171
(1996). See also United States v. Palmer, 3 F.3d 300, 303 (9th
Cir. 1993) (holding that Federal Rule of Criminal Procedure 41
did not apply because "[t]he investigation in this case was
initiated and controlled by the local law enforcement officials
involved").     In the case at issue, although the Special
Prosecutor is a former Federal Prosecutor, his investigation of
this matter was not in the federal system.     This investigation
was initiated and controlled by local law enforcement officials.


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Amendment"         (internal            quotation      marks        omitted)     (citation

omitted)). 8

        ¶316 When       a    court       is   confronted     with    a   challenge       to   a

search that is conducted in the pre-dawn darkness of night, it

might consider whether the exigencies of the situation justify

the greater intrusiveness of a search at this time.                                 A court

could look at factors including, but not limited to, the timing

of the issuance and execution of the warrants, the manner in

which       the   warrants        were    executed,    whether       public    or   officer

safety concerns justified the manner of execution, and what type

of    evidence      was      being      sought.      Law    enforcement    is    certainly

endowed with a great deal of discretion regarding how and when

to execute a warrant, but ultimately a court could be called

upon    to     review       the   reasonableness       of    that    execution      under     a

totality of the circumstances analysis.

        ¶317 Certainly,           the    necessity    of     immediate    police     action

may     be     evident       from       the   facts    and     circumstances        of    the

situation.        Warrant execution in some criminal matters, such as

some human trafficking or drug cases, may militate in favor of a

warrant being executed at night or in a forceful manner because

        8
       A violation of these rules may result in suppression of
the   evidence  if   the   violation   rises  to  constitutional
proportion. See, e.g., United States v. Bieri, 21 F.3d 811, 816
(8th Cir. 1994) (citation omitted) ("We apply the exclusionary
rule to violations of [the nighttime search provision of] Rule
41 only if a defendant is prejudiced or reckless disregard of
proper procedure is evident."); see also United States v. Berry,
113 F.3d 121, 123 (8th Cir. 1997) (noting that a violation of
Federal Rule of Criminal Procedure 41's nighttime search
provision can be "of constitutional magnitude").


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the criminal activity is likely occurring at night, evidence may

likely be lost if law enforcement waits, or dangerous activity

is afoot.         "It has been held that the danger of destruction or

removal      of   the           evidence    is    sufficient         reason    for    nighttime

execution         of        a     search      warrant,         in      part    because          such

circumstances could even constitute exigent circumstances for a

search without a warrant."                    Tucker, 313 F.3d at 1265 (citations

omitted).         See, e.g., United States v. Howard, 532 F.3d 755,
760-61 (8th Cir. 2008) (upholding a nighttime search because a

confidential           informant         advised       police       that    drug     trafficking

occurred in the home "during all hours of the night"); Fair v.

State, 664 S.E.2d 227, 235 (Ga. 2008) (upholding a 1:15 a.m.

search "because the officers knew from experience that the peak

time for drug dealers to conduct business was after midnight").

Law enforcement needs a wide berth when determining how and when

to     execute         a        warrant,    but        under     the       totality       of     the

circumstances,             the     execution      of     the    warrant       must    still      be

reasonable in order to pass constitutional muster.

                       II. THE TOTALITY OF THE CIRCUMSTANCES

        ¶318 With               Fourth      Amendment           principles           in        mind,

understanding              that    the     record      is    not     complete       because      no

challenge has been made to the warrant execution, the following

discussion will nonetheless endeavor to consider the timing of

the    issuance        and        execution      of    the     warrants,      the     manner     of

execution, whether public or officer safety concerns existed,

and what type of evidence was being sought.

     A. The Timing of the Issuance and Execution of the Warrants
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     ¶319 In       the        case   at   issue,     Investigator           Dean   Nickel

obtained two secret John Doe warrants from Reserve Judge Barbara

Kluka to search the homes of Unnamed Movants Nos. 6 and 7.                             The

warrants    were    obtained         in   the    course    of    a   secret    John    Doe

investigation. 9         Those warrants and their supporting affidavit

did not set forth any particular time at which, or manner in

which, the warrants would be executed.                          Unlike many warrants

that must be executed at nighttime for fear of the evidence

being    destroyed       or    removed    from    the     location     or    because    of

public or officer safety reasons, much of this evidence had been

sitting on computers and in cyberspace for years.

     ¶320 This was not, as sometimes occurs, a situation where a

judge was awoken in the middle of the night to issue a warrant

because law enforcement needs to execute it promptly in order to

seize the evidence.             Reserve Judge Kluka signed the warrants at

11:30 a.m. on Monday, September 30, 2013.                         However, they were

not executed until Thursday, October 3, 2013, at approximately




     9
       A John Doe proceeding, known as "John Doe I," was
commenced   in  the  spring   of  2010   "for  the   purpose  of
investigating the alleged misuse of public resources in the
Milwaukee County Executive's office."   Majority op., ¶14.   The
John Doe I investigation "triggered a second John Doe proceeding
(John Doe II), the investigation at issue here." Id., ¶15. On
August 10, 2012, Milwaukee County Assistant District Attorney
David Robles filed a petition for the commencement of John Doe
II in the Milwaukee County circuit court. Id. On September 5,
2012, "Reserve Judge Kluka authorized the commencement of the
John Doe [II] proceeding and also granted the requested secrecy
order." Id., ¶17.


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6:00 a.m. 10          "A search warrant must be executed and returned not

more    than      5    days   after     the    date   of    issuance."     Wis.    Stat.

§ 968.15(1).           These warrants were executed three days after they

were issued.            "The return of the search warrant shall be made

within       48       hours     after     execution . . . ."              Wis.     Stat.

§ 968.17(1).           The warrants were returned on October 4, four days

after they were issued and one day after they were executed.

        ¶321 The warrants were executed in the pre-dawn darkness.

On October 3 civil twilight began in Madison at 6:29 a.m. and

sunrise began at 6:57 a.m. 11                 For all practical purposes, each of

these       searches      was   the     equivalent         of   a   nighttime    search.

Because no challenge to the warrant execution has been made, the

record lacks any explanation as to why law enforcement did not

execute the warrants any time during the preceding 66.5 hours——

or more specifically, the 29.5 daylight hours——between issuance

and actual execution.




       10
       The return on the warrant to search Unnamed Movant No.
6's house, in a box titled "Recovery Date," reads "10/03/2013
06:15:00."   Similarly, the return on the warrant to search
Unnamed Movant No. 7's house, in a box titled "Recovery Date,"
reads "10/03/2013 6:03:13."   The record does not indicate to
what these times correspond.    Media reports indicate that the
searches lasted two and a half hours. See, e.g., Kittle, infra
note 12. The record is unclear.
       11
       See U.S. Naval Observatory: Astronomical Applications
Department, Sun and Moon Data for One Day, available at
http://aa.usno.navy.mil/rstt/onedaytable?form=1&ID=AA&year=2013&
month=10&day=3&state=WI&place=Madison (last visited June 13,
2015).


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       ¶322 A nighttime search will often occur shortly after a

judge    has    issued      the     warrant,         as    there       is   some     urgency    in

needing to conduct the search in non-daylight hours.                                        Courts

often    consider      "nighttime"             as    the    time       when     it   is     "dark"

outside, between sunset and sunrise, between dusk and dawn, or

when     most    people      are     asleep.               See     Claudia      G.     Catalano,

Annotation,       Propriety         of     Execution          of       Search      Warrants     at

Nighttime,       41        A.L.R.        5th        171     (1996).             This       record,
understandably, lacks any indication of why it was reasonable to

execute    these      warrants       in    this       manner,      especially          since   the

warrants had been issued three days earlier.                                  The prosecution

might have obtained the same evidence in the daylight by waiting

a mere hour or two or by executing the warrants in any of the

preceding daylight hours.                 Why did law enforcement execute these

secret John Doe warrants days after obtaining them, in the pre-

dawn darkness, needing floodlights to illuminate the homes, and

with such forceful presence?

       ¶323 While      there       may     be       reasons      why    the     warrants       were

executed       when   they     were,       the       current       state      of     the    record

provides no indication that the prosecution "felt some exigency"

so as to necessitate the execution of the warrants in the pre-

dawn darkness three days after the warrants were issued.                                        See
United    States      v.    Berry,       113     F.3d      121,     123     (8th     Cir.    1997)

(upholding a 12:30 a.m. search for a large quantity of marijuana

because the officers "obviously felt some exigency").                                   See also

Harris, 324 F.3d at 606 (upholding a nighttime search performed

two hours and 15 minutes after the warrant was issued); Tucker,
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313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113

F.3d       at   122    (same,      45     minutes);       Boyance,          398    F.2d    at        897

(holding        that    a    nighttime      search        performed         90    minutes       after

issuance of a warrant was unconstitutional because there was no

indication that "the evidence within the house would be removed,

hidden or destroyed before morning").

                              B. The Manner of Execution

       ¶324 Courts          have    also     considered         the    specific         manner        in

which      warrants     are       executed    as    part        of    the    totality          of    the

circumstances.               "The[se]      search         warrants      were       executed           at

approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed,

paramilitary-style raids in which bright floodlights were used

to     illuminate           the    targets'       homes."             Majority          op.,        ¶28.

"Deputies       seized       business      papers,        computer      equipment,         phones,

and other devices, while their targets were restrained under

police      supervision           and    denied     the    ability          to    contact       their

attorneys."            Id., ¶29.          While there may be reasons why the
warrants were executed in the manner that they were, the record

lacks any such explanation as the execution was not challenged.
       ¶325 Although          not       critical    to     my    analysis,         it     is    worth

noting how some news outlets have described these searches.                                          Had

a hearing been held on the manner in which these searches were

executed, it is uncertain whether the facts established in such

a hearing would be consistent with these news reports or whether

there is nonetheless "a legitimate government interest" in the

execution of the searches.                 See Green, 420 F.3d at 694.


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       ¶326 Reportedly,        about       an    hour     before    sunrise,     police

"surrounded" the homes of Unnamed Movants Nos. 6 and 7 and "hit

them with floodlights." 12              "Police didn't draw their guns.            They

didn't have to.          Garish light blinded the groggy targets of the

secret probe, startling neighbors.                      The uniforms, the lights,

the early hour got everybody's attention." 13                  "One of the targets

[said] police threatened to use battering rams to break down the

front door, but the targets let them in." 14                   Each of these pre-

dawn searches of the homes of Unnamed Movants Nos. 6 and 7

reportedly involved at least half a dozen sheriff's deputies and

at   least        one   official    from        the   Milwaukee     County     District

Attorney's        Office. 15       It     has    been    reported    that      deputies

"[s]hout[ed] [] at the front door" 16 and, once inside, continued

"yelling and running, into every room in the house." 17

       12
       M. D. Kittle, The day John Doe Rushed Through the Door,
WisconsinWatchdog.org,    Oct.    3,     2014,    available at
http://watchdog.org/174987/john-doe-raids-eric-okeefe.
       13
            Id.
       14
            Id.
       15
       The record is not clear as to why at least one
representative from the Milwaukee County District Attorney's
Office was on scene for the searches.      The record is also
unclear as to whether it is typical protocol for a Milwaukee
County District Attorney's Office representative to be present
when a search warrant is executed.
       16
       Rich   Lowry,   Politicized   Prosecution  Run   Amok                         in
Wisconsin, National Review, Apr. 21, 2015, available                                 at
http://www.nationalreview.com/article/417207/politicized-
prosecution-run-amok-wisconsin-rich-lowry.
       17
       David French, Wisconsin's Shame: "I Thought It Was a Home
Invasion", National Review, Apr. 20, 2015, available at
                                                     (continued)
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     ¶327 Other media outlets described the searches as follows:

          The early-morning paramilitary-style raids on
     citizens' homes were conducted by law-enforcement
     officers, sometimes wearing bulletproof vests and
     lugging battering rams, pounding on doors and issuing
     threats.   Spouses were separated as the police seized
     computers, including those of children still in
     pajamas.    Clothes drawers, including the children's,
     were ransacked, cell phones were confiscated, and the
     citizens were told it would be a crime to tell anyone
     of the raids. 18
     ¶328 At least one person who was subjected to a pre-dawn
search of his or her residence reportedly described it as "a

home invasion." 19          The targets of the pre-dawn searches have

described these experiences as "terrifying" and "traumatic." 20

     ¶329 Due to the terms of the John Doe secrecy order itself,

the targets were instructed not to tell other people about the

searches.       The search warrants stated: "This John Doe search

warrant is issued subject to a secrecy order.                     By order of the

court,     pursuant    to    a     secrecy      order     that   applies   to     this

proceeding, you are hereby commanded and ordered not to disclose

to anyone, other than your attorney, the contents of this search

warrant    and/or     the   fact    that     you   have    received    this     search

warrant.        Violation    of    this    secrecy      order    is   punishable    as

http://www.nationalreview.com/article/417155/wisconsins-shame-i-
thought-it-was-home-invasion-david-french.
     18
        George Will, Done in by John Doe, National Review, Oct.
25,     2014,     available     at http://www.nationalreview.com/
article/391130/done-john-doe-george-will.
     19
          French, supra note 17.
     20
          Id.


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contempt               of       court."                   Reportedly,             "[m]ultiple

targets . . . received                verbal      instructions       from    investigators

about       the    secrecy          order   applying       to     every    member      of   the

household." 21              Despite the language of the secrecy order, some

have otherwise averred that the targets "were told not to tell

their lawyers, or their friends, or their neighbors." 22

                        C. Public and Officer Safety Concerns

       ¶330 As part of the totality of the circumstances, courts

have also considered whether safety concerns of the public or

the officers justify the timing and the manner of a warrant's

execution.         Although a paramilitary-style search in the darkness

is   undoubtedly             justified      in   some    circumstances,          the   current

state of this record provides no indication that Unnamed Movants

Nos. 6 and 7 "posed an immediate threat to the safety of the

officers          or    others,"       were       "actively       resisting       arrest     or

attempting         to       evade    arrest      by    flight,"    or     were    "themselves

violent or dangerous."                 See Estate of Smith v. Marasco, 430 F.3d
140, 150 (3d Cir. 2005) (holding that these facts are important

for determining whether a SWAT-type search was reasonable).                                  In

the present case, executing the warrants in paramilitary fashion

during pre-dawn darkness arguably might have actually increased

the risk of injury to the public or the officers.                                See Bravo v.


       21
       M. D. Kittle, Warrants Command John Doe Targets to Remain
Silent, WisconsinWatchdog.org, May 14, 2015, available at
http://watchdog.org/218761/john-doe-warrants-raids/.
       22
            Lowry, supra note 16 (emphasis added).


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City of Santa Maria, 665 F.3d 1076, 1086 (9th Cir. 2011) ("SWAT

officers' nighttime searches . . . both constitute much greater

intrusions on one's privacy than ordinary daytime searches and

carry a much higher risk of injury to persons and property.").

     ¶331 A "nighttime police intrusion pose[s] a great threat

to privacy, violate[s] the sanctity of home, and endanger[s] the

police and slumbering citizens."                   Grimshaw, 595 N.E.2d at 304

(citing 2 W.R. LaFave, Search and Seizure § 4.7(b), at 266 (2d
ed. 1987)).       In the present case, whether any public or officer

safety     concern       justified    the        pre-dawn       searches       is        unknown

because the execution was not challenged.                       Cf. United States v.

Colonna,    360    F.3d     1169,    1176    (10th       Cir.     2004)    (upholding          a

nighttime    search        because   of   the      defendant's         "prior       extensive

involvement       with     law   enforcement,        the     expressed         fear       of   a

concerned     citizen         that    [the        defendant]           would        retaliate

violently, and the presence of children in the vicinity" during

the daytime).

                                  D. The Evidence

     ¶332 I turn now to the nature of the evidence being sought.

This case is not one where the alleged crime is occurring at

night    during      the    search.         This    is      not    a    drug        or    human

trafficking investigation where it is apparent that the evidence

of the crime may no longer be present at the search location if

the warrants are not executed promptly.                         The circumstances of

this case do not plainly suggest that waiting until daybreak

would have posed a safety risk to the public or officers.


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     ¶333 These        pre-dawn     searches     sought,    among    other   things,

electronic evidence, including e-mails and communications stored

on cell phones and personal computers. 23                   The search warrants

sought information from March 1, 2009, to September 30, 2013,

the date that the warrants were issued.                    This evidence, which

seemingly had been around for years and likely otherwise exists

in cyberspace, did not appear to be "volatile" and no reason is

readily apparent to explain why executing the warrants in a more

traditional manner, by far less forceful means, would pose any

"risk of personal injuries and property damage."                       See Tucker,
313 F.3d at 1266 (upholding a nighttime search because "there

was not just risk of destruction of the evidence but also risk

of personal injuries and property damage due to the volatile

nature    of     the   chemicals     and   the    process    of     methamphetamine

manufacture").

     ¶334 While not jugular to the totality of the circumstances

analysis,      it    seems   that   this   electronic      evidence    was   not   in

"danger     of      destruction     or   removal"    from     the    homes   before

morning.       See id. at 1265.          The process of erasing a file on a
personal computer "is time consuming and does not wipe out all


     23
       From Unnamed Movant No. 6's home, law enforcement
officers seized tax records, check stubs, invoices, a binder
containing documents, a box of documents, an external hard
drive, and a laptop computer. From Unnamed Movant No. 7's home,
officers seized three cell phones, three external hard drives,
two computer towers, two laptop computers, two Apple iPods, a
document folder, three compact discs, a thumb drive, a voice
recorder, bank stubs, personal pocket calendars, and financial
records.


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data." 24      A    cell phone's      files may          likewise      be difficult         to

erase.       "Smartphone forensics experts can retrieve just about

anything from any phone," "whether or not a user deleted it from

their      phone." 25     In    fact,     the    affidavit       in    support        of   the

warrants to search the homes of Unnamed Movants Nos. 6 and 7

seemed to recognize that the evidence was not at risk of being

destroyed, even if deleted.               The affidavit itself declared that

"computer      files    or     remnants     of   such     files       can   be    recovered

months or even years after they have been downloaded onto a
storage medium, deleted, or viewed via the Internet."                             (Emphases

added.)

      ¶335 Even if the computers and cell phones had been totally

destroyed,         investigators      still      could    have    sought         to     obtain

Unnamed      Movants    Nos.    6's   and     7's   e-mail    messages           from    third

parties, such as Internet service providers or e-mail service

providers. 26        Wisconsin law expressly authorizes subpoenas and

search warrants to be issued to such third parties.                                See Wis.

Stat. § 968.375.          Milwaukee County prosecutors have used these

      24
       Christine    Galves   &   Fred   Galves,    Ensuring   the
Admissibility of Electronic Forensic Evidence and Enhancing Its
Probative Value at Trial, 19 Criminal Justice Magazine 1 (Spring
2004),       available       at       http://www.americanbar.org/
publications/criminal_justice_magazine_home/crimjust_cjmag_19_1_
electronic.html.
      25
       David Goldman, How Police Can Find Your Deleted Text
Messages,    CNN   Money,    May   22,    2013,   available   at
http://money.cnn.com/2013/05/22/technology/mobile/smartphone-
forensics/.
      26
           Galves, supra note 24.


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techniques in recent prosecutions of a somewhat similar nature.

See State v. Rindfleisch, 2014 WI App 121, 359 Wis. 2d 147, 857

N.W.2d 456 (holding that search warrants, which required Google

Inc. and Yahoo Inc. to provide evidence from the defendant's

personal e-mail messages, were sufficiently particular).

       ¶336 In      fact,    previously        during   this    very     John      Doe

investigation, the State did obtain Unnamed Movants Nos. 6's and

7's e-mails from their e-mail service providers.                      Specifically,

on September 5, 2012, the same day that Reserve Judge Kluka

commenced    this     John   Doe      investigation,    she    signed    a    warrant

requiring Yahoo Inc. to supply information from Unnamed Movant

No. 6's Yahoo e-mail account.             Also on September 5 Reserve Judge

Kluka signed a similar warrant requiring Charter Communications

Inc. to provide information from Unnamed Movant No. 7's Charter

e-mail account.         Each of these warrants required the production

of, inter alia, "[t]he contents of all communications stored in
the E-mail accounts for the subscriber(s) . . . , including all

emails stored in the account, whether sent from or received in

the account, including any 'chat or instant messaging,' as well

as e-mails held in a 'Deleted' status," from April 1, 2009, to

July 1, 2012.           Yahoo and Charter complied with the warrants

within six weeks and two weeks, respectively.                    Thus, at least

some of the evidence that the prosecution hoped to obtain by

searching the homes of Unnamed Movants Nos. 6 and 7 in October

2013     could   very    well    have     been   duplicative     of     the    e-mail

evidence     that    Yahoo      and    Charter    produced     pursuant       to   the

September 2012 search warrants.
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     ¶337 While        not    required,        another      avenue    of   obtaining

evidence may have existed through subpoenas duces tecum, which

could have been served on Unnamed Movants Nos. 6 and 7 as an

alternative      to    the    pre-dawn,      paramilitary-style         searches   of

their homes.      See Wis. Stat. § 968.135.              In fact, such subpoenas

were issued on other Unnamed Movants.                 Specifically, on the same

day that Reserve Judge Kluka issued the warrants to search the

homes of Unnamed Movants Nos. 6 and 7, she issued subpoenas

duces tecum to the other six Unnamed Movants.                        These subpoenas
duces tecum required the production of, inter alia, information

regarding       Unnamed      Movants   Nos.       6   and    7.       Although     law

enforcement is not required to obtain information by subpoena

instead of a warrant, the type of evidence being sought and the

ways in which it may be obtained could possibly be of some

significance      in    the    totality      of   the    circumstances      test   of

reasonableness.

     ¶338 Milwaukee County Sheriff David A. Clarke, Jr. has been

vocal     in   explaining     his   belief     that   it    was   unreasonable     and

unnecessary to execute these pre-dawn searches in the manner in

which they were executed.              He said, "[a] simple knock on the

door by a couple of suit wearing investigators with . . . one

uniform back-up [officer] to verify who they were was all that

was necessary to execute this search warrant." 27

     27
       David French, Wisconsin's Shame: Sheriff Clarke Weighs
In,   National    Review,   Apr.    23,   2015,    available  at
http://www.nationalreview.com/corner/417406/wisconsins-shame-
sheriff-clarke-weighs-david-french.


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                                      III. CONCLUSION

        ¶339 "Constitutional reasonableness relates not only to the

grounds        for    a     search    or     seizure      but    to     the    circumstances

surrounding the search or seizure's execution."                               Henderson, 245

Wis. 2d 345,          ¶18     (citing       Garner,      471     U.S.    at    8). 28         "The

determination          of    reasonableness         is    made     by   reference       to     the

particular circumstances of each individual case, and balances

the    nature        and    quality    of    the    intrusion      on    the    individual's

Fourth        Amendment       interests       against       the       importance        of    the

governmental interests alleged to justify the intrusion."                                      Id.
(internal quotation marks omitted) (citations omitted).                                       "The

idea    of     the    police    unnecessarily            forcing    their      way   into      the

homes in the middle of the night . . . rousing the residents out

of their beds, and forcing them to stand by in indignity in

their        night    clothes    while       the    police       rummage      through        their

belongings does indeed smack of a 'police state lacking in the

respect       for . . . the          right    of    privacy      dictated      by    the      U.S.

Constitution.'"              Gooding v. United States, 416 U.S. 430, 462

(1974) (Marshall, J., dissenting) (quoting S. Rep. No. 91—538,

p. 12 (1969)).

        28
        See State v. Henderson, 2001 WI 97, ¶3, 245 Wis. 2d 345,
629   N.W.2d 613   (recognizing   that   the   Fourth  Amendment
reasonableness inquiry considers whether officers knocked and
announced their presence before entry); see also United States
v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (holding that
"a nighttime intrusion is one element in considering the
reasonableness of the search");    State v. Jackson, 742 N.W.2d
163, 177 (Minn. 2007) (holding that "the search of a home at
night is a factor to be considered in determining whether a
search is reasonable under the Fourth Amendment").


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                                                                 2013AP2508-W.akz


        ¶340 I join the majority opinion in all three cases.                      I

write separately to explain that even if the search warrants

were lawfully issued, the execution of them could be subject to

the    reasonableness      analysis    of    the    Fourth    Amendment     to   the

United      States    Constitution     and    the   Wisconsin      Constitution's

counterpart.          A totality of the circumstances analysis could

include consideration of, among other things, the timing of the

issuance and execution of the warrants, the manner in which the

warrants       were    executed,    whether     public       or   officer   safety

concerns justified the manner of execution, and what type of

evidence was being sought.

        ¶341 For the foregoing reasons, I respectfully concur.




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       ¶342 SHIRLEY           S.     ABRAHAMSON,       J.        (concurring        in        part,

dissenting in part).

Nos. 2014AP296-OA:             Original Action:          Two Unnamed Petitioners v.
                                       Peterson

      2014AP417-421-W:              Supervisory Writ & Appeal:               Schmitz v.
                                          Peterson

  2013AP2504-2508-W:               Supervisory Writ & Review:                Three Unnamed
                                  Petitioners v. Peterson
       ¶343 The        majority       opinion       decides      three      different         cases

related        to    John    Doe    proceedings       underway         in    five     different

counties.           These John Doe proceedings share a common objective:

To    investigate           potential      violations       of      Wisconsin's       campaign

finance law, Wis. Stat. ch. 11 (2011-12). 1                         The proceedings also

share      a    single       John    Doe    judge,      who      was       assigned      to     the

proceedings          in     all     five    counties,         and      a    single       Special

Prosecutor, who was appointed by the John Doe judge to conduct

the investigation in all five counties. 2

       ¶344 The John Doe cases were consolidated for purposes of

briefing       and    oral     argument,     but      not   for     any     other     purpose. 3




       1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       2
           See majority op., ¶¶17-27.
       3
       The order consolidating the cases for purposes of briefing
and oral argument is dated December 16, 2014, and is attached
hereto, along with my concurrence and that of Justice Prosser,
as Exhibit A.


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Briefs have been filed.               The court, over dissent, canceled oral

argument. 4

       ¶345 The majority opinion and concurrences in these John

Doe cases resolve issues raised by the parties; issues raised by

the court in its December 16, 2014, order (attached hereto as

Exhibit A); and new issues not previously raised by the parties

or the court.               These writings have far-reaching implications,

not just for the John Doe investigation underlying the instant

cases but also for this state's electoral process, future John

Doe proceedings, and criminal proceedings generally.

       ¶346 I begin by addressing the majority opinion.

       ¶347 Lest         the   length,      convoluted   analysis,      and    overblown

rhetoric         of   the   majority       opinion   obscure    its   effect,     let    me

state clearly:           The majority opinion adopts an unprecedented and

faulty interpretation of Wisconsin's campaign finance law and of

the First Amendment.             In doing so, the majority opinion delivers

a significant blow to Wisconsin's campaign finance law and to

its paramount objectives of "stimulating vigorous campaigns on a

fair       and   equal      basis"    and    providing   for    "a    better    informed

electorate." 5

       ¶348 Disregarding             the    statutory    text    that    the    majority

opinion professes to interpret, the majority opinion takes the


       4
       Oral argument was canceled in the three cases pursuant to
an order entered by this court on March 27, 2015.    That order,
along with my dissent and that of Justice Prosser, is attached
hereto as Exhibit B.
       5
           Wis. Stat. § 11.001(1).


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absolutist position that Chapter 11 does not reach any issue

advocacy and that any manner of government regulation of any

issue advocacy contravenes the First Amendment. 6                         Thus, within

the realm of issue advocacy, the majority opinion's theme is

"Anything Goes." 7

     ¶349 But it is not just the letter of Wisconsin's campaign

finance    law   that     the    majority       opinion      disregards.        It    also

disregards the spirit of the law. 8

     ¶350 The      legislative       declaration        of    policy    set    forth     at

Wis. Stat. § 11.001(1) provides that "[w]hen the true source of

support or extent of support [for a candidate] is not fully

disclosed, or when a candidate becomes overly dependent upon

large private contributors, the democratic process is subjected

to potential corrupting influence."                  To prevent such corrupting

influence, the legislature has declared that "the state has a

     6
         See majority op., ¶¶10, 41, 50, 57, 66-67, 69.

     Issue advocacy is speech that pertains to issues of public
concern and does not expressly advocate the election or defeat
of a candidate.    Fed. Election Comm'n v. Wis. Right to Life,
Inc., 551 U.S. 449, 456 (2007).   In contrast, express advocacy
is speech that expressly advocates the election or defeat of a
candidate. Id. at 453.
     7
       "Anything Goes" is a song written by Cole Porter for his
musical Anything Goes (1934).      Many of the lyrics feature
humorous (but dated) references to various figures of scandal
and gossip in Depression-era high society. Many modern versions
of the song omit the outdated lyrics, replacing them with
present-day examples of social and political scandal.
     8
       For the importance of the spirit of the law, see Jackson
County v. DNR, 2006 WI 96, ¶32, 293 Wis. 2d 497, 717 N.W.2d 713;
State v. Dagnall, 2000 WI 82, ¶59, 236 Wis. 2d 339, 612
N.W.2d 680; Harrington v. Smith, 28 Wis. 43, 59 (1871).


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compelling interest in designing a system for fully disclosing

contributions        and     disbursements           made     on    behalf      of     every

candidate for public office. . . ." 9

     ¶351 Despite these clear statements of legislative policy,

the majority opinion holds that disbursements made on behalf of

candidates need not be fully disclosed——indeed, they need not be

disclosed      at   all——if      such     disbursements           are   made    for    issue

advocacy. 10

     ¶352 In        taking      this     absolutist         position,     the     majority

opinion     attempts       to    terminate          the     John    Doe   investigation

underlying     the    instant      cases       in    its    infancy.      The     majority

opinion's      unsupported,            ultra       vires     declaration        that     its

resolution of the original action brought by two of the eight

Unnamed Movants "ends the John Doe investigation" contradicts

other aspects of the majority opinion and reveals the majority

opinion's      blatant       attempt      to       reach    its    desired      result   by

whatever means necessary. 11
     9
          Wis. Stat. § 11.001(1) (emphasis added).
     10
          See majority op, ¶¶50, 57, 66-67.
     11
          See majority op., ¶¶11, 76.

     The majority opinion fails to acknowledge that the Special
Prosecutor is pursuing multiple theories of criminal activity,
not all of which revolve around issue advocacy.     For example,
the Special Prosecutor states that the John Doe investigation is
premised in part "on a reason to believe that certain express
advocacy groups who had filed sworn statements indicating they
acted independently of certain campaign committees" did not in
fact act independently.       Despite the majority opinion's
invalidating   the  Special   Prosecutor's  issue-advocacy-based
theory of criminal activity, this express-advocacy-based theory
lives on.
                                                                               (continued)
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       ¶353 According to the United States Court of Appeals for

the Seventh Circuit, no opinion of the United States Supreme

Court or a federal court of appeals has established that the

First       Amendment    forbids       regulation        of,    or     inquiry      into,

coordination between a candidate's campaign committee and issue

advocacy groups. 12       In repeatedly and single-mindedly declaring a

rule that federal case law has declined to adopt, the majority

opinion betrays its result-oriented, agenda-driven approach.

        ¶354 If the majority opinion succeeds in terminating the

John    Doe    investigation,       the    majority      opinion      will     deny    the

people of this state the opportunity to determine once and for


     The majority opinion also fails to acknowledge that the
original action was brought by only two Unnamed Movants.      It
seems the Special Prosecutor's investigation of individuals and
organizations that are not parties to the original action is not
affected by this court's decision in the original action.    See
Madison Teachers, Inc. v. Walker, 2013 WI 91, ¶20, 351
Wis. 2d 237, 839 N.W.2d 388 (holding that a declaratory judgment
was binding only insofar as the parties to the lawsuit were
concerned; a declaratory judgment is not the equivalent of an
injunction binding on the defendant state officers).     Indeed,
the majority opinion and concurring opinions imply that the
original action does not bind the other Unnamed Movants by
deciding the second and third John Doe cases within the John Doe
trilogy.   If the majority opinion's decision in the original
action disposes of the John Doe investigation in its entirety,
why address the other John Doe cases?
       12
       See O'Keefe v. Chisholm, 769 F.3d 936, 942 (7th Cir.
2014).   For discussions of the constitutionality of regulating
coordinated   issue   advocacy,  see  Brent   Ferguson,  Beyond
Coordination: Defining Indirect Campaign Contributions for the
Super PAC Era, 42 Hastings Const. L.Q. 471 (2015); Richard
Briffault, Coordination Reconsidered, 113 Columbia L. Rev.
Sidebar 88 (2013); Bradley A. Smith, Super PACs and the Role of
"Coordination" in Campaign Finance Law, 49 Willamette L. Rev.
603 (2013).


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all whether the targets of the John Doe investigation are guilty

of    systematically            violating      Wisconsin's        campaign        finance    law

through undisclosed campaign coordination.

        ¶355 I write separately to provide an objective, precedent-

based        analysis      of    the     statutory         and    constitutional        issues

presented in the John Doe cases.

        ¶356 I       note       at     the     outset      that        the   statutory       and

constitutional issues presented in the John Doe cases do not

include whether the subpoenas and search warrants issued by the

John Doe judge were unconstitutionally overbroad or executed in

an unconstitutional manner.

        ¶357 The parties did not raise these issues and this court

did not seek comment on them. 13                          These issues have not been

briefed       by    some    parties      and    have      not    been    fully     briefed    by

others.         Nevertheless, these issues are discussed at length in

the separate writings by Justices Prosser and Ziegler.

        ¶358 Justice Prosser declares that he is writing on Issue

14.     Issue 14 addresses whether there was probable cause for the

search warrants issued in the John Doe proceedings.                                  Issue 14

does      not      concern      the    breadth       or    execution         of   the   search

warrants,       does    not      concern     subpoenas,          and    is   limited    to   two

Unnamed Movants (not five individuals, as Justice Prosser states

in ¶201 of his concurrence).                         Issue 14 asks the parties to

address the following issue:


        13
       See items 1-14 in this court's order dated December 16,
2014 (attached hereto as Exhibit A), setting forth the questions
this court accepted for review.


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     No.2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.ssa

       Whether the affidavits underlying the warrants issued
       in the John Doe proceedings provided probable cause to
       believe that evidence of a criminal violation of Wis.
       Stat. §§ 11.27, 11.26(2)(a), 11.61(1), 939.31, and
       939.05 would be found in the private dwellings and
       offices of the two individuals whose dwellings and
       offices were searched and from which their property
       was seized. 14
       ¶359 Justice Ziegler makes no similar attempt to tether her

analysis to the issues this court accepted for review.

       ¶360 I turn now to my analysis of the three John Doe cases,

which I address in three separate sections of this writing.                                 I
summarize my discussion and conclusions in each of the three

cases as follows:

       ¶361 The First Case.             This case is an original action filed

by Unnamed Movants 6 and 7 against the John Doe judge and the

Special Prosecutor. 15          See ¶¶389-507, infra.

       ¶362 Two       issues     of    law     are       presented    in      the   original

action.

       ¶363 First       is    whether     Chapter        11   requires     a    candidate's

campaign committee to report certain coordinated disbursements

as    contributions          received     by       the    candidate      or     candidate's

campaign committee——namely, coordinated disbursements made for

issue advocacy purposes.                Under Chapter 11, a disbursement is

coordinated if it is made by a third party "for the benefit of a

       14
       See this court's December 16,                          2014,    order,       attached
hereto as Exhibit A (emphasis added).
       15
       I refer to the eight challengers to the John Doe
proceedings as Unnamed Movants because that has been the
parties' practice in briefing. In the case captions for two of
the three John Doe cases, the Unnamed Movants are referred to as
Unnamed Petitioners.


                                               7
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candidate" and "with the authorization, direction or control of

or     otherwise           by    prearrangement          with       the    candidate       or    the

candidate's agent." 16

        ¶364 If        Chapter        11     requires           a    candidate's          campaign

committee to report coordinated disbursements for issue advocacy

as     contributions             received     by       the     candidate         or     candidate's

campaign committee, then the second issue presented is whether

this     reporting          requirement      is     consistent            with    the    state   and

federal constitutions.

        ¶365 The majority opinion concludes that Chapter 11 does

not     require        a    candidate's       campaign         committee         to     report   any

coordinated         disbursements           for    issue       advocacy      as       contributions

received       by   the         candidate    or    candidate's            campaign       committee.

The majority opinion further concludes that such a requirement

would be unconstitutional. 17

        ¶366 The majority opinion frequently refers to "independent

groups," "independent organizations," and "independent advocacy

organizations."             I agree with the United States Court of Appeals

for the Seventh Circuit that the word "independent" should be

considered        to       be   in   quotation         marks    throughout         the    John   Doe



        16
       Wis. Stat. § 11.06(4)(d). See also Wis. Stat. § 11.06(7)
(describing independent disbursements as disbursements made by a
committee or individual who "does not act in cooperation or
consultation with any candidate or authorized committee of a
candidate" and who "does not act in concert with, or at the
request or suggestion of, any candidate or agent or authorized
committee of a candidate").
        17
             See majority op., ¶¶50, 57, 66-67.


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cases "because the Special Prosecutor suspected that the group's

independence is ostensible rather than real." 18

     ¶367 I conclude that Chapter 11 does require a candidate's

campaign committee to report coordinated disbursements for issue

advocacy     as     contributions           received         by        the     candidate       or

candidate's       campaign      committee.               I   further          conclude       this

reporting requirement is consistent with the First Amendment.

     ¶368 To       be   clear:       I    do       not   conclude          that     Chapter    11

regulates     disbursements         for      issue        advocacy           made    by     truly

independent       third     parties.               Chapter        11       does     not     reach

independent       disbursements       for      issue     advocacy,           even    when    such

disbursements are intended to influence an election.

     ¶369 The      Second     Case.         This     case    is        a   supervisory       writ

petition filed by the Special Prosecutor in the court of appeals

against the John Doe judge and the eight Unnamed Movants.                                     The

Special Prosecutor's writ petition seeks review of an order of

the John Doe judge quashing subpoenas and ordering the return of

property    seized      pursuant     to     search       warrants.            The    order    was

based on the John Doe judge's conclusion of law that Chapter 11

does not regulate coordinated disbursements for issue advocacy. 19

The writ petition is before this court on multiple petitions for

bypass.    See ¶¶508-541, infra.

     ¶370 The majority opinion concludes that even if the John

Doe judge misinterpreted and misapplied Chapter 11 and the First


     18
          O'Keefe, 769 F.3d at 937.
     19
          See majority op., ¶¶34-36, 97.


                                               9
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Amendment when exercising his discretion to quash subpoenas and

order the return of property seized pursuant to search warrants,

a   supervisory        writ      is       not    warranted.       The    majority     opinion

reasons that the Special Prosecutor has failed to prove that the

John Doe judge violated a plain legal duty.

        ¶371 I conclude that the majority opinion misinterprets and

misapplies the plain legal duty criterion for the issuance of a

supervisory writ. 20             I conclude that correctly interpreting and

applying the law is a plain legal duty.                             To properly exercise

his discretion, the John Doe judge was required to correctly

decide       the   question          of    law    presented.        This   court    can    and

should, in the exercise of its discretion, issue a supervisory

writ to correct a John Doe judge's error of law when appellate

review would provide no relief (or inadequate relief) for the

harm      caused      by       the    error.            Because   the    John   Doe    judge

misinterpreted and misapplied the law and appellate review is

not     available,         I    would      grant     the    Special     Prosecutor's       writ

petition.

        ¶372 The Third Case.                    This case is a review of a court of

appeals opinion and order denying a supervisory writ petition

filed by Unnamed Movants 2, 6, and 7 against the John Doe judge,

the chief judges of the counties in which the proceedings are

underway, and the Special Prosecutor.                       See ¶¶542-554, infra.

        ¶373 The      petition            for    review    raises       questions     of    law

regarding the validity of the Special Prosecutor's appointment


        20
             See majority op., ¶97.


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and the competency of the Special Prosecutor to conduct the John

Doe investigation.

     ¶374 The       majority      opinion       concludes      that     the    court     of

appeals properly denied the three Unnamed Movants' writ petition

because, like the Special Prosecutor in the second case, the

three Unnamed Movants have failed to prove that the John Doe

judge violated a plain legal duty. 21

     ¶375 I agree with the majority opinion's affirmance of the

court of appeals order denying the writ petition.                            I conclude,

however, that the court of appeals can, should, and did properly

decide the issues of law presented in the Unnamed Movants' writ

petition.        To properly exercise his discretion, the John Doe

judge was required to correctly decide these questions of law. 22

     ¶376 Three       Additional       Issues.        Finally,      there      are    three

issues presented in this litigation that are relevant to the

John Doe trilogy as a whole.              I discuss these three issues in my

analysis of the first case (the original action).

     ¶377 First, several motions to file amicus briefs on the

merits of the John Doe cases have been filed in this court.                               I

join the majority opinion's decision to grant them all.

     ¶378 Second, the Special Prosecutor filed a motion seeking

the recusal of certain named justices.                      Three motions to file

amicus    briefs     on    the    recusal        issue   have     also       been    filed.

Neither    the     named    justices       nor    the    court     as    a    whole    has


     21
          See majority op., ¶13.
     22
          See majority op., ¶¶105-106.


                                           11
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responded       to    the   Special      Prosecutor's        recusal      motion.        The

recusal motion and the amicus motions remain pending, and the

due process concerns they raise remain unresolved.

       ¶379 Third, this court——over my dissent——ordered extensive

redactions and sealing in these John Doe cases. 23                          Even if some

secrecy      remains     appropriate,        the    extent     of   the    secrecy      this

court has imposed is unwarranted.

       ¶380 Despite my numerous dissents objecting to the level of

secrecy imposed by this court in the John Doe trilogy, I have

endeavored       to    adhere     to    this    court's      sealing      and    redaction

orders.       The same cannot be said for the majority opinion and

the concurrences authored by Justices Prosser and Ziegler.

       ¶381 The majority opinion declares that "we can interpret

the secrecy order and modify it to the extent necessary for the

public to understand our decision herein."                          See majority op.,

¶14 n.11.         Justice Prosser's concurrence discusses the policy

reasons underlying secrecy in John Doe proceedings, concludes

that they are inapplicable to certain facts underlying the John

Doe trilogy, and thus determines that "discussion of these facts

is    not    inconsistent        with    the    secrecy      order."        See    Justice

Prosser's concurrence, ¶145.

       ¶382 The majority opinion and Justice Prosser's concurrence

decide that the secrecy order does not bind the justices of this


       23
       See this court's December 16, 2014, order and my
concurrence thereto (attached as Exhibit A) and this court's
March 27, 2015, order regarding redactions and my dissent
thereto (attached as Exhibit C).


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court.       The secrecy order, in their view, binds only the parties

and the public.

        ¶383 Because the majority of this court disregards its own

secrecy order, Justice Prosser opines at length, without the

benefit of briefs or facts, about allegedly overbroad search

warrants       and   subpoenas.         Moreover,        he      waxes    eloquent    about

privacy and the limits that should be placed on search warrants

seeking       electronic      material.           But    he     has     previously    waxed

eloquent       about     privacy      rights      and     has       nevertheless      upheld
searches       of    electronic        material         that    he      recognized    raise

substantial privacy concerns. 24

       ¶384 Likewise, Justice Ziegler opines at length about the

allegedly unconstitutional manner in which the search warrants

were executed.           She does so without the benefit of briefs or

facts.

       ¶385 Both justices opine about issues not previously raised

by   the     parties     or   the    court     without         giving    the    parties    an

opportunity to brief or argue the facts or law relevant to those

issues.

       ¶386 In my dissent to the court's redaction order dated

March 27, 2015, I explained at length why this court had the

power to disclose information that was ordered by the John Doe

judge to be concealed.              See my dissent to this court's March 27,

2015,       redaction    order    (attached       hereto       as     Exhibit   C).     This


       24
       See State v. Subdiaz-Osorio, 2014 WI 87, ¶¶9-10,                                   357
Wis. 2d 41, 849 N.W.2d 748; State v. Tate, 2014 WI 89,                                    357
Wis. 2d 172, 849 N.W.2d 798.


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court disagreed, stating the following in its March 27, 2015,

redaction order:

     The John Doe investigation that is the subject of the
     several proceedings this court is reviewing remains an
     open investigation.    While that may complicate how
     this court normally conducts its appellate review
     functions, the convenience of this court and the
     parties/counsel appearing before it does not provide a
     sufficient basis on which to ignore the statutory
     commands to maintain secrecy or the rules we have
     already established for maintaining the secrecy of
     John Doe materials.
     ¶387 It is unclear what has changed since this court issued
its March 27, 2015, redaction order that enables the court to

now exempt itself from the secrecy order.

     ¶388 For       the     reasons      set     forth,     I    write      separately.




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      No. 2014AP296-OA: Original Action: State of Wisconsin ex
  rel. Two Unnamed Petitioners v. Gregory A. Peterson, John Doe
      Judge, and Francis D. Schmitz, as Special Prosecutor
       ¶389 This original action was filed by Unnamed Movants 6

and 7, naming the Special Prosecutor and the John Doe judge as

defendants.

       ¶390 Unnamed         Movants       6    and       7    seek     a    declaration       that

Chapter      11   restricts        campaign        finance        regulation          to    express

advocacy and regulation of issue advocacy violates the United

States and Wisconsin constitutions.

       ¶391 The majority opinion grants Unnamed Movants 6 and 7

their requested relief.             I would not.

       ¶392 I     conclude        that    coordinated           disbursements          for    issue

advocacy constitute regulated contributions under Chapter 11 and

that such regulation does not violate the First Amendment.                                      By

coordinated disbursements, I mean disbursements made by third

parties      "for     the     benefit         of     a       candidate"         and   "with    the

authorization,          direction         or       control        of       or    otherwise       by

prearrangement with the candidate or the candidate's agent." 25

By   issue     advocacy,      I    mean       speech         regarding     issues      of    public

concern that does not expressly advocate the election or defeat

of a candidate. 26
       25
       See Wis. Stat. § 11.06(4)(d).       See also § 11.06(7)
(describing independent disbursements as disbursements made by a
committee or individual who "does not act in cooperation or
consultation with any candidate or authorized committee of a
candidate" and who "does not act in concert with, or at the
request or suggestion of, any candidate or agent or authorized
committee of a candidate").
       26
            Wis. Right to Life, 551 U.S. at 456.

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     ¶393 Because I conclude that the Special Prosecutor has a

valid legal theory to support his investigation, I would allow

the John Doe proceedings to continue.                   Accordingly, I dissent.

     ¶394 I      address        the    statutory     and      constitutional          issues

presented in this original action as follows:

     •      In    Part     I,    I    describe    the    alleged     election-related

            activities of Unnamed Movants 6 and 7 that are the

            subject of the John Doe investigation.

     •      In Part II, I determine that the Special Prosecutor's
            theory of criminal activity is supported by Chapter

            11.      I disagree with the majority opinion's holding

            that     coordinated          issue    advocacy,        like          independent

            issue advocacy, is beyond the reach of Chapter 11.

     •      In Part III, I conclude that the Special Prosecutor's

            theory of criminal activity does not contravene the

            state or federal constitution.                       I disagree with the

            majority        opinion's       declarations          that        the    Special

            Prosecutor's             interpretation      of      Chapter       11    renders

            Chapter        11    unconstitutional          and     that       a     narrowing

            construction must be applied to prevent Chapter 11's

            invalidation.

     ¶395 In Part IV, I address three issues that are common to

the three cases before the court:

     •      In section A, I consider the motions to file amicus

            briefs regarding the merits of the three cases.                                 I

            join     the    majority      opinion's      decision        to       grant   them

            all.


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     •      In section B, I discuss this court's insistence on

            continued observance of the sweeping John Doe secrecy

            order to which the three John Doe cases are subject.

            In    my   view,      the    extent    of   secrecy     mandated        by   the

            court is not warranted.

     •      In    section      C,    I   consider       the   Special     Prosecutor's

            motion requesting the recusal of certain justices from

            the    John     Doe     cases.        The   recusal     motion     is    still

            pending (including any due process concerns), as are
            three motions to file amicus briefs on the recusal

            issue.

                                             I

     ¶396 I cannot begin this writing with the usual recitation

of facts.     There have been no findings of substantive fact by a

court or judge, nor stipulations of fact by the parties. 27                              This



     27
       The only facts set forth in the petition and briefs filed
by Unnamed Movants 6 and 7 are procedural in nature, regarding
the appointment of the John Doe Judge and the Special Prosecutor
and the issuance and execution of subpoenas and search warrants.

     Justice Ziegler's concurrence in the John Doe trilogy is
based solely on unsubstantiated allegations made in the parties'
briefs regarding the execution of the search warrants issued by
the John Doe judge.    Although there have been no findings or
stipulations of fact regarding the execution of the search
warrants, Justice Ziegler nevertheless writes at length to
suggest that the execution of the search warrants rendered them
unconstitutional under the Fourth Amendment.          She states:
"[E]ven if the search warrants were lawfully issued, the
execution of them could be subject to the reasonableness
analysis of the Fourth Amendment . . . ."       Justice Ziegler's
concurrence, ¶¶309, 340. This issue has not been litigated and
is not, in my view, properly before this court.


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dearth of facts is in sharp contrast to the undisputed facts

underlying all prior original actions this court has accepted. 28

        ¶397 Although         Unnamed      Movants        6    and     7   claim       that    the

election-related          activities        alleged       by    the    Special      Prosecutor

are     not   regulated       by    Chapter      11,     neither      their      petition      for

leave to commence an original action nor their briefs in this

court specify the election-related activities to which they are

referring.

        ¶398 The      Special      Prosecutor's          brief,       on   the    other       hand,

sets forth information he has gathered regarding the election-

related activities of Unnamed Movants 6 and 7, among others.                                    On

the basis of this information, the Special Prosecutor asserts

that he has reason to believe that a particular candidate or

candidate's         campaign       committee          coordinated      with      one    or    more

501(c) nonprofit entities; that these 501(c) nonprofit entities

made      disbursements        for       issue    ads     in    coordination           with    the

candidate or candidate's campaign committee; that the ads were

intended       to    benefit       the    candidate's          campaign;      and      that    the

candidate's campaign committee unlawfully failed to report these



        28
       See Wis. S. Ct. IOP II.B.3. (May 4, 2012), which provides
in relevant part as follows:

        The Supreme Court is not a fact-finding tribunal, and
        although it may refer issues of fact to a circuit
        court or referee for determination, it generally will
        not exercise its original jurisdiction in matters
        involving contested issues of fact.    Upon granting a
        petition to commence an original action, the court may
        require the parties to file pleadings and stipulations
        of fact.


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coordinated      disbursements         as    contributions         received         by   the

candidate or candidate's campaign committee. 29

     ¶399 According to the Special Prosecutor, the candidate and

candidate's      campaign       committee        coordinated       with       the    501(c)

nonprofit      entities       in    large        part       through     two     political

operatives,      namely     Unnamed      Movants        6    and   7.     The       Special

Prosecutor contends that Unnamed Movants 6 and 7 were paid by

the candidate's campaign committee and by one or more of the




     29
       The Special Prosecutor has a second and related theory
based on Wis. Stat. § 11.10(4). Section 11.10(4) provides that
a putatively separate committee that "acts with the cooperation
of or upon consultation with a candidate or agent or authorized
committee of a candidate, or which acts in concert with or at
the request or suggestion of a candidate or agent or authorized
committee of a candidate is deemed a subcommittee of the
candidate's personal campaign committee."

     The Special Prosecutor asserts that coordination between
various 501(c) entities and the candidate's campaign committee
may have rendered one or more of the 501(c) entities statutory
subcommittees, whose receipt of contributions and disbursement
of funds are reportable by the candidate's campaign committee.
Under this theory, the candidate's campaign committee violated
Chapter 11 by failing to report issue advocacy disbursements
made by a subcommittee of the candidate's campaign committee.
The subcommittee theory is not as fully developed in the Special
Prosecutor's brief as the theory set forth above.      Because I
conclude that the Special Prosecutor's primary theory is
sufficient to support the continuation of the John Doe
proceedings,   it   is   unnecessary  to   decide   whether  the
subcommittee theory does so as well.      Accordingly, I do not
address the subcommittee theory.

     I note, as well, that the John Doe judge determined that
the Special Prosecutor offered no evidence of express advocacy.
The Special Prosecutor disagrees. I do not address this factual
dispute.


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501(c) nonprofit entities.                  Thus, Unnamed Movants 6 and 7 are

alleged to have acted in a dual capacity.

        ¶400 One of the Special Prosecutor's central allegations is

that Unnamed Movants 6 and 7 created and managed a particular

501(c) nonprofit organization to run issue ads for the benefit

of     the    candidate       and     the     candidate's       campaign,        while    the

candidate asked donors to contribute to the 501(c) nonprofit

organization instead of to the candidate's campaign committee in

a     blatant        attempt        to    avoid       the     regulations         governing
contributions          to    candidates       and     their     campaign       committees.

Further, says the Special Prosecutor, while the 501(c) nonprofit

entities       purchased      the    issue     ads,    the    candidate——via        Unnamed

Movants        6    and     7——controlled          their      content,      timing,       and

placement.

        ¶401 The "coordination" alleged by the Special Prosecutor

thus       includes         consultation        between        the     candidate,         the

candidate's campaign committee, Unnamed Movants 6 and 7, various

501(c) nonprofit entities, and associated individuals regarding

the content, timing, and placement of issue ads.

        ¶402 The      Special       Prosecutor      contends      that     the    objective

underlying this alleged coordination was to ensure that issue

ads     purchased      by    the    501(c)     nonprofit      entities      provided      the

maximum       benefit       possible     to   the     candidate's       campaign.         For

example,        coordination         would     ensure       correct      and     consistent

messaging in the issue ads purchased by the 501(c) nonprofit

entities.




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       ¶403 Such         coordination         could    also       serve    to     circumvent

Chapter        11's       contribution          restrictions             and      disclosure

requirements.             Untold      millions        of    dollars       in     undisclosed

contributions could be funneled into a 501(c) nonprofit entity

that purchases issue ads written or approved by a candidate or

the candidate's campaign manager.                     "If campaigns tell potential

contributors        to    divert      money    to     nominally        independent    groups

that        have   agreed        to    do     the      campaigns'         bidding,     these

contribution        limits       become     porous,        and   the    requirement       that
politicians' campaign committees disclose the donors and amounts

become useless." 30

       ¶404 The Special Prosecutor contends in the instant case

that    coordination        transformed         the    501(c)         nonprofit    entities'

disbursements for issue advocacy into reportable contributions

to   the     candidate      or    candidate's         campaign        committee    that    the

candidate's        campaign       committee         failed       to    report,     violating

Chapter 11. 31

       ¶405 At this stage in the John Doe proceedings, the Special

Prosecutor need not prove that the 501(c) nonprofit entities in

fact made coordinated disbursements for issue advocacy that were

reportable         by      the        candidate's          campaign        committee        as

contributions received by the candidate or candidate's campaign

committee.         Rather, this original action requires the court to

determine only whether the Special Prosecutor has a valid legal


       30
            O'Keefe, 769 F.3d at 941.
       31
            See Wis. Stat. §§ 11.27 and 11.61(1)(b).


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theory to support his investigation.                   If charges are eventually

filed, only then will a court face the question of whether the

alleged coordination took place.

       ¶406 According to the majority opinion, even if the alleged

coordination took place, Chapter 11 does not regulate it, and

thus the Special Prosecutor does not have a valid legal theory

to support his investigation.                   The majority opinion allows a

501(c) nonprofit entity to work hand-in-glove with a candidate

or candidate's campaign committee without violating Chapter 11

so long as the 501(c) nonprofit entity engages only in issue

advocacy.

       ¶407 I      address    the    statutory       and    constitutional         issues

presented in turn.

                                           II

       ¶408 The      first    question     presented       is   whether     Chapter      11

requires      a    candidate's      campaign     committee       to     report   certain

disbursements        by   501(c)     nonprofit       entities      as    contributions

received by the candidate or candidate's campaign committee——

namely, disbursements for issue advocacy made in coordination

with    the       candidate   or    candidate's        campaign       committee.          I

conclude that it does.

       ¶409 Chapter 11 is not easy to read or understand.                          It has

been described as "labyrinthian [sic] and difficult to decipher

without a background in this area of the law." 32                        Nevertheless,

through careful reading and cognizance of certain fundamentals

       32
       Wis. Right to Life v. Barland (Barland II), 751 F.3d 804,
808 (7th Cir. 2014) (emphasis added).


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of     campaign      finance      law,     Chapter      11       can     be    and   has     been

deciphered.             State     and     federal        courts         have    successfully

interpreted and applied its provisions in a number of cases. 33

        ¶410 With that in mind, I turn to an examination of the

provisions of Chapter 11 at issue in this original action.

        ¶411 As an initial matter, there is no dispute that under

Wis. Stat. § 11.05(2g), a candidate's campaign committee is a

"registrant" for purposes of Chapter 11.                          It is also undisputed

that under Wis. Stat. § 11.06(1), "each registrant" must report

all "contributions received" and all "disbursements made."

        ¶412 But         what        constitutes             a         "contribution"         or

"disbursement" under Chapter 11?                       Because the parties contest

the proper interpretation of these words (and thus the scope of

the      reporting       obligation       to     which       a    candidate's        campaign

committee is subject), I turn to their statutory definitions.

        ¶413 "Contribution" is defined as, among other things, "[a]

gift,        subscription,       loan,     advance,       or     deposit       of    money    or

anything       of    value . . . made          for     political         purposes."          Wis.

Stat.        § 11.01(6)(a)       (emphasis          added). 34          "Disbursement"         is
        33
             See, e.g., id.
        34
             Section 11.01(6)(a) reads in relevant part as follows:

        (6)(a) Except as provided in par. (b), "contribution"
        means any of the following:

        1. A gift, subscription, loan, advance, or deposit of
        money or anything of value, except a loan of money by
        a   commercial   lending   institution  made   by the
        institution in accordance with applicable laws and
        regulations in the ordinary course of business, made
        for political purposes. In this subdivision "anything
        of value" means a thing of merchantable value.

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defined       as,     among   other         things,    "[a]      purchase,      payment,

distribution,         loan,   advance,        deposit,    or     gift    of    money     or

anything      of     value . . . made        for     political      purposes."         Wis.

Stat. § 11.01(7)(a) (emphasis added). 35

       ¶414 An act done "for political purposes" is defined by

Wis.    Stat.       § 11.01(16)   as    an     act    "done    for     the    purpose    of

influencing         the   election     or    nomination       for    election     of    any

individual to state or local office . . . ."                        (Emphasis added.) 36

       35
            Section 11.01(7)(a) reads in relevant part as follows:

       (7)(a) Except as provided in par. (b), "disbursement"
       means any of the following:

       1.   A purchase, payment, distribution, loan, advance,
       deposit, or gift of money or anything of value, except
       a loan of money by a commercial lending institution
       made by the institution in accordance with applicable
       laws and regulations in the ordinary course of
       business, made for political purposes.        In this
       subdivision, "anything of value" means a thing of
       merchantable value.
       36
            Section 11.01(16) reads in full as follows:

       (16) An act is for "political purposes" when it is
       done for the purpose of influencing the election or
       nomination for election of any individual to state or
       local office, for the purpose of influencing the
       recall from or retention in office of an individual
       holding a state or local office, for the purpose of
       payment of expenses incurred as a result of a recount
       at an election, or for the purpose of influencing a
       particular vote at a referendum.    In the case of a
       candidate, or a committee or group which is organized
       primarily for the purpose of influencing the election
       or nomination for election of any individual to state
       or local office, for the purpose of influencing the
       recall from or retention in office of an individual
       holding a state or local office, or for the purpose of
       influencing a particular vote at a referendum, all
       administrative   and   overhead   expenses   for    the
                                                        (continued)
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According    to    Unnamed      Movants     6   and     7,   the    phrase     "for    the

purpose of influencing [an] election," and thus the phrase "for

political    purposes,"       encompasses        only    express     advocacy.         The

Special Prosecutor, on the other hand, contends that the phrase

is broader and can encompass both express advocacy and issue

advocacy.

     ¶415 The statutory definition of the phrase "for political

purposes" specifically mentions express advocacy, stating: "Acts

which are for 'political purposes' include but are not limited
to . . . communication which expressly advocates the election,

defeat,     recall       or     retention         of     a     clearly       identified

candidate . . . ." 37             Thus,      there      is     no     question        that

     maintenance of an office or staff which are used
     principally for any such purpose are deemed to be for
     a political purpose.

     (a) Acts which are for "political purposes" include
     but are not limited to:

     1. The making of a communication which expressly
     advocates the election, defeat, recall or retention of
     a clearly identified candidate or a particular vote at
     a referendum.

     2. The conduct of or attempting to influence an
     endorsement or nomination to be made at a convention
     of political party members or supporters concerning,
     in whole or in part, any campaign for state or local
     office.

     (b)   A   "political   purpose"   does   not   include
     expenditures made for the purpose of supporting or
     defending a person who is being investigated for,
     charged with or convicted of a criminal violation of
     state or federal law, or an agent or dependent of such
     a person.
     37
          Wis. Stat. § 11.01(16)(a).


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disbursements made for express advocacy are made "for political

purposes" within the meaning of Chapter 11.

       ¶416 But        the    statutory      definition        of    the    phrase     "for

political purposes" makes equally clear that its meaning is not

limited to express advocacy.                 Section 11.01(16) states that acts

for political purposes "include but are not limited to" express

advocacy.         It     further       states      that    "[i]n      the   case     of    a

candidate . . . all                    administrative                and          overhead

expenses . . . are            deemed    to    be   for     a   political       purpose." 38

Administrative and overhead expenses are not advocacy at all,

let alone express advocacy.

       ¶417 Thus, the contention by Unnamed Movants 6 and 7 and

the conclusion of the majority opinion that contributions and

disbursements are reportable under Chapter 11 only when they are

made    for    express       advocacy     purposes        do   not    square    with      the

statutory language.

       ¶418 Nor does their position square with the function that

issue advocacy may play in elections.                      An issue ad may seek to

raise awareness about an issue generally or to inform voters of

a candidate's position on an issue.                        The latter category of

issue       advocacy    may    influence      voters'      impressions       of    certain




       38
            Wis. Stat. § 11.01(16).


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candidates and may therefore influence elections. 39                        Accordingly,

I   conclude     that     the   statutory      definition        of   the   phrase     "for

political purposes" encompasses issue advocacy.

      ¶419 Not every issue ad, however, will benefit a particular

candidate's campaign——even if it is intended to do so.                                 When

issue ads are developed independently of the candidate or the

candidate's      campaign       committee,       the   issue      advocacy     "might     be

duplicative      or     counterproductive         from    a     candidate's     point     of

view." 40

      ¶420 In       contrast,        when     issue       ads     are    developed        in

coordination       with    the    candidate       or     the    candidate's      campaign

committee, the disbursements made for such ads "are as useful to

the candidate as cash . . . ." 41                  For this reason, the United




      39
       As the United States Supreme Court has explained,
"[c]andidates, especially incumbents, are intimately tied to
public issues involving legislative proposals and governmental
actions."   Buckley v. Valeo, 424 U.S. 1, 42 (1976).   See also
Wis. Right to Life, 551 U.S. at 456-57 (explaining that the
distinction between express advocacy and issue advocacy may
dissolve   in    practice    because,   as Buckley    put   it,
"[c]andidates . . . are   intimately  tied to  public   issues"
(quoting Buckley, 424 U.S. at 42)).
      40
       Fed. Election Comm'n v. Colo. Republican Fed. Campaign
Comm. (Colorado II), 533 U.S. 431, 446 (2001) (explaining why
independent disbursements made for issue advocacy are "poor
sources of leverage for a spender").
      41
       Id. at 446 (explaining why coordinated expenditures are
treated as contributions under federal law).

                                                                             (continued)
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States     Supreme     Court      has     consistently        treated       coordinated

expenditures as        regulated contributions. 42               The    United States

Supreme     Court     has     not     differentiated          between       coordinated

expenditures made for issue advocacy purposes and coordinated

expenditures made for express advocacy purposes.                       The key factor

for the Court has been coordination.

     ¶421 This brings me to the next relevant provision within

Chapter 11: Wis. Stat. § 11.06(4). 43                    This provision dictates


     This is a point the United States Supreme Court has made
again and again.   For example, in Buckley, 424 U.S. at 46, the
Court stated that "expenditures controlled by or coordinated
with the candidate and his campaign might well have virtually
the same value to the candidate as a contribution . . . ."
Similarly, in McConnell v. Fed. Election Comm'n, 540 U.S. 93,
221-22 (2003), overruled on other grounds by Citizens United v.
Fed. Election Comm'n, 558 U.S. 310 (2010), the Court explained
that "expenditures made after a 'wink or nod' often will be 'as
useful to the candidate as cash.'"
     42
       See, e.g., McConnell, 540 U.S. at 214-15 (explaining that
federal law "treats expenditures that are coordinated with a
candidate as contributions to that candidate"); Colo. Republican
Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 611
(1996) (stating that contribution limits in federal campaign
finance law apply not only to direct contributions but also to
"coordinated expenditures," that is, indirect contributions);
Buckley, 424 U.S. at 46 (providing that under federal law,
"controlled   or   coordinated   expenditures  are  treated   as
contributions rather than expenditures").

     United States Supreme Court case law governing the
constitutionality   of   campaign   finance    statutes  discusses
"expenditures,"   not   "disbursements,"    because     the   word
"expenditure" is used in federal law.     The word "disbursement"
is used in the Wisconsin statutes.
     43
          Section 11.06(4) provides in full as follows:

     (4) When transactions reportable. (a) A contribution
     is received by a candidate for purposes of this
     chapter when it is under the control of the candidate
                                                    (continued)
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when    contributions         are     reportable        by    registrants.             Two

subsections are relevant here.

       ¶422 First, Wis. Stat. § 11.06(4)(a) declares as a general

matter that a contribution is received by a candidate "when it

is under the control of the candidate or campaign treasurer," or

the candidate or treasurer accepts the benefit thereof.                            When a

contribution is so received, it becomes reportable.

       or campaign treasurer, or such person accepts the
       benefit thereof.    A contribution is received by an
       individual, group or committee, other than a personal
       campaign committee, when it is under the control of
       the individual or the committee or group treasurer, or
       such person accepts the benefit thereof.

       (b) Unless it is returned or donated within 15 days of
       receipt, a contribution must be reported as received
       and accepted on the date received.     This subsection
       applies notwithstanding the fact that the contribution
       is not deposited in the campaign depository account by
       the closing date for the reporting period as provided
       in s. 11.20(8).

       (c) All contributions received by any person acting as
       an agent of a candidate or treasurer shall be reported
       by such person to the candidate or treasurer within 15
       days of receipt.    In the case of a contribution of
       money, the agent shall transmit the contribution to
       the candidate or treasurer within 15 days of receipt.

       (d) A contribution, disbursement or obligation made or
       incurred to or for the benefit of a candidate is
       reportable   by  the  candidate  or   the  candidate's
       personal campaign committee if it is made or incurred
       with the authorization, direction or control of or
       otherwise by prearrangement with the candidate or the
       candidate's agent.

       (e) Notwithstanding pars. (a) to (e), receipt of
       contributions by registrants under s. 11.05(7) shall
       be treated as received in accordance with that
       subsection.


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       ¶423 Second, Wis. Stat. § 11.06(4)(d) declares that when a

disbursement is made "for the benefit of a candidate," it "is

reportable by the candidate or the candidate's personal campaign

committee if it is made . . . with the authorization, direction

or control of or otherwise by prearrangement with the candidate

or the candidate's agent."               (Emphasis added.)

       ¶424 Although Wis. Stat. § 11.06(4)(d) fails to explicitly

state       that   coordinated        disbursements        are        reportable        by    the

candidate's campaign committee as contributions to the candidate

or    candidate's         campaign       committee,       this        interpretation           is

compelled by the statutory context.                      All other subsections of

§ 11.06(4)         explicitly        govern    the    receipt         and     reporting        of

contributions.            The    clear    implication        is       that    § 11.06(4)(d)

governs the receipt and reporting of contributions.

       ¶425 This interpretation is also supported by common sense.

Disbursements        made       in   coordination       with      a    candidate        are    as

valuable      to    the   candidate       as    cash,    according           to   the    United

States Supreme Court, and are therefore treated as contributions

under federal law. 44            The same logic applies here: Disbursements

made "by prearrangement with the candidate or the candidate's




       44
            Buckley, 424 U.S. at 46.


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agent"      are   as    valuable     to     the     candidate     as    cash     and    are

therefore treated as contributions under Wisconsin law. 45

      ¶426 In          contrast,        a         disbursement         made       without

prearrangement with a candidate or the candidate's agent is an

independent disbursement, not a contribution to the candidate or

candidate's       campaign      committee,        and   is   governed    by    different

rules. 46

      ¶427 As          this     discussion          makes      clear,      the         words

"contribution" and "disbursement" have distinct but intertwined

meanings within Chapter 11.                 The Special Prosecutor's theory of

criminal activity in the instant case relies upon the connection

between the two.          He argues that when a 501(c) nonprofit entity

makes disbursements for issue advocacy in coordination with a

candidate's        campaign        committee,           such    disbursements           are

reportable        by      the      candidate's          campaign        committee        as

contributions received by the candidate or candidate's campaign

committee.        He further argues that he has reason to believe a

      45
       Wis. Stat. § 11.06(4)(d).   See also Wis. Coalition for
Voter Participation, Inc. v. State Elections Bd. (WCVP), 231
Wis. 2d 670, 681, 605 N.W.2d 654 (Ct. App. 1999) (explaining
that both federal campaign finance regulations and Chapter 11
"treat expenditures that are 'coordinated' with, or made 'in
cooperation with or with the consent of a candidate . . . or an
authorized committee' as campaign contributions" (emphasis
added)). The majority opinion apparently overrules WCVP to the
extent that WCVP implies that the definition of the phrase "for
political purposes" in Chapter 11 extends beyond express
advocacy and its functional equivalent.   See majority op., ¶68
n.23.
      46
       See,   e.g.,   Wis.  Stat. § 11.06(2)  (providing that
independent disbursements are reportable only if they are for
express advocacy purposes).


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particular candidate's campaign committee is guilty of violating

Chapter 11 by failing to fulfill this reporting obligation. 47

        ¶428 For the reasons set forth, the Special Prosecutor's

theory           of   criminal       activity       in     the         John    Doe     proceedings

underlying            this    original      action       has       a    sound       basis   in     the

statutory text.

        ¶429 Because           I    agree    with       the    Special         Prosecutor        that

Chapter 11 requires a candidate's campaign committee to report

coordinated           disbursements         for    issue      advocacy         as    contributions

received by the candidate or candidate's campaign committee, I

now     consider         whether      this    interpretation              of    Chapter       11    is

constitutionally permissible.                     As might be expected, the Special

Prosecutor says it is, while Unnamed Movants 6 and 7 and the

majority opinion say it is not.

                                                  III

        ¶430 Two        constitutional            questions        are    presented         in   this

original action.               The first is whether Chapter 11's requirement

that         a    candidate's        campaign          committee          report       coordinated

disbursements            for       issue    advocacy          as       contributions        to     the

candidate or candidate's campaign committee violates the First

Amendment.            The second is whether the provisions of Chapter 11

that         impose          the    reporting           requirement            at     issue        are

        47
       See Wis. Stat. § 11.27(1) (providing that "[n]o person
may prepare or submit a false report or statement to a filing
officer under this chapter"); Wis. Stat. § 11.61(1)(b) (stating
that "[w]hoever intentionally violates . . . 11.27(1) . . . is
guilty of a Class I felony if the intentional violation does not
involve a specific figure or if the intentional violation
concerns a figure which exceeds $100 in amount or value").


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unconstitutionally vague or overbroad.                      Whether the reporting

requirement       at    issue   is   contrary      to     the   First   Amendment        and

whether      the        provisions      imposing          that     requirement           are

unconstitutionally           vague      or        overbroad       are     interrelated

questions. 48      I address these questions in turn.

     ¶431 The          absolutist    constitutional          position     advanced       by

Unnamed Movants 6 and 7 and adopted by the majority opinion

hook, line, and sinker is that the First Amendment bars the

State from regulating any issue advocacy in any manner.                                   In

their     view,        the   First     Amendment          protects      against      state

regulation      of     disbursements       for    issue    advocacy     regardless        of

whether     the        disbursements       are     made     independently           or    in

coordination with a candidate or candidate's campaign committee.

I disagree.

     ¶432 The majority opinion's rhetoric would lead the reader

to conclude that the case law provides a clear answer to the

First Amendment issue before the court, namely that the Unnamed

Movants' position is correct and that the Special Prosecutor's

position    "is        unsupported    in     either     reason     or    law." 49        The

majority opinion's view contradicts the views expressed by both

the John Doe judge and the United States Court of Appeals for

the Seventh Circuit.



     48
       Center for Individual Freedom v. Madigan, 697 F.3d 464,
479 (7th Cir. 2012) ("In the First Amendment context, vagueness
and overbreadth are two sides of the same coin . . . .").
     49
          Majority op., ¶11.


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       ¶433 The John Doe judge observed that the First Amendment

question       presented     in     this      original      action      has     "spawned

considerable litigation." 50              It is, he explained, "an important

question" that deserves, but does not yet have, "a definitive

answer." 51

       ¶434 Similarly, in O'Keefe v. Chisholm, 769 F.3d 936 (7th

Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015), the Seventh

Circuit      Court    of   Appeals     made      it   perfectly       clear    that    the

Special Prosecutor's theory is rooted in a live legal issue.

The O'Keefe court stated that whether coordinated issue advocacy

disbursements are regulable under the First Amendment is far

from    "beyond      debate." 52     On    the    contrary,      it    explained:      The

Special Prosecutor's theory of criminal activity in the John Doe

       50
       In his November 6, 2014, order denying the two Unnamed
Movants' motion to have the Special Prosecutor show cause why
the John Doe investigation should not be ended, the John Doe
judge stated:

       [T]here is a strong public interest in having the
       appellate courts answer the statutory question that is
       at the heart of this litigation:      when Wisconsin's
       campaign finance laws prohibit coordination between
       candidates   and   independent  organizations  for   a
       political purpose, does that political purpose require
       express advocacy?   This is an important question that
       has spawned considerable litigation. The citizens of
       this state need and deserve a definitive answer. They
       will not get one if I grant the motion.

     This order was not publicly released. Other portions of
the order refer to matters subject to the John Doe secrecy
order. The above-quoted portion does not.
       51
            See the John Doe judge's November 6, 2014, order.
       52
            O'Keefe, 769 F.3d at 942.


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investigation       underlying       this    litigation        "reflects       Buckley's

interpretation of the First Amendment." 53                     Indeed, the O'Keefe

court stated, "[n]o opinion issued by the Supreme Court, or by

any court of appeals, establishes ('clearly' or otherwise) that

the First Amendment forbids regulation of coordination between

campaign    committees       and   issue-advocacy         groups——let       alone     that

the First Amendment forbids even an inquiry into that topic." 54

     ¶435 This       statement       in    O'Keefe      is   particularly        telling

considering that the majority opinion relies heavily on a prior

opinion of the same federal court of appeals:                        Wisconsin Right

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

2014).     Barland II does not render this original action an open-

     53
          Id. at 941.
     54
       The relevant portion of the O'Keefe opinion provided in
full as follows:

     Plaintiffs' claim to constitutional protection for
     raising funds to engage in issue advocacy coordinated
     with a politician's campaign committee [the same claim
     asserted by Unnamed Movants 6 and 7 in this original
     action] has not been established "beyond debate."   To
     the contrary, there is a lively debate among judges
     and academic analysts.    The Supreme Court regularly
     decides campaign-finance issues by closely divided
     votes. No opinion issued by the Supreme Court, or by
     any court of appeals, establishes ("clearly" or
     otherwise) that the First Amendment forbids regulation
     of coordination between campaign committees and issue-
     advocacy groups——let alone that the First Amendment
     forbids even an inquiry into that topic.

O'Keefe, 769 F.3d at 942.

     For discussion of whether coordinated issue advocacy is
constitutionally protected, see, e.g., Ferguson, supra note 12;
Briffault, supra note 12; Smith, supra note 12.


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and-shut case, much as the majority opinion would like us to

believe.

       ¶436 Like the John Doe judge and the Seventh Circuit Court

of    Appeals,       I    conclude          that   the     constitutional         question

presented has not yet been definitively resolved.                             The answer

must be deduced through careful analysis of a complex body of

federal case law that has set forth principles governing the

constitutionality of campaign finance statutes.                             In my view,

this careful analysis reveals that Chapter 11's requirement that
a    candidate's         campaign      committee         report     coordinated        issue

advocacy       disbursements           as     contributions        received       by     the

candidate or candidate's campaign committee does not violate the

First Amendment.

       ¶437 The federal case law governing the constitutionality

of campaign finance statutes, much like Chapter 11, presents a

labyrinth that must be navigated.                  The starting point is Buckley

v. Valeo, 424 U.S. 1 (1976), a long and complex opinion that

considered whether various provisions of the Federal Election

Campaign Act of 1971, as amended in 1974, were consistent with

the First Amendment.

       ¶438 Buckley        drew    a   distinction        between     contributions        to

candidates and their campaign committees, on the one hand, and

independent expenditures for political expression, on the other




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hand. 55     It declared that under the First Amendment, ceilings may

be     imposed         on      contributions         but      not       on     independent

expenditures. 56             The Buckley Court reached this conclusion by

scrutinizing           the     burdens    imposed       on    political         speech     by

contributions and independent expenditure limits, respectively,

and by evaluating those burdens in light of the governmental

interests such limits serve. 57

       ¶439 The        Buckley    Court    first     determined         that    the   burden

imposed on political speech by contribution limits is minimal:

"A limitation on the amount of money a person may give to a

candidate         or   campaign organization          []     involves        little   direct

restraint         on   his    political    communication,         for    it permits      the

symbolic expression of support evidenced by a contribution but

does     not . . . infringe           [on]     the     contributor's           freedom     to

discuss candidates and issues." 58                  The Court then declared that

the government's interest in "the prevention of corruption and

the appearance of corruption spawned by the real or imagined

coercive influence of large financial contributions" provides a




       55
       See generally Buckley, 424 U.S. at 14-23.        See also
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 345
(2010) ("The Buckley Court explained that the potential for quid
pro  quo corruption     distinguished  direct  contributions to
candidates from independent expenditures.").
       56
            Buckley, 424 U.S. at 23-59.
       57
            Id.
       58
            Id. at 21.


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"constitutionally        sufficient        justification"         for     this   minimal

burden. 59

       ¶440 In     contrast,        the      Buckley       Court        declared      that

independent      expenditure      limits     "impose      direct     and    substantial

restraints on the quantity of political speech" that are not

justified by the government's anti-corruption interest. 60                         Unlike

contributions, the Court explained,

       independent   expenditures  may   []   provide    little
       assistance to the candidate's campaign and indeed may
       prove    counterproductive.        The    absence     of
       prearrangement and coordination of an expenditure with
       the candidate or his agent not only undermines the
       value of the expenditure to the candidate, but also
       alleviates the danger that expenditures will be given
       as a quid pro quo for improper commitments from the
       candidate. 61
       ¶441 After upholding contribution limits and striking down

independent expenditure limits, the Buckley Court turned to the

constitutionality of disclosure requirements.                      It concluded that

such   requirements       are   constitutionally          permissible       as   applied

both to contributions and to independent expenditures made for

express       advocacy       purposes, 62        reasoning         that      disclosure
       59
            Id. at 25-26.
       60
            Id. at 39.
       61
            Id. at 47.
       62
       As a matter of statutory interpretation (to avoid
invalidation on vagueness grounds), the Buckley Court determined
that the independent expenditure disclosure requirement applied
only to independent expenditures made for express advocacy
purposes, not to independent expenditures made for issue
advocacy purposes.   Buckley, 424 U.S. at 78-80.   The Court did
not so limit the contribution disclosure requirement.     Id. at
78.


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requirements impose no ceiling on political speech and are an

effective         anti-corruption          measure. 63           Indeed,        the     Court

explained,        disclosure       requirements         "appear      to   be    the     least

restrictive means of curbing the evils of campaign ignorance and

corruption that Congress found to exist." 64

        ¶442 In all three regulatory contexts——that is, with regard

to     contribution         limits,     independent        expenditure        limits,      and

disclosure         requirements——the           Buckley      Court      made     one     point

eminently          clear:             Coordinated         expenditures          constitute

contributions to the candidate or candidate's campaign committee

for purposes of federal law.                   More specifically, the Court held

that federal law treats expenditures as contributions received

by     the    candidate       or   candidate's         campaign      committee        if   the

expenditures are prearranged or coordinated with the candidate

or are "placed in cooperation with or with the consent of a

candidate." 65        After all, the Court explained, these expenditures

are      in      reality       "disguised           contributions." 66            Disguised

contributions         are    subject      to    the    limitations        and   disclosure

requirements that govern all other contributions. 67


        63
             Buckley, 424 U.S. at 66.
        64
             Id. at 68.
        65
             Id. at 78.
        66
        Id. at 46-47. See also Ferguson, supra note 12, at 479
(explaining that the United States Supreme Court "continues to
clearly   signal  that   the  line   between  contributions and
expenditures depends on a spender's independence").
        67
             Buckley, 424 U.S. at 46-47.


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       ¶443 In declaring that coordinated expenditures constitute

disguised contributions to the candidate or candidate's campaign

committee, the Buckley Court did not specify whether it meant

all coordinated              expenditures          or   only    coordinated        expenditures

made for express advocacy purposes.                            The Buckley Court's broad

statement             that   coordinated          expenditures        constitute        disguised

contributions would seem to compel the conclusion that the type

of    advocacy           such    expenditures           implement      is    irrelevant;        the

coordination is what matters.                      This is the approach taken by the

Special Prosecutor.               Unnamed Movants 6 and 7, however, urge this

court to hold that only coordinated expenditures for express

advocacy constitute disguised contributions.

       ¶444 Subsequent case law sheds light on this issue.                                   Post-

Buckley          decisions           have       followed       Buckley's         holding        that

coordinated            expenditures         are    subject      to    the    limitations        and

disclosure requirements governing contributions.                                  The case law

discussing             coordinated          expenditures        has        not    distinguished

between coordinated expenditures for express advocacy and for

issue advocacy.

       ¶445 Federal             Election        Commission      v.     Colorado         Republican

Federal      Campaign           Committee       (Colorado      II),    533       U.S.    431,   446

(2001),          is    illustrative.            The     Colorado      II    Court       reaffirmed

Buckley's analysis of disguised contributions, explaining that

there       is    no     difference         between      coordinated        expenditures        and

direct       contributions            to    a   candidate       or    candidate's        campaign

committee         that       would    justify       treating     the       two    differently. 68
       68
            Colorado II, 533 U.S. at 464-65.

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Coordinated expenditures, like contributions, might be given as

a quid pro quo for improper commitments from the candidate.

     ¶446 The Colorado II Court summarized Buckley's discussion

of disguised contributions as follows:

     [In Buckley], the rationale for endorsing Congress's
     equation of coordinated expenditures and contributions
     was   that   the     equation  "prevent[s]  attempts   to
     circumvent the Act through prearranged or coordinated
     expenditures amounting to disguised contributions."
     The idea was that coordinated expenditures are as
     useful to the candidate as cash, and that such
     "disguised contributions" might be given "as a quid
     pro quo for improper commitments from the candidate"
     (in contrast to independent expenditures, which are
     poor sources of leverage for a spender because they
     might be duplicative or counterproductive from a
     candidate's point of view).        In effect, therefore,
     Buckley subjected limits on coordinated expenditures
     by individuals and nonparty groups to the same
     scrutiny   it     applied   to  limits   on  their   cash
     contributions. 69


     69
          Id. at 446 (citations omitted).

     Later on, the Colorado II Court further stated that

     [t]here   is  no   significant   functional   difference
     between a party's coordinated expenditure and a direct
     party contribution to the candidate, and there is good
     reason to expect that a party's right of unlimited
     coordinated    spending    would    attract    increased
     contributions to parties to finance exactly that kind
     of spending.      Coordinated expenditures of money
     donated to a party are tailor-made to undermine
     contribution limits.    Therefore the choice here is
     not, as in Buckley and Colorado I, between a limit on
     pure contributions and pure expenditures.     The choice
     is   between   limiting   contributions   and   limiting
     expenditures whose special value as expenditures is
     also the source of their power to corrupt.

Colorado II, 533 U.S. at 464-65.


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     ¶447 In Federal Election Commission v. Christian Coalition,

52 F. Supp. 2d 45, 87-88 (D.D.C. 1999), the D.C. District Court

rejected     as    untenable       the     notion      that    coordinated         express

advocacy       expenditures          and        coordinated          issue        advocacy

expenditures should be treated differently. 70                        Both constitute

disguised    contributions,         the    court     held,     and    both    should      be

treated as such. 71

     ¶448 The Christian Coalition court made clear that issue

advocacy is not beyond the reach of a state's regulatory power

as a matter of constitutional law, explaining that the First

Amendment permits "only narrowly tailored restrictions on speech

that advance the Government's anti-corruption interest, but the

Coalition's       position     allows      for    no    restrictions         at    all    on

[coordinated      issue     advocacy]       expenditures." 72          The        Christian

Coalition    court     then    declared      that      the    distinction         drawn   in

Buckley between issue advocacy and express advocacy is of no

constitutional or statutory import in the realm of coordinated

expenditures:

     [I]mporting the 'express advocacy' standard into [the
     contribution  regulation  at   issue]  would  misread

     70
       Federal Election Commission v. Christian Coalition, 52 F.
Supp. 2d 45 (D.D.C. 1999).has had a far-reaching impact on state
and federal regulation of campaign coordination.   See Ferguson,
supra note 12, at 481.
     71
          Christian Coalition, 52 F. Supp. 2d at 88.
     72
       Christian Coalition, 52 F. Supp. 2d at 88.       See also
McConnell, 540 U.S. at 190 ("[T]he express advocacy restriction
[imposed   by    Buckley]   was   an   endpoint    of   statutory
interpretation, not a first principle of constitutional law.").


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     Buckley    and    collapse   the  distinction  between
     contributions and independent expenditures in such a
     way as to give short shrift to the government's
     compelling interest in preventing real and perceived
     corruption    that   can   flow  from  large  campaign
                    73
     contributions.
     ¶449 Christian          Coalition       recognizes       that     distinguishing

between coordinated issue advocacy expenditures and coordinated

express advocacy expenditures would ignore the basic fact that

both can be "as useful to the candidate as cash." 74                       Indeed, the

Christian Coalition court explained that

     [c]oordinated expenditures for [communications that
     spread a negative message about an opponent] would be
     substantially more valuable than dollar-equivalent
     contributions [to a candidate] because they come with
     an 'anonymity premium' of great value to a candidate
     running   a   positive   campaign.      Allowing   such
     coordinated expenditures would frustrate both the
     anticorruption and disclosure goals of the Act. 75
     ¶450 In       my     opinion,       Christian        Coalition        provides       a

persuasive reading of the First Amendment principles set forth




     73
          Christian Coalition, 52 F. Supp. 2d at 88.
     74
          McConnell, 540 U.S. at 221.
     75
          Christian Coalition, 52 F. Supp. 2d at 88.


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in Buckley and its progeny. 76             It pays heed to the functionalist

approach     the      case     law     takes       to    distinguishing          between

contributions to the candidate or candidate's campaign committee

and independent expenditures, 77 and it is careful not to extend

prior campaign finance holdings beyond their intended scope.                             It

is also supported by federal case law, which makes clear that

campaign    finance      disclosure       requirements        can   constitutionally

reach beyond express advocacy and its functional equivalent and


     76
        The few Wisconsin authorities available on the subject of
coordinated disbursements track the reasoning of Christian
Coalition.    See, e.g., Wis. Coalition for Voter Participation,
Inc. v. State Elections Bd. (WCVP), 231 Wis. 2d 670, 605
N.W.2d 654 (Ct. App. 1999) (addressing Chapter 11's regulation
of coordinated issue advocacy disbursements in Justice Jon
Wilcox's election campaign).     In WCVP, the Wisconsin court of
appeals explained that although Buckley imposed limits on the
regulation of independent disbursements for issue ads, "neither
Buckley nor [Chapter 11] limit the state's authority to regulate
or restrict campaign contributions."      Id. at 679.    The WCVP
court further explained that Chapter 11 "treat[s] expenditures
that are 'coordinated' with, or made 'in cooperation with or
with   the   consent   of  a   candidate . . . or   an  authorized
                                       76
committee' as campaign contributions."     Id. at 681 Under WCVP,
the   mere    fact   that   Chapter   11   regulates   coordinated
disbursements for issue ads does not conflict with the
constitutional principles set forth in Buckley.

     See also Wis. El. Bd. Op. 00-2 (reaffirmed Mar. 26, 2008)
adopting the Christian Coalition approach to examining the
conduct of the candidate and the entity disbursing funds and
explaining that "the Courts seemed to be willing to merge
express advocacy with issue advocacy if 'coordination' between
the spender and the campaign is sufficient."
     77
       See, e.g., McConnell, 540 U.S. at 221 (2003) ("[T]he
rationale for affording special protection to wholly independent
expenditures has nothing to do with the absence of agreement and
everything to do with the functional consequences of different
types of expenditures.").


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thus makes clear that the express/issue advocacy distinction is

not constitutionally relevant in all campaign finance contexts. 78




     78
       In Citizens United, 558 U.S. at 368-69, the Court
rejected the contention that "the disclosure requirements in
§ 201 [of the Bipartisan Campaign Reform Act of 2002] must be
confined to speech that is the functional equivalent of express
advocacy." Id. at 368. The distinction between issue advocacy
and express advocacy drawn by the Court in prior cases
considering restrictions on independent expenditures should not,
the Citizens United Court held, be imported into the realm of
disclosure requirements. By making clear that the express/issue
advocacy distinction is relevant only with regard to independent
expenditures, Citizens United corroborates Christian Coalition's
holding that the distinction is irrelevant to the limits and
disclosure requirements applicable to coordinated expenditures.

     Madigan, 697 F.3d at 484, relies on this discussion in
Citizens United to support its conclusion that the express/issue
advocacy distinction is constitutionally irrelevant in the
context of disclosure requirements:

     [M]andatory       disclosure     requirements      are
     constitutionally permissible even if ads contain no
     direct candidate advocacy . . . . Whatever the status
     of the express advocacy/issue discussion distinction
     may be in other areas of campaign finance law,
     Citizens   United   left   no doubt   that  disclosure
     requirements need not hew to it to survive First
     Amendment scrutiny.    With just one exception, every
     circuit that has reviewed First Amendment challenges
     to disclosure requirements since Citizens United has
     concluded that such laws may constitutionally cover
     more than just express advocacy and its functional
     equivalents, and in each case the court upheld the
     law.

(Citation omitted.)

                                                                            (continued)
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     ¶451 I     move     on    to    Wisconsin      Right     to    Life    v.   Barland

(Barland     II),      751    F.3d     804      (7th    Cir.       2014).        Despite

implications to the contrary in the majority opinion, Barland II

is consistent with Christian Coalition.                      Barland II addresses

the regulation of independent spending under Chapter 11, while


     Madigan cites and relies on other federal cases that reach
the same conclusion in light of Citizens United, including The
Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681
F.3d 544, 551 (4th Cir. 2012) (explaining that Citizens United
upheld disclosure requirements for communications "that are not
the functional equivalent of express advocacy"); Nat'l Org. for
Marriage v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011) ("We find
it reasonably clear, in light of Citizens United, that the
distinction between issue discussion and express advocacy has no
place in First Amendment review of these sorts of disclosure-
oriented laws."); and Human Life of Wash., Inc. v. Brumsickle,
624 F.3d 990, 1016 (9th Cir. 2010) ("Given the Court's analysis
in Citizens United, and its holding that the government may
impose disclosure requirements on speech, the position that
disclosure requirements cannot constitutionally reach issue
advocacy is unsupportable.").

     Since Madigan was decided, additional federal cases have
interpreted Citizens United in the same manner, that is, as
declaring that campaign finance disclosure requirements can
cover more than express advocacy and its functional equivalent
without running afoul of the First Amendment. See Vt. Right to
Life Comm. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) ("In
Citizens United, the [United States] Supreme Court expressly
rejected the 'contention that the disclosure requirements must
be limited to speech that is the functional equivalent of
express advocacy,' because disclosure is a less restrictive
strategy   for    deterring   corruption   and    informing  the
electorate."); Iowa Right to Life Comm. v. Tooker, 717 F.3d 576,
591 n.1 (8th Cir. 2013) ("Disclosure requirements need not 'be
limited to speech that is the functional equivalent of express
advocacy.'" (quoting Citizens United); Independence Inst. v.
Fed. Election Comm'n, ___ F. Supp. 3d ___, 2014 WL 4959403
(D.D.C. Oct. 6, 2014) (stating that the Citizens United Court
"in no uncertain terms . . . rejected the attempt to limit
[federal campaign finance law] disclosure requirements to
express advocacy and its functional equivalent").


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Christian         Coalition        tackles       the    regulation         of      coordinated

spending under federal law.

       ¶452 In        Barland      II,    Wisconsin         Right   to     Life       (a    501(c)

nonprofit         entity)    and       its    state     political         action      committee

challenged          various         provisions          within         Chapter             11   as

unconstitutional             only            insofar         as      those            provisions

"trigger[ed] . . . restrictions and requirements for independent

groups      not    under     the    control       of    a   candidate       or    candidate's

committee . . . ." 79           The Barland II court was careful to note

that    Wisconsin       Right      to     Life    and    its      state    PAC    "operate[d]

independently of candidates and their campaign committees." 80

       ¶453 In      contrast       to     the    independent        groups       at    issue     in

Barland II, in the instant case the Special Prosecutor contends

that 501(c) nonprofit entities made disbursements for issue ads

in   coordination        with      a     candidate's        campaign      committee.            The

disbursements at issue in the present case are not independent.

Barland II does not extend beyond the context of independent

political speech and is therefore not dispositive of the First

Amendment question presented in this original action.

       ¶454 Given this case law, I would hold that in the eyes of

both        Chapter     11      and       the     First        Amendment,          coordinated

disbursements are disguised contributions regardless of whether

they are made for express advocacy or issue advocacy purposes.

Accordingly, in contrast to the majority opinion, I would hold


       79
            Barland II, 751 F.3d at 829 (emphasis added).
       80
            Id. at 809.


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that     Chapter      11's       requirement            that       a     candidate's               campaign

committee         report   coordinated            issue          advocacy         disbursements           as

contributions is consistent with the First Amendment.

        ¶455 Unnamed           Movants      6    and    7        further         contend,          and   the

majority opinion holds, that their interpretation of Chapter 11

is compelled by the doctrines of overbreadth and vagueness.                                                I

turn to this argument now.

        ¶456 The      Unnamed         Movants'         positions            on     overbreadth           and

vagueness are twofold.
        ¶457 First,        they        urge      that        the       phrase       "for          political

purposes,"         which   is     part      of    Chapter          11's         definitions         of    the

words "contribution" 81 and "disbursement," 82 is unconstitutionally

vague       and   overbroad       unless         the    phrase         is       read    to    mean       "for

express advocacy purposes."

       ¶458 Second,            Unnamed      Movants          6    and       7    contend          that    the

concept       of     "coordination"              within          Chapter           11     is       fatally

imprecise.          In their view, the provisions of Chapter 11 that

ostensibly          regulate       coordination,                 including              § 11.06(4)(d),

should be struck down as unconstitutionally vague and overbroad

or, at the very least, limited to express advocacy.

       ¶459 I       address       these         arguments          in       turn.            To    address

overbreadth and vagueness arguments relating to the phrase "for

political         purposes,"       I     return         to       Buckley          and    Barland         II.

Unnamed       Movants      6    and     7     contend,           and    the       majority         opinion


       81
            See Wis. Stat. § 11.01(6)(a).
       82
            See Wis. Stat. § 11.01(7)(a).


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agrees, that an express-advocacy limiting construction must be

applied in the instant case based on Buckley and Barland II.

They misread the case law.

       ¶460 The Buckley Court applied an express-advocacy limiting

construction to two statutory provisions, one imposing a limit

on expenditures and one requiring that expenditures be reported.

       ¶461 The provision imposing a limit on expenditures stated

that "[n]o person may make any expenditure . . . relative to a

clearly identified candidate during a calendar year which, when

added to all other expenditures made by such person during the

year        advocating        the      election        or       defeat        of      such

candidate, exceeds $1,000." 83              The challengers in Buckley argued

that the phrase "relative to a clearly identified candidate" is

unconstitutionally vague.             The Buckley Court agreed.

       ¶462 The     Buckley         Court    explained      that     the     challenged

provision      failed    to   clarify       whether    it    covered     both      express

advocacy and issue advocacy expenditures.                       The Court decided,

however, that in the context of the provision as a whole, the

phrase "relative to a clearly identified candidate" could mean

"advocating the election or defeat of a candidate," that is,

could mean express advocacy. 84               The Court determined that this

reading would avoid vagueness concerns.                     Thus, it construed the

expenditure limit as applying only to express advocacy.




       83
            Buckley, 424 U.S. at 39 (emphasis added).
       84
            Id. at 42.


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        ¶463 The          second       provision            to     which        the    Buckley          Court

applied        an        express-advocacy              limiting           construction             required

expenditures             to    be    disclosed.               The    word        "expenditure"            was

defined "in terms of the use of money or other valuable assets

'for         the     purpose        of . . . influencing'                   the        nomination          or

election           of     candidates        for        federal       office." 85              The       Court

determined              that   vagueness          concerns          arose        insofar           as    this

expenditure             disclosure      provision            applied       to    individuals            other

than candidates and political committees because the phrase "for

the     purpose . . . of               influencing            [an    election]"             carries       the

potential "for encompassing both issue discussion and advocacy

of a political result." 86

        ¶464 To avoid vagueness concerns, the Court again applied

an    express-advocacy               limiting          construction,            this        time    to    the

phrase        "for       the   purpose          of . . . influencing                  [an    election]."

The      Court          held    that       the     expenditure             disclosure          provision

required           expenditures        by       entities          other    than       candidates          and

political            committees            to     be         disclosed           under        only        two

circumstances:             (1)      when    the     expenditures            were       authorized          or

requested           by    a    candidate          or        his    agent        (i.e.,       coordinated

expenditures); and (2) when the expenditures were for express

advocacy           (i.e.,      independent         express          advocacy          expenditures). 87

Independent issue advocacy expenditures were not required to be

disclosed.
        85
             Id. at 77.
        86
             Id. at 79.
        87
             Id. at 80.

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     ¶465 Importantly, the Buckley Court's application of these

express-advocacy        limiting      constructions         was    confined        to    the

realm of independent expenditures.                 As previously explained, the

Buckley     Court      considered        coordinated         expenditures          to      be

"disguised     contributions." 88           Buckley      expressly       rejected         the

argument     that    the    statutory       provisions       imposing       limits       and

disclosure requirements on contributions were unconstitutionally

vague or overbroad. 89

     ¶466 Further,           in     applying        express-advocacy            limiting

constructions to the statutory provisions imposing limits and

disclosure requirements on independent expenditures, the Buckley

Court did not establish as a matter of constitutional law that

regulation of issue advocacy is impermissible.                      No United States

Supreme Court decision, and no decision of this court (until

today), has gone so far. 90

     ¶467 Although         the     majority       opinion      removes       all        issue

advocacy from state regulation, the United States Supreme Court

in McConnell v. Federal Election Commission, 540 U.S. 93, 190-91

     88
       Id. at 46-47. See also Colorado II, 533 U.S. at 463-64
(explaining that the imposition of a limiting construction on
provisions imposing expenditure limits in Buckley and subsequent
federal cases "ultimately turned on the understanding that the
expenditures at issue were not potential alter egos for
contributions,     but     were     independent . . . .      [T]he
constitutionally   significant   fact . . . was   the   lack    of
coordination between the candidate and the source of the
expenditure" (internal quotation marks and citation omitted)
(emphasis added)).
     89
          See Buckley, 424 U.S. at 29-30, 78.
     90
          See O'Keefe, 769 F.3d at 942.


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(2003), overruled on other grounds by Citizens United v. Fed.

Election Comm'n, 558 U.S. 310 (2010), explicitly ruled that it

would be a "misapprehen[sion]" to read Buckley as holding that

there exists "a constitutionally mandated line between express

advocacy and so-called issue advocacy, and that speakers possess

an   inviolable       First     Amendment      right     to   engage      in   the   latter

category of speech." 91           Rather, said the McConnell Court,

       a plain reading of Buckley makes clear that the
       express advocacy limitation, in both the expenditure
       and the disclosure contexts, was the product of
       statutory interpretation rather than a constitutional
       command.    In narrowly reading the [federal law]
       provisions in Buckley to avoid problems of vagueness
       and overbreadth, we nowhere suggested that a statute
       that was neither vague nor overbroad would be required
       to toe the same express advocacy line. 92
       ¶468 With       this    United     States     Supreme      Court    precedent       in

mind, the Barland II court took up the issues of vagueness and

overbreadth within Chapter 11.

       ¶469 The statutory provision considered by the Barland II

court that is relevant to this original action is Wis. Stat.

§ 11.01(16), which (as explained previously) defines the phrase
"for political purposes."

       ¶470 Pursuant to § 11.01(16), an act is done "for political

purposes" when it is intended to influence an election.                                  The

       91
            McConnell, 540 U.S. at 190.
       92
            Id. at 191-92 (footnote omitted).

     See also Wis. Right to Life, 551 U.S. at 474 n.7 (Roberts,
C.J., controlling opinion) ("Buckley's intermediate step of
statutory construction on the way to its constitutional holding
does not dictate a constitutional test.").


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Barland II court considered the meaning of the "influence an

election" language in the context of reporting requirements and

other     duties    and    restrictions       applicable       to     the     independent

political speakers at issue in that case.

     ¶471 The       Barland     II   court      announced      that    as     applied    to

independent        political     speakers,        the    phrase        "for     political

purposes"    must     be    narrowly     construed       to    cover    only     "express

advocacy and its functional equivalent." 93                    The factual scenario

presented to this court in this original action was expressly

excluded       from        Barland       II's       express-advocacy             limiting

construction. 94      Barland II does not require this court to apply

an express-advocacy limiting construction beyond the context of

the independent political speech involved in that case.

     ¶472 Keeping          in     mind      the      express-advocacy            limiting

constructions applied in Buckley to the phrases "relative to a

clearly      identified         candidate"         and        "for      the      purposes

of . . . influencing . . . [an] election," and in Barland II to

the phrase "for the purpose of influencing [an] election," I

turn to the vagueness and overbreadth challenges advanced by

Unnamed Movants 6 and 7 and accepted by the majority opinion in

this original action.



     93
          Barland II, 751 F.3d at 834.
     94
       Barland II, 751 F.3d at 834 ("As applied to political
speakers other than candidates, their committees, and political
parties,     the     statutory    definition    of     'political
purposes' . . . [is]   limited  to   express  advocacy  and   its
functional equivalent . . . .") (emphasis added).


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       ¶473 The fundamental point to remember in deciding campaign

finance law cases is that context is key.                           When vagueness or

overbreadth concerns arise in the campaign finance context, they

arise with regard to particular conduct and specified political

speakers.         When a limiting construction has been applied to a

campaign finance statute, it has been applied with regard to

particular        conduct     and   specified       political       speakers. 95         Just

because a phrase is vague or overbroad in one context within

Chapter 11 does not mean it is vague or overbroad throughout the

Chapter.

       ¶474 The      provision      at    issue    in    the   instant      case    is   the

requirement in Wis. Stat. § 11.06(1) that registrants report all

contributions received.              The definition of "contribution" under

Chapter      11    comports       with     the    definition       of     "contribution"

considered in Buckley:              Anything of value given for the purposes

of    influencing        an    election.          The    Buckley        Court    expressly

declined to apply an express-advocacy limiting construction to

the phrase "for the purpose of influencing [an] election" in the

definition         of     "contribution,"           finding       no      constitutional

infirmity:

       The Act does not define the phrase "for the purpose of
       influencing" an election that determines when a gift,
       loan, or advance constitutes a contribution.     Other

       95
       See Barland II, 751 F.3d at 837 ("The First Amendment
vagueness and overbreadth calculus must be calibrated to the
kind and degree of the burdens imposed on those who must comply
with the regulatory scheme.").      See also United States v.
Williams, 553 U.S. 285, 293 (2008) ("[I]t is impossible to
determine whether a statute reaches too far without first
knowing what the statute covers.").


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        courts have given that phrase a narrow meaning to
        alleviate various problems in other contexts. The use
        of the phrase presents fewer problems in connection
        with the definition of a contribution because of the
        limiting   connotation    created   by   the   general
        understanding    of  what   constitutes  a   political
        contribution. 96
        ¶475 I would adhere to Buckley and its progeny.                             I would

not     construe      Wis.     Stat.    § 11.06(1)       as    excluding       coordinated

disbursements for issue advocacy from its general requirement

that "all contributions received" by a candidates or candidate's

campaign       committee       be    reported      by    the    candidate's        campaign

committee.




        96
       Buckley, 424 U.S. at 23 n.24 (citations omitted).     See
also id. at 78-80, which addresses the vagueness challenge
brought against disclosure and reporting requirements applicable
to contributions and expenditures.        The Court denied the
challenge insofar as it reached contributions.    With regard to
expenditures, the Court denied the challenge insofar as it
reached non-independent political speakers:

        The general requirement that "political committees"
        and candidates disclose their expenditures could raise
        similar vagueness problems, for "political committee"
        is defined only in terms of amount of annual
        "contributions" and "expenditures," and could be
        interpreted to reach groups engaged purely in issue
        discussion. The lower courts have construed the words
        "political committee" more narrowly.    To fulfill the
        purposes   of   the   Act  they   need only   encompass
        organizations that are under the control of a
        candidate or the major purpose of which is the
        nomination or election of a candidate.     Expenditures
        of   candidates   and   of  "political committees"   so
        construed can be assumed to fall within the core area
        sought to be addressed by Congress.       They are, by
        definition, campaign related.

Buckley, 424 U.S. at 79 (footnotes omitted).


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        ¶476 The second contention advanced by Unnamed Movants 6

and 7——that the concept of "coordination" is vague and overbroad

and     thus    must    be   limited      to    express      advocacy    or    invalidated

altogether——also fails. 97

        ¶477 Unnamed Movants 6 and 7 do not tether their broader

argument to a particular statutory text.                            They claim that the

various provisions within Chapter 11 that might be interpreted

as     regulating        coordination           (such     as    § 11.06(4)(d),         which

provides       that     coordinated       disbursements         are    reportable       by   a

candidate's campaign committee) fail to define sufficiently the

concept of coordination.                Thus, Unnamed Movants 6 and 7 assert

that the provisions are unconstitutionally vague and overbroad.

        ¶478 In McConnell v. Federal Election Commission, 540 U.S.

93 (2003), overruled on other grounds by Citizens United v. Fed.

Election Comm'n, 558 U.S. 310 (2010), the United States Supreme

Court rejected a similar argument.                      The federal law under review

in     McConnell        provided       that      coordinated          expenditures       were

"expenditures made 'in cooperation, consultation, or concer[t]

with, or at the request or suggestion of' a candidate." 98                                The

McConnell       Court     stated     that      this     "longstanding      definition        of

coordination           'delineates        its        reach     in     words    of     common

        97
       For a discussion of state and federal campaign finance
statutes that regulate or define campaign coordination, see
Ferguson, supra note 12.     This article argues not only that
campaign coordination can be regulated consistent with the First
Amendment but also that the coordination subject to regulation
should include third-party expenditures that a candidate deems
valuable, as evidenced by the candidate's conduct.
        98
             McConnell, 540 U.S. at 222 (2003).


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understanding.'" 99               Thus, the Court observed, it had "survived

without constitutional challenge for almost three decades." 100

The Court concluded that this "definition of coordination gives

'fair notice to those to whom [it] is directed,' and is not

unconstitutionally vague." 101

        ¶479 The language of Wis. Stat. § 11.06(4)(d) is similar,

though not identical, to the language at issue in McConnell.                                As

in McConnell, this language delineates the reach of Chapter 11's

concept of coordination "in words of common understanding." 102

        ¶480 Center for Individual Freedom v. Madigan, 697 F.3d 464

(7th     Cir.       2012)    is    also   instructive.         In   Madigan,      a   501(c)

nonprofit           entity    engaged       in    issue   advocacy       challenged       the

disclosure regime in effect in Illinois as unconstitutionally

vague and overbroad on its face. 103

        ¶481 As under Chapter 11, the Illinois statutes required

contributions to be reported.                     The challengers took issue with

the      definition          of      "contribution,"        which       included       "[an]

expenditure 'made in cooperation, consultation, or concert with

another political committee' . . . ." 104                      The Illinois statutes

further        provided      that     the   word      "contribution"       included      "any

        99
              Id. (quoted source omitted)
        100
              Id.
        101
              Id. at 223 (citation omitted).
        102
              Id. at 222 (internal quotation marks omitted).
        103
              Madigan, 697 F.3d at 470.
        104
              Id. at 494 (emphasis added).


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'electioneering           communication           made     in    concert      or   cooperation

with or at the request, suggestion, or knowledge of a candidate,

a political committee, or any of their agents.'" 105

        ¶482 According          to    the    challengers,         these       provisions     "are

vague         because    they    do        not    specify       the    'degree     of     actual

agreement        required.'" 106           Citing      McConnell,       the    Madigan     court

observed that the challenged provisions are "no less clear than

the     federal       definition       which       has   long     passed       muster   in   the

Supreme         Court." 107          The     Madigan       court       thus     rejected      the

challengers' claim, concluding that "the coordination language

of [Illinois' campaign finance law] is clear enough to provide a

reasonably intelligent person 'fair warning' of what sort of

conduct is covered." 108

        ¶483 I        would   adhere       to    McConnell       and    Madigan     and    would

decline        to     hold    that    the        concept    of     "coordination"         within

Chapter          11     is      unconstitutionally               vague        or    overbroad.

Accordingly, no limiting construction need be applied.

        ¶484 In sum, I conclude that Chapter 11's requirement that

a       candidate's           campaign            committee           report       coordinated

disbursements for issue advocacy as contributions received by

the candidate or candidate's campaign committee does not violate



        105
              Id. at 495.
        106
              Id. at 496.
        107
              Id.
        108
              Id. at 497.


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the     First     Amendment       and    that       the    provisions      of   Chapter     11

imposing this requirement are neither vague nor overbroad.

        ¶485 In light of the statutory and constitutional validity

of the Special Prosecutor's interpretation of Chapter 11 and

given the strong policy against intervening in ongoing criminal

investigations, I conclude that the John Doe proceedings should

not be terminated.

                                                IV

        ¶486 I       now   examine      three    issues      that    are   common    to   all
three of the John Doe cases before the court.

                                                A

        ¶487 This court has received several non-party motions to

file amicus briefs regarding the merits of the John Doe trilogy.

I join the majority opinion's decision to grant these motions.

A   grant       is    consistent        with    the       court's    Internal     Operating

Procedures and past practices.

        ¶488 Motions to submit amicus briefs addressing the merits

of the John Doe trilogy have been filed by the following: (1)

Wyoming         Liberty        Group;       (2)       the      Wisconsin        Government

Accountability Board; (3) various former members of the Federal

Election Commission; (4) the Honorable Bradley A. Smith, the

Center for Competitive Politics, and Wisconsin Family Action;

(5)     Campaign       Legal     Center,        Democracy      21,    Common     Cause      in

Wisconsin, and League of Women Voters of Wisconsin; (6) Citizens

for Responsible Government Advocates, Inc.; and (7) Wisconsin

Right to Life.




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       ¶489 This         court    generally       grants    motions    to    file   amicus

briefs "if it appears that the movant has special knowledge or

experience in the matter at issue in the proceedings so as to

render       a   brief    from     the    movant    of   significant        value   to   the

court."          Wis. S. Ct. IOP II-B.6.c. (May 4, 2012).                      I conclude

that     the      movants        listed    above     have    special        knowledge    or

experience and thus that their views would be of significant

value to the court.               Indeed, in a case of such profound public

importance, this court can use all the help that is offered.
                                              B

       ¶490 The       Special       Prosecutor       requested        the     recusal    of

certain justices from the John Doe trilogy.

       ¶491 Non-party motions requesting to file amicus briefs on

the recusal issue were filed by the following: (1) the James

Madison Center for Free Speech; (2) the Ethics and Public Policy

Center; and (3) a group of professors of legal ethics.

       ¶492 On a motion to disqualify a justice, justices have, in

other cases, explained why they will participate 109 or why they




       109
        See, e.g., State v. Henley, 2010 WI 12, 322 Wis. 2d 1,
778  N.W.2d 853   (memorandum   opinion  by   Justice Roggensack
explaining her decision not to disqualify herself).

                                                                              (continued)
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will not. 110       The justices named in the recusal motion at issue

are obviously participating.                They have provided no response to

the motion, however, choosing instead to remain silent.

       ¶493 The Special Prosecutor's recusal motion can be read in

multiple ways.        It can easily be read as being directed only to

the named justices, seeking their self-disqualification. It can

also    be   read    as   directed     to    the   court,     seeking      the   court's

review of a Justice's statement that he or she need not self-

disqualify.      No Justice has made such a statement in the instant

cases.       Finally, the Special Prosecutor's recusal motion can be

read as seeking the court's review of due process considerations

should the named Justices choose not to self-disqualify.

       ¶494 The Special Prosecutor's recusal motion cites Caperton

v. A.T. Massey Coal Co., 556 U.S. 868 (2009).                       In Caperton, the


     See also State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778
N.W.2d 863.    In Allen, the defendant filed a motion before
Justice Gableman individually seeking his recusal.       Justice
Gableman denied the motion without explanation on September 10,
2009. Id., ¶15. The defendant then filed a supplemental motion
addressed to the whole court, seeking review of whether Justice
Gableman   had   properly  considered  whether   he  could   act
impartially or whether it appeared he could not act impartially.
Id., ¶16.   On January 15, 2010, Justice Gableman then filed a
supplement to his September 10, 2009, order, explaining why he
had denied the recusal motion. Id., ¶17. On February 4, 2010,
he withdrew from participation in the court's consideration of
the recusal motion.    Id., ¶18.   The remaining members of the
court were evenly divided regarding whether to deny the
defendant's recusal motion or order briefs and oral argument on
the matter. Accordingly, the motion was not granted.
       110
        Early on in the instant litigation (long before any
recusal motion was filed), Justice Ann Walsh Bradley advised all
parties that she was not participating.    Her statement of non-
participation is attached hereto as Exhibit D.


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plaintiff moved to disqualify a justice of the Supreme Court of

West Virginia on the grounds of bias resulting from campaign

contributions              and     expenditures.               The   justice       denied       the

plaintiff's motion, and the Supreme Court of West Virginia ruled

against the plaintiff on the merits of the case.                                      The United

States        Supreme       Court     reversed         and   remanded,       ruling     that    due

process required recusal under the circumstances presented.

        ¶495 Caperton             teaches       that    there    are      "circumstances        'in

which experience teaches that the probability of actual bias on

the     part    of     the       judge     or    decisionmaker         is    too   high    to   be

constitutionally tolerable.'" 111

        ¶496 Caperton holds that "Due Process requires an objective

inquiry into whether the contributor's influence on the election

under all the circumstances 'would offer a possible temptation

to the average . . . judge to . . . lead him [or her] not to

hold the balance nice, clear and true.'" 112                              See also Williams-

Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015) ("[E]ven if

judges        were    able       to   refrain      from      favoring       donors,     the    mere

possibility          that        judges'    decisions        may     be     motivated     by    the

desire to repay campaign contributions is likely to undermine

the public's confidence in the judiciary.") (internal quotation

marks omitted).

        ¶497 According to the Caperton Court, the participation of

a   justice          who    should       have     disqualified         himself     or     herself

        111
        Caperton v. A.T. Massey                         Coal    Co.,      556   U.S.    868,    877
(2009) (citations omitted).
        112
              Id. (citations omitted).


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violates      a    litigant's       constitutional         due   process    rights     and

necessitates        a    do-over. 113        For    a    discussion    of   a   justice's

recusal in Wisconsin , see State v. Herrmann, ___ WI ___, ___

Wis. 2d ___, ___ N.W.2d ___.

       ¶498 If the Special Prosecutor is presenting a due process

argument      to    the    court    as   a    whole——that        is,   if   the   Special

Prosecutor is asking the court to declare whether participation

by the justices named in the recusal motion violates due process

rights——such a motion should be made more clearly.

       ¶499 In any event, the Special Prosecutor's recusal motion

and the motions to file amicus briefs on the issue of recusal

remain unresolved.

                                              C

       ¶500 Over the extended lives of the John Doe trilogy in

this court, the court has accepted the parties' filings under

seal    for       long    periods    without        examining     or   ruling     on   the

validity of the parties' motions to seal.                         Since beginning to

examine      the    sealed     documents,          the   court   has   kept     too    many

documents under seal and has allowed the parties to redact too

much information from their filings. 114




       113
             Id. at 885-87.
       114
        The   Special  Prosecutor   claims  that   much  of   the
information the John Doe secrecy orders and this court's
redaction orders intended to conceal has been divulged through
media leaks. The Special Prosecutor pointedly wonders what the
court is going to do, if anything, about these alleged leaks.

                                                                            (continued)
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       ¶501 The court's decisions on sealing and redaction up to

this point have been rooted entirely in the sweeping John Doe

secrecy      orders     that    were    issued      by    the    John   Doe   judge     many

months ago under very different circumstances.                          This court, in

my   opinion,      should       have   independently        determined        whether    the

justifications for secrecy in John Doe proceedings still apply

to the John Doe trilogy in this court.                      Instead, the court has,

for the most part, continued to seal or redact all documents

that    were    sealed     by    the    John    Doe      judge   without      making    this

determination, concluding that its obligation is to abide by the

John Doe judge's secrecy order.

       ¶502 Although I have publicly disagreed with the court's

orders regarding sealing and redactions, 115 I have made every

effort to abide by those orders.                    Precedent requires me and this

court to abide by this court's secrecy orders.                            State ex rel.

     I anticipate that a motion to open this court's records and
briefs regarding the John Doe trilogy will be filed when the
three cases are completed.    The sealed and redacted material
will not be released, however, without a motion, opportunity to
be heard, and court order.
       115
        For a full discussion of my reasons for objecting to the
extensive sealing and redactions ordered by the court in these
cases, please see my dissents in each of the following three
orders issued by this court on March 27, 2015: (1) an order
denying the Milwaukee Journal Sentinel's motion to intervene in
the John Doe cases for the sole purpose of advocating for
increased public access (attached hereto as Exhibit E); (2) an
order canceling oral argument (attached hereto as Exhibit B);
and (3) an order relating to redaction (attached hereto as
Exhibit C).

     See also my dissents to orders issued by this court on
April 1, 2015, and April 17, 2015, as well as a letter dated May
12, 2015 issued by Diane Fremgen, Clerk of Supreme Court.


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

relied on by this court's sealing and redaction orders, provides

that secrecy orders issued by a magistrate are binding on that

magistrate.       In the instant case, this court is the magistrate

that   issued     the    relevant      secrecy      orders.         Thus,    the    secrecy

orders bind not just the parties, but also this court.

       ¶503 The court's March 27, 2015, redaction order recognizes

this    principle,        stating      that     "the      fact     that     a    John   Doe

proceeding       becomes       the   subject        of    review     in     an    appellate

court . . . does         not    eliminate       the      secrecy    of     documents    and

other information that are covered by a secrecy order issued by

a John Doe judge."

       ¶504 The majority opinion and Justice Prosser's concurrence

disregard      this     principle. 116        The     majority      opinion       declares,

without citation to any authority, that "we can interpret the

secrecy order and modify it to the extent necessary for the

public to understand our decision herein." 117                       Justice Prosser's

concurrence discusses the policy reasons underlying secrecy in

John    Doe     proceedings,         concludes      that     they     do    not    support

continued concealment of certain facts underlying the John Doe

trilogy, and then unilaterally determines that "those facts are

now outside the scope of the secrecy order." 118
       116
        See, for example, the quote set forth in ¶256 of Justice
Prosser's concurrence, pulled from an Unnamed Movant's brief.
This quote is redacted in its entirety in the Unnamed Movant's
redacted brief.
       117
             Majority op., ¶14 n.11.
       118
             Justice Prosser's concurrence, ¶145.

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     ¶505 The majority opinion and Justice Prosser's concurrence

not only defy this court's March 27, 2015, redaction order; they

also contradict that order's reasoning.                     The court's March 27,

2015,   redaction      order       explicitly      concludes         that   a    John   Doe

judge's     secrecy      order      remains       binding       when    the     John    Doe

proceedings subject to that order reach this court.

     ¶506 In sum: I have repeatedly dissented to the excessive

sealing and redactions this court has imposed in the John Doe

trilogy and I have repeatedly dissented to this court's position

that the John Doe secrecy order automatically binds this court,

but I nevertheless conclude that the secrecy orders issued by

this court (over my dissent) are binding on this court.                                  As

explained    above,      it   is    settled       law    that    a   "magistrate"       who

issues a secrecy order is bound by that secrecy order.                                  The

majority    opinion     and    Justice       Prosser's      concurrence         improperly

ignore this principle.

                                        * * * *

     ¶507 For the reasons set forth, I dissent to the majority

opinion's         resolution            of         the          original           action.




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  2014AP417-W through 2014AP421-W: Supervisory Writ & Appeal:
   State of Wisconsin ex rel. Francis D. Schmitz v. Gregory A.
                     Peterson, John Doe Judge
        ¶508 In      the   second      John      Doe   case    before     the     court,         the

Special        Prosecutor       petitioned        the     court     of    appeals          for      a

supervisory        writ     and    writ     of    mandamus      seeking      review            of   a

decision and order of the John Doe judge dated January 10, 2014,

which      quashed      subpoenas      and    ordered         the   return       of   property

seized pursuant to search warrants.

        ¶509 The       defendants       are      the    John    Doe      judge    and          eight

Unnamed Movants.              Several Unnamed Movants filed petitions to

bypass the court of appeals, which this court granted.

        ¶510 The John Doe judge's January 10, 2014, order was based

on his conclusion of law that the Wisconsin statutes do not

regulate       disbursements          for   issue       advocacy      made   by       a    501(c)

nonprofit entity in coordination with a candidate or candidate's

campaign       committee. 119         The     John      Doe    judge     appears          to    have

reached this conclusion of law based in part on First Amendment

principles.

        ¶511 This court must decide whether to issue a supervisory

writ reversing the John Doe judge's January 10, 2014, order.

The majority opinion holds that no supervisory writ shall issue

because the Special Prosecutor has not met one of the criteria

for     the    issuance      of   a    supervisory        writ.        According           to    the

majority opinion, the Special Prosecutor has failed to prove


        119
              See majority op., ¶¶34-36, 75, 97.


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that the John Doe judge violated a plain legal duty when he

quashed      subpoenas       and      ordered       the     return          of    property      seized

pursuant to search warrants. 120

       ¶512 The       majority            opinion       holds    not       that    the     John     Doe

judge's interpretation of Wisconsin's campaign finance statutes

was correct (although the majority opinion's discussion of the

original action implies as much), but rather that the validity

of    the    John     Doe     judge's           interpretation             and    application        of

statutes is not a proper basis upon which this court can issue a

supervisory       writ. 121           I    strongly       disagree          with    the     majority

opinion.

       ¶513 The       purpose         of    the     supervisory            writ    sought      by   the

Special       Prosecutor         is       to    provide         for    "the       direct       control

of . . . judicial officers who fail to fulfill non-discretionary

duties,       causing       harm      that        cannot        be    remedied       through        the

appellate review process." 122

       ¶514 The John Doe judge had a non-discretionary legal duty

in the instant case to correctly interpret Wisconsin's campaign

finance      statutes       to     determine            whether       and    how    they       address

coordination          between         a        candidate        or     candidate's          campaign

committee       and     a    501(c)            nonprofit        entity       engaged      in    issue

advocacy.         For    the     reasons          set    forth        in    my    dissent      to   the

       120
             See majority op., ¶12.
       121
             See majority op., ¶97.
       122
        See majority op., ¶81 (quoting State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110
(emphasis added)).


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original action, I conclude that the John Doe judge violated

this     nondiscretionary               legal       duty     by    misinterpreting       and

misapplying the law. 123

       ¶515 A decision of a John Doe judge can be reviewed only by

means of a supervisory writ.                       A decision of a John Doe judge

cannot be reviewed by direct appeal.                        Because the John Doe judge

"fail[ed] to fulfill [a] non-discretionary dut[y], causing harm

that cannot be remedied through the appellate review process," I

would grant the Special Prosecutor's writ petition.

       ¶516 In        contrast,          the       majority       opinion     reaches    the

perplexing conclusion that although the foundation of the entire

legal        system    rests       on    a     judge's       obligation      to    correctly

interpret and apply the law, the John Doe judge's obligation to

correctly interpret and apply the law is not the type of plain

legal duty contemplated by the supervisory writ procedure.                                   In

reaching       this    conclusion,           the    majority      opinion     relies    on   a

single conclusory sentence (devoid of citation to any authority)

that appears in State ex rel. Kalal v. Circuit Court, 2004 WI

58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110.

       ¶517 In        Kalal,   a    supervisory            writ   case,     the   petitioner

argued that judges have a plain legal duty to correctly find the

facts and apply the law. 124                    The Kalal court declared that it


       123
        My dissent in the instant case should be read in
conjunction with my dissent in the original action. See ¶¶368-
486, infra.
       124
        State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶23,
271 Wis. 2d 633, 681 N.W.2d 110.


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could        not     accept     this        proposition      "as      it    would     extend

supervisory          jurisdiction       to    a     virtually      unlimited       range   of

decisions          involving    the    finding       of    facts    and    application     of

law." 125     The Kalal court explained its position as follows:

       The obligation of judges to correctly apply the law is
       general and implicit in the entire structure of our
       legal system. The supervisory writ, however, serves a
       narrow function: to provide for the direct control of
       lower courts, judges, and other judicial officers who
       fail to fulfill non-discretionary duties, causing harm
       that cannot be remedied through the appellate review
       process.   To adopt the Kalals' interpretation of the
       plain duty requirement in supervisory writ procedure
       would   transform   the   writ  into   an   all-purpose
       alternative to the appellate review process. 126
       ¶518 The majority opinion takes this discussion in Kalal

out of context, reading it without any meaningful understanding

of precedent or the nature of review by supervisory writ of a

John    Doe        judge's     order.          Indeed,      the     majority       opinion's

interpretation          of    Kalal    is     so    overbroad      that    Kalal    and    the

majority opinion are reduced to balderdash.

       ¶519 To understand Kalal and the plain legal duty criterion

in supervisory writ cases, one must harken back to the classic

expression of what constitutes a plain legal duty and then trace

the evolution of the concept in the context of supervisory writ

procedure.           Kalal     must    be    read    and   understood       in   historical

context,       in     light    of     supervisory         writ     cases   preceding       and




       125
             Id., ¶24.
       126
             Id. (emphasis added, citations omitted).


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subsequent to Kalal, and in recognition of a court's discretion

to grant or deny a requested supervisory writ.

        ¶520 The       classic     articulation         of   the     plain     legal     duty

concept was set forth in In re Petition of Pierce-Arrow Motor

Car Co., 143 Wis. 282, 127 N.W. 998 (1910).                              In Pierce-Arrow,

the     defendant      sought      to   vacate      service     of   a    summons.        The

defendant        requested       that     this     court     exercise       its    "general

superintending control over all inferior courts" under Article

VII, Section 3 of the Wisconsin Constitution. 127

        ¶521 The       Pierce-Arrow         court     concluded        that     the    legal

validity of service "may well admit of different opinions by

equally able legal minds." 128                The court determined that because

the legal question of whether service was valid was debatable,

the circuit court had not violated a plain legal duty.

        ¶522 The Pierce-Arrow court explained:



        127
        In re Petition of Pierce-Arrow Motor Car Co., 143 Wis.
282, 285, 127 N.W. 998 (1910).

     At the time the Pierce-Arrow case was decided, Article VII,
Section 3 of the Wisconsin Constitution stated in relevant part
as   follows:  "The   supreme   court  shall   have  a   general
superintending control over all inferior courts; it shall have
the power to issue writs of . . . mandamus, injunction . . . and
other original and remedial writs, and to hear and determine the
same."

     Since 1978, Article VII, Section 3(1) of the Wisconsin
Constitution has provided that "[t]he supreme court shall have
superintending and administrative authority over all courts."
Section 3(2) states that "[t]he supreme court may issue all
writs necessary in aid of its jurisdiction."
        128
              Pierce-Arrow, 143 Wis. at 287.


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        One of the cardinal rules is that the duty of the
        court below must be plain. The situation must be such
        that hardly more than a statement of the facts is
        necessary to convince the legal mind as to the duty of
        the court.   Where there is no such clear and obvious
        duty, based either upon common-law principles or upon
        express statute, but where questions of law or fact or
        both are involved of such difficulty that "a judge may
        reasonably, proceeding considerately, commit judicial
        error," the court will refuse to intervene under its
        power of superintending control, but will leave the
        parties to their remedy by appeal. 129
        ¶523 Pierce-Arrow represented the court's view of the plain

legal duty criterion for the issuance of a supervisory writ up

to 1921. 130        Thereafter, the court's view of what constitutes a

plain legal duty changed significantly. 131

        ¶524 In 1921, the court decided In re Inland Steel Co., 174
Wis. 140, 182 N.W. 917 (1921).                  In 1932, the court decided State

ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm,

208 Wis. 366, 370-71, 243 N.W. 763 (1932).                        In these two cases,

the     court     concluded       that     even    though      the    question      of    law

presented may be subject to reasonable debate, the court may

exercise its original and supervisory power when an appeal would

not provide an adequate remedy.




        129
              Pierce-Arrow, 143 Wis. at 286 (emphasis added).
        130
        See John D. Wickhem, The Power of Superintending Control
of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 163
(1941).     This article is generally viewed as the best
explanation of the Wisconsin constitutional provision regarding
superintending authority and writs.
        131
        John D. Wickhem, The Power of Superintending Control of
the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161 (1941).


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     ¶525 These       cases     make    the      following    point     clear:     "[T]he

fact that the duty of the trial court in the premises can only

be determined by a careful consideration of the facts and the

law applicable to the situation is no barrier to the exercise of

th[e supervisory writ] power." 132

     ¶526 In 1941, Justice John D. Wickhem, who served on the

Wisconsin     Supreme      Court     from     1930     to    1949,     explained         the

developing     case    law    on    the    concept     of    plain    legal       duty    as

follows:

     The purpose of this [supervisory writ] jurisdiction is
     to protect the legal rights of a litigant when the
     ordinary processes of action, appeal and review are
     inadequate to meet the situation, and where there is
     need for such intervention to avoid grave hardship or
     complete denial of these rights.

              . . . .

     The later cases hold that an exercise of the court's
     superintending control may be justified in spite of
     the fact that a determination of the duty of the
     inferior court and the scope of the petitioner's
     rights may present difficult and close questions of
     law. 133
     ¶527 A supervisory writ has been issued in numerous cases

in which a ruling of a judge or a circuit court interpreting a

statute    was    challenged       as     erroneous——even        though     the    proper

interpretation of the statute was not plain or raised a novel



     132
        See State ex rel. Hustisford Light, Power & Mfg. Co. v.
Grimm, 208 Wis. 366, 371, 243 N.W. 763 (1932).
     133
        John D. Wickhem, The Power of Superintending Control of
the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153, 161, 164
(1941).


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question——and either no appeal was permitted or appellate review

would have come too late for effective redress. 134

      ¶528     For     example,         in     a        recent    case      entitled       Madison

Metropolitan School District v. Circuit Court, 2011 WI 72, 336

Wis. 2d 95, 800 N.W.2d 442, the court of appeals transformed an

appeal into a supervisory writ.                          The issue before the court of

appeals was whether the circuit court had exceeded its authority

by interpreting the applicable statutes as allowing a circuit

court    to   direct     a    school         district        to   provide       a    child   with

alternative educational services. 135

      ¶529 The       circuit      court       contended          in   Madison       Metropolitan

School      District    that      the    supervisory             writ    should      be    denied,

arguing that "its duty was not plain, because it was faced with

a   novel     question       of   law        requiring       harmonization           of   several

statutory      provisions." 136              In     contrast,         the    school       district

argued that a supervisory writ should be granted because "the

circuit court did not have authority, express or implied, to

order" the school district to provide the child with alternative




      134
        See, e.g., State ex rel. Ampco Metal, Inc. v. O'Neill,
273 Wis. 530, 535, 78 N.W.2d 921 (1956); Madison Metro. Sch.
Dist. v. Circuit Court, 2011 WI 72, 336 Wis. 2d 95, 800
N.W.2d 442.
      135
        Article VII, Section 5(3) of the Wisconsin Constitution
provides:   "The appeals court may issue all writs necessary in
aid of its jurisdiction and shall have supervisory authority
over all actions and proceedings in the courts in the district."
      136
            Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶84.


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educational services. 137                  The court of appeals sided with the

school district, granting the writ.

        ¶530 This       court        spent       34     paragraphs     (13      pages   in   the

Wisconsin Reports) analyzing and interpreting the statutes at

issue in order to determine the powers of the circuit court and

school district.             Obviously, the meaning of the statutes was not

plain; the case presented a novel issue of law.                                 Nevertheless,

after     a    lengthy       statutory          analysis,      this   court      affirmed    the

court of appeals decision granting the writ.

        ¶531 In deciding that a supervisory writ was warranted, the

Madison Metropolitan School District court explained that "the

circuit court's duty was plain:                       to keep within the scope of its

statutory authority." 138                      It then continued: "Because we have

concluded       that        the    circuit        court's    duty     to   keep    within    the

bounds of its lawful authority was plain, its violation of that

duty     was        clear     when        it     ordered    the     District      to    provide

educational resources . . . ." 139

        ¶532 Notably,             Kalal    was     never    mentioned      in    the    majority

opinion in Madison Metropolitan School District, although the

court was well aware of Kalal.                          Kalal was argued in the briefs

and in the dissent.

        ¶533 Madison          Metropolitan            School      District      and     numerous

other cases teach that Kalal does not mean that a supervisory


        137
              Id., ¶84.
        138
              Id.
        139
              Id., ¶85.


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writ cannot issue when a case presents a difficult or close

question      of   law.         Rather,      Kalal      is    best     understood          as

demonstrating that a reviewing court has discretion whether to

issue a supervisory writ, even when the trial court or judge

under review violated a plain legal duty.                      The reviewing court

considers several factors and equitable principles in deciding

whether to issue a supervisory writ. 140

       ¶534 Indeed,       in   an    opinion     issued      just    one     year      before

Kalal (and authored by then-Justice Sykes, who wrote Kalal),

this court stated in no uncertain terms that a court's decision

to issue a supervisory writ "is a discretionary determination

that     is    reviewed        for     an      erroneous       exercise           of    that

discretion." 141

       ¶535 Thus,         properly       understood,          Kalal        involved         a

discretionary       call.        Kalal      does    not      support       the    majority

opinion's view that a supervisory writ cannot be issued when the

legal issue presented is subject to reasonable debate.

       ¶536 If     this     court's      interpretation         of     the       applicable

statutes differs from that of the John Doe judge (that is, if

the John Doe judge misinterpreted the law), then the John Doe


       140
        See, for example, the following cases explaining that
the issuance of a supervisory writ involves the exercise of
discretion:   Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶34;
Kalal, 271 Wis. 2d at 649; State ex rel. Kurkierewicz v. Cannon,
42 Wis. 2d 368, 375, 166 N.W.2d 255 (1969); State ex rel.
Dressler v. Circuit Court, 163 Wis. 2d 622, 630, 472 N.W.2d 532
(Ct. App. 1991).
       141
        City of Madison v. DWD, 2003 WI 76, ¶10,                                          262
Wis. 2d 652, 664 N.W.2d 584. See also majority op., ¶105.


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judge        erroneously          exercised        his    discretion       in        issuing    the

January 10, 2014, order, and a supervisory writ is appropriate.

Two examples illustrate this point.

       ¶537 Example 1.              If the John Doe judge's order was based on

an erroneous view of Chapter 11 or the First Amendment but is

not reviewed by this court, no further review occurs and both

the Special Prosecutor and the public at large are deprived of

the enforcement of statutes intended to protect the integrity of

Wisconsin's        elections.               This     result      amounts        to     a    virtual
nullification        of       a    duly     enacted       law    and   imposes         a    serious

hardship on the people of this state.

       ¶538 Example 2.              If the John Doe judge had ruled in favor

of    the      Special        Prosecutor           and    the    John     Doe         proceedings

continued, then unless a supervisory writ were available to the

Unnamed Movants, they could not challenge the John Doe judge's

ruling until criminal charges were filed.                               Such a situation,

Unnamed       Movants     6       and   7   would       surely   claim,    would           impose   a

serious hardship on them.

       ¶539 In sum, a supervisory writ is the proper procedure for

correcting a John Doe judge's erroneous application of the law

when an appeal is not available or would come too late for

effective       redress. 142            The   majority       opinion      errs        in    holding

otherwise.




       142
        Dressler, 163 Wis. 2d at 630; State ex rel. Storer
Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 347, 388 N.W.2d 633
(Ct. App. 1986).


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     ¶540 For the reasons set forth, I conclude that the court

should decide whether the John Doe judge's January 10, 2014,

order was based on a misinterpretation of Wisconsin's campaign

finance statutes.          Because I conclude that it was, I further

conclude that the Special Prosecutor has met the criteria for

the issuance of a supervisory writ.                       I would grant the writ

petition.

     ¶541 Accordingly,                                I                         dissent.




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  Nos. 2013AP2504-W through 2013AP2508-W: Supervisory Writ &
Review State of Wisconsin ex rel. Three Unnamed Petitioners v.
   Gregory A. Peterson, John Doe Judge; Gregory Potter, Chief
     Judge; 143 and Francis D. Schmitz, as Special Prosecutor
       ¶542 In this third case, the final case in the John Doe

trilogy, Unnamed Movants 2, 6, and 7 seek review of an opinion

and order of the court of appeals that denied the three Unnamed

Movants'       petition       for     supervisory         writs      of     mandamus       and

prohibition.         The respondents are the John Doe judge, the chief

judges of the counties in which the cases are underway, and the

Special Prosecutor.

       ¶543 In      their     petition     to     the   court     of      appeals    seeking

supervisory         writs,     the     three      Unnamed      Movants       alleged,       in

relevant      part,     the   following       errors      of   law     in   the     John   Doe

proceedings:

          (1) The multi-county nature of the John Doe investigation

                 is contrary to Wisconsin law.

          (2) The John Doe judge had no authority to appoint the

                 Special Prosecutor without satisfying the criteria

                 set forth in Wis. Stat. § 978.045(1r).

          (3) The     John    Doe    Judge     had   no    authority        to    appoint    a

                 special prosecutor to act in multiple counties.

       ¶544 These allegations raise multiple overlapping questions

of    law     regarding       the    procedural         validity       of    the     Special

Prosecutor's         appointment,         the     competency           of    the     Special

       143
        What I refer to as "the third case" comprises five
cases. One of the defendants in each case is the chief judge of
the county in which the case is pending.


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Prosecutor           to    conduct      the   John      Doe    investigation,         and    the

legitimacy           of    a    multi-county          John    Doe     investigation         under

Wisconsin law.

        ¶545 The court of appeals rejected the arguments of the

three      Unnamed        Movants      and    denied     their      writ     petition.       The

majority opinion affirms the court of appeals order denying the

writ petition.               The petition for review in this court did not

raise all the issues raised before the court of appeals or all

the issues this court raised in its December 16, 2014, order
(attached        hereto        as   Exhibit    A).       I    agree    with    the    majority

opinion that the court of appeals order should be affirmed.                                    I

reach         this     result,        however,     using       significantly         different

reasoning than the majority opinion.

        ¶546 The          majority      opinion       concludes       that    the    John    Doe

judge's obligation to "correctly find facts and apply the law is

not the type of plain legal duty contemplated by the supervisory

writ      procedure . . . ." 144                  Because       the     majority       opinion

determines that the three Unnamed Movants have failed to fulfill

the     plain        legal     duty    criterion,       it    declares       that   they    have

failed to "satisfy the stringent preconditions for a supervisory

writ." 145

        ¶547 The majority opinion's discussion of the plain legal

duty criterion is reminiscent of its analysis in the second case




        144
              Majority op., ¶105.
        145
              Majority op., ¶13.


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in the John Doe trilogy. 146                For the reasons set forth in my

dissent in the second case in the John Doe trilogy (see ¶¶498-

521,       supra),    I    take     issue      with      the    majority        opinion's

explanation and application of the plain legal duty concept.                               I

will not repeat that discussion here.

       ¶548 I conclude that the court of appeals was required to

interpret and apply the applicable law to determine whether the

John Doe judge had violated a plain legal duty.                           The court of

appeals had discretion, however, whether to grant or deny the

three Unnamed Movants' writ petition.

       ¶549 I     consider      whether      the     court     of     appeals    properly

exercised its discretion in denying the Unnamed Movants' writ

petition by correctly interpreting and applying the applicable

law. 147     I decide the underlying legal questions faced by the

court of appeals independently, but benefit from the court of

appeals' analysis. 148




       146
        See majority op., ¶¶95-99 (discussing the plain legal
duty issue presented in the second case within the John Doe
trilogy), ¶107-132 (discussing the plain legal duty issues
presented in the third case within the John Doe trilogy).
       147
        The court of appeals has discretion whether to issue a
supervisory writ.    If the court of appeals misinterpreted or
misapplied   applicable  law,  it   erroneously  exercised  its
discretion.    City of Madison v. DWD, 2003 WI 76, ¶10, 262
Wis. 2d 652, 664 N.W.2d 584.   See also majority op., ¶102-106
(setting forth the standard of review applicable to the instant
supervisory writ case).
       148
        City of Madison v.                    DWD,     2003      WI     76,     ¶10,    262
Wis. 2d 652, 664 N.W.2d 584.


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       ¶550 In determining that there were no procedural defects

in the John Doe proceedings and thus that a supervisory writ was

not warranted, the court of appeals relied on established case

law,    including       State        v.        Cummings,       199        Wis. 2d 721,          546

N.W.2d 406     (1996);       State        v.    Carlson,       2002        WI     App    44,    250

Wis. 2d 562, 641 N.W.2d 451; State ex rel. Friedrich v. Circuit

Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995); and State v. Bollig,

222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App 1998)).                                     These cases

are persuasive.

       ¶551 I conclude that the court of appeals correctly decided

the questions of law presented in the three Unnamed Movants'

writ petition as follows:

       (1)     The     initiation          of        multiple,          parallel        John    Doe

               proceedings           related            to         a      single         criminal

               investigation is permitted under Wisconsin law.                                 This

               is an effective and efficient way of proceeding.

       (2)     The    John     Doe    judge          did     not       rely     on   Wis.      Stat.

               § 978.045(1r)          to       appoint       the        Special      Prosecutor.

               Rather,       the   John         Doe    judge       made        the   appointment

               pursuant to inherent judicial authority.                                 The John

               Doe judge had such authority regardless of whether

               the    statutory       conditions           set         forth    in   Wis.      Stat.

               § 978.045(1r) were met.                  Case law makes clear that a

               John    Doe    judge's          powers      extend        beyond      the    powers




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               conferred by statute to include all powers necessary

               to conduct the John Doe investigatory proceeding. 149

     (3)       The    John     Doe    judge     issued      five    separate         orders

               appointing       the     Special      Prosecutor,       one     for    each

               county's John Doe proceeding.                   The same prosecutor

               may      serve        multiple       appointments          in     related

               proceedings.           Thus, a John Doe judge may lawfully

               appoint the same special prosecutor to proceedings

               underway in several counties.                  This is an effective

               and efficient way of proceeding.

     149
        See State ex rel. Individual Subpoenaed v. Davis, 2005
WI 70, ¶¶23, 26, 281 Wis. 2d 431, 697 N.W.2d 803 ("A John Doe
judge's authority stems both from the statutes and from powers
inherent to a judge. . . . A John Doe judge's powers are not,
however, limited to those enumerated in Wis. Stat. § 968.26 [the
John Doe statute]. . . . A John Doe judge's inherent authority
stems from a John Doe judge's judicial office. . . . [A] John
Doe judge's inherent power encompasses all powers necessary for
the John Doe judge to 'carry out his or her responsibilities
with respect to the proper conduct of John Doe proceedings.'"
(quoted source omitted)); In re John Doe Proceeding, 2003 WI 30,
¶54, 260 Wis. 2d 653, 660 N.W.2d 260 ("A John Doe judge is also
entitled to exercise the authority inherent in his or her
judicial office."); State v. Cummings, 199 Wis. 2d 721, 736, 546
N.W.2d 406 (1996) ("A grant of jurisdiction by its very nature
includes those powers necessary to fulfill the jurisdictional
mandate.").

     Although the legislature created John Doe proceedings, the
separation of powers doctrine bars the legislature from "unduly
burdening,"    "materially    impairing,"   or    "substantially
interfering" with the inherent powers of the judicial branch,
including the inherent powers of the John Doe judge in the
instant cases. See State v. Holmes, 106 Wis. 2d 31, 68-69, 315
N.W.2d 703 (1982).    See also majority op., ¶127, and Justice
Prosser's concurrence, ¶¶208-210, 216, 239, both of which
improperly allow the legislature to trump the inherent judicial
powers of the John Doe judge.


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     (4)       Even if there were procedural errors in the Special

               Prosecutor's appointment (and I do not believe there

               were),      the    Special        Prosecutor     has      competency      to

               proceed. 150

     ¶552 The court of appeals was not presented with argument

regarding     the    procedural       validity       of   the     John    Doe    judge's

appointment and the competency of the John Doe judge to conduct

the John Doe proceedings.             That argument was, however, advanced

in this court.          It is without merit, as the majority opinion

makes clear. 151

     ¶553 Because the court of appeals properly interpreted and

applied     the     applicable      law,     I     conclude      that     it    did    not

erroneously exercise its discretion in denying the three Unnamed

Movants' writ petition.           The court of appeals decision should be

affirmed.

     ¶554 In closing, I note that even if this court determined

that the John Doe proceedings were procedurally defective and

     150
        Whether the Special Prosecutor is deprived of competency
on account of a procedural defect in his appointment turns on
whether the defect was "central" to the purpose of Wis. Stat.
§ § 978.045(1r) (setting forth conditions for the appointment of
a special prosecutor).150 The court of appeals determined in In
re Commitment of Bollig, 222 Wis. 2d 558, 571, 587 N.W.2d 908
(Ct. App. 1998), that the purpose of § 978.045(1r) is to control
costs, as the State pays an appointed special prosecutor for
work that would ordinarily be performed by a district attorney.
It seems implausible to suggest that the costs the State has
incurred on account of a single special prosecutor's appointment
are substantial enough to render the alleged defect in the
Special Prosecutor's appointment central to the cost-controlling
objective of § 978.045(1r).
     151
           See majority op., ¶¶108-113.


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that a supervisory writ is warranted, only those Unnamed Movants

who     raised     the    objection       before     the    John    Doe    judge     may    be

entitled to any relief.                 If not raised, these objections were

waived (forfeited).             See Village of Trempealeau v. Mikrut, 2004

WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190 (stating that "the

common-law waiver [forfeiture] rule applies to challenges to the

circuit      court's      competency"       and    explaining       that    a   competency

challenge is waived as a matter of right if raised for the first

time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558,

564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in

the appointment of a special prosecutor is waived (forfeited) if

raised for the first time on appeal).

        ¶555 For the reasons set forth, I write separately.




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                                    EXHIBIT A




                                         1
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                                         2
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                                         5
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                                         7
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                                         8
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                                        10
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                                    EXHIBIT B




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                                    EXHIBIT C




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                                    EXHIBIT D




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                                    EXHIBIT E




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        ¶556 N.       PATRICK       CROOKS,       J.      (concurring        in      part,

dissenting       in   part).         The    United     States      Supreme    Court    has

recently       acknowledged     that       "Judges     are   not    politicians,      even

when they come to the bench by way of the ballot."                             Williams-

Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015).                           Williams-

Yulee     involved     whether       a     judicial     conduct     rule     prohibiting

judicial       candidates    from        personally    soliciting        campaign    funds

violated the First Amendment to the United States Constitution.

Id.       In    concluding      that       the    First      Amendment     permits     the
particular       regulation     of       speech   at   issue,      the   Supreme     Court

stressed:

        In deciding cases, a judge is not to follow the
        preferences of his supporters, or provide any special
        consideration to his campaign donors. A judge instead
        must "observe the utmost fairness," striving to be
        "perfectly and completely independent, with nothing to
        influence or controul him but God and his conscience."
Id. at 1667 (citing Address of John Marshall, in Proceedings and

Debates of the Virginia State Convention of 1829-1830, p. 616

(1830)).

        ¶557 These principles must serve as guideposts for all of

us as judges in the courts of Wisconsin, whether or not the case

or cases at issue involve significant political overtones, as

these John Doe cases do.

        ¶558 It is with these important tenets in mind that I write

separately.

        ¶559 By erroneously concluding that campaign committees do

not have a duty under Wisconsin's campaign-finance law, Wis.


                                              1
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                                                                 2013 AP2508-W.npc


Stat. ch.           11    (2011-12), 1           to        report         receipt     of    in-kind

contributions            in   the     form      of        coordinated       spending       on   issue

advocacy, 2 the majority rejects the special prosecutor's primary

argument       regarding           criminal      activity.                Although    the   special

prosecutor advances a secondary argument of criminal activity

concerning           coordinated               express           advocacy,          the     majority

inexplicably ignores that argument.                                   These mistakes lead the

majority       to    terminate        a    valid          John    Doe 3    investigation        in    an

unprecedented fashion.

        ¶560 With         respect         to    the        special        prosecutor's       primary

argument,        which        is    the    focus          of     my    writing,      the    majority

misapplies the related doctrines of overbreadth and vagueness.

Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is

neither overbroad nor vague in its requirement that campaign

committees          report         receipt       of       in-kind         contributions.             The

majority also makes the troubling pronouncement that an act is

        1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
        2
       In        campaign-finance terminology, "issue advocacy" is
generally       understood to mean speech about public issues, whereas
"express        advocacy" refers to campaign or election-related
speech.        Fed. Election Comm'n v. Wis. Right to Life, Inc., 551
U.S. 449,      456 (2007).
        3
       "A John Doe proceeding is intended as an independent,
investigatory tool used to ascertain whether a crime has been
committed and if so, by whom." In re John Doe Proceeding, 2003
WI 30, ¶22, 260 Wis. 2d 653, 660 N.W.2d 260.        A John Doe
proceeding, by virtue of its secrecy, serves as an essential
investigative device that protects "'innocent citizens from
frivolous   and  groundless  prosecutions.'"    Id.   (citation
omitted).


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not a regulable disbursement or contribution under Chapter 11

unless     it      involves          express       advocacy          or        its     functional

equivalent.           This      is    an   erosion        of    Chapter         11     that    will

profoundly affect the integrity of our electoral process.                                         I

cannot agree with this result.

        ¶561 It    is    also        imperative      to     note      that       the     majority

conveniently        overlooks          the     special          prosecutor's            secondary

argument of criminal activity in its effort to end this John Doe

investigation.          Specifically, the special prosecutor seeks to

investigate         whether          particular           express         advocacy            groups
coordinated        their        spending       with        candidates            or     candidate

committees in violation of their sworn statement of independence

under Wis. Stat. § 11.06(7).                 Despite the fact that the special

prosecutor        utilizes      a     significant         portion         of    his     brief    to

present    evidence        of    such      illegal    coordination,              the     majority

determines, without explanation, that the John Doe investigation

is over.

        ¶562 Has the majority abused its power in reaching this

conclusion?        The majority's rush to terminate this investigation

is reminiscent of the action taken by the United States District

Court    for    the     Eastern       District       of    Wisconsin           in     O'Keefe    v.
Schmitz, 19 F. Supp. 3d 861 (E.D. Wis.) order clarified, No. 14-

C-139, 2014 WL 2446316 (E.D. Wis. May 30, 2014) (O'Keefe v.

Schmitz), an action that was both criticized and reversed by the

United    States      Court      of    Appeals       for       the   Seventh          Circuit    in

O'Keefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014) cert. denied,

No. 14-872, 2015 WL 260296 (U.S. May 18, 2015).                                      Although the
                                               3
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                                                                 2013 AP2508-W.npc


focus of my writing lies elsewhere, the majority's error in this

regard cannot be overlooked.

           ¶563 For these reasons, I respectfully dissent in State ex.

rel.        Two        Unnamed     Petitioners             v.     Peterson          (Two     Unnamed

Petitioners).

           ¶564 However,         like     the    majority,            I   conclude         that     the

special prosecutor and certain Unnamed Movants have failed to

meet their heavy burden of establishing that the John Doe judge

violated          a     plain     legal       duty        in     either       initiating          these

proceedings or quashing various subpoenas and search warrants

related to the investigation.                            Accordingly, I concur with the

majority          in    State    ex.     rel.    Schmitz         v.    Peterson      (Schmitz        v.
Peterson)          and    State     ex.       rel.       Three     Unnamed      Petitioners          v.

Peterson (Three Unnamed Petitioners).                             In concurring in Schmitz

v. Peterson, it is significant for me that when an appellate

court       decides       to     issue    a     supervisory           writ,    it    is     a     rare,

discretionary decision.                   Madison Metro. Sch. Dist. v. Circuit

Ct. for Dane Cnty., 2011 WI 72, ¶¶33-34, 336 Wis. 2d 95, 800

N.W.2d 442.             Here, the John Doe judge also made a discretionary

decision in deciding a complex legal issue.                               Deference should be

given where there is such discretion.
           ¶565 The John Doe investigation should not be terminated

because        the      special     prosecutor's               primary    argument         regarding

criminal activity is supported by Chapter 11, and the United

States Supreme Court has not concluded that the First Amendment

to     the     United       States       Constitution             prohibits         the    type      of

regulation underlying that argument.                             See O'Keefe, 769 F.3d at
                                                     4
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942. 4         The   special       prosecutor      seeks   to     investigate      whether

certain         campaign      committees       failed      to     comply    with       their

statutory obligation to report receipt of in-kind contributions

(in      the    form   of    coordinated       spending    on     issue    advocacy)     in

connection           with     various      recall     elections.            A    campaign

committee's          duty     to    report     such     in-kind     contributions        is

prescribed by Wis. Stat. § 11.06(1). 5

         ¶566 In Two Unnamed Petitioners, the majority holds that
the special prosecutor fails to advance a valid argument under

Wisconsin         criminal         law   and    rashly     closes     the       John    Doe

investigation.              In reaching its conclusion, the majority does

not      confront      the    plain      language     of   Wis.    Stat.    § 11.06(1).

Instead, it focuses more generally on Chapter 11's definition of


         4
       It is noteworthy that the United States Supreme Court
denied certiorari review in O'Keefe v. Chisholm, 769 F.3d 936
(7th Cir. 2014) cert. denied, No. 14-872, 2015 WL 260296 (U.S.
May 18, 2015), a case in which the United States Court of
Appeals for the Seventh Circuit determined that the Supreme
Court has not decided whether the First Amendment prohibits the
regulation of coordinated issue advocacy between a candidate or
campaign committee and an issue advocacy group. If the Supreme
Court eventually determines that the First Amendment allows that
type of regulation, the decision would validate the special
prosecutor's in-kind contribution argument. As discussed below,
it can be argued that Williams-Yulee v. Florida Bar, 135 S. Ct.
1656 (2015), supports the special prosecutor's position, but
that decision, while helpful, is certainly not definitive on the
issue.
         5
       Wisconsin Stat. § 11.06(1) provides, in relevant part:
"Except as provided in subs. (2), (3) and (3m) and ss. 11.05(2r)
and 11.19(2), each registrant under s. 11.05 shall make full
reports . . . of all contributions received, contributions or
disbursements made, and obligations incurred." (emphasis added).


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"political purposes," because in its view, "If an act is not

done for political purposes, then it is not a disbursement or a

contribution,          and    it   therefore      is   not     subject       to    regulation

under Ch. 11." 6

         ¶567 The      majority      determines         that        the     definition       of

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

unconstitutionally overbroad and vague regardless of the context

in which it applies to regulate political speech under Chapter

11. 7        This is so, the majority reasons, primarily because the

definition          encompasses      an     act    done       "for        the     purpose    of

influencing" an election. 8               To support the notion that the phrase

"for         the   purpose    of   influencing"        an    election       is     hopelessly

overbroad and vague, even where it operates to regulate campaign

contributions,          the    majority      purports        to     borrow        pages     from

Buckley v. Valeo, 424 U.S. 1 (1976), and Wis. Right to Life,

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

then applies a narrowing construction to § 11.01(16) to confine

the definition of "political purposes" to express advocacy or

its      functional          equivalent,      because        that         construction       is

"'readily available' due to the Seventh Circuit's decision in

Barland II." 9         The upshot, according to the majority, is that an


         6
             Majority op., ¶62.
         7
             Majority op., ¶67.
         8
             Majority op., ¶66.
         9
             Majority op., ¶67.


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act     is     not      a   regulable       disbursement         or   contribution      under

Chapter 11 unless it involves express advocacy or its functional

equivalent. 10

        ¶568 Turning              to     the      special        prosecutor's      arguments

regarding criminal activity, the majority summarily concludes:

"The limiting construction that we apply makes clear that the

special        prosecutor's            theories    are   unsupportable      in    law   given

that the theories rely on overbroad and vague statutes." 11                                The

majority must therefore dismiss the special prosecutor's in-kind

contribution argument on the basis that Wis. Stat. § 11.06(1)

contains        the     terms     "contribution"         and     "disbursement,"     thereby

triggering the definition of "political purposes."                               It follows,

according          to       the        majority's       logic,     that    § 11.06(1)      is

unconstitutionally                overbroad       and    vague    unless   its     reach   is

limited to express advocacy or its functional equivalent.                               Since

the special prosecutor's in-kind contribution argument relies on

coordinated issue advocacy, not express advocacy, the majority

swiftly rejects that argument. 12

        10
             See majority op., ¶¶62, 67.
        11
             Majority op., ¶69.
        12
        While I disagree with the majority's dismissal of the
special prosecutor's in-kind contribution argument, I do agree
with the majority's criticism of some of the purported tactics
used in gathering evidence in this particular John Doe
investigation.    As the majority identifies, some of these
methods certainly appear to be improper and open to severe
disagreement.   See majority op., ¶¶28-29.    At this point, the
actual facts concerning the tactics used have not been fully
established, but the allegations are very troubling.


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        ¶569 As previously mentioned, I conclude that Wis. Stat.

§ 11.06(1) is neither overbroad nor vague in its requirement

that      campaign           committees        report        receipt          of       in-kind

contributions.          I recognize that under the special prosecutor's

argument a reportable in-kind contribution requires a "political

purpose,"       thus    implicating         the     phrase    "for      the    purpose        of

influencing" an election that the majority finds so troubling.

However, in Buckley, the United States Supreme Court indicated
that this phrase is hardly problematic "in connection with the

definition of a contribution because of the limiting connotation

created    by    the        general     understanding        of    what    constitutes        a

political contribution."                 Buckley, 424 U.S. at 23 n.24.                        In

other     words,       it    is    common    sense——not           the   retention        of    a

campaign-finance             attorney——that          tells        people      of       ordinary

intelligence what is and is not a campaign contribution.

        ¶570 The   majority           disregards     this    important        language        in

Buckley, opting instead to justify its overbreadth and vagueness

determination with the Supreme Court's discussion of the phrase

"for the purpose of influencing" an election in a completely

different     context:            the   regulation      of    independent           political

expenditures.           The       majority's       failure    to    perform        a   context

specific analysis of the subject phrase in reaching its blanket

conclusion that Chapter 11's definition of "political purposes"

is overbroad and vague represents a fundamental misunderstanding

of Buckley and its progeny, including Barland II.                                  It further

ignores the principle that "The First Amendment vagueness and

overbreadth calculus must be calibrated to the kind and degree
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of    the     burdens       imposed       on    those      who       must   comply       with   the

regulatory         scheme.         The    greater        the    burden      on    the    regulated

class,       the    more     acute       the    need      for    clarity     and       precision."

Barland II, 751 F.3d at 837.

           ¶571 The       majority's         errors      in     Two    Unnamed         Petitioners

(including          its    failure       to    address         Wis.    Stat.      § 11.06(1)    in

rejecting           the     special           prosecutor's            in-kind       contribution

argument) serve to terminate a valid John Doe investigation.

They       also    work     to    limit       the   reach       of    Wisconsin's       campaign-

finance law in a manner that will undermine the integrity of our

electoral process.               I disagree with these consequences.
                      I. TWO UNNAMED PETITIONERS (ORIGINAL ACTION)

           ¶572 To support my position that the John Doe investigation

should move forward because the special prosecutor advances a

valid        argument       under     Wisconsin           criminal         law,    I    begin   by

identifying the relevant portions of Chapter 11 that support

that        argument.        Next,       I     discuss        some    important         principles

pertaining          to     the      related         doctrines         of     overbreadth        and

vagueness, as well as significant campaign-finance law decisions

embodying          those     principles.                These    general         principles     and

decisions lead me to determine that there are no overbreadth and

vagueness concerns with respect to the statute that supports the

special           prosecutor's       primary            argument        regarding         criminal

activity.          Finally, I discuss the question of whether the First

Amendment to the United States Constitution forbids regulation

of coordinated issue advocacy between a candidate or a campaign

committee and an issue advocacy group.                                 I conclude that the
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absence of Supreme Court precedent regarding an issue that has

sparked "lively debate among judges and academic analysts" 13 is

an important factor as to why this John Doe investigation should

not be terminated.

             A. Under Chapter 11, a Campaign Committee Must Report its

   Receipt of In-Kind Contributions in the Form of Coordinated

                           Spending on Issue Advocacy.

        ¶573 In      the   special    prosecutor's       own    words,     the   "non-

disclosure of reportable campaign contributions is at the heart

of this [John Doe] investigation."                  The following illustrates

the special prosecutor's in-kind contribution argument:

        X is a nonprofit corporation that engages in political
        speech on issues of public importance.        Y is a
        campaign committee 14 regulated under Ch. 11.   When X
        spends money on issue advocacy, it does not operate
        independently of Y.        Rather, X coordinates its
        spending with Y, such that Y may be involved in the
        timing, content, or placement of issue advocacy that




        13
             O'Keefe, 769 F.3d at 942.
        14
       Wis. Stat.            § 11.01(15)       defines   a     "personal     campaign
committee" as:

        A committee which is formed or operating for the
        purpose of influencing the election or reelection of a
        candidate, which acts with the cooperation of or upon
        consultation with the candidate or the candidate's
        agent or which is operating in concert with or
        pursuant to the authorization, request or suggestion
        of the candidate or the candidate's agent.


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           is made for its benefit.    Y has received an in-kind
           contribution that must be reported under Chapter 11. 15
           ¶574 The special prosecutor's in-kind contribution argument
is    rooted          in    Wis.       Stat.   § 11.06.        That     section,     entitled

"Financial report information; application; funding procedure,"

generally requires Chapter 11 registrants 16 to "make full reports

.     .         .   of     all     contributions        received,       contributions      or

disbursements              made,       and   obligations     incurred."          Wis.   Stat.

§ 11.06(1)            (emphasis        added).     Candidates         and    their    campaign

committees have an absolute duty to register with the Government

Accountability             Board       (GAB)   under    Wis.    Stat.       § 11.05(2g),    so

there           appears    to     be    no   question   that      the   general      reporting

obligations prescribed by § 11.06(1) apply to those entities.

           ¶575 The        term       "contribution"    is     defined      by   Wis.   Stat.

§ 11.01(6)(a).                   It    includes    "A     gift,     subscription,       loan,

advance, or deposit of money or anything of value . . . made for

political purposes."                   Wis. Stat. § 11.01(6)(a)1.            The definition

encompasses contributions that are received in cash, i.e., a


           15
       To be clear, the special prosecutor's main focus in this
investigation is on certain campaign committees' failure to
report receipt of in-kind contributions (in the form of
coordinated spending on issue advocacy), not on certain issue
advocacy   groups'   failure to   report  making  such  in-kind
contributions.    So what the majority mistakenly refers to as
"illegal campaign coordination" is in reality a campaign
committee's failure to report its receipt of an in-kind
contribution.
           16
       Chapter 11 imposes registration requirements on political
speakers   such  as   candidates,  their   campaign  committees,
political committees, independent groups, and individuals.   See
Wis. Stat. § 11.05.


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"gift . . . of money," and those that are received "in kind,"

i.e.,     "anything      of    value."          See   Wis.    Coal.     for   Voter

Participation, Inc. v. State Elections Bd., 231 Wis. 2d 670,

680, 605 N.W.2d 654 (Ct. App. 1999) (WCVP).                        Wisconsin Admin.

Code § GAB 1.20(1)(e) defines an "in-kind contribution" as "a

disbursement by a contributor to procure a thing of value or

service    for    the    benefit     of   a    registrant    who    authorized   the

disbursement."          To constitute a cash or in-kind contribution,

money must be given or spent for "political purposes," which is

defined by Wis. Stat. § 11.01(16) to include an act done "for

the purpose of influencing" an election.
        ¶576 Reading the above definitions in conjunction with Wis.

Stat. § 11.06(1), it is clear that a campaign committee has a

duty to report its receipt of cash as contributions.                          It is

equally clear that a campaign committee has a duty to report its

receipt of services as contributions if it authorizes a third

party to pay for those services for the benefit of the campaign.

        ¶577 But what if a campaign committee does not necessarily

authorize or control a third party's spending on services for

the campaign's benefit, but instead prearranges that spending

with the third party?              Chapter 11 instructs that under these

circumstances a candidate committee has received a reportable

contribution as well.           See Wis. Stat. § 11.06(4)(d) ("A . . .
disbursement . . . made . . . for the benefit of a candidate is

reportable by the candidate or the candidate's personal campaign

committee    if   it    is    made   or   incurred    with   the     authorization,


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direction or control of or otherwise by prearrangement with the

candidate or the candidate's agent.") (emphasis added).

        ¶578 As        the     foregoing        discussion            demonstrates,          under

Chapter 11, "contributions to a candidate's campaign must be

reported         whether      or    not    they      constitute         express        advocacy."

WCVP, 231 Wis. 2d at 679 (emphasis in original).                                        There is

nothing         in    the     plain     language          of    Wis.    Stat.      § 11.06(1),

§ 11.01(6)(a)1,             § 11.06(4)(d),           or        Wis.    Admin.     Code        § GAB

1.20(1)(e) that limits receipt of reportable contributions to

express advocacy or its functional equivalent.
        ¶579 Returning             to     the     illustration            of     the        special

prosecutor's in-kind contribution argument, it is evident that

Chapter 11 supports that argument in one of two ways.                                  First, Y,

the campaign committee, may have received a reportable in-kind

contribution if the nature of its coordination with X is such

that Y authorized or controlled X's spending on issue advocacy.

Second, Y may have received a reportable in-kind contribution if

the nature of its coordination with X is such that the two

entities prearranged X's spending on issue advocacy.

        ¶580 Thus, absent the majority's limiting construction that

confines        the    term    "contribution"          to       express    advocacy         or   its

function         equivalent,        the    special         prosecutor          makes    a     valid

argument under Wisconsin criminal law. 17


        17
       The   intentional   failure to                            disclose   contributions
received is a violation of criminal                              law.    See Wis. Stat.
§§ 11.27(1) and 11.61(1)(b).


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           B. The Key Inquiry in First Amendment Overbreadth and

  Vagueness Analysis is Whether the Statute at Issue Reaches a

      Substantial Amount of Constitutionally Protected Activity.

        ¶581 Having      identified        the       portions    of    Chapter      11   that

support the special prosecutor's in-kind contribution argument,

I turn to the related doctrines of overbreadth and vagueness to

highlight some important principles that the majority opinion

overlooks.        I also examine relevant campaign-finance decisions

that embody those principles.

                              i. Overbreadth and Vagueness
        ¶582 "According            to     our        First    Amendment        overbreadth

doctrine,     a    statute     is       facially       invalid    if   it     prohibits     a

substantial       amount      of    protected         speech."        United    States     v.

Williams,     553    U.S.     285,       292    (2008)       (emphasis    added).         The

Supreme Court in Williams explained:

        The doctrine seeks to strike a balance between
        competing social costs.    On the one hand, the threat
        of enforcement of an overbroad law deters people from
        engaging   in    constitutionally   protected   speech,
        inhibiting the free exchange of ideas.     On the other
        hand, invalidating a law that in some of its
        applications is perfectly constitutional—particularly
        a law directed at conduct so antisocial that it has
        been made criminal—has obvious harmful effects.      In
        order to maintain an appropriate balance, we have
        vigorously enforced the requirement that a statute's
        overbreadth be substantial, not only in an absolute
        sense, but also relative to the statute's plainly
        legitimate sweep.     Invalidation for overbreadth is
        strong medicine that is not to be casually employed.
Id.     (emphasis        added)         (internal       citations       and    quotations

omitted).         When   engaging         in    overbreadth      analysis,      a   court's

first     step    "is    to    construe         the     challenged     statute;      it    is
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impossible       to    determine         whether         a       statute          reaches    too     far

without first knowing what the statute covers."                                           Id. at 293

(emphasis added).            Once a court interprets the statute at issue,

the    second    step    is    to       determine         whether            it    "criminalizes       a

substantial amount of protected expressive activity."                                          Id. at

297.

        ¶583 "Like the overbreadth doctrine, the void-for-vagueness

doctrine    protects         against         the     ills        of    a    law    that     'fails    to

provide a person of ordinary intelligence fair notice of what is

prohibited,       or    is     so       standardless              that        it    authorizes        or

encourages       seriously         discriminatory                enforcement.'"              Ctr.    for
Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir.

2012) (quoted source and citation omitted).                                      Where the statute

at issue implicates First Amendment rights, a greater degree of

precision       and    guidance         is    required.               Id.     at    479;     see    also

Buckley,    424       U.S.    at    77       ("Where      First            Amendment       rights    are

involved, an even 'greater degree of specificity' is required.")

(quoted    source      and    citation          omitted).                  That    said,    "'perfect

clarity and precise guidance have never been required even of

regulations that restrict expressive activity.'"                                     Williams, 553
U.S. at 304 (quoted source and citation omitted).                                          Similar to

overbreadth       analysis,         a        court      engaging            in     First    Amendment

vagueness       analysis      must       interpret           the       statute       at     issue    and

determine       whether       it        restricts            a        substantial          amount     of

constitutionally protected activity.                             Madigan, 697 F.3d at 479.

If it does not, a facial challenge to the statute must fail.

Id.
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           ¶584 The takeaway is that "The First Amendment vagueness

and    overbreadth          calculus      must    be    calibrated      to     the   kind    and

degree of the burdens imposed on those who must comply with the

regulatory          scheme.        The    greater      the    burden    on     the   regulated

class,       the    more     acute       the   need     for   clarity    and       precision."

Barland II, 751 F.3d at 837.

                          ii. Relevant Campaign-Finance Decisions

           ¶585 That       First       Amendment        overbreadth          and     vagueness

analysis is context specific is best exemplified by Buckley, the
case       in   which      the    United       States    Supreme       Court    created      the

express-advocacy limitation that is at the heart of this case.

In Buckley, the Supreme Court considered various challenges to

the Federal Election Campaign Act of 1971's (FECA) restrictions

on     contributions            and    independent        expenditures.              The    main

provisions under review involved: (1) limitations on individual

and         group      political         contributions;          (2)     limitations          on

independent          expenditures;         and   (3)     disclosure      requirements        for

individual          and    group      political       contributions      and       independent

expenditures.             Buckley, 424 U.S. at 7.
           ¶586 Prior      to    addressing      the     subject   enactments,         Buckley

discussed the kind and degree of burdens imposed on political

speakers through limitations on the giving and spending of money

in political campaigns.                  Regarding limitations on contributions,

the Supreme Court explained:

           a limitation upon the amount that any one person or
           group may contribute to a candidate or political
           committee entails only a marginal restriction upon the
           contributor's ability to engage in free communication.
           A contribution serves as a general expression of
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        support for the candidate and his views, but does not
        communicate the underlying basis for the support
        . . . . A limitation on the amount of money a person
        may give to a candidate or campaign organization thus
        involves little direct restraint on his political
        communication, for it permits the symbolic expression
        of support evidenced by a contribution but does not in
        any way infringe the contributor's freedom to discuss
        candidates and issues.
Id. at 20-21 (emphasis added).               In comparison, limitations on

independent      expenditures       "represent     substantial      rather     than

merely theoretical restraints on the quantity and diversity of

political speech."        Id. at 19.         This is because "A restriction
on the amount of money a person or group can spend on political

communication during a campaign necessarily reduces the quantity

of expression by restricting the number of issues discussed, the

depth     of   their   exploration,        and   the    size   of   the    audience

reached."      Id.

        ¶587 Bearing   in   mind     the    relative     burdens    on    political

speech imposed by limitations on contributions and independent

expenditures, the Supreme Court turned to address constitutional

challenges to FECA's $1,000 limitation on individual and group

political contributions to any single candidate per election.

Under FECA, the term "contribution" was defined to include "a

gift,     subscription,     loan,    advance,      or   deposit     of    money   or

anything of value . . . made for the purpose of influencing" an

election.      Id. at 182.         The appellants did not challenge the

subject enactment as unconstitutionally overbroad and vague on

the basis that it incorporated the phrase "for the purpose of

influencing" an election.           However, in a footnote, Buckley all


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but        assured        that   the   phrase        poses    little       overbreadth        and

vagueness concerns in the context of regulating contributions:

           The Act does not define the phrase "for the purpose of
           influencing" an election that determines when a gift,
           loan, or advance constitutes a contribution.     Other
           courts have given that phrase a narrow meaning to
           alleviate various problems in other contexts. . . .
           The use of the phrase presents fewer problems in
           connection with the definition of a contribution
           because of the limiting connotation created by the
           general understanding of what constitutes a political
           contribution.
Id. at 23 n.24 (internal citations omitted).

           ¶588 Given the Supreme Court's recognition that limitations

on contributions impose marginal burdens on free speech, its

decision not to require a more precise definition of the term

"contribution" is entirely consistent with the context specific

inquiry that must take place when engaging in overbreadth and

vagueness         analysis.             Ultimately,           Buckley       upheld       FECA's

limitation        on       individual     and    group       political       contributions,

finding a "sufficiently important interest" in preventing quid

pro quo corruption or the appearance thereof.                          Id. at 25-28.

           ¶589 The        Supreme     Court    then     considered         FECA's       $1,000

limitation on independent expenditures "relative to a clearly

identified        candidate."            Id.    at    39.       In   that       context,      the

appellants successfully asserted a vagueness challenge to the

subject enactment's use of the above quoted phrase.                              Significant

to    the     Supreme        Court's    determination         was    the    fact       that   the

limitation           on     independent       expenditures       posed      a    substantial

burden on political speech.                   See id. at 39-44.            It reasoned that

the        indefiniteness         of    the    phrase        "relative      to     a    clearly
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identified         candidate"        "fails       to     clearly      mark    the     boundary

between permissible and impermissible speech . . . ."                                  Id. at

41.        Thus, it searched for a narrowing construction to save the

statute from unconstitutionality.

           ¶590 The Supreme Court found that narrowing construction in

the text of the subject enactment itself:

           The section prohibits any expenditure . . . relative
           to a clearly identified candidate during a calendar
           year which, when added to all other expenditures . . .
           advocating the election or defeat of such candidate,
           exceeds, $1,000.    This context clearly permits, if
           indeed it does not require, the phrase "relative to" a
           candidate to be read to mean "advocating the election
           or defeat of" a candidate.
Id. at 42 (internal quotations omitted).                              It then determined

that        the     readily         apparent       limiting         construction       simply

"refocuse[d]            the    vagueness           question,"         Id.,      "[f]or     the

distinction         between     discussion          of   issues       and    candidates   and

advocacy of election or defeat of candidates may often dissolve

in practical application."                  Id.     As a result, the Supreme Court

further narrowed FECA's limitation on independent expenditures

to     "expenditures          for    communications            that    in    express     terms

advocate          the   election       or    defeat       of    a     clearly       identified

candidate for federal office."                    Id. at 44.

           ¶591 The express advocacy limitation created in Buckley was

therefore "an endpoint of statutory interpretation, not a first

principle of constitutional law."                        McConnell v. Fed. Election

Comm'n, 540 U.S. 93, 190 (2003), overruled on other grounds by

Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).

Ultimately, the Supreme Court determined that FECA's limitation
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on     independent           expenditures,       even        as    narrowly    construed,

impermissibly             burdened      the     constitutional         right    of    free

expression.            Buckley, 424 U.S. at 47-51.

           ¶592 Perhaps most significant for purposes of the instant

action is Buckley's discussion of FECA's disclosure requirements

for contributions and independent expenditures.                            The enactment

at issue imposed reporting obligations on individuals and groups

that made contributions or independent expenditures aggregating

over $100 in a calendar year "other than by contribution to a

political committee or candidate."                    Id. at 74-75.
           ¶593 FECA         defined      the        terms         "contribution"      and

"expenditure" to include anything of value made "for the purpose

of influencing" an election.                  Id. at 77.          This time Buckley took

issue with that phrase, but only as it operated to regulate

independent expenditures.                Id. at 77-80. 18          To avoid overbreadth

and         vagueness         concerns,       the      Supreme        Court     construed

"expenditure" for purposes of the subject enactment "to reach

only funds that expressly advocate the election or defeat of a

clearly identified candidate."                      Id. at 80.        So construed, the
enactment           withstood      constitutional      scrutiny,      as   Buckley   found

disclosure to be "a reasonable and minimally restrictive method

of    furthering           First    Amendment       values    by     opening   the   basic

           18
       It is worth noting that Buckley found no overbreadth or
vagueness concerns with respect to FECA's definition of
"contribution"    even   though    that   definition   included
"expenditures placed in cooperation with or with the consent of
a candidate, his agents, or an authorized committee of the
candidate." Buckley v. Valeo, 424 U.S. 1, 78 (1976).


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processes of our federal election system to public view."                          Id.

at 82.

        ¶594 The      foregoing    discussion     reveals   that    the     majority

misconstrues Buckley.             Buckley's conclusion is that the phrase

"for     the      purpose    of   influencing"      an   election       poses   First

Amendment         overbreadth     and   vagueness    concerns      in     regard    to

independent expenditures, not contributions received. 19

        ¶595 In the aftermath of Buckley, the Supreme Court has
continued to utilize the express advocacy limitation to curb

FECA restrictions on independent expenditures.                  For example, in

Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S.

238, 245-49 (1986) (MCFL), the Supreme Court applied Buckley's

        19
       This court previously examined Buckley for the purpose of
clarifying the meaning of the term "express advocacy" as used in
Wis. Stat. § 11.01(16).   See Elections Bd. of State of Wis. v.
Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999)
(WMC).   In WMC, a Wisconsin corporation sought and received
assurance from the Elections Board of the State of Wisconsin
(the Board) that certain advertisements it wanted to broadcast
prior to a general election did not qualify as express advocacy.
Id. at 653, 677 n.24.    The Board later determined that the ads
that were broadcast constituted express advocacy under a
context-based approach toward defining the term. Id. at 678-79.

     We turned to Buckley to decide whether the corporation had
fair warning that its ads constituted express advocacy,
ultimately concluding that it did not. Id. at 662-81. As part
of our discussion, we recognized that the United States Supreme
Court created the express advocacy limitation in Buckley to
avoid overbreadth and vagueness concerns with respect to FECA's
regulation of independent expenditures. See id. at 664-66. So
it would be a mistake to rely on WMC for the proposition that
the   express   advocacy   limitation   is    necessary   to  cure
constitutional   infirmities   with   respect   to   Chapter  11's
regulation of campaign contributions received.        See majority
op., ¶68 n. 23.


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express          advocacy      limitation        to      FECA's     prohibition          on

corporations           using    treasury         funds     to     make     independent

expenditures in connection with any federal election.                         Tracking

Buckley's        overbreadth     and    vagueness     analysis     with    respect       to

FECA's disclosure requirements on independent expenditures, the

Supreme Court in MCFL determined that FECA's broad definition of

the term "expenditure," i.e., anything of value made "for the

purposes of influencing" an election, posed overbreadth concerns

in the context of the "more intrusive provision that directly

regulate[d] independent spending."                 Id. at 246-49.         Accordingly,
it held that the term "expenditure" in the subject provision was

limited to communications for express advocacy.                     Id. at 249.

        ¶596 That        Buckley's     express    advocacy      limitation        was   the

product          of    statutory       interpretation          designed      to     avoid

overbreadth and vagueness concerns solely with respect to the

statutory language at issue is confirmed by McConnell, 540 U.S.

at 191-93.            There, the Supreme Court considered challenges to

the Bipartisan Campaign Reform Act of 2002 (BCRA).                        Id. at 189.

BCRA created a new term, "electioneering communication," 20 which

placed restrictions on communications for express advocacy as

well     as      issue     advocacy.        Id.          The    plaintiffs        asserted

        20
        The term "electioneering communication" was defined to
encompass "any broadcast, cable, or satellite communication"
that "refers to a clearly identified candidate for Federal
office" and appears within 60 days of a federal general election
or 30 days of a federal primary election.     McConnell v. Fed.
Election Comm'n, 540 U.S. 93, 189 (2003) overruled on other
grounds by Citizens United v. Fed. Election Comm'n, 558 U.S. 310
(2010).


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constitutional challenges to the new term as it applied to both

the   expenditure     and   disclosure       contexts.         Id.    at    190.   In

essence,      they       argued      that         the   term         "electioneering

communication"       must   be    limited    to    communications       for    express

advocacy because "Buckley drew a constitutionally mandated line

between express advocacy and so-called issue advocacy, and that

speakers possess an inviolable First Amendment right to engage

in the latter category of speech."                Id.
        ¶597 McConnell       patently        rejected      that            contention,

reasoning:

        a plain reading of Buckley makes clear that the
        express advocacy limitation, in both the expenditure
        and the disclosure contexts, was the product of
        statutory interpretation rather than a constitutional
        command.   In narrowly reading the FECA provisions in
        Buckley   to    avoid   problems   of   vagueness    and
        overbreadth, we nowhere suggested that a statute that
        was neither vague nor overbroad would be required to
        toe the same express advocacy line.         Nor did we
        suggest as much in MCFL . . . in which we addressed
        the scope of another FECA expenditure limitation and
        confirmed the understanding that Buckley's express
        advocacy   category   was   a   product  of    statutory
        construction.

        In short, the concept of express advocacy and the
        concomitant class of magic words were born of an
        effort to avoid constitutional infirmities. . . . We
        have long rigidly adhered to the tenet never to
        formulate a rule of constitutional law broader than is
        required by the precise facts to which it is to be
        applied, . . . for [t]he nature of judicial review
        constrains us to consider the case that is actually
        before us, . . . Consistent with that principle, our
        decisions in Buckley and MCFL were specific to the
        statutory language before us; they in no way drew a
        constitutional   boundary  that   forever  fixed   the
        permissible scope of provisions regulating campaign-
        related speech.

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Id.     at    191-93       (emphasis          added)       (internal        citations          and

quotations omitted).                 Thus, it would be error for a court to

rely on Buckley to narrow a statute's reach to express advocacy

where    it   does       not    pose       the    same    overbreadth       and    vagueness

concerns that drove the Supreme Court's analysis in Buckley.

See id. at 194.

        ¶598 The     Seventh          Circuit's        decision     in     Barland       II     is

entirely      consistent            with    the    notion    that     Buckley's      express
advocacy limitation is context specific.                       There, Wisconsin Right

to Life (WRTL), a nonprofit tax-exempt corporation, "sued to

block    enforcement           of    many    state       statutes    and    rules    against

groups that spend money for political speech independently of

candidates and parties."                   Barland II, 751 F.3d at 807 (emphasis

added).           Specifically,             the    complaint        alleged       "that        the

challenged laws are vague and overbroad and unjustifiably burden

the   free-speech         rights       of    independent      political        speakers         in

violation of the First Amendment."                       Id. (emphasis added).                Lest

there be any confusion, the Seventh Circuit specified: "Neither

[WRTL] nor        its    state       PAC    contributes      to     candidates      or    other

political committees, nor are they connected with candidates,

their campaign committees, or political parties.                               That is to

say, they operate independently of candidates and their campaign

committees."       Id. at 809.
        ¶599 So     when        the        Seventh       Circuit     considered          WRTL's

overbreadth and vagueness challenge to Chapter 11's definition

of "political purposes," it did so in the context of that term's

restrictions        on    independent             expenditures,       not     contributions
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received.               Any    other      reading         contravenes            the    principle   that

courts           should       not    "formulate           a    rule        of    constitutional        law

broader than is required by the precise facts to which it is to

be applied . . . ."                       McConnell, 540 U.S. at 193 (citation and

quotations             omitted).           To   be    clear,          the       GAB's   concession      in

Barland           II    was     that      Chapter         11's       definition         of    "political

purposes" was overbroad and vague "in the sense meant by Buckley

. . . ."              Barland II, 751 F.3d at 832.                        As demonstrated, Buckley
was concerned with the phrase "for the purpose of influencing"

an     election            where          it    operated             to     regulate         independent

expenditures, not contributions.                              Thus, it is incorrect to rely

on Barland II to support the notion that the subject phrase

poses           overbreadth         and    vagueness           concerns         in     the   context    of

Chapter 11's regulation of contributions received. 21

           ¶600 In sum, the key inquiry in First Amendment overbreadth

and vagueness analysis is whether the statute at issue reaches a

substantial amount of constitutionally protected speech.                                            As a

result,           a    court's      analysis         in       this    regard         must    be   context

specific——"the greater the burden on the regulated class, the

more acute the need for clarity and precision."                                              Id. at 837.




           21
       The majority states that "Although Barland II did not
involve an allegation of coordination, that distinction is
meaningless in determining whether the definition of 'political
purposes' is vague or overbroad."       Majority op., ¶67 n.22.
Actually, it makes all the difference.         Under Chapter 11,
coordinated disbursements are treated as contributions.


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Buckley embodies that principle in its disparate treatment of

contributions and independent expenditures under FECA. 22

              C. There are No Overbreadth and Vagueness Concerns with

                        Respect to Wis. Stat. § 11.06(1).

        ¶601      Wisconsin Stat. § 11.06(1) is neither overbroad nor

vague in its requirement that campaign committees report receipt

of in-kind contributions in the form of coordinated spending on

issue advocacy.
        ¶602 As noted, the primary inquiry is whether Wis. Stat.

§ 11.06(1)         reaches    a   substantial     amount       of   constitutionally

protected speech.            Madigan, 697 F.3d at 479.               Of course, in

order to answer that question, it is necessary to examine the

plain language of the statute.             Williams, 553 U.S. at 293.

        ¶603 Generally        speaking,    Wis.   Stat.        § 11.06(1)    requires

registrants to "make full reports . . . of all contributions

received, contributions or disbursements made, and obligations

incurred."          Registrants must file frequent and detailed reports

under        § 11.06;     Barland    II   summarized       a    variety     of   those

reporting obligations as follows:

        For contributions received in excess of $20, the
        report must include the date of the contribution, the
        name   and  address  of  the   contributor,   and  the
        cumulative   total   contributions    made   by   that
        contributor for the calendar year.   For contributions

        22
       For a thorough discussion that supports my interpretation
of Buckley's distinction between contributions and independent
expenditures, see generally Brent Ferguson, Beyond Coordination:
Defining Indirect Campaign Contributions for the Super PAC Era,
42 Hastings Const. L.Q. 471 (2015).


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        received in excess of $100, the registrant must obtain
        and report the name and address of the donor's place
        of employment.    All other income in excess of $20—
        including transfers of funds, interest, returns on
        investments, rebates, and refunds received—must be
        listed and described.

        Registrants must report all disbursements. For every
        disbursement in excess of $20, the registrant must
        include the name and address of the recipient, the
        date of the disbursement, and a statement of its
        purpose. Individuals and committees not primarily
        organized for political purposes need only report
        disbursements made for the purpose of expressly
        advocat[ing] the election or defeat of a clearly
        identified candidate. In other words, committees in
        this category need not report general operating
        expenses; for all other committees, administrative and
        overhead expenses must be reported as disbursements.
        All disbursements that count as contributions to
        candidates or other committees must be reported.
Barland II, 751 F.3d at 814 (internal citations and quotations

omitted).          "No person may prepare or submit a false report or

statement to a filing officer under [Chapter 11]."                     Wis. Stat.

§ 11.27(1).         A registrant that intentionally violates § 11.27(1)

is subject to criminal penalty.             See Wis. Stat. § 11.61(1)(b).

        ¶604 To understand Wis. Stat. § 11.06(1)'s full reach on

constitutionally protected speech, the terms "contribution" and

"disbursement"         must   be   construed. 23     As   previously    noted,   a

"contribution" includes a "gift . . . of money . . . or anything


        23
       Wisconsin Stat. § 11.06(1) includes the term "obligation"
as well. Under Chapter 11, "incurred obligation" is defined as
"every   express   obligation  to   make   any  contribution  or
disbursement . . . for political purposes."           Wis. Stat.
§ 11.01(11).   Since that term relies on a promise to make a
"contribution"   or   "disbursement,"   it   is  unnecessary  to
separately analyze it.


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of value . . . made for political purposes."                                     Wis. Stat. §

11.01(6)(a)1.           The definition encompasses a "disbursement by a

contributor       to     procure    a    thing       of   value      or    service      for     the

benefit of a registrant who authorized the disbursement."                                      Wis.

Admin.    Code     §    GAB    1.20(1)(e).           A    disbursement          made    for     the

benefit of a candidate that is prearranged with the candidate or

the    candidate's        agent     is    treated         as   a     contribution        to    the

candidate or the campaign committee that must be reported as a

contribution received.             Wis. Stat. § 11.06(4)(d).

        ¶605 A     "disbursement"              includes        "A     purchase,         payment,

distribution,          loan,    advance,        deposit,        or    gift       of    money    or

anything of value . . . made for political purposes."                                          Wis.

Stat. § 11.01(7)(a)1.

        ¶606 A "contribution" and a "disbursement" must be made for

"political        purposes."            "Political         purposes"        is    defined        to

include     an     act    done     "for        the    purpose        of    influencing"          an

election.        Wis. Stat. § 11.01(16).
        ¶607 To        reiterate,        the     phrase        "for       the     purpose        of

influencing" an election has caused overbreadth and vagueness

problems in the context of campaign-finance regulation where it

serves to restrict independent expenditures.                               See Buckley, 424
U.S. at 77-80; MCFL, 479 U.S. at 249; Barland II, 751 F.3d at

833.      That is because restraints on independent expenditures

have the potential to encumber a substantial amount of protected

speech.     Buckley, 424 U.S. at 19.                      At first blush, then, Wis.

Stat.     § 11.06(1)'s         reporting        requirement          for    "disbursements"

raises the specter of unconstitutionality as far as independent
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spending is concerned.           But Wis. Stat. § 11.06(2) solves that

dilemma,     exempting       from      § 11.06(1)'s         reporting       requirement

independent disbursements that do not "expressly advocate the

election or defeat of a clearly identified candidate . . . ."

Thus,    with   respect   to    § 11.06(1)'s          regulation       of   independent

disbursements, there are no overbreadth and vagueness concerns

in the sense meant by Buckley.

        ¶608 That leaves the question of whether the phrase "for

the purpose of influencing" an election, incorporated in Wis.

Stat.     § 11.06(1)     through       the        definition    of     "contribution,"

raises constitutional concerns in the sense meant by Buckley.
Clearly, the answer is "no."

        ¶609 For   starters,        restrictions           on   contributions       pose

marginal as opposed to substantial burdens on speech.                           Id. at

20-21; see also Fed. Election Comm'n v. Colo. Republican Fed.

Campaign     Comm.,    533      U.S.     431,        440    (2001)     (Colorado    II)

("Restraints on expenditures generally curb more expressive and

associational activity than limits on contributions do.").                           The

main rationale is that restraints on contributions have little

direct impact on political communication, as they permit the

symbolic expression of support and leave the contributor free to

discuss     candidates    and       issues.          Buckley,    424    U.S.   at    21.
Arguably, that justification might not apply with equal force to

contributions that take the form of coordinated issue advocacy,

since such contributions do "communicate the underlying basis

for the [contributor's] support."                    Id.    But there is a simple

solution to that problem: stop coordinating.                     In the absence of
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coordination, the contributor is free to discuss candidates and

issues.

           ¶610 That       restrictions      on    contributions     impose    marginal

burdens on free speech is especially true where the restriction

at issue involves disclosure rather than a ceiling on the amount

of money a person can give to a campaign.                       See Citizens United

v. Fed. Election Comm'n, 558 U.S. 310, 369 (2010) ("The Court

has explained that disclosure is a less restrictive alternative

to    more          comprehensive     regulations      of    speech.").       Even   the

majority           is   forced   to    acknowledge     the    fact    that    disclosure

requirements pose less significant burdens on the exercise of

free speech. 24             So it is important to keep in mind that Wis.

Stat. § 11.06(1) requires disclosure of contributions made and

received.

           ¶611 In light of the more modest burdens that Wis. Stat.

§ 11.06(1) imposes on the free speech rights of those that make

and receive contributions, it is clear that less precision and

clarity is required with respect to what is regulated.                               See

Barland II, 751 F.3d at 837 ("The greater the burden on the
regulated            class,   the     more   acute    the    need    for   clarity   and

precision.").             That leads me to conclude that the phrase "for

the purpose of influencing" an election is not problematic where

it operates to regulate contributions under § 11.06(1).                         Indeed,

Buckley supports my position.                 See Buckley, 424 U.S. at 23 n.24

("The use of the phrase presents fewer problems in connection

           24
                Majority op., ¶48.


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with the definition of a contribution because of the limiting

connotation           created     by    the        general        understanding    of     what

constitutes a political contribution.").

        ¶612 It is common sense that a gift of money to a candidate

or a campaign committee constitutes an act made for the purpose

of influencing an election.                      It is also common sense that money

spent on services for the benefit of a candidate or a campaign

committee that authorized the spending is an act done for the

purpose         of    influencing       an        election.          Similarly,    where     a

candidate or a candidate's agent and a third party prearrange

the third party's spending for the benefit of the candidate,

common        sense    says     the    spending        is   done     for   the   purpose    of

influencing an election.                    The point is that the aforementioned

actions are connected with a candidate or his or her campaign.
        ¶613 Therefore, I conclude that Wis. Stat. § 11.06(1) is

neither overbroad nor vague in its requirement that candidate

committees report receipt of in-kind contributions in the form

of coordinated spending on issue advocacy.

        ¶614      The majority disagrees, although it does not address
Wis.     Stat.        § 11.06(1)       in    reaching       its     conclusion    that     the

special        prosecutor       fails       to    advance     a    valid     argument    under

Wisconsin        criminal       law.        Rather,     the       majority    dismisses    the

special        prosecutor's       primary         argument    by     analyzing    the    GAB's

definition of the term "in-kind contribution." 25                             That approach

is inconsistent with First Amendment overbreadth and vagueness

        25
             See majority op., ¶74.


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analysis.            See Williams, 553 U.S. at 293 ("The first step in

overbreadth analysis is to construe the challenged statute; it

is impossible to determine whether a statute reaches too far

without first knowing what the statute covers."); Madigan, 697

F.3d at 479 ("'In a facial challenge to the overbreadth and

vagueness of a law, a court's first task is to determine whether

the enactment reaches a substantial amount of constitutionally

protected           conduct.'")    (quoted       source      and   citation      omitted).

Wisconsin Admin. Code § GAB 1.20(1)(e), standing alone, does not

regulate protected speech——it is a definition.
          ¶615 Had the majority performed a context specific First

Amendment           overbreadth    and    vagueness         analysis,     it    presumably

would           have     concluded       that        Wis.     Stat.      § 11.06(1)       is

unconstitutionally overbroad and vague in the sense meant by

Buckley           because    it   contains       the    terms      "contribution"        and

"disbursement," thereby triggering "political purposes" and the

phrase "for the purpose of influencing" an election. 26                                But a

correct reading of Buckley and its progeny leads to a conclusion

that there are no constitutional infirmities with respect to

§ 11.06(1).
          ¶616 The       majority's       contrary          conclusion       ignores     the

legislature's intent in enacting Chapter 11.                          When searching for

a   limiting           construction    to    cure      an    overly     broad    or    vague

statute, "we examine the language of the statute as well as its

legislative            history    to     determine          whether    the      legislature

          26
               See majority op., ¶¶66-67.


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intended the statute to be applied in its newly-construed form."

State v. Janssen, 219 Wis. 2d 362, 380, 580 N.W.2d 260 (1998).

By     rejecting           the       special       prosecutor's      in-kind           contribution

argument and holding that contributions received need not be

reported under Wis. Stat. § 11.06(1) unless they involve express

advocacy or its functional equivalent, the majority disregards

the legislature's declaration of policy in creating Chapter 11:

ensuring that the public is fully informed of the true source of

financial support to candidates for public office.                                     Wis. Stat. §

11.001.
           ¶617 The majority's errors will have a detrimental effect

on the integrity of Wisconsin's electoral process, particularly

in the context of campaign contributions.                              Under the majority's

holding,            an   act     is     not    a    campaign       contribution          unless   it

involves express advocacy or its functional equivalent. 27                                        The

majority claims that its limiting construction is necessary to

place issue advocacy beyond Chapter 11's reach, 28 but at what

cost?           Surely gifts of money to a campaign trigger the same quid

pro    quo         corruption          concerns     that     justify       the    regulation      of

communications                 for      express          advocacy     or     its         functional

equivalent,              and     yet     gifts      of     money    would        not     constitute

contributions under the majority's holding.                                Since Buckley, the
United States Supreme Court has consistently upheld restraints

on such campaign contributions.                           See O'Keefe, 769 F.3d at 941.

           27
                Majority op., ¶67.
           28
                Majority op., ¶¶66-67.


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Thus, I question the propriety of the majority's decision to

tear down those restraints.

        ¶618 In      sum,    I    conclude    that      Chapter         11    supports         the

special         prosecutor's       in-kind      contribution            argument.              The

majority's          contrary      determination         is        the    product          of     a

fundamental misunderstanding and misapplication of Buckley and

its     progeny,        including    Barland      II,    as       well       as     the    First

Amendment         overbreadth       and   vagueness          principles           that     those

decisions embody.
             D. The Question of Whether the First Amendment Prohibits

 Regulation of Coordinated Issue Advocacy Should Not Prevent the

                  John Doe Investigation From Moving Forward.

        ¶619 Having concluded that the special prosecutor makes a

valid        argument     under     Wisconsin     criminal         law,       the     question

remains        whether      the   First   Amendment          to    the       United       States

Constitution            prohibits     regulation         of        coordinated             issue

advocacy. 29         This question should be addressed by the United

States Supreme Court because it has sparked "lively debate among

judges and academic analysts."               Id. at 942.




        29
       Speech that is protected under the First Amendment is not
necessarily immune to governmental regulation.     See Williams-
Yulee, 135 S. Ct. at 1667 ("[N]obody argues that solicitation of
campaign funds by judicial candidates is a category of
unprotected speech. As explained above, the First Amendment
fully applies to Yulee's speech. The question is instead whether
that Amendment permits the particular regulation of speech at
issue here.").   This point appears lost on the majority.   See,
e.g., majority op., ¶¶66-67.


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           ¶620 In    O'Keefe,       the    plaintiffs        filed    suit    seeking   an

injunction           that    would       halt    this      John       Doe     investigation

permanently, regardless of whether the special prosecutor could

demonstrate a violation of Wisconsin law.                              Id. at 938.       In

addition, the complaint sought damages against five defendants,

including        the    special         prosecutor      and    the     Milwaukee     County

District Attorney.                Id.    The United States District Court for

the Eastern District of Wisconsin "held that the First Amendment

to    the     Constitution         (as     applied    to   the    states       through   the

Fourteenth) forbids not only penalties for coordination between

political committees and groups that engage in issue advocacy,

but also any attempt by the state to learn just what kind of

coordination has occurred."                     Id.     As a result, the district
court        rejected       the    defendants'        argument    that      they    enjoyed

qualified immunity.               Id. at 939.

           ¶621 In reversing the district court's order that rejected

the defendants' qualified immunity defense, the Seventh Circuit,

in an opinion authored by Judge Easterbrook, reasoned:

           No opinion issued by the Supreme Court, or by any
           court of appeals, establishes ("clearly" or otherwise)
           that   the  First   Amendment  forbids   regulation of
           coordination between campaign committees and issue-
           advocacy groups—let alone that the First Amendment
           forbids even an inquiry into that topic. The district
           court broke new ground. Its views may be vindicated,
           but until that day public officials enjoy the benefit
           of qualified immunity from liability in damages.
Id. at 942.

           ¶622 It is important to note that the United States Supreme

Court has endorsed FECA's treatment of coordinated expenditures

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as    contributions.           As     previously         mentioned,         in    Buckley,       the

Supreme Court upheld FECA's limitations on individual and group

political            contributions          notwithstanding                the         fact      that

"contribution" was defined to include coordinated expenditures.

Buckley, 424 U.S. at 23-59.                       It also upheld FECA's disclosure

requirements          on     contributions        so     defined.           Id.    at    78.      In

Colorado       II,     the    Supreme       Court       upheld      FECA's       limitations       on

coordinated           expenditures           between          political           parties         and

candidates.           Colorado II, 533 U.S. at 465.                       Also, in McConnell,
it    upheld        BCRA's    treatment          of    coordinated         disbursements         for

electioneering communications as contributions, even though the

term "electioneering communication" was defined to include issue

advocacy.          McConnell, 540 U.S. at 203.

           ¶623 The    basic     rationale            underlying      the    Supreme          Court's

endorsement           of      such      restrictions             is        that        coordinated

expenditures "are as useful to the candidate as cash . . . ."

Colorado       II,     533     U.S.    at    446.         Thus,       they       are    "disguised

contributions"          that     "might      be       given   'as     a    quid    pro    quo     for

improper           commitments       from    the        candidate'          (in    contrast       to

independent expenditures, which are poor sources of leverage for

a spender because they might be duplicative or counterproductive

from a candidate's point of view."                            Id. (citing Buckley, 424
U.S. at 47).           Since the prevention of quid pro quo corruption or

its appearance remains a permissible goal justifying regulations

on political speech, McCutcheon v. Fed. Election Comm'n, 134 S.

Ct.        1434,     1441     (2014),       it    is     certainly          likely       that    the


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regulation of coordinated issue advocacy will withstand First

Amendment scrutiny.

        ¶624 Moreover,      as    noted        previously,           the      Supreme        Court

recently     determined       that       the      First        Amendment       permits        the

regulation of judicial candidates' speech.                           Williams-Yulee, 135

S. Ct. at 1662.         The Supreme Court reasoned that states have a

compelling     interest     in    preserving          public      confidence        in       their

judges by preventing quid pro quo corruption or its appearance.

Id. at 1667-68.         Thus, an argument can be made that Williams-
Yulee    bolsters     the   special         prosecutor's          contention        that      the

First    Amendment     permits        the    regulation         of      coordinated          issue

advocacy,     since    that      is    an      area       where      corruption         or     its

appearance is a significant concern as well.

        ¶625 Because the special prosecutor makes a valid argument

under    Wisconsin     criminal       law,     and       because     the      United     States

Supreme     Court     has   not       concluded       that        the      First    Amendment

prohibits the regulation of coordinated issue advocacy, the John

Doe investigation should not be terminated.                              Not only do the

majority's errors serve to end a valid John Doe investigation,

they work to limit the reach of Wisconsin's campaign-finance law

in a manner that will undermine the integrity of our electoral

process.       I    disagree      with      these     consequences            and   therefore

respectfully dissent in Two Unnamed Petitioners.
           II. SCHMITZ v. PETERSON AND THREE UNNAMED PETITIONERS

        ¶626 The    questions     presented          in    Schmitz       v.    Peterson        and

Three    Unnamed    Petitioners        boil       down    to    whether       the   John       Doe

judge violated a plain legal duty in either initiating these
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proceedings or quashing various subpoenas and search warrants

related to the investigation.                        Both the special prosecutor in

Schmitz v. Peterson and the Unnamed Movants in Three Unnamed

Petitioners          carry      a    heavy       burden      in     this    regard,      as     a

supervisory writ is an "extraordinary and drastic remedy that is

to be issued only upon some grievous exigency."                                 State ex. rel.

Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶17, 271 Wis.

2d 633, 681 N.W.2d 110.                  I agree with the majority that neither

the special prosecutor nor the Unnamed Movants have established

the prerequisites for a writ to issue. 30
        ¶627 However,          I     wish       to     clarify     that     the     majority's

decision        in    Schmitz       v.    Peterson      should     not     be    construed     as

holding that the evidence gathered in the John Doe proceedings

fails to provide a reasonable belief that Wisconsin's campaign-

finance law was violated.                      The majority's decision to deny the

writ     rests       solely     on       the    fact    that      Reserve       Judge   Gregory

Peterson made a discretionary decision to quash the subpoenas

and    search        warrants       at    issue.        By   the    very    nature      of    the

supervisory writ standard, the majority's conclusion takes no

position on the propriety of Reserve Judge Peterson's decision

in this regard.
                                           III. CONCLUSION

        ¶628 By erroneously concluding that campaign committees do

not have a duty under Wisconsin's campaign-finance law to report

receipt        of    in-kind    contributions           in   the    form    of     coordinated

        30
             See majority op., ¶¶78, 101.


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spending on issue advocacy, the majority rejects the special

prosecutor's           primary        argument         regarding         criminal       activity.

Although the special prosecutor advances a secondary argument of

criminal activity concerning coordinated express advocacy, the

majority       inexplicably           ignores        that    argument.          These    mistakes

lead the majority to terminate a valid John Doe investigation in

an unprecedented fashion.

           ¶629 With        respect      to     the    special        prosecutor's        primary

argument,        which       is    the     focus       of     my    writing,     the     majority

misapplies the related doctrines of overbreadth and vagueness.

Unlike the majority, I conclude that Wis. Stat. § 11.06(1) is

neither overbroad nor vague in its requirement that campaign

committees           report       receipt       of     in-kind       contributions.            The

majority also makes the troubling pronouncement that an act is

not a regulable disbursement or contribution under Ch. 11 unless
it involves express advocacy or its functional equivalent.                                     This

is    an      erosion       of    Ch.    11     that     will       profoundly        affect   the

integrity of our electoral process.                              I cannot agree with this

result.
           ¶630 It     is    also       imperative          to    note   that    the     majority

conveniently           overlooks          the     special          prosecutor's         secondary

argument of criminal activity in its effort to end this John Doe

investigation.              Specifically, the special prosecutor seeks to

investigate            whether          particular           express       advocacy        groups

coordinated           their       spending           with        candidates      or     candidate

committees in violation of their sworn statement of independence

under Wis. Stat. § 11.06(7).                     Despite the fact that the special
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prosecutor            utilizes        a     significant            portion       of    his     brief       to

present      evidence            of   such      illegal         coordination,           the     majority

determines, without explanation, that the John Doe investigation

is over.

          ¶631 Has the majority abused its power in reaching this

conclusion?            The majority's rush to terminate this investigation

is reminiscent of the action taken by the United States District

Court      for     the      Eastern         District          of    Wisconsin         in     O'Keefe      v.
Schmitz,         19    F.    Supp.        3d    at       875,      an    action       that     was     both

criticized and reversed by the United States Court of Appeals

for the Seventh Circuit in O'Keefe, 769 F.3d at 942.                                           Although

the focus of my writing lies elsewhere, the majority's error in

this regard cannot be overlooked.

          ¶632 For these reasons, I respectfully dissent in State ex.

rel.       Two        Unnamed         Petitioners             v.        Peterson       (Two      Unnamed

Petitioners).

          ¶633 However, because I agree that the special prosecutor

and    certain         Unnamed        Movants        have     failed       to    meet      their     heavy

burden of establishing that the John Doe judge violated a plain

legal duty in either initiating these proceedings or quashing

various          subpoenas            and      search         warrants           related        to        the

investigation, I respectfully concur with the majority in State
ex. rel. Schmitz v. Peterson (Schmitz v. Peterson) and State ex.

rel.       Three       Unnamed        Petitioners             v.    Peterson          (Three     Unnamed

Petitioners).               In    concurring             in   Schmitz       v.    Peterson,          it   is

significant for me that when an appellate court decides to issue

a   supervisory             writ,      it      is    a    rare,         discretionary          decision.
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Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶33-34.                        Here, the

John Doe judge also made a discretionary decision in deciding a

complex legal issue.             Deference should be given where there is

such discretion.

           ¶634 For   the     foregoing     reasons,   I   concur     in    part   and

dissent in part.              To be clear, I agree with the majority's

decision to deny the petition for supervisory writ and affirm

Reserve Judge Gregory Peterson's order in Schmitz v. Peterson.
I also agree with the majority's decision to deny the petition

for supervisory writ and affirm the court of appeals' decision

in     Three     Unnamed      Petitioners.        However,      contrary     to    the

majority,        I    would    deny   the    relief    sought    in   Two     Unnamed

Petitioners and allow the John Doe investigation to continue.




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