recognizing the amendmentSummary of this case from John K. Maciver Inst. for Pub. Policy, Inc. v. Schmitz
No. State 78.
Submitted under sec. (Rule) 251.54 September 10, 1974. —
Decided October 1, 1974.
PROHIBITION to the circuit court for Milwaukee county: CHRIST T. SERAPHIM, Circuit Judge. Writ granted.
The cause was submitted for the petitioner on the briefs of James P. Brody, Robert A. Christensen, Thomas L. Shriner, Jr., and Foley Lardner, all of Milwaukee, and for the respondent on the brief of Robert W. Warren, attorney general, and James H. McDermott, assistant attorney general.
This case raises two questions: (1) Whether an order by a judge compelling a witness to testify or produce records, thus granting immunity from prosecution, must be given in open court when the witness has refused to do so in a John Doe proceeding on the ground of self incrimination; and (2) whether the petitioner Mary Zahn, as a member of the public, has standing to petition this court for a writ of prohibition to prohibit secret immunity hearings before Hon. CHRIST T. SERAPHIM sitting as a judge of the circuit court for Milwaukee county.
On July 1, 1974, petitioners, Newspapers, Inc., and Mary Zahn, a reporter for The Milwaukee Sentinel filed a petition in an original action in this court for a writ of prohibition and injunction to be directed against the circuit court for Milwaukee county, the Hon. CHRIST T. SERAPHIM, presiding, prohibiting the holding of secret immunity hearings arising out of a John Doe investigation being conducted by Circuit Judge SERAPHIM. The affidavit by Mary Zahn alleged that on June 27, 1974, in response to an inquiry, she was advised by Judge SERAPHIM that such hearings on immunity would be conducted in secret. She also alleges that later the same day she believes such a secret hearing was conducted in the chambers of Judge SERAPHIM. This court issued an alternative writ and injunction prohibiting such secret immunity hearings on July 1, 1974, returnable July 9, 1974, and ordering said circuit court to show cause why it should not be absolutely restrained from conducting immunity hearings under sec. 972.08, Stats., in secret and preventing the public from attending said hearings.
"972.08 Incriminating testimony compelled; immunity. (1) Whenever any person refuses to testify or to produce books, papers or documents when required to do so before any grand jury, in a proceeding under s. 968.26 or at a preliminary examination, criminal hearing or trial for the reason that the testimony or evidence required of him may tend to incriminate him or subject him to a forfeiture or penalty, he may nevertheless be compelled to testify or produce such evidence by order of the court on motion of the district attorney. No person who testifies or produces evidence in obedience to the command of the court in such case shall be liable to any forfeiture or penalty for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, but no person shall be exempted from prosecution and punishment for perjury or false swearing committed in so testifying.
"(2) Whenever a witness attending in any court trial or appearing before any grand jury or John Doe investigation fails or refuses without just cause to comply with an order of the court under this section to give testimony in response to a question or with respect to any matter, the court, upon such failure or refusal, or when such failure or refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or until such trial, grand jury term or John Doe investigation is concluded but in no case exceeding one year. No person confined under this section shall be admitted to bail pending the determination of an appeal taken by him from the order of his confinement."
On July 8, 1974, the circuit court by the attorney general for the state of Wisconsin filed a return to the writ and among other things stated that Judge SERAPHIM was conducting a John Doe proceeding, that any immunity hearings in such proceeding should be in secret and Newspapers, Inc., and Zahn had no standing to bring and maintain this action. There was no denial by affidavit or otherwise of the factual allegations in the Zahn affidavit set forth above. This matter was heard by this court on July 9, 1974. After hearing arguments of counsel, this court ordered that its order of July 1, 1974, be continued until the further order of this court. The court ordered printed briefs and determined the matter would be decided on briefs without further oral arguments.
We conclude that pursuant to sec. 256.14, Stats., an order by a judge to compel a witness in a John Doe proceeding to testify or produce books, papers or documents, after refusal to testify or produce such evidence on the ground of self-incrimination, must be done in open court. We also conclude that Mary Zahn has standing under sec. 256.14 to raise the issue as a citizen and member of the public.
"256.14 Sittings, public. The sittings of every court shall be public and every citizen may freely attend the same, except when otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may, in his discretion, exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses."
Three times in the past twelve years this court has had occasion to pass on the nature of immunity hearings in John Doe proceedings. State ex rel. Jackson v. Coffey (1963),18 Wis.2d 529, 118 N.W.2d 939; State ex rel. Niedziejko v. Coffey (1964), 22 Wis.2d 392, 126 N.W.2d 96, 127 N.W.2d 14; State ex rel. Rizzo v. County Court (1966), 32 Wis.2d 642, 146 N.W.2d 499, 148 N.W.2d 86. In Jackson, this court held the order to testify given to a witness in a John Doe proceeding who has refused to testify on the ground his testimony may tend to incriminate him or subject him to penalty or forfeiture must be given by order of a court on motion of the district attorney, rather than by a judge sitting as a magistrate, citing the immunity statute, sec. 325.34, now numbered 972.08, amended in 1969 to specifically include the John Doe statute, sec. 968.26.
"968.26 John Doe proceeding. If a person complains to a judge that he has reason to believe that a crime has been committed within his jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed. The extent to which the judge may proceed in such examination is within his discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but such counsel shall not be allowed to examine his client, cross-examine other witnesses or argue before the judge. If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint shall be reduced to writing and signed and verified; and thereupon a warrant shall issue for the arrest of the accused. Subject to s. 971.23, the record of such 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."
The John Doe statute was amended in 1969 to require that the proceedings be conducted by a judge, meaning a judge of a court of record, rather than a magistrate. In the Jackson Case, the John Doe proceeding was actually presided over by a judge of a court of record. This court, however, drew a distinction between a judge and a court, pointing out that certain procedural formalities are woven into action by a court, "and these tend to insure the considered and responsible exercise of an important power. . . ." Jackson at 536. The court held that the sitting of the court for the purpose of compelling testimony need not be public but only to the extent permitted by sec. 256.14, Stats., which permits exclusion of minors in scandalous or obscene matters. The court pointed out that in a court the judge is attended by court officials, the parties and counsel, while the court is in session, that minutes are to be kept by the clerk and that final orders are to be recorded. This is in accord with the generally recognized fact that a judge is only part of a court ( see 20 Am. Jur. 2d, Courts, p. 388, sec. 3, and cases there cited). Thus in Jackson the court recognized immunity hearings are governed by sec. 256.14.
In State ex rel. Niedziejko v. Coffey (1964), 22 Wis.2d 392, 400, 126 N.W.2d 96, 127 N.W.2d 14, this court said with respect to the granting of immunity in John Doe proceedings, "Hearings to grant immunity must be public and in open court except as provided in sec. 256.14," citing Jackson.
In State ex rel. Rizzo v. County Court (1966), 32 Wis.2d 642, 648, 146 N.W.2d 499, 148 N.W.2d 86, this court held that a witness could only receive immunity if compelled to testify by order of the court on motion of the district attorney and pointed out that an order of the court in such case under the immunity statute means "an order issued from an open court sitting as such."
The legislature has not seen fit to amend any of these cited statutes to provide that immunity hearings in a John Doe proceeding may be secret. In view of this court's repeated interpretation of the cited statutes, it is clear the public policy expressed in the cited statutes is, that though secrecy is desirable in a John Doe proceeding investigating crime, secrecy is not permissible when one of the witnesses may be granted immunity from prosecution entirely because of a refusal to testify on the ground of self-incrimination. It is clear the policy is that the public ought to know who is given immunity from prosecution.
The threat to the reputations of innocent persons in an immunity hearing need not occur. Newspapers, Inc., and Zahn point out in their brief that the court can order the procedure "to omit reference to names and other identifying characteristics while in the immunity proceeding. It is, of course, the witness, not third-parties' involvement that the public is concerned with in an immunity proceeding." We agree.
In 1969, sec. 972.08, Stats., was amended to require that John Doe proceedings be conducted before a judge of a court of record rather than a magistrate. With this change, the judge hearing secret John Doe testimony is the same judge before whom the district attorney would make the motion to compel testimony or production of records.
The questions would be asked in the John Doe, the refusal to answer by the witness claiming the constitutional privilege against self-incrimination would take place in the John Doe; the motion of the district attorney to compel the witness to testify would be made in the John Doe hearing. The ruling on the district attorney's motion must be made in open court under sec. 256.14, Stats.
To preserve the integrity of the John Doe hearing, the details of the district attorney's motion as to the questions the witness should be compelled to answer should not be recited by the judge in open court. The judge need only state that the district attorney made a motion to compel testimony (or production of records) by the named witness and that the motion is granted or denied. The judge would then order the courtroom cleared and proceed with the John Doe.
Sec. 256.14, Stats., says, "The sittings of every court shall be public and every citizen may freely attend the same. . . ." We have no trouble construing those words; their meaning is clear. It means any citizen has the right to attend immunity hearings arising out of a John Doe proceeding. Where such right of attendance is denied, any citizen, including the petitioner Zahn in this case, has a right to bring an action to enforce the right which the statute so clearly gives.
Counsel for circuit court urged that we should interpret sec. 256.14, Stats., in accordance with the majority opinion in Matter of United Press Assos. v. Valente (1954), 308 N.Y. 71, 123 N.E.2d 777, construing a New York public-trial statute. The New York statute has many more exemptions than sec. 256.14. In addition, we have repeatedly construed our own statute and the law is settled in this jurisdiction.
Counsel for the circuit court urged that the change in the John Doe statute in 1969 substituting the word "judge" for "magistrate" means that a judge can hold immunity hearings secretly in the John Doe hearing itself without holding an open hearing as described in Jackson, Niedziejko, and Rizzo. In support of his position, counsel for the circuit court directs our attention to the Note in 1969 contained in ch. 255 at the time of the renumbering of the immunity statute from sec. 885.34 to sec. 972.08. We do not agree. In each of those cases the judge conducting the John Doe was a judge of a court of record and it was held that immunity hearings must be conducted in open court.
"NOTE: This is present s. 885.34 with language changes to conform to the terminology of this bill. It should be further noted that the cumbersome procedure for granting immunity at John Doe proceedings or preliminary examinations mandated by State ex rel. Jackson v. Coffey, 18 Wis.2d 529, will no longer be necessary since these proceedings now will be conducted by judges who will have authority to grant immunity in those proceedings. The convening of a separate proceeding for such purpose will no longer be necessary."
By the Court. — Writ of prohibition absolute granted; the circuit court can further proceed in the action in a manner not inconsistent with the opinion.