Summary
The Wisconsin Supreme Court denied a motion for reconsideration and a motion to stay filed by special prosecutor Francis D. Schmitz in connection with the John Doe II investigations. The court held that Schmitz’s appointment as special prosecutor was invalid and terminated his authority prospectively, subject to limited tasks concerning the investigation’s conclusion. The court also clarified the mandate concerning the return and destruction of documents and electronic data and held that an argument concerning express-advocacy coordination had been forfeited.
Topics
Practice areas
Questions Presented
- Whether Attorney Schmitz retained authority to act as the John Doe II special prosecutor after the court determined that his appointment was invalid.
- Whether an invalid special-prosecutor appointment rendered all prior acts of the special prosecutor void ab initio.
- Whether the motion for reconsideration should be granted based on an argument that the investigation could continue concerning coordination involving express advocacy.
- Whether a stay of the mandate was warranted pending possible review by the United States Supreme Court.
- How the mandate concerning return, preservation, submission, and disposition of documents and electronic data should be clarified and modified.
Holdings
- Because Attorney Schmitz's appointment as special prosecutor was invalid, his authority to act as the John Doe II special prosecutor terminated upon issuance of this opinion, except for the specifically assigned tasks necessary to conclude and preserve materials from the investigation.
- An invalid appointment does not automatically render all prior actions of the special prosecutor legal nullities; the authority is prospectively voidable, not void ab initio.
- The motion for reconsideration did not establish grounds for reconsidering the prior decision, and the argument that the subpoenas and search warrants were valid because they sought evidence of coordination involving express advocacy was forfeited.
- The motion for a stay was denied because Schmitz could not demonstrate irreparable injury.
- The prior mandate was modified and clarified to require return of tangible property, collection and indexing of investigative documents and data, submission of those materials under seal to the clerk of the Wisconsin Supreme Court, affidavits confirming compliance, and notice to persons and organizations whose materials were obtained.
Key quotations
“We conclude that the proper answer is that the authority of someone who is appointed as a special prosecutor ends at the point in time when a court makes a legal ruling that the appointment was invalid and orders as a matter of law that the individual's authority is terminated.” (¶11)
“Rather than voiding an appointed individual's authority to act from the time of an invalid appointment, we hold that the individual's authority to act as a special prosecutor is prospectively voidable by a court.” (¶12)
“The motion for reconsideration is denied, the motion for stay is denied, and the mandate is clarified, as described in the opinion.” (¶39)
Factual background
Francis D. Schmitz had been appointed special prosecutor for John Doe II proceedings and investigations in five Wisconsin counties. The court determined that his appointment did not satisfy the statutory prerequisites governing special prosecutors, but concluded that his prior acts were not void ab initio because courts, law enforcement, and others had relied on the appointment orders. The court therefore terminated his authority prospectively while requiring him to collect, index, submit under seal, and provide notice concerning documents and electronic data gathered in the John Doe I and John Doe II investigations.
Procedural history
The court previously affirmed the court of appeals' denial of a supervisory writ concerning the John Doe II investigation. Special Prosecutor Francis D. Schmitz moved for reconsideration and sought a stay of the mandate while the prosecution considered seeking review in the United States Supreme Court. The Wisconsin Supreme Court denied both motions, clarified and modified the mandate concerning documents and electronic data, and ordered Schmitz to cease acting as special prosecutor except for specified remedial tasks.
Remand instructions
No remand was ordered. The court modified and clarified its prior mandate and ordered Schmitz to cease acting as special prosecutor except for specified tasks, including returning tangible property within 30 days, collecting and indexing investigative materials, submitting them under seal, filing compliance affidavits, and notifying affected persons and organizations.