Analysis by the Legislative Reference Bureau
Under current law, under a John Doe proceeding, a person who believes a crime
has been committed may complain to a judge. Then the judge must ascertain if a
crime has been committed. The scope of examination is within the judge's discretion.
If the judge determines that a crime has probably been committed, she or he will
issue a warrant for the arrest of the accused.
Under this bill, if a district attorney who believes a crime has been committed
complains to a judge, the judge must convene a John Doe proceeding as described
above except that the judge does not issue a warrant for the arrest of the accused
because the district attorney has that ability as under current law. If a person other
than a district attorney who believes a crime has been committed complains to a
judge, the judge must refer the complaint to the district attorney. If the district
attorney refuses to issue a charge, the judge must convene a proceeding if the judge
determines that the proceeding is necessary to determine if a crime has been
committed. The judge has discretion over the scope of the examination, and the judge
may issue a criminal complaint if the judge finds sufficient evidence to warrant

prosecution. In determining whether to convene a proceeding, this bill specifies that
a judge may consider law enforcement investigative reports, records and case files
of the district attorney, and any other written records that the judge finds relevant.
In determining whether to issue a complaint, this bill specifies that the judge must
consider law enforcement investigative reports, records and case files of the district
attorney, and any other written records that the judge finds relevant.
This bill also adds statutory cross-references to three John Doe references to
aid individuals in finding the John Doe statute.
Under current law, if an action is brought against a state officer or employee for
acts committed while carrying out his or her state duties, and the court finds that the
defendant was acting within the scope of his or her employment, the state pays the
damages and costs, and provides legal representation or pays the defendant's
attorney fees and litigation costs.
This bill provides these protections and benefits to a state officer or employee
who is the subject of a John Doe proceeding if the charge is for an act done within the
person's official capacity, within the scope of the person's employment, and the
attorney general determined that the person was acting in good faith. In addition,
these protections and benefits apply regardless of the attorney general's
determination of good faith if the person is found not guilty in a criminal action
commenced as the result of the John Doe proceeding. The bill provides that the
protections and benefits provided include the payment of attorney fees, costs, and
fines arising out of the criminal action.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB51, s. 1 1Section 1. 895.46 (9) of the statutes is created to read:
SB51,3,22 895.46 (9) The protection afforded by this section applies to a proceeding under
3s. 968.26 in which a state officer or state employee is a subject to charges for acting
4within his or her official capacity, if that officer or employee is found to be acting
5within the scope of his or her employment, and if the attorney general determines
6that the state officer or state employee acted in good faith. Regardless of the
7determination made by the attorney general, the protection afforded by this section
8applies if the state officer or employee is not found guilty in the criminal action
9commenced as a result of the proceeding under s. 968.26. This protection includes

1the payment of reasonable attorney fees in defending the criminal action and costs
2or fines arising out of the criminal action.
SB51, s. 2 3Section 2. 911.01 (4) (b) of the statutes is amended to read:
SB51,3,54 911.01 (4) (b) Grand jury; John Doe proceedings. Proceedings before grand
5juries or a John Doe proceeding under s. 968.26.
SB51, s. 3 6Section 3. 968.26 of the statutes is renumbered 968.26 (2) (a) and amended
7to read:
SB51,3,108 968.26 (2) (a) If a person who is not a district attorney complains to a judge that
9he or she has reason to believe that a crime has been committed within his or her the
10judge's
jurisdiction, the judge shall refer the complaint to the district attorney.
SB51,3,17 11(c) In a proceeding convened under par. (b), the judge shall subpoena and
12examine the complainant under oath the complainant and any witnesses produced
13by him or her and may, and at the request of the district attorney shall, subpoena and
14examine other witnesses
that the judge determines to be necessary and appropriate
15to ascertain whether a crime has been committed and by whom committed. The
16judge shall consider the credibility of testimony in support of and opposed to the
17person's complaint.
SB51,4,7 18(3) The extent to which the judge may proceed in the an examination under sub.
19(1) or (2)
is within the judge's discretion. The examination may be adjourned and may
20be secret. Any witness examined under this section may have counsel present at the
21examination but the counsel shall not be allowed to examine his or her client,
22cross-examine other witnesses, or argue before the judge. If it appears probable from
23the testimony given that a crime has been committed and who committed it, the
24complaint may be reduced to writing and signed and verified; and thereupon a
25warrant shall issue for the arrest of the accused.
Subject to s. 971.23, if the

1proceeding is secret, the record of the proceeding and the testimony taken shall not
2be open to inspection by anyone except the district attorney unless it is used by the
3prosecution at the preliminary hearing or the trial of the accused and then only to
4the extent that it is so used. A court, on the motion of a district attorney, may compel
5a person to testify or produce evidence under s. 972.08 (1). The person is immune
6from prosecution as provided in s. 972.08 (1), subject to the restrictions under s.
7972.085.
SB51, s. 4 8Section 4. 968.26 (1) of the statutes is created to read:
SB51,4,129 968.26 (1) If a district attorney requests a judge to convene a proceeding to
10determine whether a crime has been committed in the court's jurisdiction, the judge
11shall convene a proceeding described under sub. (3) and shall subpoena and examine
12any witnesses the district attorney identifies.
SB51, s. 5 13Section 5. 968.26 (2) (b) and (d) of the statutes are created to read:
SB51,4,2414 968.26 (2) (b) If a district attorney receives a referral under par. (a), the district
15attorney shall, within 90 days of receiving the referral, issue charges or refuse to
16issue charges. If the district attorney refuses to issue charges, the district attorney
17shall forward to the judge in whose jurisdiction the crime has allegedly been
18committed all law enforcement investigative reports on the matter, his or her records
19and case files on the matter, and a written explanation why he or she refused to issue
20charges. The judge shall convene a proceeding as described under sub. (3) if he or
21she determines that a proceeding is necessary to determine if a crime has been
22committed. When determining if a proceeding is necessary, the judge may consider
23the law enforcement investigative reports, the records and case files of the district
24attorney, and any other written records that the judge finds relevant.
SB51,5,5
1(d) In a proceeding convened under par. (b), the judge may issue a criminal
2complaint if the judge finds sufficient credible evidence to warrant a prosecution of
3the complaint. The judge shall consider, in addition to any testimony under par. (c),
4the law enforcement investigative reports, the records and case files of the district
5attorney, and any other written reports that the judge finds relevant.
SB51, s. 6 6Section 6. 972.08 (2) of the statutes is amended to read:
SB51,5,167 972.08 (2) Whenever a witness attending in any court trial or appearing before
8any grand jury or John Doe investigation under s. 968.26 fails or refuses without just
9cause to comply with an order of the court under this section to give testimony in
10response to a question or with respect to any matter, the court, upon such failure or
11refusal, or when such failure or refusal is duly brought to its attention, may
12summarily order the witness's confinement at a suitable place until such time as the
13witness is willing to give such testimony or until such trial, grand jury term, or John
14Doe investigation under s. 968.26 is concluded but in no case exceeding one year. No
15person confined under this section shall be admitted to bail pending the
16determination of an appeal taken by the person from the order of confinement.
SB51, s. 7 17Section 7. 978.045 (1r) (intro.) of the statutes is amended to read:
SB51,6,218 978.045 (1r) (intro.) Any judge of a court of record, by an order entered in the
19record stating the cause for it, may appoint an attorney as a special prosecutor to
20perform, for the time being, or for the trial of the accused person, the duties of the
21district attorney. An attorney appointed under this subsection shall have all of the
22powers of the district attorney. The judge may appoint an attorney as a special
23prosecutor at the request of a district attorney to assist the district attorney in the
24prosecution of persons charged with a crime, in grand jury proceedings or John Doe
25proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The

1judge may appoint an attorney as a special prosecutor if any of the following
2conditions exists:
SB51, s. 8 3Section 8. Initial applicability.
SB51,6,54 (1) This act first applies to complaints made on the effective date of this
5subsection.
SB51,6,66 (End)
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