LRBs0044/1
CMH&PJH:kjf:md
2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2009 ASSEMBLY BILL 78
April 23, 2009 - Offered by Representative Kessler.
AB78-ASA1,1,3 1An Act to renumber and amend 968.26; to amend 753.075 (1) (a), 911.01 (4)
2(b), 972.08 (2) and 978.045 (1r) (intro.); and to create 753.075 (2m) and 968.26
3(2) of the statutes; relating to: John Doe proceedings.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB78-ASA1, s. 1 4Section 1. 753.075 (1) (a) of the statutes is amended to read:
AB78-ASA1,1,95 753.075 (1) (a) "Permanent reserve judge" means a judge appointed by the chief
6justice to serve an assignment. Except as provided in sub. (2m), an appointment
7shall be
for a period of 6 months and permanent reserve judges may be reappointed
8for subsequent periods
. Permanent reserve judges shall perform the same duties as
9other judges and may be reappointed for subsequent periods.
AB78-ASA1, s. 2 10Section 2. 753.075 (2m) of the statutes is created to read:
AB78-ASA1,2,211 753.075 (2m) Reserve judges to review prison inmate complaints. The chief
12justice of the supreme court shall assign a permanent reserve judge to hear

1complaints under s. 968.26 (2) for not more than one 12-month period to be
2compensated as described under sub. (3) (b).
AB78-ASA1, s. 3 3Section 3. 911.01 (4) (b) of the statutes is amended to read:
AB78-ASA1,2,54 911.01 (4) (b) Grand jury; John Doe proceedings. Proceedings before grand
5juries or a John Doe proceeding under s. 968.26.
AB78-ASA1, s. 4 6Section 4. 968.26 of the statutes is renumbered 968.26 (1) and amended to
7read:
AB78-ASA1,3,28 968.26 (1) If Except as provided in sub. (2), if a person complains to a judge that
9he or she has reason to believe that a crime has been committed within his or her
10jurisdiction, the judge shall examine the complainant under oath and any witnesses
11produced by him or her and may, and at the request of the district attorney shall,
12subpoena and examine other witnesses to ascertain whether a crime has been
13committed and by whom committed. The extent to which the judge may proceed in
14the examination is within the judge's discretion. The examination may be adjourned
15and may be secret. Any witness examined under this section may have counsel
16present at the examination but the counsel shall not be allowed to examine his or her
17client, cross-examine other witnesses or argue before the judge. If it appears
18probable from the testimony given that a crime has been committed and who
19committed it, the complaint may be reduced to writing and signed and verified; and
20thereupon a warrant shall issue be issued for the arrest of the accused. Subject to
21s. 971.23, if the proceeding is secret, the record of the proceeding and the testimony
22taken shall not be open to inspection by anyone except the district attorney unless
23it is used by the prosecution at the preliminary hearing or the trial of the accused and
24then only to the extent that it is so used. A court, on the motion of a district attorney,
25may compel a person to testify or produce evidence under s. 972.08 (1). The person

1is immune from prosecution as provided in s. 972.08 (1), subject to the restrictions
2under s. 972.085.
AB78-ASA1, s. 5 3Section 5. 968.26 (2) of the statutes is created to read:
AB78-ASA1,3,94 968.26 (2) (a) Unless the complainant is a district attorney, an individual who
5has reason to believe that a crime has been committed, or that a rule promulgated
6by the department or the department of health services has been violated, may
7complain only to a reserve judge assigned under s. 753.075 (2m) and only the process
8described under this subsection applies, if any of the following circumstances
9applies:
AB78-ASA1,3,1110 1. The complaining individual was a prisoner, as defined in s. 46.011 (2), or was
11detained or committed under ch. 980, when the alleged crime or violation occurred.
AB78-ASA1,3,1812 2. The complaining individual has reason to believe that the individual who
13allegedly committed the crime or violated the rule is an employee of the department,
14an employee of the department of health and family services, or a correctional officer;
15has contact in his or her official duties with prisoners, as defined in s. 46.011 (2) or
16with individuals detained or committed under ch. 980; and was working in his or her
17official duty at the time that the crime is alleged to have been committed or the rule
18is alleged to have been violated.
AB78-ASA1,3,2219 (b) If an individual complains under par. (a) to a reserve judge that he or she
20has a reason to believe that a crime has been committed or a rule has been violated
21and any of the circumstances under par. (a) apply, the reserve judge shall do one of
22the following:
AB78-ASA1,3,2423 1. If the reserve judge finds that no crime has been committed or no rule has
24been violated, dismiss the complaint.
AB78-ASA1,4,3
12. If the reserve judge finds probable cause that a rule has been violated, refer
2the complaint to the department or the department of health services, whichever
3promulgated the rule that has been violated.
AB78-ASA1,4,64 3. If the reserve judge finds probable cause that a crime has been committed,
5refer the complaint to the district attorney or to the circuit court of the county in
6which the crime allegedly occurred.
AB78-ASA1,4,177 (c) If a circuit court judge receives a complaint from a reserve judge under par.
8(b) 3., the circuit court judge shall conduct an investigation to determine whether a
9crime has been committed. In making the determination, the judge may, at his or
10her discretion, examine under oath the complainant or any witnesses produced by
11the complainant and subpoena and examine under oath other witnesses, as the judge
12determines is necessary to ascertain whether a crime has been committed and by
13whom committed. The examination may be adjourned and may be secret. Any
14witness examined may have counsel present but the counsel may not examine his or
15her client, cross-examine other witnesses, or argue before the judge. If the judge
16determines from the testimony that a crime has been committed and who committed
17it, he or she may issue a warrant for the arrest of the accused.
AB78-ASA1, s. 6 18Section 6. 972.08 (2) of the statutes is amended to read:
AB78-ASA1,5,319 972.08 (2) Whenever a witness attending in any court trial or appearing before
20any grand jury or John Doe investigation under s. 968.26 fails or refuses without just
21cause to comply with an order of the court under this section to give testimony in
22response to a question or with respect to any matter, the court, upon such failure or
23refusal, or when such failure or refusal is duly brought to its attention, may
24summarily order the witness's confinement at a suitable place until such time as the
25witness is willing to give such testimony or until such trial, grand jury term, or John

1Doe investigation under s. 968.26 is concluded but in no case exceeding one year. No
2person confined under this section shall be admitted to bail pending the
3determination of an appeal taken by the person from the order of confinement.
AB78-ASA1, s. 7 4Section 7. 978.045 (1r) (intro.) of the statutes is amended to read:
AB78-ASA1,5,145 978.045 (1r) (intro.) Any judge of a court of record, by an order entered in the
6record stating the cause for it, may appoint an attorney as a special prosecutor to
7perform, for the time being, or for the trial of the accused person, the duties of the
8district attorney. An attorney appointed under this subsection shall have all of the
9powers of the district attorney. The judge may appoint an attorney as a special
10prosecutor at the request of a district attorney to assist the district attorney in the
11prosecution of persons charged with a crime, in grand jury proceedings or John Doe
12proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The
13judge may appoint an attorney as a special prosecutor if any of the following
14conditions exists:
AB78-ASA1, s. 8 15Section 8. Initial applicability.
AB78-ASA1,5,1716 (1) The treatment of section 968.26 (2) of the statutes first applies to complaints
17made on the effective date of this subsection.
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