Wisconsin Council 40
LEGISLATIVE ALERT
AFSCME Green Sheet
Reforming Wisconsin's "John Doe" Law

www.afscmecouncil40.org
 

August 22, 2008                                                                       Volume #30, Issue #26

REFORM WISCONSIN’S “JOHN DOE” LAW TO PROTECT PUBLIC EMPLOYEES - Under the State’s John Doe law, anyone who believes a crime has been committed may bring a complaint to a judge. The judge may investigate the allegations and the extent of the investigation is within the judge’s discretion. If the judge decides that a crime might have been committed, she or he must issue a warrant for the arrest of the accused.

It is called a John Doe proceeding because it is carried out in secret. The accused is not informed and may not be aware of the complaint or the investigation unless or until it results in a warrant for his or her arrest.

Some consider the John Doe law obsolete because it allows complainants to bypass the investigation process carried out by district attorneys. Critics of the law argue that it leaves the decisions about the scope of investigations and issuing arrest warrants completely in the hands of judges, effectively making judges the prosecutor, judge and jury. Indeed, the John Doe law was created back in the mid-1800’s, well before our modern courts and legal system were established.

The John Doe process is not often used by district attorneys or average citizens, so few people are aware of it. The law drew attention back in 2001 when the high profile legislative caucus scandal broke as a result of secret John Doe investigations into alleged corruption by some former legislators.

More recently, the law has been discovered by inmates in Wisconsin’s correctional system. The “jailhouse lawyers” like the John Doe process because it allows them to avoid the scrutiny of district attorneys and take their complaints straight to judges. Offenders have begun filing John Doe complaints against correctional staff across various institutions around the State.

Inmates are not the only ones using the John Doe law to harass and intimidate staff. Individuals committed to the State mental institutions, secure sex offender treatment facilities, and the Wisconsin Resource Center also have discovered they can use the law against staff. Even probation and parole agents have been the object of John Doe complaints.

Because of the secret nature of the process, we don’t know exactly how many cases have been filed or how many cases have been dismissed. To date, only one John Doe complaint has resulted in felony charges. It is worth discussing what happened in that case to understand why AFSCME is seeking changes in the John Doe law.

In 2007, a correctional officer at the Waupun Correctional Institution was charged by a Dodge County Circuit Court Judge with abuse of an inmate based on allegations filed by an offender. The judge freely admitted that he believed the statute compelled him to issue felony charges against the officer based solely on the word of the inmate. The judge argued that the statute does not allow him to investigate John Doe complaints and that any allegation requires judges to issue charges.

The Department of Corrections had investigated this case and determined that the allegations were baseless. In addition, the Dodge County District Attorney refused to issue charges because of a lack of evidence. The judge likely knew about the previous investigations but went ahead anyway with the felony charges against the officer.

Thankfully, all charges against this officer have been dismissed. Nevertheless, much damage was done: the officer was forced to hire a private attorney to represent him, costing him and his family endless financial worry and personal hardship. In addition, the frivolous complaint by an inmate that led to felony charges against the officer sent shockwaves through Waupun and all of Wisconsin’s other correctional facilities. It signaled a new balance of power in these institutions, where correctional officers have to worry they may be financially devastated by a frivolous complaint filed by an offender seeking to intimidate them.

Staff who work in State institutions are now on the defensive. They go to work every day worried that some action they take in the normal course of doing their jobs could result in a John Doe complaint being filed with a judge, costing them money and their reputations.

The John Doe law was not intended to be used as a tool to harass people, but that is what is has become. Public employees are and will continue to be the target of these unfair John Doe complaints from offenders unless something is done to change the law. The John Doe law must be reformed to protect public employees whose role is to protect us all from dangerous offenders. They should not have to worry about possible legal ramifications resulting from carrying out their normal, everyday job duties, which are stressful enough.
Incarcerated people have several appropriate legal and administrative avenues to air their grievances and seek justice, including internal grievance and review procedures, and the filing of complaints with local sheriffs and district attorneys. AFSCME members who work in institutions note that not one single incidence of inappropriate behavior by staff has ever been uncovered through a John Doe proceeding.

A word about paying for legal fees:

State law prohibits the use of taxpayer dollars to defend public workers in criminal proceedings. The Waupun officer charged with the felony did not have the benefit of legal representation by the State. Now that he has been cleared of all charges, he has the right to submit a claim for reimbursement from the Wisconsin Claims Board and he is likely to prevail in his request. However, that will be little consolation for this officer and his coworkers, who spent many sleepless nights worried about the outcome of this proceeding and the possible endless legal battles and legal bills he would be required to pay.

AFSCME supported efforts by lawmakers to change the John Doe law, to no avail. The one area that lawmakers could agree to was on the issue of paying legal fees. Legislators from both parties supported an amendment to allow payment of attorney fees for public workers charged under this statute if they act within the guidelines of their employment and if the attorney general determines the worker was acting in good faith.

AFSCME supports reforming the John Doe statute to prevent it from being used as a tool to harass public employees. Our Union also supports requiring the State to provide for legal representation for workers against proceedings or charges that arise from the performance of their jobs.

This fall, AFSCME members ought to ask candidates if they will commit to working with our Union representatives to bring about reforms to the John Doe law, to create protections for public employees performing their jobs in good faith.
 

For more information, call the AFSCME Area Office at 608-836-6666.