State ex rel. Block v. Circuit Court for Dane County

EICH, J. ¶ 1 Mark Block seeks a writ of prohibition preventing the Wisconsin Elections Board from deposing witnesses during the course of its investigation of a complaint involving a mailing undertaken and financed by the Wisconsin Coalition for Voter Participation in the waning days of the 1997 Wisconsin Supreme Court election in which incumbent Justice Jon Wilcox was challenged by Attorney Walter Kelly. Among other things, the Board is investigating the existence of a connection between the Coalition's expenditures for the mailing and the Wilcox campaign. Mark Block was the director of the Wilcox campaign and has been identified by the Commission as a "target" in its investigation.1 ¶ 2 In various proceedings in the circuit court and this court, principals of the Coalition, James Wigderson and Brent Pickens, sought to bar the Board's inquiry on several fronts. Eventually, pursuant to court order, their depositions were taken by the 185 Board's investigators and they were required to produce various documents relating to the Coalition's activities. ¶ 3 Block contends that, under applicable statutes, he is entitled not only to notice of all subpoenas issued by the Board, but also to attend all investigatory depositions scheduled by the Board's investigators, and to cross-examine the witnesses so subpoenaed. And he says that denial of those "rights" will unfairly prejudice his interests. The circuit court agreed that Block, as a target of the Board's investigation, was entitled to notice of the subpoenas. The court concluded, however, that he was not entitled to appear at, and participate in, witness depositions conducted by the Board's investigators. Block then applied to this court for a supervisory writ recognizing his right to attend and participate in the depositions and (a) prohibiting any further investigatory depositions by the Board without his attendance, and (b) barring the use at any further proceeding of testimony given by any witness at any deposition at which he or his counsel did not attend. ¶ 4 Block has not persuaded us that he is entitled to the relief he seeks and we therefore decline to issue the writ. ¶ 5 We first consider the statutes upon which Block attempts to build his argument. Wisconsin Stat. § 5.05(l)(b) (1997-98)2 charges the Elections Board with the responsibility for administering Wisconsin's election laws. It then states that, "pursuant to such responsibility," the Board may [i]n the discharge of its duties and upon notice to the party or parties being investigated, subpoena 186 and bring before it any person in the state and require the production of any... records relevant to an investigation. A circuit court may by order permit the [board to] inspect[ ] and copy[ ] . . . the accounts and ... records at any financial institution ... to obtain evidence of any violation of ch. 11. . . . In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court (emphasis added). ¶ 6 Wisconsin Stat. § 804.05 is the general statute governing depositions in civil actions. It states that any party to the action may take the testimony of any other person upon deposition, and it contains provisions for subpoenas, notice of the deposition, stenographic or other reporting of the testimony, and the location, verification and certification of the deposition. Block concentrates on § 804.05(4), which states, among other things, that "[examination and cross-examination of deponents may proceed as permitted at the trial." ¶ 7 Finally, Block refers us to Wis. Stat. § 906.15(1) and § 906.15(2)(a), which state that while a judge or court commissioner may, at the request of a party, order that witnesses be excluded "so that they cannot hear the testimony of other witnesses," this authority "does not authorize exclusion of. . . [a] party who is a natural person." ¶ 8 Block puts forth a three-fold argument. He says first that the language in Wis. Stat. § 5.05(l)(b) providing for "notice to the party . . . being investigated" makes him, as an acknowledged target of the Board's investigation, a "party" to the investigatory proceedings. He next asserts that the language in § 5.05(l)(b) stating that depositions taken by the Board 187 are to be "taken in the manner prescribed for taking depositions in civil actions in circuit court" incorporates all of the "deposition" provisions of the code of civil procedure — including statements in Wis. Stat. § 804.05(2) and (4)(a) that parties taking depositions must give notice of the depositions to "every other party to the action," and that "[examination and cross-examination of deponents may proceed as permitted at the trial" — and he argues that these provisions give him, as a "party" to the investigatory proceedings, the right to cross-examine all witnesses the Board's investigators may decide to depose. Finally, he says that Wis. Stat. § 906.15 bars the circuit court from "excluding]" him from hearing the testimony of the witnesses. ¶ 9 The argument that Wis. Stat. § 5.05(l)(b), by identifying the target of the investigation in terms of the "party being investigated" and providing that depositions must be taken in the manner set forth for civil actions, entitled him to access to, and full participation in, all investigatory depositions, is unavailing. First, even though the statute may be inartfully drawn in some respects, it plainly delegates three separate powers to the Board: (1) to subpoena witnesses and require the production of documents; (2) to inspect and copy accounts and records at financial institutions; and (3) to depose witnesses. And each of those powers has its own distinct condition precedent: (1) persons or entities who are targets of the investigation must be notified if the Board desires to subpoena witnesses; (2) banking records may be examined by the Board only upon court order; and (3) if the Board decides to depose a witness, the deposition must be taken "in the manner prescribed ... in civil actions." The statutory direction for notice to the investigatory target — which Block's argument gives sweeping breadth — is limited by the plain 188 language of the statute to the Board's exercise of its subpoena power. The notice requirement does not relate in any way to the conduct of any depositions the Board may wish to take (or to any financial records it may wish to examine). In short, § 5.05(l)(b) does not grant Block, as an investigatory target, the right to either appear at, or participate in, investigatory depositions. We agree with the Board that if the legislature had intended to grant such expansive rights to targets of an investigation it would have said so in the statute.3 ¶ 10 Block also points to Wis. Stat. § 906.15(1) and § 906.15(2)(a), which, as indicated, state that any natural person who is a party to the action may not be excluded from "hearting] the testimony of other witnesses." Citing two federal district court cases for the proposition that the statute (or at least its federal counterpart) applies to depositions as well as trial testimony, Block contends that, as a "party" to the Board's investigatory proceedings, he may not be excluded from any depositions. We see two flaws in the argument. First, as we have concluded above, the "notice to the party or parties being investigated" language of Wis. Stat. § 5.05(l)(b) does not render Block a "party" within the meaning of either the civil procedure statutes or § 906.15. Second, the cases Block cites in support of his position that § 906.15 applies to deposi 189 tions, Skidmore v. Northwest Engineering Company, 90 F.R.D. 75 (S.D. Fla. 1981), and Naismith v. PGA, 85 F.R.D. 552 (N.D. Ga. 1979), both involved discovery and/or evidentiary depositions taken in pending court actions. The depositions in which Block seeks to participate in this case are not related to any pending litigation, nor do they appear to be either discovery depositions or depositions taken to memorialize testimony. They are investigatory depositions, pure and simple — and, with the exception of being taken under oath, they are not unlike a witness interview undertaken by agents in any law-enforcement-related investigation, civil or criminal. Beyond that, we cannot accept the underlying premise of Block's argument that a state agency's investigation is the equivalent of a court action.4 ¶ 11 The Board also points out the many ways in which giving investigatory targets full participatory rights in an investigation can lead to delay and frustration of investigatory goals. By Block's own concession in circuit court (through his attorney), the "rights" he claims would include the "ability to sit in on the depositions, make objections when I deem[] it to be appropriate, and ask questions when I deem[ ] it to be 190 appropriate." Presumably, claiming, as he does, entitlement to all rights given to parties to court actions by the code, he could also delay the investigation by seeking protective orders under Wis. Stat. § 804.01(3), or, in the Board's words, "use other procedural devices to intimidate the Board's witnesses and delay the investigation." ¶ 12 Finally, we disagree with Block that, unless he is able to participate fully in the Board's investigatory depositions, he will be deprived of "any chance . . . of protecting himself both against allegations made against him by the... Board and whatever testimony is given by [witnesses deposed by the Board]." And this, he says, will "unfairly and irreparably prejudice [his] chances of adequately defending himself against present and future claims of the Elections Board." He does not direct us to any cases or constitutional provisions in support of his claimed entitlement to full participation in the Board's investigation. We decline his invitation to engraft such a requirement on the existing statutes in the absence of plain and persuasive authority to that end. The Board's investigation may go nowhere and conclude with no action taken against anyone — Block or anyone else. If it does lead to the filing of a civil forfeiture action, or an action for injunction or other relief, as provided in Wis. Stat. § 5.05(l)(c) and (d), Block will, of course, have all of the rights given to parties to civil actions by the code — including the rights he has prematurely asserted at this stage of the proceedings. ¶ 13 We therefore deny his petition for a supervisory writ and deny his requests for other relief. By the Court. — Writ denied. Footnotes [1] Should the Board determine the existence of a probable election law violation, it is authorized to bring a civil forfeiture action in circuit court, or to seek injunctive relief or "such [other] legal or equitable relief as may be appropriate ...." WlS. STAT. § 5.05(l)(c) and (d) (1997-98). [2] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. [3] As the Board points out, it is not uncommon for "targets" to be given notice of state agency investigations. See, e.g., Wis. STAT. § 19.49(3) and (4), which requires the Wisconsin Ethics Board to notify targets when it finds cause to commence an investigation into possible violation of the ethics laws. And those subsections, like Wis. STAT. § 5.05(l)(b), do not give the target of the investigation any right to attend or participate in the investigatory process, as Block claims entitlement to in this case. [4] The rules of civil procedure also apply to "special proceedings." Wis. Stat. § 801.01. And while cases have recognized that proceedings such as a challenge to a special assessment [Singer Brothers v. City of Glendale, 33 Wis. 2d 579, 148 N.W.2d 100 (1967)], an appeal of a condemnation award to a condemnation commission [Schoenhofen v. DOT, 231 Wis. 2d 508, 605 N.W.2d 249 (Ct. App. 1999)], or a proceeding to determine the value of corporate stock [HMO-W, Inc. v. SSM Health Care Sys., 228 Wis. 2d 815, 598 N.W.2d 577 (Ct. App. 1999)], are "special proceedings," we have found no authority including state administrative agency investigations in that definition.