High court doesn't rule on Blanchard role in case
0:00 AM 5/02/03
Phil Brinkman State government reporter

The state Supreme Court Thursday declined to rule on whether the prosecutor in the Capitol corruption probe should be removed due to an alleged conflict of interest, saying the matter has already been decided by a lower court.

But the court resolved a couple of other technical challenges, one concerning the authority of the judge overseeing the secret tribunal to issue rulings and the other relating to whether a state appeals court can overrule the judge's decisions.

The opinion ends one appeal of the investigation, although another appeal seeking to dismiss charges against two Republican lawmakers and a former aide is pending before a state court of appeals.

In all, five current or former legislators and four current or former staffers have been charged with various violations of state ethics and campaign finance laws.

Thursday's decision involved an appeal brought by three people ordered to testify in the secret John Doe hearing before Dane County Circuit Judge Sarah O'Brien. Identified only as "unnamed person" Nos. 1, 2 and 3, the three have been identified through publicly available legal bills as Assembly Majority Leader Steven Foti, R-Oconomowoc; former Foti aide Sherry Schultz; and former Assembly Democratic Caucus staffer Jacob Wittwer, who has not been charged.

Foti and Schultz appealed O'Brien's authority to disqualify their attorneys because others in the lawyers' firms were representing potential witnesses. They argued that in a John Doe, the judge acts as an investigator, not a court, and doesn't have that kind of authority.

But the Supreme Court said the law allows judges broad discretion over how to run a John Doe hearing.

Wittwer argued Dane County District Attorney Brian Blanchard had a conflict of interest because he has acknowledged receiving limited campaign help from former Senate employees.

But the court noted O'Brien held a hearing on the matter and concluded there was no conflict. Anyone wishing to challenge Blanchard's involvement should appeal that decision, the court said.

The Court of Appeals also asked the Supreme Court to clarify whether it can rule on a John Doe judge's decisions since they are not court actions. The high court found the appeals court did have the authority.