## Facts

- A Wisconsin judge, acting under Wis. Stat. § 968.26 (John Doe), issued a subpoena duces tecum to Hazel Washington, president of Family Outreach Social Services Agency, Inc., seeking agency documents in an investigation.
- Family Outreach provided psychotherapeutic services and was compensated largely through federally financed medical assistance programs.
- Washington refused to produce the requested documents, asserting physician-patient privilege and Fourth Amendment protections.
- After briefing and a closed hearing, the judge issued an order compelling production by a specified date; Washington again refused when called as a witness at the John Doe session.
- The court adjourned the John Doe session and convened a separate civil contempt proceeding before the same judge; Washington was held in civil contempt for disobeying the production order.
- Washington appealed both the production order and the civil contempt order.

## Issues

1. Whether Wis. Stat. § 968.26 violates separation of powers by authorizing a judge to conduct an investigative John Doe proceeding and issue subpoenas.
2. Whether due process is denied when the same judge conducts the John Doe inquiry and presides over the related civil contempt proceeding.
3. Whether physician-patient privilege or the Fourth Amendment justified Washington’s categorical refusal to produce the subpoenaed records.
4. Whether civil contempt was a proper means to coerce compliance with the production order.

## Decision

- The Wisconsin Supreme Court affirmed the order compelling production of documents in the John Doe proceeding.
- The court affirmed the civil contempt order entered against Washington for refusing to comply.
- The court held § 968.26 constitutional and treated the John Doe procedure as a judicially supervised investigatory mechanism.
- The court found no due process violation from the same judge presiding over both matters absent a showing of actual bias or an unconstitutional probability of bias.
- The court rejected blanket reliance on privilege and generalized Fourth Amendment objections to avoid compliance with a facially valid, judicially supervised subpoena and production order.
- The court approved civil contempt as a coercive remedy for willful noncompliance with a valid court order.

## Legal Principles

- A John Doe proceeding under Wis. Stat. § 968.26 is a constitutionally permitted, judicially supervised inquiry to determine whether a crime was committed and by whom, and it may include issuance and enforcement of subpoenas.
- Separation of powers is not violated merely because a judge performs investigatory functions authorized by statute when those functions are exercised within a judicial framework and subject to judicial discretion and supervision.
- Due process is satisfied when the same judge enforces a prior order through civil contempt, unless the contemnor shows actual bias or circumstances creating an unconstitutional risk of bias.
- A witness or custodian may not refuse all production based on categorical privilege or generalized Fourth Amendment claims when a subpoena is reasonably specific and issued under judicial supervision; privilege claims do not automatically cover all organizational records.
- Civil contempt may be used to coerce present compliance with a valid production order; continued defiance after objections are rejected supports a coercive contempt sanction.

## Conclusion

The court upheld judicial authority to conduct and enforce John Doe investigative subpoenas, ruled that the same judge may preside over related civil contempt proceedings consistent with due process, and affirmed that blanket privilege and Fourth Amendment objections do not permit defiance of a valid production order.


State v. Washington, 266 N.W.2d 597 (Wis. 1978)