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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                  This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
September 9, 2010
A party may file with the Supreme Court a
A. John Voelker                                  petition to review an adverse decision by the
Acting Clerk of Court of Appeals                 Court of Appeals.   See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. Nos.   2009JD26
Appeal Nos.                                      2009AP2578-W
2010JD4
2010AP636-W
STATE OF WISCONSIN                               IN COURT OF APPEALS
DISTRICT IV
NO.   2009AP2578-W
IN THE MATTER OF THE JOHN DOE PETITION:
HAKIM NASEER,
PETITIONER,
V.
THE HONORABLE JAMES MILLER,
RESPONDENT.
NO.   2010AP636-W
IN THE MATTER OF THE JOHN DOE PETITION:
HAKIM NASEER,
PETITIONER,
V.




Nos.   2009AP2578-W
2010AP636-W
CIRCUIT COURT FOR GRANT COUNTY AND
THE HONORABLE CRAIG R. DAY, PRESIDING,
RESPONDENTS.
MANDAMUS  original  proceedings.     Writ  in                                            2009AP2578-W
denied; writ in 2010AP636-W granted.
Before Vergeront, Lundsten and Sherman, JJ.
¶1                                                                                       SHERMAN,  J.      In  Appeal  No.  2009AP2578-W,  arising  out  of
Columbia County, Hakim Naseer petitions for a supervisory writ of mandamus
seeking to compel Judge James Miller to issue a criminal complaint in a John Doe
proceeding.   He alleges that a prison guard committed a criminal act by denying
him a full course meal or an adequate serving of a hot meal, in retaliation for his
having used abusive language toward the guard.
¶2                                                                                       In a consolidated appeal, Appeal No. 2010AP636-W, arising out of
Grant County, Naseer petitions for a supervisory writ of mandamus seeking to
compel Judge Craig R. Day to issue a criminal complaint in a separate John Doe
proceeding.   He alleges that during an escort procedure, a prison guard in Grant
County committed a criminal act by squeezing his neck, for no legitimate purpose,
to the point that he was “gag[g]ing and gasping for oxygen.”   He further alleges
that as a result of the guard’s actions, he had to seek unspecified medical attention.
¶3                                                                                       We ordered the cases consolidated because they appeared to raise
related  questions  regarding  the  proper  interpretation  of  the  recently  amended
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Nos.   2009AP2578-W
2010AP636-W
John Doe  statute,  WIS.  STAT.  § 968.26  (2007-08),1  on  which  issues  the  State
requested a published opinion.    See 2009 Wis. Act 24, §§ 3-5 (eff. June 27, 2009).
For the reasons discussed below, we deny the supervisory writ in the Columbia
County case but grant the supervisory writ in the Grant County case.
DISCUSSION
¶4                                                                                                A supervisory writ of mandamus is a mechanism by which a court
may compel a public official to perform a legally obligated act.    State ex rel.
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.  Prior to its 2009 amendment, WIS. STAT. § 968.26 provided in pertinent part as follows:
If a person complains to a judge that he or she has reason
to believe that a crime has been committed within his or her
jurisdiction, the judge shall examine the complainant under oath
and any witnesses produced by him or her and may, and at the
request of the district attorney shall, subpoena and examine other
witnesses to ascertain whether a crime has been committed and
by whom committed.… If it appears probable from the testimony
given that a crime has been committed and who committed it, the
complaint may be reduced to writing and signed and verified;
and thereupon a warrant shall issue for the arrest of the accused.
See § 968.26.   2009 Wis. Act. 24 §§ 3-5 amended § 698.26 as follows:
(1)   If a district attorney requests a judge to convene a
proceeding to determine whether a crime has been committed in
the court’s jurisdiction, the judge shall convene a proceeding
described under sub. (3) and shall subpoena and examine any
witnesses the district attorney identifies.
(2)(a)   Except in par. (am), in this subsection, “district
attorney” includes a prosecutor to whom the judge has referred
the complaint under par. (am).
(2)(am)    If  a  person  who  is  not  a  district  attorney
complains to a judge that he or she has reason to believe that a
crime has been committed within the judge’s jurisdiction, the
judge shall refer the complaint to the district attorney or, if the
complaint may relate to the conduct of the district attorney, to
another prosecutor under s. 978.045.
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Nos.   2009AP2578-W
2010AP636-W
Robins v. Madden, 2009 WI 46, ¶10, 317 Wis. 2d 364, 766 N.W.2d 542.   Because
a  supervisory  writ                                                                      “invokes  our  supervisory  authority,  it                              ‘is  considered  an
extraordinary and drastic remedy that is to be issued only upon some grievous
exigency.’”   State ex rel. Kenneth S. v. Circuit Court for Dane County, 2008 WI
App 120, ¶8, 313 Wis. 2d 508, 756 N.W.2d 573 (quoted source omitted).   This
court will not issue a supervisory writ unless the party seeking relief acts promptly
and faces grave hardship or irreparable harm for which there is no other adequate
remedy at law, and the circuit court has clearly violated a plain duty.   State ex rel.
Kalal v. Circuit Court for Dane County,  2004 WI  58,  ¶17,  271 Wis.  2d  633,
681 N.W.2d 110.
¶5                                                                                        Here, in both cases, we are satisfied that Naseer has acted promptly,
and that he has no other remedy than by supervisory writ.    See State ex rel.
Unnamed  Person  No.                                                                      1  v.  State,                                                           2003  WI              30,   ¶23,   260  Wis.   2d   653,
660 N.W.2d 260 (John Doe proceedings are not reviewable by appeal because the
judge is not acting as the circuit court).   Whether a supervisory writ is warranted in
these cases thus turns upon whether either judge clearly violated a plain duty
under the amended John Doe statute.    An act which requires the exercise of
discretion does not present a clear legal duty and cannot be compelled through
mandamus.   Law Enforcement Standards Bd. v. Village of Lyndon Station, 101
Wis. 2d  472, 494, 305 N.W.2d 89 (1981).   Accordingly, in order to determine
whether either of the judges here clearly violated a plain legal duty, we must first
determine what, if any, mandatory actions the amended John Doe statute required
them to take upon the complaints before them.
¶6                                                                                        We begin our analysis with an overview of the key provisions of the
amended  John  Doe  statute.     Under  the  amended  version  of  WIS.  STAT.
§ 968.26(2), a judge shall refer a John Doe complaint to the district attorney
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Nos.   2009AP2578-W
2010AP636-W
whenever  a  person  claims  to  have  “reason  to  believe  that  a  crime  has  been
committed within the judge’s jurisdiction.”   Section 968.26(2)(am) (eff. June 27,
2009); see 2009 Wis. Act 24 § 3.   If a judge refers a matter to the district attorney,
but the district attorney subsequently refuses to issue charges, the district attorney
shall forward to the judge any investigative reports, along with the case file and a
written explanation for the refusal to issue charges.    Section 968.26(2)(b)  (eff.
June 27, 2009); see 2009 Wis. Act 24, §5.   After considering those materials and
any other  written  records the  judge  finds relevant,  the  judge  shall convene  a
proceeding if the judge determines it is “necessary to determine if a crime has
been committed.”   Id.   If the judge determines that a proceeding is necessary, it
shall “subpoena and examine under oath the complainant and any witnesses that
the judge determines to be necessary and appropriate” to ascertain whether and by
whom a crime may have been committed, and shall consider the credibility of any
such witnesses.   Section 968.26(2)(c) (eff. June 27, 2009); see 2009 Wis. Act. 24
§3.    However, the extent to which the examination will proceed is within the
judge’s discretion.   Section 968.26(3); see 2009 Wis. Act 24, §3.   Finally, if the
judge “finds sufficient credible evidence to warrant a prosecution,” it may issue a
criminal complaint.   Section 968.26(2)(d) (eff. June 27, 2009); see 2009 Wis. Act
24, §5.
¶7                                                                                        To summarize, under the revised scheme a John Doe judge must
potentially undertake four inquiries:                                                     (1) decide whether to refer the John Doe
complaint to the district attorney in the first instance;  (2) decide whether it is
necessary to conduct any additional proceedings if the district attorney chooses not
to issue charges; (3) determine what, if any, witnesses to subpoena and examine if
additional proceedings are deemed necessary; and (4) decide whether to issue a
criminal  complaint  if  the  judge  finds  that  the  additional  proceedings  have
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Nos.   2009AP2578-W
2010AP636-W
produced  sufficient  credible  evidence  to  warrant  prosecution.    The  two  cases
currently before us both raise questions about the first step—namely, whether or
under what circumstances a judge has a mandatory duty to refer a John Doe
complaint to the district attorney.
¶8                                                                                       In the Columbia County case, Judge Miller referred the complaint to
the district attorney before conducting an analysis of its merits on the theory that
the statute’s use of the word “shall” makes such referrals automatic.   After the
district attorney declined to prosecute, Judge Miller determined that no further
proceedings were necessary because the facts alleged in the complaint—namely,
that a prison official had served Naseer a single meal that was cold and/or less
than a standard serving size—did not constitute a criminal act, even if true.
¶9                                                                                       In the Grant County case, Judge Day refused to refer the complaint
to the district attorney because he concluded that the facts alleged there—namely,
that a guard had unnecessarily squeezed Naseer’s neck to the point of impairing
his  breathing—when  taken  in  conjunction  with  Naseer’s  history  of  filing
unsubstantiated John Doe complaints against prison guards, failed to establish
“reason to believe” that an actual crime had been committed.
¶10    We acknowledge that the use of the word “shall” typically signals a
mandatory duty.   See State ex rel. Reimann v. Circuit Court for Dane County,
214 Wis. 2d 605, 614, 571 N.W.2d 385 (1997).   However, we note that the prior
John Doe statute similarly used the word “shall” for its initial requirement that a
judge examine a complainant who claimed to have “reason to believe that a crime
has been committed within his or her jurisdiction.”   WIS. STAT. § 968.26.   Not
withstanding the use of the word shall, that provision was interpreted to impose a
mandatory duty upon the judge only if the complainant also provided sufficient
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Nos.   2009AP2578-W
2010AP636-W
factual allegations to establish an objective reason to believe that a punishable
crime has been committed.   Reimann, 214 Wis. 2d. at 615-23 (“once a John Doe
complainant has shown that he or she has reason to believe that a crime has been
committed, the judge has no discretion to refuse to examine the complainant”).   In
other words, the prior statute required an initial evaluation of whether there was
reason to believe a crime had been committed that was limited to the four corners
of the complaint and did not include any credibility determinations or review of
any extrinsic materials.   See id.,  214 Wis. 2d at 615; State ex rel. Williams v.
Fiedler, 2005 WI App 91, ¶¶24-28, 282 Wis. 2d 486, 698 N.W.2d 294.   Such an
interpretation avoided the absurd result of requiring additional proceedings where
the facts alleged could not possibly constitute a crime.   Reimann, 214 Wis. 2d at
623.
¶11    When the legislature enacts or revises a statute, it is presumed to act
with full knowledge of existing laws and prior judicial interpretations of them.
See State v. McKee, 2002 WI App 148, ¶12, 256 Wis. 2d 547, 648 N.W.2d 34.
We therefore conclude that the same interpretation of the  “reason to believe”
language relating to the prior statute’s examination duty should also apply to the
amended statute’s referral duty.   That is, under the amended statute, a judge has a
mandatory duty to refer a John Doe complaint to the district attorney only if the
four corners of the complaint provide a sufficient factual basis to establish an
objective  reason  to  believe  that  a  crime  has  been  committed  in  the  judge’s
jurisdiction.    This interpretation also comports with the intended purpose of a
John Doe proceeding to serve “both as an inquest into the discovery of crime and
as a screen to prevent  ‘reckless and ill-advised’ prosecutions.”    Reimann,  214
Wis. 2d at 621 (citation omitted).
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Nos.   2009AP2578-W
2010AP636-W
¶12    Applying this standard to the Columbia County John Doe complaint,
we  agree  with  Judge  Miller’s  conclusion  that  Naseer  failed  to  allege  facts
sufficient to establish reason to believe that a crime had been committed.  Contrary
to Naseer’s assertions, serving a cold meal or a small portion at a single meal does
not deprive an inmate of the “basic need for food,” in violation of WIS. STAT.
§ 940.285; it does not constitute neglect or ill-treatment of a person confined in a
penal  institution  in  violation  of  WIS.  STAT.                                                    § 940.29;  it  does  not  constitute
misconduct in public office in violation of WIS. STAT. § 946.12; and it does not
constitute harassment in violation of WIS. STAT. § 947.013.   While prisoners have
a right to sufficient food to provide adequate nutrition, there is no requirement that
the food be tasty or even appetizing.   See Antonelli v. Sheahan, 81 F.3d 1422,
1432 (7th Cir. 1996); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994).
Naseer’s complaint provides no information that would establish that he was in
any way malnourished from the single, objectionable meal, or that there was any
ongoing pattern of depriving him of nutritionally adequate meals.   Because Judge
Miller was not obligated to refer Naseer’s complaint to the district attorney in the
first instance, he was certainly not obligated to conduct further proceedings.2   We
therefore deny the petition for supervisory writ of mandamus as to Judge Miller.
¶13    Applying  the  objective  reason  to  believe  standard  to  the  Grant
County case, we conclude that the complaint should have been referred to the
district  attorney.    Critical  to  our  analysis  is  the  requirement  that  the  initial
evaluation be limited to the four corners of the complaint.   Judge Day erred by
2   In light of our conclusion that Naseer’s Columbia County complaint failed to provide
an objective reason to believe a crime had been committed, it is not necessary for us to address
here what, if any, additional factors the court might have needed to consider in order to determine
whether a hearing was necessary had the complaint been adequate.
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Nos.   2009AP2578-W
2010AP636-W
considering  Naseer’s  history  of  filing  unsubstantiated  John  Doe  complaints,
information that is extrinsic to the complaint.   A litigant’s history of abusing the
legal process may certainly be considered at a subsequent stage of the proceeding,
along with any other materials forwarded to the court by the district attorney.3   It
cannot, however, be used to determine whether the facts alleged in a particular
complaint establish reasonable cause to believe that a crime was committed.
¶14    Focusing on the allegations in the complaint, and ignoring Naseer’s
history of filing frivolous complaints against prison officials, we conclude that his
allegations that a prison guard squeezed his neck to the point of impairing his
breathing, without any legitimate purpose for the chokehold, could conceivably
support  a  charge  of  battery  or  some  other  offense.    We  therefore  grant  the
supervisory writ of mandamus to Judge Day, and remand with directions that he
refer the John Doe complaint to the Grant County District Attorney’s office.
By   the   Court.—Writ   in                                                               2009AP2578-W   denied;   writ   in
2010AP636-W granted.
Recommended for publication in the official reports.
3   We note that even a litigant who has abused the legal process in the past may find
himself to be the victim of an actual crime.
9

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