Chapter 165

165.02 History History: 1997 a. 86.

165.055 165.055 Appointments.

165.055(1) (1) The attorney general may appoint a deputy attorney general and assistants each of whom shall be an attorney at law admitted to practice in this state. Such appointments shall be made in writing and filed in the office of the secretary of state, and such appointees shall take and subscribe the constitutional oath of office which shall also be filed. Appointees shall perform such duties as the attorney general prescribes.

165.055(2) (2) The attorney general shall be responsible for all acts of the deputy attorney general.

165.055(4) (4) The attorney general shall appoint, in the unclassified service, the administrator of the legal services division subject to s. 230.08 (4) (a).

165.055 History History: 1973 c. 90; 1975 c. 39; 1977 c. 29, 44, 418; 1987 a. 27; 1993 a. 482; 2001 a. 16; 2015 a. 55; 2017 a. 59, 369.

165.065 165.065 Assistant attorneys general; antitrust.

165.065(1) (1) At least one assistant attorney general shall be assigned to the investigation and prosecution of violations arising under ch. 133 and shall carry out the duties imposed on the attorney general by ch. 133. All apparent violations of ch. 133 which come to the attention of any officer or agency of state government shall be reported to one of such assistant attorneys general. All officers and agencies shall cooperate with and assist the department of justice in the investigation and prosecution of such apparent violations.

165.065(2) (2) The assistant attorney general in charge of antitrust investigations and prosecutions is to cooperate actively with the antitrust division of the U.S. department of justice in everything that concerns monopolistic practices in Wisconsin, and also to cooperate actively with the department of agriculture, trade and consumer protection in the work which this agency is carrying on under s. 100.20 of the marketing law with regard to monopolistic practices in the field of agriculture and with the federal trade commission on matters arising in or affecting Wisconsin which pertain to its jurisdiction.

165.065 History History: 1977 c. 29 s. 1650m (4); 1977 c. 260; s. 35.17 correction in (title).

165.066 165.066 Assistant attorney general; unemployment insurance law enforcement. The attorney general shall assign at least 0.5 assistant attorney general position to assist in the investigation and prosecution of noncompliance with ch. 108.

165.066 History History: 2005 a. 86.

165.08 165.08 Power to compromise.

165.08(1) (1) Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under s. 803.09 (2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan. No proposed plan may be submitted to the joint committee on finance if the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization.

165.08(2) (2) In any criminal action prosecuted by the attorney general, the department shall have the same powers with reference to such action as are vested in district attorneys.

165.08 History History: 2007 a. 20; 2015 a. 55; 2017 a. 369.

165.08 Annotation Certain institutional interests of the legislature were sufficient to defeat a facial challenge to the provisions of this section authorizing legislative intervention in certain cases and those requiring legislative consent to defend and prosecute certain cases. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

165.09 165.09 Removal of barriers to trade or movement of dairy products. The attorney general may take such action as he or she deems necessary in order to contest or oppose existing statutes, ordinances, regulations, orders or other trade barriers which may restrict the sale in other states of milk or other dairy products produced in Wisconsin; study and investigate problems concerning the free movement of milk and other dairy products in interstate commerce and present the results thereof to such legislative and executive agencies of the federal government and the several states, such studies, investigations and presentations to executive and legislative agencies to be made either individually or jointly with others.

165.09 History History: 1993 a. 482.

165.10 165.10 Deposit of settlement funds. The attorney general shall deposit all settlement funds into the general fund.

165.10 History History: 2017 a. 59, 369.

165.12 165.12 Opioid settlement.

165.12(1) (1) Definition. In this section, “opiate litigation” means the proceedings titled In re: National Prescription Opiate Litigation, Case No.: MDL 2804 and any proceeding filed in a circuit court in this state containing allegations and seeking relief that is substantially similar to allegations contained and relief sought in Case No.: MDL 2804.

165.12(2) (2) Settlement proceeds. The attorney general shall cooperate with local governments in the state that are parties in the opiate litigation in entering into a joint settlement agreement of the legal or equitable claims of the state, subject to sub. (7), and the claims of local governments regarding opioids with any person that has engaged in the manufacture, marketing, promotion, distribution, or dispensing of an opioid product, including any person named as a defendant in the opiate litigation, if all of the following are satisfied:

165.12(2)(a) (a) The joint committee on finance approves the proposed settlement agreement under the procedure under s. 165.08 (1).

165.12(2)(b) (b) The settlement agreement or any document that effectuates the settlement identifies 30 percent of the settlement proceeds as payable to the state.

165.12(2)(c) (c) The settlement agreement or any document that effectuates the settlement identifies 70 percent of the settlement proceeds as payable to local governments in the state that are parties in the opiate litigation.

165.12(3) (3) Moneys payable to the state.

165.12(3)(a) (a) Moneys payable to the state under sub. (2) (b) shall be allocated to the department of health services for expenditure for purposes that comply with any settlement agreement or order of the court. In order to expend moneys payable to the state under sub. (2) (b), the department of health services shall submit by April 1 of each year until the moneys are expended to the joint committee on finance a proposal of expenditure for the next fiscal year. If the cochairpersons of the joint committee on finance do not notify the department within 14 working days after the date of the submittal under this paragraph that the committee has scheduled a meeting for the purpose of reviewing the expenditure proposal, the department may expend the moneys as described in the proposal. If, within 14 working days after the date of the submittal under this paragraph by the department, the cochairpersons of the committee notify the department that the committee has scheduled a meeting for the purpose of reviewing the expenditure proposal, the department may expend the moneys only upon approval by the committee.

165.12(3)(b) (b) If the department of health services seeks to deviate from the expenditure proposal during the fiscal year for which the expenditure proposal approved under par. (a) applies, the department shall submit to the joint committee on finance a proposal for the deviation. The joint committee on finance shall review the expenditure proposal using the procedure described in par. (a).

165.12(4) (4) Moneys payable to local governments.

165.12(4)(a) (a) No money paid or payable to the local governments under sub. (2) (c) may be considered moneys of the state. Moneys under sub. (2) (c) may be paid directly only to local governments that are parties in the opiate litigation.

165.12(4)(b) (b) A local government that receives moneys payable to a local government under sub. (2) (c) shall deposit the moneys in a segregated account that is subject to all of the following:

165.12(4)(b)1. 1. Moneys in the segregated account are considered moneys of the local government under s. 66.0603 (1m) and may not be commingled with any other moneys of the local government.

165.12(4)(b)2. 2. A local government may expend moneys of the segregated account solely for purposes identified as approved uses for abatement in the settlement agreement or by court order, subject to sub. (6).

165.12(4)(b)3. 3. A local government may not use moneys from the segregated account to substitute for budgeted moneys from the other sources.

165.12(4)(b)4. 4. A local government may allocate moneys from the segregated account to any other political subdivision in the state if there is an agreement requiring the other political subdivision to expend the moneys for the purposes described in subd. 2.

165.12(4)(b)5. 5. Local governments may combine moneys from their segregated accounts if each local government conforms to the reporting requirement under par. (c).

165.12(4)(b)6. 6. A local government shall include the segregated account in the local government’s typical audit process.

165.12(4)(c) (c) By May 1 annually, a local government that receives moneys under sub. (2) (c) shall submit a report to the department of justice and joint committee on finance that includes all of the following:

165.12(4)(c)1. 1. The amount of money in the local government’s segregated account described under par. (b) as of December 31 of the previous year.

165.12(4)(c)2. 2. An accounting of the receipts and disbursements from the segregated account described under par. (b) in the previous year.

165.12(5) (5) Sale of interest in proceeds.

165.12(5)(a) (a) Subject to par. (c), a local government may sell for cash or other consideration the right to receive any payment under a settlement agreement and this section if the proceeds of the sale are deposited in the segregated account described under sub. (4) (b).

165.12(5)(b) (b) A local government may pledge, grant a lien on, or grant a security interest in payments to effectuate a sale under this subsection. Obligations issued under this subsection are governmental obligations that are issued for a public purpose but are not considered debt of the local government and are not calculated for the purposes of any constitutional or statutory debt limitation.

165.12(5)(c) (c) Any sale by a local government that is authorized under this subsection shall be approved by a majority vote of the governing body of the local government that is selling the payments. The governing body’s approval of the sale under this paragraph is considered conclusive as to the adequacy of the consideration for the sale.

165.12(5)(d) (d) The limitations and provisions of s. 893.77 apply to any obligations issued under this subsection. This subsection is an alternative procedure to the procedures under ch. 67.

165.12(6) (6) Responsibilities for attorney fees. If a separate fund created in a settlement agreement for the opiate litigation is insufficient to pay the entire amount of attorney fees and expenses owed by local governments, a local government may use a portion of the amounts payable to local governments under sub. (2) (c) to supplement amounts owed by the local government for attorney fees and expenses. The state has no responsibility for payment of a local government’s attorney fees or expenses, and those local government attorney fees or expenses may not be paid from the amounts payable to the state under sub. (2) (b).

165.12(7) (7) Claims by nonparties to opiate litigation.

165.12(7)(a) (a) Nothing in this section shall alter any local government’s right to pursue, litigate, or resolve a lawsuit or claim as a party to the opiate litigation or a related proceeding if the lawsuit or claim was pending as of June 1, 2021.

165.12(7)(b) (b) A political subdivision of the state, or an officer or agent of any political subdivision of the state, that was not a party as of June 1, 2021, to the opiate litigation may not do any of the following:

165.12(7)(b)1. 1. Maintain a claim to proceeds of any settlement agreement that is described under sub. (2).

165.12(7)(b)2. 2. Maintain any claim or commence any action related to opioids against a person that is identified as a party defendant in the opiate litigation that would be released in a settlement agreement if the political subdivision, officer, or agent was a party to a settlement agreement that is described under sub. (2).

165.12 History History: 2021 a. 57; 2021 a. 240 s. 30.

165.25 165.25 Duties of department of justice. The department of justice shall:

165.25(1) (1) Represent state in appeals and on remand. Except as provided in ss. 5.05 (2m) (a), 19.49 (2) (a), and 978.05 (5), appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party. The joint committee on legislative organization may intervene as permitted under s. 803.09 (2m) at any time. Nothing in this subsection deprives or relieves the attorney general or the department of justice of any authority or duty under this chapter.

165.25(1m) (1m) Represent state in other matters. If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested. The joint committee on legislative organization may intervene as permitted under s. 803.09 (2m) at any time. The public service commission may request under s. 196.497 (7) that the attorney general intervene in federal proceedings. All expenses of the proceedings shall be paid from the appropriation under s. 20.455 (1) (d).

165.25(2) (2) Prosecute breaches of bonds and contracts. Prosecute, at the request of the governor, or of the head of any department of the state government any official bond or any contract in which the state is interested, deposited with any of them, upon a breach thereof, and prosecute or defend for the state all actions, civil or criminal, relating to any matter connected with any of their departments except in those cases where other provision is made.

165.25(3) (3) Advise district attorneys. Consult and advise with the district attorneys when requested by them in all matters pertaining to the duties of their office.

165.25(3m) (3m) Review obscenity cases. Review obscenity cases submitted to the department by district attorneys under s. 944.21 (7). The attorney general shall determine whether a prosecution may be commenced.

165.25(3r) (3r) Avoid conflict of interest. Require that attorneys in different organizational subunits in the department prosecute violations of chs. 562 to 569 or Indian gaming compacts entered into under s. 14.035 and defend any department, agency, official, employee or agent under subs. (1), (1m), (4) (a) and (6).

165.25(4) (4) Furnish legal services; appropriation.

165.25(4)(a) (a) The department of justice shall furnish all legal services required by the investment board, the lottery division in the department of revenue, the public service commission, the department of transportation, the department of natural resources, the department of tourism and the department of employee trust funds, together with any other services, including stenographic and investigational, as are necessarily connected with the legal work.

165.25(4)(ag) (ag) The department of justice shall furnish legal services upon request of the department of safety and professional services under s. 167.35 (7).

165.25(4)(am) (am) The department of justice shall furnish legal services to the department of safety and professional services in all proceedings under s. 440.21 (3), together with any other services, including stenographic and investigational, as are necessarily connected with the legal services.

165.25(4)(ar) (ar) The department of justice shall furnish all legal services required by the department of agriculture, trade and consumer protection relating to the enforcement of ss. 91.68, 93.73, 100.171, 100.173, 100.174, 100.175, 100.177, 100.18, 100.182, 100.195, 100.20, 100.205, 100.207, 100.209, 100.21, 100.28, 100.37, 100.42, 100.50, 100.51, 100.55, and 846.45 and chs. 126, 136, 344, 704, 707, and 779, together with any other services as are necessarily connected to the legal services.

165.25(4)(as) (as) The department of justice shall furnish legal services to the livestock facility siting review board in defending appeals under s. 93.90 (5) (e) of decisions of the board.

165.25(4)(b) (b) The department of justice shall furnish bond counsel services to the building commission when the building commission contracts public debt under subch. I of ch. 18.

165.25(4)(bn) (bn) The department of justice shall provide legal services, other than those relating to civil actions or opinions, under ch. 150 to the department of health services.

165.25(4)(c) (c) The department shall at the end of each fiscal year, except for programs financed out of the general fund and except for services required to be provided by statute other than this subsection, render to the respective agencies enumerated in this subsection an itemized statement of the total cost of the legal and other services including travel expenses and legal expenses enumerated in s. 20.455 (1) (d).

165.25(4)(d) (d) Upon receipt of the statement, the respective agency head shall audit the statement and upon finding it to be correct shall certify the amount of the statement to the department of administration to be paid into the general fund out of the agency’s proper appropriation.

165.25(5) (5) Prepare forms. Whenever requested by the head of any department of the state government, the department of justice shall prepare proper drafts of forms for contracts and other writings which may be wanted for the use of the state.

165.25(6) (6) Attorney for state.

165.25(6)(a) (a)

165.25(6)(a)1. 1. At the request of the head of any department of state government, the attorney general may appear for and defend any state department, or any state officer, employee, or agent of the department in any civil action or other matter brought before a court or an administrative agency which is brought against the state department, or officer, employee, or agent for or on account of any act growing out of or committed in the lawful course of an officer’s, employee’s, or agent’s duties. Witness fees or other expenses determined by the attorney general to be reasonable and necessary to the defense in the action or proceeding shall be paid as provided for in s. 885.07. The attorney general may compromise and settle the action as the attorney general determines to be in the best interest of the state except that, if the action is for injunctive relief or there is a proposed consent decree, the attorney general may not compromise or settle the action without the approval of an intervenor under s. 803.09 (2m) or, if there is no intervenor, without first submitting a proposed plan to the joint committee on finance. If, within 14 working days after the plan is submitted, the cochairpersons of the committee notify the attorney general that the committee has scheduled a meeting for the purpose of reviewing the proposed plan, the attorney general may compromise or settle the action only with the approval of the committee. The attorney general may not submit a proposed plan to the joint committee on finance under this subdivision in which the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization.

165.25(6)(a)2. 2. Members, officers, and employees of the Wisconsin state agencies building corporation and the Wisconsin state public building corporation are covered by this section. Members of the board of governors created under s. 619.04 (3), members of a committee or subcommittee of that board of governors, members of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and persons consulting with that council under s. 655.275 (5) (b) are covered by this section with respect to actions, claims, or other matters arising before, on, or after April 25, 1990. The attorney general may compromise and settle claims asserted before such actions or matters formally are brought or may delegate such authority to the department of administration. This paragraph may not be construed as a consent to sue the state or any department thereof or as a waiver of state sovereign immunity.

165.25(6)(b) (b) Volunteer health care providers who provide services under s. 146.89, except those described in s. 146.89 (5) (a), practitioners who provide services under s. 257.03, and health care facilities on whose behalf services are provided under s. 257.03 are, for the provision of those services, covered by this section and shall be considered agents of the department of health services for purposes of determining which agency head may request the attorney general to appear and defend them.

165.25(6)(c) (c) Physicians under s. 251.07 or 252.04 (9) (b) are covered by this section and shall be considered agents of the department of health services for purposes of determining which agency head may request the attorney general to appear and defend them.

165.25(6)(e) (e) The department of justice may appear for and defend the state or any state department, agency, official or employee in any civil action arising out of or relating to the assessment or collection of costs concerning environmental cleanup or natural resources damages including actions brought under 42 USC 9607. The action may be compromised and settled in the same manner as provided in par. (a). At the request of the department of natural resources, the department of justice may provide legal representation to the state or to the department of natural resources in the same matter in which the department of justice provides defense counsel, if the attorneys representing those interests are assigned from different organizational units within the department of justice. This paragraph may not be construed as a consent to sue the state or any department, agency, official or employee of the state or as a waiver of sovereign immunity.

165.25(6m) (6m) Attorney for state witnesses. At the request of the head of any department or agency of state government, the attorney general may appear for and represent any state official, employee or agent who is required to appear as a witness in any administrative or civil matter.

165.25(7) (7) Keep record of actions. The department shall keep a record of all actions and demands prosecuted or defended by the department on behalf of the state and all related proceedings. The department may dispose of public records in accordance with s. 16.61.

165.25(8) (8) Historical society contracts. In subs. (1), (1m), (6) and (6m), treat any nonprofit corporation operating a museum under a lease agreement with the state historical society as a department of state government and any official, employee or agent of such a corporation as a state official, employee or agent.

165.25(8m) (8m) Local emergency planning committees. In subs. (1), (1m), (6) and (6m), treat any local emergency planning committee appointed by a county board under s. 59.54 (8) (a) as a department of state government and any member of such a committee as a state official, employee or agent.

165.25(9) (9) Perform other duties. The department of justice shall perform all other duties imposed upon the department by law.

165.25(10) (10) Report on restitution. Semiannually submit a report to the department of administration and the joint committee on finance regarding money received by the department of justice under a court order or a settlement agreement for providing restitution to victims. The report shall specify the amount of restitution received by the department of justice during the reporting period; the number of persons to whom the department of justice paid restitution and the total amount that the department of justice paid to all recipients during the reporting period; and the department of justice’s methodology for selecting recipients and determining the amount paid to each recipient.

165.25(10m) (10m) Report on grants. Beginning on January 15, 2015, and annually thereafter, the department of justice shall submit a report to the legislature under s. 13.172 (2), regarding its administration of grant programs under ss. 165.95, 165.955, 165.96, 165.986, and 165.987. The report shall include, for each grant program, all of the following information:

165.25(10m)(a) (a) The amount of each grant awarded by the department of justice for the previous fiscal year.

165.25(10m)(b) (b) The grant recipient to whom each grant was awarded.

165.25(10m)(c) (c) The methodology used by the department of justice to choose grant recipients and to determine the level of grant funding for each grant recipient.