Chapter 165

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.

165.25(10m)(d) (d) Performance measures created by the department of justice for each grant program.

165.25(10m)(e) (e) Reported results from each grant recipient in each fiscal year as to the attainment of performance measures the department of justice developed for the grant recipient.

165.25(11) (11) Report on field prosecutor positions. The department of justice shall submit an annual report to the joint committee on finance regarding the field prosecutor attorney positions created under 2017 Wisconsin Act 261, section 13. The report shall describe the activities and assess the effectiveness of the attorneys in assisting the division of criminal investigation in the field offices of Wausau and Appleton and in assisting district attorneys in the prosecution of drug-related offenses.

165.25(12) (12) Representation arising from agreements with Minnesota. Represent any employee of the state of Minnesota who is named as a defendant in any civil action brought under the laws of this state as a result of performing services for this state under a valid agreement between this state and the state of Minnesota providing for interchange of employees or services and any employee of this state who is named as a defendant as a result of performing services for the state of Minnesota under such an agreement in any action brought under the laws of this state. Witness fees in any action specified in this subsection shall be paid in the same manner as provided in s. 885.07. The attorney general may compromise and settle any action specified in this subsection to the same extent as provided in sub. (6) (a).

165.25(13) (13) Juvenile justice improvement plan. Serve as the state planning agency under the juvenile justice and delinquency prevention act of 1974, P.L. 93-415. The department shall prepare a state comprehensive juvenile justice improvement plan. The plan shall be submitted to the governor, the joint committee on finance in accordance with s. 16.54, and to the appropriate standing committees of each house of the legislature as determined by the presiding officer of each house. The plan shall be updated periodically and shall be based on an analysis of the state’s juvenile justice needs and problems.

165.25(14) (14) Cooperation and assistance. Cooperate with and render technical assistance to state agencies and units of local government and public or private agencies relating to the criminal and juvenile justice system.

165.25(15) (15) Contracts and expenditures. Apply for contracts or receive and expend for its purposes any appropriation or grant from the state, a political subdivision of the state, the federal government or any other source, public or private, in accordance with the statutes.

165.25(16) (16) Rules regarding concealed weapons licenses. Promulgate by rule a list of states that issue a permit, license, approval, or other authorization to carry a concealed weapon if the permit, license, approval, or other authorization requires, or designates that the holder chose to submit to, a background search that is comparable to a background check as defined in s. 175.60 (1) (ac).

165.25(18) (18) Crime laboratories; deoxyribonucleic acid analysis. Determine the amount required to fund the appropriation account under s. 20.455 (2) (Lm).

165.25(19) (19) Crime laboratories; deoxyribonucleic acid analysis surcharges. If the appropriation account under s. 20.455 (2) (Lp) is anticipated to go into deficit, promptly notify the joint committee on finance in writing of the anticipated deficit.

165.25(20) (20) Report on execution of search warrants at physical premises. No later than July 1 of each year, submit a report to the legislature under s. 13.172 (2) on the issuance and execution of search warrants at physical premises by law enforcement agencies in the prior calendar year. The department shall collect any relevant information from law enforcement agencies in order to prepare the report by providing all reporting officials with instructions that specify the nature of the information required, the time it is to be forwarded, the method of classifying it, and any other matters that facilitate collection and compilation of the relevant information, and all persons in charge of law enforcement agencies and other criminal and juvenile justice system agencies shall supply the department of justice with the information requested. The report shall include, by jurisdiction, all of the following information for the preceding calendar year:

165.25(20)(a) (a) The total number of search warrants that were issued and denied.

165.25(20)(b) (b) Of the search warrants that were issued, the number that requested explicit authorization of an unannounced entry, and of those that requested explicit authorization of an unannounced entry, the number that explicitly authorized and the number that declined to authorize an unannounced entry.

165.25(20)(c) (c) Of the search warrants that declined to authorize an unannounced entry, the number of search warrants that were executed with an announced entry and the number that were executed with an unannounced entry.

165.25(20)(d) (d) Of the search warrants that declined to authorize an unannounced entry that were executed with an unannounced entry, all of the following information: