Prior to the passage of 2007 Wisconsin Act 1: (1) Unless otherwise specifically provided district attorneys could enforce criminal provisions and civil forfeiture provisions independently of the Elections Board and the Ethics Board; (2) With respect to items arising under the election laws, lobby laws, and ethics laws, district attorneys were under no statutory restriction as to their ability to seek advice from the Department of Justice under Wis. Stat. § 165.25(3), to request the assistance of assistant attorneys general as provided in Wis. Stat. § 978.05(8)(b), or to seek investigatory assistance from the Department of Justice under Wis. Stat. § 165.50(1)(a) or Wis. Stat. § 165.70(1)(a); and (3) The Attorney General or an assistant attorney general could be appointed as special prosecutor to serve in lieu of the district attorney with respect to items arising under the election laws, lobby laws, and ethics laws. For the reasons that follow, it is my opinion that 2007 Wisconsin Act 1 effected no material change in these provisions and procedures. ANALYSIS
The first question is whether there are provisions of Wis. Stat. chs. 5 to 12 (election laws), Wis. Stat. ch. 13, subch. III (lobby laws), and Wis. Stat. ch. 19, subch. III (ethics laws) that can be enforced by a district attorney independently of the Board. As amended, Wis. Stat. § 978.05(1) provides that district attorneys possess “sole responsibility for prosecution of all criminal actions” arising from violations of those provisions as well as sole responsibility for prosecution of criminal actions “arising . . . from violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19[.]” 2007 Wisconsin Act 1 effects a significant change in that the criminal violations of the election laws, lobby laws, and ethics laws over which a district attorney now has jurisdiction are those “that are alleged to be committed by a resident of his or her prosecutorial unit, or if alleged to be committed by a nonresident of this state, that are alleged to occur in his or her prosecutorial unit[.]” Wis. Stat. § 978.05(1). Where the alleged violator meets one of these residency requirements establishing the appropriate prosecutorial venue, unless otherwise stated in a specific statutory provision the district attorney has plenary authority to investigate criminal violations of election laws, lobby laws, and ethics laws and to commence criminal proceedings alleging violations of such laws. Wisconsin Stat. § 978.05(2) provides that district attorneys possess “joint responsibility, together with the government accountability board, for prosecution of all forfeiture actions arising from violations of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19” as well as joint responsibility for prosecution of forfeiture actions in connection with alleged “violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19[.]” 2007 Wisconsin Act 1 effects the same significant change in residency requirements for prosecutorial venue in civil forfeiture actions that applies to the prosecution of criminal actions under the election laws, lobby laws, and ethics laws. The responsibility of the Board and district attorneys to commence civil forfeiture actions alleging violations of election laws, lobby laws, and ethics laws is “joint.” Wis. Stat. § 978.05(2). The Legislature has enacted no requirement that the district attorney await action by the Board prior to commencing a civil forfeiture action. The Legislature also has enacted no requirement that the Board await action by the district attorney prior to commencing a civil forfeiture action. Wisconsin Stat. § 5.05(1) does provide that the Board “shall have the responsibility for the administration of chs. 5 to 12, other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19.” More specifically, Wis. Stat. § 5.05(2m)(a) provides that in exercising that responsibility “[t]he board shall investigate violations of laws administered by the board and may prosecute alleged civil violations of those laws . . . pursuant to all statutes granting or assigning that authority or responsibility to the board.” Despite the fact that both “shall” and “may” are used in Wis. Stat. § 5.05(2m)(a), the Board clearly is not required to investigate all alleged violations of election laws, lobby laws, and ethics laws. Under Wis. Stat. § 5.05(2m)(c)4., the Board may conduct an investigation only (1) if it “believes there is reasonable suspicion that a violation . . . has occurred or is occurring,” (2) the Board has passed a resolution “authoriz[ing] the commencement of an investigation,” and (3) the Board’s resolution “specifically set[s] forth any matter that is authorized to be investigated.” There is no statutory requirement that the district attorney first determine whether the Board will investigate a matter that might lead to the commencement of a civil forfeiture action or that might lead to commencement of a criminal action, nor is there any statutory requirement that the district attorney await the outcome of an investigation by the Board that might lead to the commencement of a civil forfeiture action or that might lead to commencement of a criminal action. It follows that the provisions of Wis. Stat. § 5.05(2m)(c)15.-18. have no application to investigations, criminal proceedings, or civil forfeiture actions independently initiated by a district attorney in the absence of a referral by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15. Wisconsin Stat. § 5.05(2m)(c)11. contemplates that the Board first have conducted an investigation authorized under Wis. Stat. § 5.05(2m)(c)4. If the Board has authorized such an investigation and determined that probable cause exists, then the Board “may . . . refer the matter to the district attorney for the county in which the alleged violator resides, or if the alleged violator is a nonresident, to the district attorney for the county where the matter arises[.]” Wis. Stat. § 5.05(2m)(c)11. If the Board has authorized the investigation of specific matters and during the course of the investigation discovers evidence of a potential violation of a law that is not administered by the Board but involves the official functions of the subject of the investigation or if the Board has authorized the investigation of specific matters and during the course of the investigation discovers evidence of a potential violation of other election laws, lobby laws, or ethics laws, the Board may refer such other matters to the district attorney. Wis. Stat. § 5.05(2m)(c)14. Wisconsin Stat. § 5.05(2m)(c)14., 15., 16., and 18. each specifically requires a referral by the Board. Wisconsin Stat. § 5.05(2m)(c)17. references Wis. Stat. § 5.05(2m)(c)11., which also requires a referral by the Board. The provisions of Wis. Stat. § 5.05(2m)(c)15.-18. therefore have no application to criminal actions or civil forfeiture actions independently initiated by a district attorney in the absence of a referral following a finding of probable cause by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15. It is conceivable that, following its own investigation, the Board could refer certain matters to the district attorney with respect to which the district attorney has already commenced an investigation. Wisconsin Stat. § 5.05(2m)(c)18. contains no exception for matters with respect to which the district attorney has initiated an investigation prior to receiving a referral from the Board. With respect to all matters referred by the Board, the district attorney is therefore subject to the reporting requirements in Wis. Stat. § 5.05(2m)(c)18. Wisconsin Stat. § 5.05(2m)(c)16. also contains no exception for matters with respect to which the district attorney has initiated an investigation prior to receiving a referral from the Board. Even where matters referred by the Board overlap matters with respect to which the district attorney has already initiated an investigation, the Board therefore could transfer the matter to another district attorney if prosecution is not commenced within 60 days of the date of the Board’s referral. The Board has no statutory authority to transfer any matter to another district attorney with respect to which a prosecution has already been commenced. The second question is whether and to what extent a district attorney can request assistance from the Attorney General in connection with any duty that a district attorney may have under the election laws, lobby laws, and ethics laws. 2007 Wisconsin Act 1 amended Wis. Stat. § 165.25(1) as follows (amendatory material underscored): (1) REPRESENT STATE IN APPEALS AND ON REMAND. Except as provided in ss. 5.05(2m)(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. Nothing in this subsection deprives or relieves the attorney general or the department of justice of any authority or duty under this chapter. I interpret the Legislature’s insertion of the reference to Wis. Stat. § 5.05(2m)(a) in the first sentence of this amendment to mean that, with respect to matters investigated by the Board under that provision, the sequential provisions of Wis. Stat. § 5.05(2m)(c)11.-16. must be followed. The last sentence of this amendment therefore establishes that, in all other respects, the Attorney General’s authority to provide assistance to district attorneys generally remains unchanged. As amended, Wis. Stat. § 978.05(1) provides that district attorneys possess “sole responsibility for prosecution of all criminal actions arising from violations” of election laws, lobby laws, and ethics laws. Wisconsin Stat. § 978.05(2) provides that district attorneys possess “joint responsibility, together with the government accountability board, for prosecution of all forfeiture actions arising from violations” of election laws, lobby laws, and ethics laws. In exercising his or her responsibility under Wis. Stat. § 978.05(1) or (2), the district attorney continues to be able to seek advice from the Department of Justice under Wis. Stat. § 165.25(3) and to request the assistance of assistant attorneys general as provided in Wis. Stat. § 978.05(8)(b). Where appropriate, the district attorney may also seek investigatory assistance from the Department of Justice. See Wis. Stat. §§ 165.50(1)(a); 165.70(1)(a). As to matters referred to the district attorney by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15., the sequential provisions of Wis. Stat. § 5.05(2m)(c)11.-16. must be followed. Those provisions establish an ordered, time-sensitive process once a matter has been referred to the district attorney by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15. Under Wis. Stat. § 5.05(2m)(c)11.-16., one statutorily-designated prosecutor is responsible for the matter referred and is required to report to the Board. See Wis. Stat. § 5.05(2m)(c)18. The district attorney must retain ultimate control over the matter referred unless a special prosecutor is appointed to serve in lieu of the district attorney or a referral to another district attorney or to the Attorney General is subsequently made by the Board. See Wis. Stat. § 5.05(2m)(c)14.-16. The third question asks for delineation of the scope of the Attorney General’s prosecutorial authority with respect to alleged violations of the election laws, lobby laws, and ethics laws.
The Attorney General’s powers are purely statutory. State v. City of Oak Creek, 2000 WI 9, ¶¶ 19-24, 232 Wis. 2d 612, 605 N.W.2d 526. There are a few statutory provisions that authorize the Attorney General to commence actions alleging violation of the election laws, lobby laws, or ethics laws. Wisconsin Stat. § 5.05(2m)(i) authorizes the Attorney General to commence criminal prosecutions under the election laws, lobby laws, or ethics laws if the defendant “is a district attorney or a circuit judge or a candidate for either such office[.]” Wisconsin Stat. § 5.07 authorizes the Attorney General to commence actions for equitable, legal, or peremptory relief to compel compliance with the election laws. Wisconsin Stat. § 5.08 authorizes the Attorney General to commence actions to compel compliance with the election laws upon the filing of a verified petition with the Attorney General after the district attorney has declined or failed to prosecute in response to the filing of a petition. Wisconsin Stat. § 5.081 authorizes the Attorney General to commence actions or proceedings in any court of competent jurisdiction on behalf of any elector of this state under the Help America Voting Act, 42 U.S.C. § 1973(a) and (b). Wisconsin Stat. § 8.28 authorizes the Attorney General to investigate and prosecute any verified complaint alleging that a state or local elected official does not meet residency requirements. Wisconsin Stat. § 19.579(1) provides that at the request of the Board the Attorney General shall commence an action against any person who has not paid a forfeiture imposed under the ethics laws as provided in that statute. Wisconsin Stat. § 19.58(8)(c) and (cn) authorize the Attorney General to commence certain actions against local government officials for violation of the code of ethics after the district attorney has declined or failed to prosecute such actions. See also Wis. Stat. § 7.23(2). If appropriate under Wis. Stat. § 978.045, the district attorney to whom a matter has been referred by the Board may also seek judicial appointment of a special prosecutor to serve in lieu of the district attorney. See Wis. Stat. § 5.05(2m)(c)17. Nothing in 2007 Wisconsin Act 1 precludes the Attorney General or an assistant attorney general from being appointed as a special prosecutor in lieu of the district attorney with respect to matters involving alleged violations of election laws, lobby laws, or ethics laws. Unless a specific statutory provision authorizes the Attorney General to independently commence an action alleging a violation of the election laws, lobby laws, or ethics laws, the Attorney General may independently commence such actions only where the Attorney General has been appointed as special prosecutor or there has been a referral to the Attorney General by the Board under Wis. Stat. § 5.05(2m)(c)16. In other circumstances involving allegations of violations of the election laws, lobby laws, or ethics laws, the Attorney General cannot independently commence prosecution. The fourth question asks for delineation of the division of authority between the Board and district attorneys to enforce the election laws, lobby laws, and ethics laws.
As explained in response to the preceding questions, after the passage of 2007 Wisconsin Act 1 the Board and district attorneys possess joint and co-equal authority to investigate possible violations of election laws, lobby laws, and ethics laws and to prosecute civil forfeiture actions under those statutory provisions. Unless otherwise stated in a specific statutory provision, district attorneys possess the authority to prosecute criminal proceedings under those statutory provisions. Except as provided in Wis. Stat. § 5.05(2m)(i), the Board cannot prosecute criminal proceedings under those statutory provisions. The Board has no statutory obligation to commence an investigation in situations where no investigation has been commenced by the district attorney. The Board also is not required to refrain from commencing an investigation after an investigation has been commenced by the district attorney. The district attorney has no statutory obligation to refrain from commencing an investigation once an investigation has been commenced by the Board. The district attorney also has no statutory obligation to refrain from commencing a criminal proceeding once the Board has commenced a civil action. To the extent statutorily possible the Board, district attorneys, the Attorney General, and law enforcement authorities should endeavor to cooperate and timely communicate with each other. Doing so will enhance efficiency, avoid duplication of effort, and permit the best use of limited investigative and prosecutorial resources on the part of all of the agencies involved.
CONCLUSION
At least three major changes from past practice under the Elections Board and the Ethics Board were effected by 2007 Wisconsin Act 1. One significant change involves matters referred to the district attorney or the Attorney General under Wis. Stat. § 5.05(2m)(c)11., 14., 15., or 16. With respect to such matters, the sequential process in Wis. Stat. § 5.05(2m)(c)11.-16. must be followed. Another significant change established new venue or residency requirements for the prosecution of criminal proceedings and civil forfeiture actions under the election laws, lobby laws, ethics laws and certain matters related to those laws by amending Wis. Stat. § 978.05(1) and (2). A third significant change created Wis. Stat. § 5.05(2m)(a), under which the Board may prosecute civil forfeiture actions under the election laws, lobby laws, and ethics laws directly in circuit court. 2007 Wisconsin Act 1 did not establish any statutory mechanism under which the Board must or should await the outcome of proceedings independently initiated by the district attorney. That legislation also did not establish any statutory mechanism under which the district attorney must or should await the outcome of investigative proceedings that can or are being conducted by the Board. Sincerely,
J.B. Van Hollen
Attorney General
JBVH:FTC:cla
/misc/oag/recent/oag10_08
true
oag
/misc/oag/recent/oag10_08/_178
section
true
