. . . .
(c) 2.a. Any person may file a complaint with the board alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. . . . 4. . . . . If the board believes there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board may by resolution authorize the commencement of an investigation. The resolution shall specifically set forth any matter that is authorized to be investigated. . . .
. . . .
11. If the board finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the board may, in lieu of civil prosecution of any matter by the board, 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, or if par. (i) applies, to the attorney general or a special prosecutor. For purposes of this subdivision, a person other than a natural person resides within a county if the person’s principal place of operation is located within that county.
. . . .
14. If a special investigator or the administrator of the ethics and accountability division of the board, in the course of an investigation authorized by the board, discovers evidence of a potential violation of a law that is not administered by the board 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, the special investigator or the administrator may present that evidence to the board. The board may thereupon refer the matter to the appropriate district attorney specified in subd. 11.
15. Except as provided in subd. 17., if the board refers a matter to the district attorney specified in subd. 11. for prosecution of a potential violation under subd. 2. or 14. and the district attorney informs the board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the board within 60 days of the date of the board’s referral, the board may refer the matter to the district attorney for another prosecutorial unit that is contiguous to the prosecutorial unit of the district attorney to whom the matter was originally referred. If there is more than one such prosecutorial unit, the chairperson of the board shall determine the district attorney to whom the matter shall be referred by publicly drawing lots at a meeting of the board. The district attorney may then commence a civil or criminal prosecution relating to the matter.
16. Except as provided in subd. 17., if the board refers a matter to a district attorney under subd. 15. for prosecution of a potential violation under subd. 2. or 14. and the district attorney informs the board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the board within 60 days of the date of the board’s referral, the board may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.
17. The board is not authorized to act under subd. 15. or 16. if a special prosecutor is appointed under s. 978.045 in lieu of the district attorney specified in subd. 11. 18. Whenever the board refers a matter to special counsel or to a district attorney or to the attorney general under this subsection, the special counsel, district attorney, or attorney general shall report to the board concerning any action taken regarding the matter. The report shall be transmitted no later than 40 days after the date of the referral. If the matter is not disposed of during that period, the special counsel, district attorney, or attorney general shall file a subsequent report at the end of each 30-day period following the filing of the initial report until final disposition of the matter.
. . . .
(h) If the defendant in an action for a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the board. If the defendant in an action for a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint special counsel to bring suit on behalf of the state. (i) If the defendant in an action for a criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the attorney general. If the defendant in an action for a criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint a special prosecutor to conduct the prosecution on behalf of the state. (j) Any special counsel or prosecutor who is appointed under par. (h) or (i) shall be independent of the attorney general and need not be a state employee at the time of his or her appointment.
II. DUTIES OF THE DISTRICT ATTORNEY.
Duties of the district attorney. The district attorney shall:
(1) CRIMINAL ACTIONS. Except as otherwise provided by law, prosecute all criminal actions before any court within his or her prosecutorial unit and have sole responsibility for prosecution of all criminal actions arising from violations of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 and 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, 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 unless another prosecutor is substituted under s. 5.05(2m)(i) or this chapter or by referral of the government accountability board under s. 5.05(2m)(c)15. or 16. For purposes of this subsection, a person other than a natural person is a resident of a prosecutorial unit if the person’s principal place of operation is located in that prosecutorial unit. (2) FORFEITURES. Except as otherwise provided by law, prosecute all state forfeiture actions, county traffic actions and actions concerning violations of county ordinances which are in conformity with state criminal laws in the courts within his or her prosecutorial unit and have 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 and 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 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 within his or her prosecutorial unit unless another prosecutor is substituted under s. 5.05(2m)(h) or this chapter or by referral of the government accountability board under s. 5.05(2m)(c)15. or 16. For purposes of this subsection, a person other than a natural person is a resident of a prosecutorial unit if the person’s principal place of operation is located in that prosecutorial unit. . . . .
(8) ADMINISTRATION. . . .
(b) . . . The district attorney may request the assistance of district attorneys, deputy district attorneys, or assistant district attorneys from other prosecutorial units or assistant attorneys general who then may appear and assist in the investigation and prosecution of any matter for which a district attorney is responsible under this chapter in like manner as assistants in the prosecutorial unit and with the same authority as the district attorney in the unit in which the action is brought.
III. DUTIES OF THE ATTORNEY GENERAL AND DEPARTMENT OF JUSTICE.
Duties of department of justice. The department of justice shall:
(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. . . . .
(3) ADVISE DISTRICT ATTORNEYS. Consult and advise with the district attorneys when requested by them in all duties pertaining to the duties of their office.
Wisconsin Stat. § 165.50 provides in part: Criminal investigation. (1) The department of justice shall perform the following criminal investigatory functions for the state:
(a) Investigate crime that is statewide in nature, importance or influence.
Wisconsin Stat. § 165.70 provides in part: Investigation of statewide crime. (1) The department of justice shall do all of the following:
(a) Investigate crime that is statewide in nature, importance or influence.
IV. JUDICIAL APPOINTMENT OF SPECIAL PROSECUTORS.
Wisconsin Stat. § 978.045 provides in part: Special prosecutors. (1g) A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection. Before a court appoints a special prosecutor on its own motion or at the request of a district attorney for an appointment that exceeds 6 hours per case, the court or district attorney shall request assistance from a district attorney, deputy district attorney or assistant district attorney from other prosecutorial units or an assistant attorney general. A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney’s or the court’s inability to obtain assistance from another prosecutorial unit or from an assistant attorney general.
(1r) Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists: . . . .
(h) The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff.
INTRODUCTION
The Legislature engrafted the provisions of 2007 Wisconsin Act 1 upon preexisting statutes setting forth the statutory duties of district attorneys, the Attorney General, the Elections Board, and the Ethics Board. “It is presumed that the legislature has in mind previous statutes dealing with the same subject matter when it enacts a new provision.” State v. Temby, 108 Wis. 2d 521, 530, 322 N.W.2d 522 (Ct. App. 1982). Courts disfavor the implied repeal of longstanding statutory power or authority. State v. Zawistowski, 95 Wis. 2d 250, 264, 290 N.W.2d 303 (1980). “‘[I]n the absence of any express repeal or amendment therein, the new provision [is] enacted in accord with the legislative policy embodied in the prior statutes, and they should all be construed together.’” Temby, 108 Wis. 2d at 530 (quoted authority omitted). It is also axiomatic that an amendment to a statute changes its meaning only to the extent expressly stated or necessarily implied by the amendatory language. Jaeger Baking Co. v. Kretschmann, 96 Wis. 2d 590, 598, 292 N.W.2d 622 (1980). See Milw. Fed. of Teachers, Local No. 252 v. WERC, 83 Wis. 2d 588, 599, 266 N.W.2d 314 (1978), quoting 1A Sutherland, Statutory Construction § 22.30 (4th ed., Sands, 1972), at 179. “[A]s to changing statutory law, there is a presumption against the implied repeal or amendment of any existing statutory provision. In accord with this conservative attitude, an amendatory act is not to be construed to change the original act or section further than expressly declared or necessarily implied.”
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.
