January 2007 Special Session Date of enactment:
February 2, 2007
Senate Bill 1 Date of publication*:
February 16, 2007
2007 WISCONSIN ACT 1
An Act to repeal 5.05 (1) (a), 5.05 (3), 5.05 (5), 5.05 (6), 7.21 (2m), 11.38 (5), 13.69 (8), 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (1) and (2), 19.47 (4), 19.49 (title), 19.49 (1), 19.49 (3), 19.49 (4), 19.50 (title), 19.50 (2), 19.51 (title), 19.51 (1) (a) and (b), 19.51 (3), 19.52, 19.53 (intro.), 19.53 (1) to (5), 19.53 (7) and (8), 19.535, 19.54, 19.545, 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (gm), 20.510 (1) (h), 20.510 (1) (i), 20.511 (1) (c), 20.521 (intro.), 20.521 (1) (title), 20.521 (1) (a), 20.521 (1) (g), 20.521 (1) (i), 20.923 (4) (d) 3., 20.923 (4) (d) 4., 230.08 (2) (om), 230.08 (2) (wm) and 778.136; to renumber 19.47 (3), 19.47 (6), 19.49 (1m), 19.50 (4) and (5), 19.51 (2), 19.579, 20.510 (1) (b), 20.510 (1) (bm), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (j), 20.510 (1) (q), 20.510 (1) (t) and 20.510 (1) (x); to renumber and amend 15.617, 19.46 (2), 19.47 (5), 19.49 (2), 19.49 (5), 19.50 (intro.) and (1), 19.50 (3), 19.51 (1) (intro.), 19.53 (6), 19.55 (2) (a), 19.55 (2) (b), 20.521 (1) (b) and 20.521 (1) (h); to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (1) (e), 5.05 (9), 5.05 (11), 5.055, 5.056, 5.08, 5.09, 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2) (c), 6.36 (2) (a), 6.56 (3) to (5), 7.08 (title), 7.08 (7), 7.15 (1) (g), 7.31 (5), 7.60 (4) (a), 7.60 (5), 7.70 (1), 7.70 (5), 8.05 (1) (j) 3., 8.10 (5), 8.15 (4) (b), 8.18 (2), 8.20 (6), 8.50 (3) (a), 8.50 (3) (e), 9.01 (1) (a) 1., 9.01 (1) (ag) 4., 9.01 (1) (ar) 2., 9.01 (10), 10.06 (1) (title), 11.21 (title), 11.21 (7) (intro.), 11.22 (4), 11.60 (4), 11.60 (5), 11.61 (2), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k), 14.58 (20), 15.07 (1) (cm), 15.07 (4), 16.753 (2), 16.79 (2), 16.96 (3) (b), 16.973 (6), 17.17 (1), 17.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.), 19.55 (1), 19.55 (2) (c), 19.579 (title), 19.59 (1) (g) 8., 19.85 (1) (h), 20.455 (1) (b), 20.930, 46.95 (4), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 71.10 (3) (b), 73.0301 (1) (d) 13., 73.0301 (1) (e), 85.61 (1), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c), 125.05 (1) (b) 10., 165.25 (1), 165.25 (3r), 165.25 (8), 165.25 (8m), 165.93 (4), 198.08 (10), 200.09 (11) (am) 2. and 3., 227.03 (6), 227.45 (1), 227.46 (1) (intro.), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 301.03 (20m), 343.11 (2m), 560.04 (2m), 778.135, 801.52, 971.225 (1) (intro.) and 978.05 (1) and (2); to repeal and recreate 15.07 (1) (a) 2., 19.47 (title) and 20.005 (3) (schedule) 20.511; and to create 5.05 (1e), 5.05 (1m), 5.05 (2m), (2s) and (2w), 5.05 (3g), 5.05 (5f) (title), 5.05 (5s) (title), (d) and (e), 5.05 (5s) (f) 2. c., 5.052, 5.054, 8.30 (2m), 12.13 (5), 12.60 (1) (bm), 15.07 (2) (b), 15.07 (5) (m), 15.60, 15.603, 19.851, 20.511 (intro.) and (1) (title) and (a), 20.511 (1) (h) and (i), 20.923 (4) (f) 3j., 230.08 (2) (e) 4h., 230.08 (2) (on), 758.19 (9), 801.50 (5t), 801.64, 971.19 (12) and 971.223 of the statutes; relating to: creation of a Government Accountability Board, enforcement of elections, ethics, and lobbying regulation laws, venue for prosecution of certain offenses, granting rule-making authority, making appropriations, and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
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1. 5.02 (1s) of the statutes is amended to read:
5.02 (1s) "Board" means the elections government accountability board.
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2. 5.05 (title) of the statutes is amended to read:
5.05 (title) Elections Government accountability board; powers and duties.
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3. 5.05 (1) (intro.) of the statutes is amended to read:
5.05 (1) General authority. (intro.) The elections government accountability board shall have the responsibility for the administration of chs. 5 to 12 and, other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19. Pursuant to such responsibility, the board may:
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4. 5.05 (1) (a) of the statutes is repealed.
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5. 5.05 (1) (b) of the statutes is amended to read:
5.05 (1) (b) In the discharge of its duties and upon after providing notice to the any party or parties being investigated who is the subject of an investigation, subpoena and bring before it any person in the state and require the production of any papers, books, or other records relevant to an investigation. Notwithstanding s. 885.01 (4), the issuance of a subpoena requires action by the board at a meeting of the board. A circuit court may by order permit the inspection and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3)
, doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.
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6. 5.05 (1) (c) of the statutes is amended to read:
5.05 (1) (c) Bring civil actions to require forfeitures a forfeiture for any violation of ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only violations with respect to reports or statements required by law to be filed with it, and other violations arising under elections for state office or statewide referenda chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or a license revocation for any violation of subch. III of ch. 13 for which the offender is subject to a revocation. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it under ch.11 which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, an a civil action or proposed civil action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling civil actions or proposed civil actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Forfeiture Except as otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08, 5.081, 19.535, and 19.59 (8), forfeiture and license revocation actions brought by the board shall be brought in the circuit court for the county where the defendant resides, or if the defendant is a nonresident of this state, in circuit court for the county wherein the violation is alleged to occur. For purposes of this paragraph, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. Whenever the board enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board for a possible civil violation of one of those provisions, the board shall reduce the agreement to writing, together with a statement of the board's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.
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7. 5.05 (1) (e) of the statutes is amended to read:
5.05 (1) (e) Delegate to its executive director its legal counsel the authority to issue a subpoena under par. (b), apply for a search warrant under par. (b), commence an action under par. (d), intervene in an a civil action or proceeding under sub. (9), issue an order under s. 5.06, exempt a polling place from accessibility requirements under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e), subject to such limitations as the board deems appropriate.
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8. 5.05 (1e) of the statutes is created to read:
5.05 (1e) Actions by the board. Any action by the board requires the affirmative vote of at least 4 members.
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9. 5.05 (1m) of the statutes is created to read:
5.05 (1m) Legal counsel. The board shall employ outside the classified service an individual to serve as legal counsel who shall perform legal and administrative functions for the board.
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10. 5.05 (2m), (2s) and (2w) of the statutes are created to read:
5.05 (2m) Enforcement. (a) The board shall investigate violations of laws administered by the board and may prosecute alleged civil violations of those laws, directly or through its agents under this subsection, pursuant to all statutes granting or assigning that authority or responsibility to the board. Prosecution of alleged criminal violations investigated by the board may be brought only as provided in par. (c) 11., 14., 15., and 16. and s. 978.05 (1).
(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. If the board finds, by a preponderance of the evidence, that a complaint is frivolous, the board may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division in investigating the complaint.
4. If the board reviews a complaint and fails to find that there is a reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board shall dismiss the complaint. If the board believes that 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. To assist in the investigation, the board may elect to retain a special investigator. If the board elects to retain a special investigator, the administrator of the ethics and accountability division shall submit to the board the names of 3 qualified individuals to serve as a special investigator. The board may retain one or more of the individuals. If the board retains a special investigator to investigate a complaint against a person who is a resident of this state, the board shall provide to the district attorney for the county in which the person resides a copy of the complaint and shall notify the district attorney that it has retained a special investigator to investigate the complaint. 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. The board shall enter into a written contract with any individual who is retained as a special investigator setting forth the terms of the engagement. A special investigator who is retained by the board may request the board to issue a subpoena to a specific person or to authorize the special investigator to request a circuit court to issue a search warrant. The board may grant the request by approving a motion to that effect at a meeting of the board if the board finds that such action is legally appropriate.
5. Each special investigator who is retained by the board shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 30 days. If the board authorizes the administrator of the ethics and accountability division to investigate any matter without retaining a special investigator, the administrator shall make periodic reports to the board, as directed by the board, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the board shall meet for the purpose of reviewing the progress of the investigation at least once every 90 days. The special investigator or the administrator shall report in person to the board at that meeting concerning the progress of the investigation. If, after receiving a report, the board does not vote to continue an investigation for an additional period not exceeding 90 days, the investigation is terminated at the end of the reporting interval. The board shall not expend more than $10,000 to finance the cost of an investigation before receiving a report on the progress of the investigation and a recommendation to commit additional resources. The board may vote to terminate an investigation at any time. If an investigation is terminated, any complaint from which the investigation arose is deemed to be dismissed by the board. Unless an investigation is terminated by the board, at the conclusion of each investigation, the administrator shall present to the board one of the following:
a. A recommendation to make a finding that probable cause exists to believe that one or more violations under subd. 2. have occurred or are occurring, together with a recommended course of action.
b. A recommendation for further investigation of the matter together with facts supporting that course of action.
c. A recommendation to terminate the investigation due to lack of sufficient evidence to indicate that a violation under subd. 2 has occurred or is occurring.
6. a. 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 authorize the administrator of the ethics and accountability division to file a civil complaint against the alleged violator. In such case, the administrator may request the assistance of special counsel to prosecute any action brought by the board. If the administrator requests the assistance of special counsel with respect to any matter, the administrator shall submit to the board the names of 3 qualified individuals to serve as special counsel. The board may retain one of the individuals to act as special counsel. The staff of the board shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.
b. The board shall enter into a written contract with any individual who is retained as special counsel setting forth the terms of the engagement. The contract shall set forth the compensation to be paid such counsel by the state. The contract shall be executed on behalf of the state by the board's legal counsel, who shall file the contract in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.455 (1) (b).
7. No individual who is appointed or retained by the board to serve as special counsel or as a special investigator is subject to approval under s. 20.930.
8. Upon employment of any individual to serve as special counsel or as a special investigator for the board, the administrator of the ethics and accountability division shall certify the maximum amount provided in the employment contract to the secretary of administration, and direct the department of administration to pay bills of the special counsel or special investigator related to that case within the certified amount.
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.
12. The board may, by rule, prescribe categories of civil offenses which the board will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The board may authorize the administrator of the ethics and accountability division to compromise and settle such alleged offenses in the name of the board if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $1,000.
13. If a special investigator or the administrator of the ethics and accountability division, in the course of an investigation authorized by the board, discovers evidence that a violation under subd. 2. that was not within the scope of the authorized investigation has occurred or is occurring, the special investigator or the administrator may present that evidence to the board. If the board finds that there is a reasonable suspicion that a violation under subd. 2. that is not within the scope of the authorized investigation has occurred or is occurring, the board may authorize the special investigator or the administrator to investigate the alleged violation or may elect to authorize a separate investigation of the alleged violation as provided in subd. 4.
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.
(d) 1. No individual who serves as the legal counsel to the board or as a division administrator for the board may have been a lobbyist, as defined in s. 13.62 (11). No such individual may have served in, or have been a candidate, as defined in s. 11.01 (1), for, a partisan state or local office.
2. No employee of the board, while so employed, may become a candidate, as defined in s. 11.01 (1), for a state or partisan local office. No individual who is retained by the board to serve as a special investigator or as special counsel may, while so retained become a candidate, as defined in s. 11.01 (1), for any state or local office. A filing officer shall decline to accept nomination papers or a declaration of candidacy from any individual who does not qualify to become a candidate under this paragraph.
(e) No individual who serves as an employee of the board and no individual who is retained by the board to serve as a special investigator or a special counsel may, while so employed or retained, make a contribution, as defined in s. 11.01 (6), to a candidate for state or local office. No individual who serves as an employee of the board and no individual who is retained by the board to serve as a special investigator or as special counsel, for 12 months prior to becoming so employed or retained, may have made a contribution, as defined in s. 11.01 (6), to a candidate for a partisan state or local office.
(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.
(2s) Ethics and accountability division. The ethics and accountability division has the responsibility for administration of ch. 11, subch. III of ch. 13, and subch. III of ch. 19.
(2w) Elections Division. The elections division has the responsibility for the administration of chs. 5 to 10 and 12.
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11. 5.05 (3) of the statutes is repealed.
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12. 5.05 (3g) of the statutes is created to read:
5.05 (3g) Chief election officer. The board shall designate an employee of the board to serve as the chief election officer of this state.
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13. 5.05 (5) of the statutes is repealed.
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14. 5.05 (5f) (title) of the statutes is created to read:
5.05 (5f) (title) Advice to board.
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15. 5.05 (5s) (title), (d) and (e) of the statutes are created to read:
5.05 (5s) (title) Access to records.
(d) If the board commences a civil prosecution of a person for an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 as the result of an investigation, the person who is the subject of the investigation may authorize the board to make available for inspection and copying under s. 19.35 (1) records of the investigation pertaining to that person if the records are available by law to the subject person and the board shall then make those records available.
(e) The following records of the board are open to public inspection and copying under s. 19.35 (1):
1. Any record of the action of the board authorizing the filing of a civil complaint under sub. (2m) (c) 6.
2. Any record of the action of the board referring a matter to a district attorney or other prosecutor for investigation or prosecution.
3. Any record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred.
4. Any record containing a finding, following an investigation, that no probable cause exists to believe that a violation of the law has occurred.
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16. 5.05 (5s) (f) 2. c. of the statutes is created to read:
5.05 (5s) (f) 2. c. The board shall make public advisory opinions and records obtained in connection with requests for advisory opinions relating to matters under the jurisdiction of the elections division.
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17. 5.05 (6) of the statutes is repealed.
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18. 5.05 (9) of the statutes is amended to read:
5.05 (9) Standing. The board has standing to commence or intervene in an any civil action or proceeding for the purpose of enforcing the laws regulating the conduct of elections or election campaigns or ensuring their proper administration. If the board delegates authority to the executive director its legal counsel under sub. (1) (e) to act in its stead, the executive director legal counsel has standing to commence or intervene in such an action or proceeding.
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19. 5.05 (11) of the statutes is amended to read:
5.05 (11) Aids to counties and municipalities. From the appropriations under s. 20.510 20.511 (1) (t) and (x), the board may provide financial assistance to eligible counties and municipalities for election administration costs in accordance with the plan adopted under sub. (10). As a condition precedent to receipt of assistance under this subsection, the board shall enter into an agreement with the county or municipality receiving the assistance specifying the intended use of the assistance and shall ensure compliance with the terms of the agreement. Each agreement shall provide that if the federal government objects to the use of any assistance moneys provided to the county or municipality under the agreement, the county or municipality shall repay the amount of the assistance provided to the board.
