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
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