78 Op. Att'y Gen. 166 (1989)
 
78 OAG 166  167  168  169  170  171

Wisconsin Attorney General Opinions

Opinion # OAG 31-89

11 October 1989

District Attorney; District attorney's
obligation to prosecute town forfeiture
actions at the request of a town chairman
under Section 778.12, Stats., discussed.

DARWIN L ZWIEG,
District Attorney Clark County

You ask two questions related to your
duties under Section 778.12, Stats.

One of your questions may be
broadly restated as follows:

What is the extent of a district attorney's
obligation to prosecute town forfeiture
actions at the request of a town chairman
under Section 778.12?

It is my opinion that, while a district
attorney is statutorily required to exercise
his or her discretion upon receipt of such a
request in a manner that comports with the
purpose of the statute, a district attorney
retains limited prosecutorial discretion
under Section 778.12.

Section 778.12 provides as follows:

Duty of district attorney.

The town chairman shall forthwith notify the
district attorney of the county of every
forfeiture which he or she knows, has reason
to believe or which he or she has been so
informed has been incurred in the town, which
cannot be recovered before a municipal court,
who shall forthwith cause an action to be
commenced for the recovery thereof as well as
for the recovery of every forfeiture which he
or she otherwise knows or has reason to
believe has been incurred; and the district
attorney shall attend to and conduct any
action so commenced by the chairman, when
requested by him or her so to do.

A district attorney's obligations under
Section 778.12 are briefly summarized
in
57 Op. Att'y Gen. 198 (1968)
and
20 Op. Att'y Gen. 256 (1931).

Those duties are "limited to an attempt to
collect the forfeiture" in circumstances
where an action to collect a forfeiture
cannot be prosecuted in a municipal court
somewhere within the county.

57 Op. Att'y Gen. at 199. See Section 755.05
which provides that "every municipal
judge has countywide jurisdiction."

 
78 OAG 166  167  168  169  170  171

There is no statutory requirement that a
district attorney engage in post judgment
collection activity after a judgment for
a municipal forfeiture is obtained.

Absent any legislation, the scope of a
district attorney's prosecutorial discretion
is described in Thompson v. State, 61 Wis.2d
325, 328-32, 212 N.W.2d 109 (1973). In the
criminal context, that discretion has been
summarized in the following fashion:

It is clear that in his functions as a
prosecutor he has great discretion in
determining whether or not to prosecute.

There is no obligation or duty upon a
district attorney to prosecute all complaints
that may be filed with him.

While it is his duty to prosecute criminals,
it is obvious that a great portion of the
power of the state has been placed in his
hands for him to use in the furtherance of
justice, and this does not per se require
prosecution in all cases where there
appears to be a violation of the
law no matter how trivial.

In general, the district attorney is not
answerable to any other officer of the
state in respect to the manner in
which he exercises those powers.

State ex rel. Kurkierewicz v. Cannon,
42 Wis.2d 368, 378,
166 N.W.2d 255 (1969).

But Kurkierewicz, 42 Wis.2d at 380, also
indicates that "it is equally clear that the
legislature may, if it desires, spell out the
limits of the district attorney's discretion
and can define the situations that will
compel him to act in the performance of
his legislatively prescribed duties."

The exercise of prosecutorial discretion was
not discussed in 57 Op. Att'y Gen. 198, 20
Op. Att'y Gen. 256 or any other prior
opinion mentioning the statute.

The statutory language must be examined in
order to ascertain the extent to which the
Legislature has limited the exercise
of prosecutorial discretion.

 
78 OAG 166  167  168  169  170  171

The factors to be considered in examining the

statutory language are as follows:

In determining whether a statutory
provision is mandatory or directory in
character, we have previously said that
a number of factors must be examined.

These include the objectives sought to
be accomplished by the statute, its
history, the consequences which would
follow from the alternative
interpretations, and whether a penalty
is imposed for its violation. We have
also stated that directory statutes are
those having requirements

"which are not of the substance
of things provided for."

Cross,
94 Wis.2d at 340-41 (citations omitted).

57 Op. Att'y Gen. at 199 does indicate
that the purpose of Section 778.12 is to
impose an obligation on a district attorney

to commence and conduct actions for
recovery of a forfeiture imposed by a
town . . ordinance when requested by the
town chairman.

But the use of the word "shall"
is not conclusive in circumstances where no
penalty for non-compliance has been
prescribed by the Legislature.

Warner v. Department of Transp.,
102 Wis.2d 232, 234-35,
306 N.W.2d 266 (Ct.App. 1981);

Cross v. Soderbeck,
94 Wis.2d 331, 340-41,
288 N.W.2d 779 (1980).

The language of Section 778.12 also
explicitly limits the exercise of
prosecutorial discretion in two respects.

First, it removes a district attorney's
discretion to refuse to prosecute forfeiture
actions solely on the basis that the request
to prosecute has been made by a town and
that he forfeiture proceeds would
accrue to a town.

Compare 64 Op. Att'y Gen. 157, 160-61 (1975).

Second, the phrase "shall forthwith cause an
action to be commenced" imports a requirement
of promptness.

It does not mean immediately, but
rather "at the earliest opportunity."

See
State v. Garton,
2 Kan. App. 2d 709,
586 P.2d 1386, 1388 (1978).

Thus, a potential defendant could not obtain
dismissal solely on the grounds that the
action was not commenced immediately, compare
Karow v. Milwaukee County Civil Serv. Comm.,
82 Wis.2d 565, 263 N.W.2d 214 (1978), but it
is conceivable that a town chairman might be
able to seek mandamus if the delay in
commencing the action were so long
as to be prejudicial to the town.

Garton, 586 P.2d at 1388.

 
78 OAG 166  167  168  169  170  171

However, in any case where the district
attorney could demonstrate the existence
of substantial legal questions concerning
the validity of a town's forfeiture
ordinance, it would be extremely
difficult for the town
chairman to establish prejudice.

See
Karow, 82 Wis.2d at 572 n.7, quoting
State ex rel. Cothren v. Lean,
9 Wis. 254 [*279], 266 [*292] (1859);
State v. Industrial Comm.,
233 Wis. 461, 466,
289 N.W. 769 (1940).

On balance, with the two exceptions noted, I
conclude that a district attorney retains
limited discretion as to whether and how to
prosecute a forfeiture action at the request
of a town chairman, but that such discretion
must be exercised reasonably and in a manner
consistent with the purpose of the statute so
as not to result in a "wholesale refusal to
comply with a statutory duty."

See 64 Op. Att'y Gen. at 159.

You also request my opinion concerning
the validity and application to preexisting
Amish burial grounds of a town
ordinance regulating cemeteries.

In an opinion to Acting Milwaukee County
Corporation Counsel George E. Rice,
I recently said:

In 76 Op. Att'y Gen. 60, 64 (1987),
Ideclined to decide whether a town's
ordinance violated state law because
"such a judgment would require a factual
analysis as to how the town's ordinance
operates in actual practice."

More recently, I indicated that

the attorney general has no authority
to decide questions of fact, nor can
his judgment be substituted for the
discretion vested in another state
officer.

40 Op. Att'y Gen. 3, 4 (1951)."

77 Op. Att'y Gen. 36, 40 (1988).

See also 68 Op. Att'y Gen. 416, 421 (1979).

Although the meaning of a county ordinance
presents a question of law rather than a
question of fact, the facts and documents
necessary to ascertain the meaning of any
municipal ordinance are or should be readily
available to that municipality's attorney.

And, as a public officer, it is the function
of the municipal attorney to provide legal
advice concerning the meaning of the
ordinances enacted by that municipality.

 
78 OAG 166  167  168  169  170  171

For the policy reasons expressed in
77 Op. Att'y Gen. at 40
and in
76 Op. Att'y Gen. at 64,
I decline to offer any opinion
concerning the meaning or
intent of the quoted
ordinances.

I am also taking this opportunity to advise
state and local officials that, except in
extraordinary circumstances, the attorney
general will not issue opinions
concerning the meaning or intent
of municipal ordinances.

77 Op. Att'y Gen. 120, 123 (1988)

I have followed the policy considerations
articulated in 77 Op. Att'y Gen. 120
even in connection with opinion
requests from the Legislature.

See OAG 58-88 (October 12, 1988)
(unpublished).

I see no reason to depart from them
merely because a town is unwilling
to establish a municipal court.

However, in light of my answer to your
previous question, I perceive no abuse of
prosecutorial discretion in this instance in
requesting a detailed legal opinion from
reputable counsel retained by the town before
commencing the prosecution of any action for
a forfeiture under the town's ordinance.

DJH:FTC

 
78 OAG 166  167  168  169  170  171