MISCONDUCT IN PUBLIC OFFICE - TRIAL MANUAL
 
1999 Global Justice Search Intro
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1975 Trial Manual Cover
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1975 Trial Manual Preface
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1975 Table of Contents
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1975 Wisconsin Cases Cited
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1975 Federal  Cases Cited
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1975 Attorney General Opinions
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1975 Statute Involved
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1975 Historical Background
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1975 General Introduction
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1999 Misconduct 1999 Statute
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1999 Parties to Crime Statute
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1999 Updated Table of Cases
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1999 World Wide Web Resources
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TRIAL MANUAL - MISCONDUCT IN PUBLIC OFFICE

Wisconsin Department of Justice
Bronson C. LaFollette,
Attorney General 1975


PREFACE - written by Department of Justice

TRIAL MANUAL ON MISCONDUCT IN PUBLIC OFFICE

Wisconsin Department of Justice
Bronson C. LaFollette,
Attorney General 1975

This manual was developed to provide the
prosecutor with a ready source of information
relative to the crime of misconduct in public
office. It is designed to be carried with the
prosecutor as he litigates these matters in
the courts of the State of Wisconsin. This
manual was prepared by the Wisconsin
Department of Justice.

Law Clerk Susan Steingass, under the
supervision of Assistant Attorney General
Peter A. Peshek, is credited with the
extensive research, writing and review
that went into the publication.

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TABLE OF CONTENTS

GENERAL INTRODUCTION

Wisconsin - Table of Cases Cited

Other States - Table of Cases Cited

Federal Court  - Table of Cases Cited

Wisconsin Attorney - General Opinions

Wisconsin Misconduct in Public Office

HISTORY - An introduction to Misconduct

GENERAL INTRODUCTION

I.  Section 946.12(1) INTRODUCTION; ELEMENTS

    1.   The defendant was, at the time
         of the offense, a public
         officer of employee.

    2.   That Said officer knew what his duty
         was, by law, and in terms of the
         time and manner in which it
         was to be perfected.

         a.  Mandatory and Discretionary
             Duties

         b.  By Law.

     3.  That said officer or employee
         intentionally failed or refused
         to perform said duty.

         a.  Motions To Dismiss And Defenses.

         b.  Proof Of Intent.

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II. Section 946.12(2) INTRODUCTION; ELEMENTS

     1.  That the defendant was, at the
         time of the offense, a public
         officer or employee.

     2.  that the defendant was acting
         in his official capacity.

     3.  that the defendant knew or believed
         that he was either acting in excess
         of his lawful authority or that
         he was acting in a way forbidden
         by law.

         a.  Intent.

         b.  In Excess o Lawful Authority or
             in a Manner Forbidden by Law.

MISCONDUCT IN PUBLIC OFFICE Trial Manual

III. Section 946.12(3) INTRODUCTION; ELEMENTS

     1.  that the defendant was, at the time
         of the offense, a public officer
         or employee.

     2.  that said public officer or employee
         was acting in his official capacity

     3.  that said public officer or employee
         was performing a discretionary duty
         in the manner inconsistent with the
         duties of his office or employment
         or in a manner inconsistent with
         the right of others.

         a.  Scope of Discretion.

         b.  inconsistency with the duties
             of His Office, Employment,
             or the Rights of Others.

     4.  that he acted with intent to obtain
         a dishonest advantage for himself
         or others.

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IV. Section 946.12(4) INTRODUCTION; ELEMENTS

     1.  that the defendant was at the time
         of the office a public officer or
         employee.

     2.  that the defendant was acting
         in his official capacity.

     3.  that the defendant made
         a false entry.

     4.  that it was false in a
         material respect.

MISCONDUCT IN PUBLIC OFFICE Trial Manual

V.  Section 946.12(5) INTRODUCTION; ELEMENTS

     1.  that the defendant was a public
         officer or employee.

     2.  that the defendant intentionally
         solicited or accepted for the
         performance of any service or
         duty anything of value.

         a.  intent.

         b.  Solicits or accepts.

         c.  Performance of Any Service
             or Duty.

         d.  Anything of Value.

     3.  that the defendant knew the amount
         solicited or accepted to be greater
         or less than is fixed by law.

     4.  that the defendant intentionally
         solicited accepted such improper
         under color of his office
         or employment

VI. Constitutional Defenses To Section 946.12

     A.  Constitutional Challenges To The
         Sufficiency Of The Charge

     B.  Constitutional Challenges To
         The Statute Itself.

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TABLE OF WISCONSIN CASES

Bohn v. Sauk County (1954),
268 Wis. 213, 67 N.W. 2d 288.

Boles v. Industrial Commission (1958),
5 Wis. 2d 382, 92 N.W. 873

Burton V. State Appeal Board (1968),
38 Wis. 2d 294, 156 N.W. 2d 386.

Druecker v. Salomon (1867),
21 Wis. 629, 94 A.D. 571.

Ellefson v. Smith (1924),
182 Wis. 398, 196 N.W. 834.

Fath v. Koeppel (1888),
72 Wis. 289, 39 N.W. 539.

Georgiades v. Glickman (1956),
272 Wis. 257, 75 N.W. 2d 573.

Hanley v. Stats (1905),
125 Wis. 396, 104 N.W. 57.

Herde v. State (1941),
236 Wis 408, 295 N.W. 684.

Holesome v. State (1968),
40 Wis. 2d 95, 161 N.W. 2d 283.

Kewaunee County v. Knipfer (1875),
37 Wis. 496.

Land, Log & Lumber Company v.
McIntyre (1898),
100 Wis. 258, 75 N.W. 964.

Liskowitz v. State (1939),
229 Wis. 636, 282 N.W. 103.

Lochner v. State (1935),
218 Wis. 472, 261 N.W. 227.

Lowe v. Conroy (1904),
120 Wis. 151, 97 N.W. 942.

Martin v. Smith (1941),
239 Wis. 314, 1 N.W. 2d 163.

Maxwell v. Hartmann (1881),
50 Wis. 660.

Musback v. Schaefer (1902),
115 Wis. 357, 91 N.W. 966.

Quaw v. Paff (1898),
98 Wis. 586, 74 N.W. 369.

Quayle v. Bayfield County (1902),
114 Wis. 108, 89 N.W. 892.

Reichert v. Milwaukee County (1914),
159 Wis. 25, 150 N.W. 401.

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Rosenberg v. State (1933),
212 Wis. 434, 249 N.W. 541.

Ryan v. Olson (1924),
183 Wis. 290, 197 N.W. 727.

Smith v. State (1928),
195 Wis. 555. 218 N.W. 822.

State ex rel Arnold v. County Court (1971),
51 Wis. 2d 434, 187 N.W. 2d 354.

State ex rel Carpenter v. Hastings (1860),
10 Wis. 461.

State ex rel Dinneen v. Larson (1939),
231 Wis. 207, 284 N.W. 21.

State ex rel Gill v. Common Council (1859),
9 Wis. 229.

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

State ex rel Kuszewski v. Board of Fire and
Police Commissioners(1963),
22 Wis. 2d 19, 125 NW. 335.

State ex rel Nelson v. Rock County (1955),
271 Wis. 312, 73 N.W. 2d 564.

State ex rel Pierce v. Board of Trustees
(1934),
158 Wis. 417, 149 N.W. 205.

State ex rel Schwenker v. District Court
(1932),
206 Wis. 600, 240 N.W. 406.

State ex rel Sisson v. Kalk (1929),
 197 Wis. 573, 223 N.W. 83.

State ex rel Stock v. Kubiak (1952),
262 Wis. 613, 55 N.W. 2d 905.

State v. Alfonsi (1967),
33 Wis. 2d 469, 147 N.W. 550.

State v. Bennett (1934),
213 Wis. 456, 252 N.W. 298.

State v. Brown (1910),
143 Wis. 405. 127 N.W. 956.

State v. Davidson (1943),
242 Wis. 406, 8 N.W. 2d 275.

State v. Davis (1974),
63 Wis. 2d 75, 216 N.W. 2d 31.

Slate v. Givens (1965),
28 Wis. 2d 109, 135 N.W. 2d 780.

State v. Kort (1972),
54 Wis. 2d 129, 194 NW. 2d 682.

State v. Lombardi (1959),
8 Wis. 2d 421, 99 N.W. 2d 829.

State v. Meating (1930),
202 Wis. 47, 231 N.W. 263

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Slate v. Zwicker (1969),
41 Wis. 2d 497, 104 N.W. 2d 512.

St. Croix County v. Webster (1901),
111 Wis. 270, 87 N.W. 302.

U.S. Fidelity & Guaranty Company v. Hooper
(1935),
219 Wis. 373, 263 N.W. 184

Wasserman v. Kenosha (1935),
217 Wis. 223. 258 N.W. 857.

Whitty v. State (1967),
34 Wis. 2d 278, 149 N.W. 557.

OTHER STATE CASES:

Hannon v. Madden (1931),
214 Cal. 251. 5 P. 2d 4.

Johnson v. State (1968),
251 Ind. 17, 238 N.W. 2d 651.

People ex rel Rush v. Wortman (1929),
334 Ill. 298. 165 N.E. 788,
64 A.L.R. 530

People v. Kingsbury (1933),
353 Ill., 11, 186 N.E. 2d 470.

People v. Patrick (1967),
38 Ill. 2d 255, 230 N.E. 2d 843.

Ruwaldt v. W. C. McBride, Inc. (1944),
388 Ill. 285, 57 N.E. 2d 863,
155 A.L.R. 1209.

State v. Begyn (1961),
34 N.J. 35, 167 A. 2d 161.

State v. Matule (1959),
154 N.J. Super. 326, 148 A. 2d 848.

State v. Weleck (1952),
10 N.J. 355, 91 A. 2d 751.

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FEDERAL COURT CASES:

Blake v. U.S. (8th Cir. 1963),
323 F. 2d 245.

Boyce Motor Lines v. U. S. (1952),
342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367.

Britton v. Niccols (1882),
104 U.S. 757. 26 L.Ed. 917.

Butler v. U.S. (10th Cir.. 1952),
197 F. 2d 561.

Connally v. General Construction Co (1925),
269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.

Crawford v. U.S. (1908),
212 U.S. 183, 53 L.Ed. 465.

Grayned v. City of Rockford (1972),
408 U.S. 104. 92 S.Ct. 2294, 33 L.Ed. 2d, 22.

Lanzetta v. State (1939),
306 U.S. 451, 59 S.Ct 618, 83 L.Ed. 888

Rogers v. The Marshal (1868),
68 U.S. 644, 1 Wall. 644, 17 L.Ed. 714.

Sneed v. Sabinal Mining & Milling Company
(7th Cir. 1896),
71 F., 493, 18 C.C.A. 43.

U.S. v. Birdsall (1914),
233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930.

U.S. v. Clearfield (E.D. Pa. 1973),
358 F. Supp. 564.

U.S. v. East (9th Cir. 1969),
416 F. 2d 351.

U.S. v. Egenberg (2d Cir. 1971),
441 F. 2d 441, cert. denied 404 U.S. 494.

U.S. v. Goldsmith (7th Cir. 1940),
108 F. 2d 917.

U.S. v. Harris (1954),
347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989.

U.S. v. Herrig (D. Mont. 1913),
204 F. 124.

U.S. v. Pope (S.D. N.Y. 1966),
189 F. Supp. 12.

U.S. v. Royer (1924),
268 U.S. 394, 45 S.Ct. 519, 69 L.Ed. 1011

U.S. v. Tzanstarmas (9th Cir. 1968),
402 F. 2d 163.

U.S. v. Wurzbach (1930),
280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508.

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WISCONSIN ATTORNEY GENERAL OPINIONS

1  OAG 503  (1913).

6  OAG  22  (1917).

10 OAG 877  (1921).

12 OAG 290  (1923).

17 OAG 147  (1928).

19 OAG 133  (1930).

20 OAG 883  (1931).

21 OAG 626  (1932).

21 OAG 1141 (1932).

39 OAG 114  (1949).

40 OAG 416  (1951).

40 OAG 488  (1951).

47 OAG 168  (1958).

48 OAG 257  (1959).

49 OAG 171  (1960).

50 OAG 354  (1961).

54 OAG 195  (1965).

58 OAG 158  (1969).

60 OAG 21   (1971).

61 OAG 256  (1972).

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IV   STATUTE INVOLVED

The Wisconsin Misconduct in Public Office
statute is Section 946.12, Wis. Stats.

946.12    Misconduct in public office.
          Any public officer or public
          employee who does any of the
          following may be fined not
          more than $50 or imprisoned
          not more than one year or both:

946.12(1) Intentionally fails or refuses to
          perform a known mandatory,
          nondiscretionary, ministerial duty
          of his office or employment within
          the time or in the manner required
          by law; or

946.12(2) In his capacity as such officer or
          employee, does an act which he
          knows is in excess of his lawful
          authority or which he knows he
          is forbidden by law to do in
          his official capacity; or

946.12(3) Whether by act of commission or
          omission, in his capacity as such
          officer or employee exercises a
          discretionary power in a manner
          inconsistent with the, duties of
          his office or employment or the
          rights of others and with intent
          to obtain a dishonest advantage
          for himself or another: or

946.12(4) In his capacity as such officer
          or employee, makes an entry in
          an account or record book or
          return, certificate, report
          or statement which in a
          material he intentionally
          falsifies: or

946.12(5) Under color of his office or
          employment, intentionally solicits
          or accepts for the performance of
          any service or duty anything of
          value which he knows is greater
          or less than is fixed by law.

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HISTORY

Wis. Stats. 946.12, covering misconduct in
public office, is a compilation of eleven
separate statutory offenses, which in their
turn codified the old common law offenses
of malfeasance, misfeasance, non-feasance,
and misconduct in public office.

Thus 946.12 is essentially a substantial
restatement of old law, with one important
distinction. Prior to the 1955 revision of
the Criminal Code, which resulted in passage
of 946.12, there had been strict liability
for many crimes committed while in public
office.

In 1955, the revision committee made clear
that it intended that criminal intent be
required for all violations.

As the Comment stated in relation to
subsection 946.12(1), but applicable to all
other subsections, if any officer is merely
mistaken as to his duty, "he is not guilty,
for such mistake negatives the existence of
the mental element required for the crime."

The specific prior crimes codified in 946.12
illustrate the intended breadth of statute.

348.209 of the Laws of 1931, malfeasance.
was divided into three subsections:

1.  making a contract not authorized or
    required by law, covered in 946.13 and
    946.12(2);

2.  making a false certification or report,
    covered in 946.12(4) and 946.12(2):

3.  charging higher fees than authorized by
    law, covered in 946.12(2) and 946.12(5).

348.29, neglect of duty, was divided into
discounting of claims, covered by 946.12(2);
discretionary duties, covered by 946.12(1);
and, extortion or oppression, covered by
946.12(3) and 946.12(5).

346.36 and 346.37 had to do with willful
refusal to accept a prisoner or make an
arrest, respectively, and were covered by
946.12(1) if involving a mandatory duty and
946.12(3) if involving a discretionary duty.

348.281, grafting by acceptance of
compensation not authorized by law,
was incorporated into 946.12(5)
as was 348.301, discounting of fees.

348.33 as to making a false certificate,
was consolidated into 946.12(4).

348.291, as to misuse of loans from trust
funds, was covered in 946.12(2).

348.219, 348.22 and 348.232 all had to do
with official neglect of duty at local
elections and were consolidated into
946.12(1) and 946.12(4).

The committee made it clear that 946.12(1),
946.12(2) and 946.12(3) were meant to be
general in nature, and that 946.12(4) and
946.12(5) covered conduct probably within
the more general prohibition of the first
three subsections.

However. such specific prohibitions were
felt to be of sufficient practical
importance to merit specific mention.

It is to be remembered that as 946.12 is
most decidedly a penal statute, it is
to be strictly construed in spite
of its broad intent.

Musback v. Schaefer (1902),
115 Wis. 357, 91 N.W. 966.

Thus the words and elements must be
carefully held to their actual,
and sometimes narrow, meaning.

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Also certain presumptions should be kept
in mind. It is true that a public official
may be presumed to know the Law.

Rogers v. The Marshall (1863),
68 U.S. 644.  1 Wall. 644. 17 L.Ed. 714.

But as the intent element is clearly required
to establish violation of 946.12, good faith
mistakes or misunderstanding of what the
duty imposed under law is can serve
as successful defenses.

There is as well, a presumption that the
duties were properly discharged, which
must be rebutted by clear proof of all
elements of the offense which convinces
the jury beyond a reasonable doubt.

As stated in

Boles v. Industrial Commission (1958),
5 Wis. 2d 382, 387,
92 N.W. 2d 873

and

43 Am. Jur., Public Officers,
Section 511, 254:

   In the absence of any proof to the
   contrary, there is a presumption
   that public officers have properly
   discharged the duties of their office
   and have faithfully performed those
   matters with which they are charged

The court also quoted
Hannon v. Madden (1931),
214 Cal. 251, 267, 5 P. 2d 4:

    . . If official acts may be explained
    on any reasonable theory of duty
    honestly, even though mistakenly
    performed, it must be resolved
    in favor of the presumption,
    which may not be lightly
    ignored.

As the above Section in Am. Jur. is cited
with approval in

Georgiades v. Glickman (1956),
272 Wis. 257, 75 N.W. 2d 573,

State el rel. Nelson v. Rock County (1955),
271 Wis. 312,
N.W. 2d 564, and

Bohn v. Sauk County (1954),
268 Wis. 213,
67 N.W. 2d 288,

it seems beyond serious dispute in Wisconsin.

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GENERAL INTRODUCTION

In discussing charging and proof of alleged
violations of 946.12, this manual will
attempt to approach problems in the
order in which a prosecuting
attorney is liable to encounter them.

Though there will be a brief discussion of
charging under 946.12, the substance of the
discussion will dwell On the elements
of violations of 946.12 itself.

The statute is frequently oblique, and
elements overlap between the subsections.

What may define an element for the purpose
of one Section may not serve in another,
and such discrepancies will be noted
where they occur.

For example, an essential element in all
alleged violations of 946.12 is that the
defendant was acting as a public officer or
employee as defined by Wis. Stat. 939.22(30).

In addition, for an alleged violation of
946.12(2), (3) and (4), he must be acting
in his official capacity. For an alleged
violation of 946.12(5), he must be
acting under color of his office.

Similarly, an essential element for all
alleged violations of 946.12 is criminal
intent, as defined by Wis. Stat. 939.23.

Though this apparently does not mean corrupt
and evil intent, intent to obtain dishonest
advantage does seem required for
violation of 946.12(3).

An attempt has been made to use, whenever
possible, only Wisconsin cases, and
discussion by example of specific charges
has been preferred to speculative and
theoretical discussions from cases arising
in other jurisdictions.

In short, an attempt has been made to make
this a functional prosecutors' manual, of
use primarily in the State of Wisconsin.

In as complete a manner as possible,
defenses have been anticipated.

Defenses arising out of the interpretation of
terms within the statute itself have been
disclosed as they arise in the context
of the discussion of the elements.

The anticipated constitutional attacks on the
statute as a whole, as well as due process
attacks on the sufficiency of complaints,
have been discussed in more abstract
terms at the end.

946.12(1), INTRODUCTION.

Wis. Stat 946.12(1) codifies the common law
crimes of non-feasance and misfeasance,
and provides that any public officer
or employee who,

   946.12(1) Intentionally fails or
   refuses to perform a known, mandatory,
   non-discretionary, ministerial duty
   of his office or employment within
   the time or in the manner required
   by law . . .

may be fined $500, imprisoned for
not more than a year, or both.

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946.12(1) contains three essential
elements which the prosecutor must
establish beyond a reasonable doubt:

1.  that the defendant was, at the time of
    the offense, a public officer or employee
    within the meaning of the Criminal Code,
    and Wis. Stats. 939.22(30);

2.  that said officer knew what his
    duty was, by law; and

3.  that said officer or employee
    intentionally failed or refused
    to perform that duty.

in issuing a complaint, it is essential to
allege that the defendant had a position
as a public officer or employee, that he
knew or should have known what his duties
were by law,  and that he willfully and
intentionally neglected to perform them.

However, as stated in

State v. Lombardi (1959),
8 Wis. 2d 421,
99 N.W. 2d 829,

it is not necessary
to charge corrupt
motive under 946.12(1).

[see discussion on intent element 3, infra].

It is sufficient to charge in the language
of the statute as long as the basic
requirement is met that in stating
a statutory offense, enough
is stated to so

   individuate the offence that the offender
   has proper notice . . . . . . of what the
   offense he is to be held for realty is."

See

Liskowitz v. State (1939),
229 Wis. 636,
282 N.W. 103.

The general Wisconsin rule, as stated in

Rosenberg v. State (1933),
212 Wis. 434,
249 N.W. 541,
is that

   a statement of an offense in the
   language of the statute is sufficient
   whenever enough is stated in connection
   with the use of the statutory language
   to inform the accused of the particular
   act or violation claimed.

[See discussion of due process defenses to
alleged violations of 946.12. infra, for
full discussion of this matter.]

Defenses which might be attempted in response
to prosecutions under 946.12 are:

1.   that defendant did not possess
     corrupt intent,

2.   that the duty was not prescribed
     "by law,"

3.   that defendant was not a de jure
     public officer, or

4.   that defendant made a good faith mistake
     as to the nature of his duty.

ELEMENT NO. 1 , that the defendant was, at
the time of the offense, a public officer or
employee. By Wisconsin Criminal Code
939.22(30), a public officer is

     any person appointed or elected
     according to law to discharge
     a public duty for the State
     or one of its subordinate
     governmental units.

A "public employee" is defined in terms of
one not a public officer who "performs any
official function on behalf of the State or
one of its subordinate governmental units"
who is paid from the public treasury.

No Wisconsin cases were found directly
differentiating between an officer and an
employee, though for purposes of charging and
prosecution, the distinction seems immaterial
as the charge would be made, in the Language
of the statute, in the disjunctive.

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In

Martin v. Smith (1941),
239 Wis. 314,
1 N.W. 2d 163,

cited with approval in

Burton v. State Appeal Board (1968),
38 Wis. 2d 294,
156 N.W. 2d 386,

the Wisconsin Supreme Court
accepted the description of
a "public officer" as one
holding an office

1. created by a constitution or a
   legislative act;

2. possessing a delegation of a
   portion of the sovereign power of the
   government to be exercised for the
   benefit of the public;

3. one holding a position with some
   permanency and continuity;

4. one having powers and duties devolved
   from legislative authority;

5. one with powers and duties to be
   performed independently and without
   control of the superior power other
   than the law, except in the case of
   an inferior officer specifically
   under control of a superior
   officer or body;

6. one holding a position entered into
   by official oaths or bond;

7. one holding a position by virtue of a
   commission or other written authority.

It is beyond question in Wisconsin that
though a defense to a prosecution under
946.12 could be made that defendant was
not an officer or employee, no defense
that he was not actually empowered to
take the office would lie.

Wis. Criminal Code 946.18 provides
specifically that 946.12 applies to
de facto as well as de jure officers.

For the purpose of the criminal Law, there is
no reason to distinguish between the two.

[see Vol. V, 1953,

Judiciary Committee Report on
The Criminal Code,
Wisconsin Legislative Council,
Page 184 (1953)].

As stated in

U.S. v. Rover (1924),
268 U.S. 394,
45 S.Ct. 519, 69 L.Ed. 1011,

an officer de facto is one who is
surrounded with the insignia of
office and seems to act with authority.

In that case respondent occupied the office
in question and discharged his duties in
good faith and with every appearance
of acting with authority.

Similarly, in

State v. rel. Sisson v. Kalk (1929),
197 Wis. 573,
223 N.W. 83,

even though the defendant was actually
ineligible for the office of Deputy City
Clerk, due to his age, once he had
assumed the functions of the office,
he became a de facto officer amid
his acts could bind the city.

In

People ex rel. Rush v. Wortman (1929),
334 Ill. 298,
165 N.E. 788, 64 ALR 530,

the court stated

   that in proceedings against people
   acting as officers who aren't eligible,

      "neither their eligibility to
       appointment nor the validity
       of their official acts can
       be inquired into."

   At 789.

The definitive Wisconsin case,
mentioned in the footnotes to the

Wisconsin Jury Instructions,
Criminal 1730, on 946.12(2),

is

State v. rel. Stock v. Kubiak (1952),
262 Wis 613,
55 N.W. 2d 905,

in which the courtstated that, generally, the
term "officer" should be broadly construed
for purpose of prosecution under 348.28(1),
the predecessor to 946.12(1).

In that case court upheld the allegation that
one appointed by the Town Board to act as a
financial agent and to issue municipal bonds,
was at least a de facto agent and thus could
be assumed to be, for the purposes of the
statute, an official performing
a public or official service.

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The conclusion would seem to be that a
prosecution for misconduct cannot be
defended against by the defendant's
claim that, because of some technicality,
at the time of the alleged misconduct,
he was not a public officer or employee.

In addition to city clerks and financial
agents, the following are some persons who
have been held to be public officers or
employee within the meaning of 946.12.

Though this list by no means pretends to be
complete, it might give some indication of
the broad manner in which the terms public
officer and employee have been interpreted:

1.  a University Regent is an employee,

    58 OAG 158 (1969),

    Martin v. Smith (1940),
    239 Wis. 314,
    1 N.W. 2d 163;

2.  a school board member is
    a public officer,

    12 OAG 290 (1923);

3.  town supervisors are public officers,

    10 OAG 877 (1921);

4.  superintendents of schools are
    public officers,

    1 OAG 503 (1913);

5.  those with the duty to relieve
    and take care of indigent persons
    are public employees,

    17 OAG 147 (1928);

6.  sheriffs are public officers,

    State v. Lombardi (1959),
    8 Wis. 2d 421,
    99 N.W. 2d 834;

7.  town supervisors are public officers,
    State v. Kort (1971),
    54 Wis. 2d 129,
    194 N.W. 2d 682;

8.  members of the housing authority are
    public employees,

    State v. rel. Arnold v.
    County Court (1971),
    51 Wis. 2d 434, 187 N.W. 2d 354;

9.  judges and justices are public officers,

    20 OAG 883 (1931);

10. justices of the peace are
    public officers,

    49 OAG 171 (1960);

11. district attorneys are public officers,

    60 OAG 21 (1971);

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

12. village presidents are public officers,

    40 OAG 416 (1951);

13. notary publics are public officers,

    Britton v. Niccolls (1882),
    104 U.S. 757, 26 L.Ed. 917;

    Maxwell v. Hartmann (1881),
    50 Wis. 660, 664,

    19 OAG 626 (1930),  <---------?
    21 OAG 626 (1932),
    50 OAG 354 (1916)   <---------?
 

ELEMENT NO. 2, that said officer knew
what his duty was, by law, and in
terms of the time and manner in
which it was to be performed.

Wis. Stat. 946.12(1) directs that the
defendant must fail or refuse to perform
a known, mandatory, nondiscretionary,
ministerial duty of his office within
the time or manner required by law.

Two problems immediately arise:

1.  what are duties imposed "by law,"

    and

2.  what distinguishes a mandatory duty
    from a discretionary duty?

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Even though an act is required "by law,"
a defense of impossibility of
performance will lie.

Similarly, if a defendant could establish
that he made a mistake in interpreting his
duty, or if that duty could be interpreted as
discretionary, such a defense would lie.

[See State ex rel. Schwenker v. District
Court 1932). 206 Wis. 600. 240 N.W. 406.]

If the duty was discretionary, the charge
could be dismissed under 946.12(1), Wis.
Stats., though it could properly lie under
946.12(3), Wis. Stats., in which the
prosecution would have a much more onerous
burden of establishing a higher degree of
corrupt intent and dishonest advantage.

In a related case, State v. Davis (1974),
63 Wis. 2d 75, 216 N.W. 2d 31, the Wisconsin
Supreme Court held that a public official
prosecuted under Wis. Stat. 946.13 could
successfully interpose the defense of good
faith reliance on the opinion of counsel.

The court emphasized that such a defense
would lie only where action by the official
was taken openly and in good faith, in
reliance on an opinion which counsel rendered
under statutory obligation.

Although this case concerns a prosecution
under Wis. Stat. 946.13, the defense
presented in Davis would appear applicable
under Wis. Stat. 946.12, as well.

In Wisconsin Jury Instructions, Criminal
1730, Note 2, the authors state that in the
usual case the court will be able to decide,
as a matter of law, whether the duty the
defendant allegedly failed or refused to
perform was mandatory.

However, in the rare situation where no
decision is made as a matter of law, the
issue goes to the jury as a matter of fact.

In instructing the jury as to how to decide
whether the duty is mandatory or
discretionary, recourse may be had to the
civil statutes defining that duty.

Also, in arguing before the court as to
what defines the nature of the duty,
the prosecuting attorney may make
reference to the case law defining
the terms "mandatory or discretionary"
and "by law".

a.  MANDATORY AND DISCRETIONARY DUTIES.

As mentioned above, the distinction between a
mandatory and discretionary duty can he
crucial in charging decisions under 946.12,
as corrupt intent must be established in
relation to discretionary duties,
though not as to mandatory duties.

Though it is usually possible to determine
whether a duty is mandatory or discretionary
as a matter of law, as stated in

Druecker v Salomon (1867),
21 Wis. 629,
94 A.D. 571,

   It is sometimes difficult to draw the
   exact line of distinction between
   ministerial and discretionary or
   judicial authority.

   (At 637)

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When the Wisconsin legislature added the
criminal intent requirement to all
violations of 946.12, and eliminated the old
statutes which imposed strict liability for
some misconduct in public office, it
eliminated the following situation
from

Reichert v. Milwaukee County (1914),
159 Wis. 25,
150 N.W. 401,

which stated the old rule that:

   Every ministerial officer in the
   performance of purely ministerial acts
   is required, at his peril to interpret
   the statute, or the order made in
   pursuance thereof . . . His decision if
   erroneous does not exempt him from
   liability in an action though his
   decision if correct is sufficient
   to defeat an action against him.

In the Comment to 946.12,
the revisors stated that:

   If the officer believes in good faith
   that the law imposes no duty on him
   in a particular case, he is not
   guilty, for such a mistake
   negatives the existence of
   the mental element required
   for the crime.

By Wis. Stat. 939.43(1), an honest error,
whether of fact or law, other than
criminal law, is a defense if it
negatives the existence of a
state of mind essential to the crime.

Thus, though the misconduct statute is a
penal statute, a matter of criminal law,
the civil statutes or regulations which
define the duties of a public officer,
are not criminal in nature.

Therefore, honest mistakes as to the duties
they require would serve as defenses
to prosecution under 946.12.

It would appear that the main point
of distinction between a mandatory
amid discretionary duty is that a
mandatory duty is described "by law"
[see below], amid the discretionary
duty is judicial or quasi-judicial
in nature and involves value judgments,
the consequences of which the official
or employee is not liable for under
946.12(1), if he acted in good faith.

In

Lowe v. Conroy (1904),
120 Wis. 151,
97 N.W. 942,

the deputy health officer of the state,
in good faith and on suspicion of anthrax,
quarantined a citizen's meat market
amid ordered the destruction of
accumulated hides therein.

The steer originally suspected of being
infected was found not to be so, and
the officer's decision as to the steer
was found to have been unjustified.

However, in a civil suit for damages, the
official claimed he was not liable as he
was merely exercising the discretionary
powers vested in him by the Board of Health.

Though the court found him civilly
liable under an exception to the
general rule, it stated that:

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   If is the general rule that such
   officers are not liable in damages
   to private persons for injuries which
   may result from their official action
   done in the honest exercise of their
   judgment within the scope of their
   authority, however erroneous or mistaken
   that action may be, provided there
   be an absence of malice or corruption.

Though this is a civil case, its definitions
would seem applicable to criminal law.

As traced in detail in 21 OAG 1141 (1932),
this seems a fairly accurate statement of the
law today, as to discretionary powers.

As reiterated in

Land, Log and Lumber Company v.
McIntyre (1898),
100 Wis. 258, 262;
75 N.W. 964,

cited in

Wasserman v.  Kenosha (1935),
217 Wis. 223,
258 N.W. 857:

   . . such rule applies to all officers
   in the performance of judicial or
   quasi-judicial duties, to judges from
   the highest to the lowest, to jurors,
   and to all public officers whatever
   name they may bear. . . . . . . .

More recently in

State ex rel Schwenker v.
District Court, (1932),
206 Wis. 600, 608,
240 N.W. 406,

the court stated that non-corrupt exercise
of a discretionary duty did not render
an officer liable:

   Where an official having discretion in a
   certain manner acts upon his judgment in
   good faith, although erroneously, such
   act is not corrupt within the meaning of
   the statute, and likewise if, in the
   exercise of his discretion, he takes no
   action although he errs, he is not
   guilty of neglect as that term is
   used in the [statutory] Sections . .

Thus if an officer knows his allegedly
mandatory duty, by law, but fails to perform
said duty, he is guilty of violation of
946.12(1) unless that duty is found by judge
or jury to be actually discretionary, or
unless he has made an honest mistake as to
what the nature of that mandatory duty is.

[For further discussion as to misconduct in
performance of discretionary duties, see the
discussion under 946.12(3), infra.]

b.  BY LAW.

It would appear clear that the authors of the
statute meant "by law" to be interpreted as
meaning more than merely those duties
described in other statutes.

In

State v Bennett (1934),
213 Wis. 456,
252 N.W. 298

the dissent stated that:

   It was apparently the purpose of the
   revisors of 1878 and of the legislature
   that enacted the revision to frame a
   malfeasance statute that would cover
   every conceivable violation of law by
   municipal officers and every conceivable
   transaction by them . . . in municipal
   service with the municipality served
   in which they or any of them had
   any interest.

   (At 474)

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State ex rel Dinneen v. Larson (1939),
231 Wis. 207,
284 N.W. 21,

the court, though not directly defining the
scope of "by law", cited the dissenting
opinion in State v. Bennett, supra,
with approval and stated that
it covers

   all specific prohibitions
   upon "officers" contained
   in the session laws codified
   and any other violations of
   law by officers.

Dinneen further states that the intent of
946.12 was to prohibit the wide range of
common law crimes constituting malfeasance,
and that it would therefore seem reasonable
to assume that "by law" goes beyond written
laws enacted by legislative bodies.

The Comment to 946.12 lends credence to
this broad reading of "by law":

   The duty may be imposed by common law,
   statute, municipal ordinance,
   administrative regulation, and
   perhaps other sources. . .

Though no cases were found directly on point
in Wisconsin, it is possible that a duty
clearly defined as mandatory by custom
amid usage could fall within the definition
of "by law." For a case stating that duties
may arise out of the nature of the office
itself, see:

State v. Weleck (1952),
10 N.J. 355,
91 A. 2d 751.

As "by law" does not seem to be clearly
defined by case law as regards 946.12,
a very cautious analogy to the "by law"
requirement in 946.10, the bribery
statute, might be made.

That statute prohibits any public officer
or employee from accepting a bribe

   in relation to any matter which by law
   is pending or might come before him in
   his capacity as such an officer . . ."

Though this statute seems to go to the scope
of his duties, insofar as scope of duties
could be, in a 946.12 prosecution, identical
to a description of mandatory duties as to
manner and time of performance, bribery
cases may be of some limited usefulness.

In U.S. v. Birdsall (1914), 233 U.S. 223,
in construing a federal bribery statute
essentially similar to Wisconsin's, the
United States Supreme Court held that:

   To constitute it official action, it
   was not necessary that it should be
   prescribed by statute; it was sufficient
   that it was governed by a lawful
   requirement of the department under
   whose authority the officer was
   acting [cites omitted].

   Nor was it necessary that the
   requirement should be prescribed
   by a written rule or regulation.

   It might also be found in an established
   usage which constituted the common law
   of the department and fixed the duties
   of those engaged in its activities.

   In numerous instances, duties not
   completely defined by written rules are
   clearly established by settled practice,
   and action taken in the course of their
   performance must be regarded as within
   the provisions of the above-mentioned
   statutes against bribery. (At 230-231)

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Thus it appears clear that "by law" can go
beyond legislative acts, though how far
beyond is unclear.

ELEMENT NO. 3, that said officer or
employee intentionally failed or
refused to perform said duty.

There is clear indication in Wisconsin that
some sort of criminal intent is requisite for
violation of Wis. Stat. 946.12. In fact, as
the Comment clearly reveals, where public
officials were formerly strictly liable
at common law and under old Wisconsin
statutes for their misconduct, under the
new statute criminal intent is required.

As it appears that the mental element
required under 946.12(3) is distinguishable
from the mental element required under
946.12(1), (2), (4) and (5), a brief
reiteration of the statutory language
would seem appropriate.

Subsections 946.12(1), (4) and (5)
specifically used the verb "intentionally"

and

subsection 946.12(2) used the verb "knows."

Wis. Stat. 939.23 defines the language in
which the criminal intent requirement
is couched as follows:

939.23(1)

   When criminal intent is an element
   of a crime in the Criminal Code,
   such intent is indicated by the
   term "intentionally" the phrase
   "with intent to", the phrase
   "with intent that", or some form
   of the verb "know" or "believe."

Intentionally is defined by
939.23(3) as meaning:

   . . that the actor has the purpose to
   do the thing or cause the result
   specified or believes that his act,
   if successful, will cause that result.

   In addition . . . the actor must have
   knowledge of those facts which are
   necessary to make his conduct criminal
   and which are set forth after the
   word "intentionally".

Thus, in a prosecution under 946.12(1),
the actor would have to intend to
fail or refuse to perform his duty.

It would appear that

State ex rel Dinneen v. Larson (1939),
231 Wis. 207,
284 NW. 21,

the definitive case on misconduct under the
old statute, conclusively established that
corrupt motive, as distinguished from
general criminal intent, is not required.

The court cited 46 CJS, page 1094,
Section 345, and stated:

   . . .To constitute an indictable offense
   of misbehavior in office, it is not
   essential that pecuniary damage should
   have resulted to the public by reason of
   an officer's irregular conduct, or that
   the officer should have acted from
   corrupt motives.

   (At 219)

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Thus, willful neglect of duty does not
necessitate corrupt intent, as the
neglect of duty statute was not one
without any intent requirement, prior
to the formulation of 946.12.

Thus, there is no need to conclude that any
additional mental element has been added
subsequent to the Dinneen decision.

Therefore, it appears that as regards
946.12(1), (2), (4) and (5), no intent
is required beyond intent to do the
proscribed act, knowing the facts
which make such act criminal.

Solely for purposes of clarification, a
comparison of the higher level of corrupt
intent required under 946.10, the bribery
statute, and the general criminal intent
for proof of 946.12, might be of use.

State v. Alfonsi (1967),
33 Wis. 2d 469,
147 N.W. 2d 550,

involved a bribery charge
against a public official under Wis. Stat.
946.10, in which "corrupt intent" is
not specifically mentioned.

In reading the requirement of corrupt intent,
or mens rea, into the statute, the court
looked to the old bribery statute which
did specify corrupt intent, and to the
nature of the crime of bribery itself.

Through an elaborate analysis of the
statutory history of 946.10, the
court found that:

   The crime of bribery is not one that was
   meant to be malum prohibitum but, on the
   contrary, is one that requires an evil
   or corrupt motive to be proved.

   At 476.

Thus bribery is a crime, like embezzlement,
which by its very nature, evidences
a corrupt and guilty mind.

The very act by a public official of offering
material benefit in exchange for an unfair
advantage is inherently corrupt.

If the gravamen of this crime is the
"despicable act" of unlawfully and corruptly
soliciting and accepting things of value in
exchange for influencing acts, obviously no
good faith mistake or confusion as to the
exact nature of proper ditties to be
performed, would be possible.

However, in a prosecution for neglect
of duty, corrupt intent is not
required by statute and is not
inherent in the act itself.

For instance, in

State v. Lombardi (1959),
8 Wis. 2d 421,
99 N.W. 2d 829,

a sheriff was charged with violation of
946.12(1) and (2), nonperformance of duties
imposed on him by law. He was also charged
under Wis. Stat. 348.28, a 1953 statute
which, according to the Comment, was
incorporated into the new
statute, 946.12.

Appellant submitted that the information
failed to charge any crime and that the
verdict did not find him guilty since
there was no charge that he acted
with corrupt motives.

The court summarily dismissed this argument
and proceeded to the merits of the case:

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   Corruption, that is, action motivated by
   personal gain or advantage to the
   sheriff, is not an essential element . .
   nonperformance of duties imposed on him
   by law by virtue of his office
   constitutes the offenses of
   which the sheriff is accused
   regardless of the presence or
   absence of a corrupt motive.

   At 430.

State in. Kort (1972),
54 Wis. 2d 129,
194 N.W. 2d 682,

is the most recent case speaking directly to
the intent requirement for 946.12. There, a
town supervisor was reimbursed for extra
hours he worked to make up for hours he
was out of town on municipal business.

There was no statutory authority for
such payment, and the conduct was not
specifically prohibited until this
decision at the trial level.

The Supreme Court decided that the defendant
did not have the requisite intent on the
grounds that he could have had no advance
notice that his conduct was prohibited.

Thus, it was impossible for him to have
the requisite intent to commit
known criminal acts.

However, it would seem that if the
defendant's conduct was illegal or
his duty was clear under existing
and clearly discernable law, and
if this duty was neglected or
refused, only intent to do the
proscribed acts need be established.

For example, in 21 OAG 626 (1932), a notary
public took an acknowledgment of execution
of an instrument over the telephone.

By law he had to attest that this person
appeared before him. Obviously, he
signed the notarization without
this condition having been met.

He was held liable under 348.28, a statute
consolidated into 946.12(4), regardless of
the fact that he acted in good faith,
without knowledge that the person
was perpetrating a fraud.

It was sufficient that the defendant
knowingly stated that the caller had come
before him when in fact he had not.

He intentionally signed the false
notarization, and that was sufficient.

Similarly, in Johnson v. State (1968),
251 Ind. 17. 238 N.E. 2d 651, guilty
knowledge was held established when
a notary public attested to an affidavit
purportedly signed in the notary's
presence by an affiant who defendant
knew had been dead for five months.

Guilty knowledge without corrupt
intent was held sufficient.

Additionally, a justice of the peace was held
criminally liable for charging for services
not performed or known to be not necessary
to the fulfillment of his duties.

49 OAG 171 (1960).

Similarly in 47 OAG 168. (1958), a sheriff
who was charging unauthorized fees for his
services, mileage, and court appearances
in traffic cases, was held liable.

The opinion held that if the sheriff
was authorized by law to perform these
duties, he might collect fees.

If he was not, he could not collect fees and
could be held criminally liable under 946.12.

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a.  MOTION TO DISMISS AND DEFENSES.

Defenses can be made that the defendant
did not have the requisite intent.

As discussed under Element 2, supra, good
faith mistake as to what constituted the
duty to he performed is a defense to a charge
under 946.12(1), (2), (4) and (5), as
this eliminates the requisite intent.

However, a motion to dismiss for failure to
charge corrupt motive should fail on the
proposition that only intent to do the
proscribed acts is required.

Similarly, lack of proof as to
corruption is not a defense
as stated in

State v. Lombardi, supra,

   Corruption, that is, action or nonaction
   motivated by personal gain or advantage
   to the sheriff, is not an essential
   element of the misdemeanors with which
   the sheriff is charged. His willful
   refusal or nonperformance of duties
   imposed on him by law by virtue of
   his office constitute the offenses
   of which the sheriff is accused
   regardless of the presence or
   absence of the corrupt motive.

   (At 430)

A closely related defense that no charge
will lie under 946.12(1), (2), (4) and (5)
unless unjust enrichment, personal gain,
or public injury is charged or proven,
is also not valid.

In

Ellefson v. Smith (1924),
182 Wis. 2d 398,
196 N.W. 834,

a contract was let by the
town board without advertising
for bids, as required by law.

Though the officers acted in good faith and
without intent to defraud the public, they
did intentionally ignore the statute which
required them to advertise for bids.

Thus, even though the officers did not profit
themselves and the city suffered no direct
loss, a civil action to rescind the
contract did lie.

More recently, in Dinneen v. Larson, supra,
a criminal action for neglect of duty was
lodged under 348.29, the predecessor to
946.12(1).

The court said that at common law no proof
was required of selfish motive or hope of
private gain, and similarly under statute
no pecuniary damage need have resulted
from the official's neglect of duty.

Similarly,

United States Fidelity and
Guaranty Company v. Hooper (1935),
219 Wis. 373,
263 N.W. 184,

involved a defendant who had falsely
certified that a woman was employed by the
state long after she had in fact resigned.

Her salary was received by the defendant,
and used to pay various expenses
of the agency be superintended.

It appeared that the expenses were in
themselves valid, and that neither the
defendant nor anyone else had been improperly
enriched by the monies obtained.

Nevertheless, the court stated that this
conduct violated the criminal law. The
statute cited was Section 348.33, one
of the Sections consolidated into the
present statute Section 946.12.
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Parenthetically, it might be noted that the
attitude of the Wisconsin Supreme Court to
this defense is congruent with the attitude
of the federal courts and a majority of
the courts of other states.

For example, in

Crawford v. U.S (1908),
212 U.S. 183, 187,

appellant defended against
a charge of conspiracy to defraud the
government by offering to prove that the
United States had not suffered any material
loss as the result of his behavior.

The Court held it immaterial to the charge
whether the government had actually been
defrauded or not.

For similar holdings on the state level, see

67 CJS, Officers, Section 33, 430-435.

[For a discussion of when the defense of the
lack of unjust enrichment will lie, see the
discussion of dishonest advantage
under 946.12(3), infra]

b.   PROOF OF INTENT.

Proof of intent in prosecutions under
946.12(1), (2), (4) and (5) is by
its very nature illusive.

Intent, a subjective mental state, is only
provable by circumstantial evidence which
objectifies that intent. 1 Wharton, Criminal
Evidence, Section 6, 13th Ed. 1973.

Thus, declarations by defendant (Id., Section
200) and subsequent conduct (Id. Section 209)
are the tools at the prosecutor's disposal.

The prosecutor must constantly ask the jury
to infer criminal intent from acts
frequently ambiguous in their nature.

As stated in

State v. Davidson (1943),
242 Wis. 406,
8 N.W. 2d 275:

   . . . Intent is a state of mind which
   can be evidenced only by the words or
   conduct of the person who is claimed
   to have entertained it. The jury was
   under no obligation to accept the
   direct evidence of intent furnished
   by the defendant, and must be permitted
   to infer intent from such of defendants
   acts as objectively evidence his state
   of mind.

   It seems clear to us  that the deposit
   and subsequent use of the funds by
   defendant for his own benefit may
   properly form the basis for an
   inference of felonious intent.

   At 413

Introducing evidence as to knowledge of what
constitutes the official duty and what
constitutes willful neglect of that duty,
the courts have evinced a willingness to
infer knowledge of what constitutes duty.

For example, in State v. Lombardi, supra,
evidence that defendant had been sheriff for
24 years was held to allow the reasonable
inference that he could not have been
unaware that a suspect establishment
was a bawdy house.

In introducing evidence as to intent at
trial, recourse may be had to a variety
of devices. Admissions against interest
may be introduced [See Wis. Stat.
908.01(4)(b) of the new Wisconsin
Rules of Evidence], as may declarations
against interest by witnesses not parties
in the criminal action [see Wis. Stat.
908.045(4) of the new Rules of Evidence.]

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Rebuttal evidence may be offered as to bad
character, once an accused has raised the
issue of his good character, as absence of
honesty and integrity are of the essence in
prosecution for misconduct in public office.

See Wis. Stat. 908.03(21) of the
New Rules of Evidence.

Also, evidence of prior misconduct, either
through prior bad acts or prior convictions,
is admissible to show the general disposition
to commit the offense charged.

See Wis. Stat. 908.03(22), (23) of
the New Rules of Evidence.

For example, in

Smith v. State,
195 Wis. 555,
218 N.W. 822,

in a prosecution for adultery,
other adulterous acts between the same
parties could be shown to establish
an adulterous disposition.

Though the general rule is that prior
commission of offenses is not admissible,
a well recognized exception is made as to
evidence tending to establish some
ingredient of the offense charged,
such as knowledge or intent.

1 Wigmore, Evidence, Section 15.

See also Section 904.04(2), Wis. Stats.,

and

State v. Meating (1930),
202 Wis. 47,
231 N.W. 263.

In

Whitty v. State (1967),
34 Wis. 2d 278,
149 N.W. 2d 557,

the Wisconsin Supreme Court discussed in
detail the admission of evidence
of prior misconduct to show identity
and pattern, as well as disposition
to commit crime.

The court adopted mule 303 of the American
Law Institute Model Code of Evidence:

RULE 303:  DISCRETION TO EXCLUDE
           ADMISSIBLE EVIDENCE.

1.  The judge may in his discretion exclude
    evidence if he finds that its probative
    value is outweighed by the risk that its
    admission will:

    (a) necessitate undue consumption of
        time, or

    (b) create substantial danger of undue
        prejudice or of defusing the issues
        or of misleading the jury, or

    (c) unfairly surprise a party who has
        had reasonable ground to anticipate
        that such evidence would be offered.

The court also reiterated that the admission
of such evidence should not be conditioned on
whether the evidence is in the form of a
conviction; evidence of the incident,
crime or occurrence is sufficient.

At 293

More specifically, in

State v. Lombardi, supra, at 439,

the court cited

Herde v. State (1941),
236 Wis. 408, 413,
295 N.W. 684:

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   In proof of criminal intent, the
   conduct of a defendant on other
   occasions closely connected in
   point of time and plan may at
   times be relevant to throw light
   on the defendant's motives and
   intentions while doing the act
   complained of.

   Smith v. State,
   195 Wis 555, 560,
   218 N.W. 822;

   State v. Meating,
   202 Wis. 47, 50,
   231 N.W. 263.

   The intention with which a particular
   act is done often constitutes the
   burden of the inquiry, and to prove
   the intent it becomes necessary, in
   many instances, to extend the
   examination beyond the particular
   transaction concerning which the
   accused is upon trial.  For the
   purpose, therefore, of proving
   intent, not of proving the act
   itself, it is often permissible
   to show other criminal transactions
   of the same sort springing from
   like mental conditions."

   2 Jones, Evidence (2d Ed.),
   Page 1161, Section 624.

   See also 1 Bishop,
   Criminal Procedure, Section 1067.
   (Id. at 439)

It is to be further noted that in Lombardi,
supra, evidence was allowed in as to
defendant's knowledge of a house of
prostitution subsequent to the
date of the offense charged.

946.12(2), INTRODUCTION.

Wis. Stat. 946.12(2) codifies the common law
crime of malfeasance, and the statutory
crimes of making a contract not authorized
by law, discounting of claims, and misuse
of loans from trust funds.

As stated in the Comment to 946.12,
subsections 946.12(4) and 946.12(5) are
specific prohibitions of practices probably
covered by the more general subsections
946.12(1), 946.12(2) and 946.12(3).

Thus the statutory crime of making a false
certificate or report could be simultaneously
covered by 946.12(2) and 946.12(4); charging
higher fees than authorized by law could be
simultaneously covered under 946.12(2) and
946.12(5).

Wis. Stat. 946.12(2) specifically penalizes
one who is a public officer or employee who:

   In his capacity as such officer
   or employee, does an act which
   he knows is in excess of his
   lawful authority or which he
   knows is forbidden by law to
   do in his official capacity.

946.12(2) contains three elements:

1.  that the defendant was, at the time
    of the of offense, a public
    officer or employee;

2.  that the defendant was acting in his
    official capacity; and

3.  that the defendant knew or believed
    that he was acting in a manner not
    authorized or forbidden by law.

Element 1 is discussed in detail
under 946.12(1).

Element 2 is peculiar to 946.12(2)
and 946.12(3), and will be
discussed in detail herein.

It is to be noted that the concept of acting
in an official capacity at some points
overlaps with the concepts of acting
under color of office, an element
to be discussed in 946.12(5).

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Element 3 includes aspect of
the "by law" requirement discussed
in 946.12(1), element 2.

Element 3 under 946.12(2) also includes the
verb "know" and relates to the intent as
discussed in 946.12(1), element 3.

Defenses in addition to those previously
noted which might be attempted in response
to prosecutions under 946.12(2) are:

1.  that defendant, even if a public
    officer, was not acting in
    his official capacity;

2.  that he did not possess corrupt intent;

    or

3.  that his actions were not beyond his
     authority as prescribed by law.

For defense 1, see discussion
herein under element 2.

For defense 2, see discussion under
946.12(1), element 3, supra.

For defense 3, see the discussion under
946.12(1), element 2, (b), supra.

ELEMENT NO. 1, that the defendant was,
at the time of the offense,
a public officer or employee.

For a detailed discussion of the
requirements for this element,
see 946.12(1), element 1, supra.

ELEMENT NO. 2. that the defendant was
acting in his official capacity.

Though at first glance it would appear that
the "acting in an official capacity" element
merely duplicates the "public officer or
employee" element, such is not
always the case.

One can be a public officer or employee
whose misconduct occurs solely
in a private capacity.

The concept of "acting in an official
capacity" is also closely aligned with
acting "under color of office".

[See discussion of 946.12(5), infra.]

Though these two elements are sometimes
treated as identical [see 61 OAG 256 (1972)],
loose use  of this terminology can lead
to definitional difficulties.

State v. Bennett (1934),
213 Wis. 456,
252 N.W. 298

remains the leading case in Wisconsin
discussing the necessity that a public
officer or employee be acting
within his official capacity.

The charge was brought under 348.28,
malfeasance in public office, parts of
which were later codified into 946.13,
taking private interest in a public
contract, and 946.12(2), performance
of unauthorized or forbidden acts.

Many charges could be made simultaneously
under 946.13 and 946.12(2), 946.12(4)
and 946.12(5).

If a public officer or employee keeps a
private interest in a public contract,
he is performing an act forbidden by
law under 946.13, and is thus
chargeable under 946.12(2) as well.

For both 946.12(2) and 946.13, it is
requisite that defendant have acted
in his official capacity.

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Thus though Bennett involves a charge
that a city planning engineer had
a pecuniary interest in a municipal
transaction, its discussion of "official
capacity" would be relevant to that element
as it was later codified in 946.12(2).

It that case a city planning engineer was
charged with having a pecuniary interest in
the purchase or sale of municipal property.

Defendant raised the affirmative defense that
the land sale was not made to or by him in
his official capacity or employment, and
that he was therefore not guilty of violation
of 348.28, Stats., although he did receive
part of the commission paid to the broker
for negotiating the sale.

Defendant pointed out that to hold him liable
when he was not acting in his official
capacity would lead to the absurd result that
any one employed in any branch of government
in any capacity whatsoever could render his
employer liable for any misconduct on his
part at any time. The court upheld the
defendant's contention:

   It certainly was not intended by that
   statute that any officer, agent or clerk
   of the state or a governmental unit "who
   shall have any interest, directly or
   indirectly, . . . in any way or manner
   in any sale of real property . . .
   shall be punished."

   That manifestly would be absurd.

   At 463.

These facts were held not sufficient
to support a charge.  However,
the court concluded that

   . . . If the purchase in question had
   been made . . . in his official capacity
   or employment, . . it would have been
   wholly immaterial, insofar as the
   establishment of the essential elements
   of the offense is concerned, whether
   Bennett did or did not also participate
   or act on his own behalf in relation
   to the transaction.

   At 464, 465

If the defendant had made a sale of property
in which he had a pecuniary interest, on
behalf of the city, he would be liable.

Similarly in

Quayle v. Bayfield County (1902),
114 Wis. 108,
89 N.W. 892,

a judge was given the official duty to rent
a courtroom on behalf of the municipality.

Acting in this official capacity, he rented a
courtroom in a building he owned, and thus
was held guilty of malfeasance. Presumably,
he could have had a pecuniary interest in a
building which the city could have rented
from him. However, in his official capacity,
he could not profit from his own official
actions.

More recently in

State v. rel. Stock v. Kubiak, supra,

the court held acting in an official capacity
to be an essential element for violation of
348.28, but seemed to view his term as
meaning simply that the official was
acting in the course of his employment.

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The court responded to defendant's contention
that he was not acting in his official
capacity in purchasing securities in
which he held an interest as follows:

   As we have pointed out, the relator was
   acting at least as a de facto servant of
   the town - he was in the town's employ
   and his violations occurred
   in such employment." (Al 619)

Thus the court defined official capacity
in a straightforward and simple manner,
and stated that:

   The word "official" characterizing the
   employment should not be construed in
   the limited sense of pertaining only
   to the  acts of those technically
   known as officers.

Thus, de facto and de jure officers, as well
as employees, can act in an "official
capacity" even if they are without
authority to hold the office.

[For a detailed consideration of this point,
see the discussion of de facto and de jure
officers under 946.12(1), element 1, supra.]

In 61 OAG 256 (1972), a local sheriff was
compensated for guard duty at an all night
restaurant, during his off-duty hours.

A charge was proposed under 946.12(5). which
provides that one acting under color of
office may not accept fees in excess of
those authorized by law. However, the
opinion discusses "color of office"
as "acting in an official capacity."

The opinion states that the sheriff can be
employed in another private capacity, if his
private duties are not in irreconcilable
conflict with his official duties.

In that working as a guard in an all night
restaurant was seen as not being at
irreconcilable odds with his official duties,
he was not operating improperly in his
official capacity.

However, the opinion stated that a deputy
cannot, in his official capacity, make
a charge to private individuals
for official services.

This opinion seems to equate acting in a
public or private capacity with
being on duty or off duty.

Thus it would appear to be consistent with
the treatment in Kubiak, supra, official
capacity as being in the course of
employment, a fairly simple and
straightforward definition.

[For discussion of an officer who represents
or implies that he is acting with official
authority or capacity, see the discussions
of "public officer or employee"
and "color of office", supra.]

ELEMENT NO. 3, that the defendant knew or
believed that he was either acting in excess
of his lawful authority or that he was
acting in a way forbidden by law.

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The Comment on 946.12(2) describes the scope
of the subsection as broad, but specifies
that it, as the other subsections, is limited
by the requirements of criminal intent.

Wisconsin Jury Instruction Criminal 1731,
Note 3, refers to the mental element required
for violation of 946.12(2). doing that which
the defendant "knows" is in excess of his
lawful authority or forbidden by law, by
reference to Wis. Stat. 939.23(2)

That statute defines "know" as requiring
only that the actor believes the
specified fact exists.

Thus defendant would only have to believe
that his acts were either in excess of
his lawful duty or forbidden by law.

As 939.23(1), the general statutory statement
on intent, specifies that "intentionally" and
forms of the verb "know" are equivalent in
expressing the criminal intent element of a
crime, the general intent requirement under
946.12(2) would seem the same as that under
946.12(1).

[See the discussion of general
criminal intent under 946.12(1),
element 3, supra.

b.   In Excess Of Lawful Authority Or
     In A Manner Forbidden By Law.

See the discussion of "by law"
under 946.12(1), element 2, (b), supra.

946.12(3), GENERAL INTRODUCTION.

Wis. Stat. 946.12(3) codifies the common law
crimes of malfeasance and nonfeasance as
regards discretionary duties, and penalizes
one who is a public officer or employee who:

    . . By act of commission or omission,
    in his capacity as such officer or
    employee exercises a discretionary
    power in a manner inconsistent with
    the duties of his office or employment
    or the rights of others and with intent
    to obtain a dishonest advantage for
    himself or another . . . . . . . .

946.12(3) contains four elements:

1.  that the defendant was, at the time
    of the offense, a public officer or
    employee;

2.  that he was acting in his
    official capacity;

3.  that he was performing a discretionary
    duty in a manner inconsistent with the
    duties of his office or employment, or
    in a manner inconsistent with the
    rights of others; and

4.  at the tine was so acting with intent
    to obtain a dishonest advantage
    for himself or others.

Element 1 is discussed in detail
Under 946.12(1).

Element 2 is common to subsection 946.12(2)
and 946.12(3) and is discussed
in detail under 946.12(2).

Element 3 is peculiar to 946.12(3),
and is described in detail herein.

However, for a comparison of mandatory
and discretionary duties, reference
should be made to the discussion
under 946.12(1), element 4.

Element 4 involves corrupt, as
opposed to general criminal, intent.

As this is the only subsection requiring
a "corrupt" intent to obtain a dishonest
advantage, it is discussed herein.

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However, better understanding is achieved by
comparison with the discussions of intent
under 946.12(1) and 946.12(2). supra.

It is to be noted parenthetically that it
is clear from the statement in 946.12(3)
that an official may abuse his discretion

   "by act of commission or omission."

Thus in

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

a decision not to investigate or charge in
the alleged shooting death of a black man
by a police officer could be an omission
to act which abused the discretion of
the district attorney, if not based
on sound professional judgment.

In addition to the defenses discussed in
previous Sections, defendant could respond to
prosecution under 946.12(3) by contending:

1.  that he did not possess the
    requisite corrupt intent;

2.  that he achieved no personal
    gain or unjust enrichment;

3.  that he did not perform in a manner
    inconsistent with his duties; or

4.  that the statute is void for vagueness,
    and therefore denies due process.

For a discussion of the distinct intent
requirement in 946.12(3), see
the discussion herein.

For a discussion of lack of personal gain and
unjust enrichment, see the discussion herein
and under 946.12(1), element 3, (a). supra.

For defense 3, see the discussion herein.

For defense 4, see the discussion of
constitutional defenses which follows.

ELEMENT NO. 1, that the defendant was,
at the time of the offense, a
public officer or employee.

For a detailed discussion of the
requirements for this element, see
946.12(1), element 1, supra.

ELEMENT NO. 2, that said public officer or
employee was acting in his official capacity.

For a discussion of the requirements for this
element, see 946.12(2), element 2, supra.

ELEMENT NO. 3, that said public officer or
employee was performing a discretionary duty
in the manner inconsistent with the duties of
his office or employment or in a manner
inconsistent with the rights of others.

As asserted in Note 2 to Wisconsin Jury
Instruction, Criminal 1732, on 946.12(3),
whether a duty is discretionary or
mandatory in nature can usually
be decided as a matter of law.

However, in specific instances this decision
may be before the jury as a matter of fact.

The decision as to whether it is
discretionary is made with reference to
the description of the duty "by law."

Apparently, "by law" means
more than by "by statute."

Thus in

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

the court mentioned that a district attorney
in Wisconsin is a Constitutional officer
endowed with discretion approaching
the quasi-judicial.

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State ex rel Kuszewski v. Board of
Police Commissioners (1963),
22 Wis. 2d 19,
125 N.W. 334,

the court looked to the duties
of the police chief as set forth in the
Milwaukee City Charter, in deciding
what discretionary duties he had.

There is a long common law and statutory
history in Wisconsin as to what constitutes
a discretionary duty.

In general it seems that discretionary duties
are those quasi-judicial in nature, where
the legislature has endowed the official
with latitude for decision-making and
exercising his own personal judgment.

For example, in

Druecker in Salomon (1967),
21 Wis. 621,
629, 94 A.D. 571,

the court commented that whenever an act is
discretionary in nature, it takes on
the character of a judicial decision.

Similarly, in

Fath v. Koeppel (1888),
72 Wis. 289,
39 N.W. 539,

a fish inspector was held not liable in
damages for an error in judgment.

The court stated that he had:

   . . . . . High and responsible judicial
   power, . . . and the officer exercising
   such a power is within the protection of
   that principle, that a judicial officer
   is not responsible in an action for
   damages . . . This principle protects
   all officers exercising judicial powers,
   whatever they may be called . . . It is
   a discretionary authority, where the
   determination partakes of the character
   of a judicial decision.

   At 293.

Though this case was civil, the
statement would seem to be applicable
to a criminal case as well.

More recently in

State v. rel. Schwenker v.
District Court (1932),
206 Wis. 600,
240 N.W. 406,

the court found that an official who
erroneously exercised his judgment as to a
discretionary duty was not criminally liable.

In that case a banking commissioner had the
statutory authority to take over failing
banks. The court found that he had wide
discretion to exercise his judgment and
expertise in these matters, and his decision
not to put a particular bank into what
amounted to a receivership, absent corrupt
and felonious intent, did not render him
liable under the predecessor of 946.12(2).

The court stated that:

   Where an official having discretion in a
   certain matter acts upon his judgment in
   good faith, although erroneously. such
   act is not corrupt within the meaning of
   the statute, and likewise if, in the
   exercise of his discretion, he takes
   no action although he errs, he is not
   guilty of neglect as that term is used
   in the Section's quoted.

   At 608

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Thus a defense lies under 946.12(2) that the
exercise of discretion was not for dishonest
advantage, and was merely an erroneous
exercise of judgment.

A charge can only lie if the public officer
or employee acted outside the scope of his
discretion and with corrupt intent, or if
he acted within the scope of his discretion
in a manner at odds with his own duties,
at odds with the duties of his employment,
or at odds with the rights of others.

a.   SCOPE OF DISCRETION.

Having characterized the duty as
discretionary, examination must be made
of the exact scope of that discretion.

As stated in

State v. rel. Gill v.
Common Council of Watertown (1859),
9 Wis. 229,

the mere fact that a duty is discretionary
does not mean that it is outside the control
of the people or the courts.

Having stated that officers may act
erroneously in the performance of a
discretionary duty without being
subject to a writ of mandamus,

the court states that:

   . . . . . .  this does not by any
   means make their action a case of
   discretion not to be controlled.

   Such discretion exists only
   where there is a decision on some
   subject which the law has given them
   power to decide on, with the intent that
   such decision should be final, unless
   changed by some direct appeal or review.

Specific cases have examined the scope of
discretion and sometimes found abuse
contrary to 946.12(2) and its predecessors
where this scope was exceeded.

Thus, a bank comptroller was found to have
the discretion to decide printing needs.

State ex rel Carpenter v. Hastings (1860),
10 Wis. 461.

Similarly, in

State v. rel. Pierce v.
Board of Trustees (1914),
158 Wis. 417, 433,
149 N.W. 205,

it was found to be within the scope of
discretion of the board of trustees
of an institution to make financial
decisions, as the legislature had
delegated a broad discretion to
that board to decide what would be in
the best interests of the institution.

In State v. rel. Kurkierewicz v. Cannon,
supra, the Constitution granted a broad
scope of discretion to a district attorney
to decide whom to prosecute and
when to initiate inquiries.

However, when the district attorney ignored
specific mandatory duties, or exercised his
discretion as to whether to perform them,
he had abused that discretion:

   Yet, where the legislature has spoken
   and directed the performance of duties
   under particular facts, the district
   attorney is obligated to comply with
   the legislative mandate." (At 379)

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Finally, in

State ex rel Kuszewski v. Board of
Fire and Police Commissioners (1963),
22 Wis 2d 19,
125 N.W 335,

suspension of a police officer by the chief,
though not a specifically delegated power,
was within the scope of the chief's
discretion.

However, suspension without pay was held
not to be within his discretion.

Presumably such a decision as to financial
matters was an abuse of discretion as it was
punitive and beyond the scope of duties of
the police chief to preserve the public
peace, enforce laws, and supervise
the department.

b.  INCONSISTENCY WITH THE DUTIES
    OF HIS OFFICE, EMPLOYMENT,
    OR THE RIGHTS OF OTHERS.

Wis. Stat. 946.12(2) specifically defines
abuse of discretion as exercising power

1.  In a manner inconsistent with the
    duties of officer employment, or

2.  In a manner inconsistent with
    the rights of others.

It would appear that this statutory language
states specifically what, prior to 1955, was
characterized as an arbitrary, capricious,
or unreasonable exercise of discretionary
powers, inconsistent with the rights of
others or the duties of office.

For example in

State ex rel. Pierce v.
Board of Trustees (1914),
158 Wis. 417,
149 N.W. 205,

though the Board did have broad
discretion to make in the best interests
of an institution, Such discretion
was not without bounds.

   This discretion must of course
   be exercised reasonably.

   It cannot be exercised in a way
   which is an evasion of a positive duty,
   nor in an arbitrary or capricious manner
   which amounts to a refusal of exercising
   a reasonable discretion.

   At 423.

Similarly in State ex rel. Kurkierewicz v.
Cannon, supra, the district attorney, though
he has wide discretion, may not make
decisions resting upon prejudice or caprice.

A decision by the district attorney not to
open a coroner's inquest into the shooting
death of a black man by a police officer,
was within his discretion and based upon
sound professional judgment that there
was no criminal liability.

But, presumably the district attorney, if he
had decided not to open an inquest because
the victim was black, or because he just
didn't want to be bothered, would have
been acting capriciously and/or on time
basis of prejudice, and would have fallen
within the conduct proscribed by 946.12(3).

A certain type of case prosecuted under the
predecessor to 946.12(3) involved time
exercise of an officer's or employee's
discretionary power in a manner inconsistent
with the duties of another position,
either private or official.

Thus in 58 OAG 158 (1969), the opinion was
rendered that an officer serving as a trustee
on the Board of Regents of the University of
Wisconsin could simultaneously work for a
degree as a student.

The rationale was that the exercise of
discretionary power of a regent (i.e., voting
on such matters as tuition increases) was not
inconsistent with his duties as a student,
and, at any rate was not done with the intent
of obtaining a dishonest advantage, a
prerequisite for violation of 946.12(3).

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[See discussion of element 4,infra.]

Though many cases of conflict of interests,
and conflicting exercise of discretionary
powers over matters in which an official has
a private interest, may be prosecuted under
946.12(3), now that 946.13 specifically
prohibits private interest in public
contracts, prosecution would seem to lie
largely within the scope of that statute.

Thus cases which were brought under the old
348.28 [which was codified both into
946.12(3) and 946.13] would now be
appropriate under 946.13.

An example is a suggested prosecution at
40 OAG 488 (1951) for an official holding an
indirect personal interest in a contract
made for the benefit of his wife and child.

Similarly, in State v. Bennett. supra.
discussed above, an official was charged with
having a pecuniary interest in a contract
made on behalf of the city, and such behavior
was grounds for a criminal action for
exercising discretion in a manner
inconsistent with his duties.

Similarly, at 39 OAG 114 (1949), an officer
who had a pecuniary interest in a municipal
airport construction contract was felt to
be potentially guilty of malfeasance
in public office.

State v. rel. Schwenker v. District Court,
supra, opens one further possible
definition of the terms

  "in a manner inconsistent
   with known duties."

In Justice Fairchild's discussion
as to Section 348.28 and 348.29,
he stated that

  "this legislation is calculated to
   prevent an abuse of public justice."

It could be cautiously argued in light of the
avowed legislative intent of 946.12, to
insure conduct above reproach by public
employees and officers, that when an officer
or employee acts for a dishonest advantage,
he is, per se, acting in a manner
inconsistent with his known public duties
or employment, or with the rights of others.

This is acknowledged to be the
case in other jurisdictions.

For example, in

State v. Weleck (1952),
10 N.J. 355,
91 A. 2d 751,

the court stated that official duties
may arise by law or may arise out of
the very  nature of the office itself.

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Those holding these offices have
a duty to perform honestly:

   . . . Public officers "are under an
   inescapable obligation to serve the
   public with highest fidelity". . .

   they are required to display such
   intelligence and skill as they are
   capable of, to be diligent and
   conscientious, to exercise their
   discretion not arbitrarily but
   reasonably, and above all to
   display good faith, honesty,
   and integrity, . . .

   These obligations , . . are not mere
   theoretical concepts or idealistic
   abstractions of no practical force
   and effect; they are obligations
   imposed by the common law on public
   officers and assumed by them as a
   matter of law upon their entering
   public office.

   At 757-758.

Thus seeking dishonest advantage could be
construed as, per se, acting in a manner
inconsistent with the duties of a
public officer or employee.

ELEMENT NO. 4, that he acted with intent
to obtain a dishonest advantage
for himself or others.

The intent requirement necessary for
violation of subsection 946.12(3)
is stated as "with intent to
obtain a dishonest advantage."

By reference to Wis. Stat. 939.23, the
terms "intentionally" and "with intent to"
are identically defined.

The actor must have,

   . . . A purpose to do the thing or
   cause the result specified or
   believes that his act if
   successful, will cause
   that result.

However, 939.23(3) goes on to state that in
addition the actor must have knowledge of
those facts making his conduct criminal,
which are set forth following the word
"intentionally" (or, by incorporation
the words "with intent to").

Thus in 946.12(3), the actor must have
knowledge of the facts that compose
his attempt to create a dishonest
advantage for himself.

Thus, he needs to have a "corrupt" intent,
as counterdistinguished from the general
criminal intent required for violations
under the other four subsections.

See discussion under 946.12(1),
intent, supra.

The discussion in
State ex rel. Schwenker v. District Court,
supra, clarifies the distinction.

If an officer is performing a discretionary
duty in good faith, even though erroneously,
his conduct cannot be in violation of
946.12(3), as he has no venality, no
corrupt intent. The court stated:

   It follows from the phraseology of the
   statute [348.29, a predecessor to
   946.12(3)] that unless evidence is
   offered of corrupt conduct the complaint
   cannot be sustained.  Where an official
   having discretion in a certain matter
   acts upon his judgment in good faith,
   although erroneously, such act is not
   corrupt within the meaning of the
   statute, . . . (At 608)

As to discretionary duties, an officer must
exercise his judgment in implementing
policies, and criminal liability will
not be found to exist unless evidence
of corruption, or acts of a selfish
nature, are brought forth.

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In an analogous situation,
speaking in terms
of fraud,
in

Boles v. Industrial Commission (1958),
5 Wis. 2d 382, 387,
92 N.W. 2d 873,

the court cited with approval the following
statement from

Hannon v. Madden, (1931),
214 Cal. 251, 267,
5 P.2d 4.

In this case the court decided that where
fraud was alleged to have been committed in
the exercise of discretionary powers, absent
proof of corruption, a charge would not lie,

   Fraud, being a term which imputes
   venality and corruption to the person
   charged, should be clearly proved and
   satisfactorily established, especially
   where the persons charged are public
   officers vested with wide
   discretionary powers.

In State ex rel. Dinneen v. Larson, supra,
the court specifically rejected the notion
that corrupt intent is required for violation
of Wis. Stat. 348.28 and 348.29.

However, the court cited Schwenker, supra,
quoting the statement above, and
distinguished this case by stating that
it went only to situations where a public
officer or employee was exercising a
discretionary power.

In that situation only, corrupt
intent was required.

As to exercise of mandatory duties, corrupt
intent was not required.

946.12(4). INTRODUCTION.

Wis. Stat. 946.12(4) specifically prohibits
a public officer or employee from making,
in his official capacity,

    . . an entry in an account or record
    book or return, certificate, report,
    or statement which in a material respect
    he intentionally falsifies.

Proof of violation of 946.12(4) requires
proof of five elements:

1.  that defendant was, at the time of the
    offense, a public officer or employee;

2.  that in his official capacity lie made
    an entry in an account or record book,
    a certificate, a report, a statement,
    or a return;

3.  that it was false;

4.  that it was false in a material respect;

    and

5.  that he intended to make said
    false entry.

In the Comment to 946.12(4) it is stated that
this Subsection is probably a specific
instance of conduct already prohibited
by the first three Subsections.

Thus, if the duty is mandatory and prescribed
"by law," such as requiring that certain
reports and records be kept, it would
seem that a charge would lie
under 946.12(1) or 946.12(4).

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if the duty were discretionary, and an
officer abused his discretion by making a
false entry, report, or statement, a charge
would be lie under 946.12(3) or 946.12(4).

If an official was forbidden "by law" from
working overtime hours, but he knowingly did
so and submitted a payroll voucher, he would
be chargeable under 946.12(2) or 946.12(4).

Elements 3 and 4, relating to falsifying
instruments in a material respect, are
peculiar to 946.12(4).

Element No. 1 is identical to
that discussed under 946.12(1).

Element 2, acting in an official capacity, is
identical to that discussed under 946.12(2).

Element 5 is identical to that
discussed under 946.12(1).

In addition to the defenses discussed in
previous Sections, defendant could
respond to prosecution under
946.12(4) by contending that

1.  he merely failed to make an entry,
    and that it did not constitute
    a false entry;

2.  that he lacked corrupt intent;

3.  that he was neither unjustly
    enriched nor was the public
    injured by his acts

4.  that even if his entry were false,
    it was not false in a material respect;

    or

5.  that the Subsection is void for
    vagueness as to the meaning of
    the term "material."

For discussion of defense 1, see the
discussion herein under 946.12(4), element 3.

For discussion of defense 2, see the
discussions under 946.12(1), element 3 and
946.12(3), element 4.

For discussion of defense 3, see the
discussion under 946.12(1), element 3, (a).

For discussion of defense 4, see the
discussion herein under 946.12(4), element 4.

For discussion of. defense 5, see the
discussion to follow on constitutional
defenses.

ELEMENT NO 1, that defendant was at the time
of the  offense a public officer or employee.

For a detailed discussion of the requirements
for this element, see 946.12(1), element 1,
supra.

ELEMENT NO. 2, that the defendant was
acting in his official capacity.

For a detailed discussion of the requirements
for this element, see 946.12(2),
element 2, supra.

ELEMENTS 2 AND 3, that the defendant
made a false entry.

The exact definition of what constitutes a
false entry in an account or record book,
or return, certificate, report or
statement, would seem to be a matter
of first impression in Wisconsin.

However, a functional definition can be
gleaned from Wisconsin opinions pertaining to
the statute Subsection and some conceptional
framework can be derived from 18 U.S.C. 1001,
and the federal court cases interpreting it.

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18 U.S.C. 1101 is a statute substantially
similar in language to Wis. Stat 946.12(4),
though it is in some respects broader and
therefore subsumes this Subsection :

   Whoever, in any matter within the
   jurisdiction of any department or agency
   of the United States covers up by any
   trick, scheme, or device a material fact
   or makes any false, fictitious or
   fraudulent statement or representation,
   or makes use of any false writing or
   document, knowing the same to contain
   any false, fictitious or fraudulent
   statement or entry (Emphasis added.)

In

U.S. v. Egenberg (2nd Cir. 1971),
441 F. 2d 441,
cert. denied 404 U.S. 494,

defendant was charged under 18 U.S.C. 1001
with filing a false income tax statement.

Defendant claimed that such statements
were not intentionally false, as
he didn't know they were false.

The court held that to convict for filing a
false statement, the jury need only find that
the defendant acted with reckless disregard
as to whether the statement was true or not,
or acted with a conscious purpose to avoid
learning the truth.

Similarly, in

U.S. v. Clearfield (E.D. Pa. 1973),
358 F. Supp. 564,

defendant submitted allegedly false
certifications of the conditions of
certain properties to the Federal
Housing Administration.

The court found that a conviction could be
based on reckless disregard for the truth
of statements made regardless of
actual knowledge of falsity.

Thus, a false entry, at least by federal case
law, would seem to include statements or
certifications which falsified in a
material manner, but were not made
with direct corrupt intent.

[See discussion, infra, on "materiality"
in terms of 18 U.S.C. 1001]

In Wisconsin no case law was found directly
defining false entry in light of 946.12(4).

However, a cautious analogy might be made to
the term as it is used in Wis. Stat 221.39,
under the Banking Act, which holds criminally
liable one who falsifies bank records and
statements and who,

   . . . makes any false entry in any book,
   report, or statement of the bank with
   intent . . . to injure or defraud . .
   or deceive . . .

The use of this analogy must be, indeed,
cautious, as the banking statutes do
include elements of fraud and do make
provisions for the liability of agents
as well as principles.

However, cases interpreting "false entry,"
regarded with caution, may be of use.

In

Lochner v. State (1935),
218 Wis. 472,
261 N.W. 227,

the court defined "false" in terms of 221.39
as that which is not true or does not exist.

The "false entry" in the bank books was,
in that case, an untrue list of the
names of bank stockholders.

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In

Rosenberg v. State (1933),
212 Wis. 434,
249 N.W. 541,
appeal dismissed

and

290 U.S. 680,
54 S.Ct. 230,
78 L.Ed. 2d 822,

the court defined a "report" as false which
was simply, not true in fact.

Examples may be given of specific use of
946.12(4), in its various aspects.

In several cases where a public officer
received fees to which he was not entitled,
supposedly through submission of "false"
payroll or account book claims,
violation of 946.12(4) was found.

[As these cases overlap with the charges
under 946.12(5), see the discussion
therein as well].

St. Croix County v. Webster (1901),
111 Wis. 270,
87 N.W. 302,

specifically held that officers at common law
and by statute, are entitled only to
compensation authorized by law.

Thus, if they submit additional charges,
an action for recovery will lie.

Citing this case, at 54 OAG 195 (1965), the
Attorney General opined that supervisors who
claimed pay above the maximum allowed are in
potential violation of 946.12(4) and/or (5),
for submission of false pay claims.

Similarly, at 49 OAG 171 (1960), a justice of
the peace was said to be criminally liable
under 946.12(4) for charging for services
not performed or known to be not necessary
for performance of his duties.

Also at 47 OAG 168 (1958), a sheriff who was
charging unauthorized fees for his services,
mileage, and court appearances in traffic
cases, was said to be liable under
subsection 946.12(4).

At 21 OAG 626 (1932), a Notary Public who
took an acknowledgement of execution of a
deed over the telephone, when he was required
by law to attest that the person appeared
before him, was said to be liable for
making a false certificate under
the predecessor of 946.12(4).

[It is to be noted that in that case he
was held liable in spite of the fact
that he didn't know the person was
perpetrating a fraud, and therefore
lacked corrupt intent himself].

It was sufficient to constitute a false entry
on a certificate that the Notary attested
that the caller had come before him
when he, in fact, had not.

There is no conclusive way of knowing whether
a failure to make an entry could constitute
a false entry in Wisconsin.

In

U.S. v. Herrig (1913, D. Mont.),
204 F. 124,

an unfilled blank in a bank's
account book which should have had an
entry, was held not to be a false entry.

However, in

People v. Kingsbury (1933),
353 Ill. 11 ,
186 N.E. 470,

in light of a broader banking fraud statute
which included false entries, reports, and
verifications, the writing in of the word
"none" in a blank, as it was false, was
construed as a "false" entry.

There is no "omission to act" language in
946.12(4) and a persuasive argument could
be made that where in 946.12 - i.e., in
946.12(1) and 946.12(3) - the legislative
meant omission to act to allow
liability, it so stated.

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However, by simple logic it would seem that
falsely leaving a blank in such a document as
an account book could make a false total sum,
and could thus be argued to be a false entry,
even though it involved an omission to act.

ELEMENT 4,  that it was false
            in a material respect.

In note 2 to the Wisconsin Jury Instructions,
Criminal 1733, it is stated that materiality
is usually "a question of law which can be
determined by the trial court."

The note defines falsification
in a material
respect as

   "that which causes the instrument
    to speak differently in legal effect
    than it spoke originally."

This note to the jury instruction seems to
adopt the definition of "material alteration"
commonly used in civil cases.

Thus, in

Ruwaldt v. W. C McBride, Inc. (1944),
388 Ill. 285,
57 N.E. 2d 863, 867, 868,
155 ALR 1209,

the test was whether the alteration
changed the legal effect
of the document:

   . . . any alteration of a written
   instrument is material which so
   changes its terms as to give it
   a different legal effect from
   what it originally had, and
   thus works some change in
   the rights, obligation,
   interests or relations
   of the parties.

   At 867

In this  case striking a termination clause
and thus invalidating a lease was held
to be such a "material alteration."

Similarly, in

Sneed v. Sabinal Mining and Milling Company
(7th Cir. 1896),
71 F. 493, 495,
18 C.C.A. 43,

a defendant was held to
have "materially altered" an instrument
when he changed the name of the payee
and thus completely changed the
legal effect of the instrument.

The common meaning of the term "material" and
the civil definition would seem in accord.
Black's Law Dictionary defines the term as
connoting real importance, influence or
effect, matter as distinguished from form.

In

U.S. v. Pope (S.D. N.Y., 1966),
189 F. Supp. 12,

it is stated that common usage of
the term "material" is clear and
with suffice for legal purposes.

Further guidance is found in a series of
federal cases interpreting 18 U.S.C. 1001.

Although of broader scope, this statute
is similar to, and in fact
would subsume, 946.12(4).

It states:

   Whoever, in any manner within the
   jurisdiction of any department or
   agency of the United States, knowingly
   and willfully falsifies, conceals, or
   covers up by any trick, scheme, or
   device a material fact, or makes any
   false, fictitious or fraudulent
   statements or representations, or
   makes or uses any false writing
   or document, knowing the same
   to contain any false, fictitious,
   or fraudulent statement or entry,
   shall be fined . . . . . . .

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The test for materiality under
this statute is well established.

In

U.S. v. Tzanstarmas (9th Cir. Cir. 1969)
402 F. 2d 163,

it was stated that

   A statement is material if it could
   affect or influence the exercise of
   a governmental function.

To this same effect see

U.S. v. East (9th Cir. 1969),
416 F. 2d 351,

in which the test for materiality under 18
U.S.C. 1001 was held to be whether the
falsification is calculated to induce
action or reliance by an agency
of the United States.

See to the same effect,

U.S. v. Goldsmith (7th Cir. 1940),
108 Fed. 2d 917,

which stated the test for materiality in
substantially the same terms.

However, it is well settled that whether the
government did in fact rely on the false
statement is immaterial.

Blake v. United States (8th Cir. 1963),
323 F. 2d 245.

Section 946.12(5), INTRODUCTION.

Section 946.12(5) penalizes any public
officer or employee who,

   Under color of his office or employment,
   intentionally solicits or accepts for
   the performance of any service or duty
   anything of value which he knows is
   greater or less than is fixed by law.

As discussed earlier, Subsections 946.12(4)
and 946.12(5) of Section 946.12 cover acts
that will in general also fall under
the broader Subsections 946.12(1)
through 946.12(3).

Thus an officer or employee accepting or
soliciting improper compensation would
probably be chargeable under Section
946.12(2) or 946.12(3) as well as
under subsection  946.12(5).

See

State v. Kort (1972),
54 Wis. 2d 129,
194 N.W. 2d 682,

for an example of a case
brought under Subsection 946.12(2)
which may have been possible under
subsection 946.12(5) as well.

Moreover, some cases chargeable under
946.12(5) might also lie under provisions of
the Criminal Code not specifically directed
at public officers or employees.

For a possible example, see

State v. Brown (1910),
143 Wis. 405,
127 N.W. 956,

where a sheriff was charged with obtaining
money from the county by false pretenses.

The Official Comment to the 1955 Revision of
the Criminal Code indicates that Section
946.12(5) was in tended to supplant
four prior provisions.

Old Section 348.28 punished, among others,
a public officer or employee

  ". . . who shall ask, demand, or exact for
   the performance or any service of duty
   imposed upon him by law any greater
   fee than is allowed by law. ."

Section 348.281 provided that

  "Except as specifically authorized by
   statute, no officer or employee of
   the state shall, Directly or indirectly,
   receive or accept any sum of money, or
   anything of value, for the furnishing
   of any information, or performance of
   any service whatever relating in any
   manner to the duties of such
   officer or employee, . . . "

and made violation of the Section
a misdemeanor.

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Section 348.29 punished an
officer or employee who

  "shall be guilty of any wilful extortion."

Finally, Section 348.301 punished the
allowance or offer of a rebate or discount on
fees allowed by law to registers of deeds.

Section 946.12(5) differs from its
predecessors in several respects.

For one thing, Sections 348.28, 348.281, and
348.301 may have imposed strict liability,
while Section 946.12(5) requires intent to
solicit or accept value known to be improper.

Also, the inclusion in Section 946.12(5) of
anything of value less than fixed by law
differs from 348.28 and 348.281.

Nor was the taking of less than an amount
fixed by law within the crime of extortion.

In

Hanley v. State (1905),
125 Wis. 396,
104 N.W. 57,

the court stated that Section 348.29 punished
the offense of extortion as it existed at
common law, and adopted the standard
common law definition:

   The common-law offense of extortion is
   said "to be an abuse of public justice,
   which consists in any officer's
   unlawfully taking by color of his
   office, from any man, any money
   or thing of value that is not
   due him, or more than is due
   him, or before it is due."

   Bl. Comm. Book 4, 141." At 401

(Note: Common law extortion under color
of public office should not be confused
with extortion and blackmail by a
private individual as defined in
Section 943.30, Stats.)

Wisconsin Jury Instruction, Criminal 1734,
states the elements of an offense under
Section 946.12(5)
as follows:

1.  That the defendant was, at the time
    of the offense, a public officer
    or employee;

2.  That the defendant intentionally
    solicited or accepted for the
    performance of any service or
    duty anything of value;

3.  That the defendant knew the amount
    solicited or accepted to be greater
    or less than is fixed by law; and

4.  That he intentionally solicited
    or accepted such value under
    color of office.

It should be noted at the outset that there
is an almost complete lack of authority
on the application of Section 946.12(5)
and its antecedents.

Hanley, supra, appears to be the only
Wisconsin decision, and it dealt
only with extortion.

Otherwise, Wisconsin authority seems limited
to several references in opinions of
the Attorney General.

There is, of course, ample law from other
jurisdictions dealing with extortion, and
some guidance may be taken from the words
of the other Wisconsin statutes.

However, see. 946.12(5) differs substantially
from these other crimes, and the relevance of
reasoning based upon them depends to some
extent on the statements of intent in the
Official Comment, which of course do not
have the force of law.

ELEMENT 1, that the defendant was a
           public officer or employee.

See the discussion under
Section 946.12(1),
element 1, supra.

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ELEMENT 2, that the defendant intentionally
           solicited or accepted for the
           performance of any service or
           duty anything of value.

a.   INTENT.

See the discussion of intent under Section
946.12(1), supra. The statute appears to
require general criminal intent as provided
under Section 939.23, Stats. Thus a defendant
would possess the requisite intent if he had
the purpose to solicit or accept from the
performance of any service or duty anything
of value, subject of course to the
requirement of knowledge that the amount
solicited or accepted was improper.

(See element 3, infra).

The common law crime of extortion was
generally said to require corrupt intent.

3 Wharton's Criminal Law and Procedure,
Section 1394, p. 791 (1st Ed. 1957);

35 C.J.S., Extortion, Section 3, p. 359.

From this, it might be argued that a
requirement that the defendant be seeking
unjust advantage or personal gain should be
engrafted upon Section 946.12(5).

This seems incorrect for several reasons.
First, Section 946.12(5) makes no
mention of any such requirement.

Section 946.12(3), addressing discretionary
duties, specifically requires intent to
obtain dishonest advantage, and presumably
had the legislature contemplated it as to
946.12(5), it would have so provided.

Also, solicitation or acceptance of fees
less than provided by law are
within Section 946.12(5).

This would seem inconsistent with a
requirement for intent to obtain
dishonest advantage.

Moreover, the corrupt intent required under
common law extortion seems in fact to have
been merely the intent to collect fees to
which the officer was not entitled. The
inquiry into motive looked no further.

When the intent requirement of element 2 of
Section 946.12(5) is considered along with
the requirement of element 4, that the
Defendant knew the amount solicited or
accepted to be improper, the corrupt
intent requirement that applied to
extortion at common law seems
consistent with Section 946.12(5).

Thus it would seem immaterial that a
defendant ultimately enjoyed no benefit
from his act, such as where he procured
an excess fee for another person.

In Hanley, supra, the court stated that
it was immaterial whether or not the
money received by defendant was
received for his own use.

b.   SOLICITS OR ACCEPTS.

These words appear to have their ordinary
meanings. Unlike the crime of extortion or
blackmail by private citizens, as in Section
943.30, Stats., common law extortion under
color of office requires no circumstances
amounting to actual duress.

State v. Matule (1959),
154 N.J. Super. 326,
148 A. 2d 848, 851;

35 C.J.S. Extortion, Section 4, p. 360,
3 Wharton's Criminal Law and Procedure
supra, at 793.

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The mere presentation of an account to
a body authorized to pay it has been held a
sufficient demand. Id. At least under some
circumstances, solicitation of a bribe would
constitute attempted extortion.

State v. Begyn (1961),
34 N.J. 35,
167 A. 2d 161 .

Section 946.12(5) would also overlap with
bribery in many cases, and where difficulty
is anticipated in proving a case, under
Section 946.10(2). Stats., charging an
offence under Section 946.12(5), Stats.,
might be considered as an alternative.

While extortion at common law required both
demand and receipt of the illegal item of
value, either solicitation or acceptance
suffices under Section 946.12(5).

Thus it would seem that where something of
value greater or less than allowed by law
is offered to a public officer or employee
voluntarily, whether out of ignorance,
mistake, or otherwise, for performance
of a service or duty, its acceptance
would constitute violation of Section
946.12(5) if the requisite intent
and knowledge were present.

c.  PERFORMANCE OF ANY SERVICE OR DUTY.

Section 946.12(5) requires that value be
solicited or accepted for the performance
of any service or duty. This language
raises several questions.

One question relates to whether actual
performance of the service or duty is
necessary. This might arise where
solicitation and/or acceptance are made
before the supposed performance, and the
defendant subsequently fails to perform.

Again, the question would be presented
where improper value is solicited or accepted
for performance supposedly complete,
but in fact never rendered.

In both cases the purpose of the statute
would indicate that liability should exist.

Since the wording of Section 946.12(5) is
compatible with this result, even under the
requisite strict construction, it is probable
that actual performance would not be
required. At common law, a public officer
taking fees for services not rendered
could be guilty of extortion.

35 C.J.S.. Extortion, Section 2, p. 359.

The form of Wisconsin Jury Instructions,
Criminal 1734 would have to be modified
somewhat to accommodate this situation.

A more serious question relates to the scope
of "any service or duty." These words is
taken alone seem broadly inclusive.

However, several limiting arguments can be
advanced based on the statement as a whole.

First, it might be argued that only services
or duties committed to the officer or
employee by law are covered.

This seems incorrect for several reasons.

First, the word "any" and the absence of
explicit limitations within the statute
suggest a broader applicability.

Where narrower categories were intended
in other Sections of 946.12, they
were clearly stated:

   "Mandatory, nondiscretionary,
    ministerial duty of his
    office or employment"

in Subsection 946.12(1), a limitation to
acts done "in his capacity as such
officer or employee" in Subsections
946.12(3) and 946.12(4).

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Also, certain of the prior statutes
said to he replaced by Section 946.12(5)
indicate in broader scope.

These statutes are excerpted above under
the introduction to Section 946.12(5).

Sections 348.28 and 348.301 were of narrow
scope, the former addressing duties "imposed
by law," and the latter merely the
registration of deeds.

Section 348.28 however, covered "any service
whatever relating in any manner to the duties
of such officer or employee."

Probably broadest of all was extortion, under
Section 348.29, where the breadth of
activities covered was generally determined
by the actor's claim of authority to do them
and/or collect payment therefor.

[See the discussion of "color of office or
employment" under element 4, infra.]

If the legislature intended sec. 946.12(5) to
cover all offenses within the prior statutes,
it would seem reasonable that the broadest
scope consistent with the words of the
new statute should be given
to "any service or duty."

This would point to extortion, a conclusion
supported by the use of the phrase "color of
office or employment," a phrase of art
commonly used in defining this crime.

See, for example, Hanley, supra.

Under this construction, "any service or
duty" would be given its literal meaning,
with the limitation on scope of the
statute's coverage being provided
by the requirement that a defendant
made the solicitation or acceptance under
color of his office or employment.

Another question - again one to which no
conclusive answer can be given - is -
whether "any service or duty" should
be limited to those for which some
particular fee "is fixed by law."

Use of the word "fixed," as opposed to
"allowed" in the old Section 348.28 and
348.301 might suggest such a construction.

Moreover, a fixed fee would obviously be
necessary where a defendant is being charged
with acceptance of less than the proper
amount for a service or duty, and a
court might be disinclined to adopt
a seemingly different construction
where a defendant is charged with
soliciting or accepting too much.

Under this construction, Section 946.12(5)
would be limited to situations like those of
49 OAG 171 (1960), dealing with a justice
court's charging costs exceeding those
provided by Section 307.01 , Stats.,
or 48 OAG 257 (1959), which suggested
that a sheriff's charging fees less
than provided by Section 59.28, Stats.,
would violate sec. 946.12(5).

However, persuasive arguments can
be made for a broader scope.

The basic premise is that unless some
particular remuneration is specifically
provided for the rendition of official
services, the amount a public officer
may receive therefore "is fixed by law"
or nothing.

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This proposition finds considerable
support in time case law.

In

Quaw v. Pall (1898),
98 Wis. 586, 590,
74 N.W. 369,

The Wisconsin Supreme Court stated:

   Officers take their offices cum onere,
   and can acquire no right, legal or
   equitable, to a salary in excess of
   that provided and fixed by law before
   they enter upon their official duties.

   Whether the salary incident to an
   office be adequate or inadequate
   is entirely immaterial.

   The officer accepting an office has no
   right to demand more for the performance
   of its duties, or the performance of any
   duty, as such officer, not required by
   law, but which may he required of him by
   him by the governing body of the
   corporation and voluntarily performed.

   All services performed, which are within
   the scope of his official duties, or
   which are voluntarily performed as
   such officer by request or otherwise,
   are, in contemplation of law, covered
   by his official salary.

   Kewaunee Co. v. Knipfer, 37 Wis. 496.

This passage was quoted with approval in

St. Croix County v. Webster (1901),
111 Wis. 270, 273,
87 N.W. 302.

Moreover, a search of the statutes defining
the duties and compensation of the position
occupied by a particular defendant or those
statutes defining the powers and duties of
the governmental body employing him,
may be of help.

(Such a search should of course be a first
step in any contemplated prosecution
under Section 946.12, Stats.)

Wisconsin law dealing with criminal
misconduct also recognizes the principle
stated in Knipfer. supra.

As noted earlier, the official comment
indicated an intent to incorporate extortion
within Section 946.12(5).

Hanley v. State, supra, specifically
held that extortion was

    "a wrongful taking, by color of office
     . . when nothing is due, as well as
     when more is demanded than is due."

125 Wis. at 401.

In 61 OAG 256 (1972) it was suggested that if
a deputy sheriff took money from the owner of
a bar for keeping order therein, he would be
violating Section 946.12(5) unless done in
his private capacity while off duty.

(Incidentally, the opinion went on to state
that the deputy might be allowed to wear
his uniform under such circumstances.

6 OAG 32 (1917), involved a district attorney
who was charging fees for the prosecution of
bastardy proceedings. This work was part of
his official duties, and the opinion stated
that his charging for it would violate
Section 4549g, Stats., which later
became Section 348.281, a predecessor
of Section 946.12(5).

See also 19 OAG 133 (1930), referring to old
Section 348.28, Stats., and 54 OAG 191
(1955), dealing with Section 946.12(5),
both indicating liability where fees are
taken for the performance of services for
which no specific fee provision is made.

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Thus, while the question is not free from
doubt, it seems likely that "any service or
duty, as the terms are used in Section
946.12(5), would not be limited to only those
duties committed by law to the defendant, or
to those for which some particular fee
is specifically provided by law.

d.   ANYTHING OF VALUE.

The broad term "anything of value" seems to
be taken from the definition of extortion, as
quoted from Hanley, supra, in the
introduction to this Section .

There seems to be general agreement in the
extortion context as to the following:

Anything having value is sufficient, but it
probably must be value expressible in
monetary terms; checks are within the term,
but promises to pay, being illegal and hence
unenforceable, are not, unless the promise
has been fulfilled; the amount by which
the value differs from that which would
be legal is immaterial to guilt.

3 Wharton's Criminal Law and Procedure,
supra, Section 1396, p. 793;
35 C.J.S., Extortion, Section 6. p. 361.

At this point it should be noted that the
formulation of element 2 in Wisconsin Jury
Instructions, Criminal 1734 will prove
inadequate in some cases where a
defendant performs a service or
duty for less than the fee fixed by law.

As formulated, if a defendant solicited or
accepted nothing for the performance of a
service or duty for which a lee was
prescribed by law, he would escape liability.

This result seems clearly absurd, and could
possibly be escaped by requesting when
necessary an instruction phrasing element 2
as follows: That the defendant intentionally
solicited or accepted for the performance of
any service or duty anything of value less
than is fixed by law.

The other elements could remain unchanged.

ELEMENT 3, that the defendant knew the
amount solicited or accepted to be
greater or less than is fixed by law.

As to the meaning of "by law,"
see the discussion under
Section 946.12(1), element 1.

See also the discussion of "any service or
duty" under element 2, immediately preceding.

As there indicated, the approach to
determining what value is in fact
fixed by law is two-fold:

A search of the statutes, ordinances
and regulations applicable to
the particular case;

and if no  specific provision is found,
the use of the rule that in the absence
of a specific provision for compensation,
none is allowed.

This element requires that a defendant
knew that the value solicited or
accepted was improper.

As to this, reference should be made to
Section 939.23, Stats., dealing with
criminal intent, and the discussion
of intent and proof of intent
under Section 946.12(1), element 3, supra.

State v. Lombardi (1959),
99 N.W. 2d 829,

would unmake relevant the length of
time a defendant had held his position.

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Also relevant would be evidence that a
defendant had in the past performed the
same or similar services without soliciting
or accepting improper value, as of course
would be statements by defendant indicating
knowledge, or statements made by others
warning him of the impropriety of his
actions.

A PUBLIC OFFICER IS PRESUMED TO KNOW THE LAW.

Rogers v. The Marshall (1868),
68 U.S. (1 Wall) 644,
17 L.Ed. 714.

See also

State v. Kort (1972),
54 Wis. 2d 129,
194 N.W. 2d 682,

for inferential support, and Section 903.03,
Stats., concerning presumptions
in criminal cases.

However, a jury must be convinced beyond a
reasonable doubt that the defendant actually
had the requisite knowledge, so a good faith
mistake as to the law defining proper value
to be paid for performance of a service or
duty would be a defense.

This was true as to extortion at common law.

While a custom or usage of charging improper
fees was not in itself a defense to a charge
of extortion, the existence or such a custom
might be relevant on the issue of knowledge.

3 Wharton's Criminal Law and Procedure,
supra, Section 1394. Page 792;
35 C.J.S., Extortion, Section 8, P. 362.

ELEMENT 4, that the defendant intentionally
solicited or accepted such improper value
under color of his office or employment.

The phrase "color of office" is a term of art
associated with extortion, and the definition
given in Wisconsin Jury Instructions,
Criminal 1734 - a claim of assumption of
right to do any act by virtue of an office or
employment - is substantially that given by
the common law. It implies a pretense of
official right to act in a certain manner
where in fact no such right exists.

Thus in Hanley, supra, the taking by a
constable of a sum of money for the discharge
of a search warrant was an act done under
color of office. Additional definitions of
"color of office" are collected at
7A Words and Phrases, "Color of Office,"
Page 302, et seq.

Within the context of common law extortion,
"color of office" seems to have had
substantially the same scope as the
phrase "in his official capacity,"
so the discussion of element 2 of
Section 946.12(2) should he consulted.

However, there seems to have been no general
requirement that the service for which
improper fees were taken be one the officer
had a duty or discretionary power to perform.

35 C.J.S., Extortion, sec. 5. P. 361.

It was enough that the defendant based his
supposed right to act as he did upon his
official position. Thus, while a defendant
could defeat a charge under Section 946.12(5)
by showing that the acts alleged were done in
his private capacity, he should not be able
to interpose as a defense that his acts were
not done under color of office or employment
because they fell outside the activities
properly assigned to such office or
employment.

The laying of claim to powers not actually
possessed is implicit in the doing of a
proscribed act under color of office.

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Note that as formulated, element 4 seems to
require that the defendant intentionally
acted under color of office or employment.

This suggests the possibility that a
defendant might argue that whatever the
appearance of the situation, he did not
in fact intend to act under color.

The usual problems of inferring intent from
objective acts would be presented, and the
discussion of intent and proof of intent
under Section 946.12(1), element 3 applies.

The question that would be presented to a
jury would be whether the defendant intended
that his solicitation or acceptance be taken
as the act of a public officer or employee.

Relevant to this determination would be the
nature of the service or duty involved, the
surroundings in which the acts were done, the
defendant's knowledge that the person with
whom he dealt was aware of his office or
employment, and of course any statements made
by the defendant designed to indicate that he
possessed authority.

CONSTITUTIONAL DEFENSES TO 946.12

In addition to potential defenses which have
been noted within the discussions or the
various Subsections of 946.12, several
broader constitutional attacks and responses
to charging in prosecution under this statute
might be anticipated.

Though it is, of course, impossible to
anticipate all possible constitutional
attacks or, indeed, to anticipate the
exact form a specific constitutional
attack might take, two broad
categories would seem to emerge.

A.  CONSTITUTIONAL CHALLENGES To
    The Sufficiency Of The Charge.

As is true of other charges in Wisconsin, it
is sufficient to guarantee due process and
protect a defendant from the threat of
double jeopardy, to charge a violation
of 946.12 in the language of the statute.

It is required that, in charging a statutory
offense, enough must be stated to
"individuate" the offense so the defendant
has proper notice of the charge against him,
and subsequently an opportunity to prepare a
defense in response to this charge.

As stated in

Liskowitz v. State (1939),
229 Wis. 636,
282 N.W.103,

in a prosecution under a predecessor to
946.12 the charge was held to be sufficient
as it was in the language of the statute.

However, some additional statement may be
required lo inform the accused of the
exact nature of the particular crime with
which he is charged.

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   If a crime involving personal violence
   were charged in the language of the
   statute creating it without stating upon
   whom the act of violence was committed,
   or if burglary were charged without
   mention of the premises burglarized,
   it could hardly be claimed that the
   information or indictment notified
   the accused of the particular crime
   for which he was put upon trial.

   At 641.

In

Holesome v. State (1968),
40 Wis. 2d 95, 102,
161 N.W. 2d 283,

the Wisconsin Supreme
Court stressed that two factors are to be
considered in determining whether a charge
of a crime is legally sufficient:

1. whether the accusation is such that
   defendant can determine whether the
   charge states an offense to which
   he can plead and make a defense, and

2. whether conviction or acquittal is
   a bar to further prosecution for
   the same offense.

Thus, in addition to charging in the language
of the statute and charging all the elements,
it would be essential to give sufficient
underlying circumstances as to time,
charge so as to individuate the offense.

In

State r. Lombardi (1959),
8 Wis. 2d 421,
99 N.W. 2d 829,

a violation of 946.12(1), (2), was charged in
multiple counts, substantially in the
following language:

   That between the 31st day of August,
   1954, and the 30th day of June, 1956,
   in the county of Waukesha, state of
   Wisconsin, the said defendant, Michael
   Lombardi, in his official capacity as
   such sheriff of said county, refused or
   willfully neglected to perform the
   duties of his office as required
   by law . . .

   (specifying statute number).

   (At 425)

The defendant did not directly attack the
sufficiency of the  complaint as to failure
to state a specific time; however, the
court upheld the sufficiency of the
complaint as to time as well as to
place and the specific acts the
sheriff was alleged to have performed:

   We consider that in form the in
   formations and verdicts contain no
   reversible error.

   The language is that of the statute
   itself, and the statute is identified
   by its appropriate number.

   In content each information recites the
   action or failure to act whereby the
   sheriff violated the statute.

   The time, place, persons involved, the
   event and circumstances of the alleged
   offense required the sheriff's
   performance or non-performance of some
   act are described with certainty.

   The defendant seems to have had no
   difficulty in identifying the
   occurrences and events about
   which the state complains or
   in presenting his defense . .

   At 430.

The court, in finding that the information
complied with good practice and due process,
apparently stressed the fact that defendant
had adequate notice of the charge against
him.

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However, if an information were so
vague as to leave uncertain time and
place of the alleged misdeed,
due process problems might arise.

Specifically as to charging of time, caution
should be used. Though, Lombardi, supra, does
say that an information which stated that an
offense occurred between two dates was
generally in compliance with good practice
and due process, presumably whether time was
adequately alleged would depend on

   (1)  the nature of the crime and
   (2) the right to alibi.

If time is a material element to a specific
offense, it must be specifically charged to
notify defendant and give him a chance to
bring forth an alibi.

However, as stated in

Butler v. U.S. (10th Cir. 1952),
197 F. 2d 561:

   Where time is not an essential element
   of the offense, it is sufficient to
   charge facts which show that the offense
   was committed within the statutory
   period of limitation and in such a case,
   even though there be defect in the
   allegations as to time it is one
   of form only.

   (At 562).

Where time is not a material element, double
jeopardy is not risked and due process is
not violated by a charge that the alleged
crime occurred between two dates:

   The charge in each of the counts, while
   necessarily general in its terms,
   clearly defines the nature of the
   offense, the approximate time when
   it was committed, and the place where
   committed. If a second prosecution were
   attempted, the entire record, including
   all of the testimony as well as the
   pleadings, would be available to him
   [the defendant] to protect himself
   from such a prosecution.

   Id. At 563.

Thus approximate charging language as to
time might be appropriate in the case of
a continuing crime of misconduct, but
might be insufficient if one particular
violation was charged.

In continuing crimes such as, hypothetically,
repeated violation of 946.12(3) by failure to
perform a discretionary duty, which involved
a pattern of conduct over an extended period
of time, more approximate time language
would probably be tolerated.

As to what might constitute a continuing
crime in which a time element would be
meaningless and therefore not specifically
necessary in the information.

See People v. Patrick (1967), 38 Ill. 2d 255,
230 N.E. 2d 843. The charged crime was theft
over a period of a month.

The indictment specified only general dates
between which continuing offenses took place.

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   . . .if the single theft charged
   consists not of a single act, but
   a series of successive takings pursuant
   to criminal intent and scheme, it may
   not be possible, and it is not
   necessary, to indicate with any more
   certainty than has already been done
   when time offense was committed.

   At 846.

One test as to how material the element
of time would be in a particular crime
is how effective an alibi would be.

Obviously, if a public official were charged
with conspiracy or abuse of discretion over
an extended period of time, no alibi for
any specific time would serve to
vindicate him of the charge.

It would appear that courts protect the alibi
defense only to the extent that such a
defense would be sensible and appropriate
under the circumstances.

Thus the alibi defense as a matter of right
would depend on whether concepts of being at
the scene of the crime at the exact time of
its commission were meaningful or not.

If such concepts of time and place were
meaningful within the context of the crime,
obviously a defendant would need specific
data in the information so as to
prepare his alibi.

It should be added, parenthetically, that it
appears clear that though it is necessary to
charge intent for all violations of 940.12,
it is not necessary to charge corrupt intent,
with the possible exception of a charge
under 946.12(3).

See discussion of intent under 946.12(1) and
946.12(3); also see

State v. Lombardi (1959).
8 Wis. 2d 421,
99 N.W. 2d 829,

in which the court specifically addressed
itself to charging intent without
charging corrupt motive, and
found such a charge sufficient.

B.   CONSTITUTIONAL CHALLENGES
     To The Statute Itself

It is conceivable that a defendant might
claim that 946.12 was, in some of its terms,
void for vagueness, and therefore, deprived
him of due process of the law by not
sufficiently clarifying the exact proscribed
conduct and thereby depriving him of notice.

Though by no means a complete list,
some statutory phrases which
might be opened to such
attack are the
terms

   "in the manner required by law,"

in 946.12(1);

  "in a manner inconsistent with
   the duties of his office or
   employment or the rights of others,"

in 946.12(3); and falsification

  "in a material respect,"

in 946.12(4).

State v. Kort (1972), 54 Wis. 2d 129, though
not speaking to a void-for-vagueness
argument, is useful in the following
discussion in that the decision spoke
of notice as to proscribed conduct.

Defendant was held not liable under 946.12
for accepting reimbursement for out-of-pocket
expenses and the court overruled a 1915 case
which had proscribed such reimbursement.

However, the court did hold that public
officers or employees could not
be reimbursed for lost wages.

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Though the particular defendant in the Kort
case had been reimbursed for lost wages,
he was not liable as he could not have
had notice of conduct which the Wisconsin
Supreme Court had only, in the course
of the Kort opinion, made criminal.

The court opined that the officer must have
adequate notice or knowledge that the
activity in which he engaged was prohibited
in order to satisfy due process.

The court cited

U.S. v. Harriss (1954),
347 U.S. 612, 617, 618,
74 S.Ct. 808,
98 L.Ed. 989,

for a discussion of
constitutional requirements
as to notice:

   The constitutional requirement of
   definiteness is violated by a criminal
   statute that fails to give a person of
   ordinary intelligence fair notice that
   his contemplated conduct is forbidden by
   the statute. The underlying principle is
   that no man shall be held criminally
   responsible for conduct which he
   could not reasonably understand
   to be proscribed.

In

State v. Zwicker (1969),
41 Wis. 2d 497, 507,
164 N.W. 2d 512, 517

the Wisconsin Supreme similarly defined the
concept of void for vagueness in terms of
indefiniteness of statutory language:

   The concept of vagueness or
   indefiniteness rests on the
   constitutional principle that
   procedural due process requires
   fair notice and proper standards
   for adjudication.

   The primary issues involved are
   whether the provisions of a penal
   statute are sufficiently definite
   to give reasonable notice of the
   prohibited conduct to those
   who wish to avoid its penalties
   and to apprise judge and jury
   of standards for the
   determination of guilt.

   If the statute is so obscure that
   men of common intelligence must
   necessarily guess at its meaning
   and differ as to its applicability,
   it is unconstitutional."

This test is virtually identical to the one
offered in the leading U.S. Supreme Court
case on the subject,

Connally  v. General
Construction Company (1925),
269 U.S. 385,
46 S.Ct. 126,
70 L.Ed. 322.

It is there said:

   That the terms of a penal statute
   creating a new offense must be
   sufficiently explicit to inform
   those who are subject to it what
   conduct on their part will render
   them liable to its penalties, is
   a well recognized requirement,
   consonant alike with ordinary
   notions of fair play and the
   settled rules of law.

   And a statute which either forbids
   or requires the doing of an act in
   terms so vague that men of common
   intelligence must necessarily guess
   at its meaning and differ as to its
   application violates the first
   essential of due process of law.

   269 U.S at 391.

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To the same effect see

Lanzetta v. State (1939),
306 U.S. 451, 453,
59 S.Ct. 618,
83 L.ed 888,

and

Grayned v. City of Rockford (1972),
408 U.S. 104, 108,
92 S.Ct 2294,
33 L.Ed 2d 22.

Counter arguments to an attack on the
vagueness on any term in 946.12 would,
of course, involve arguing that
the terms were clear.

[For definitions of terms in question, see
the discussion of the particular elements of
the various Subsections of 946.12, supra].

In the Subsections which proscribe conduct
forbidden or not authorized by law,
reference may be had to the statutes, rules,
codes, etc., which describe the scope
of the duties of the officer.

It can be argued that the

   "person of ordinary intelligence"

referred to in the test for vagueness
is not a person ignorant of the law.

Even if there is no clear statutory mandate
as to the scope of an officer's or employee's
misconduct, it can be argued that one who
chooses to walk the line between legality and
illegality can reasonably be expected to bear
the risk, should he go too far.

The Wisconsin Supreme Court in

State v. Givens (1965),
28 Wis. 2d 109,
135 N.W. 2d 780,

cited the following passage from
Justice Holmes in

U.S. v. Wurzbach (1930),
280 U.S. 396, 399,
50 S.Ct. 167,
74 L.Ed. 508:

   Wherever the law draws a line there will
   be cases very near each other on
   opposite sides. The precise course of
   the hue may be uncertain, but no one can
   come near it without knowing that he
   does so, if he thinks, aid if he does
   so it is familiar to criminal law to
   make him take the risk.

   135 N.W. 2d at 785.

In State v. Alfonsi, supra,
the Wisconsin Supreme Court cited

Boyce Motor Lines v. U.S (1952),
342 U.S. 337, 340,
72 S.Ct. 329,
96 L.Ed. 367:

   Few words possess the precision of
   mathematical symbols, most statutes
   must deal with untold and unforeseen
   variations in factual situations and
   the practical necessities or discharging
   the business of government inevitably
   limits the specificity with which
   legislators can spell out prohibitions.

   Consequently, no more than a reasonable
   degree of certainty can be demanded.

   Nor is it unfair to require that one who
   deliberately goes perilously close to an
   area of proscribed conduct shall take
   the risk that he may cross the line.

Bronson LaFollette's Trial Manual End


Wednesday 15 September 1999

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