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Monday, December 22, 2014 |  Madison, WI: 34.0° F  Overcast with Haze
The Daily
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Dane County judge calls for cost-benefit analysis of prosecuting Wisconsin Capitol protesters
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Judge Anderson asked the state's attorneys to determine "what the costs are in real terms."
Credit:Leslie Peterson

For a year and a half, the Wisconsin Department of Justice has been prosecuting individuals cited for protesting at the Capitol. With protesters demanding jury trials instead of paying their tickets, it looked like the process would take a toll on the DOJ, not to mention taxpayers.

But when asked about the expense and effort involved in prosecuting hundreds of Capitol citations, Department of Justice spokesperson Dana Brueck said it was a cost-neutral proposition.

"Representing the government is our job," she told Isthmus in December 2012. "There is no additional expense to taxpayers."

Brueck made a similar statement last month when confirming that 13 attorneys are now assigned to prosecute these tickets -- one for each Dane County judge hearing the cases -- though they continue to work on other cases as well.

"Managing caseloads is always an issue, but these cases don't make that task any more or less difficult than any other cases," she said.

A Dane County judge is now pushing for a more specific answer to these questions. According to courtroom video captured last week by Leslie Peterson, Judge Peter Anderson asked the Department of Justice during a hearing on some ticket cases to conduct a "good faith" cost-benefit analysis of continuing to prosecute the 400 tickets pending in Dane County court.

"The Courts are open to everybody, and that certainly includes the state," Anderson said. "But people who have the authority to direct resources and prosecution... I think have some obligation to exercise that authority using good judgment and some consideration of what the resources, costs and benefits are."

Confirming that no tickets have been issued since the DOJ settled a federal lawsuit this fall over the state's permitting rules at the Capitol, Anderson said he wondered "what the state's purpose is in pursuing 400 forfeiture cases regarding events that occurred last summer under a legal system that is no longer in place."

Anderson ticked off some of the resources involved in these trials, including prosecuting attorneys, defense attorneys, court staff and witnesses.

Anderson asked the DOJ to "formally evaluate" what the "state's objective is -- which would be the benefit -- and what the costs are in real terms."

Determining the costs "in real terms" might be challenging, though, at least when it comes to prosecution costs. Assistant attorneys generals are salaried and do not log the time spent on these ticket cases, says Brueck.

"AAGs might track their time on cases for which there'd be a possibility of recovering attorneys' fees," says Brueck. "Otherwise, their time is not tracked."

The Department of Justice can recover fees in lawsuits involving violations of environmental regulations and consumer protections, among others, according to Brueck.

Brueck says the agency has no comment on Anderson's request for a cost-benefit analysis. "We'll respond to the order in court."

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