Dane County Judge Peter Anderson might have been looking for some numbers when he asked the Wisconsin Department of Justice to estimate the costs and benefits of prosecuting Capitol tickets. But that's not what he got.
In a response filed March 27, Assistant Deputy Attorney General Daniel P. Lennington argued that enforcing the "rule of law" has value beyond "reducing monetary enforcement expenses" to all citizens. This includes "small "d" democrats who believe that legislatures, not prosecutors or courts, make law; utilitariansâ€¦ and those who value liberty and understand how even-handed enforcement of law created by the people's representatives is an essential component to liberty."
Lennington also argued that it was the duty of the prosecutor -- not the court -- to determine whether to initiate prosecutions. In quoting the Wisconsin Supreme Court, he wrote, "In general, the [prosecutor] is not answerable to any other officer of the state in respect to the manner in which he exercises those powers."
During a hearing on ticket cases in late January, Anderson asked the DOJ to conduct a "good faith" cost-benefit analysis of continuing to prosecute the 400 tickets pending in Dane County court. Activist Leslie Peterson captured the request in a courtroom video.
"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."
Anderson noted that no tickets had been issued since the agency settled a federal lawsuit last fall over the state's permitting rules at the Capitol, and asked "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."
He outlined some of the resources involved in the ticket cases, including state prosecutors, court staff and private defense attorneys.
In his response, Lennington wrote that Wisconsin's legislative and executive branches, by enacting laws and rules governing the use and access of government buildings, "have conducted their own analysis as to whether the benefit of these modest rules of conduct, which promote public access and safety while enabling the Capitol to function as an office building that houses all three branches of state government, outweighs the overall costs in enforcing them."
Lennington said for a prosecutor to abandon the enforcement of rules when probable cause exists, "would elevate a prosecutor's personal opinion above law, thus rendering the rule of law a nullity."