If Republican J.B. Van Hollen is elected state attorney general on Nov. 7, one of the first things he'll do is "put a stop to every [enforcement action] that does not have legal merit." Does that include the controversial public-nuisance lawsuit against a Sawyer County cranberry grower who allegedly damaged a lake?
"Absolutely," declared Van Hollen at a recent public appearance. (Van Hollen, through his campaign staff, has rebuffed repeated interview requests.) "I, along with several judges who dismissed that case, feel it has no legal merit."
Van Hollen, as usual, is exaggerating. (He's also claimed terrorists "are training and raising funds" in Wisconsin and that there's been "lives lost" due to the state crime lab's DNA backlog.) Only one judge has ruled on the merits of the cranberry action, brought by incumbent AG Peg Lautenschlager, although a federal court declined to accept it for review on a technicality.
And Sawyer County Circuit Court Judge John P. Anderson hardly deemed that the case had "no legal merit." Rather, he concluded that the cranberry grower "is intentionally discharging phosphorus-laden water directly into Musky Bay," and "knew or should have known" this was causing environmental harm. He said this grower "can no longer hide behind a veil of self-imposed ignorance" regarding these effects and that his actions "are beginning to interfere with a protected right."
But Anderson felt these actions "have not yet reached levels which this court can determine are unreasonable under the present state of the law." He said "significant differences of opinion regarding interpretation of this statute [were] presented, and a concise conclusion of law on this point will help clarify the issue, should the matter be appealed...."
In other words, the judge essentially urged the AG's office to appeal his ruling. This it did, prompting Van Hollen to demand, via overwrought press release, that the office "stop harassing law-abiding farmers."
Kathleen Falk, who beat Lautenschlager to become the Democratic contender, says she'll review the cranberry case "like I will all the cases. But I certainly do not take the position J.B. Van Hollen does, that there should be no public nuisance law." She sees this as proof of her rival's duplicity when he disclaims an activist agenda: "Right off the bat, there's a whole statute he wants eliminated."
As it happens, the opinion of the next AG may be irrelevant to the outcome of this case. By the time he or she takes office next January, it will have been fully briefed, awaiting the appellate court's ruling. And the court might not accept a motion to withdraw.
What a profound irony it would be if the court were to side with AG Van Hollen's office on an action he's said has "no legal merit."
Like the primary contests that preceded it, the general election race for attorney general is a nasty affair, full of sound and fury signifying the candidates' unvarnished contempt for each other.
Van Hollen has tried to peg Falk as a "liberal activist" on a mission to coddle criminals and undermine law enforcement. He's blasted "her history of rebuking sheriff's request for help," a far harsher assessment than that offered by Dane County's Republican sheriff, Gary Hamblin, who says of Falk: "There have been times when we've been at odds. Other times, we've worked together and accomplished things. (Though Hamblin has endorsed Van Hollen, Falk has the backing of the Dane County Deputy Sheriff's Association.)
Falk's camp, in turn, has dubbed the challenger "J.B. Van Hypocrite" for his stunning transformation since winning the primary against detached-cannon Paul Bucher. During that race, Van Hollen courted the GOP faithful with hard-right stands - calling, among other things, for the death penalty, concealed weapons, and a ban on gay civil unions. Now that he needs broader support, he insists his personal views are irrelevant to a job where he'll enforce laws, not enact them.
"I'm not going to be an activist attorney general," he assures. "I'm going to be a law enforcement leader."
Whether he thinks it relevant or not, Van Hollen is extremely conservative, by his own reckoning "probably a nine" on a scale of 10. He has likened abortion to homicide and ripped Bucher for allegedly saying he'd "feel safer, in a perfect world, if there were no guns," as though this were a lunatic statement.
Van Hollen has pledged to "restore integrity" to the AG's office. But he's declined to condemn the lies and distortions used by others on his behalf. These include one ad that falsely claims Falk "opposed letting law enforcement ask criminals if they were here illegally."
In fact, Dane County's policy expressly permits police to probe the immigration status of suspected criminals, if it's relevant to their inquiry. It merely prevents these questions from being put to crime victims or witnesses, so they are not discouraged from reporting crimes. Similar wording, notes Falk, appears in bills by Republican Rep. James Sensenbrenner, the scourge of illegal immigration.
Falk, meanwhile, seems intent on ducking issues as a candidate that she will not be able to escape as attorney general. Take the cranberry case: Does Falk support the appeal of Judge Anderson's ruling or not? She begs off, saying she hasn't read all the briefs, which perhaps not coincidentally makes it hard to quarrel with her position.
And what if the U.S. Supreme Court strikes down Roe v. Wade and there are efforts to enforce an existing state law, 940.04, which prescribes criminal penalties including incarceration for any mother who "destroys the life of her unborn child," as well as the provider?
Van Hollen vows to enforce the law, whether abortion is legal or not. Falk runs for cover.
"I do not think the Wisconsin Legislature will allow that law to stand," says Falk, adding that she'll fight to protect "our rights to privacy." But what if the Legislature, with its solid pro-life majority, doesn't overturn this law? What will Falk do? She refuses to answer: "I don't believe it will happen."
Planned Parenthood Advocates of Wisconsin, which has endorsed Falk, begs to differ. "We're quite certain the Legislature would not work to overturn our criminal abortion statute," says group spokeswoman Lisa Boyce, noting that attempts to do so failed in 1985 and earlier this year. Indeed, "We feel the overturn of Roe would embolden our opponents to work toward their next phase of action: to bar women's access to birth control."
That, too, could lead to new laws that the attorney general might be called on to enforce, like them or not.
Here's a statement backers of either candidate will hate: Both Van Hollen and Falk are qualified for the job.
A former district attorney and U.S. attorney, Van Hollen has proved his mettle as an administrator and prosecutor. It's no fluke that much of the state's law enforcement community is on his side.
During his Madison talk, Van Hollen gave a thoughtful and incisive explanation for why he opposes again criminalizing first-offense drunk driving in Wisconsin. (In the primary, both Bucher and Falk backed this change, which had the added benefit of embarrassing Lautenschlager, the subject of a 2004 drunk-driving arrest.)
Van Hollen said the penalties for first-offense drunk-driving in Wisconsin are "already very tough." Making it a crime would "increase the burden of proof" and raise the bar for convictions, compounding the workload of district attorneys. Plus, there's "no evidence" it will lead to fewer offenses. Van Hollen also faulted sobriety checkpoints as "unconstitutional and not effective." Beyond the bluster, his judgment is instructed by real-world experience.
Conversely, while Van Hollen has made it a mantra that "Kathleen Falk has never tried a criminal case in her life," it's clear Falk could hit the ground running. In her 14 years as an assistant attorney general, she successfully prosecuted countless cases. In nine more as Dane County executive, she's ably managed an office with more than four times the budget and employees as the AG's office.
And if Van Hollen or anyone else thinks Falk is not tough enough, he should try asking her a question she doesn't want to answer.