A question about the John Doe charges.

So here's an interesting legal question regarding last week's charges.

Kelly Rindfleisch was charged with four counts of violating sec. 9.46.12(3) which prohibits using a discretionary power possessed in one's capacity as a public employee or official to obtain a dishonest advantage for another. This is the statute that was at issue in the caucus scandal and, as noted in my previous point, the Wisconsin Supreme Court split on whether it could be applied to the political activity undertaken by legislative employees at issue there. Violations of sec. 946.12(3) are class I felonies and may be punished by up to 3.5 years incarceration and/or a fine of up to $ 10,000.

The problems with applying sec. 946.12(3) in the caucus cases  were Due Process, Notice and unconsitutional vagueness, i.e., did the charged parties have fair notice that their conduct was prohibited by the statute. The Court of Appeals rejected the defendants' argument but, as noted above, the Supreme Court split. That left the Court of Appeals decision standing but the issue open for future cases.

As I've posted before, this defense may not work for Rindfleisch because she is charged with a specific form of conduct, fundraising, that is specifically prescribed by statute. Sec. 11.36(4) prohibits soliciting or receiving contributions from a public building. Sec. 11.36(2) prohibits a public employee from soliciting or receiving contributions during established working hours.  There is a bright line between asking for money and other types of arguably "political" work. In limiting the charges to this type of activity, the DA deserves some credit.

But can she be charged with a felony? Maybe not and here's why. Sec. 11.61 specifies the criminal penalties for conduct prohibited elsewhere. Ss. 11.61(1)(a) and (b) specify that some of these things can be class I felonies but the activities allegedly engaged in by Rindfleisch - soliciting contributions from a public building (or even during established working hours) - are not among them. To the contrary, it is included in sec. 11.61(1)(c)'s catch all provision providing that all other intentional violations of Chapter 11 "may be fined not more than $1,000 or imprisoned not more than 6 months or both." In other words, Chapter 11 both prohibits what Rindfleisch is allegeed to have done and makes clear that it is a misdemeanor. (This is what Wink was charged with.)

Does this suggest that sec. 946.12(3) ought not be construed to apply to Rindfleisch's behavior? Does it reflect a legislative judgment that what she did is not a felony and ought to be penalized only to the extent provided for in sec. 11.61?

To be sure, the same conduct may violate more than one criminal statute but I don't know that this commonplace observation answers the question. Here we have a specific prohition that the legislature has expressly said is not a felony but a misdemeanor. There appear to be no additional elements involved in charging a violation of sec. 946.12(3). Indeed, it's not clear that sec. 946.12(3) could be properly applied to this conduct without the bootstrap of sec. 11.36. Shouldn't the specific provisions of the chapter 11 control ?

I don't practice criminal law and I haven't researched the matter beyond what is set forth above. But I know some pretty good criminal defense lawyers read this blog from time to time. I wonder what they think. Is there a potential defenses along these lines?