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Thread: Is AG Van Hollen GUILTY of Misconduct in Office?

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    As I understand it, AG Van Hollen REFUSED to give an opinion to a legislator [Terry Musser] as required in state statute 165.015(1). Therefore, Van Hollen has intentionally failed/refused to perform a known mandatory, nondiscretionary, ministerial duty of the officer’s or employee’s office or employment within the time or in the manner required by law. State statute 946.12(1) says exactly that and therefore the AG is GUILTY of Misconduct in public office.


    Does anybody know who we contact or how we request a special prosecutor to investigateAG Van Hollen for Misconduct in public office?

    The state AG being investigated for misconductin office would get the kind of NATIONAL media attention we need.

    165.015(1)

    (1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.
    946.12(1)
    (1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law
    edited for grammar and format

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    I ANAL The legislator has standing, "we" do not. Musser can bring action.

    I believe your conclusions are sound.

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    Actually, the legislator (individual) does not have standing, especially when acting as a proxy for an individual citizen. Only the legislature (collective) has standing, besides the others mentioned in the statute. As long as the democrats are in control, there will be no request for an opinion from the legislature (collective). Van Hollen was not obligated to reply by law. What is irritating is that he could have responded as a courtesy to the legislator, Musser in this case, but refused to do so. He sold us out after getting our support to get elected.



    Fast Ed

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    I fail to see a need for an Attorney General opinion regarding open carry. There is no question on the matter, really, on which he needs to opine.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Shotgun wrote:
    I fail to see a need for an Attorney General opinion regarding open carry. There is no question on the matter, really, on which he needs to opine.
    True, but don't you think a request for the AG to summarize the issue of disorderly conduct with regard to open carry would at least let us know his position.

    If he won't issue a "matter of policy" to the general policing departments of the state because of cases pending, we will never get a reply, there will always be a case.

    My opinion Van Hollen does nothing to help 2nd amendment advocates, I wish I never voted for him. His re-election might be a different subject.

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    Careful, you have to know all the facts of Musser's request before you make a opinion as whether or not the AG violated ss165.015.

    In the Feb. 10, 2000 opinion filed by the Wisconsin Supreme Court concerning the case of State v Oak Creek (97-2188), the SSC very thorougly dissected the authority of the Wisconsin attorney general office. Wisconsin is again unique in that it's AG has quite limited power. In paragraph 55 the SSC made this statement " The legislature has not granted him the statuatory power to attack the constitutionality of statute ---".

    Whether or not the AG was authorized to give Musser an opinion could very well be the wording of the request. If it asked for a ruling on whether or not open carry was lawful because of constitutional amendment Article I section 25. The AG probably would not be able to respond. If the request simply asked if Wisconsin has any statute that prohibits open carry of firearms then the AG probably could respond and would be compelled to respond to Musser. If the request had any mention of constitution or constitutionality the AG would probably avoid the request.

    I have not seen Musser's letter so do not know how it reads.

    "The devil is in the detail".

    For those of you who enjoy reading court cases this case is very "eye-opening" in regards to the authority of our AG.

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    Here is direct quote from my Senator's office in answer to the question as to why Van Hollen did not feel compelled to offer an opinion.

    "...there is nothing a legislator can do to compel the Attorney General to offer a formal opinion. Only a request by the respective leadership committees of the Legislature could do so.

    However, now that Democrats control the leadership of both Houses, it is highly unlikely they would make such a request."

    Like you said, the devil is in the details. An individual legislator cannot compel and opinion from the AG. The legislature as a collective body can, but in the current climate, will not.


    Fast Ed

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    Emphasis mine:

    (1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.


    The head of any state government?

    Would this include the Chief of the Capitol police?
    How about the Chief of the State Fair Park Police Department or the Commander of the State Patrol?

    How about the head of some state agency that has nothing to do with the law?

    Perhaps there is a "head" of some department of state government we could get to make the request that would then compel the AG to answer.

    Or am I interpreting this incorrectly?



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    pkbites:
    I'm not absolutely sure but I believe the statement refers to the heads of the Wisconsin Administrative departments. There are 17 i.e. Department of Revenue, Department of Justice, Department of Natural Resources, Department of Transportation, Department of Tourism etc. In the area of law enforcement I think the statement would be limited to the head of the Department of Corrections.

    The statute is quite weasel worded but in my opinion I believe that is the intent.

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    Lammie wrote:
    pkbites:
    I'm not absolutely sure but I believe the statement refers to the heads of the Wisconsin Administrative departments. There are 17 i.e. Department of Revenue, Department of Justice, Department of Natural Resources, Department of Transportation, Department of Tourism etc. In the area of law enforcement I think the statement would be limited to the head of the Department of Corrections.

    The statute is quite weasel worded but in my opinion I believe that is the intent.
    Then "any department of state government" wordage needs to clarified. If it does only include those of administrative departments, then the word "any" would mean just that, ANY head, not just the head of corrections.

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    I've already made this point to my State Senator, but as of yet, have not heard back from him on the issue. I said that there must be some department head somewhere that would request the opinion, but I don't know if that means the Dept of Transportation, for instance, or if that includes the Dept. of Meaningless-Make-Work-to-Employ-Relatives-and-Cronies. If I had to guess, and that's all it is at this point, the Heads are the Dept. of Justice and that level, not just some 6-levels-down-in-the-department-of-unimportance bureaucrat.

    Fast Ed

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    pkbites wrote:
    Emphasis mine:

    (1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.


    The head of any state government?

    Would this include the Chief of the Capitol police?
    How about the Chief of the State Fair Park Police Department or the Commander of the State Patrol?

    How about the head of some state agency that has nothing to do with the law?

    Perhaps there is a "head" of some department of state government we could get to make the request that would then compel the AG to answer.

    Or am I interpreting this incorrectly?

    A "department head" would be the secretary of the cabinet level departments. The Capitol Police Chief is basically a bureau chief, under the Secretary of the Department of Administration. State Patrol is under the Secretary of the Department of Transportation. I don't know about the State Fair Park Police-- but I'm sure it comes under something else.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    I guess I didn't write my response clear enough. The 17 Wisconsin Administrative departments are:
    Administration
    Agriculture, Trade and Consumer Protection
    Commerce
    Corrections
    Employee Trust Funds
    Financial Institutions
    Health and Family Services
    Justice
    Military Affairs
    Natural Resources
    Public Instruction
    Regulation and Licensing
    Revenue
    Tourism
    Transportation
    Veteran Affairs
    Workforce Development

    Those are the 17 departments of state government as found on page 328 of the Wisconsin 2007-2008 Blue Book.

    I believe the intent of the statement is that the head of any of those departments can request an opinion from the AG.


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    Lammie wrote:
    I guess I didn't write my response clear enough. The 17 Wisconsin Administrative departments are:
    Administration
    Agriculture, Trade and Consumer Protection
    Commerce
    Corrections
    Employee Trust Funds
    Financial Institutions
    Health and Family Services
    Justice
    Military Affairs
    Natural Resources
    Public Instruction
    Regulation and Licensing
    Revenue
    Tourism
    Transportation
    Veteran Affairs
    Workforce Development

    Those are the 17 departments of state government as found on page 328 of the Wisconsin 2007-2008 Blue Book.

    I believe the intent of the statement is that the head of any of those departments can request an opinion from the AG.
    Therefore any one of those heads could be tapped for the job. I believe that when pushed came to shove this AG would give a pro gun/pro OC opinion. That would be priceless for our cause.

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    It is extremely remote that the heads of most of these agencies would ever ask for an AG opinion regarding open carry because it has no relevance to their particular area. The most obvious relevance would be to the Justice Department, but then that would mean the Attorney General is asking himself to write a formal opinion. The DNR would have a certain amount of relevance, but then clearly the DNR already deals with people open carrying all the time. Because the State Patrol is part of the DOT, it might ask for an opinion, but then the State Patrol primarily is dealing with people who are traveling by vehicle, it probably does not have a burning need to ask about OC. Don't forget, that the heads of the agencies are all appointed by the governor, with the exception of the AG and the state school superintendent. If your really wanted an AG opinion, I'd put pressure directly on the governor to ask for the opinion since he's on record as recommending open carry!
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    pkbites:

    I believe so, but how do we find one that will buy into our cause? Most, if not all, are assigned the job by the governor. Perhaps Matt Frank of the DNR might. An AG opinion on open carry might help clear up the conflict between 167.31(2)(a) and the concealed carry prohibition statute 941.23. As you recall state statutes allow firearm carry on ATV's. However, if you carry in accordance with the vehicle carry statute so that the firearm is completely concealed there is no way to avoid the three conditions the SSC says defines concealed carry. ATV's are designed insuch a way that there is no way to carry the weapon out of reach. An AG opinion may also clear up Tim Lawhern's "stop and identify" rule that if a warden asks for your firearm you must hand it over even if you are peaceful. I have no idea if Matt Frank is gun freindly or not. If Hassett was still head of DNR we would have some chance for assistance. Someone other than myself should approach Frank on the matter. I have pounded on the DNR about the conflict between 167.31(2)(a) and 941.23 so much I think they have a monogrammed coffee cup for me. The only other department head I can think of that may be a possible help is the head of the corrections department. Politically it may be tough to get any of the department heads to get involved. As I mentioned they are hand picked by the governor and will probably mirror his political views.

    It appears everyone in political office is trying to avoid any gun issue. Last fall I wrote a letter to Ken Lee of the AG office expressing concern that 31 hunters had been issued citations for carrying open firearms on ATV's during the previous hunting season. As I pointed out if you open carry on a vehicle you violate statute 167.31(2)(a). If you conceal the weapon you can't avoid violating the more serious statute 941.23. Those 31 hunters were literally "damned if they do. Damned if they don't. I carboned my state representative and my state senator, both of whom are gunfreindly. I have not received a reply from any of the three.

    I had drafted a letter to the state elections board, another group the AG is obliged to respond to, on the subject of open carry in polling places until I realized that most polling places are in schools or goverment buildings so the AG would have found it too easy to 'spin" around the question.

    I still think our best chance is through the legislature. If we can get a gun freindly committee chairperson to work with us to carefully word the request so that it addresses state statute interpretation and not constitutionality then I think the AG would have his back against the wall. Likely the only way we will get legislative help is if there is a push from some recognized organization. In the present political climate a request from an individual will probably fall on deaf ears as mine did.


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    Will someone please post Musser's request or a link to it? I have a personal acquaintance that has expressed some interest.

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    The attorney general shall . . . [g]ive his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.
    -- Wis. Stat. § 165.015

    By statute, the Attorney General must, when asked, provide the legislature and designated Wisconsin state government officials with an opinion on legal questions. The Attorney General may also give formal legal opinions to district attorneys and county corporation counsel under certain circumstances. Wis. Stat. § 165.25(3) and 59.42(1)(c).

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    Smithman:
    You are correct but as I posted earlier in it's opinion concerning the case of State v Oak Creek the SSC said AG opinions are limited to statute interpretation. The AG can not give an opinion if it concerns constitutionality.( Ref para 55 in above case opinion). That is why the wording of the request is so important. I believe the opinion also addresses requests from individual lawmakers v. committee heads but I would have to go back and review it again. As I said the wording of a request is apparently critical. For example: If the AG was asked "Is the charge of disorderly conduct for peacefully carrying an unconcealed weapon constitutional"? he probably could not give an opinion. If the question was " Is there any statute that prohibits the peaceful carry of an unconcealed weapon so that a charge of disorderly conduct is justified"? then he could give an opinion. At least that's how I see it. That's why the language of Musser's request is so important to whether or not the AG conduct is derelection of duty. In Wisconsin the AG authority is apparently limited to only issues of interpretation and application of state statutes. It appears the AG can not give an opinion concerning constitutionality to anybody.

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