Attorney general candidates spar over philosophy

Happ, Schimel locked in tight race
Attorney general candidates spar over philosophy
Brad Schimel and Susan Happ

How, exactly, the state’s next attorney general will defend laws if elected took center stage during the first debate between the two county prosecutors vying to replace J.B. Van Holland as Wisconsin’s “top cop.”

“The attorney general has to be able to look at the law. Compare it to the Constitution. And determine if it passes constitutional muster,” the Democrat, Jefferson County District Attorney Susan Happ told moderator Mike Gousha. “To the extent there is a law that directly conflicts and is blatantly unconstitutional, there is an ethical duty not to defend that law. And so it should be rare. And it should be the exception.”

“We do want an attorney general that’s going to defend the law the way it’s written.  When you take the oath to defend the office you don’t cross your fingers and say except for these ones that I don’t like or don’t agree with,” the Republican, Waukesha County District Attorney Brad Schimel, said.

“The attorney general is the state’s lawyer. That’s your job, to represent the state.”

As an example, Happ brought up her longstanding disagreement with the state’s gay marriage ban the Supreme Court overturned last week.

“I truly believe Wisconsin’s law against same-sex marriage does violate the United States’ Constitution’s equal protection clause, and the courts have agreed,” Happ said. 

Admitting he made a mistake when first interviewed about the domestic partner registry, Schimel said he would have defended it.

“But it’s settled. It’s a piece of the law now in Wisconsin,” Schimel said.

Happ also referenced the state’s voter identification law, which has been in a state of legal limbo during this election season.  The Supreme Court ruled last week voters will not have to show their ID during November’s election.  Happ says if it ends up before the high court again, she would not defend it.

“This law creates a fourth requirement not in our constitution. And it does include real impediments to voters,” Happ said.

Schimel, however, put the court on notice he is prepared to defend the Wisconsin law requiring voters to show identification when they vote.

“The Supreme Court only said because of the short time involved we can’t let it go into effect until Nov. 4. Still, right now our law is constitutional,” Schimel said.


Both candidates have spent a tremendous amount of time on the campaign trail, and on their websites talking about being “tough on crime,” especially domestic violence and sexual assault cases.

However, both parties have slammed Happ and Schimel, saying their consistent plea agreements actually make them soft on crime.

While both candidates said most of their party’s accusations are a distraction from who is best qualified for the job, Schimel disagreed about a recent Happ ethics complaint.

“There’s a fundamental difference,” Schimel said. “She’s got a real big case she hasn’t answered for yet.”

A now 25-year-old woman’s ongoing ethics complaint accuses Happ of approving a very light plea deal for the man charged with sexually assaulting her as a child, because that man ended up purchasing Happ’s home for $180,000.

“The reason why I haven’t spoken publicly about the facts in the case, first of all there’s a victim involved here,” Happ said. “Secondly, it’s an open case. It was resolved in a deferred prosecution agreement andapproved by a judge. And so I’ve had no involvement, whatsoever, in that case, with the charging, resolution of anything in-between.”

But Schimel maintained Happ should have gone beyond recusing herself, and handed the case over to a special prosecutor. While Happ agreed, in retrospect, that might have been a better idea, she made no apologies for the way the case was prosecuted.

“If I could change it because of the way it’s been portrayed, yes. But in terms of if I would allow that prosecutor to continue the case, I fully support her. There was uncertainty about what may have happened to it in terms of continued prosecution,” Happ said. “I think it does a disservice to voters to be pointing out cases, taking them out of context. Our records are certainly fair game, but only if portrayed fairly.”

Then Happ compared her ethics complaint to former state Rep. Bill Kramer donating to Schimel’s campaign. Kramer stands accused of sexually assaulting a state Senate aide three years ago after a Republican gathering. Schimel has recused himself from the case, and said he has donated Kramer’s money to an area women’s shelter.

“We have no ongoing financial relationship. We made the decision to give the money back before I ever knew there was a Waukesha victim. The difference is we’re working with the victim on that case. There’s no victim complaint,” Schimel said.

At that point it turned ugly, as the partisan accusations they had called distractions became more consistent. Happ said Schimel was interjecting partisan politics into race in an attempt to distract from the real issues.

“There’s nothing partisan about that complaint,” Schimel said. “That victim signed the recall petition. She doesn’t lean Republican. She’s unhappy because of what happened with the case.”

Happ continued with examples, like Schimel not investigating state Rep. Joel Kleefisch for introducing a bill that could have cut a major Republican donor‘s child support payments, making a plea deal with former House Speaker Scott Jensen, and calling into question Schimel’s handling of an attorney accused of shredding John Doe case documents.

“These are the things when we talk about our elected officials, not discretionary judgment calls, but things that look like the office has been politicized, these are things to voters should care about,” Happ said.

Schimel said there was not enough evidence to peruse the Kleefisch case, and if there had been he would have handed it over to a special prosecutor because of a perceived conflict of interest.

“We can keep going back and forth.  Earlier this year, my opponent dismissed a case of domestic violence against the chair of the Jefferson County Democratic Party,” Schimel said. “But this is a distraction from this ethical challenge, and a $180,000 land contract deal. That is not the same as these other situations.”


Schimel also served notice he is also prepared to go to battle with the federal government over what he views as far-reaching regulations, such as the Environmental Protection Agency’s new carbon dioxide emissions rules.

“If those go into effect they’re going to have a very disproportionate, harmful effect on Wisconsin compared to other states,” Schimel said. “We’re number one for manufacturing. But we get 62-percent of our energy from coal-fired energy plants. We’ve got to make sure when regulations like that go into effect we don’t see Wisconsin have jobs drain right out of our state.”

“We can create jobs without having job creation or job growth come at the expense of our environment,” Happ said. “I’m concerned when Brad has talked about creating a solicitor general – a political appointee who’s going to take on the federal government. I don’t think our attorney general should be engaging in those types of activists approaches.”

In terms of state environmental protection, Happ wants having the justice department to do a better job communicating with the Department of Natural resources about chronic violators. “I don’t know how DOJ is going to enforce DNR violations that aren’t referred to the Department of Justice,” Schimel said.


Wisconsin remains the only state in the union not to criminalize a first drunk driving offense.  Both candidates were in agreement they would like to study the 49 other states, and see if it makes financial sense to move forward with the idea here.

“If there’s evidence in the other state’s that making first offense a crime improves public safety then we should spend the money on it,” Schimel said.

“We ought to invest in it. We’re talking about public safety,” Happ said.

As far as Wisconsin’s heroin/opiate epidemic, which resulted in 227 deaths last year, both called combatting it one of their top priorities.

Happ said since she knows the state cannot prosecute its way out of the epidemic, she suggests rehabilitating offenders, and put a taskforce together that builds on DOJ’s effort to make information available and bring it to the public.

“We can help stress to people that heroin has a face. It doesn’t discriminate,” Happ said. “It’s that comprehensive, collaborative approach. And if we bring that information to the people, we can help them understand this is everyone’s problem.”

Schimel said his comprehensive support and training for heroin prevention, or STOP plan, builds on the idea of providing law enforcement proper resources, increasing drug dealer penalties, more drug treatment courts and prevention tools.

“We’ve got to make sure we direct resources to get our law enforcement trained,” Schimel said.

In respect to Wisconsin leading the nation in African-American incarceration rates, both candidates said the issue deserves the attorney general office’s attention.

Schimel and Happ said more treatment and diversion courts could lead to lower incarceration rates, but because of funding concerns would have to work closely with lawmakers to make sure demand for the programs could be met, especially by minorities.


Happ and Schimel differ on the role the attorney general’s office should play in regulating John Doe investigations, which help law enforcement build evidence necessary to establish probable cause. There has been much public criticism that the investigations can often  turn into political witch hunts. Schimel said he wants to improve the crisis in public confidence he says the John Doe investigations have created.

“I think we should build in another check and balance where we have another periodic review by the attorney general or by an appellate court that’s taking a look to make sure the process isn’t being abused,” Schimel said.

Happ said the process, for the most part, is a good one. 

“There is unfortunately this political taint,” Happ said. “I don’t know how we fix that other than to say we have to have an attorney general who’s going to be willing to go after anyone regardless of their political affiliation.”


As a top priority, Happ is proposing to move an assistant attorney general to the consumer protection fraud unit to crack down on what she characterizes as predatory, for-profit colleges. 

“This is about the for-profit colleges that are misrepresenting the value of a college education,” Happ said.

“That’s not how a prosecutor should do their job,” Schimel said. “You don’t announce who you’re going to go after through a press release. You announce who you’re going to go after, after you’ve done an investigation. And the Wisconsin Department of Justice has been leading on this already.”

Happ said more should be done, particularly since she says for-profit colleges are targeting low income students and veterans.

“To the extent that we can deter these colleges from doing that, so that our students who invest money in an education to end up with a worthless piece of paper, I absolutely think we should do that,” Happ said.