MILWAUKEE -- As they met for the first debate of the general election campaign, Democrat Susan Happ and Republican Brad Schimel traded shots on ethics.
Happ, the Jefferson County DA, was asked about her decision not to appoint a special prosecutor to handle the prosecution of a man involved in a sexual case even though her husband had sold property to the man for $180,000 several years earlier. An assistant DA in her office handled the case.
Mike Gousha, the moderator of the event held at the Marquette University Law School, asked her if in retrospect she would do anything differently.
"If I could change it because of the way it's been portrayed, yes," she said, adding however that she was properly screened off from the case. After the debate, Republicans accused Happ of lying about the case when she said it came to her office in 2013. Records show it was filed in 2012, and Happ's campaign said afterward that she misspoke.
During the debate Happ said the case was no different than that of Bill Kramer, the former Republican majority leader who lost his post after he was charged with two counts of sexual assault. Kramer had donated $500 to Schimel's campaign and a Schimel assistant is handling that prosecution.
Schimel, the Waukesha County DA, said the cases were far different and that he gave $500 to a local woman's shelter.
"There was no victim complaint," Schimel said, referring to the complaint filed against Happ with the Office of Lawyer Regulation.
Happ responded that "partisan politics have been integral" in the case against her.
She also cited Schimel's failure to prosecute a lawyer who shredded documents related to the John Doe investigation and his decision to reach a plea deal with Scott Jensen in which felony charges stemming from the so-called "caucus scandal" were dropped. She said the Waukesha County DA's office has been "politicized."
In turn, Schimel responded that Happ had dismissed a domestic violence case brought against a Democrat.
"We can keep going back and forth on this," he said.
In a separate exchange, Gousha asked Schimel if he believed allegations made by Republicans that the John Doe investigations involving Gov. Scott Walker's campaign and his former aides in the Milwaukee County exec's office were a political witch hunt. Schimel referenced his acquaintance with Milwaukee County DA John Chisholm, saying, "If the allegations are true I would be surprised.”
However, he said the challenges to the secret investigation have created “a crisis in confidence” in the procedure. While John Doe investigations are generally effective, he said “periodic review” by the attorney general’s office or the appellate courts may be warranted.
Happ shot back that GOP Attorney General J.B. Van Hollen was asked to take charge of the investigation but refused, citing his and Walker’s affiliation with the Republican Party.
“The process is a good one,” she said.
Also in the debate, the two differed over the role of the attorney general.
Schimel said absent "a definitive decision from a court that says that law is not constitutional," it was key for the AG to "step up to the plate and defend our laws from attack."
Happ said the attorney general did have an obligation to enforce the laws and defend them when challenged, but she said her duty to the Constitution meant that the AG should not defend "blatantly unconstitutional" laws. She also noted that attorneys general had the discretion to choose which laws to defend, giving the example of Van Hollen's refusal to defend the state's domestic partnership registry.
"The attorney general is not a robot," she said. "The attorney general has to be able to look at the law, compare it to the Constitution and determine if it passes constitutional muster."
However, she said, “it should be rare, it should be the exception.”
Schimel replied that making decisions about which laws to defend was not the role of the attorney general, saying the AG should not be a "super-legislator" and drawing a comparison to a private practice lawyer working contrary to the interests of a client.
"The attorney general is the state's lawyer," he said. "It's your job to represent the state."