Katzman v. State Ethics Board
| Decision Date | 06 May 1999 |
| Docket Number | No. 98-2884.,98-2884. |
| Citation | 596 N.W.2d 861,228 Wis.2d 282 |
| Parties | JoAnn KATZMAN, and William Katzman, Plaintiffs-Respondents, v. STATE of Wisconsin ETHICS BOARD, and James E. Doyle, Attorney General of the State of Wisconsin, Defendants-Appellants. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, the cause was submitted on the briefs of Alan Lee, assistant attorney general with whom on the briefs was James E. Doyle, attorney general.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Robert H. Friebert and Matthew W. O'Neill of Friebert, Finerty & St. John, S. C., of Milwaukee.
Before Dykman, P.J., Eich and Deininger, JJ.
The State of Wisconsin Ethics Board and Attorney General James Doyle appeal a decision and order which granted declaratory and injunctive relief to JoAnn and William Katzman.1 William is a lobbyist. The circuit court concluded that the statute prohibiting lobbyists from making contributions to incumbents and candidates for partisan elective state office, except during a specified period preceding general elections, "cannot be violated by a political contribution made by a lobbyist's spouse from marital funds."2 The court thus enjoined the board "from investigating political contributions made by JoAnn Katzman except to the limited extent necessary to determine whether she made any such contributions from William Katzman's separate property." The board contends the trial court erred because it must be allowed to investigate possible lobbying law violations accomplished by a lobbyist acting through an agent, and that its investigation into JoAnn's political contributions does not infringe impermissibly upon her constitutional rights. We reject the board's contentions and affirm the circuit court's order.
William Katzman is a lobbyist, licensed by and registered with the board to engage in "lobbying," that is, "attempting to influence legislative or administrative action by oral or written communication with any elective state official, agency official or legislative employe." Section 13.62(10), STATS.; see also §§ 13.63 and 13.64, STATS. His wife, JoAnn, is not a lobbyist.
Section 13.625(1)(c), STATS., provides in relevant part as follows:
Except as permitted in this subsection, [no lobbyist may] make a campaign contribution, as defined in s. 11.01(6), to a partisan elective state official for the purpose of promoting the official's election to any national, state or local office, or to a candidate for a partisan elective state office to be filled at the general election or a special election, or the official's or candidate's personal campaign committee. A campaign contribution to a partisan elective state official or candidate for partisan elective state office or his or her personal campaign committee may be made in the year of a candidate's election between June 1 and the day of the general election. . . .
The period preceding an election during which lobbyists may contribute to candidates for partisan elective state offices is commonly referred to as "the window." The board has taken the position that a lobbyist's spouse is not barred from making political contributions outside the window "merely because the individual is married to a lobbyist." It has also advised, however, that "a lobbyist may not evade the restrictions of the lobbying law by making a campaign contribution via a spouse."
The board has given examples to demonstrate the difference between a political contribution by a lobbyist's spouse which it deems permissible, and one that the board believes violates the law because the spouse is "acting as the mere agent of the lobbyist." It is permissible, according to the board, for a lobbyist's spouse "who has an established history of active participation in political campaigns, of her own volition" to make a political contribution outside of the window, "even if the contribution comes from marital property." However, if a lobbyist asks a spouse, "who has no particular interest in politics, to make a campaign contribution . . . indicating that [the lobbyist] cannot do so . . . because of the lobbying law," the spouse is "acting as the mere agent of the lobbyist, in all probability utilizing marital property funds."
Pursuant to its powers under § 19.49, STATS., the board authorized its staff to investigate whether there was probable cause to believe William Katzman had violated § 13.625(1)(c), STATS. It ordered the investigation based on information gathered from campaign finance reports on file with the State Elections Board showing that, both before and after the window period for the November 1994 general election, JoAnn had made numerous contributions to incumbent legislators of both parties, while during the window period, she made relatively few contributions and William made many.3 The board's resolution authorizing the investigation also authorized its staff to use its power under § 19.50, STATS., to subpoena "lobbyists, officials, candidates, or other individuals" to provide testimony and documents, and to "investigate any action or activity related to the investigation's purpose."
Attorneys for the board issued subpoenas to both William and JoAnn, requiring each of them to appear for a deposition and bring with them copies of checks issued for political contributions, check registers, day books and calendars showing political fundraisers attended, and the names of all banks where the Katzmans held personal or business accounts, all for the period under scrutiny before and after the 1994 general election.4 The Katzmans filed this action, seeking declaratory and injunctive relief, claiming that the board erred in its interpretation that § 13.625(1)(c), STATS., restricts the political contributions of lobbyists' spouses, and that the board's interpretation and its investigation of JoAnn violated her rights under the First, Ninth, and Fourteenth Amendments of the U.S. Constitution.
The parties filed cross-motions for summary judgment. In support of their motion, the Katzmans filed excerpts from transcripts of depositions taken by the board of three other lobbyists, and one spouse of a lobbyist, as part of the board's investigation into contributions made by spouses of lobbyists. These excerpts indicate that attorneys representing the board had asked a lobbyist's spouse the following questions, among many others:5
The excerpts also show that a lobbyist was asked the following questions during a deposition:
The trial court concluded that the board's investigation of JoAnn Katzman's contributions would likely result in similar questions being asked of JoAnn and William by a representative of the board, and that "[t]his type of questioning of either plaintiff regarding JoAnn Katzman's campaign contributions intrudes upon her First Amendment rights to speech and association." The court concluded further that if the answers to this type of questions "would provide no basis for bringing a civil or criminal action against [William], obviously there is no legitimate government interest, much less a compelling one, justifying the investigation." Nothing that a court should attempt to construe a statute in a manner that avoids rendering it unconstitutional, the court determined that § 13.625(1)(c), STATS., "cannot be violated by a political contribution made by a lobbyist's spouse from marital funds." Thus, according to the trial court:
Any investigation of the contributing spouse's political beliefs and practices is pointless and irrelevant. It makes no difference whatsoever what beliefs the contributor holds, nor what his or her contribution practices have been in the past. It makes no difference if the contributor's spouse advised, counseled or even ordered the contributor to make the contribution.
The board appeals the trial court's decision and order, which declared that contributions by a lobbyist's spouse, made from marital funds, cannot violate the lobby law, and enjoined the board "from investigating political contributions made by JoAnn Katzman except to the limited extent necessary to determine whether she made any such contributions from William Katzman's separate property." 6
[1-3]
We review the granting and denial of motions for summary judgment de novo, applying the same methodology and standards as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (19...
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