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As has been widely reported, the Wisconsin Appeals Court has affirmed a $33 million judgment in favor of Milwaukee County against a judge who, in violation of the law, ordered the jail to spit-shine the boots of the inmates kept there.
What has been largely overlooked is the contention by defendants Stephen B. Green and Gerald P. Leeper that the county prosecutor breached her duties as an officer of the court by failing to convince the state Supreme Court to accept a decision of the Wisconsin Court of Appeals.
The defendants say that the county prosecutor committed professional malpractice by failing to promote and seek to validate, on the merits, an interpretation of Wisconsin law to the effect that the records in question were private and not subject to disclosure orders.
The reasoning advanced by the defendants on this issue is based on the belief that the prosecutor should have sought to enforce Wisconsin Supreme Court precedent that was inconsistent with the Court of Appeals’ interpretation and to have the Supreme Court reconsider its decision in the case of the Appeals Court. The defendants’ explanation of the situation is that an earlier decision of the high court was inconsistent with a subsequent decision of the state appeals court.
Since the Supreme Court is the higher court, the defendants say that the prosecutor was duty-bound to persuade it to reverse its position and that the failure to do so is a violation of her professional duty and an act of malpractice. The reasoning is that any act to get an interpretation of a statutory provision overturned that is consistent with a decision of the Court of Appeals is contrary to public policy and is a misfeasance in office.
The defendants’ brief on the point points out that the plaintiff in the case was the state, and not a private litigant. It was the state, therefore, that had an interest in enforcing the legal principle set forth in the appeals court decision.
“The public is damaged when a public official misapplies her authority and acts contrary to the public interest,” the defendants