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Wis. AG threatens clerks could face prosecution for issuing same-sex marriage licenses

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Janine Geske, a Marquette University law professor and a former Wisconsin Supreme Court justice, said charging county clerks would be impractical and expensive. For example, since district attorneys, clerks and judges in a county likely all know each other, district attorneys would have to call in special prosecutors and judges from outside the county to avoid an appearance of a conflict of interest, she said.

Attorney General J.B. Van Hollen (R-Wis.)
Attorney General J.B. Van Hollen (R-Wis.) AP

A conviction would be difficult to win since clerks could argue Crabb’s decision is unclear and they’re interpreting it as best they can, she said. It’s not as if clerks are completely ignoring the basic requirements for marriage licenses, such as a birth certificate, she said.

“This isn’t a case where county clerks should be prosecuted,” Geske said. “The attorney general is totally frustrated and unfortunately he took his frustration out on county clerks. I hope he regrets making the statement. He bullied the county clerks.”

Van Hollen isn’t seeking re-election this fall. Four candidates are vying to replace him, including Waukesha County District Attorney Brad Schimel, a Republican, and Democrats Ismael Ozanne, the Dane County district attorney, Susan Happ, the Jefferson County district attorney, and state Rep. Jon Richards of Milwaukee.

Clerks in all those counties are issuing licenses. Happ said in an email to The Associated Press that she doesn’t think any district attorney could justify charges.

Richards’ campaign spokesman, Sachin Chheda, called the attorney general’s stance “outrageous.”

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“There’s no need to insert DAs into this process,” Chheda said. “He can’t win in federal court so he’s threatening clerks. That’s the wrong thing to do.”

Ozanne chuckled when asked what he thought of Van Hollen’s warning.

“J.B. Van Hollen just seems not to be able to let this go,” he said. “The clerks are doing what they should. This ban has been ruled unconstitutional.”

Speaking as Waukesha County district attorney, Schimel said “it’s not possible” for him to issue charges against the clerk in his county, who consulted with the county’s lawyer before issuing licenses. The clerk is in an “untenable position no matter which way she acts,” Schimel said, because she could face misconduct in office charges for failing to perform lawful duties if she doesn’t issue licenses.

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