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§ 946.12(3), Misconduct in Public Office: Vagueness, Overbreadth, Speech and Debate Clause, Separation of Powers Challenges

State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates


  • Section 946.12(3), which proscribes exercising a discretionary power inconsistent with the duties of the defendant’s office (in this instance, a state legislator) is not vague. Though those “duties” aren’t identified in any specific statute, they may be found in various sources. ¶¶12-21.
  • Because § 946.12(3) is aimed at specific conduct (use of state resources for political campaigning), so that any effect on legitimate legislative speech is purely secondary, it isn’t overbroad. ¶24.
  • Section 946.12(3) doesn’t violate the speech and debate clauses of either state or federal constitution. ¶¶29-41.
  • United States v. Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir. 1995) (a United States congressman may be held to the law and rules of Congress), the Senate Policy Manual and supporting written guidelines are sufficiently clear to support § 946.12(3) prosecution of this legislator against a separation-of-powers argument (though his alleged activity in two instances come within rules that are too ambiguously stated to support their prosecution, ¶¶ 58, 64). ¶¶55-77.

(Same challenges subsequently rejected, in State v. Scott R. Jensen, Steven M. Foti, and Sherry L. Schultz, 2004 WI App 89, affirmed, 2005 WI 31.)

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