A provision in the recently passed state budget that diverts $2.2 million annually from schools to pay for more Milwaukee County prosecutors may violate the Wisconsin Constitution.
The budget act redirects all traffic fines and forfeiture revenues in Milwaukee County to the Milwaukee County District Attorney’s Office to fund 12 new assistant district attorney positions. But under Article 10, Section 2 of Wisconsin’s constitution, all “clear proceeds” from traffic fines are required to go to the Common School Fund.
A statute later established the “clear proceeds” at 50% of total revenue, while counties could retain the other 50% to reimburse the cost of prosecuting traffic violations or seizing and managing forfeitures.
In a 1973 Wisconsin Supreme Court case, the court granted limited power to the Legislature to define “clear proceeds.” In doing so, the decision said counties couldn’t keep so large a percentage of fine and forfeiture revenue that “the sum left for the school fund is merely nominal.” It also ruled that a county can only use these funds to reimburse for the prosecution of the fines and forfeitures.
By giving all revenue to the Milwaukee County DA, the new law — part of the biennial budget — contradicts the Supreme Court’s decision that all “clear proceeds” (or net profits) from forfeitures and fines be directed to the Common School Fund.
What is the Common School Fund?
Established in 1848 under the state constitution, the Common School Fund is used by public schools to purchase school library books and instructional materials, and may be the only source of library funding for some counties. The Office of the Board of Commissioners of Public Lands (BCPL) manages the fund.
According to meeting minutes from two recent BCPL meetings, board members discussed how the amendment appears to contradict the Supreme Court decision, raising the prospect of litigation.
“This provision appears to directly violate the 1973 Wisconsin Supreme Court opinion regarding Article 10 of the Constitution,” Tom German, board executive secretary of BCPL, said during an Aug. 19 meeting. “That opinion expressly limited the Legislature’s authority to define clear proceeds in order to prevent only a nominal amount of fines and forfeitures going to the school fund. Zero is less than nominal.”
The provision is projected to reduce revenue directed to the fund by $2.2 million annually. Wisconsin’s remaining 71 counties are still required to direct 50% of revenue from fines and forfeitures to the Common School Fund. A report from April 2025 estimated the 2024-25 library aid to be $8.3 million for more than 130,000 pupils in Milwaukee County.
The Milwaukee County DA’s office has about 120 ADAs and 160 support staff. The provision adds new ADA positions, which German says also violates the Supreme Court opinion.
The Legislature’s budget committee added the provision during the last executive session of this budget cycle under a "miscellaneous items” section of the motion as part of a budget deal with Gov. Tony Evers.
Action without explanation
Before the provision was proposed and passed by the committee late in the budget process, the Legislative Fiscal Bureau did not publish budget papers to explain the redirection of revenue from fines and forfeitures, as it often would for other budget proposals that come before the Joint Finance Committee during normal budget deliberations.
“The DPI will work with our partners in state government and professional organizations to ensure the Common School Funds — which are critical to student learning — continue,” a DPI spokesperson told Wisconsin Watch in response to the funding change.
In the last BCPL meeting, German said he informed the Wisconsin Legislative Council — the nonpartisan state agency in charge of providing legal and policy analysis — of this violation, and the council is currently investigating the provision.
The Legislative Council declined to comment. Evers’ office did not respond to a request for comment.
A Milwaukee County spokesperson said the funding for the 12 assistant district attorneys was a “bipartisan solution” to an “urgent need” to address court backlogs in the Milwaukee County District Attorney’s Office.
“Without this funding, Milwaukee County will lose a dozen assistant district attorney positions, which will significantly increase court backlogs that will impact public safety efforts now and in the future,” the county spokesperson said in an unsigned email.
This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.