In late January, the Wisconsin Department of Justice took a new tack in its prosecution of ticket cases for Capitol protesters. Citing the defendants' failure to notify the Legislature's Joint Committee for Review of Administrative Rules that they were fighting the citations in court, DOJ attorneys asked judges to dismiss the cases.
Attorney Jordan Loeb is representing seven clients who have nine tickets among them for participating in the Solidarity Sing Along protests against Gov. Scott Walker. He doesn't believe filings to the Joint Committee for Review of Administrative Rules are necessary, but he did not want to jeopardize his clients' cases on a technicality. So on Jan. 30 he sent a process server to the office of Sen. Leah Vukmir (R-Wauwatosa), who is co-chair of the committee. But when Loeb's process server arrived at Vukmir's office, nobody would accept the legal filings.
Vukmir's staff eventually directed the process server to Attorney General J.B. Van Hollen's office. A woman there refused to provide her name but agreed to take both sets of legal papers from the process server, according to Loeb.
Attorney Patricia Hammel says she also had trouble trying to serve notice to Vukmir. On Feb. 14, says Hammel, she, attorney Jim Murray and several of their clients attempted to deliver papers to Vukmir's chief aide, Dean Cady, but he refused to take them. And then he pushed the panic button, she says.
"The sergeant of arms came running in," and people were escorted out of the office, says Hammel. "Someone from Capitol Police came up and arranged for us to go in one by one." A rap parody video about the incident was posted online.
Vukmir spokesman Jason Booth did not return an email seeking confirmation or comment.
The role of the Joint Committee for Review of Administrative Rules came up during a hearing Thursday before Dane County Judge Peter Anderson. Loeb was one of several attorneys representing people who had been ticketed for violating the Capitol's permitting rules.
A few of the lawyers had not filed their papers with the Joint Committee for Review of Administrative Rules, and Department of Justice Attorney Robert Bresette argued to Anderson that they should not be given an extension. Bresette noted it would be inappropriate to do so now because the notice was intended to give the committee time to become a party to the lawsuit.
But Loeb replied that the committee has shown no interest in that option.
"They have chosen not only not to appear but to actively resist service," he told Anderson. The judge granted a roughly 30-day extension.
This is not the first time Vukmir's office has declined the delivery of legal papers. According to a Milwaukee Journal Sentinel report, Vukmir aide Jason Rostan in September refused to receive documents from process server Bruce Lowrey related to a lawsuit filed by the Center for Media and Democracy. When Lowrey returned and left the papers on a second visit, Rostan allegedly followed Lowrey down the hall and tried to push the papers back at him.
Judge Anderson also on Thursday responded publicly to the memo he received from the Department of Justice in response to his request for an estimate of the costs and benefits of prosecuting Capitol citations.
Anderson had asked for the cost-benefit analysis in late January, and Assistant Deputy Attorney General Daniel P. Lennington sent a response on March 27. Lennington cited no costs, instead arguing that enforcing the "rule of law" has value beyond "reducing monetary enforcement expenses" to all citizens.
Anderson acknowledged his request was "unusual," but insisted he had made it in "good faith." At the time, he noted, 400 new tickets were making their way through the Dane County court system. "The only reason I was hearing any of this was because that was too many for our commissioners," he said. "I don't normally do forfeitures."
He said it was a "challenge to the court system," though the pressure has eased since Capitol police stopped arresting participants in the Solidarity Sing Along in late August.
Anderson said the cost he was most concerned about was juror days. "If you have 400 jury trials, that's 2,400 juror days. That's a lot of juror days that we'd be using."
Bresette responded that Lennington's letter did acknowledge costs, though none were itemized. And he said it was the choice of both the prosecution and defendants -- nearly all of whom have requested jury trials rather than pay their tickets -- to continue these cases.
But Anderson said he saw no acknowledgment or justification of costs. "To me it was pretty thin." He also noted that the DOJ did not ask for clarification of his request or challenge his authority to ask for a cost-benefit analysis.
"I wasn't doing it to needle you guys," Anderson said. "I was serious -- why are we doing this? If your response to a court is, well, we don't really need to do what you've asked, judge, that doesn't really send a great message on the rule of law either."