It may not qualify as the crime of the century, but Madison attorney Erik Guenther suggests it might be a crime.
On July 14, Guenther's law firm colleague, Marcus Berghahn, was served a subpoena ordering him to a hearing six days hence. The subpoena, issued by Madison Municipal Court Judge Daniel Koval, included an official-looking sticker asking Berghahn to contact the City Attorney's Office to "discuss your testimony."
The case at hand is of little matter. The City Attorney's Office subpoenaed Berghahn seeking information on a former client in connection with another case. When Guenther objected, noting that Berghahn didn't remember the individual and attorney-client privilege applied, the subpoena was withdrawn.
But Guenther, president of the Wisconsin ACLU, informed Judge Koval by letter of a larger concern: the official-looking sticker. He said the subpoena was "altered after it was issued by this court," in apparent violation of state law.
Wis. Stat. 943.38(1) states: "Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions...is guilty of a Class H felony."
Yikes. Is the long arm of the law about to come down on the City Attorney's Office? Will uniformed officers soon be dragging City Attorney Michael May off to a dank jail cell, as he screams for mercy and claws at the ground with bleeding fingers?
Of course not. But Guenther believes a significant violation may have occurred. He notes there is no legal requirement that a witness speak to the party that sought the subpoena. Even a judge cannot compel testimony absent a grant of immunity.
"The doctored subpoena," says Guenther, "did what no court, district attorney or attorney general has authority under Wisconsin law to do: Order a witness to meet with one side to a legal controversy, outside of a courtroom or deposition."
In his case, the recipient knew his legal rights, but Guenther fears others might be conned into thinking they must to do what the sticker advises. Judge Koval, when the matter came to his court on July 20, voiced the same concern.
"The issue that I want to make sure is clear is that I don't authorize or permit these stickers put on after my signature because the impression could be that that is something that the court is ordering, that they have to contact the City Attorney's Office to discuss their testimony," he said in court, according to a recording obtained by Isthmus. "So I don't want any alterations or additions put on my subpoenas if they have my signature."
May, still a free man, confirms Guenther's suspicion that this was not the first time this sticker has been affixed. "As best as we can ascertain, this has been a regular practice for a number of years - at least five years, perhaps longer," he relates. "This is the first instance that any person has questioned it."
But, after Koval spoke out, "We immediately discontinued the practice."
Wasn't this arguably a deliberate attempt to mislead respondents into believing that a judge had ordered them to talk to the City Attorney's Office?
"We reject the charge," says May, a.k.a. Mugsy. "It was an attempt by our office to provide additional information without having to include another, separate piece of paper. We affixed it below the judge's signature, right above the notation currently on the subpoena that says, 'Call 266-4511 if you have any questions.'" It was really just an attempt to save paper.
Guenther is pleased the office has stopped "altering court-issued subpoenas." And while he believes the practice did subvert a subpoena's limited purpose - to compel a witness to give testimony "in the presence of both sides" - he doesn't believe May intended to deceive subpoena recipients, an element in whether a crime was committed.
Finally, Guenther says the whole episode - in which a single spirited objection brought a longstanding practice to a screeching halt - "illustrates the need for defense counsel to check the actions of the government. Absent an adversarial system, even well-meaning prosecutorial overreaching may go unaddressed."
Mayor Dave: In the money
All signs are that Dave Cieslewicz intends to seek a third four-year term as Madison mayor next spring. Besides launching campaign-related Facebook and Twitter pages (see Joe Tarr's report, 7/30/10), he's quietly building a campaign war chest that might make potential challengers (see Marc Eisen's opinion column) think twice.
According to newly filed campaign finance reports, the mayor has raised $19,195 so far this year, all of it since April. With disbursements of $11,574, mainly for consulting, he still had $32,419 in the bank as of June 30. (He spent more than $100,000 in his last race, in 2007.)
Major contributors include Mary Ellyn Sensenbrenner (wife of former mayor Joe), who gave $1,000; and MGE president Gary Wolter, UW Research Park director Mark Bugher, First Weber chair James Imhoff, developer Richard Arnesen and Full Compass owner Susan Lipp, who each gave $500.
Cieslewicz also snared contributions from several staff members, including spokeswoman Rachel Strauch-Nelson ($250), chief of staff Janet Piraino ($100) and aide Mario Mendoza ($100). Other notable donors: lobbyist Gary Goyke ($250), Budget Bicycle owner Roger Charly ($250) and radio guy Sly ($75).
Interestingly, only one of the 17 registered lobbyists for Landmark X, a group formed to push approval of the Edgewater redevelopment, gave money to the mayor, who pretty much blew his last wad of political capital backing the plan. And this one exception, Allen Arntsen ($250), has been a longtime Cieslewicz supporter.
More blood to spill at Capital Newspapers
Few Madison institutions have suffered more in recent years than Capital Newspapers, owner and publisher of the Wisconsin State Journal, The Capital Times and other papers. Staff sizes have been slashed, benefits cut, and even the cafeteria has been shut down. Now it appears there's more suffering to come.
A July 29 memo to employees from human resources director Debbie Reed warns, "We are nearing completion of our operating budget for the next fiscal year, and we now know that we are going to have to reduce staffing at Capital Newspapers."
The memo goes on to say, "We need to eliminate multiple positions in the combined newsrooms, and the sports and video departments are the primary areas which will experience the reductions." At least four fulltime jobs will likely get cut; severance deals are being offered to those who agree to leave voluntarily.
These cuts come on the heels of a quarterly earnings loss posted July 20 by Lee Enterprises, half-owner of Cap News. Lee's financial woes have driven cost cutting in Madison, although the operation here remains profitable.
Ozanne speaks to appointment issue
Ismael Ozanne, Dane County's new district attorney, says he was not trying to evade Isthmus' questions when he failed to reconnect with the paper prior to its recent story on his appointment ("Doyle's DA Pick Not Clear Fave," 7/22/10). And he gamely addresses the fact that only two of 81 letters of support sent to the governor were for him, compared to 77 for another candidate.
"I made a conscious effort not to call anyone in the DA's office or court system looking for support," says Ozanne, explaining that this might put people in "an awkward position."
Ozanne, who took office this week, is pleased that the position's three contenders "were well qualified for the job" and feels Doyle "took a hard look" at them all. He notes that he's applied for other appointments in the past and was culled in the initial review, as was "appropriate." But he feels his management experience with the state Department of Corrections heightened his appeal.