Brandon Barwick has been ticketed 22 times for demonstrating at the state Capitol without an appropriate permit and once for disorderly conduct. An active participant in the noontime Solidarity Sing-Along gatherings, he has refused to pay the fines. In fact, he and many of the other activists ticketed at the Capitol have demanded jury trials.
This past week, the Attorney General's Office tried to convince the judge presiding over a few of Barwick's cases that no facts were in dispute and that he should simply rule from the bench. This request for summary judgment drew a strong rebuke from Circuit Court Judge Nick McNamara.
"[I]t is certainly bold and almost insolent for the state's prosecutors here to now claim to have the right to use summary judgment in exactly the way the Court of Appeals and Supreme Court both disallowed and warned against," he wrote in his March 11 decision.
McNamara reasoned that Sec. 778.25 of the state statute chapter on non-traffic forfeiture actions "plainly" provides for a jury trial if the defendant wishes to contest the citation. And he cited past cases to say that Wisconsin law is "abundantly clear that summary judgment was not permitted in forfeiture actions."
McNamara's ruling caused a chain reaction. On March 14 Assistant Attorney General Winn Collins filed motions arguing that due to the decision, another rule of civil procedure - discovery - should not apply in two separate pending cases involving Capitol tickets. Collins said that the state no longer has to turn over requested information, which could include documents, video and depositions, to attorneys representing two other Capitol protesters.
Defense attorneys Jim Murray and Brenda Lewison fought Collins' motion, arguing in part that a 1988 attorney general opinion held that documents could be sought in a forfeiture action, where the penalty is the imposition of a fine.
But Circuit Court Judges Stephen Ehlke and William Hanrahan sided this week with the Attorney General's Office. Hanrahan wrote that under Sec. 778.25 (2) - the same state statute cited by McNamara - "no allowance has been made by the Legislature for use of the discovery methods sought by the defendant."
Murray says these rulings will mean "longer trials" and hearings where "we have to take breaks to review evidence we are seeing for the first time and inefficiently question witnesses that we have been denied prior access to. Most or all of that would probably have been avoided if we had been permitted to proceed with civil discovery."
And so it goes. Since September, when Capitol police started enforcing new permitting restrictions, 140 cases involving protesters have been referred to the Department of Justice for prosecution, and 40 were dismissed, says DOJ spokeswoman Dana Brueck.
But attorney Bob Jambois, a retired Kenosha County district attorney who is representing Barwick and 16 other individuals, says that 66 cases have been dismissed since September, according to records kept by a Solidarity Sing-Along participant who tracks all the citations issued and their outcomes on the Wisconsin Circuit Court Access website.
"One hundred percent of the contestested cases that have been concluded have been dismissed," says Jambois. "The only convictions that have occurred were the result of an attorney missing the court date for two citations, which, in turn, resulted in two default judgments."
This week a Dane County judge also threw out a case based on the request of a defendant's lawyer, rather than at the request of a DOJ lawyer. Circuit Court Judge William Hanrahan's ruling was a first in this regard, says Jambois.
In the case, local architect Edward Kuharski had been cited for "walking in a circle in the Capitol Rotunda with a piece of paper he was sometimes holding." According to the police report, others in the Rotunda were making some noise that prompted a complaint by a state lawmaker.
All of the dismissed tickets have nothing to do with work on a new proposed rule for gatherings at the Capitol, insists Stephanie Marquis, spokeswoman for the Department of Administration. Gov. Scott Walker signed a "Statement of Scope for Administrative Rules and Emergency Rules" on March 15 that has been submitted to the Legislative Reference Bureau. Marquis says new emergency rules won't be published until April 1.
The four-page document states that "occupation of the Capitol Rotunda and other areas has caused disruptions to properly permitted events and normal governmental activities, including, but not limited to, a Red Cross blood drive, a high school science exhibit, school group tours, general public tours, and legislative committee meetings and sessions."
It is "imperative," the document continues, that the Department of Administration "continue to gain greater compliance from user groups in order to protect public safety and welfare." The objective is to "obtain greater compliance from user groups regarding facility use" and to codify rules that are already in place.
Marquis denies media reports of a new "crackdown" on protesters and says the department is issuing an emergency rule because it is "more expedient" than regular rules, which take about a year to be approved. And Marquis says a public hearing will be held on the rule.
, Wirch said the state is "losing like crazy on that."
Van Hollen disagreed and said his agency was asked to enforce permitting violations.
"We have honored that because it is my job to do so," Van Hollen said.
DOJ spokeswoman Brueck struck a similar theme when asked about criticism that the state is wasting resources on these prosecutions.
"There are rules that govern the state Capitol. If those rules would be followed or voluntary compliance be obtained, there would be no need for prosecution. Until that time, we'll do what the Department of Justice is tasked with doing, and that is enforcing and upholding the laws as written."