Judge orders DOJ to conduct cost-benefit analysis on Capitol Crackdown cases

January 31, 2014
By Jason Huberty, Joseph Skulan, and Leslie Peterson

Tea Party Governor/Presidential candidate Scott Walker’s crackdown on unauthorized dissent suffered an embarrassing setback Friday when a Dane County Judge ordered Walker’s Department of Justice (DOJ) to detail, and justify, the costs of prosecuting nearly 400 cases of illegal singing.

Dane County Circuit Court Judge Peter Anderson ordered the DOJ to conduct a cost-benefit analysis of the continued prosecution of cases stemming from Capitol Police Chief David Erwin’s failed attempt to end the Solidarity Sing Along in the summer of 2013. In what may have been a backhanded reference to the Walker Administration’s wildly exaggerated and oft-ridiculed estimates of damage resulting from the 2011 occupation of the Capitol, Anderson stipulated that the DOJ’s analysis must be made in “good faith.”

Judge Anderson asks the Assistant Attorney General to prepare a cost benefit analysis of prosecuting the almost 400 citations against singers from the #CapitolCrackdown before the next court date set for May 1, 2014. Photo: Leslie Peterson

Judge Anderson asked the Assistant Attorney General to prepare a cost-benefit analysis of prosecuting the almost 400 citations against singers from the #CapitolCrackdown before the next court date set for May 1, 2014. Photo: Leslie Peterson

Six people with nine civil ordinance violations appeared in court for a scheduled oral ruling on motions to dismiss due to the emergency rules being unconstitutionally broad and vague. Judge Anderson had been waiting for a ruling to be issued by Judge John Markson in other crackdown cases. Markson is expected to rule in the next few weeks.

The Department of Justice was represented by Assistant Attorneys General Robert Bresette and Donald Latorraca. Bresette submitted a motion a day prior demanding defendants provide legal service of their challenge to the constitutionality of the rules to the Joint Committee on Review of Administrative Rules (JCRAR).

Anderson said that while, “it’s debatable [that the defendants are required to provide service] because it’s a past tense rule,” he would give defendants 40 days to effect service and 45 days for the State to respond.

“I assume the Attorney General wouldn’t represent them [JCRAR],” Anderson said. “They’d probably get Michael Best and Friederich.”

“I don’t see any sense of urgency on this. It’s a low-key kind of controversy as hyper-political cases go. It’s kind of on the low end of intensity.”

Anderson referenced recently deceased folk singer Pete Seeger several times during the proceedings. After noting that Seeger came from a time when the country was polarized over civil rights and anti-war struggles, Anderson added that “the thing I like about this case, I don’t get the feeling people are strongly entrenched.”

Former WI Attorney General Peg Lautenschlager appeared before Judge Anderson as defense attorney for David Newby, former director of WI AFL-CIO. Newby was arrested last August for singing in the Capitol without a permit. Photo: Leslie Peterson

Former WI Attorney General Peg Lautenschlager appeared before Judge Anderson as defense attorney for David Newby, former director of WI AFL-CIO. Newby was arrested last August for singing in the Capitol without a permit. Photo: Leslie Peterson

Attorney Joanne Keane offered her client’s perspective that, “the feeling is equally as deep. But there is a determination to be civil….Because of the less extensive urgency, I don’t think that negates or is in opposition to the degree of intensity.”

Anderson scheduled the cases for continued proceedings at 10:00 am on May 1st.

Anderson questioned the judgment of the DOJ in continuing to prosecute the nearly 400 cases currently pending in Dane County Court, when the rules that the defendants allegedly violated are no longer in effect, and no additional arrests have been made.

“People who have the authority to direct resources and prosecution, who have the authority to decide what cases the State is going to be included in, I think, have some obligation to exercise that authority using good judgment and some consideration of what the resource costs and benefits are.”

“I have yet to get a sense in these cases, and admittedly we haven’t gotten very far other then the one we tried [referring to another crackdown case in his court], as to really what the State’s purpose is in pursuing 400 forfeiture cases regarding events that occurred last summer under a legal system that’s not really in place and where the arrests are not continuing.”

“Are you with me, Mr. Bresette?”

Anderson suggested that to the extent the DOJ was missing something, they could make an informed decision after such a study. Anderson gave examples of costs including the time for the prosecutors, defendants, defense attorneys, bailiffs, court staff, and witnesses.

Here is Judge Anderson’s reasoning as he asked the State to prepare the cost-benefit analysis: 

The DOJ’s cost-benefit study is due in two months around April 1st.

While aggressively encouraged by Tea Party Republican legislators and staff, and generally supported by members of Wisconsin’s pro-government press, the Walker Administration’s effort to suppress dissent in the Capitol has been a failure in the courts.

The DOJ, which took over prosecution of citations issued in the crackdown out of fear that the Dane County District Attorney would dismiss most or all charges, has yet to secure a conviction from last summer’s arrests at trial.

Last year in October, a mediated settlement reached in a federal civil rights lawsuit, Kissick v. Huebsch, forced the Walker Administration to abandon the rules under which the crackdown was justified and pay $88,000 to Kissick’s ACLU lawyers.

In December, a three judge panel from Wisconsin’s 4th District Court of Appeals overturned a Circuit court ruling and granted dissidents facing prosecution the right to use the civil discovery process, greatly increasing the DOJ’s potential workload, and possibly forcing the DOJ and Capitol Police to release embarrassing documents concerning how the crackdown was conducted, and how dissidents were targeted for arrest.

How the Walker Administration will respond to its latest legal setback is unclear. Walker and the GOP generally have ignored or resisted court orders, relying on a friendly Attorney General and a shamelessly partisan Supreme Court to protect them from the legal consequences ordinary citizens would face for such contempt.

However, Judge Anderson’s order, if taken seriously, may force the Walker administration to explain its actions, something that it has hitherto avoided, and to justify the squandering of hundreds of thousands, if not millions of public and private dollars, in order to prosecute the crime of singing without a permit.

Perhaps, as one participant of the Solidarity Sing Along quipped, the DOJ will argue that “silence is golden,” and justifies any expense.

Watch the full video of the proceedings here: 

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7 Comments on “Judge orders DOJ to conduct cost-benefit analysis on Capitol Crackdown cases”

  1. Patricia K Hammel January 31, 2014 at 10:14 pm #

    Asst. AG Don Latorraca scribbling on his notepad, avoiding eye contact with Judge Anderson…priceless.

  2. Ted Voth Jr February 1, 2014 at 7:06 am #

    “Asst. AG Don Latorraca scribbling on his notepad, avoiding eye contact with Judge Anderson…priceless.” Or, “Guilty, your honor!”

  3. belairjeffircink February 1, 2014 at 10:37 am #

    how ’bout, “it’s the law”?

    • Rick February 3, 2014 at 2:09 pm #

      How about it in not the law. It was an adminstrative code and it is unconstituational

      • belairjeffircink February 14, 2014 at 8:09 pm #

        it’s all neither here nor there now as it’s been struck down. you’re late to the party, rick.

  4. Ted Due Process Voth Jr. March 14, 2014 at 12:00 am #

    I snorted and snckered and sniggered all through this ewe-toob

  5. Patricia K Hammel March 14, 2014 at 12:10 am #

    I watched this (the oral argument before Judge Markson as Jeff Scott Olson launches into his hypothetical “say I’m a member of an Indian tribe in Northern Wisconsin…” as the feckless AAG watches her case go down the tubes again tonight and it was almost as much fun as being there on January 23, 2014.

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