bell-final decision and order

8/13/2019 Bell-Final Decision and Order

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G@PYSTATE OF WTSCONSNSTATE OF WTSCONSIN,Plaintiff,

VS

CIRCUIT COURTBRANCH ]-DECTSION AI{TD ORDEROF DISMTSSLCase Nos. 1-3 FO21-031-3FO238713 FO2 38 I

JOHN B. BELLrDefendant.Havingreviewedthepart.ies,submssionsandheardtheoral

. argumenLs ,Janua ry 23 , 207'4, Lkre u-pp -t- es havng been noted onLhe record-, make the following order:

1-. Dismssal.For thre reasons set forth in my decision in State of

Wisconsin v. Michael W. Crute, case no' 13FO2108' a copyof whch is attached, these cases are dismissed withprejudice because Lhe rules Mr' Bell is charged wiLhviolating are faciatly unconsttutional

The reasoni-ng in Crute applies egually to the citaLionissued Lo Mr. BeIl in 13FO21-03 und'er Wis' AdministrativeCode, sect.ion Adm 2'14(z) (v) ' The constitutionalinfirmtyiswithrespecttothepermittingischeme,whichisimplicatedinsub.(v)asweI1assub.(vm)(5)whichwas the subject of the amended citation in Crut'e'

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Because these rules are unconstitutional, they are voidand of no legal effect. and these citations must bedismissed accordinglY. See, Ex ParLe Sebo1d, 100 U.S37]- (1-87e) ; G. Heileman Brewing v. City ofLaCrosse, 105 Wis. 2d I52 (Ct. App' 19Bl-)Because Lhese CaSeS are dismissed as set forth above'

oLher issues are moot. I must address two other maLLers,however.

2. Motion Lo dismi-ss based on alterinq ctation.

In two f these cases, l-3FO2387 and l-3Fo23BB, thecitaLions as filed with the court charge sub' (vm) (5)violations. The other citaLion, in l-3FO2103 ' ckrargessub. (v) vo1aton-

a

Mr. BeIl moves to dismiss the sub' (vm) (S) citations onthe ground that they were alLered. before they were fited

---1 iwith Lhe court. Mr. BelI asserts, and t is not'd.isputed., that he was originally issued. citations irr allthree of these cases cLrarging sub ' (v) violations 'Someone al-tered two of the three citations using white-out to change the d.escription of the violation, andaltering the reference to the specfic rule by writ'ing in

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(vm) (5) whereal-Lerations are\ (v) ' had. been writ'ten nit'ialIy' Theseobvious on the face of the citations'

Mr. .Bell never received a copy of Lhe citations asaltered. He believes t'his entitles him to have t'hecitations dismissed for lack of jurisdction'fn response, the state poj-nts out that' the CapitolPolicesentMr.BellaleLteracoupleofweeksafLerthe

citations wee issued, stat'ing..Thristetterstoinformyouthat-atechncalchangewirl- e maa l tirtel citalion' The wsconsinAdmnistraLive code will be changed from 2'L4 (Z) (v) to2.:-:4(z)(vm)(s).Thed.escript'ionisunlawfu].assembly.The bond amount is still $200'50'Theof

state's Postion isLhe. change, no harm,

that because it advsed Mr' BeIlno foul-.

I write here, even though the matter is moot' because cannoL Iet. this pass. f cannot ignore any party's - muchIess the sLate'Pt - altering a document fil-ed with thecourL so tkrat t s d-ifferent from the one actually

That this is wrong requiresserved upon the other parLy' '-Lrratr cnrsnoexplanaton.t.cannotberemedied.simplybysendingaletLer,particularlywherethelettermisleadingfy

t s. ,Justce Brandeis's dis438 (L928) ( Our governmenLFor good or i11, it teachessent in Olmstead v. United States' 277 USis the.potent,@acher'the who-le PeoPle bY its examPle ' )3


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advises that Lhe change.made is merely a 'ttechnical on'How t,his could happen is perplexing at best '

Mr. BeIt may indeed' be right that this should beground.sfordismissalofthetwocitations'Wedonotneed to address this, but there is no question t'hat theconduct was wrong and' would' wrrant some sanction-

3. Motion to amend.With respect to the sLaLe's motion t'o amend thecitation now alleging the sub' (v) violaton' this isalso now moot. ft may be t-rue as a general principlethaLamendmentsshouldbefreelyal]-owedintheinLerestof justice and of getting to the real issues on theirmerits, particularly where the other party is notunfairly prejudiced by the amendment'Thatsaid.,itisd.ifficu].ttounderstandthestate,swaitingabouLfourmonthsaft,erthecitationwasissued.to ask to amend it. While it is true that the rules ofcivit procedure may permit one amendment within six

months, -forfeiture cases are generally treateddifferentfy. The case processing guid.elines adopted bythe slate's chief jud'ges call for us to have 95? of ourcontestedforfeiturecasesconclud.edwithinsixmoths.4


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That, of course, would not be possible if citations couldbe routinely amended severa1 months after they wereissued.These "singer" ca.ses comprise more than a third of the

contesLed. forfeiture cases opened in t'he Dane CountyCircuit Court last year' The state has filed simIarmotionstoamendinmanyothercases.Theburdenimposed.on the judicial system. .by having to d'eal with proposedamendments to t,hese cit'ations montLrs after they wereissued is subst'antial' In some cases' defendanLs wereput to additional work, and probably incurred add'itionalIegal fees, s a result of the state's motions to amend'In Crute,'for example, the defendanL had to file a secondbrief addressing the amend'ed ctationPersons accused of violating the law have a right to

know what they are charged' with' There is no reasonhave been sought earler' ThesLaLe has long been aware of the issue; in fact iL knewearly enough that in some cases' .including t'wo of Mr'Bel1's, someone tried to deal with it pre-emptively byaltering the ctations as described above

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Likethealt erat ionissue,Lheamendmentquestionismoot, but these unforLunate concerns remain

.Accord.ingly,thecaptioned.mattersared.ismissedwt hprelucll-ce, and this is a fnal order in eackr of these cases forpurposes of aPPeal.

20L4ated: FebruarY

Enclosure:

BY THE COURT

J WCi uitc

Decision and Order ofSLate of Visconsin v.

MarksonCourt Judge

Dismissal,Mchael V. Crute, 13FO21-08

cc: AAG Rebecca R. WeiseAtt.orneY Jordan C. Loeb

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bell-final decision and order

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