STATE OF WISCONSIN STATE OF WISCONSIN, Plaintiff, vs. JOHN B. BELL, Defendant.

CIRCUIT COURT BRANCH 1

DANE COUNTY

DECISION AND ORDER OF DISMISSAL Case Nos. 13FO2103 13FO2387 13FO2388

Having reviewed the parties submissions and heard the oral arguments January 23, 2014, the appearances having been noted on the record, I make the following order:

1.

Dismissal.

For the reasons set forth in my decision in State of Wisconsin v. Michael W. Crute, case no. 13FO2108, a copy of which is attached, these cases are dismissed with prejudice because the rules Mr. Bell is charged with violating are facially unconstitutional.

The reasoning in Crute applies equally to the citation issued to Mr. Bell in 13FO2103 under Wis. Administrative Code, section Adm 2.14(2)(v). The constitutional

infirmity is with respect to the permitting scheme, which is implicated in sub. (v) as well as sub. (vm)(5) which was the subject of the amended citation in Crute.
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Because these rules are unconstitutional, they are void and of no legal effect and these citations must be dismissed accordingly. See, Ex Parte Siebold, 100 U.S.

371 (1879); G. Heileman Brewing Company v. City of LaCrosse, 105 Wis. 2d 152 (Ct. App. 1981).

Because these cases are dismissed as set forth above, other issues are moot. however. I must address two other matters,

2.

Motion to dismiss based on altering citation.

In two of these cases, 13FO2387 and 13FO2388, the citations as filed with the court charge sub. (vm)(5) violations. The other citation, in 13FO2103, charges a

sub. (v) violation.

Mr. Bell moves to dismiss the sub. (vm)(5) citations on the ground that they were altered before they were filed with the court. Mr. Bell asserts, and it is not

disputed, that he was originally issued citations in all three of these cases charging sub. (v) violations. Someone altered two of the three citations using whiteout to change the description of the violation, and altering the reference to the specific rule by writing in
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(vm)(5) where (v) had been written initially. These alterations are obvious on the face of the citations.

Mr. Bell never received a copy of the citations as altered. He believes this entitles him to have the

citations dismissed for lack of jurisdiction.

In response, the state points out that the Capitol Police sent Mr. Bell a letter a couple of weeks after the citations were issued, stating: This letter is to inform you that a technical change will be made to [the] citation. The Wisconsin Administrative code will be changed from 2.14(2)(v) to 2.14(2)(vm)(5). The description is unlawful assembly. The bond amount is still $200.50. The states position is that because it advised Mr. Bell of the change, no harm, no foul.

I write here, even though the matter is moot, because I cannot let this pass. I cannot ignore any partys much

less the states 1 altering a document filed with the court so that it is different from the one actually served upon the other party. no explanation. That this is wrong requires

It cannot be remedied simply by sending

a letter, particularly where the letter misleadingly

See Justice Brandeiss dissent in Olmstead v. United States, 277 US 438 (1928) (Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example.)
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advises that the change made is merely a technical one. How this could happen is perplexing at best.

Mr. Bell may indeed be right that this should be grounds for dismissal of the two citations. We do not

need to address this, but there is no question that the conduct was wrong and would warrant some sanction.

3.

Motion to amend.

With respect to the states motion to amend the citation now alleging the sub. (v) violation, this is also now moot. It may be true as a general principle

that amendments should be freely allowed in the interest of justice and of getting to the real issues on their merits, particularly where the other party is not unfairly prejudiced by the amendment.

That said, it is difficult to understand the states waiting about four months after the citation was issued to ask to amend it. While it is true that the rules of

civil procedure may permit one amendment within six months, forfeiture cases are generally treated differently. The case processing guidelines adopted by

the states chief judges call for us to have 95% of our contested forfeiture cases concluded within six months.
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That, of course, would not be possible if citations could be routinely amended several months after they were issued.

These singer cases comprise more than a third of the contested forfeiture cases opened in the Dane County Circuit Court last year. The state has filed similar The burden imposed

motions to amend in many other cases.

on the judicial system by having to deal with proposed amendments to these citations months after they were issued is substantial. In some cases, defendants were

put to additional work, and probably incurred additional legal fees, as a result of the states motions to amend. In Crute, for example, the defendant had to file a second brief addressing the amended citation.

Persons accused of violating the law have a right to know what they are charged with. There is no reason The

these amendments could not have been sought earlier.

state has long been aware of the issue; in fact it knew early enough that in some cases, including two of Mr. Bells, someone tried to deal with it pre-emptively by altering the citations as described above.

Like the alteration issue, the amendment question is moot, but these unfortunate concerns remain.

Accordingly, the captioned matters are dismissed with prejudice, and this is a final order in each of these cases for purposes of appeal.

Dated:

February __________, 2014.

BY THE COURT

_______________________________ John W. Markson Circuit Court Judge

Enclosure:

Decision and Order of Dismissal, State of Wisconsin v. Michael W. Crute, 13FO2108

cc:

AAG Rebecca R. Weise Attorney Jordan C. Loeb