Court ruling could mean sing-along participants get a break

2013-01-22T11:15:00Z Court ruling could mean sing-along participants get a breakSTEVEN ELBOW | The Capital Times | selbow@madison.com madison.com

The dismissal of the last of eight citations against Capitol protester Jason Huberty could be a game changer in the Capitol crackdown against the Solidarity Singers and other protesters, with more seeing their tickets dismissed.

But those who have served as conductors of the Solidarity Sing Along may have reason to worry.

The crackdown launched by Capitol Police Chief David Erwin last September has resulted in about 120 citation so far, but state Department of Justice prosecutors’ decision to dismiss Huberty’s final citation could affect dozens of them.

The prosecutors’ decision followed a ruling by Dane County Circuit Judge Julie Genovese that the administrative rule under which Huberty was charged didn’t pertain to his behavior because he was merely a participant in the Solidarity Sing Along, a weekday lunchtime gathering in which protesters give voice to their abhorrence of Republican policies through song.

The rule, 2.14 (2) (v) says that someone is in violation if, without the approval of the Department of Administration, he or she “conducts a picket, rally, parade or demonstration in those buildings and facilities managed or leased by the department or on properties surrounding those buildings.”

Erwin has insisted that the Solidarity Singers should obtain a permit for their singalongs, which they steadfastly refuse to do.

“I believe that the attorney general’s office is going to be working on the assumption that Judge Genovese’s decision will be followed by other judges,” says Robert Jambois, who is representing Huberty and many others who have gotten citations for free.

Jambois says the decision will likely mean most of the cases against the protesters will be dismissed.

“I would say the majority of the people who have cases pending under (the rule) are not people who would be construed as conductors,” he says.

The first round of dismissals in Huberty's case came after Dane County Judge Frank Remington ruled that carrying signs at the Capitol — conduct that was first targeted for citations by Capitol officers — was not in itself a rule violation. Attorneys expect protesters who received those citations to have them dismissed as their court dates arrive.

But what does that mean for those who were actually conducting the sing along?

In a press release last week, Department of Administration spokeswoman Stephanie Marquis concedes that because of Genovese’s decision “some citations may be dismissed in the future, while other cases are strengthened.”

The biggest loser could be Brandon Barwick, who is also represented by Jambois. For several weeks Barwick served as the conductor for the group, racking up 21 citations in the process, plus two others that are unrelated to his role as conductor. At $200.50 a pop, that comes to $4,611.50. And if a judge wanted, Barwick says, the judge could impose additional penalties for a maximum of up to $1,000 a ticket.

"I guess I’d be lying if I said I wasn’t a little concerned," he says. "But I’m really confident in Bob, my attorney."

Others who have periodically taken the role of conductor have also been ticketed.

“This decision I think simplifies the prosecution of those kinds of cases,” says Jambois. “It’s still up to a jury whether they’re going to convict him or not. And we still don’t know how those trials will look because we haven’t had a trial yet.”

Barwick is scheduled for a jury trial for five of his citations on Feb. 27.

Speaking of money, Genovese also denied Jambois’ motion to re-caption the cases under the Department of Administration, as in “Department of Administration v. Jason Huberty.” They are currently captioned under “State v. Jason Huberty.”

The distinction is important. In civil forfeitures under the state caption, reserved for forfeitures defined by statute, the attorney representing the defendant cannot collect attorney fees from the state. But if a legal action is brought against a person by an agency — which is the case in the Capitol citations, Jambois maintains — the agency is on the hook if it loses the case.

Marquis, in her press release, claims that Jambois “was seeking reimbursement of $5,000-$8,000 per case from anyone he represents related to the civil citations issued by Capitol Police for unpermitted events.”

Jambois says that might be the case for select cases, like Huberty’s, which involved a lot of litigation.

“But for the average cases, out of all these cases, my guess is that it would be $250 to $500,” he says.

He notes that he generally charges $275 per hour, “although the court could revise that downward as well.”

He says that in the past, some protesters incurred thousands of dollars defending themselves against citations that were ultimately thrown out. He’s offered to take the most recent cases to trial at no cost to the protesters. But he says if the state doesn't have to pay his fees, the administration has no financial incentive to stop harassing protesters with bogus citations.

“There’s an economic argument to be made for holding the department accountable for these mistakes,” he asserts. "The whole idea is that if you’re a government agency, before you start picking on the little guy you’re supposed to have your ducks in a row.”

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(9) Comments

  1. NotleftorrightR
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    NotleftorrightR - January 22, 2013 8:55 pm
    At first I thought... who cares let them sing every noon hour. I was in the captial last year and watched the sing along. It was a just some people expressing themselves. Then I thought wait one minute what would be the response if this was a Pro-Life, or Gun Rights daily event. What if a Hate-speech group like those people who protest at fallen servicemen's funerals decide to take over the same space and sang songs containing hate-speech. I doubt the Cap Times would be rushing to support thier rights of free speech. Why does any one group of people have more rights to use a public place then any other group. That is why there is a permit process. It allows for everyone to have equal access to the public spaces for expressing themselves. Why not apply for a permit unless you are just pushing the issue hoping to get arrested so the media will pay attention. While I am not agree with some of the positions of the people at the noon hour sign along they should be allowed to express themselves and the permit system allows for everyone to have equal access without conflicts.
  2. PoliticalFodder
    Report Abuse
    PoliticalFodder - January 22, 2013 8:12 pm
    Skippie you say "Arrest them please. The can get a permit, they refuse to. If you allow this then I guess no one needs a permit for anything. Don't let chaos reign."

    On what charges should the people at the capitol be arrested? Since there are not laws being broken the police are trying to use obscure administrative codes to bring charges but they were bogus so they were thrown out of court. Is this really the way you want your government to act? Arresting people who have committed no crimes? Wouldn’t we all be better off if there were some investigations looking into the WEDC? This public private partnership created by the Walker administration to replace our Department of Commerce has given out millions of dollars of loans to private entities and now claim they can’t account for them.

    I’m curious why do you think citizens of Wisconsin need to get a permit to exercise their rights of free speech and assembly? These rights are guaranteed in both the U.S. constitution and the Wisconsin State Constitution. The Wisconsin State constitution Article 1 Section 4 reads:

    Right to assemble and petition.
    SECTION 4. The right of the people peaceably to assemble, to consult for the common
    good, and to petition the government, or any department thereof, shall never be abridged.
    We don’t need a permit the State constitution is our permit.

    I think the constitution is pretty clear these rights shall NEVER be abridged.

    You stated "If you allow this then I guess no one needs a permit for anything". Do you really believe that? I don’t understand why you would come to that conclusion. There is a huge difference between citizens exercising constitutionally protected rights in their State house where the government officials will hear and see them than events that are not related to the functioning of the government. Blood drives, concerts on the square, art fair on the square, taste of Madison and other events that have nothing to do with functioning of the government should require permits. There is no reason why requiring a permit for them would be a problem, none of those events are constitutionally protected. Events however that are comprised of citizens exercising their constitutionally protected rights, by law, cannot require a permit without denying citizens their rights.

    I'm curious what do you understand is the proper use for the State capitol? Do you understand that the function of the capitol is to be the people's house, where people can meet to participate in our democracy? Do you understand that the capitol is not a private castle for lawmakers, where they can lock the people out? Do you understand that if our capitol is closed to the pubic that should be a huge red flag for any person who values our democracy? Can't you see that closing the capitol off to the citizens is a sign of an out of control legislature?

    Where in your opinion should citizens assemble to exercise our first amendment rights of free speech and assembly? What do you think the point is of having a capitol that is configured to promote public input? Participatory democracy is not just the right of American citizens; it's their duty.

    As fighting Bob LaFollette said, “Mere passive citizenship is not enough. Men must be aggressive for what is right if government is to be saved from those who are aggressive for what is wrong". Personally I intend to live by that quote an will disrupt the flow around the capitol, on the sidewalks, streets or grounds whenever it is necessary to save our government and people from men who are aggressive for what is wrong.
  3. PoliticalFodder
    Report Abuse
    PoliticalFodder - January 22, 2013 8:09 pm
    Exactly well said. I personally don't think that we need a permit. Our 1st amendment is our permit.
  4. PoliticalFodder
    Report Abuse
    PoliticalFodder - January 22, 2013 8:06 pm
    Skippie you say "Arrest them please. The can get a permit, they refuse to. If you allow this then I guess no one needs a permit for anything. Don't let chaos reign."

    On what charges should the people at the capitol be arrested? Since there are not laws being broken the police are trying to use obscure administrative codes to bring charges but they were bogus so they were thrown out of court. Is this really the way you want your government to act? Arresting people who have committed no crimes? Wouldn’t we all be better off if there were some investigations looking into the WEDC? This public private partnership created by the Walker administration to replace our Department of Commerce has given out millions of dollars of loans to private entities and now claim they can’t account for them.

    I’m curious why do you think citizens of Wisconsin need to get a permit to exercise their rights of free speech and assembly? These rights are guaranteed in both the U.S. constitution and the Wisconsin State Constitution. The Wisconsin State constitution Article 1 Section 4 reads:

    Right to assemble and petition.
    SECTION 4. The right of the people peaceably to assemble, to consult for the common
    good, and to petition the government, or any department thereof, shall never be abridged.
    We don’t need a permit the State constitution is our permit.

    I think the constitution is pretty clear these rights shall NEVER be abridged.

    You stated "If you allow this then I guess no one needs a permit for anything". Do you really believe that? I don’t understand why you would come to that conclusion. There is a huge difference between citizens exercising constitutionally protected rights in their State house where the government officials will hear and see them than events that are not related to the functioning of the government. Blood drives, concerts on the square, art fair on the square, taste of Madison and other events that have nothing to do with functioning of the government should require permits. There is no reason why requiring a permit for them would be a problem, none of those events are constitutionally protected. Events however that are comprised of citizens exercising their constitutionally protected rights, by law, cannot require a permit without denying citizens their rights.

    I'm curious what do you understand is the proper use for the State capitol? Do you understand that the function of the capitol is to be the people's house, where people can meet to participate in our democracy? Do you understand that the capitol is not a private castle for lawmakers, where they can lock the people out? Do you understand that if our capitol is closed to the pubic that should be a huge red flag for any person who values our democracy? Can't you see that closing the capitol off to the citizens is a sign of an out of control legislature?

    Where in your opinion should citizens assemble to exercise our first amendment rights of free speech and assembly? What do you think the point is of having a capitol that is configured to promote public input? Participatory democracy is not just the right of American citizens; it's their duty.

    As fighting Bob Lafollette said, “Mere passive citizenship is not enough. Men must be aggressive for what is right if government is to be saved from those who are aggressive for what is wrong". Personally I intend to live by that quote an will disrupt the flow around the capitol, on the sidewalks, streets or grounds whenever it is necessary to save our government and people from men who are aggressive for what is wrong.
  5. RichardSRussell
    Report Abuse
    RichardSRussell - January 22, 2013 1:32 pm
    Anyone remember the speed traps for which the old Confederacy used to be notorious? This was in the days before interstate highways, when the US highways of the time were 2- and 4-lane roads that passed thru a bunch of little towns. In the south, you'd round a corner doing 65, and right behind a bush there'd be a sign saying "Speed Limit 25". Just beyond that was a "Welcome to Crackerville" sign, and just on the other side of that was a constable in his squad car aiming a radar gun at you.

    Now, not surprisingly, most of the "speeders" detected this way were the locals, because they were the ones most frequently coming and going in town. But how many of them ever got tickets? Generally only the ones with long hair and extra-good tans. Otherwise this leading source of municipal revenue mainly relied on nabbing unwary out-of-staters passing thru on their way to someplace more hospitable. If you were the local football coach or banker, you could wave at the local Barney Fife as you breezed past at 50 every day of the week.

    These practices eventually worked their way up to the US Supreme Court, which ruled that "selective prosecution" was an invidious denial of equal protection of the laws, which are guaranteed to every citizen under the 14th Amendment. Ike's interstate system was probably more responsible than the Supremes for the eventual drying up of the Dixie speed traps, but the principle remains: If you put a law on the books that almost everybody is guaranteed to violate, solely for the purpose of being able to selectively enforce it against people you don't like, you're behaving unconstitutionally.
  6. Native
    Report Abuse
    Native - January 22, 2013 11:18 am
    Sorry, bananahammock, but Jambois took the cases pro bono, with no expectation of getting paid. When he wins, the law itself specifies that he gets paid. As the state is the prosecutor, they do their best to avoid the result of their illegal action by filing the case with "the state" as the plaintiff, rather than (more accurately) as the "department of administration".
  7. skippie
    Report Abuse
    skippie - January 22, 2013 10:48 am
    Arrest them please. The can get a permit, they refuse to. If you allow this then I guess no one needs a permit for anything. Don't let chaos reign.
  8. revH
    Report Abuse
    revH - January 22, 2013 7:44 am
    I have come to the conclusion Madison's singers are just a group of ageing burn outs who believe singing songs can affect the political landscape. It can't, perhaps they shold have a robotic conductor.
  9. bananahammock
    Report Abuse
    bananahammock - January 22, 2013 6:39 am
    Oh how fantastic. It starts off by having us think Mr Jambois does pro bono work for a cause he believes in but we find out he just wants to bill a state agency for his time. True to form.
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