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.”