Van Hollen should scrap singers' prosecutions

2014-02-07T05:00:00Z Van Hollen should scrap singers' prosecutionsCap Times editorial madison.com
February 07, 2014 5:00 am  • 

“The First Amendment still lives in Wisconsin’s Capitol today,” declares Patricia Hammel, the vice chair of the Madison chapter of the National Lawyers Guild.

Hammel, an attorney for one of the singers arrested during Gov. Scott Walker’s attempt to silence dissent in the state Capitol last year, was celebrating a major victory in the long legal struggle to restore respect for the Constitution in Walker’s Wisconsin.

The rule Walker and his aides cobbled together in order to restrict freedom of speech and freedom of assembly has been determined to be unconstitutional in a ruling by Dane County Circuit Court Judge John Markson, who this week dismissed 29 tickets that were issued last year to Solidarity Sing Along participants and observers. The judge embraced an argument from defendant Michael W. Crute that the state's permit requirement violates the First Amendment because it applies, on its face, to very small groups.

Markson explained that the Walker administration’s case for punishing those who gathered peacefully in the Capitol “is about the state’s seeking to exact a penalty from a citizen who was exercising his right to free speech and assembly.”

The ruling came as no surprise to anyone who is familiar with the Constitution.

The question now is whether the Wisconsin Department of Justice -- which has already embarrassed itself enough -- will recognize reality and back off from the expensive and wrongheaded prosecution of others arrested for singing.

When Judge Markson dismissed 29 forfeiture tickets issued under what has been determined to be an unconstitutional infringement on basic rights, he determined that the Department of Justice’s handling of this matter has been inappropriate. But the DOJ has not said whether it will continue wasting money, time and energy on a political errand for Walker.

“Gov. Scott Walker and Attorney General J.B. Van Hollen are on the wrong side of history and the constitution,” explains state Rep. Chris Taylor, D-Madison, who argues that “the DOJ must immediately dismiss all of the approximately 400 remaining frivolous citations.”

Taylor is right on the broad constitutional point. She is also right to note the extreme fiscal and administrative irresponsibility of the DOJ's approach.

“As Judge Markson acknowledged in his ruling, these Solidarity Singer citations make up more than one-third of all contested forfeiture cases opened in Dane County Circuit Court last year. It is high time the DOJ cease wasting thousands of taxpayer dollars to prosecute individuals who received unconstitutional tickets, as continuing these actions is tantamount to harassment.

J. B. Van Hollen will step down at the end of his current term. Throughout his tenure, Van Hollen has faced complaints about his politicization of his office. He has made a mess of things. But Van Hollen could -- and should -- begin to clean that mess up by ending these unconstitutional, and irresponsible, prosecutions.

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(18) Comments

  1. Dadman
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    Dadman - February 08, 2014 3:14 pm
    IAD, didn't hear you griping that Judge Markson's decision last October regarding Act 10 ("Dane County Judge Refuses to Throw Out Act 10 Law") was a political decision. So much easier to accuse and inflame when you don't know the facts regarding the decisions coming out of the Dane County Courts. Not only aren't you a lawyer, you're not an informed citizen.
  2. Nav
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    Nav - February 08, 2014 8:54 am
    Van Hollen is not leaving his position because he wants to devote more time to family or whatever. He is leaving his positions because he knows a few things that are going to come out in the future that will not be good for the Governor and the policies he has been defending.

    Hue just does not want to be around then!

  3. jimatmadison
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    jimatmadison - February 08, 2014 7:09 am
    JB Van Hollen has been an absolute disaster.

    He is a pure political hack who spent most of his tenure trying to figure out ways to keep Wisconsinites like my mother, who has lived in the same house for forty years but no longer has a valid driver's license, from being allowed to exercise their right to vote.

    I don't expect him to do the 'right thing' here, because he never has in the past.
  4. witness2012
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    witness2012 - February 07, 2014 9:27 pm
    So, those who were arrested for "unlawful assembly" in the state capitol this past summer are equivalent to a terrorist who helped to plan the hijacking of airliners to fly into the WTC and the Pentagon?

    What EXACTLY is the analogy that you see here?
  5. koala
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    koala - February 07, 2014 5:08 pm
    Markson's judgement will not be overturned. It is a First Amendment issue, not a Wisconsin issue, so the reflexively partisan State Supreme Court has no means to overturn it. It is exceedingly unlikely, given the history of jurisprudence in the US Supreme Court re the First Amendment that Markson's ruling will ever be overturned. As has been evident, from day one, to anyone with an understanding of the US Constitution and rulings thereon.
  6. koala
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    koala - February 07, 2014 5:05 pm
    Marv - that's slander. Where is your evidence that "judges" and "other law enforcement officials in Dane county are so partisan and so focused on re-election that they'll never do their jobs according to the law."

    Give us one instance, just one instance, to prove your point.

    Or you could apologize to Dane County judges and law enforcement officials.
  7. koala
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    koala - February 07, 2014 5:03 pm
    Marv - the game's over, the judge has said the tickets are unconstitutional. Time to move on to a new topic.
  8. bosco
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    bosco - February 07, 2014 2:04 pm
    To say in this article that they people were arrested for singing is like saying Osama Bin Laden was shot for having too many wives. You owe the readers an apology for that misinformation. Maybe research the actual charge and consider a correction.
  9. bookman21
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    bookman21 - February 07, 2014 2:00 pm
    Putin and Walker share a common rightwing trait, they are both afraid of dissent.
  10. witness2012
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    witness2012 - February 07, 2014 1:58 pm
    You would be wrong, IAD. The cases were dismissed on constitutional grounds because the administrative code used as the basis of the arrests- which btw, as expired and is no longer in effect- violated the rules for free speech and assembly.

    The state has a legitimate interest in regulating the "time, place, and manner" in which free speech and assembly are exercised. But, because of the importance of the rights of citizens, any restriction on first amendment rights must be "narrowly tailored to meet the state's interest and must not be "overly broad and vague" in how it is written.In addition, the burden of proof that the restriction is necessary is on the state.

    Declaring an "unlawful assembly" in a traditional public forum like the rotunda when the number of people rises to 21 and there is no risk to public safey -which is the way the state interpreted their policy- did not pass the "smell test" for the judge.

    The video of the court proceedings in front of Markson is available on youtube. Listen for yourself.
  11. IAD
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    IAD - February 07, 2014 1:02 pm
    Sorry I'm not a lawyer. Here's how this is likely to play out though. Judge Markson's decision will get overturned. The Dane County libs will say that happened because the higher courts are biased and stacked against them. So who is right legally?- Who knows? Fact of the matter is all of these decisions related to the happenings in the last few years particularly by Dane County judges and the higher courts are political decisions- they really have nothing to do with interpretation of a law or constitution.
  12. witness2012
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    witness2012 - February 07, 2014 11:55 am
    marv, I suggest you read the decision and then explain how Markson's reasoning is flawed.

    Without some actual information about this case and what arguments were made and what the constitution says, you risk coming off as biased and ignorant.
  13. geo_
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    geo_ - February 07, 2014 11:48 am
    JB should determine which state employee altered documents filed with the court and charge them fraud and falsification.
  14. Marv
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    Marv - February 07, 2014 11:35 am
    ChooChoo (can't imagine just who the heck you might be with that nickname): What you are saying is that the solidarity singers rights super-cede the rights of all other who may wish to enjoy the Capitol rotunda without disturbance. That is typical leftie thinking.
  15. ChooChoo
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    ChooChoo - February 07, 2014 11:02 am
    IAD doesn't understand that Judge Markson's ruling is a victory for his rights, not just the rights of the singers.

    It's important for citizens of a democracy to stand against any erosion of their rights.
  16. witness2012
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    witness2012 - February 07, 2014 10:41 am
    IAD, what would be the legal grounds for overturning Markson's decision?

    His arguments seem solid. (No one will throw out his decision simply because he is a circuit court judge in Dane County. There will have to be some merit beyond that).
  17. Marv
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    Marv - February 07, 2014 10:40 am
    IAD is correct. The judges other law enforcement officials in Dane county are so partisan and so focused on re-election that they'll never do their jobs according to the law. I wonder how many other laws people could break if people like Markson thought it might add momentum to his continued career in politics. The left only believes in law when it applies to others not of their mindset.
  18. IAD
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    IAD - February 07, 2014 10:21 am
    Judge Markson is yet another Dane County judge who will ultimately have his "decision" overturned. But he made enough brownie points to get re-elected in the County.
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