G@PY

STATE OF WTSCONSN STATE OF WTSCONSIN,

FEB

-5

2014

CIRCUIT

COURT

BRANCH ]-

Plaintiff,

DECTSION AI{TD ORDER OF DISMTSSL

VS

Case Nos.
BELLr

1-3

FO21-03 1-3FO2387 13 FO2 38 I

JOHN

B.

Defendant.

Havingreviewedthepart.ies,submssionsandheardtheoral havng been noted on . argumenLs ,Janua ry 23 , 207'4, Lkre u-pp"-t-""es Lhe record-, make the following order: 1-. Dismssal.
State of For thre reasons set forth in my decision in 13FO2108' a copy Wisconsin v. Mi c hael W. Crute, case no' with of whch is attached, these cases are dismissed wiLh prejudice because Lhe rules Mr' Bell is charged

violating are faciatly unconsttutional to the citaLion The reasoni-ng in Crute applies egually issued Lo Mr. BeIl in 13FO21-03 und'er Wis' Administrative
Code, sect.ion Adm 2'14(z) (v) ' The constitutional

infirmtyiswithrespecttothepermittingischeme,which isimplicatedinsub.(v)asweI1assub.(vm)(5)which in Crut'e' was the subject of the amended citation

rules are unconstitutional, they are void and of no legal effect. and these citations must be dismissed accordinglY. See, Ex ParLe Sebo1d, 100 U.S
Because these

37]-

(1-87e) ;

G. Heileman Brewing

v. City of
19Bl-)

LaCrosse, 105 Wis. 2d I52 (Ct. App'

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, the citaLions as filed with the court charge sub' (vm) (5)
The other citaLion, violations. sub. (v) vo1aton-

in

l-3FO2103

' ckrarges

Mr. BeIl moves to dismiss the sub' (vm) (S) citations on the ground that they were alLered. before they were fited with Lhe court. Mr. BelI asserts, and t is not'
---1 i!

d.isputed., that he was originally issued. citations irr all

three of these cases cLrarging sub ' (v) violations ' Someone al-tered two of the three citations using whiteout to change the d.escription of the violation, and altering the reference to the specfic rule by writ'ing in
2

writ'ten nit'ialIy' These al-Lerations are obvious on the face of the citations'
" (vm) (5)

"

where \ (v)

'

had. been

Mr. .Bell never received a copy of Lhe citations as altered. He believes t'his entitles him to have t'he citations dismissed for lack of jurisdction'

fn response, the state poj-nts out that' the Capitol PolicesentMr.BellaleLteracoupleofweeksafLerthe citations wee issued, stat'ing ..Thristetterstoinformyouthat-atechncalchange The wsconsin wirl- e maa l tirtel citalion' from 2'L4 (Z) (v) to changed be will code AdmnistraLive 2.:-:4(z)(vm)(s).Thed.escript'ionisunlawfu].assembly. The bond amount is still $200'50'"
The

state's Postion is that because it advsed Mr' BeIl

of Lhe. change, no harm, no foul-.

I write here, even though the matter is moot' because much cannoL Iet. this pass. f cannot ignore any party's Iess the sLate'Pt - altering a document fil-ed with the courL so tkrat t s d-ifferent from the one actually '-Lrratr cnrs this is wrong requires That served upon the other parLy' " noexplanaton.t.cannotberemedied.simplybysending aletLer,particularlywherethelettermisleadingfy
t

in Olmstead v. United States' 277 US s." ,Justce Brandeis's dis sentthe.potent,@acher' 438 (L928) ("Our governmenL is For good or i11, it teaches the who-le PeoPle bY its examPle ' " )
3

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

Mr. BeIt may indeed' be right that this should be ground.sfordismissalofthetwocitations'Wedonot the need to address this, but there is no question t'hat conduct was wrong and' would' wrrant some sanction3.
Mo

tion to

amend.

With respect to the sLaLe's motion t'o amend the

citation now alleging the sub' (v) violaton' this is also now moot. ft may be t-rue as a general principle thaLamendmentsshouldbefreelyal]-owedintheinLerest of justice and of getting to the real issues on their merits, particularly where the other party is not unfairly prejudiced by the amendment' Thatsaid.,itisd.ifficu].ttounderstandthestate,s waitingabouLfourmonthsaft,erthecitationwasissued. to ask to amend it. While it is true that the rules of civit procedure may permit one amendment within six months, -forfeiture cases are generally treated differentfy. The case processing guid.elines adopted by the slate's chief jud'ges call for us to have 95? of our contestedforfeiturecasesconclud.edwithinsixmoths.
4

I
I !

i
!

That, of course, would not be possible if citations could be routinely amended severa1 months after they were
issued.

of the These "singer" ca.ses comprise more than a third County contesLed. forfeiture cases opened in t'he Dane Circuit Court last year' The state has filed simIar motionstoamendinmanyothercases.Theburdenimposed. on the judicial system. .by having to d'eal with proposed were amendments to t,hese cit'ations montLrs after they issued is subst'antial' In some cases' defendanLs were put to additional work, and probably incurred add'itional Iegal fees, s a result of the state's motions to amend' In Crute,'for example, the defendanL had to file a second brief addressing the
amend'ed

ctation

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

iL knew sLaLe has long been aware of the issue; in fact early enough that in some cases' .including t'wo of Mr' Bel1's, someone tried to deal with it pre-emptively altering the ctations as described above
by

Likethealt'erat'ionissue,Lheamendmentquestionis moot, but'these unforLunate concerns remain .Accord.ingly,thecaptioned.mattersared.ismissedwt'h prelucll-ce, and this is a fnal order in eackr of these cases for
purposes of aPPeal.

Dated:

FebruarY

20L4

BY THE

COURT

Markson W J Ci rc uit Court Judge

Enclosure:

Decision and Order of Dismissal, Crute, SLate of Visconsin v. Mchael V.

13FO21-08

cc:

AAG Rebecca

Att.orneY Jordan C. Loeb

R. Weise