Application — Joachim Dressler, Applicant v. Circuit Court of Wisconsin, Racine County

Supreme Court briefJan 18, 2019

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Case No:

IN THE UNITED STATES SUPREME COURT

WISCONSIN ex rel. JOACHIM DRESSLER,.

Petitioner,

Wisconsin Case No: 2018AP1030-W

Racine Case No: I 990CF584

RACINE CIRCUIT COURT,

Respondent.

PETITION FOR A CIRCUIT JUSTICE STAY

Joachim Dressier, pro Se, petitions the Hon. Elena Kagan, Circuit Justice for the Seventh

Circuit, for a STAY of State (Wis) v. Joachim Dressier, No: 1990CF584. Jurisdiction is sought

pursuant to the All Writs Act, 28 U.S.C.A. §1651; S.Ct. Rules 22 and 23; National Socialist

Party v. Skokie, and MI. C. v. Bedford Township.

[A]s in National Socialist Party V. Skokie, 432 U.S. 43, 44 (1977), and Nebraska

Press Assn. v. Stuart 423 U.S. 1327, 1329-1330 (1975), the State's highest court

has refused to either lift the challenged restraint or to provide for immediate

appellate review. Such a failure indicates that the state court has decided to

finally maintain the restraint in effect during the pendency of review. In this

situation I have no doubt that a Justice of this Court has the full power to issue a

stay. M.I.C. v. Bedford Township, 463 U.S. 1341, 1343 (1983).

Table of Contents

Tableof Authorities . ....................................................................................................................... 2

Facts........................................ ................................... ....................................................................... 3

The Right To An Adversary Hearing and "Prompt Judicial Review" is Indisputably Clear .........6

Seizure of Expressive Materials Mandates an Adversary Hearing.........................................6

Admission of Expressive Materials Mandates an Adversary Hearing and "Prompt

JudicialReview ........................................................................................................................ 7

Unavailability of Freedman Compliance and "Prompt Judicial Review" In Any Lower Court.. 12

A Circuit Justice Should and Has The Full Authority To Grant a Stay .............................

........ 18

Conclusion and Prayer for Relief................... ................................................................................ 23

Appendix Table of Contents ........................................................................................................ 25

n-going Prior Restraints Demonstrate Irreparable

Injury................................. * .......................

Table of Authorities

Cases

A Quantity of Books v. Kansas, 378 U.S. 205 (1964)...............................................................6, 23

Alexander v. U.S., 509 U.S. 544 (1993).......................................................................................... 6

Blount v.Rizzi, 400 U.S. 410 (1971) ..................................... ............................................... 9,11,12

Brown v. Gilmore, 533 U.S. 1301 (2001).................................................................................. 6, 12

Cantwell v. Connecticut, 310 U.S. 296 (1940).............................................................................12

Castro v. U.S., 540 U.S. 375 (2003).............................................................................................16

Citizens United v. FEC, 558 U.S. 310 (2010).................................................................................. 5

Detco, Inc. v. Neelen, 356 F.Supp. 289 (ED. Wis. 1973)..............................................................7

Dombrowski Pfister, 380 U.S., 479 (1 965).........................................................................21,23

Dressier v. Doyle, 2010 U.S. Dist: LEXIS 152603......................................................................16

Dressier v. McCaughtry, 238 F.3d. 99(7th .Cir. 2001)....................................................14, 15, 24

Dressier v. Ptacek, 2008 U.S. Dist. LEXIS 7408......................................................................... 15

Dressier v. Walker, 409 Fed. Appx. 947 (7" Cir. 2011)...............................................................16

Fort Wayne Books v. Indiana, 489 U.S. 46 (1989).............................................................7, 21, 23

Freedman v. Maryland, 380 U.S. 51 (1965) .......................................................................... passim

FW/PBSv. City ofDallas, 493 U.S. 215 (1990).....................................................................20,22

Gooding v. Wilson, 405 U.S. 518 (1 972)........................................................................................8

Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir 1998).....................................................................14

Herndon v Lowrey, 301 U.S. 242, 249 (1937).....................................................................7, 8, 23

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).............................................8,20

Lee Art Theater, Inc. v. Virginia, 392 U.S. 636, 637 (1968)........................................................21

Littleton, Colo. v. Z.J. Gifts, 541 U.S. 774 (2004)............................................................ 15, 17, 22

MI,C. v. Bedford Township, 463 U.S. 1341 (1983) ........................................................... 1,22,24

Marcus v Search Warrants, 367 U.S. 717 (1961)..................................................................... 6, 23

McKinney v. Alabama, 424 U.S. 669 (1 976)................................................................................ 21

Miller v. California, 413 U.S. 15 (1972) ..........................................................................................8

National Socialist Party v. Skokie, 432 U.S. 43 (1977)............................................... 1, 21, 22, 24

Nebraska Press Assn. v. Stuart 423 U.S. 1327 (1975) ...................................................................1

Neyiánv. Vorwald, 124 Wis.2d85(Wis. 1985)...........................................................................10

Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................19

Regan v. Time, Inc., 468 U.S. 641(1984)......................................................................................12

Shuttles worth v. Birmingham, 394 U.S. 147 (1969).....................................................................20

Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1975)............................................passim

Speiser v. Randall, 357 U.S. 513 (1958)................................................................................ passim

Stanford v. Texas, 379 U.S. 476 (1965)........................................................................................ 13

Stanley v. Georgia 394 U.S. 557 (1 969)................................................................................11,23

State v. Dressier, 2004AP 1497, 2006 Wis. App LEXIS 209 ....................................................... 15

State v. Dressier, No: 92-2014-CR, 1, 993 Wise. App. LEXIS 1470.............................................13

State v. I, A Woman-Part II, 53 Wis.2d 102 (Wis. 1971) ........................... ............................ passim

State v. Voshart, 39 Wis' 2d 419 (1968)....................................................................................7, 23

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).............................................11

U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)..............................11, 12, 18, 19

Vance v. Universal Amusement Co., 445 US 308 (1980) ........................................... 10,20,22,24

Winters v New York, 333 U.S. 507 (1948).........................................................................8, 14, 23

Facts

Exercising their rights guaranteed by the First and Fourteenth Amendments as well as the

Wisconsin Constitution, Mr. and Mrs. Dressier merely possessed articles from magazines such as

Time and Newsweek, some of which depict violence; commercially produced erotica of both

heterosexual and homosexual variety; and three commercial videos entitled The Faces of Death.'

They were kept in their home out of the reach of their children. All are available in a public

library or to adults in bookstores or video outlets.

It is undisputed that all are protected by the First Amendment.

None of the materials depict the victim or crime charged. Their commercial publication

pre-dated the crime charged by a minimum of two years. Mr. Dressier did not distribute, author,

or produce the materials at issue. He did not take the witness stand at his jury trial. The record

is void of any evidence that he advocated, expressed an opinion, or espoused the ideas contained

or depicted in them. The trial court lacked any evidence from which to make a finding of how

the materials came into his possession; under what circumstances; or when, how, or by whom the

materials were compiled. (App A: Exh. C: RI 17, 54-55)

Investigating the death and disappearance of James Madden, Racine officials sought a

search warrant for the Dressiers' home. A lengthy affidavit dated July 28, 1990, indicated that

the Dresslers possessed three videos entitled The Faces of Death (App. A: Exh. A, T37). Words

such as "homosexual" or "pornography" do not appear in the affidavit.

The resulting search warrant for the Dressier home failed to specify any publications

whatsoever. It authorized carte blanche seizure of any and all:

The Faces of Death, a "Grade B" video (at best) is available at most video outlets. Its depictions of violence are

fully protected by the First Amendment. Winters v. New York, 333 U.S. 507, 510 (1948); U.S. v. Stevens; 559

U.S. 460(2010)..

7.. Written materials, photographs, video tapes, or other materials including but not

limited to sado-masochism pornography, "snuff films" depicting torture or death

scenes;

Warrant, July 28, 1990 (Emphasis added) (App. A: Exh. B: ¶7)

Once officials discovered homosexual erotica in the Dressler home, all bets were off.

The state coined Homosexual Overkil1 2 as a theory of prosecution

one where homosexuals

"kill, in their panic or rage, or whatever motivates" them (App. A, RI 34; 47). It offered the First

Amendment-protected publications seized as "other acts" evidence for its case-in-chief, and

asked the . court to review the content of the publications, in chambers, ex parte, and rule them

admissible:

THE COURT: We'll take about a ten-minute recess here. I am going to read the facts

and law again in the Evers case, and I also want to take a look at the items that Mrs.

Weber wants me to look at. I will take those into chambers with me and be back in

about 10 minutes.

(Recess had)

All right. The record will show that the appearances continue as they were, that we

have been in recess for about fifteen or twenty minutes, that in chambers I had a

Chance to review the materials presented by the State in the briefcase, on the placards

and the six paperback books that were presented... The issue is whether or not the

State should be allowed to offer information into the record that consists of videotapes,

and as referred to in the defendant's motion, collected published materials that some of

which were mentioned orally on the record and others which I was able to review.

(App.A:Exh. C:R117:43-44)

The trial court reasoned: "The State's case is in fact by agreement by the defense a weak

case. It's a circumstantial case, and that, therefore, this type of evidence is important for the

presentation for the State's case,

.it's important to the State's case in order for them to meet

their burden of proof." Id, at 51. It noted that the published materials were lawfully possessed,

specifically denied an adversary hearing, and construed and applied Wis. Stat. §904.04(2) as

urged by the state:

To this day, in the entire universe of federal and state cases reported on LEXIS-NEXIS, there is not one reference

to Homosexual Overkill (except, of course, the repeated references in this case). Search conducted Dec. 4, 2018.

THE COURT: Well, certainly as the statute defines the terms, there's no crime here.

We have all agreed to that. The State hasn't suggested there's a crime in the

possession of these materials. Other wrongs, I don't know. I guess I don't want to

get into litigation whether or not some of that material constitutes pornographic

materials that might be prohibited in terms of its possession, although again

that's a matter of state and national import, so I'm not making a judgment as to

whether or not those are crimes to possess the materials. I don't think I am in a

position to do that. I am not being asked to do that.

MR. MATHIE (Defense Counsel): [I]s the only act or wrong or crime, whatever you

define it, is the possession of those materials, is that what the court's ruling is?

THE COURT: Yes.

Id, at 53-54 (Emphasis added)

Demonstrating an impermissible content-based reasoning, the court stated: "there was

homosexuality on the part of the defendant; He possessed those materials. They clearly depict

homosexuality." (App A: Exh. D: RI 31: 27)

The state failed to seek adversary compliance and "prompt judicial review" pursuant to

Freedman v. Maryland, 380 U.S. 51, 58 (1965), and State v.1, A Woman-Part 11, 53 Wis.2d 102

(Wis. 197 1) (Applying Freedman to Wisconsin).

[A]n invalid prior restraint is an infringement upon the constitutional right to

disseminate matters that are ordinarily protected by the First Amendment without

there first being a judicial determination that the material does not qualify for

First-Amendment protection. I, A Woman, at 112-113 (Citing Freedman,).

The prior restraints of both seizure and admission were complete

and remain in effect

to this day. Nothing in any subsequent proceedings cured the twenty-eight years of delay in the

unconstitutional suppression of protected speech.

Courts, too, are bound by the First Amendment...

First Amendment

standards...must

give the benefit of any doubt to protecting rather than stifling

speech. Citizens United v. FEC, 558 U.S. 310,326-327 (2010).

The teaching of our cases is that because only a judicial determination in an

adversary hearing ensures the necessary sensitivity to freedom of expression, only

a procedure requiring a judicial determination suffices to impose a valid final

restraint. Freedman, supra at 58 (Emphasis added).

The Right To An Adversary Hearing and "Prompt

Judicial Review" is Indisputably Clear

This Court's authority under the All Writs Act should be used sparingly and is

appropriate only if "the legal rights at issue are indisputably clear." Brown v. Gilmore, 533 U.S.

1301, 1303 (2001) (Rehnquist, J., in chambers.) The rights below are indisputably clear:

1. Seizure of Expressive Materials Mandates an Adversary Hearing

States must provide procedures amply adequate to safeguard against invasion of speech

that the Constitution protects. Because the line between speech unconditionally guaranteed and

speech that may legitimately be regulated, suppressed, or punished is finely drawn, where the

transcendent value of speech is involved, Due Process requires that the state bear the burden of

proving that the appellant engaged in criminal speech. Speech must be unencumbered until the

State comes forward with sufficient proof to justify its inhibition. Speiser v. Randall, 357 U.S.

513, 524-529 (1958). A system of prior restraint avoids constitutional infirmity only if it takes

place under procedural safeguards designed to obviate the dangers of a censorship system.

Freedman, supra, at 58.

This Court has mandated an adversary hearing before any speech materials are subject to

seizure. "For if seizure of books precedes an adversary determination of their obscenity, there is

danger of abridgement of the right Of the' public in a free society to unobstructed circulation of

non-obscene books." A Quantity of Books, V. Kansas, 378 U.S. 205, 213 (1964); Marcus v

Search Warrants, 367 U.S. 717, 736 (1961). Accord, Alexander v. U.S., 509 U.S. 544, 577

(1993) (Kennedy, dissenting, analyzing the Court's "prior restraint" doctrine).

The seizure is not a Fourth Amendment claim. Marcus held that the procedures followed in issuing the' warrant

were constitutionally deficient under the First and Fourteenth Amendments. 376 U.S. at 734-38. A Quantity of

Books also found it unnecessary to reach a Fourth Amendment claim. 378 U.S. at 210 n.2,

Accordingly, Wisconsin applied a limiting construction to (now) §968.13, Stats. to cure

its facial overbreadth

and to forbid warrants and seizures of First Amendment protected printed

and filmed materials:

The words "lewd, obscene, or indecent" in the Wisconsin contraband statute must be

interpreted in the constitutional sense as including only printed and filmed materials

that are not protected by the First Amendment to the United States Constitution as

interpreted by the UnitedStates Supreme Court. State v. Voshart, 39 Wis.2d 419, 429

(1968) (Emphasis added).

This Court explained why seizures of protected expressive materials requires Freedman

compliance:

Thus, while the general rule under the Fourth Amendment is that any and all

contraband, instrumentalities, and' evidence of crimes may be seized on probable

cause, .it is otherwise when materials presumptively protected by the First

Amendment are involved. It is the risk of prior restraint, which is the underlying basis

for the special Fourth Amendment 'protections accorded searches for and seizures of

First Amendment materials that motivates this rule.

[M]ere probable cause to

believe a legal violation has transpired is not adequate to remove books or films from

circulation.

[The First Amendment] presumption is not rebutted until the claimed

justification for seizing books or other publications is properly established in an

adversary. proceeding. Fort Wayne Books v. Indiana, 489 U.S. 46, 64 (1989)

(Citations and quotations omitted).

...

"It is clearly established that under federal law a motion picture cannot be seized without a prior

adversary hearing." Detco, Inc. v. Neelen,'356 F.Supp. 289, 290 (E.D. Wis. 1973). "The same is

obviously true for books or -any other expressive materials." Ft. Wayne Books, at 63.

2. Admission of Expressive Materials Mandates an Adversary Hearing

and "Prompt Judicial Review"

This Court has never condoned Racine's Orwellian concept of "guilt-by-bookassociation." When Georgia admitted publications that Angelo Hemdon possessed as evidence

in prosecuting for inciting insurrection,' this Court ruled that the strict vagueness standards Of the

First and Fourteenth Amendments forbid any inference from their content:

No inference can be drawn from the possession of the books mentioned, eithr that

they embodied the doctrines of the Communist Party or that they represented the views

of the appellant. .;. The question thus proposed to a jury involves pure speculation as

to future trends of thought and action ...[and] licenses a jury to create its own standards

in each case. Herndon v. Lowrey, 301 U.S. 242, 249, 263 (1937) (Emphasis added).

This Court affirmed that the First Amendment fully protects "collections of stories of

criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and

depraved crimes." Winters i New York, 333 U.S. 507, 510 (1948). Relying heavily on

Herndon, it explained why their admission as criminal evidence is unconstitutional:

[W]e think fair use of pictures and stories would be interdicted because of the utter

impossibility of the actor or the trier of fact to know where this new standard of guilt

would draw the line between allowable and forbidden publications.

Collections of

tales of war honors, otherwise unexceptional, might well be found to be so "massed"

as to become "vehicles for inciting violent and depraved crimes." Where a statute is so

vague as to make criminal an innocent act, a conviction under it cannot be sustained.

Winters, at 519-20.

...

Any regulation in the First Amendment area must strictly be limited to conduct that is

"specifically defined by the applicable state law, as written or authoritatively construed." Miller

v. California, 413 U.S. 15, 23-24 (1972). The doctrine forbidding unbridled discretion requires

laws applicable to speech to be "explicit by textual incorporation, binding judicial or

administrative construction, or well-established practice." Lakewood v. Plain Dealer Publishing

Co., 486 U.S. 750, 770(1988). Statutes must be carefully drawn or be authoritatively construed

to apply only to unprotected speech "and not be susceptible of application to protected

expression" Gooding v Wilson

405 U S 518, 522 (1972) Wisconsin may regulate only

unprotected speech. State v. Douglas D.,2001 WI 47 ¶19.

The State always has the burden to prove that speech is unprotected, because "where

particular speech falls close to the line separating lawful and unlawful, the possiblility of

mistaken fact-finding'- inherent in all litigation

will 'create the danger that the legitimate

utterances will be penalized," and "can only result in a deterence of speech which the

Constitution makes free." Speiser v. Randall, supra, at 526.

This Court artculated its strict procedural safeguards in Freedman v. Maryland, and

repeatedly affirmed what is now indisputably clear:

We held, in Freedman, and reaffirm here, that a system of prior restraint runs afoul of

the First Amendment if it lacks certain safeguards. First, the burden of instituting

judicial proceedings, and of proving that the material is unprotected, must rest on the

censor. Second, any restraint prior to judicial review can be imposed only for a

specified period, and only for the purpose of preserving the status quo. Third, a

prompt final judicial determination must be assured.

And if judicial review is made unduly onerous, by reason of delay or otherwise, the

[censor's] determination in practice may be final. Southeastern Promotions Ltd. v.

Conrad, 420 U.S. 546, 559-560 (1975). (Emphasis added)

Wisconsin's Supreme Court applied Freedman and Blount v. Rizzi, 400 U.S. 410 (1971),

with State v. I, A Woman, Part II, supra. The Court mandated the following "strict procedural

safeguards" under the Wisconsin Constitution to guarantee that its courts can never impose

maintain

any prior restraint of free speech:

• Wisconsin's Legislature determined that (now) §806.05 is th exclusive means to declare

printed and filmed materials "obscene" thus unprotected by the First Amendment and

"that all possible alternate common law or equitable in rem proceedings have been

suspended" Id, at 109

• Interlocutory orders not in compliance with Freedman are void

merits review. Id.

and are not subject to

• A statute that permits an interlocutory order that admits expressive materials into evidence

in a criminal trial where they could have evidentiary weight is unconstitutional and

authorizes an impermissible and unconstitutional prior restraint. "In addition, the mere

issuance of the interlocutory judgment, even without its subsequent use in a criminal trial,

constitutes an impermissible chilling of First Amendment rights where 'there has been no

prior adversary adjudication of obscenity." Id, at 113-114. (Emphasis added)

• The Court specifically warned Wisconsin judges not to enter such orders precisely because of

their constitutional infirmity. Id, at 119.

•

A statute that is interpreted to relieve the state of its burden of proving that the material is an

unprotected form of expression is unconstitutional. "Since the public interest is affected in

the process of finding any matter not protected by the First Amendment, the [state] is

obligated to assume its burden of presenting a prima facie case, default or not." Id, at 115

(Emphasis added).

• Freedman's "strict procedural safeguards" are jurisdictional. Id, at 110 and 121. The

adversary hearing provides the constitutionally required element of scienter or mens rae. Id,

At 116. And finally, the I, A Woman Court mandated "prompt judicial review." Id, at 115,

116, and 119.

Thus, in Wisconsin the doctrine of void judgments controls interlocutory orders entered

absent Freedman compliance and review. "Judgements entered contrary to due process are

void." Neylan v. Vorwald, 124 Wis.2d 85, 95 (Wis. 1985). When a court or other judicial body

acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any

time. They cannot be validated by consent, ratification, waiver, or estoppel. Id, at 97.

A void judgment is something verydifferent than a valid judgment. The void judgment

creates no binding obligation upon the parties, or their privies; it is legally ineffective.

.The judgment may also be collaterally attacked at any time in any proceeding, state or

federal, in which the effect of the judgment comes in issue, which means that if the

judgment is void it should be treated as legally ineffective in subsequent proceedings.

.And the substance of these principles are equally applicable to a void state judgment.

Id, at 99

A refusal to license signifies the censor's view that a film is unprotected. Freedman, at

58. Similarly, Wisconsin noted that such interlocutory orders affect all citizens and they "call

into question whether material is to be given the be

of the protections of the First

Amendment to the Constitution of the United States and section 3, of article I, Wisconsin

Constitution." I, A Woman at 111. As this Court explained:

That a state trial judge might bethought more likely than an administrative censor to

determine accurately that a work is obscene does not change the unconstitutional

character of the restraint if erroneously entered. Vance v. Universal Amusement Co.,

445 US 308, 317 (1980).

After Freedman, Blount, and I, A Woman, Wisconsin judges lack jurisdiction

and are

simply not empowered to declare: "I guess I don 't want to .get into litigation whether or not

some of that material constitutes pornographic materials that might be prohibited in terms

of its possession." (App A: Exh. C, Ri 17:53). The I, A Woman Court explained:

Since the trial judge did not make the initial determination that there was reasonable

cause to believe the film was obscene, he was without jurisdiction to proceed

further. He was without the power to make any determination whatsoever. It is

apparent, therefore, that the judgment that the film is not obscene and the findings that

underpinned that judgment are a nullity and must be set aside. I, A Woman, at 109-110

(emphasis added).

Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the

power to declare the law, and when it ceases to exist, the only function remaining to

the court is that of announcing the fact and dismissing the cause. Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 94 (1998).

Pornography is fully protected *speech. The trial court's belief that pornographic material

might be prohibited in terms of its possession is "mãñifest error"

a wholesale disregard,

misapplication, or failure to recognize a controlling legal precedent. Oto v. Metro Life Ins. Co.,

224 F.3d 601, 606 (7th Cir. 2001).

A state's power to regulate obscenity simply does not extend to the mere possession by

the individual in the privacy of the home. Stanley v. Georgia. 394 U.S. 557, 568 (1969).

Indeed, "listeners for whOm, if the speech is unpopular or indecent, the privacy of their own

home may be the optimal place of receipt." U.S. v. Playboy Entertainment Group, Inc., 529 U.S.

803, 815(2000). The trial court's ruling lacks the compulsory adversary proceeding pursuant to

Freedman that requires the state to prove to a jury

that presumptively protected materials do

not qualify for First-Amendment protection. I, A Woman, at 113.

Significantly, the trial court's review of the content of publications in chambers and M

determination of "relevanbe"

necessarily "involves the appraisal of facts, the exercise of

See Court v. State, 51 Wis. 2d. 683, 699 (Wis. 1971).

judgment, and the formation of an opinion." Its act meets all elements of prior restraint.

Southeastern Promotions, supra, 420 U.S. at 554. (Citing Cantwell v. Connecticut, 310 U.S.

296, 305 (1940)). It is by necessity content-based and presumptively invalid:

A determination concerning the newsworthiness or educational value of a photograph

cannot help but be based on the content of the photograph and the message it delivers.

Regulations which permit the Government to discriminate on the basis of the

content of the message cannot be tolerated under the First Amendment.

Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984).

Content-based regulations are presumptively invalid, and the Government bears the

burden to rebut that presumption... This is for good reason...

It is rare that a regulation restricting speech because of its content will ever be

permissible. Indeed, were we to give the government the benefit of the doubt when it

attempted to restrict speech we would risk leaving regulations in place that sought to

shape our unique personalities or silence dissenting ideas. When First Amendment

compliance is the point to. be proved, the risk of nonpersuasion operative in all

trials must rest with the Government, not with the citizen. US. v. Playboy, 529

U.S. at 817-818 (Emphasis added, internal citations and quotations omitted).

The requirement of an adversary hearing - and the right to be free of content-based prior

restraints

are firmly established rights, that are "indisputably clear." Brown v. Gilmore, supra.

Unavailability of Freedman Compliance and

"Prompt Judicial Review" In Any Lower Court

A petition for a Circuit Justice stay requires a showing "why the relief sought is not

available from any other court or judge." S.C.R. 23.

A state's procedures are "fatally flawed" if they permit a citizen to initiate judicial

proceedings to persuade courts that published expressive materials are First Amendmentprotected. "The First Amendment demands that the Government must assume this burden."

Blount v. Rizzi, 400 U.S. 410, 417-22 (1971) (Citing Freedman).

Accord; Southeastern

Promotions, supra, at 562 (condemning procedures that required petitioner to bear the burden of

obtaining Freedman compliance and "prompt judicial review"); and Speiser v. Randall, supra.

The tortured history of this case poignantly demonstrates lack of Due Process with

petitioner's futile attempts to obtain any First Amendment merits review

attempts he was never

obligated to make in the first instance, and which have been repeatedly denied in all Wisconsin

courts. Six decades ago this Court made indisputably clear that:

Since the entire statutory procedure, by placing the burden of proof on the claimants,

violated the requirements of due process, they were not obligated to take the first

step in such a procedure Speiser, supra, at 529 (Emphasis added).

In the face of this settled standard, Dressier's First Amendment claims in pre-appeal

motion to the trial court were summarily denied. Incredibly, finding no error the Court of

Appeals declared: "evidence of homosexuality clearly goes to motive" to commit murder

"[T]he jury had adequate evidence to conclude that Dressier was a homosexual!"

It declined to address any First Amendment claims; erroneously concluding they were

raised for the first time on appeal, .5 State v. Dressier, No: 92-2014-CR, unpub. slip op. Nov. 17,

1993, at 15, 1993 Wisc. App. LEXIS 1470. The Wisconsin Supreme Court denied review.

The E.D. of Wisconsin denied §2254 habeas relief. It concluded that the warrant was not

a "general warrant" as in Stanford v. Texas, 379 U.S. 476, 485-86 (1965), and doubted that

Dressier's materials are entitled to the same First Amendment protection of Stanford's political

speech. Dressier v. McCaughtry, No. 97-C-043 1, Order April 28, 1999, Pg. 19-21. It declined to

address the adinissibility of protected publications, however, it granted a Certificate of

Appealability on the question of:

whether the introducuction into evidence of certain materials, the possession of

which were protected by the First Amendment, and which were then used by the

State to help prove its theory of "homosexual overkill" violated the petitioner's

First Amendment rights. Order, granting C.O.A. June 23, 1999, p.2-3.

The Seventh Circuit found this factual finding erroneous. Dressier v. McCaughtry, 238 F.3d 908, 911 n.1 (7th Cir.

2001).

Under the unique timing and procedural history of the case, the Seventh Circuit was the

first court to reach any First Amendment merits. Dressier v. McCaughtry, 238 F.3d. 909 n.4 (7th

Cir. 2001). Declaring the First Amendment claims to be "borderline frivolous at best," at 912913, it effectively limited the protections of the First Amendment to convictions for "possessing,

distributing or looking at" protected publications, and required a showing of prejudice:

The fundamental flaw in Dressier's First Amendment argument, and major

distinguishing factor in the string of broad First Amendment cases he relies on is

that he was not convicted of possessing, distributing, or looking at the videos and

pictures in question. Although they may have helped to convict him, he never

explains how his right to possess or look at them was affected by their use as

evidence against him.

InnOcent citizens.. .need not fear a murder prosecution based on the mere

possession of lawful videotapes and ptotographs. The guilty, however, should be

wary. Id, at 915.6

Effectively overruling Winters v. New York, supra, it declared that a jury may draw any

inference it wishes from the contents of a protected home library. Id, at 915

The same attorney continuously represented Mr. Dressier from pre-trial through federal

§2254 denial in this Court. Proceeding pro se for the first time, he sought Freedman adversary

hearing compliance and "prompt judicial review" in Racine Circuit Court pursuant to §974.06,

Wis. Stats He raised lack of subject-matter jurisdiction; Equal Protection, overbreadth,

vagueness; and content-based challenges to §904.04(2), 904.03, and 968.13, Wis. Stats. The

trial court telephonically denied all relief, ruling that the prior Wisconsin appellate finding of

"relevance" defeated any First Amendment claims.

While not directly relevant to this petition for a stay, McCaughtry is the first court in the history of law in the

United States to announce a concept of homosexual overkill, one in which homosexuals "kill, in their panic or rage,

or whatever motivates" them. Its First Amendment rationale lacks any citation to authority from this Court, relying

instead on in-circuit "public forum" doctrine to apply to the message-content of a protected home library. It

announces a circuit split with Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998) (admission of mere possession of

gay pornography as "other acts" evidence to show a criminal defendant's gay status denied fair trial).

The Court of Appeals affirmed, finding no error. Shirking its clear constitutional duty,

the Wisconsin Attorney General resorted to seeking sanctions against petitioner for raising First

Amendment claims, relying on the the Seventh Circuit's declaration of "borderline frivolous."

The court of appeals declined any First Amendment review, declaring Dressier v. McCaughtry

as "law of the case" which cannot be revisited. State v. Dressier, 2004AP 1497, 2006 Wis. App

LEXIS 209, unpub. slip op (WI App Mar. 8, 2006).

In light of Littleton, Cob. v. Z.J. Gifts, 541 U.S. 774 (2004), Petitioner again sought

Freedman compliance and prompt judicial review and merits decision in Racine Court. The

court summarily denied even a hearing. On filing of a notice of appeal, the Wisconsin A.G.

again sought sanctions, suspecting that Dressler might raise First Amendment issues on appeal.

The Court of Appeals warned Dressier ,that he faced sanctions if he were to raise them!

Petitioner filed a "Petition for Removal and Complaint" in federal court. The district court

denied removal. It stated it wasn't sure if petitioner's pleading was a complaint, but ruled any

such complaint would be frivolous in light of Dressier v. McCáughtry. Dressier v. Ptacek, 2008

U.S. Dist. LEXIS 7408.

Pursuant to this Court's holding that §1983 "federal remedies would provide an

additional safety valve" to obtain "prompt judicial review," Littleton supra, 541 U.S. at 781-82,

Dressier sought §1983 declaratory and injunctive relief in the federal district Court on April 10,

2009. He sought "prompt judicial review" pursuant to Freedman v. Maryland, and raised

overbreadth, vagueness, and content-based challenges to Wis. Stat: § § 904.04(2), 904.03, and

968.13, and challenged lack of subject-matter jurisdiction, pursuant to I, A Woman. The district

court "recharacterized" petitioner's pro se complaint as one alleging that the defendants had

violated Petitioner's civil rights, and sought review of the trial court's relevancy rulings.7 It

dismissed as frivolous at the pre-screening process. Petitioner's Rule 59(e) motion was denied.

Dressier v Doyle, 2010 U.S. Dist. LEXIS 152603.

The Seventh Circuit affirmed dismissal and denial of Rule 59(e) relief. It declined to

address or to rule on lack of subject-matter jurisdiction. It recognized claims of prior restraint of

free speech and injunctive relief against Wisconsin statutes that "might violate the Constitution."

It concluded that the "constitutional claims, are nothing more than a subterfuge for challenging

the propriety of state-court evidentiary rulings," and that he seeks "federal review of [his] trial

[and] federal supervision of future Wisconsin trials." It held Dressier v. McCaughtry controls its

finding of now "patently frivolous," and further, that Heck v. Humphrey, 512 U.S. 477 (1994),

bars relief. It applied three "strikes" pursuant to 28 § 1915(g). Dressier v. Walker, 409 Fed.

Appx. 947 (7th Cir. 2011).

'•

After numerous futile attempts to obtain counsel, Dressler sought assistance through the

U.W. Law School Innocence Project. After seven years on their waiting list before it was able to

review the case, the Law School refused to 'raise any First Amendment issues in light of

Wisconsin's threat of sanctions.' Upon its denial of assistance, Dressler sought Mandamus and a

Stay in the Court of Appeals pursuant to' -§809.51, Wis. Stats, serving the Racine Clerk with a

copy (App, A). The court's summary denial is attached as (App. B). Wisconsin law provides:

A person seeking a supervisory writ from the supreme court shall first file a

petition for a supervisory writ in the court of appeals under §809.51 unless it is

impractical to seek the writ in the court of appeals. A petition to the supreme

court shall show why it was impractical to seek the writ in the court of appeals or,

if a petition has been filed in the court of appeals, the disposition made and

reasons given by the court of appeals. Wis. Stat. (Rule) §809.71

This Court has condemned "recharacterizing" prisonerpro se pleadings, requiring that a court notify the prisoner

of its intention to do so, the legal consequences of it, and permitting the prisoner to re-plead. Castro v. U.S., 540

U.S. 375, 383 (2003).

In compliance, Dressier filed a Supervisory Petition for Mandamus and Stay in the

Wisconsin Supreme Court and served the Racine Clerk with a copy (App. C). The Clerk notified

Dressler - that it was filed as a "petition for review" pursuant to §809.62, Stats, and permitted the

court of appeals 30days to reconsider. (App. D)

On July 27, 2018, Dressler wrote the Clerk explaining that he specifically sought the

Courts jurisdiction pursuant to Wisconsin's Supervisory Writ statute, §809.71, and that he

complied with that filing and service requirement. He specifically did not seek certiorari review

pursuant to §809.62, and thus did not conform his petition to the requirements of §809.62. He

requested that the Clerk accept his petition under §809.71, as filed. (App. E)

On August 1, 2018, the Court ordered that upon review of Dressler's pleading it was

recharacterizing the Petition for' a Supervisory Writ and Stay as a "petition for review." It stated:

"The July 23, 2018 filing contained the court of appeal's and circuit court's case numbers and

attaches the court of appeal's June 12, 2018 order" (App. F). That is precisely what §809.71,

requires a supervisory writ to include!

On August 1, 2018, the Wisconsin Attorney General filed an affidavit of no service of a

petition for review with the Wisconsin Supreme Court.

On October 9, 2018, The Wisconsin Supreme Court ordered that this petitioner's "petition

for review/Petition for a Writ of Mandamus and Stay is denied." (App. G)

And if it made unduly onerous, by reason of delay or otherwise to seek judicial review,

the censor's determination may in practice be final. Freedman, at 58. "If there is evidence of

foot-dragging, immediate judicial intervention will be required, and judicial oversight and review

at any stage of the proceedings must be expeditious." Littleton, supra. at 787.

On-going Prior Restraints Demonstrate Irreparable Injury

Racine's home seizure of protected speech alone demonstrates that: "An individual's

right to speak is impacted when information he or she possessed is subjected to restraints in

which infonnation might be used or disseminated." Sorrel! v. IMS Health, Inc., 564 U.S. 552,

567 (2011). Each passing day of a prior restraint is irreparable and constitutes a separate and

cognizable infringement of the First Amendment. Nebraska Press Association v. Stuart, 423

U.S. 1327, 1329 (1975). The loss of First Amendment freedoms for even minimal periods of

time unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976).

Prior restraints on speech and publication are the most serious and the least tolerable

infringements on First Amendment rights. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559

(1976). The special vice of a prior restraint is that communication will be suppressed, either

directly Or by inducing excessive caution in the speaker, before adequate determination that it is

unprotected speech. Pittsburgh Press v. Comm. on Human Re!., 413 U.S. 376, 390 (1973).

Any system of prior restraint comes to this court with a heavy presumption against

constitutional validity. Freedman, supra, at 57. When First Amendment compliance is the point

to be proved, the risk of nonpersuasion operative in all trials

must rest with the Government,

not with the citizen. U.S. v. Playboy, 529 U.S. at 817-818.

A Circuit Justice Should and Has The Full

Authority To Grant a Stay

A stay operates upon a judicial proceeding either by halting or postponing the action in

question. Its practical effect is to prevent some action before the the legality of that action has

been conclusively determined, and suspends judicial alteration of the status quo by returning the

status quo to the state of affairs before an Order was entered. Nken v. Holder, 556 U.S. 418, 428-

29 (2009). A stay is functionally identical to a preliminary injunction. Id, at 428. The status

quo ante between parties is "the last peaceable uncontested status that existed before the dispute

arose." Kimberly v. Lawrence County, 119 F.Supp. 2d. 856, 874 (S.D. Ind. 2000).

This Court affirmed a preliminary injunction precisely because it served to hold the

government to its constitutional burden of proof:

•

The reasoning of Playboy Entertainment Group, and the holdings and force of our

precedents require us to affirm the preliminary injunction. To do otherwise would be

to do. less than the First Amendment commands. The starch of our constitutional

standards cannot be sacrificed to accommodate the enforcement choices of the

Government......

By allowing the preliminary injunction to stand and remanding for trial, we require

the Government to shoulder its full burden of proof respecting the less restrictive

alternative argument, rather than excuse it from doing so. Ashcroft v. A. C.L. U,

542 U.S. 656, 670-71 (2004) (Emphasis added).

A Circuit Justice stay is the appropriate remedy in this case. While a petition for

certiorari review may ultimately provide review of on-going prior restraints, it is a defendantinitiated pleading that seeks discretionary review that may not, and often is not granted, and may

result in a censor's determination in practice to be final. It fails all of Freedman's "strict

procedural safeguards" that this Court has repeatedly mandated. Those bear repeating:

[B]ecause only a judicial determination in an adversary hearing ensures the necessary

sensitivity to freedom of expression, only a procedure requiring a judicial

determination suffices to impose a valid final restraint. Freedman, supra at. 58.

We held in Freedman, and reaffirm here, that a system of prior restraint runs afoul of

the First Amendment if it lacks certain safeguards. FIRST, the burden of instituting

judicial proceedings, and of proving that the material is unprotected, must rest on the

censor. SECOND, any restraint priOr to judicial review can be imposed only for a

specified period, and only for the purpose of preserving the status quo. THIRD, a

prompt final judicial determination must be assured.

And if judicial review is made unduly onerous, by reason of delay or otherwise, the

[censor's] determination in practice may be final. Southeastern Promotions Ltd. v.

Conrad, supra at 559-560. (Emphasis added)

Wisconsin recognizes that: "On federal questions, the determinations of the United States

Supreme Court are binding on state courts.

...

Our decisions interpreting the United States

Constitution are binding law in Wisconsin until this court or the United States Supreme Court

declares a different opinion or rule." State v. Ward, 2000 WI 3, ¶39. This Court's prior restraint

cases have identified two "constitutionally intolerable" evils that describe Wisconsin's

freewheeling censorship scheme it created with this case:

First, a scheme that places "unbridled discretion in the hands of a government official

or agency constitutes a prior restraint and may result in censorship." Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988). "It is settled by a long line of

recent decisions of this Court that an ordinance which makes the peaceful enjoyment

of freedoms which the Constitution guarantees contingent upon the uncontrolled will

of an official as by requiring a license which may be granted or withheld at the

discretion of such official is an unconstitutional censorship or prior restraint upon the

enjoyment of those freedoms." Shuttlesworth v. Birmingham, 394 U.S. 147, 151

(1969).

Second, a prior restraint that fails to place limits on the time within which the

decisionmaker must issue the license is impermissible. Freedman, supra, at 59; Vance

v. Universal Amusement Co., 445 U.S. 308 (1980) (striking statute on ground that it

restrained speech for an "indefinite duration.") FW/PBS v. City of Dallas, 493 U.S.

215, 225 (1990).

Both the seizure and the trial court's unlimited, standardless disCretion in admission and

the indefinite duration of the restraint of protected speech they imposed

remain as on-going

prior restraints of free speech of twenty-eight years. Only a Circuit Justice Stay can guarantee

compliance with this Court's mandates because cert.' review is discretionary and can

impermissibly permit finality to a censor's determination.

This Court has long required that to prevent an effect of finality to the censor's

determination whether a film constitutes protected expression a criminal conviction must be

vacated to afford a defendant the opportunity to litigate, in some forum, the obscenity vel non of

expressive materials introduced as evidence in a criminal trial. McKinney v. Alabama, 424 U.S.

669, 676 (1976). It required reversal of criminal convictions based even in part on a failure to

first prove that materials are unprotected speech; Freedman, at 59. Accord: "The admission of

the films in evidence requires reversal of petitioner's conviction." Lee Art Theater, Inc. v.

Virginia, 392 U.S. 636, 637, 637 (1968) (Virginia's seizure procedures failed Freedman's

requirements of sensitivity to freedom of expression). See also Fort Wayne Books, supra at 62.

This Court found prior restraint where denial of municipal facilities for a play failed to

provide Freedman procedural safeguards: The "system did not provide a procedure for prompt

judicial review." Southeastern Promotions, 420 U.S. at, 561. "The standard, whatever [the

board applied], must be implemented under a system that assures prompt judicial review with a

minimal restriction of First Amendment rights necessary under the circumstances." Id.

Ulysses Tory petitioned this Court to lift an injunction that Johnnie Cochran obtained that

prohibited Tory from picketing Cochran's office because he claimed Cochran owed him money.

The Court held that Cochran's death did not moot the case, and Tory was entitled to seek

injunctive or other • relief as warranted. Tory v. Cochran, 544 U.S. 734, 738-739 (2005). It

explained: "[W]e take it as a given that the injunction here continues to significantly restrain

petitioner's speech, presenting an ongoing federal controversy. See Dombrowski v. Pfister, 380

U:S, 479, 486-487(1965); NAACP v. Button, 371 U.S. 451, 432-433 (1963)." Tory, at 737.

Similarly, Wisconsin continues to significantly restraint Mr. Dressier's protected speech without

any procedural safeguards or any merits appellate review.

It has insisted that denial of an unpopular group's First Amendment right of free speech

is unconstitutional without the requisite procedural safeguards of appellate review:

If a state seeks to impose a restraint of this kind, it must provide strict procedural

safeguards, including immediate appellate review. Absent such review, the State must

allow a stay. National Socialist Party v. Skokie, 432 U.S. 43, 44 (1977) (Internal

citations omitted).

Further, this Court resolved a circuit split, ruling that Freedman's "prompt judicial

review" is not satisfied by possibility of review. Rather, because undue delay results in the

unconstitutional suppression of protected speech, the First Amendment requires a prompt merits

decision and immediate judicial oversight and intervention if there is delay:

Freedman's "judicial review" safeguard is meant to prevent "undue delay," including

judicial as well as administrative delay.

Thus we read [FW/PBS 's] reference to

"prompt judicial review," together with similar references to Justice Brennan's

opinion, as encompassing a prompt judicial decision.

We presume that courts are

aware of the constitutional need to avoid "undue delay result[ing] in the

unconstitutional suppression of protected speech." FW/PBS, supra, 493 U.S. at 228.

City ofLittleton, Cob. v. ZJ. Gifts, 541 U.S. 774, 781-82. (2004) (Emphasis original)

...

"If there is evidence of foot-dragging, immediate judicial intervention will be required, and

judicial oversight and review at any stage of the proceedings must be expeditious." Id. at 787

(Souter, J. and Kennedy, J. concurring).

Wisconsin has demonstrated that Freedman 's strict procedural safeguards and "prompt

judicial review and merits decision" are not available to this Petitioner in ANY Wisconsin court

in ANY proceeding. Justice Brennan explained why, then, Wisconsin must allow a stay:

Faced with situations similar to that presented here, this Court has repeatedly

required that when a state undertakes to shield the public from certain kinds of

expression that it has labeled as Offensive, it must "provide strict procedural

safeguards, including immediate appellate review. Absent such review, the

state must, instead, allow a stay." Skokie, supra. See also Freedman, at 59.

Southeastern Promotions v. Conrad, [supra, at 560-562]. Vance v. Universal

Amusement Co, 445 U.S. 308, 316-317 (1980); Nebraska Press Assn. v. Stuart,

[supra, at 1328, 1330] (Emphasis added).

In these circumstances, the requirements imposed by the First Amendment that a

State provide procedures to "assure a prompt final judicial decision," Freedman v.

Maryland, at 59, have not been satisfied. MI. C. v. Bedford, supra, at 1343.

Wisconsin's actions "can only result in a deterence of speech which the Constitution

makes free." Speiser v. Randall, supra,. at 526. It requires intervention and stay from a Circuit

Justice as in Skokie, Bedford Township, and Littleton v. Z.J. Gifts, supra.

Conclusion and Prayer for Relief

Disregarding Marcus v. Search Warrants, A Quantity of Books, State v. Voshart, Stanley

v. Georgia, and Ft. Wayne Books v. Indiana, supra, Wisconsin authorized the seizure

privacy of a home

from the

of ANY, unspecified, First Amendment-protected printed and filmed

published materials that officials can find, and specifically denied a Freedman adversary hearing

and "prompt juridical review." That prior restraint continues to this day.

Wisconsin applied Freedman's "strict procedural safeguards" and specifically warned

Wisconsin judges NOT to enter interlocutory orders that admit protected publications into

criminal evidence because they lack jurisdiction to do so; that those orders impose an invalid

prior restraint; are void as a matter-of-law; and not subject to any merits review. State v. I, A

Woman, supra, at 109-117. Wisconsin does not permit a criminal case to proceed to trial or

appeal unless the State first complies with Freedman "default or not," and it requires expeditious

judicial review and merits decision. Id, at 115-116.

A sole Racine court construed Wisconsin's "other acts" statute to include within its scope

the mere "act of possessing" any First Amendment-protected materials in a home and declared:

"I guess I don't want to get into litigation whether or not some of that material constitutes

pornographic materials that might be prohibited in terms of its possession, although again

that's a matter of state and national import." (App. A: Exh. C: R117:53-54).

So long as the statute remains available to the State, the threat of prosecutions of

protected expression is a real and substantial one. Even the prospect of ultimate

failure of such prosecutions by no means dispels their chilling effect on protected

expression. Dombrowski v. Pfister, supra, at 487.

Accord, Herndon v. Lowrey, and Winters v. New York, supra. No Wisconsin court in any

proceeding ever reached the merits of the First Amendment claims petitioner has repeatedly

raised. Its court of appeals has interpreted the Seventh Circuit's §2254 habeas denial in Dressier

v. McCaughtry, supra, as authority to excuse Wisconsin of all First Amendment onus and any

Freedman compliance, and has threatened petitioner with sanctions for raising First Amendment

claims!

It has denied a stay and petition for mandamus to compel an adversary hearing and

"Prompt judicial review" pursuant to Freedman and I, A Woman, Part II. The Wisconsin

Supreme Court has re-characterized this Petitioner's Petition for a Supervisory Writ of

Mandamus to compel the same relief as an ordinary petition for cert. review. It has now denied

review (App. A-G).

Wisconsin has denied Freedman's "strict procedural safeguards" that must attend the

imposition by the State of a prior restraint on protected speech. MI. C. v. Bedford Township,

supra, at 1444 (and cases cited). It has demonstrated its determination to restrain protected

speech for an "indefinite duration." Vance, supra, at 316. Its censor's determination is final.

Therefore, consistent with MI. C. V. Bedford Township, and National Socialist Party v.

Skokie, supra, petitioner prays that the Hon. Elena Kagan, circuit Justice for the Seventh Circuit,

grant a STAY of proceedings in State v. Joachim Dressier, Racine No: 1990CF584.

In addition, he prays that this Court appoint counsel/master to insure rapid lifting of the

restraint, and to restore the status quo to the state of affairs before seizure and order admitting

them into criminal evidence, and for any other equitable relief this Honorable Court may deem

appropriate. Respectfully submitted at Waupun, Wisconsin, December 21, 2018.

Joachim E. Dressler, 230174

Petitioner pro se

Waupun Correctional Institution

P.O. Box 351

Waupun, Wisconsin 53963-0351

Appendix

Table of Contents

App. A Petition for Mandamus and Stay to Wisconsin Court of Appeals Pursuant to

§809.51, Wis. Stats. w/Exhibits, filed June 4, 2018.

App. B Order, June 12, 2018, denying PetitiOn Mandamus and Stay.

App. C Petition to Wisconsin Supreme Court for Supervisory Writ of Mandamus and Stay

Pursuant to §809.71, Wis. Stats. filed July 24, 2018.

App. D Wisconsin Supreme Court Clerk July 24, 2018 acknowledgement of filing of

"Petition for Review" pursuant to § § 809.10 and 809.62, Wis. Stats.

App. E

Petitioner's letter to Clerk, July 27, 2018, clarifying that his pleadings sought a

Supervisory Writ of Mandamus in the Supreme Court pursuant to §809.71, not cert.

review under §809.62.

App. F

Order, Aug. 1, 2018, affirming re-characterization of pleadings as petition for cert.

review pursuant to §809.62.

App. G Order, Wisconsin Supreme Court, denying "petition for review/Petition for a Writ of

Mandamus and Stay," dated Oct. 9, 2018.

Case No:

IN THE UNITED STATES SUPREME COURT

WISCONSIN ex rel. JOACHIM DRESSLER,

Petitioner,

VS.

Wisconsin Case No: 2018AP1030-W

Racine Case No: 1990CF584

RACINE CIRCUIT COURT,

Respondent.

APPENDIX

APPENDIX to a Petition for a Circuit Justice Stay to

The Hon. Elena Kagan, Circuit Justice for the Seventh Circuit.

Joachim Dressier, 230174

Petitioner pro se

Waupun Correctional Institution

P.O Box 351

Waupun, Wisconsin 53963-0351

4.-

WISCONSIN COURT OF APPEALS

DISTRICT II

State of Wisconsin ex rel.

JOACHIM DRESSLER,

Petitioner,

CaseNo: 2018 AP 001030 -W

Racine Case: 1990CF584

RAC1NE COUNTY DISTRICT ATTORNEY, and

RACINE COUNTY CIRCUIT COURT,

Respondent.

PETITION For a WRIT OF MANDAMUS and STAY

Ch. 783 and §809.51, Wis. Stats.

Joachim Dressier petitions this court for a writ of mandamus to compel the Racine

District Attorney and the Racine Circuit Court for a stay, and to convene an adversary hearing

and immediate appellate review pursuant to Freedman v. Maryland', State v. I, A Woman-Part

112 , McKinney v. Alabama 3, and City of Littleton, Cob. v. Z. J. Gifts D-44. As grounds therefore

Petitioner states:

Facts................................................................................................................................................2

Petitioner is Entitled to a Writ of Mandamus..................................................................................4

Petitioner Has a Clear Right To An Adversary Hearing and Prompt Judicial Review ................ 5

Seizure of Expressive Materials Mandates an Adversary Hearing....................................5

Admission of Expressive Materials Mandates an Adversary Hearing ................................ 6

The Duty to Enforce is Positive and Plain................................................................................11

Petitioner Will be Substantially Damaged By Non-performance.............................................13

There Is No Other Adequate Remedy At Law..........................................................................14

RequirementsFor A Stay..............................................................................................................15

Threatof Sanctions ......................................................................................................................... 17

Conclusion and Prayer for Relief .................................................................................................. 20

Freedman v. Maiyland, 380 U.S. 51(1965).

Infra, State i J A Woman-Part II, 53 Wis.2d 102 (Wis. 1971).

Infra, McKinney v. Alabama, 424 U.S. 669 (1976).

Infra, City ofLittleton, Colorado. v. Z.J. Gifts, 541 U.S. 774 (2004).

1 lnfra

Facts

This court noted its familiarity with this case in 2004AP1497, March 8, 2006. The facts

necessary for this Petition for Mandamus and Stay are:

Exercising their rights guaranteed by the First and Fourteenth Amendments, Mr. and Mrs.

Dressier merely possessed articles from magazines such as Time and Newsweek, some of which

depict violence; commercially produced erotica of both heterosexual and homosexual variety;

and three commercial videos entitled The Faces of Death.5 They were kept in their home out of

the reach of their children. All are available in a public library or to adults in bookstores or video

outlets. It is undisputed that all are protected by the First Amendment.

Commercial publication pre-dated the crime by a minimum of two years. None of the

materials depict the victim or crime charged. Mr. Dressier did not distribute, author, or produce

the materials at issue. He did not take the witness stand at his jury trial. The record is void of

any evidence that he advocated, expressed an opinion, or espoused the ideas contained or

depicted in them. The trial court lacked any evidence from which to make a finding of how the

materials came into his possession; under what circumstances; or when, how, or by whom the

materials were compiled. (Exh. C: Ri 17, 54-55)

Investigating the death and disappearance of James Madden, Racine officials sought a

search warrant for plaintiffs home. A lengthy affidavit dated July 28, 1990, indicated that the

Dresslers possessed three videos entitled The Faces of Death. (Exh. A, 137) Words such as

"homosexual" or "pornography" do not appear in the affidavit.

The resulting search warrant for the Dressier home failed to specify any publications

whatsoever. It authorized carte blanche seizure of any and all:

The Faces of Death, a "Grade B" video (at best), is available at most video outlets. It depicts violence and is fully

protected by the First Amendment. Winters v. New York, 333 U.S. 507, 510 (1948); U.S. v. Stevens, 559 U.S. 460

(2010).

7. Written materials, photographs, video tapes, or other materials including but not

limited to sado-masochism pornography, "snuff films" depicting torture or death

Warrant, July 28, 1990 (Exh. B: ¶7)

scenes;

Once officials discovered homosexual erotica in the Dresslers' home, all bets were off.

The state offered the publications seized from plaintiffs home as "other acts" evidence for its

case-in-chief. It asked the court to review the content of the First AMendment-protected

publications in chambers, exparte, and rule them admissible:

THE COURT: We'll take about a ten-minute recess here. I am going to read the facts

and law again in the Evers case, and I also want to take a look at the items that Mrs.

Weber wants me to look at. I will take those into chambers .with me and be back in

about 10 minutes.

(Recess had)

All right. The record will show that the appearances continue as they were, that we

have been in recess for about fifteen or twenty minutes, that in chambers I had a

chance to review the materials presented by the State in the briefcase, on the placards

and the six paperback books that were presented... The issue is whether or not the

State should be allowed to offer information into the record that consists of videotapes,

and as referred to in the defendant's motion, collected published materials that some of

which were mentioned orally on the record and others which I was able to review.

(Exh. C: RI 17:43-44)

The trial court reasoned: "The State's case is in fact by agreement by the defense a weak

case. It's a circumstantial case, and that, therefore, this type of evidence is important for the

presentation for the State's case,

.it's important to the State's case in order for them to meet

their burden of proof." Id, at 51. It noted that the published materials were lawfully possessed,

specifically denied an adversary hearing, and construed and applied Wis. Stat. §904.04(2) as

urged by the state:

THE COURT: Well, certainly as the statute defines the terms, there's no crime here.

We have all agreed to that. The State hasn't suggested there's a crime in the

possession of these materials. Other wrongs, I don't know. I guess I don't want to

get into litigation whether or not some of that material constitutes pornographic

materials that might be prohibited in terms of its possession, although again

that's a matter of state and national import, so I'm not making a judgment as to

whether or not those are crimes to possess the materials. I don't think I am in a

position to do that. I am not being asked to do that.

MR. MATHIE (Defense Counsel): [I]s the only act or wrong or crime, whatever you

define it, is the possession of those materials, is that what the court's ruling is?

Id, at 53-54 (Emphasis added)

THE COURT: Yes.

Demonstrating its content-based reasoning, the court stated: "there was homosexuality on the

part of the defendant. He possessed those materials. They clearly depict homosexuality." (Exh.

D: R131: 27)

The state never sought adversary hearing compliance pursuant to Freedman v. Maryland,

380 U.S. 51, 58 (1965), and State v. I, A Woman-Part II, 53 Wis.2d 102 (Wis. 1971).

[A]n invalid prior restraint is an infringement upon the constitutional right to

disseminate matters that are ordinarily protected by the First Amendment without

there first being a judicial determination that the material does not qualify for

First-Amendment protection. I, A Woman, at 112-113.

That prior restraint remains in effect to this day. No further facts are necessary or

relevant to grant a Stay and a Writ of Mandamus.

Petitioner is Entitled to a Writ of Mandamus

When mandamus relief is sought against a judge presiding over a criminal trial, the action

is a "procedural step" in the criminal litigation. Martin i'. U.S., 96 F.3d. 853, 854

(7th Cir. 1996).

A petition for a writ of mandamus does not review a criminal trial. It is not a form of appeal. It

is not a post-conviction motion. It is not a civil rights suit.

Mandamus is an extraordinary writ that may be employed to compel public officers to

perform a duty that they are legally obligated to perform. For the writ to issue, petitioner must

establish that: (1) he possesses a clear right, to the relief sought; (2) that the duty he seeks to

enforce is positive and plain; (3) he will be substantially damaged by nonperformance of such

duty; and (4) there is no other adequate remedy at law. State ex rel. Robins. v. Madden in re

Doe), 2009 WI 46 ¶10.

Petitioner Has a Clear Right To An Adversary Hearing and Prompt

Judicial Review

1. Seizure of Expressive Materials Mandates an Adversary Hearing

States must provide procedures amply adequate to safeguard against invasion of speech

that the Constitution protects. Because the line between speech unconditionally guaranteed and

speech that may legitimately be regulated, suppressed, or punished is finely drawn, where the

transcendent value of speech is involved, Due Process requires that the state bear the burden of

proving that the appellant engages in criminal speech. Speech must be unencumbered until the

State comes forward with sufficient proof to justify its inhibition. Speiser i'. Randall, 357 U.S.

513, 524-529 (1958).

A system of prior restraint "avoids constitutional infirmity only if it takes place under

procedural safeguards designed to obviate the dangers of a censorship system." Freedman v.

Maryland, 380 U.S. 51, 58 (1965). Therefore:

[B]ecause only a judicial determination in an adversary hearing ensures the necessary

sensitivity to freedom of expression, only a procedure requiring a judicial

determination suffices to impose a valid final restraint. Id. (Emphasis added)

The Court mandates an adversary hearing before speech materials may be subject to

seizure. "For if seizure of books precedes an adversary determination of their obscenity, there is

danger of abridgement of the right of the public in a free society to unobstructed circulation of

non-obscene books." A Quantity of Books v. Kansas, 378 U.S. 205, 213 (1964). Accord,

Marcus v Search Warrants, 367 U.S. 717, 736 (1961); Alexander v. U.S., 509 U.S. 544, 577

(1993) (Kennedy, dissenting).

Significantly, the United States Supreme Court specifically held that mere probable cause

to believe that a crime has been committed is not adequate to remove books or films from

circulation:

Thus, while the general rule under the Fourth Amendment is that any and all

contraband, instrumentalities, and evidence of crimes may be seized on probable

cause, .it is otherwise when materials presumptively protected by the First

Amendment are involved. It is the risk of prior restraint, which is the underlying basis

for the special Fourth Amendment protections accorded searches for and seizures of

First Amendment materials that motivates this rule. ..[M]ere probable cause to

believe a legal violation has transpired is not adequate to remove books or films from

[The First Amendment] presumption is not rebutted until the claimed

circulation.

justification for seizing books or other publications is properly established in an

adversary proceeding. Fort Wayne Books v. Indiana, 489 U.S. 46, 64 (1989)

(Citations and quotations omitted).

...

Wisconsin recognized these safeguards and applied a limiting construction to (now)

§968.13, Stats, to cure that statute's facial overbreadth

and to forbid warrants and seizures of

First Amendment protected printed and filmed materials:

The words "lewd, obscene, or indecent" in the Wisconsin contraband statute must be

interpreted in the constitutional sense as including only printed and filmed materials

that are not protected by the First Amendment to the United States Constitution as

interpreted by the United States Supreme Court. State v. Voshart, 39 Wis.2d 419, 429

(1968) (Emphasis added).

"It is clearly established that under federal law a motion picture cannot be seized without a prior

adversary hearing." Detco, Inc. v. Neelen, 356 F.Supp. 289, 290 (E.D. Wis. 1973). "The same is

obviously true for books or any other expressive materials." Ft. Wayne Books, supra, at 63.

2. Admission of Expressive Materials Mandates an Adversary Hearing

The Constitution has never permitted an Orwellian concept of "guilt by book

association." When Georgia admitted publications that Angelo Herndon possessed as evidence

in prosecuting for inciting insurrection, the Court ruled that the strict vagueness standards of the

First and Fourteenth Amendments forbid any inference from their content:

No inference can be drawn from the possession of the books mentioned, either that

they embodied the doctrines of the Communist Party or that they represented the views

The question thus proposed to a jury involves pure speculation as

of the appellant.

to future trends of thought and action [and] licenses a jury to create its own standards

in each case. Herndon v. Lowrey, 301 U.S. 242, 249, 263 (1937) (Emphasis added).

...

rel

A decade later the Court ruled that "collections of stories of criminal deeds of bloodshed or lust

so massed as to become vehicles for inciting violent and depraved crimes" are fully protected by

the First Amendment. Winters v. New York, 333 U.S. 507, 510 (1948). Relying heavily on

Herndon, it explained why their admission as criminal evidence is unconstitutional:

[W]e think fair use of pictures and stories would be interdicted because of the utter

impossibility of the actor or the trier of fact to know where this new standard of guilt

Collections of .

would draw the line between allowable and forbidden publications.

tales of war horrors, otherwise unexceptional, might well be found to be so "massed"

as to become "vehicles for inciting violent and depraved crimes." Where a statute is so

vague as to make criminal an innocent act, a conviction under it cannot be sustained.

Winters, at 519-20.

...

AU regulation in the First Amendment area must strictly be limited to conduct that is

"specifically defined by the applicable state law, as written or authoritatively construed." Miller

J;. California, 413 U.S. 15, 23-24 (1972). The doctrine forbidding unbridled discretion requires

laws applicable to speech to be "explicit by textual incorporation, binding judicial or

administrative construction, or well-established practice." Lakewood v. Plain Dealer Publishing

Co., 486 U.S. 750, 770 (1988). Statutes must be carefully drawn or be authoritatively construed

to apply only to unprotected speech "and not be susceptible of application to protected

expression." Gooding v. Wilson, 405 U.S. 518, 522 (1972).

With Speiser v. Randall, supra, the Court mandated that the State must assume the burden

to prove that speech is unprotected, because "where particular speech falls close to the line

separating lawful and unlawful, the possiblility of mistaken fact-finding

litigation

inherent in all

will create the danger that the legitimate utterances may be punished," and "can only

result in a deterence of speech which the Constitution makes free." Id, at 526.

The Supreme Court artculated its strict procedural safeguards in Freedmant v. Maryland,

380 U.S. 51 (1965) and repeatedly explained what is now unequivocally clear:

We held in Freedman, and reaffirm here, that a system of prior restraint runs afoul of

the First Amendment if it lacks certain safeguards. First, the burden of instituting

judicial proceedings, and of proving that the material is unprotected, must rest on the

censor. Second, any restraint prior to judicial review can be imposed only for a

specified period, and only for the purpose of preserving the status quo. Third, a

prompt final judicial determination must be assured.

And if judicial review is made unduly onerous, by reason of delay or otherwise, the

[censor's] determination in practice may be final. Southeastern Promotions Ltd. v.

Conrad, 420 U.S. 546, 559-560 (1975). (Emphasis added)

Applying Freedman to Wisconsin, our Supreme Court declared that:

[A]n invalid prior restraint is an infringement upon the constitutional right to

disseminate matters that are ordinarily protected by the First Amendment without there

first being a judicial determination that the material does not qualify for FirstAmendment protection. State v. I, A Woman, supra, at 112-113.

It mandated strict procedural safeguards under the Wisconsin Constitution to insure that its

courts can never impose, or maintain, any prior restraint of free speech:

•

The Legislature determined that (now) §806.05 is the exclusive means to declare printed and

filmed materials "obscene" thus unprotected by the First Amendment and "that all

possible alternate common law or equitable in rem proceedings have been suspended." Id, at

109.

A statute that permits an interlocutory order that admits expressive materials into evidence in

is unconstitutional and

where they could have evidentiary weight

a criminal trial

authorizes an impermissible and unconstitutional prior restraint. "In addition, the mere

issuance of the interlocutory judgment, even without its subsequent use in a criminal trial,

constitutes an impermissible chilling of First Amendment rights where there has been no

prior adversary adjudication of obscenity." Id, at 113-114. (Emphasis added)

A statute that is interpreted to relieve the state of its burden of proving that the material is an

unprotected form of expression is unconstitutional. "Since the public interest is affected in

the process of finding any matter not protected by the First Amendment, the [state] is

obligated to assume its burden of presenting a prima facie case, default or not." Id, at 115

(Emphasis added).

•

Interlocutory orders not in compliance with the above are void and are not subject to merits

review. Id. The court specifically warned Wisconsin judges not to enter such orders because

of their constitutional infirmity. Id, at 119.

• The "strict procedural safeguards" the I, A Woman Court announced are jurisdictional. Id, at

110 and 121.

•

The Freedman adversary hearing provides the constitutionally required element of scienter or

mensrae. Id, atll6.

•

The I, A Woman Court mandated "prompt judicial review." Id, at 115, 116, and 119.

Since such interlocutory orders are void and lack jurisdiction, the doctrine of void

judgments controls. Void judgments are legal .nullities; it is a per se abuse of discretion for a

court to deny a motion to vacate a void judgment. U.S. Indoor Cultivation Equipment, 55 F.3d

1311, 1317 (7th Cir. 1995). "Judgements entered contrary to due process are void." Neylan v.

Vorwald, 124 Wis.2d 85, 95 (Wis. 1985). When a court or other judicial body acts in excess of

its jurisdiction, its orders or judgments are void and may be challenged at any time. They cannot

be validated by consent, ratification, waiver, or estoppel. Id, at 97.

A void judgment is something very different than a valid judgment. The void

judgment creates no binding obligation upon the parties, or their privies; it is legally

The judgment may also be collaterally attacked at any time in any

ineffective.

proceeding, state or federal, in which the effect of the judgment comes in issue, which

means that if the judgment is void it should be treated as legally ineffective in

And the substance of these principles are equally

subsequent proceedings.

applicable to a void state judgment.

Id, at 99.

...

A censor's refusal to license signifies the censor's view that a film is unprotected.

Freedman, at 58.

Accordingly, Wisconsin noted that the ruling it declared void "calls into

question whether material is to be given the benefit of the protections of the First Amendment to

the Constitution of the United States and section 3, of article I, Wisconsin Constitution." I, A

Woman at 111. "[B]ecause only a judicial determination in an adversary hearing ensures the

necessary sensitivity to freedom of expression, only a procedure requiring a judicial

determination suffices to impose a valid final restraint." Id, at 114. Only an adversary hearing

constitutionally suffices to make this determination

court to act.

and it confers jurisdiction that empowers a

After Freedman, Blount, and I, A Woman, Wisconsin judges lack jurisdiction

and are

simply not empowered to declare: "I guess I don't want to get into litigation whether or not

some of that material constitutes pornographic materials that might be prohibited in terms

of its possession." (Exh. C, RI 17:53)

Pornography is fully protected speech. The trial court's belief that "pornographic

materials

...

might be prohibited in terms of its possession," Id, is "manifest error" a wholesale

disregard, misapplication, or failure to recognize a controlling legal precedent. Oto v. Metro Life

Ins. Co., 224 F.3d 601, 606 (7th Cir. 2001). Indeed, "listeners for whom, if the speech is

unpopular or indecent, the privacy of their own home maybe the optimal place of receipt." US.

v. Playboy Entertainment Group, Inc., 529 U.S. 803, 815 (2000).

It's ruling lacks the compulsory adversary hearing pursuant to Freedman that requires the

state to prove

to a jury 6

that presumptively protected materials do not qualify for First-

Amendment protection. I, A Woman, at 113.

Importantly, its act of reviewing the content of publications in chambers necessarily

"involves the appraisal of facts, the exercise of judgment, and the formation of an opinion," and

satisfies all the elements of prior restraint. Southeastern Promotions, supra, 420 U.S. at 554.

(Citing Cantwell v. Connecticut, 310 U.S. 296, 305 (1940)) It is by necessity content-based and

presumptively invalid:

A determination concerning the newsworthiness or educational value of a photograph

cannot help but be based on the content of the photograph and the message it delivers.

.Regulations which permit the Government to discriminate on the basis of the

content of the message cannot be tolerated under the First Amendment.

Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984)..

Content-based regulations are presumptively invalid, and the Government bears the

burden to rebut that presumption... This is for good reason...

See Court v. State,51 Wis. 2d. 683, 699 (Wis. 1971).

It is rare that a regulation restricting speech because of its content will ever be

permissible. Indeed, were we to give the government the benefit of the doubt when it

attempted to restrict speech we would risk leaving regulations in place that sought to

shape our unique personalities or silence dissenting ideas. When First Amendment

compliance is the point to be proved, the risk of nonpersuasion operative in all

trials must rest with the Government, not with the citizen. U.S. v. Playboy, 529

U.S. at 817-818 (Emphasis added, internal citations and quotations omitted).

The requirement of an adversary hearing, and the right to be free of prior restraint and

content-based discrimination

guaranteed by the First and Fourteenth Amendments and the

Wisconsin Constitution is a clearly established right.

The Duty to Enforce is Positive and Plain

In Wisconsin, "decisions interpreting the United States Constitution are binding law in

Wisconisn until this court or the United States Supreme Court declares a different opinion or

rule." State v. Ward, 2000 WI 3, ¶39.

Because lower federal courts exercise no appellate jurisdiction over state tribunals,

decisions of lower federal courts are not conclusive on state courts. U.S. ex rel Lawrence v.

Woods, 432 F.2d 1072, 1075-76

(7th Cir. 1970). "[A]lthough at times they may be informative,

we are in no way bound by decisions of the federal circuit courts even if they are on all fours

with the case before us." State v. Harris, 199 Wis.2d 227, 254 n.10 (Wis. 1996).

The U.S. Supreme Court's prior restraint cases have identified two evils it termed

"constitutionally intolerable:"

First, a scheme that places "unbridled discretion in the hands of a government official

or agency constitutes a prior restraint and may result in censorship." Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988). "It is settled by a long line of

recent decisions of this Court.that an ordinance which makes the peaceful enjoyment

of freedoms which the Constitution guarantees contingent upon the uncontrolled will

of an official as by requiring a license which may be granted or withheld at the

discretion of such official is an unconstitutional censorship or prior restraint upon the

enjoyment of those freedoms." Shuttlesworth v. Birmingham, 394 U.S. 147, 151

(1969).

Second, a prior restraint that fails to place limits on the time within which the

decisionmaker must issue the license is impermissible. Freedman, supra, at 59; Vance

v. Universal Amusement Co., 445 U.S. 308 (1980) (striking statute on ground that it

restrained speech for an "indefinite duration.")

FW/PBSv. City of Dallas, 493 U.S. 215, 225 (1990)

Both the unlimited discretion

and the indefinite duration of the restraint of protected

speech remain as intolerable, unresolved prior restraints in this case.

The Court found prior restraint where denial of municipal facilities for a play failed to

provide Freedman procedural safeguards: The "system did not provide a procedure for prompt

judicial review." Southeastern Promotions, 420 U.S. at, 561. "The standard, whatever [the

board applied], must be implemented under a system that assures prompt judicial review with a

minimal restriction of First Amendment rights necessary under the circumstances." Id.

The Court has insisted that denial of a group's First Amendment right of free speech is

unconstitutional without the requisite procedural safeguards of appellate review:

If a state seeks to impose a restraint of this kind, it must provide strict procedural

safeguards, Freedman v. Maryland [supra], including immediate appellate review.

Absent such review, the State must allow a stay. National Socialist Party v. Skokie,

432 U.S. 43, 44 (1977) (Internal citations omitted).

Consistently, where a state's highest court has refused to either lift a challenged prior

restraint, or to provide for immediate appellate review, that failure indicates that the state's

highest court has decided to finally maintain the restraint

warranting a stay by a single Justice

of the Court. MI. C. v. Ltd. v. Bedford Township, 463 U.S. 1341, 1343-44 (1983).

Further, the Court resolved a circuit split, and rejected a misreading of FW/PBS v. Dallas

that Freedman's "prompt judicial review" is satisfied by a mere possibility of review. Rather,

because undue delay results in the unconstitutional suppression of protected speech, the First

Amendment requires a prompt merits decision

intervention if there is delay:

and immediate judicial oversight and

Freedman's "judicial review" safeguard is meant to prevent "undue delay," including

Thus we read [FW/PBS 's] reference to

judicial as well as administrative delay.

"prompt judicial review," together with similar references to Justice Brennan's

We presume that courts are

opinion, as encompassing a prompt judicial decision.

aware of the constitutional need to avoid "undue delay result[ing] in the

unconstitutional suppression of protected speech." FW/PBS, supra, 493 U.S. at 228.

City ofLittleton, Cob. v. Z.J Gifts, 541 U.S. 774, 781-82. (2004) (Emphasis original)

...

"If there is evidence of foot-dragging, immediate judicial intervention will be required, and

judicial oversight and review at any stage of the proceedings must be expeditious." Id. at 787

(Souter, J. and Kennedy, J. concurring).

In Wisconsin: "Since the public interest is affected in the process of finding any matter

not protected by the First Amendment, the [State] is obligated to assume its burden of presenting

a prima facie case, default or not." I, A Woman,, supra, at 112-118 (Emphasis added).

Petitioner Will be Substantially Damaged By Non-performance

The loss of First Amendment freedoms for even minimal periods of time unquestionably

constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). Each passing day of a

prior restraint is irreparable and constitutes a separate and cognizable infringement of the First

Amendment. Nebraska Press Association v. Stuart, 423 U.S. 1327, 1329 (1975).

An individual's right to speak is impacted when information he or she possessed is

subjected to restraints in which information might be used or disseminated. Sorrell v. JMS

Health, Inc., 564 U.S. 552, 567 (2011). Prior restraints on speech and publication are the most

serious and the least tolerable infringements on First Amendment rights. Nebraska Press Assn.

v. Stuart, 427 U.S. 539, 559 (1976). The special vice of a prior restraint is that communication

will be suppressed, either directly or by inducing excessive caution in the speaker, before

adequate determination that it is unprotected speech. Pittsburgh Press v. Commission on Human

Relations, 413 U.S. 376, 390 (1973).

Ulysses Tory petitioned the U.S. Supreme Court to lift an injunction that Attorney

Johnnie Cochran obtained that prohibited Tory from picketing Cochran's office because he

claimed Cochran owed him money. The Court held that Cochran's death did not moot the case,

and Tory was entitled to seek injunctive or other relief as warranted. Tory v. Cochran, 544 U.S.

734, 738-739 (2005). "[W]e take it as a given that the injunction here continues to significantly

restrain petitioner's speech, presenting an ongoing federal controversy. See Dombrowski v.

Pfister, 380 U.S., 479, 486-487 (1965); NAACP v. Button, 371 U.S. 451, 432-433 (1963)."

Tory, at 737. So too, here.

A state's procedures are "fatally flawed" if they permit a citizen to initiate judicial

proceedings to persuade courts that published expressive materials are First Amendmentprotected. "The First Amendment demands that the Government must assume this burden."

Blount v. Rizzi, supra, at 418. "When First Amendment compliance is the point to be proved, the

risk of nonpersuasion

operative in all trials

must rest with the Government, not with the

citizen." U.S. v. Playboy, 529 U.S. at 817-818.

There Is No Other Adequate Remedy At Law

The procedures by which a state determines whether certain materials unprotected by the

First Amendment must be ones that ensure "the necessary sensitivity to freedom of expression."

McKinney v. Alabama, 424 U.S. 669,674 (1976) (Quoting Freedman, 380 U.S. at 58).

To prevent "an effect of finality to the censor's determination whether a film constitutes

protected expression" Freedman, at 58, a criminal conviction must be vacated to afford a

defendant the opportunity to litigate, in some forum, the obscenity vel non of expressive

materials introduced as criminal evidence in a criminal trial. McKinney, at 676. Wisconsin

complies with these requirements:

[B]ecause only a judicial determination in an adversary hearing ensures the necessary

sensitivity to freedom of expression, only a procedure requiring a judicial

determination suffices to impose a valid final restraint. I, A Woman, supra, at 114.

Since the public interest is affected in the process of finding any matter not protectedby the first amendment, the plaintiff is obligated to assume its burden of presenting a

prima facie case, default or not. Id, at 115. (Emphasis added).

Requirements For A Stay

The status quo ante between parties is "the last peaceable uncontested status that existed

before the dispute arose." Video-Home-One v. Brizzi, 2005 U.S.Dist. LEXIS 31151, at 6.

(Quoting Kimberly v. Lawrence County, 119 F.Supp. 2d 856, 874 (S.D. Ind. 2000). A stay

operates upon a judicial proceeding either by halting or postponing the action in question, and

suspends judicial alteration of the status quo by returning the status quo to the state of affairs

before an order was entered. Nken v. Holder, 556 U.S. 418, 428-29 (2009).

In exercising its discretion to grant or deny a stay, a court considers (1) whether the

applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the

applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other party interested in the proceeding; and (4) where the public interest

lies. Id, at 434.

Because of the substantial overlap between the requirements for a stay and those of an

injunction (either temporary or permanent)

the test for an injunction is functionally identical to

that of a stay:

To obtain a preliminary injunction, plaintiff must show (1) a reasonable likelihood of

success on the merits; (2) that is has no adequate remedy at law; (3) that it will suffer

irreparable harm if an injunction does not issue; (4) that the threatened injury it faces

outweighs the injury the defendant will suffer if the injunction is granted; and (5) that

an injunction is in the public interest. Wil-Kar, Inc. v. Village of Germantown, 153

F.Supp.2d 982, 987 (E.D.Wis. 2001)

Judge Adelman explained the special considerations for a preliminary injunction in a

First Amendment context:

Although in theory these elements are distinct, in the First Amendment context they

essentially reduce to the question of whether the plaintiff is likely to succeed on the

merits. This is because the loss of First Amendment freedoms is presumed to

constitute irreparable harm, and irreparable injury establishes that there is no adequate

remedy at law. Further, because compliance with the First Amendment always serves

the common good, the public interest also turns on the merits. Wil-Kar, Id. (Internal

citations omitted).

Prior restraints are not unconstitutional per se. "Any system of prior restraint, however,

comes to this Court bearing a heavy presumption against its constitutional validity" Bantam

Books v. Sullivan, 372 U.S. 58, 70 (1963). The presumption against prior restraints is heavier

and the degree of protection is broader

than that against limits on expression imposed by

criminal penalties." Southeastern Promotions, supra, 420 U.S. at 558-559.

Requiring a demonstration of strict scrutiny a compelling interest, and a showing of the

least restrictive means of achieving that interest

is the most demanding test known in

constitutional law. Deida i City ofMilwaukee, 176 F.Supp. 2d 859, 869 (E.D.Wis. 2001).

Because the Act imposes a restriction on the content of protected speech, it is invalid

unless California can demonstrate that it passes strict scrutiny that is, unless it is

justified by a compelling government interest and is narrowly drawn to serve that

interest. The state must specifically identify an actual problem in need of solving, and

the curtailment of free speech must be actually necessary to that solution. This is a

demanding standard. It is rare that a regulation restricting speech because of its

[I]t

content will ever be permissible. California cannot meet that standard.

acknowledges that it cannot show a direct causal link between video games and harm

to minors.

[California] bears the risk of uncertainty, ambiguous proof will not

suffice. Brown v. Entmt. Merch. Assn., 564 U.S. 786, 799-800 (2011). (Citations

omitted, emphasis added).

...

Because the state can prevail only if it satisfies strict scrutiny, there is a strong likelihood

of success on the merits. The loss of First Amendment freedoms is presumed to constitute

irrreperable harm, and irreparable injury establishes that there is no adequate remedy at law.

Further, because compliance with the First Amendment always serves the common good, the

public interest also turns on the merits. Wil-Kar, supra.

Indeed, the Supreme Court affirmed the grant of an injunction precisely because it served

to hold the government to its constitutional burden of proof:

The reasoning of Playboy Entertainment Group, and the holdings and force of our

precedents require us to affirm the preliminary injunction. To do otherwise would be

to do less than the First Amendment commands. "The starch of our constitutional

standards cannot be sacrificed to accommodate the enforcement choices of the

Government." By allowing the preliminary injunction to stand and remanding for

trial, we require the Government to shoulder its full burden of proof respecting

the less restrictive alternative argument, rather than excuse it from doing so.

Ashcroft v. A.C.L.U, 542 U.S. 656, 670-71 (2004) (Emphasis added).

...

Petitioner is entitled to a stay to litigate the First Amendment protection vel non of the

presumptively protected expressive materials seized from his home and prematurely admitted at

trial. McKinney v. Alabama, supra, 424 U.S. at 676. "Since the public interest is affected in the

process of finding any matter not protected by the First Amendment, the [state] is obligated to

assume its burden of presenting a prima facie case, default or not." I, A Woman, at 115

(Emphasis added).

Threat of Sanctions

The State sought sanction against future filings seeking First Amendment relief.

2004AP 1497, March 8, 2006. It argued that all First Amendment claims have been "fully

litigated and found to be, at every turn, without merit."

Id, at ¶13, citing Dressier v.

McCaughtry, 237 F.3d 908, 912 (7th Cir. 2001). It asserted that §2254 habeas corpus denial

constitutes "law of the case."

Its specious arguments to this court are contrary to the facts of record; are legally false;

and serve to mislead this court to permit the state to shirk its settled First Amendment duty.

State v. Casteel, 2001 WI App. 188, ¶25

"The assumption that defense of a criminal conviction will generally assure ample

vindication of [First Amendment] rights is unfounded." Dombrowski v. Pfister, supra, at 486.

Indeed, the Court explained that Freedman was decided precisely "because the regulatory

scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment

claims," noting the constitutional imperative in "immediate resolution of such claims." Id, at

489. Speech must be unencumbered until the State comes forward with sufficient proof to justify

its inhibition.

Speiser v. Randall, supra, 357 U.S. at 524-529.

The First Amendment

presumption of expressive materials "is not rebutted until the claimed justification for seizing

books or other publications is properly established in an adversary proceeding." Fort Wayne

Books v. Indiana, supra, 489 at 63-68. There has never been an adversary proceeding in this

case.

The state fails the rule that its pleadings are "well grounded in fact and warranted by

existing law" and "is not used for any improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of litigation." §802.05(1), Stats.

The I, A Woman Court specifically noted that "It is obvious that a constitutional problem

is presented" if a criminal case were to go to trial

or appeal

prior to Freedman compliance.

At 115-116. After I, A Woman, Wisconsin's enforcement scheme must:

* * * place the burdens of initiating judicial review and of proving that the material is

a final

unprotected expression on the censor; require 'prompt judicial review'

to prevent the

judicial determination on the merits within a brief period

administrative decision of the censor from achieving an effect of finality; and limit

preservation of the status quo for the shortest, fixed period compatible with sound

judicial resolution, any restraint imposed in advance of the final judicial determination.

I, A Woman, at 114 (Quoting Blount v. Rizzi, supra, 400 U.S. at 417).

Further, federal habeas proceedings always defendant initiated, and available only after

exhaustion of direct appeal

can never satisfy Freedman 's requirement of "prompt" judicial

review, and are by definition "too little and too late." Freedman, at 57. This court itself

explained that . a "brief period within which all judicial avenues are exhausted would be an

oxymoron." City News & Novelty, Inc. v. City of Waukesha, 231 Wis.2d 93, 115 (Wis.App.

1999). After Littleton v. Z.J. Gifts, supra, Freedman compliance and "prompt judicial review"

and a final decision on the merits is compulsory.

The state's "law of the case" argument to this court is equally specious. "A void

judgement cannot be validated by consent, ratification, waiver, or estoppel." Neylan v. Vorwald,

supra, 124 Wis.2d at 97. While a decision on a legal issue by an appellate court establishes the

law of the case which must be followed in all subsequent proceedings, see State v. Stuart, 205

WI 47 ¶1, no "appellate court" ever addressed the First and Fourteenth Amendment claims. On

direct appeal this court specifically declined to address the issue. While the U.S. Supreme Court

enjoys appellate jurisdiction over state courts by virtue of the Supremacy Clause, the Seventh

Circuit itself explained that federal district and circuit courts have no appellate jurisdiciton over

state criminal trials whatsoever. US. ex rel Lawrence v. Woods, supra, 432 F.2d at 1075-76.

Federal habeas corpus denial is not an "appellate" decision that establishes law of the case, nor

overrules the Wisconsin and United States Supreme Court binding authority of Winters v. New

York, Speiser v. Randall, Freedman v. Maryland, State v. Voshart, State v. I, A Woman, Neylan

v. Vorwald and US. v. Playboy, supra.

Significantly, threatening sanctions for litigating vindication of First Amendement rights

has been repeatedly condemned as unconstitutional. See NAACP v.Button, 371 U.S. 415, 429433 (1963) (Threatening NAACP with legal sanctions for. "soliciting" negro clients to vindicate

civil rights violates First Amendment); Dombrowski v. Pfister, 380 U.S. 479, 482-498 (1965)

(Where Southern Conference Legal Fund, who represented negroes for vindication of First

Amendment rights was threatened, immediate injunctive relief required). A prior restraint exists

whenever any color-of-law action is threatened against published materials that "do not follow

judicial determinations that such publications may lawfuly be banned." Bantam Books v.

Sullivan, supra, 372 U.S. at 68-70.

Because any threat of sanctions for seeking First Amendment relief is itself an ongoing

prior restraint, the issue is not moot and requires relief. Tory v. Cochran, 544 U.S. 734, 737-79

(2005) (Since the injunction continues to significantly restrain petitioner's speech, the ongoing

federal conroversy warrants relief.)

The state's arguments to this court that all First Amendment claims have been fully

litigated; that the Seventh Circuit's habeas denial constitutes "law of the case;" and its threat of

sanctions lack merit because they are factually and legally false, and unconstitutionally permit

the state to shirk its First Amedment onus. The state, and this court, are bound by the

constitutional holdings of the United States and Wisconsin Supreme Courts.

Conclusion and Prayer for Relief

This petition asks this court for a straightforward application of the binding, Supreme

Court constitutional holdings of Winters v. New York, Speiser v. Randall, Freedman v.

Maryland, State v. Voshart, State v. I, A Woman, Neylan v. Vorwald, U.S. v. Playboy, and

Ashcroft v. A. C.L. U., supra.

"[Aln invalid prior restraint is an infringement upon the constitutional right to

disseminate matters that are ordinarily protected by the First Amendment without there first

being a judicial determination that the material does not qualify for First-Amendment

protection." State v. I, A Woman, 53 Wis.2d at 112-113. The First Amendment presumption of

the materials at issue are not rebutted until the claimed justification for seizing books or other

publications is properly established in an adversary proceeding. Fort Wayne Books v. Indiana,

489 U.S. at 63-68 (1989). The state has never sought, and there has never been an adversary

hearing in this case.

Mandamus is a remedy to compel public officers to perform a duty that they are legally

obligated to perform. "Since the public interest is affected in the process of finding any matter

not protected by the First Amendment, the [state] is obligated to assume its burden of presenting

aprimafacie case, default or not." I, A Woman. at 115.

For the reasons and authorities presented above, petitioner prays that this court grant a

stay of proceedings in State v. Joachim Dressier, Racine Case Number 1990CF584, and remand

to the Racine Circuit Court with an order to convene an adversary hearing, and provide for

expedited "prompt judicial review" pursuant to Freedman v. Maryland, State v. I, A Woman,

Part II, McKinney v. Alabama, and Littleton v. Z.J. Gifts, supra.

Pursuant to § 809.51(4), Wis. Stats, petitioner certifies that this petition is produced in

proportional serif font and contains 6893 words.

Respectfully submitted at Waupun, Wisconsin, June 4, 2018.

Joachim E. Dressier, 230174

Petitioner pro se

Waupun Correctional Institution

Waupun, Wisconsin 53963-0351

Burleigh Elementary School and observed thtl1:the

e when size,

bags-weretear marks, 'folds seams,

color were compared;

Your affiant states that Agent Luell reported

that on 7-27-90, he personally spoke with CäCü'mmii

who stated that he isa .alesrnarr for theFrontiexBag.

- M.s 6uri., and that he was the

Company ofGranview,

salesperson- that sold theabvet mentioned yellow plasti

ield,

Brookf

School

tary

bags to the Btileigh Elemen

Wisconsin; he further stated to the Special Agent that

when he checked the company records, he observed that the

5-h is;

only sale of yellowc plastic sags th Wisconsin was

School on

ntary

Eleme

igh

Burle

the

érsnalsaié ofbasto

Your affiant states that he personally spoke

with Albert Luetzow1 owner of Lietzow Industries1 South

Milwaukee, Wisconsin, on 6-30-90 at the Milwaukee County

Medical Examiner's Office, Milwaukee, Wisconsin, who

stated that heisamaornianufacturer Of_plastic bs and

is knowledgeable with the industry and is fáiifar with

the products, manufacturing processes, and distribution

Alert Luetzow, examined", the7 yellow plastic

plastic bags

bag that the James Madd en tor so was found in andrsta1'ed

that.-there-is. nobody an the midwest area that manufactures

or distribute this sty1eôf prastac bag and that the bag

no 'common to the midwest area of the country;

Your affiant states that Special Agent Luell

he personally spoke with Joachim Dressier on

that

reports

7-10-90 at the Dressler residence at which time Joachim

Dressler stated that he was home alone on the night of

6-27-90 and that his wife was in the hospital and his

children were out of town; Joachim Dressier further

stated that he did have yellow plastic bags at the house

but had not seen them for several months; he further

stated to the Agent that no one had been to his residence

of the night of the disappearance of James Madden;

Your affiant states that Special Agent Luell

ithL ihl

ok°

reports that he p

7-26-90 at the residence of Cheryl Waffenschmit whereupon

she statedthaher husbandJoechixiDressle, has

what she eltevd to be

that he also has a

complete set of t

App.A Exh.A

Death" that she believes to depict actual murders of human

beings;

Your affiant states that in his experience an d.

training and common knowledge, it would be reasonable for

a perpetrator of the above described offence to use a

motor vehicle in order to transport the body parts to the

locations where those parts were found due to the

distances and the fact that the body parts were located

near or adjacent to highways; and that evidence of that

transport of body parts could reasonable be recovered from

said vehicle; that it is common that incriminating

evidence such as clothing and personal property of a

victim is hidden, buried dr otherwise concealed by a

perpretrator in or around buildings, outbuildings,garages, or areas under his control in an attempt to

conceal said evidence from discovery by others;

Your affiant further states that the clothing

believed to be worn by James Madden and the personal items

believed to have been carried by James Madden have not

been located;

Your affiant relies upon the statements of Blair

Cassell, Allen Bishop, Mary Madden, James L. Madden,

Cheryl Waffenschmit, Mary Hauke, Kathleen Dressier, Craig

Cummings in asmuch as they are adult citizen eyewitnesses

and reported that information that they had personal

knowledge of; Your affiant relies upon the statements of

Special Agent Richard Luell,• Sgt. Vyvyan, Dr. L.T.

Johnson, Dr. Jeffrey Jentzen, Albert Luetzow, and Michael

Camp in asmuch as they are part of an official law

enforcement investigation or are statements based upon

information of which they had personal or professional

knowledge.

WHEREFORE, YOUR AFFIANT prays that a search warrant be

issued directing law enforcement officers to enter upon

and search the lands, residence, buildings and vehicles

found on the property, or belonging to either Kathleen or

Joachim Dressier, said property located at 11739 West

Exh. A

inscribed, blue polo shirt;

Personal possessions of James Madden including but

not limited to a red plastic-type folder/clipboard,

brochures with "Citizen for a Better Evironrnent" imprinted

on them, various personal checks made payable to "Citizens

for a Better Environment", Plastic ID card in the name of

James Madden, Wallet or other personal identification o

items with the name of JamesMadden or "Citizens for a

Better Environment" written or printed on them;

Yellow plastic bags of approximately 33 gal. size

Knives, scalpels, cutting tools, saws or any other

devices capable of cutting or sawing human tissue or bone;

6. Firearms, ammunition;

•

Written materials, photographs, video tapes, or

other materials including but not limited to

sado-masochism pornography, "snuff films" depicting

torture or death scenes;

Ropes, binding materials, or any other similar

type devices capable of binding hands or feet;

which things were used in the commission of, or may

constitute evidence of a crime, to-wit: FIRST DEGREE

INTENTIONAL HOMICIDE, committed in violation of section

940.01(1) of the Wisconsin Statutes and pray that a search

warrant be issued to search said premises, curtilage, and

surrounding lands and vehicles for said property or

evidence.

NOW, THEREFORE, in the name of the State of

Wisconsin, you are commanded forthwith to search the said

premises, curtilage, and surrounding lands and vehicles,

using all reasonable and necessary means, for said things,

and if the same or any portion thereof are found, to bring

the same, and return this warrant within 48 hours to the

Clerk of Courts to be dealt with according to law.

199

Dated

Judge of Circuit Court

Branch

App. A Exh. B

When the District Attorney talks about

identification, the basis for that identification again is

we're looking for a person who has this propensity, and she

cites something from some publication and a little bit by

the pathologist, who I don't know whether he's an expert in

homosexual killings or not. .1 don't know how many of those

occur in this jurisdiction, but I don't think counseis

argument and the fact that she has little evidence allows

any of this in.

THE COURT: Thank you. We'll take shout a

ten-minute recess here.

and the law again in the Evers case, and I also want to take

a.look

1. ••

I am going to read over the facts

at the items that Mrs. Weber wants me to take. a I o:;k

at. I will take those into chambers with me and he back in

about

ten minutes.

I4R. MATHIE: Judge, I'd also. ask you to

consider State v. Friedrich.

THE COURT: All right..

ME. MA-HIE: And the Spraggin case.

i will

give you, the cite to that.

THE COURT: I have those cases in mind, and

also I have them.

MR. NATHIE: Okay. Thank you.

Recexs had)

THE COURT: All right. The record will sb1

--I

APP. A Exh. C

V, I

0 '43

a,-

that the appearances continue as they were, that we have

711

been in recess for about fifteen or twenty minutes,

chambers I had a chance to review the materials presented by

the State and in the briefcase, on the placards and the six

that in

paperback books that were presented, and also I have read

some of the cases, primarily the Evers case that was

referred to by the defens e. The issue is whether or not the

State should be allowed to offer information into the record

that consists of video, tapes, and as referred to in the

defendant's motion, collected published materials that some

of which were mentioned orally on the record and others

which

was able to

to review. The issue is whether or not the

dènce is relevant, number one; whether or not the State's

argument that this is Whitty type evidence, evidence of

other acts or wrongs, applies here; and whether or not that

analysis leads to the admission of this type or evidence.

It's interesting to note that among the offered.

testimony of the State would be the testimony of an expert

who in his opinion, as I understand the offer of proof in a

statement, would rely on having access to these materials,

is that not correct?

MS. WEBER: He hasn't had access and said he

didn't need access. It's the types of materials that go to

the conclusions.

THE COURT: So he's aware of the t.ypes of

Exh. C

that

the test whether L.

prejudicial or even harmful

the defendant, b-at whether or not it's prohatave Value

more than the prejudicial effect and that the probative

value should come into the record.

I also recognize the statement of the State, and I

am inclined to agree with it based upon the facts which have

been orally stated, as offers of proof on the record. The

State's case is in fact by agreement by the defense a weak

case. It's a circumstantial case, and that, therefore, this

type of evidence is important tar the presentation of toe

State's case, and whether the jury accepts it as not up to

me, t's up to them, but it's important to the State's case

in order for them to meet their burden of proof in their

mind, and threfore, I think tht's a factor to be

considereU. .

thank: without the evidence it's ci ear• that

the State's case would in fact be significantly weakened.,

and that. is also, as I have stated before. evidence which is

relevant to the issues of intent, plan, motive, method of

oreraticn and so on. Without reaching the elements +-1 - 4have discussed in their arguments with respect to

Cnce of mistake and so on, it also goes, i think, to

identity based upon the state of mind of the defendant.

Pt any rate, dealing with the issue whether

the Pre j udicial effect far outweighs the probative value

am satisfied that the probative value is sufficient as

ExhC

IK~ t (1 0

ect is- -yes, in my mind one of the ways that this comes into

the statute is that it's an act on his part to in fact

collect materials, to have them in his possession and that

these materials collectively give evidence of a method of

operation, a thought, a plan on his part and so. on.

MR. MATHIE: Is that the only act that the

€

Court is relying upon as a prior act?

THE COURT: Well, there's more than that in

the record obviously. At this point there's admissions

apparently to police officers of his homosexuality. Thats:

come into the record in this motion nearing. So that's part

of the record in my state of mind when revi ew1nc the record

)

as a whole .

•

-I je

MR. MTHIE: With respect to the materials

that are at issue on the motion, is the only prior act that

the Court's relying upon the possession of those materiaJ..?

THE COURT: Well , certainly as the statute

-17

defines the terms, there's no crime here. We have all

greed to that. The State hasn't suggested there's a crime

in the possession of these materials. Other wrongs. I don't

know. I guess I don't want to get into litication whether

or not. some of that material constitutes pornographic

rnat.eriais that might be prohibited in terms of its

nossession, although again that's a matter of state nd of

-'I

rationa

import, so I am not making any Juagment as to

Exh.0

?N111 p

whether or not those are crimes to possess the materials.

don't think that I am in a position to do that.

I am not

teings}ed to do that.

MR. MATHIE:

I am not wondering whether

t.he're crimes, wrongs or acts.

I am wondering is the only

act or crime or wrong, whatever you define it, is the

possession of those materials, is that what the Court's

ruling is?

THE COURT:

Yes.

MS. WEBER:

Possession being all

THE COURT:

Yeah.

MS. WEBER:

--in terms of

encompassing ---

)

I collected it, I

out, I put it all together in one place, I viewed it:.

Obviously that's an attempt, I am not sure why, to put it

into one word .

I think that act of possession connotes a

larger forum.

MR. MATHIE:

)

Ha's the Court made any finding

as to the time of this collection in order, to come to its

ruling?

THE COURT:

I can't obviously from those

mteriais in terms of the amount of time over which it wa s

ccmi

-J

MR. MATHIE:

Or when it was compiled.

THE COURT:

There's nothing in the record

Exh. C

R 1 1 07 o5'4

obV3 ously to allow me to do that.

MR. MATHIE:

Or when it was last compiled.

THE COURT:

I don't know.

It's obvious

though it was in his possession based upon the facts that

there was a search warrant at the home and during that

search warrant execution these items were recovered.

I can

say I looked, at some of those materials, and it's clear

there are items clipped from news magazines.

I didn't look for dates.

It's clear--

There may be dates on some of

those things in the briefcase.

I didn't look for dates.

an sure the books there have dates of publication in them.

T:rere are magazines.

I don't know whether the maciazine

which show male homosexuality had dates.

I know the:es a

number of photographs with it looks like summer activities,

a ]ot of younq men, as Mrs. Weber referred to, in samsuts,

say as

look at those photographs they appear somawta

rated, bul it doesn't tell me when or what circumstances

they came into the possession of the defendant.

MR. MATHIE:

Okay.

And theCourt has no idea

vhat the circumstances are that these things came into the

defendant's possession.

THE COURT:

in tne record taa

Quite obviously there's nothinci

tells me that.

MR. MATHIE:

Okay.

And is the Court rulino

that all c-f this can come in in the State's case in chief7

"Ptiii

whether or not this was a case of homosexual overkill. If only that information

came into the record regarding the conduct of the defendant with respect to

possessing materials and the characterization of this crime by an expert, it's

clear, I think, the State could argue from inference that there was a

homosexuality on the part of the defendant. He possessed those materials.

They clearly depict homosexual activity. And it's also clear, I think, that an

expert would testify that evidence in his mind and his possession would, in

fact, support his opinion that this would be an act of homosexual overkill. I

think that from that and that alone it's sale to inquire of the jurors with respect

to the whole topic of homosexuality even if the Court does not allow the State

to produce that other evidence which is the subject of the written motion most

recently filed.

So that again the Court will not modify its rulings on the materials in the

briefcase and the testimony of Dr. Jentzen. Those decisions and rulings by the

Court will stand. We'll take up the other Whitty evidence that the State wishes

to offer prior to opening statements and we'll proceed at this point with the

voir dire process and the jury selection. Your motions are noted for the record

and are denied.

With respect to the jury selection process, let me just run by that process

briefly. When we go into the courtroom we will first of all have all the jurors

stand to be sworn. We will then call the roll. I'll call it myself to make sure

all of the jurors are in the correct seats so we all have them right in our seating

charts. Obviously that's important. Then I'll ask that the case be introduced

by having Mrs. Weber first introduce herself, the members of her office, her

witnesses and to read the Information indicating to the jurors what the charge

ADLD.A ivh

Fv I S1 pZ7

liked--in these pictures that he collected you will see that

he liked bare chests, bathing suits and what I am going to

call, for lack of a more sensitive term, pictures of men

with bulges in their pants. This was all part of one

collection. Obviously his friends didn't know about and

weren't familiar with these things. It provides a motive

for an otherwise inexplainable and unexplainable event. Who

would do this and why? A man who's fascinated by this sort

of thing, but by all outward appearances is Mr. Neighbor,

husband and father.

Dr. Jentzen provides other evidence that you will

hear. He will testify that in the area of pathology, the

study of death, the forensics of it and death -and the cause

of death, and with that forensic pathology that's bringing

the legal part of the investigation of death into cause of

death, he has seen, he knows of, and there is litrature to

support a concept called homosexual overkill. The overkill

part of it is the type of injuries you see to the body of

James Madden. It's more than is necessary to cause death

and suggests some other motivation, and this is consistent

with deaths caused by homosexuals in their panic or rage or

whatever motivates this type of death.

Jeff Jentzenwill testify that based on the

stomach contents, Jim Madden died shortly after Marilyn

Meyer saw him because if he last ate at 4:00 or 4:30, that

App. A.

M•24 o 4

OFFICE OF THE CLERK

CON

WISCONSIN COURT OF APPEALS

110 EAST MAIN STREET, Suim215

P.O. Box 1688

MADISON, WISCONSIN 53701-1688

Telephone (608) 266-1880

TTY: (800) 947-3529

Facsimile (608) 267-0640

Web Site: www.wicourts.gov

DISTRICT H

June 12, 2018

Clayton Patrick Kawski

Criminal Appeals Unit Director

P.O. Box 7857

•Madison, WI 53707-7857

Hon. Gerald P. Ptacek

Circuit Court Judge

Racine County Courthouse

730 Wisconsin Avenue

Racine, WI 53403

Kevin C. Potter

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Samuel A. Christensen

Clerk of Circuit Court.

Racine County Courthouse

730 Wisconsin Avenue

Racine, WI 53403

Joachim Dressier 230174

Waupun Corn Inst.

P.O. Box 351

Waupun, WI 53963-0351

Patricia J. Hanson

District Attorney

730 Wiscbnsin Avenue

Racine, WI 53403

You are hereby notified that the Court has entered the following opinion and order:

2018AP1030-W

State of Wisconsin ex rel. Joachim Dressier v. Circuit Court for

Racine County (L.C. # 1990CF584)

Before Reilly, P.J., Gundrum and Hagedorn, JJ.

Joachim B. Dressier has ified a petition for a writ of mandamus. In it, he asks this court

to order the circuit court to convene an adversary hearing regarding certain materials seized at

his home and used in his homicide prosecution. Dressier asserts that he had a First Amendment

right to possess such materials and, therefore, they should not have been used against, him as

evidence.

We must deny Dressier's petition, as we already rejected his First Amendment argument

in a previous appeal. See State v. Dressier, No. 2004AP1497, unpublished slip op. çwi App

App. B1

No. 2018AP1030-W

March 8, 2006). We will not revisit that decision. See State v. Witkowski, 163 Wis. 2d 985,

990, 473 N.W.2d 512 (Ct. App. 1991) ("A matter once litigated may not be relitigated in a

subsequent postconviction proceeding no matter how artfully the defendant may rephrase the

issue.")

Dressier also moves for a stay of his case. Because we deny his petition, we also deny

his motion as moot. Therefore,

IT IS ORDERED that the petition for a writ of mandamus is denied without costs.

IT IS FURTHER ORDERED that the motion for a stay is denied as moot.

Sheila 7'. Reiff

Clerk of Court ofAppeals

App. B\

C .

Wisconsin Supreme Court

110 E. Main Street, Suite 215

P.O. Box 1688

Madison, Wisconsin 53701-1688

July 23, 2018

Dear Clerk of Court:

Enclosed for filing with the Wisconsin Supreme Court are three copies of a

Petition for a Writ of Mandamus and a Stay, with Exhibits, pursuant to §809.71 Wis.

Stats.

I have also enclosed a Petition for Waiver of Costs/Fees Affidavit of Indigency.

Please note that a petition for a Writ of Mandamus is not a form of prisoner

litigation that is subject to the Prison Litigation Reform Act (PLRA). Martin v. United

States, 965 F.3d 853, 854 (7 1h Cir. 1996).

By my signature, I certify that a copy of this Petition has been placed in the United

States Mail addressed to:

Clerk of Circuit Court

Racine County Courthouse

730 Wisconsin Avenue

Racine, Wisconsin 53403

In the event there are any filing deficiencies, please notify me so that I may

promptly correct them.

Respectfully submitted,

oachi E. Dressier, 230174

Petitioner pro se

Waupun Correctional Institution

P.O. Box 351

Waupun, Wisconsin 53963-0351

cc: Racine County Clerk of Court

APP. c I

THE SUPREME COURT OF WISCONSIN

State of Wisconsin ex rel.

JOACHIM DRESSLER,

Petitioner,

Case No:

Ct. App. No: 2018AP001030W

Racine Case: 1990CF584

RACINE COUNTY CIRCUIT COURT,

RACINE COUNTY DISTRICT ATTORNEY, and

WISCONSIN COURT OF APPEALS, DIST II,

Respondents.

PETITION For a WRIT OF MANDAMUS and STAY

Ch. 783 and §809.71, Wis. Stats.

Joachim Dressier petitions The Wisconsin Supreme Court for a Supervisory Writ Of

Mandamus to compel the Racine District Attorney and the Racine Circuit Court for a stay, and to

convene an adversary hearing and immediate appellate review pursuant to Freedman v.

Maryland ', State i'. I, A Woman

2 McKinney v. Alabama 3 and Littleton v. Z. J. Gfls

A Supervisory Writ of Mandamus Is Required To Compel Compliance With This Court's

BindingMandates ...........................................................................................................................2

Facts.................................................................................................................................................3

Petitioner is Entitled to a Writ of Mandamus ........................... ....................................................... 5

Petitioner Has a Clear Right To An Adversary Hearing and Prompt Judicial Review...............6

Seizure of Expressive Materials Mandates an Adversary Hearing....................................6

Admission of Expressive Materials Mandates an Adversary Hearing...............................7

The Duty to Enforce is Positive and Plain ................................................................................ .12

Petitioner Will be Substantially Damaged By Non-performance ............................................. 14

There Is No Other Adequate Remedy At Law..........................................................................16

Requirements. For A Stay .............. ............ . ................................................................................... 16

Mandamus In The Court Of Appeals Is Impractical ...................................................................... 19

Conclusion .and Prayer for Relief .................................................................................................... 23

'Infra, Freedman v. Maryland. 380 U.S. 51(1965).

Infra State v.1, A Woman-Part 11,53 Wis.2d 102 (Wis. 1971).

Infra, McKinney 1'. Alabama, 424 U.S. 669 (1976).

4 lnfra, City ofLittleton, Colorado. v. Z.J. Gifts D-4, 541 U.S. 774 (2004).

A Supervisory Writ of Mandamus Is Required To Compel

Compliance With This Court's Binding Mandates

[B]ecause only a judicial determination in an adversary hearing ensures the necessary

sensitivity to freedom of expression, only a procedure requiring a judicial

determination suffices to impose a valid final restraint. Freedman v. Maryland, 380

U.S. 51, 58 (1965) (Emphasis added).

Fully twenty years before the facts of this case this Court applied Freedman's First Amendment

"strict procedural safeguards" and declared that Wisconsin's enforcement scheme must:

***

place the burdens of initiating judicial review and of proving that the material is

unprotected expression on the censor; require 'prompt judicial review'

a final

judicial determination on the merits within a brief period

to prevent the

administrative decision of the censor from achieving an effect of finality; and limit

preservation of the status quo for the shortest, fixed period compatible with sound

judicial resolution, any restraint imposed in advance of the final judicial determination.

State v. I, A Woman-Part II, 53 Wis.2d 102, 114 (Wis. 197 1) (Quoting Blount v. Rizzi,

400 U.S. 410,417 (1971)).

This Court does not issue advisory constitutional opinions. It specifically warned all Wisconsin

courts not to enter any interlocutory orders that admit First Amendment-protected expressive

materials into criminal evidence

where they could have evidentiary weight

before the state

has proven them to be unprotected in an adversary proceeding. I, A Woman. at 112-120.

As detailed below, when a sole Racine Circuit Court declares: "I guess I don't want to

get into litigation whether or not some of that material constitutes pornographic materials

that might be prohibited in terms of its possession, although again that's a matter of state

and national import" and the Wisconsin Court of Appeals at all times repeatedly declines any

First Amendment review, then this Court should grant a Supervisory Writ of Mandamus to

compel compliance with this Court's unreversed binding constitutional mandates. If lower

Wisconsin courts may simply disregard Supreme Court decisions interpreting the United States

and Wisconsin Constitution, then a "Supreme" Court's role is rendered superfluous.

AP'c.

WISCONSIN SUPREME COURT

OFFICE OF THE CLERK

Sheila T. Reiff

Clerk

Telephone: 608-266-1880

TTY: 800-947-3529

Fax: 608-267-0640

http://www.wicourts.gov

110 E. Main Street, Suite 215

P.O. Box 1688

Madison, WI 53701-1688

JOACHIM DRESSLER #230174

WAUPUN CORR. INST.

P.O. BOX 351

WAUPUN, WI 53963-0351

Date: July 24, 2018

State of Wisconsin ex rel. Joachim Dressier,

Petitioner,

Circuit Court for Racine County and Racine County District

Attorney,

Respondents.

District: 2

Appeal No. 2018AP001030 W

Circuit Court Case No. 1990CF000584

Dear Joachim Dressier:

which

This will acknowledge receipt of the Statement in Support of the Petition For Review

and

808.10

§§

Stats.

Wis.

order,

has been filed in the above matter pursuant to this court's

will remain

809.62. Please note that the case number and the designations of the parties

than the party

identical in the Supreme Court to the designations in the Court of Appeals, other

Rule

see

tion;

designa

filing the petition for review should add Petitioner to the previou

briefs will be

the

809.81(9). If the petition for review is granted and additional briefs are require

as the briefs

filed pursuant to RUle 809.19(9) and will therefore have the same color covers

which the parties filed with the Court of Appeals.

filing of a

Because the Court of Appeals may reconsider its decision within 30 days of the

statement in

your

petition for review, we will be furnishing the Court of Appeals with a copy

d under Rule

support of the petition for review. Also, please note the $195.00 filing fee require

that the

ensure

not

does

and

809.25(2)(a)1, Rules of Appellate Procedure, is not refundable

petition will be granted.

If you have any questions regarding procedures on the petition for review, please

hesitate to contact this office.

do not

Sheila T. Reiff

Clerk of Supreme Court

AP-8040, 03/2005 Statement in Support of Petition for Review

No Motion Costs

Page 1 of 2

App.D

2018AP001 030W

f t

Office of the Clerk

Wisconsin Supreme Court

P0 Box 1688

Madison, Wisconsin 53701-1688

St. ex rel Joachim Dressier v. Racine Circuit Court et al.

Appeal No. 2018AP001030 W

July 27, 2018

Dear Clerk

Please reference your Form AP-8040 to me, dated July 24,

2018, that acknowledged receipt of a "Statement in Support of

the Petition for Review," citing §§ 808.10 and 809.62, Stats.

Please note that the petition I filed specifically states

that it is a "Petition fora WRIT OF MANDAMUS and STAY". and

that it was filed pursuant to §809.71, Stats.

I specifically did not seek certiorari review pursuant

to §809.62, Stats., and therefore I did not meet or address

the criteria and form §809.62 requires. Rather, my petition

for a Supervisory Writ pursuant to §809.71 that I filed meets

with the criteria of §809.71, and as required, I first sought'

a supervisory writ in the Court of Appeals and attached the

court's ruling.

I request that you file my Petition for a Supervisory Writ

of Mandamus and Stay under the statute' that I submitted it under,

§809.71, Wis. Stats. I believe that

and conformed it to meet

I have complied in all respects to that statute and do not

wish risking dismissal for failing to comply with §809.62, a

statute I specifically did not file under.

Please accept my thank you, in advance, for your prompt

attention to this matter and I look forward to hearing from

you.

J act-din Dressier 230174

Petitioner pro se

Waupun Correctional Institution

P0 Box 351

Waupun, Wisconsin 53963-0351

App. E

OFFICE OF THE CLERK

uprinte (llirnri of Pisronsin

(ql)

110 EAST MAIN STREET, SUITE 215

P.O. Box 1688

\WisO/

MADISON, WI 53701-1688

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

August 1, 2018

To:

Hon. Gerald P. Ptacek

Racine County Circuit Court Judge

730 Wisconsin Avenue

Racine, WI 53403

Clayton Patrick Kawski

Criminal Appeals Unit Director

P.O. Box 7857

Madison, WI 53707-7857

Samuel A. Christensen

Racine County Clerk of Circuit Court

730 Wisconsin Avenue

Racine, WI 53403

Kevin C. Potter

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Patricia J. Hanson

District Attorney.

730 Wisconsin Avenue

Racine, WI 53403

Joachim Dressler 230174

Waupun Con. Inst.

P.O. Box 351

Waupim, WI 53963-0351

You are hereby notified that the Court, by its Clerk and Commissioners,

following order:

No. 2018AP1030-W

has entered the

Dressier v. Racine County Circuit Court L.C.# 1990CF584.

er's petition for

On June 12, 2018, the court of appeals denied Petitioner Joachim Dressl

an extension of time to

writ of mandamus. The petitioner filed a motion in this court seeking

d Mr. Dressler that

seek review of that decision. By order dated June 26, 2018, this court advise

and further

review

for

it would construe his motion as a timely but nonconforming petition

n by September 10,

advised him that he was required to file a statement in support of the petitio

"Petition for a Writ of

2018. On July 23, 2018, Mr. Dressler filed a document captioned

t of the petition for

Mandamus and Stay," which this court construed as the statement in suppor

review.

filing was not a

On July 30, 2018, Mi. Dressier filed a letter stating that his July 23, 2018

n for writ of

petitio

statement in support of his pending petition for review, but rather

mandamus and stay.

App. F:

Page Two

August 1, 2018

No. 2018AP1030-W

Dressier v. Racine County Circuit Court L.C.# 1990CF584

We have reviewed the document and conclude that it was appropriately construed as the

statement in support of a petition for review of the court of appeals' June 12, 2018 decision. The

July 23, 2018 filing contained the court of appeals' and circuit court's case numbers and attaches

the court of appeals' June 12, 2018 order.

Upon the foregoing,

IT IS ORDERED. that no action will be taken on petitioner's filing.

Sheila T. Reiff

Clerk of Supreme Court

OFFICE OF THE CLERK

1xprIme lllmxrJ ofirmizin

110 EAST M..&mSTltEET,SUITE 215

• P.O. Box 1688

MADISON, WI 53701-1688

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

October 9, 2018

To:

Hon. Gerald P. Ptacek

Racine County Circuit Court Judge

730 Wisconsin Avenue

Racine, WT 53403

Clayton Patrick Kawski

Criminal Appeals Unit Director

P.O. Box 7857

Madison, WI 53707-7857

Samuel A. Christensen

Racine County Clerk of Circuit Court

730 Wisconsin Avenue

Racine, WI 53403

Kevin C. Potter

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Patricia J. Hanson

District Attorney

730 Wisconsin Avenue

Racine, WI 53403

Joachim Dressier 230174

Waupun Con. Inst.

P.O. Box 351

Waupun, WI 53963-0351

You are hereby notified that the Court has entered the following order:

No. 2018AP1030-W

Dressier v. Racine County Circuit Court L.C.# 1990CF584

Petitioner-petitioner, Joachim Dressler, pro se, has filed a document captioned "Petition

for Writ of Mandamus and Stay." It has been docketed as a petition for review of the court of

appeals' June 12, 2018 decision and considered by this court.

IT IS ORDERED that the petition for review/"Petition for a Writ of Mandamus and Stay"

is denied, without costs.

Sheila T. Reiff

Clerk of Supreme Court

App. Ô

Supreme Court of the United States

Office of the Clerk

1 First Street, N.E.

Washington, D.C. 20543-0001

State of Wisconsin ex rel. Joachim Dressier v. Racine Circuit Court

Wis. No: 2018AP001030W

Dear Clerk of Court:

December 21, 2018

Enclosed for filing is a Petition for a Circuit Justice Stay, with Appendix, to the Hon.

Elena Kagan, Circuit Justice for the Seventh Circuit, and a motion to extend the time to file a

petition for certiorari review in this Court.

My Petition for a Circuit Justice Stay and Appendix demonstrates that:

[A]s in National Socialist Party v. Skokie, 432 U.S. 43, 44 (1977), and Nebraska

Press Assn. v. Stuart 423 U.S. 1327, 1329-1330 (1975), the State's highest court

has refused to either lift the challenged [prior] restraint or to provide for

immediate appellate review. Such a failure indicates that the state court has

decided to finally maintain the restraint in effect during the pendency of review.

In this situation I have no doubt that a Justice of this Court has the full

power to issue a stay. MI. C. v Bedford Township, 463 U.S. 1341, 1343 (1983)

(Emphasis added).

Rule 22.1 provides that, "if an individual justice has authority to grant the sought relief'

the clerk will transmit it promptly to the Justice concerned. Pursuant to Bedford, Justice Kagan

has the authority to grant the stay sought and I request that you promptly transmit my Petition to

Justice Kagan.

I have also enclosed a Motion for Leave to Proceed in forma pauperis and a Financial

Statement in support thereof.

By my signature, I certify that I have placed a postage-paid copy of my Petition for a

Stay, and Motion for an Extension of Time in the U.S. Mail addressed to:

The Wisconsin Attorney General

P.O. box 7857

Madison, Wisconsin 53707-7857

Respectfully submitted,

I Joachim DressIer, 230174

Petitioner pro se

Waupun Correctional Institution

P.O. Box 35l

Waupun, Wisconsin 53963-0351

RECEIVED

JAN 11 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.