Petition for Writ of Certiorari — Joachim Dressler, Petitioner v. Circuit Court of Wisconsin, Racine County
Supreme Court briefMar 5, 2019
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Case No:
IN THE UNITED STATES SUPREME COURT
WISCONSIN ex rel. JOACHIM DRESSLER, Petitioner,
vs.
RACINE CIRCUIT COURT, Et. Al, Respondents.
On a Petition For a Writ of Certiorari To .
The Wisconsin Supreme Court
APPENDIX
TO PETITION FOR A WRIT OF CERTIORARI
Joachim Dressier, 230174
Petitioner pro se
Waupun Correctional Institution
P.O. Box 351
Waupun, Wisconsin 53963-0351
r-
Appendix - Table of Contents
App. A.
Order, June 12, 2018, denying Petition Mandamus and Stay.
App. B.
Order, Aug. 1, 2018, affirming re-characterization of pleadings as petition for cert,
review pursuant to §809.62.
App. C.
Order, Wisconsin Supreme Court, denying "petition for review/Petition for a Writ of
Mandamus and Stay," dated Oct. 9, 2018.
Wisconsin Supreme Court Clerk July 24, 2018 acknowledgement of filing of
“Petition for Review” pursuant to §§ 809.10 and 809.62, Wis. Stats.
App. D.
App. E.
Petition for Mandamus and Stay to Wisconsin Court of Appeals Pursuant to
§809.51, Wis. Stats. w/Exhibits, filed June 4, 2018.
App. F.
Petition to Wisconsin Supreme Court for Supervisory Writ of Mandamus and Stay
Pursuant to §809.71, Wis. Stats, filed July 24, 2018.
App. G.
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.
rvl,
A.
Office of the Clerk
WISCONSIN COURT OF APPEALS
110 East Main Street, Suite 215
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 n
June 12, 2018
To:
Hon. Gerald P. Ptacek
Circuit Court Judge
Racine County Courthouse
730 Wisconsin Avenue
Racine, WI 53403
Samuel A. Christensen
Clerk of Circuit Court
Racine County Courthouse
730 Wisconsin Avenue
Racine, WI 53403
Patricia J. Hanson
District Attorney
730 Wisconsin Avenue
Racine, WI 53403 ■
Clayton Patrick Kawski
Criminal Appeals Unit Director
P.O.Box 7857
Madison, WI 53707-7857
• Kevin C. Potter
Assistant Attorney General
P.O.Box 7857
Madison, WI 53707-7857
Joachim Dressier 230174
Waupun Corn Inst.
P.O. Box 351
Waupun, WI 53963-0351
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 Hagedom, JJ.
Joachim E. Dressier has filed 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, Wo. 2004AP1497, unpublished slip op. (WI App
! App. A
No. 2018AP1030-W
A,
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 T. Reiff
Clerk of Court of Appeals
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App. A 1
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Office of the Clerk
jgnpreme (Emri at J35tssamsm
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110 East Main Street, Suite 215
P.O.Box 1688
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 Dressier 230174
■ Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
You are hereby notified that the Court, by its Clerk and Commissioners, has entered the
following order:
No. 2018AP1030-W
Drossier v. Racine Countv Circuit Court L.C.# 1990CF584
On June 12, 2018, the court of appeals denied Petitioner Joachim Dressler's petitionfor
SlTew rffta, deciaion^By^rder4latedto ^‘zOlS^sTo^advised Mr. Dressier tot
it would construe his motion as a timely but nonconforming petition for review and further
advised him that he was required to file a statement in support of the petition by September 10
2018. On July 23, 2018, Mr. Dressier filed a document captioned Petition for a Writ ot
Mandamus and Stay," which this court construed as the statement in support of the petition or
review.
On July 30 2018, Mr. Dressier filed a letter stating that his July 23, 2018 filing was not a
statement in support Of his pending petition for review, but rather a petition for writ ot
mandamus and stay.
App. B
A
Page Two
August 1, 2018
No. 2018AP1030-W
Dressier v. Raciue 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
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App. B
!
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\- •
Office of the Clerk
^upxzmz (ttmirt ai
110 East Main Street, 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, 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 Dressier 230174
Waupun Corr. 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 Dressier, 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. C
1
!
orv-.
WISCONSIN SUPREME COURT
OFFICE OF THE CLERK
110 E. Main Street, Suite 215
P.O.Box 1688
Madison, WI53701-1688
Telephone: 608-266-1880
TTY: 800-947-3529
Fax: 608-267-0640
http://www.wicourts.gov
Sheila T. Reiff
Clerk .
JOACHIM DRESSLER #230174
WAUPUN CORR. INST.
P.O.BOX 351
WAUPUN, WI 53963-0351
State of Wisconsin ex rel. Joachim Dressier,
Petitioner,
v.
Circuit Court for Racine County and Racine County District
Date: July 24, 2018
District: 2
Appeal No. 2018AP001030 W
Circuit Court Case No. 1990CF000584
Attorney,
Respondents.
Dear Joachim Dressier:
This wi» acknowledge receipt of the Statement in Support of the Petition
has been filed in the above matter pursuant to this court's order, Wis. Stats. §§ 808.10 and
809.62. Please note that the case number and the designations of the parties_ willremain
identical in the Supreme Court to the designations in the Court of Appeals, other than the pa y
filing the petition for review should add Petitioner to the previous designation, see Ru e
809 81 (9).. If the petition for review is granted and additional briefs are required, the br^fs will be
filed pursuant to Rule 809.19(9) and will therefore have the same color covers as the brie s
which the parties filed with the Court of Appeals.
Because the Court of Appeals may reconsider its decision within 30 days of the filing of a
petition for review, we will be furnishing the Court of Appeals with a copy of your statemen in
support of the petition for review. Also, please note the $195.00 filing fee required under Rule
809.25(2)(a)1, Rules of Appellate Procedure, is not refundable and does not ensure tha
petition will be granted.
If you have any. questions regarding procedures on the petition for review, please do not
hesitate to contact this office.
Sheila T. Reiff
Clerk of Supreme Court
2018AP001030 W
AP-8040, 03/2005 Statement in Support of Petition for Review No Motion Costs
Page 1 of 2
App- D
'
V
WISCONSIN COURT OF APPEALS
DISTRICT II
State of Wisconsin ex rel.
JOACHIM DRESSLER,
Petitioner,
Case No: 2018 AP 001030_-W
Racine Case: 1990CF584
v.
RACINE 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. Maryland1, State v. I, A Woman-Part
II2, McKinney v. Alabama3, and City ofLittleton, Colo. v. Z. J. Gifts D-44. As grounds therefore
Petitioner states:
Facts.....................................................................................................................
Petitioner is Entitled to a Writ of Mandamus............................................. ■•••......... ......
Petitioner Has a Clear Right To An Adversary Hearing and Prompt Judicial Review
1. Seizure of Expressive Materials Mandates an Adversary Hearing....................
2. Admission of Expressive Materials Mandates an Adversary Hearing...............
• The Duty to Enforce is Positive and Plain....................................................... .........
Petitioner Will be Substantially Damaged By Non-performance..............................
There Is No Other Adequate Remedy At Law...........................................................
Requirements For A Stay.................................... .........................................................
Threat of Sanctions........................................................................................................
Conclusion and Prayer for Relief..................................................................................
1 Infra, Freedman v. Maryland, 380 U.S. 51 (1965).
2 Infra, State v. J, A Woman-Part II, 53 Wis.2d 102 (Wis. 1971).
3 Infra, McKinney v. Alabama, 424 U.S. 669 (1976).
4 Infra, City ofLittleton, Colorado, v. Z.J. Gifts, 541 U.S. 774 (2004).
App. E
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4
5
5
6
11
13
14
15
17
20
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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 J*e Faces of Death5 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.
any
He did not take the witness stand at his jury trial. The record is void of
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: R117, 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:
‘Grade B” video (at best), is available at most video outlet^ It d^icts violence tmd is:fahy
5 The Faces of Death, a ‘
York, 333 U.S. 507, 510 (1948); U.S. v. Stevens, 559 U.S. 460
protected by the First Amendment. Winters v. New
(2010).
App. E
2
s~
7 Written materials, photographs, video tapes, or other materials including but not
sado-masochism porno***,.
f*
limited to
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, 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 m
about It) 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 bnefcase, 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 video apes,
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: Rll /:4j-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 prime 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 m a
position to do that. I am not being asked to do that.
^:
App. E
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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-PartII, 53 Wis.2d 102 (Wis. 1971).
[Ain invalid prior restraint is an infringement upon the constitutional right to
disseminate matters that are ordinarily protected by the Ffrst Amendment without
there first being a judicial determination that the material does not quality tor
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 tnal, the action
is a “procedural step
” in the criminal litigation. Martin v. 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 WI46 ^[10.
App. E
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T
V
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
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 v.
Maryland, 380 U.S. 51, 58 (1965). Therefore:
[Blecause 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
seizure.
adversary hearing before speech materials may be subject to
“For if seizure of books precedes an adversary determination of their obscenity, there is
free society to unobstructed circulation of
danger of abridgement of the right of the public m
i a
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:
App. E |
5
;•
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 ol
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 est^lis^d m an
adversary proceeding. Fort Wayne Books v. Indiana, 489 U.S.
,
(
(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 pennitted 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
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).
App. E
6
A decade later the Court ruled that
so massed as
“collections of stories of criminal deeds of bloodshed or lust
to become vehicles for inciting violent and depraved crimes” are folly 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:
[Wle think fair use of pictures and stories would be interdicted because
impossibility of die actor or the trier of fact to know where tins new standarfrfpiU
would draw the line between allowable and forbidden publications. ...
tales of war horrors, otherwise unexceptional might well be
s° ™^
as to become “vehicles for inciting violent and depraved crimes. Where a statute is so
to make criminal an innocent act, a conviction under it cannot be sustamed.
vague as
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
protected speech “and not be susceptible of application to protected
to apply only to un
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
and unlawful, the possibility of mistaken fact-finding - inherent in all
separating lawful
will create the danger that the legitimate utterances may be punished,” and “can only
litigation result in a deterence of speech which the Constitution makes free.” Id, at 526.
The Supreme
380 U.S.
Court artculated its strict procedural safeguards in Freedmant v. Maryland,
51 (1965) and repeatedly explained what is now unequivocally clear.
App. E !
7
We held in Freedman, and reaffirm here, that a system of prior resttamt runsafoulof
the First Amendment if it lacks certain safeguards East the burden of uKtitutmg
judicial proceedings, and of proving that the material is unprotected, must rest onThe
censor. Second, any restraint prior to judicial review
\
specified period, and only for the purpose of preserving the status quo. Thud,
prompt final judicial determination must be assured. ...
^ioris]dditemMon
'Southeastern Promotions Ltd v.
Conrad', 420 U.S. 546, 559-560 (1975). (Emphasis added)
Applying Freedman to Wisconsin, our Supreme Court declared that:
[Ain invalid prior restraint is an infringement upon the constitutional right to
disseminate matters that are ordinarily protected by the First Amendmenwithout 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 Fust Amendment
possible alternate common law or equitable in rent proceedings have been suspended. Id, at
109.
■
A statute that permits an interlocutory order that admits expressive materialsi mto
a criminal dial - where they could have evidentiary weight - “
authorizes an impermissible and unconstitutional prior restraint. In addition, the mere
issuance of the interlocutory judgment, even without its subsequent t^
ml’
constitutes an impermissible chilling of First Amendment ng-hts wherethcre has be no
prior adversary adjudication of obscenity.” Id, at 113-114. (Emphasrs added)
■
A statute that is interpreted to relieve the state of its burden of proving that the material is an
unprotected form oppression is unconstitutional. “Since tire public interest J^ffectM m
flie process of finding any matter not protected by the Fust Amendmenf the^tate >s
obligated to assume its burden of presenting a prima facie case, default or .not Id at
(Emphasis added).
.
Interlocutory orders not incompliance with the above are void - and are
The court specifically warned Wisconsin judges nat to enter such orders because
review. Id.
of their constitutional infirmity. Id, at 119.
-
The “strict procedural safeguards” the I, A Woman Court announced are jurisdictional. Id, at
110 and 121.
App. E
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The Freedman adversary hearing provides the constitutionally required element of scienter or
mens rae. Id, at 116.
■
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. v. Indoor Cultivation Equipment, 55 F.3d
are void.” Neylan v.
1311, 1317 (7th Cir. 1995). “Judgements entered contrary to due process
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 lega y
ineffective. ... The judgment may also be collaterally attacked at any tune m any
proceeding, state or federal, in which the effect of the judgment comes in rssue 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 censor’s refusal to
Freedman, at 58.
license signifies the censor’s view that a film is unprotected.
Accordingly, Wisconsin noted that the ruling it declared void “calls mto
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. “[Bjecause 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 - and it confers jurisdiction that empowers a
court to act.
App-E !
9
''4>-
After Freedman, Blount, and I, A Woman, Wisconsin judges lack jurisdiction - and are
simply not empowered to declare: “J guess I dun 1 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, R117:53).
Pornography is folly protected speech.
The trial court’s belief that “pornographic
materials ... might he 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 may be 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 FirstAmendment 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 delivery
...Regulations which permit the Government to discriminate on the basis of toe
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 toe Government bears the
burden to rebut that presumption... This is for good reason...
6 See Court v. State, 51 Wis. 2d. 683, 699 (Wis. 1971).
:
App. e
10
V
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 whe
attempted to restrict speech we would risk leaving regulations in place that sought
shape our unique personalities or silence dissenting ideas. When First A“end“e*
compliance is the point to be proved, the risk of nonpersuasion -operativemM
trials - must rest with the Government, not with the citizen. U.S.v. Playboy,
U S. at 817-818 (Emphasis added, internal citations and quotations omi e ).
The requirement of an adversary hearing, and the right to be firee 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 Piain
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 WI3, ^39.
Because lower federal courts exercise no appellate jurisdiction over state tribunals,
decisions of lower federal courts are not conclusive on state courts. US. ex rel Lawrence v.
Woods, 432 F.2d 1072, 1075-76 (7,h Cir. 1970). “[Alltbough 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.” Stale 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 m censorship. Lakewood v
Plat Dealer Publishing Co., 486 U.S. 750, 757 (1988). “It is settled by a longffine of
recent decisions of this Court that an ordinance which makes thepeacefolenoym
of freedoms which the Constitution guarantees contingent upon the unconbrolied 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 pnor restraint upon
enjoyment of those freedoms.” Shuttlesworth v. Birmingham, 394 U.S. 14/,
(1969).
i App. E
!
11
V
Second, a pnor restraint that fails to place limits on the time within which the
decisionmaker must issue the license is impermissible. Freedman, supra, at 59
decisionmaker
(striking statute on ground that it
v. Universal Amusement Co., 445 U.S.
restrained speech for an “indefinite duration. )
FW/PBSv. City ofDallas, 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
un
constitutional without the requisite procedural safeguards of appellate review.
restraint of this kind, it must provide strict procedural
If a state seeks to impose a
Maryland [supra], including immediate appellate review.
safeguards, Freedman v.
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. M.I.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:
App. E I
12
and immediate judicial oversight and
V
Freedman’s “judicial review” safeguard is meant to prevent -undue^delay, mdu g
judicial as well as administrative delay. ... Thus we read [FIf
“prompt judicial review,” together with similar references to Justice Brennan ^
opinion, as encompassing a prompt judicial decision
We presume that courts are
aware of the constitutional need to avoid “undue delay resuItDng] in the
unconstitutional suppression of protected speech.” FW/PBS, supra, 493 U.S. at 228
TftTfLittleton, cl 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).
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, 421 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
in which information might be used or disseminated. Sorrell v. IMS
subjected to restraints in
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).
App. E
13
V
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
734, 738-739 (2005). “[W]e take it as a
restrain petitioner’s speech, presenting
or other relief as warranted. Tory v. Cochran, 544 U.S.
given that the injunction here continues to significantly
an ongoing federal controversy.
See Dombrowski v.
.
Button, 371 U.S. 451, 432-433 (1963).”
pfister, 380 U.S., 479, 486-487 (1965); NAACP
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
Blount v. Rizzi, supra, at 418.
assume this burden.”
“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
First Amendment must be ones that ensure
McKinney v.
whether certain materials unprotected by the
“the necessary sensitivity to freedom of expression.
Alabama, 424 U.S. 669, 674 (1976) (QuotingFreedman, 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
materials introduced as criminal evidence in a
criminal trial. McKinney, at 676. Wisconsin
complies with these requirements:
App-E
forum, the obscenity vel non of expressive
14
[Blecause only a judicial determination in an adversary hearing ensures the necessary
sensitivity to freedom of expression, only a procedure requiring a Ju icia
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 protected
by 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. hid. 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 mterest
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 reas<^
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 face
outweighs the injury the defendant will suffer if the injunction is granted; and (5) that
injunction is in the public interest. Wil-Kar, Inc. v. Village of Germantown, 153
an
F.Supp.2d 982, 987 (E.D.Wis. 2001)
App. E
15
Judge Adelman explained the special considerations for a preliminary mjunction m 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 Biwaysi serves
the common good, the public interest also turns on the ments. 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 validity5 ’ 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. Deidav. City ofMilwaukee, 176F.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
content will ever be permissible. California cannot meet that standar . ■••L J
acknowledges that it cannot show a direct causal link between video games and harm
rCalifomial bears the risk of uncertainty, ambiguous proof will not
to minors,
' v. Entmt. Merck Ass’n., 564 U.S. 786, 799-800 (2011). (Citations
suffice. Brown
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.
I
App. E ;
16
'V
4-
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 or
trial, we require the Government to shoulder its full burden of proof respecting
the less restrictive alternative argument, rather than excuse it from domg so.
Ashcroft v. A.C.L.U., 542U.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 no
t 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 sanction7 against future filings seeking First Amendment relief.
2004AP1497, 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 113, citing Dressier v.
McCaughtry, 237 F.3d 908, 912 (7th Cir. 2001). It asserted that §2254 habeas corpus demal
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.
7 State v. Casteel, 2001 WI App. 188, T]25
App. E
i
, 17
“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.
489.
Id, at
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 proceedmg m 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
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 limi
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 1.14 {QuotingBlount 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
\PP-E
18
V
review, and are
by definition “too little and too late.” Freedman,
at 57. This court itself
avenues are exhausted would be an
explained that a “‘brief period within which all judicial
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.
law of the case
While a decision on a legal issue by an appellate court establishes the
which must be followed in all subsequent proceedings, see State v. Stuart, 205
WI 47 fl, 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 junsdiciton over
state criminal trials whatsoever. U.S. 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 U.S. 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, 429
433 (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
App. E
19
S
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 lawfully 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 ongomg
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 folly
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.
«[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 quality 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
App. E
| 20
or other
V
* iu
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
no
t protected by the First Amendment, the [state] is obligated to assume its burden of presenting
aprima facie 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
App. E |
21
■V
*v
and observed thatTa_ll^_tHree
tear marks, fold ,
color were compared,
tb t ^\47-90?fJ^r;o^I!ytSpoki9:^hLS|ikp^^
who stated that
c ojfBany^oJk^ |?GP Wo ld^thS?a§3vi* ment ioned yellow plastic
School of Brookfield,
bags to _ the
^ed to the Special Agent that
Wisconsin; he iurtner
nh?prved that the
on
ft o rfc aboiitjr..10~ 1JL. 89a
Your affiant states that he personally spoke
§§> South
with AlbertsLuetzow, owner of Luetzow;■_!hdus_tri.
^
'the Milwaukee County
35)
^^212S°"fSh°ce6'M?iwauSL,.Wisconsin, who,
and
stated that
ihe^^dSe?:? --tlct^ing process
and distrabut
plastic bags;
bag that the Janes'!Madden torso»“
^IsMactures,
and that the bag
il:‘: nor common to the midwest area of the country,
36)
Your affiant states that Special Agent Luell
^ho^al S3 his
6-27-90
-i-r^rL-Jdi^nenr^s^rj^rafjLjcnse
them for several months, ne rurvi
but had not seen
had been to his residence
stated to the Agent that no one
of the night of the disappearance of James Madden;
t ihS Le pbrSLnV:Shii; wir Kathionn DrSsslerCoft
37)
reports that he psbSP-h^- Y P
Kaffenschmit whereupon
1Z2e:l°rtl tie Jher5hSsbandr.-Joechi»: Dossier .has
1 templete"Jef S ahnee video ; apes >:,tit;ed ;:the baces^f
App. E i Exh. A
}
‘ "V.
actual murders of human
Death" that she believes to depict
beings;
in his experience anc^
38) Your affiant states that would be reasonable for
"o««onS wiere thoSa pJrts were found due to the
located
near or
•
•
r _ 'h-iflden buried or otherwise concealed y
,ICt“ 15 h din ir^round buildings, outbuildings
perpretrator
under his control in an attempt to
garages, or areas
conceal said evidence from discovery by others;
affiant further states that the clothing
39) Your
Madden and the personal items
believed to be
by James Madden have not
believed to have
been located;
40) Your affiant relies upon the staJ:eman^ °f Blair
Cassell, Allen Bishop, Mary Madden James L. M
■
ssrirpfflrknowledge.
WHEREFORE, YOUR AFFIANT prays that a search warrant be
5SSSi“D«:.!«" said property located at 11739 West
App. E
! Exh. A
y.
i
inscribed, blue polo shirt;
3. Personal possessions of James Madden_ including but
not limited to a red plastic-type folder/clipboard,
_
brochures with "Citizen for a Better Evironment ^P^nted
on them, various personal checks made payable to Citizen
for a Better Environment", Plastic ID card m the name of
James Madden, Wallet or other personal identification o^
items with the name of James Madden or "Citizens for a
Better Environment" written or printed on them;
4 . Yellow plastic bags of approximately 33 gal. size
5. Knives, scalDels, cutting tools, saws or any other
devices capable of cutting or sawing human tissue or bone;
6. Firearms, ammunition;
7. Written materials, photographs, video tapes, or
including but not limited to
otherr materials
___
sado-masochism pornography, "snuff films" depicting
torture or death scenes;
8 . Ropes, binding materials, or any other similar
type devices capable of binding hands or feet;
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
curtilage, and
warrant be issued to search said premises,
_
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.
, 19 9 O •
/)
.
'
Dated
<Judge of Circuit Court
Branch ? _
APP. E
Exh. B
"V.
When the District Attorney talks about
1
identification, the basis for that identification again is
we're looking for a person who has this propensity, and she
)
4
cites something from some publication and a little bit by
5
the pathologist, who I don't know whether he's an expert in
6
homosexual killings or not.
7
occur in this jurisdiction, but I don't think counsel's
8
argument and the fact that she has little, evidence allows
9
any of this in.
THE COURT:
10
1
)
Thank you.
We'll take about a
I am going to read over the facts
11
ten-minute recess here.
12
and the law again in the Ev.ervs_ case, and I also want to take
1?
a.look at the items that Mrs . Weber wants me to take a look
1.4
at.
10
about ten minutes.'
I will take those into chambers with.me and be back in.
MR. MATHIE:
16
Judge, I’d also, ask you to
consider State v. Friedrich
17
t
I don't know how many of those
1?
THE COURT:
All right..
19
HR. MATHIE:
And the Snraggin case.
20
'give you. the cite to that.
21.
THE COURT:
22
I have those cases m mind,
c:
ano.
also I have them.
Okay.
MR, MATHIE:
24
I w i 11
Thank you.
(Recess had.)
THE COURT:
All right.
The rec o rd will show
43
‘
App. E ; Exh. c
■Kin
©43
V-
i
that the appearances continue as they were, that we have
l
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
4
)
i
.i
on the placards and the six
paperback books that. w e r e presented, and also I have reao.
C
i
that in-
6
some of the cases, primarily the Evers, case that was
7
referred to by the defense.
8
State should be allowed to offer information into the record
9
that consists of video tapes, and as referred to in the
I#
defendant's motion, collected published materials that some
11
of which were■mentioned orally on the record and others
12
which I was able to review.,
•1 O
evidence is relevant, number one; whether or not the State s
The issue is whether or not the
The issue is whether or not the
14
argument that this is Whitty type evidence, evidence of
15
other acts or wrongs , applies here; and whether or not
16
analysis leads to the admission of -this type of evidence,
17
It's interesting to note that among the offeree
•
■ 13
testimony of the State would be the testimony of an expert
19
who in his opinion, as I understand the offer of proof m a
(5
statement, would rely on naving access to these materials.
?1 '
is that not correct?
~ ?•
MS. WEBER’
didn’t need access.
'4
•n c
He hasn't had access and said he
It's the types of materials that go to,
the conclusions.
THE COURT:
So he's aware of the types of
\
44
App. E
| Exh. C
•Kill
V
that's the test
whether it's prejudicial or even •harmful to
the defendant, but. whetner Oi
not it's probative value is
effect and that the probative
more than the prejudicial
t
va 1 ue siionlu come into the record.
4
I also recognize the statement of tne State
7
with it based upon the facts which have
am inclined to agree
The
been orally stated as offers of proof on the record.
ft
the defense a weak
State's case is in fact by agreement by
•j
case.
10
for the presentation of t.Q'type of evidence is important.
1.1
State's case
6
me,
*! ~i
i
/.
15
16
the State's case would in fact be significantly weakened,
17
and that is also, as I have stated before, evidence whicn is
IB
relevant to the issues of intent, plan, motive, method of
IB
operation and so on .
20
njrties have discussed in their arguments with respect to
Without reaching ■ the elements mac -..he
**V O
t. o
avs ence of mistake and so on, it .also goes, I think,
identity based upon the state of mind of the defendant,
24
with the issue whether or not
At any rate, dealing
ue
the prejudicial effect far outweighs the probative va:
,.
-i
it’s up to them, but it's important to the State's case
mind , and. therefore, I think that's a factor to be
I think without the evidence it's clear that .
considered.
14
)
and whether the jury accepts it is not up to
in order for them to meet their burden of proof in their
)
)
It's a circumstantial case , and that, therefore, this
.L
am satisfied that the probative value is sufficient ss t
51
App. E Sxh. C
’pane
X
*1
)
1
"i
?.ct is — yes, in my mind one of the v?a/s 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
4
these.materials collectively give evidence of a method of
5
operation, a thought, a plan on his part and so on ,
MR. MATHIS:
I
1
Court is relying upon as a prior act?
THE COURT:
8
Q
!
10
Is that the only act that the
the record obviously.
Well, there's more than that in
At this point there's admissions
apparently to police officers of his homosexuality.
corn e into the record in this motion nearing*
That's
So that's part-
of the record in my state of mind when reviewing the record
1"
as a whole.
)
1?
that are at issue on the motion, is the only prior act raai
It
the Court's relying upon the possession ox those maue-iaio:
Wei 1
certain!y as the statute
17
THE COURT:
I8
defines the terms, there's no crime here.
19
agreed to that.
71
jn the possession of these materials.
know .
)
With respect to the materials
MR. MATHIE:
14
*?>
We have all
The State'hasn't suggested there's a crime
Other wrongs, I don't
I guess I don't want to get into litigation whetne,:
or not some of that material constitutes pornographic
ma t e ria 1 s that might be prohibited in terms of its
1i
-J
possession, although again that's a matter of state and of.
rational import, so I am not making any judgment as to
C O
App. E j Exh. C
Kin
i
*>
1
whether or not those are crimes to possess the materials,
don’t think that I am in a position to do that.
I
I am not
being asked to do that.
i
I am not wondering whether
MR. MATH IE:
4
I am wondering is the only
5
they're crimes, wrongs or acts,
5
act or crime or wrong, whatever you define it
*7
possession of those materials, is that what the Ccuj. u s
is the
ruling is?
.)
to
THE COURT:
Yes .
MS. WEBER:
Possession being al 1
THE COURT:
Yeah.
MS. WEBER:
--in terms of I collected it, J.
en c omp as sing--
i 1
It
i
i
I put it all together in one place,
14
cut it out,
15
Obviously that’s an attempt,
16
into one word:
7
larger forum.
-t
\
Has the Court made any finding
19
as to the time of this collection in order to come to^its
13
ruling?
THE COURT:
)
I am not sure why, to put it.
I think that act of possession connotes a
MR. MATHIE:
13
I viewed it,
I can't obviously from those
'1 ~:
materials in terms of the amount of time over which it was
15
compi1ed.
14
MR. MATHIE:
Or when it was compiled.
C
THE COURT:
There's nothing in the record
-1
}
54
f
i
\
I
App. E
Exh. C
ft i n d5M
■*'.4
obviously to allow me to do tnat.
J.
n
MR. MATHIE:
Or when it was last compiled.
THE COURT:
I don’t know.
It’s obvious
4
though-it was in his possession based upon the facts that
r._
there was a search warrant at the home and during that
search warrant execution these items were recovered.
-7
say I looked at some of those materials, and it’s clear
?.
there are items- clipped from news magazines.
O
I didn't look for dates.
i
_ .i.
It’s cl ear--
There may be dates on some of
I didn't look for dates.
those things in the briefcase.
)
I can
I
am sure the books there have dates of publication in them.
I don't know whether the magazines
-
h
There are magazines.
■>
1-
-1
which show male homosexuality had dates,
I know there's a
14
number of photographs with it looks like summer activ3.•>-i<= s
1o
a lot of young men, as Mrs. Weber referred to
in swimsuits.
i1d say as I look at those photographs they appear somevnat
but it doesn't tell me when or what circumstances
1."
r. ated
1 O
they came into the possession of the defendant.
Okay.
MR. MATHIE:
'■I-
And the Court has no idea
what the circumstances are that these things came into the
defendant's possession..
THE COURT:
“j "•
Quite obviously there's nothing
in the record that tells me that.-.
MR. MATHIE:
y\
Okav .
And is the Court ruling
that all of this can come in in the State’s case in chief?
55
1
App. E
Fvh. C
1^117 p55
*1
1
whether or not this was a case of homosexual overkill. If only that information
2
came into the record regarding the conduct of the defendant with respect to
3
possessing materials and the characterization of this crime by an expert, it’s
4
clear, I think, the State could argue from inference that there was a
5
homosexuality on the part of the defendant. He possessed those materials.
6
They clearly depict homosexual activity. And it’s also clear, I think, that an
7
expert would testify that evidence in his mind and his possession would, in
8
fact, support his opinion that this would be an act of homosexual overkill. I
9
think that from that and that alone it’s safe to inquire of the jurors with respect
10
to the whole topic of homosexuality even if the Court does not allow the State
11
to produce that other evidence which is the subject of the written motion most
12
recently filed.
13
So that again the Court will not modify its rulings on the materials in the
14
briefcase and the testimony of Dr. Jentzen. Those decisions and rulings by the
15
Court will stand. We’ll take up the other Whitty evidence that the State wishes
16
to offer prior to opening statements and we’ll proceed at this point with the
17
voir dire process and the jury selection. Your motions are noted for the record
18
and are denied.
19
With respect to the jury selection process, let me just run by that process
20
briefly. When we go into the courtroom we will first of all have all the jurors
21
. stand to be sworn. WTe will then call the roll. I’ll call it myself to make sure
22
all of the jurors are in the correct seats so we all have them right in our seating
23
charts. Obviously that’s important. Then I’ll ask that the case be introduced
24
by having Mrs. Weber first introduce herself, the members of her office, her
25
witnesses and to read the Information indicating to the jurors what the charge
"1
App. E
27
Pvh n
V
liked--in these pictures that he collected you will see that
2
he liked bare chests, bathing suits and what I am going to
2
call, for lack of a more sensitive term, pictures of men
4
with bulges in their pants.
5
collection.
6
weren't familiar with these things.
7
for an otherwise inexplainable and unexplainable event.
3
would do this and why?
9
of thing, but by all outward appearances is Hr. Neighbor,
10
This was all part of one
Obviously his friends didn't know about and
It provides a motive.
Who
A man who's fascinated by this sort
husband and father.
11
Dr. Jentzen provides other evidence that you will
12
hear.
13
study of death, the forensics of it and death and the cause
14
of death, and with that forensic pathology that's bringing
15
the legal part of the investigation of death into cause of
16
death, he has seen, he knows of, and there is literature to
17
support a concept called homosexual overkill.
IS
part of it is the type of injuries you see to the body of
19
James Madden.
20
and suggests some other motivation, and this is consistent
He will testify that in the area of pathology, the
The overkill
It's more than is necessary to cause death
with deaths caused by homosexuals in their panic or rage or
22
23
whatever motivates this type of death.
Jeff Jentzen will testify that based on the
24
stomach contents, Jim Hadden died shortly after Marilyn
25
Meyer saw him because if he last ate at 4:00 or 4:30,
that
47
App. E
ft17>4 d47
*$'■
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 (7th 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,
6L ,
Joachim E. Dressier, 230174
Petitioner pro se
Waupun Correctional Institution
P.O. Box 351
Waupun, Wisconsin 53963-0351
cc: Racine County Clerk of Court
App. F
THE SUPREME COURT OF WISCONSIN
State of Wisconsin ex rel.
JOACHIM DRESSLER,
Petitioner,
Case No:
Ct. App. No: 2018AP001030W
Racine Case: 1990CF584
v.
RACINE COUNTY CIRCUIT COURT,
RACINE COUNTY DISTRICT ATTORNEY, and
WISCONSIN COURT OF APPEALS, DISTII,
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.
Maryland1, State v. I, A Woman 2, McKinney v. Alabama 3, and Littleton v. Z. J. Gifts 4.
A Supervisory Writ of Mandamus Is Required To Compel Compliance With This Court’s
Binding Mandates................................................................ .............................................
Facts....................................................................................................... ...........................
Petitioner is Entitled to a Writ of Mandamus......................................................................
Petitioner Has a Clear Right To An Adversary Hearing and Prompt Judicial Review.....
1. Seizure of Expressive Materials Mandates an Adversary Hearing.........................
2. Admission of Expressive Materials Mandates an Adversary Hearing.....................
The Duty to Enforce is Positive and Plain......................................................................
Petitioner Will be Substantially Damaged By Non-performance....................................
There Is No Other Adequate Remedy At Law.......................... ;.................... ...............
Requirements For A Stay.................................................................... ..............................
Mandamus In The Court Of Appeals Is Impractical...................... ....................................
Conclusion and Prayer for Relief.................. ...................................... .............................
1 Infra, Freedman v. Maryland, 380 U.S. 51 (1965).
2 Infra, State v. I, A Woman-Part II, 53 Wis.2d 102 (Wis. 1971).
3 Infra, McKinney v. Alabama, 424 U.S. 669 (1976).
4 Infra, City ofLittleton, Colorado, v. Z.J. Gifts D-4, 541 U.S. 774 (2004).
App. F
2
3
5
6
6
7
12
14
16
16
19
23
-v-
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. 1971) (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.
2
App. F
* J+
Office of the Clerk
Wisconsin Supreme Court
PO Box 1688
Madison# Wisconsin 53701-1688
St. ex rel Joachim Dressier v. Racine Circuit Court et al.
Appeal No. 2018AP001030 W
July 27 # 2818
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 for a 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,
and conformed it to meet — §809.71# Wis. Stats. I believe that
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.
Joachim Dressier 230174
Petitioner pro se
Waupun Correctional Institution
PO Box 351
Waupun, Wisconsin 53963-0351
| App. G |
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.