Judge Presiding: HONORABLE EUGENE A. GASIORKIEWICZ
Date of Hearing: October 3, 2018, Leslie M. Johnson, RMR, CRR, CPE Official Court Reporter, Branch 2
APPEARANCES: ROSE & ROSE, by Terry Rose, and Attorney Mark Hinkston, appearing for the Plaintiff.
MEISSNER, TIERNEY & NICHOLS, by Michael Cohen, and Nicole Larsen, Assistant City Attorney, appearing for the Defendant.
Plaintiff present in person.
THE COURT: This is the matter of Sandra Weidner versus City of Racine, case number 17-CV-1644. Good afternoon. I am Judge Gasiorkiewicz. Appearances, please. MR. ROSE: Your Honor, Sandra Weidner appears here in person. She is represented today in this contempt matter by Terry Rose, Rose and Rose Attorneys, Kenosha. MR. HINKSTON: Good afternoon, your Honor. Attorney Mark Hinkston. I had represented Ms. Weidner in the underlying proceedings, and I'm also representing her on the pending appeal. THE COURT: Welcome. MR. COHEN: Good afternoon, your Honor. Michael Cohen, Meissner, Tierney, and Nichols of Milwaukee recommending the City. Also in court to my immediate right is Nicole Larsen, Deputy City Attorney. THE COURT: Welcome. MR. COHEN: Thank you. THE COURT: The unfortunate reality is here we are here for a motion brought by the City for contempt against Ms. Weidner. This is, as you know, a sui generis type of situation. Contempt hearings are unique situations under the law. The Court first wants to engage with both counsel, all counsel here, with respect to their agreed-upon rules of engagement, if you will, relative to the various shifting burdens that exist in this matter. I'll first start with the moving party, Mr. Cohen, then go to Mr. Rose, and then to Mr. Hinkston. Mr. Cohen? MR. COHEN: Thank you, your Honor. We believe that we've made a prima facie case. The burden is on Ms. Weidner to show that her conduct was not contemptuous. I do believe that if Ms. Weidner is not intending to testify, then I would like an opportunity to make a further record with her on the stand and call her adversely. THE COURT: Mr. Rose? MR. ROSE: Thank you, Judge. THE COURT: Mr. Rose, you don't have to stand up for me. You can stay seated. I'd appreciate if you'd speak directly into the microphone.
MR. ROSE: All right. Your Honor, we take issue with the proposition that Mr. Cohen states that they have made a prima facie case. They merely submitted to the Court the position that they are assuming that she is the one because of a statement that she made to the newspaper that was in question. However, that statement does not mean that she is the one that delivered this Court's decision and order to the news media. I would ask the Court to take a look, as you probably have, to one of the briefs that was submitted here by Mr. Cohen, the first note which says, be clear -- THE COURT: Don't read it. These documents are sealed. I told you that multiple times. I told Ms. Weidner that, Mr. Hinkston that. I know that will make this process more difficult. I've read the brief, I understand what you're talking about, Mr. Rose, and the footnote. The Court understands that position. MR. ROSE: All right. I'm referring to footnote No. 1. THE COURT: I understand. MR. ROSE: And would certainly incorporate that footnote into the argument without reading it and quoting it as long as the Court understands what I am talking about. Therefore, Judge, it is our position that they have got to present testimony, and I'm not going to discuss how they would do that, but I don't think a prima facie case has been made. THE COURT: Mr. Hinkston? MR. HINKSTON: I have nothing further to add regarding that, your Honor. THE COURT: The Court is mindful of the footnote that has been discussed by Mr. Rose in this matter, as I'm sure all counsel are. Clearly, the law in Wisconsin is the burden lies with Ms. Weidner as to why this was not contemptuous action on her part. That being said, the Court is deferential to the statement of Mr. Rose relative to the footnote that essentially was by Mr. Cohen whether or not this disclosure came from her or from some other source. So with respect, I think it's well-founded. So I think an initial showing regarding the prima facie case must be made by the City in this matter. Then there will be a shifting burden to Ms. Weidner to indicate that any action or disclosure, if there being any here, was not contemptuous on her part. So that's how we will proceed here today. Is everyone on deck with that? MR. ROSE: We are. MR. COHEN: That's fine, your Honor. THE COURT: Mr. Cohen, to you, please. MR. COHEN: I'd like to first call Mr. Hinkston adversely. THE COURT: All right. MARK HINKSTON, sworn under oath, testified as follows: THE COURT: State your first full and last name for the record. MR. ROSE: Judge, we'd like to object to Mr. Hinkston being called here as a witness, as he is attorney for Ms. Weidner, and I assume that opposing counsel will attempt to show somehow that either his conduct or his client's conduct is the basis of this contempt, and I do not believe that you can call a lawyer to prove that case. THE COURT: I am not sure if you're saying that's privileged, attorney-client privilege. Is this what you're claiming here? MR. ROSE: It would depend upon what was – He hasn't asked questions, so I don't know. It might go to that issue. THE COURT: I am going to give some leeway here. Your objection may well be noted and may well have merit, but it must come on a question-by-question basis. Mr. Cohen? MR. COHEN: Permission to lead? THE COURT: Absolutely. So everyone understands, he's been called adversely. So adversely is a position where you can ask cross examination questions rather than direct questions. It is an abhorrent process, but it is allowable in civil cases. So permission granted to lead. MR. COHEN: Thank you, your Honor. DIRECT EXAMINATION BY MR. COHEN: Q Mr. Hinkston, you have represented Ms. Weidner throughout these proceedings, correct? A Yes. Q And you are aware that the Court has entered orders in this case sealing all pleadings as confidential, correct? A Yes. Q And you are aware that the Court overruled your objection to the sealing of the decision and order and ordered that that decision and order also be sealed, correct? A Correct. Q You're familiar with the newspaper article that was run in the Milwaukee Journal Sentinel both on line and in print involving this case? A Yes. Q And you read that article, did you not? A Yes. Q In fact, you and I had a discussion about that article, did you not? A Yes. We didn't discuss the article in detail, but you did communicate with me after the article was published. Q During that communication, I contacted you and said to you, there are only five people that are aware of the decision and order. That would be you and Mrs. Weidner, myself, my client, Mr. Juedes, my associate and, of course, the Judge, and Court, correct? A Right. MR. ROSE: Objection, hearsay. THE COURT: Overruled. You may answer. Q Then I asked you the question. So tell me, was it you who gave the decision and order to the court reporter or your client? MR. ROSE: Objection, attorney-client privilege. MR. COHEN: I'm asking what I asked him. THE COURT: Overruled. You may answer. THE WITNESS: Yes, you asked me that. Q You told me you did not, correct? A That I did not provide it, correct. Q And you told me you would not condone any violation of this Court's seal orders, correct? A Correct. Q You, in fact, did not disclose the decision and order to the court reporter or anyone other than your client, correct? A Correct. MR. COHEN: That's all I have. THE COURT: Any clarification, Mr. Rose? MR. ROSE: No. THE COURT: Thank you, sir. You may step down. Mr. Cohen? MR. COHEN: Thank you, your Honor. The City calls Ms. Weidner adversely. THE COURT: Ma'am, right up here, please. SANDRA WEIDNER, sworn under oath, testified as follows: THE COURT: State your full first and last name for the record, please. THE WITNESS: Sandy Weidner. THE COURT: You may proceed. MR. COHEN: Thank you, your Honor. DIRECT EXAMINATION BY MR. COHEN: Q Ms. Weidner, you are a sitting Alderperson for the City of Racine, correct? A Yes, I am. Q That's been true for the entirety of this case. Is that right? A That is correct. Q You are aware that the Court entered several orders in this case sealing all pleadings as confidential, correct? A Yes, I am. Q And you are aware that the Court reviewed the attorney-client communications that were the subject of this lawsuit and rendered a decision and order, correct? A That is correct. Q And you are aware that your lawyer objected to the decision and order being sealed as confidential, correct? A Yes, I am. Q You are aware that, over your client's objection after hearing, the Judge decided to seal the decision and order, correct? MR. ROSE: I object to the form of the question. I think he said something to the effect, your client. She is the client. MR. COHEN: I'd be glad to rephrase the question. THE COURT: Rephrase, please. Objection sustained. Rephrase. Q You are aware that, over your lawyer's objection, the Court, after hearing from counsel, decided to seal the decision and order, correct? A I'm not really clear on the question, because I thought I'd already answered that question so -- Q Just a little different question. It directly relates to the Court's decision and order. Do you understand the Court expressly ordered that that decision and order be sealed, correct? A Yes. Q And then you through counsel filed an appeal in this case, right? A Yes. Q And one of the issues you are appealing is the Judge's decision to seal the decision and order, correct? A Correct. MR. COHEN: May I mark an exhibit and approach the witness, your Honor? THE COURT: Yes. Please show it to Mr. Rose and Mr. Hinkston first. (Exhibits No. 1 and 2 marked for identification). MR. COHEN: May I approach the witness? THE COURT: Of course. Q Ms. Weidner, I show you Exhibits 1 and 2. Have you seen these documents before? A Yes, I have. Q Okay. Exhibit 1 is an on-line article from the Milwaukee Journal Sentinel about this case. That has a nice picture of you right in the front, does it not? A Yes, it does. Q And Exhibit 2 is another article from the Milwaukee Journal Sentinel from the print version that appeared in the newspaper the next day, correct? A Correct. Q Isn't it true that you were interviewed by the reporter who authored this article, Bruce Vielmetti? MR. ROSE: Judge, I am going to, and my client will confirm, interpose a Fifth Amendment objection. THE COURT: A Fifth Amendment objection? MR. ROSE: Correct. THE COURT: Based on what? MR. ROSE: I think this is foundational to what could very well be incriminating testimony, which he's leading up to. THE COURT: Counsel, approach the bench for a second. (Discussion at the bench off the record). THE COURT: Thank you. So for the benefit of the public, general public here, from time to time, counsel need to approach on what we refer to loosely as a sidebar regarding issues in this matter. There was an objection made by Mr. Rose with respect to Ms. Weidner availing herself of her Fifth Amendment right. Fifth Amendment right protects you from potential criminal exposure. Initially, the pleading by Mr. Cohen in here was for civil contempt but also a potential referral to the District Attorney's Office for criminal contempt under Wisconsin Statutes. There are two types of contempts. There can be a civil contempt, and there can be a criminal contempt. They bear different sanctions or penalties. One is criminal, and one is not criminal. There is some case law in Wisconsin that, even though it's called a criminal contempt, it is not a criminal action. But, be that as it may, the Court indicated to both, all parties here, all lawyers, that this Court was not going to consider a criminal contempt allegation against Ms. Weidner for the allegations made in the complaint and, at that point, Mr. Cohen withdrew his request for a criminal contempt referral to the District Attorney's Office. I will invite counsel to place on the record now if there are any inaccuracies or deficiencies with respect to the sidebar. Mr. Cohen? MR. COHEN: No, your Honor. Other than the City's position, we were leaving it up to the Court as to whether it would pursue punitive sanctions under the contempt statute. THE COURT: You're correct in that regard. Thank you for that correction. The Court indicated to all lawyers here that the Court was not going to contemplate or entertain any criminal contempt referral. Mr. Rose? MR. ROSE: I have no comment. THE COURT: With respect to the sidebar only? MR. ROSE: Right. MR. HINKSTON: No further comment, your Honor. THE COURT: Thank you. With that basis, back to Mr. Rose with respect to the availing of the Fifth Amendment right here. MR. ROSE: Am I correct counsel is pursuing the question or not? MR. COHEN: Of course I am. MR. ROSE: Our position is still the same. Shall I state why? THE COURT: I am sorry? MR. ROSE: Can we approach the bench, and I will tell you why? THE COURT: Of course. (Discussion at the bench off the record). THE COURT: All right, the record should reflect that there was a sidebar. After review of the sidebar, the Court is of the opinion that this need not be done by sidebar, that it would be -- The best practice here would be to have the situation and the argument of Mr. Rose relative to his position of continued taking of the Fifth Amendment be placed on the record. So, Mr. Rose, to you. MR. ROSE: All right. Thank you, Judge. Our position in this case is that the request of the City of some $15,000 amounts to a penalty or comparable to a fine. Whether we call it a civil forfeiture or not, it is disproportionate to the so-called harm imposed. Even if the City is able to establish that the decision and order were given to a court reporter who published it in the newspaper, that there is no showing here of any kind of repeat performance or conduct on her part so that if the Court imposed such a fine, or penalty, or forfeiture on her, that this is very comparable to what one would do in a civil and a quasi-criminal such as an ordinance violation or substantial fine in many criminal cases. So our position is, she has a right to invoke her Fifth Amendment right. THE COURT: Mr. Hinkston, anything you wish to add? MR. HINKSTON: Nothing further, your Honor. THE COURT: Mr. Cohen? MR. COHEN: Your Honor, the City has sought a remedial sanction under 785.01. That is not a criminal penalty, it is not a fine. Mr. Rose has not cited any cases in which a court in Wisconsin has characterized a remedial sanction as a criminal penalty. This is a civil action. I am unaware of any such cases, and he is premature in arguing on the merits as to what an appropriate sanction is. His client is not entitled to a Fifth Amendment right with respect to a remedial sanction under a civil statute. THE COURT: Any further remorse, Mr. Rose? MR. ROSE: Just the case that I showed to the Court on the sidebar, the case of Christensen versus Sullivan, which is a Supreme Court case of 2009 on appeal from the Milwaukee County Circuit Court case cited at 320 Wis.2d 76. THE COURT: Standing from what proposition, sir? MR. ROSE: It does stand for the proposition that the remedial sanction or penalty is discretionary with the Court, and it is not required. THE COURT: The Court at the sidebar indicated that any imposition of contempt or any potential sanction relative to contempt is discretionary on the part of the Court. The Court has no dispute with that statement of the law, and that is the law, and that is within my sound discretion. Further, it is within my sound discretion as to whether or not any amount, one, first of all, any harm has been shown and, two, what would a potential sanction be to alleviate any harm that might be shown by the City in this matter, so your statement with respect to any awarding of $15,000 is woefully premature and really without merit. The Court is of the opinion that this is totally, and Wisconsin law is quite clear on this matter. Civil contempt or contempt proceedings, non-remedial contempt proceedings as we have here are civil in nature, purely civil in nature. If she avails herself of a Fifth Amendment right, the Court does not believe she has the right to do so, but there will be an adverse inference that will flow from that under black letter civil law in this state. So I then turn to you. You continue to have her avail her Fifth Amendment right? MR. ROSE: Yes, it's a personal right, so she's got to confirm that on the record one way or the other. THE COURT: All right. Your lawyer cannot invoke this right for you. I am sorry, Ms. Weidner. I have these computer screens here. He cannot invoke your right. He is absolutely right that it is a personal right to you. The right is attended to criminal matters in the state. You've heard me testify that this matter is not a criminal matter, it is a civil matter, that there is no criminal sanction awarded to you. The Court discounts the argument of Mr. Rose that any fine that might be levied against you, which the statute allows for if indeed contempt is proven, is a quasi-criminal matter or criminal sanction. It is not. There is no law to that effect in this state. So, with that in mind, I need to ask you, ma'am. Do you wish to avail yourself of the Fifth Amendment right here, yes or no? THE WITNESS: Yes, I do, your Honor. THE COURT: It'll be a tendered negative influence with respect to that that's drawn from the civil perspective. Mr. Cohen, you may proceed. Q Ms. Weidner, prior to these articles being published on September 19 and September 20, 2018 by the Milwaukee Journal Sentinel, isn't it true that you spoke to thereporter, Bruce Vielmetti, about this case? MR. ROSE: Objection, irrelevant. THE COURT: Overruled. THE WITNESS: I invoke my Fifth Amendment privilege. Q Isn't it true during that discussion, you disclosed decisions of this Court that were ordered sealed by this Court? MR. ROSE: Object -- I am sorry. THE COURT: You can have a continuing line of objection if you wish, Mr. Rose. MR. ROSE: I leave it up to her. THE COURT: All right. Objection is withdrawn. You may answer. THE WITNESS: I invoke my Fifth Amendment privilege. Q Isn't it true, ma'am, that during that interview with him or thereafter, you gave the reporter a copy of this Court's decision and order that was sealed as confidential? A I invoke my Fifth Amendment privilege. Q Isn't it true, ma'am, that you criticized this Court about its decision and order, which you didn't care for, right? MR. ROSE: I object to that. She has a Constitutional right to do that, First Amendment right to criticize. She is a public official, you are a public official, and people in the community are. They have that right, so I would say this is irrelevant. THE COURT: Here is how it works in my courtroom, Mr. Rose, and I know you haven't been here before since we last met in felony rotation. I don't take narrative arguments unless I need them. MR. ROSE: All right. THE COURT: Purpose of this question? MR. COHEN: Now I've lost track of the question. (Question read back by the reporter). THE COURT: The objection will be sustained. Q Ma'am, isn't it true that you told the court reporter, quote, I'm willing to defy the Judge's order that it's sealed, end quote? MR. ROSE: Objection, irrelevant. THE COURT: Overruled. THE WITNESS: I am sorry, your Honor, but he stated the court reporter. THE COURT: All right. MR. COHEN: I'll restate the question. THE COURT: Thank you, ma'am, for that correction. Q Isn't it true, Ms. Weidner, that you told -- Ms. Weidner, that you told the newspaper reporter, quote, I'm willing to defy the Judge's order that it's sealed? MR. ROSE: Same objection. Q Correct? THE COURT: Overruled. You may answer. THE WITNESS: I invoke my Fifth Amendment privilege. Q If you look at Exhibit 1, in the third paragraph of Exhibit 1, there is a quote there from you that reads, quote, to me, it's a huge issue and, quote, said Sandy Weidner? MR. ROSE: I am objecting to this, Judge, hearsay. MR. COHEN: Yet -- THE COURT: Overruled. Please, Mr. Cohen. When an objection is made, I need to rule on it. Objection is overruled. Q Quote, I am willing to defy the Judge's order that it's sealed, end quote. Do you see that? A I do. Q And that's a statement you told the reporter, correct? MR. ROSE: Objection, irrelevant. THE COURT: Overruled. THE WITNESS: I invoke my Fifth Amendment privilege. Q At the time that you made your statements and gave a decision and order to the newspaper reporter, you were fully aware that one of the issues you were raising on appeal was the unsealing of the decision and order, correct? A I invoke my Fifth Amendment privilege. Q So basically, Ms. Weidner, you took matters into your own hands and did not wait for the Court of Appeals to rule on whether the Judge's decision in this case to seal the decision and order was appropriate and decided to give that decision and talk about it with the newspaper reporter, correct? MR. ROSE: Objection, argumentative. THE COURT: Overruled. You may answer. This is adverse cross examination. THE WITNESS: I invoke my Fifth Amendment privilege. Q You are aware that on Friday, September 21, the City filed a motion for sanctions against you? A Yes, I am. Q And you are aware that that motion for sanctions was filed under seal pursuant to the prior orders of this Court, correct? A I'm not sure about that. Q On Monday, September 24, 2018, the next business day after the motion was filed, there was an article written by Associated Press Reporter, Todd Richmond. Do you know who that is? A I know of him, yes. Q Did you speak with him about this case? A I invoke my Fifth Amendment privilege. Q Did you tell Mr. Richmond that the City had filed a motion for sanctions against you? A I invoke my Fifth Amendment privilege. Q When you told Mr. Richmond that the City had filed a motion for sanctions against you, you knew the City had filed that motion under seal, didn't you? MR. ROSE: Objection, Judge. I am going to object. She previously said she did not know if the motion itself -- THE COURT: Mr. Rose, once again, what have I asked you? MR. ROSE: Objection, irrelevant. THE COURT: Overruled. THE WITNESS: I invoke my Fifth Amendment privilege. Q When you spoke to Mr. Richmond, you knew he was a reporter for the Associated Press, did you not? A I invoke my Fifth Amendment privilege. Q You are aware that, as a writer for the Associated Press, his article could be picked up by many newspapers across the country, right? A I invoke my Fifth Amendment privilege. (Exhibits 3 and 4 marked for identification). Q Ms. Weidner, I show you Exhibits 3 and 4. Those are articles that appeared in the Star Tribune out of Minnesota, and on line on U.S. News and Report reporting on this case. Do you see that the author is Todd Richmond? A Was that a question? I am sorry. Q Yes. Do you see that the author of these articles is Todd Richmond of the Associated Press? A Yes, I do. Q You talked to Mr. Richmond about this case and the sanction motion that was filed against you, correct? A I invoke my Fifth Amendment privilege. Q Isn't it true that you also spoke with Mr. Vielmetti again after the motion for sanction was filed and told him that the motion for sanction was filed against you? A That is not correct. Q So, as to that question, you are not going to impose the Fifth Amendment? MR. ROSE: Judge, I -- MR. COHEN: Judge, I don't know that you can pick and choose. MR. ROSE: Objection, argumentative. THE WITNESS: Then I'll withdraw my answer. THE COURT: I am not sure if your question was a question or a comment. If it was a gratuitous comment, there is no place for that in my courtroom. If you have a question, you can impose the question again, and let's have a clean record with respect to any objection that will be made. Mr. Cohen, I am going to withdraw and disregard the previous question and comments. (Exhibit No. 5 marked for identification). Q Ms. Weidner, I show you what's been marked as Exhibit 5, which is an article that appeared in the Journal Sentinel on line entitled, City of Racine seeks sanctions against Alderman who spoke about secret open records case. Do you see that? A Yes, I do. Q Do you see the author is Bruce Vielmetti? A Yes, I do. Q The same author of the early article that I showed you, Exhibits 1 and 2, correct? A That is correct. Q Isn't it true that you spoke to Mr. Vielmetti after the motion for sanctions was filed under seal and told him that a motion for sanctions had been filed against you? A I invoke my Fifth Amendment privilege. Q Isn't it true, Ms. Weidner, that even after the motions, the sanction motion was filed, you decided to continue todefy this Court's seal orders, didn't you? A I invoke my Fifth Amendment privilege. Q In fact, that's exactly what you told Mr. Vielmetti that you intended to do when he interviewed you, correct? A I'm not sure what the question is, that I was gonna defy? Q Yes. A I claim the Fifth Amendment privilege. MR. COHEN: That's all the questions at this time, your Honor. THE COURT: Clarification? MR. ROSE: No. THE COURT: All right. Before I have you step down, hold a second. Any further witnesses from the City? MR. COHEN: No, your Honor. THE COURT: All right. Mr. Rose, the Court is satisfied that, based on her testimony here, and her invocation of the Fifth Amendment, and the reasonable inference against her that can be drawn from that taking, that there is established a prima facie case. So the shifting burden now goes to you with respect to persuading this Court that any actions in defiance of this Court's order were not contemptuous. Do you wish to have her on the stand, yes or no? MR. ROSE: Yes. I am just going to ask her a couple of questions here, Judge. CROSS EXAMINATION BY MR. ROSE: Q It's been established that you've been an Alderman. How long have you been an Alderman? A First elected in April of 2000. Q Did you run for Mayor? A I did. Q When was that? A In September and October of 2017. Q Where are you employed? A Work for UW Milwaukee. Q And what do you do there? A I work in HR, Human Resources. Q How long have you been in Human Resources? A With UW Milwaukee since 2014. Prior to that, I worked for Racine County. Q How long did you work for Racine County? MR. COHEN: Objection, relevance. THE COURT: I will allow it. THE WITNESS: 22 years. Q Do you feel that any harm was done by the dissemination of the Judge's order? MR. COHEN: Objection. THE COURT: I am going to allow her opinion relative to that. THE WITNESS: I see no harm.Q You, through your attorney, did file an appeal with the Wisconsin Court of Appeals, correct? A That is correct. Q Did the City at any time through its counsel move the Court of Appeals to seal the record? A That I do not know. MR. ROSE: That's all, Judge. THE COURT: Mr. Hinkston, I know you're not participating here, but I do want to give you an opportunity to ask questions if you choose to. MR. HINKSTON: No, thank you, your Honor. THE COURT: Any follow up, Mr. Cohen? MR. COHEN: No, your Honor. THE COURT: Thank you, ma'am. You may step down. Any other witnesses then? MR. ROSE: No, Judge. THE COURT: All right. We have concluded with the evidentiary portion. Are you moving into evidence the exhibits? MR. COHEN: I am, your Honor. THE COURT: Any objection? MR. ROSE: No. THE COURT: They'll be received. (Exhibits received into evidence). THE COURT: Argument then, first of all, Mr. Rose? You have the burden here. MR. ROSE: All right. Thank you, Judge. Your Honor, I don't see this as a case where there is harm done. I understand the violation of the Court order, and I understand the inferences that you've drawn from her invocation of the Fifth Amendment. I think that her invocation of the Fifth Amendment is well-founded, because there's still, even though Mr. Cohen said he would withdraw that effort to refer to the District Attorney's Office for criminal contempt, he is not in full control of that kind of issue. Someone else might be willing to do that. So I think that her invocation of that right is well-founded. On the issue of harm here, it was publicized in the newspaper. The newspapers have apparently felt very strongly about this matter, and have written, and have attempted to intervene for their First Amendment right, so this is a matter of a public issue, a First Amendment type of case. But on the merits here, it has never been revealed what it's all about. Merely, she has said essentially, Judge, I disagree with it. I am referring, and based upon what you've said here, you are going to construe this against you. But if you look at the articles, the articles really don't publish your opinion and order per se. I understand that she shouldn't have done it, but there is really no harm to anyone based on the articles if one reads all of these articles. They mostly seem to take a position sort of, a First Amendment argument on behalf of the press in many situations. But if you're going to say, well, as a result of that publication of your order and decision, what individual has been harmed, has the City been -- have they been harmed in any way? I can't see it. Opposing counsel really has never suggested any harm here that as a result, thereof, X,Y,Z is negative against the City for whatever reasons. Nothing like that is shown here, so I would suggest to the Court that the better practice here really in conformity to a much more serious case, the one that I cited to you earlier, the Christensen case, which involved a consent decree involving the Milwaukee County Jail, and we won't need to go through all of the details or implications here, but I think clearly she understands the Court order, and there won't be any repeat performance. THE COURT: All right, Mr. Rose, thank you. Mr. Cohen? MR. COHEN: Thank you, your Honor. I take issue with the statement by Mr. Rose that there was no harm done. This Court spent time on three separate occasions addressing the sealing of records in this case. On two of those occasions, Ms. Weidner's own counsel consented to the seal orders. On the third occasion, he expressly objected to the seal order with respect to the decision and order, and the Court expressly overruled him and made that part of an order. Ms. Weidner then appealed that issue. Instead of waiting for the Court of Appeals to decide that issue, she took matters into her own hands and made, effectively, that issue on her appeal moot by hand delivering to the court reporter your Honor's decision and order. There were good and valid reasons for your Honor to seal the record. They were identified in the record in support of the motion, and they had to do with time-honored concepts such as attorney-client privilege, the closure of executive session meetings, and the privilege associated with them, and the anonymity of individuals under the Racine ordinance in relation to Board of Ethic advisory opinions. That anonymity didn't just apply to Ms. Weidner, as your Honor noted in his decision sealing the decision and order. It also involved several other Alderpersons whose emails were at issue in the emails that were submitted by the City to the advisory board for review. Mr. Rose indicates that the newspaper article really doesn't say much about your decision and, thus, there is no harm. The harm is the defiance of the Court but, moreover, the newspaper article talks on Exhibit 1, page 3 on the top specifically about details of your Honor'sorder and gives some examples from a decision that was sealed after argument by counsel. By the way, the record should reflect in relation to Mr. Rose's question to his client, he apparently is unaware of the fact that Mr. Hinkston filed the motion to seal with the Court of Appeals, joined by the City, but it was Ms. Weidner's own counsel who filed the motion to seal with the Court of Appeals so that he did not violate this Court's prior seal orders. So the newspaper article discusses the Court's decision giving examples, and then goes on to take a shot at Attorney Letteney and says, the items this Court determined not to be privileged certainly raise questions about how Letteney ever could have thought they were. So is there harm? This is Mr. Letteney's reputation that's now at issue in front of the public based on privileged attorney-client communications, time-honored communications that this Court upheld. When Ms. Weidner speaks to the reporter, she doesn't just give the decision and order to the reporter. She doesn't just tell the court reporter, excuse me, the newspaper reporter, about the details of the case, she goes one step further. After this Court spent time and the parties spent money dealing with sealing the record, an order of February 8, an order of February 13, and the May decision of the Court, and she tells the reporter blatantly, I'm willing to defy this Court's order. To me, your Honor, that is evidence of complete disrespect for this Court, and it is also great disrespect to the Court of Appeals who also sealed the record and who in front of them is the very issue that Ms. Weidner decided to take into her own hands and release to the public through the newspaper. So this isn't a First Amendment case. This is a case about a Plaintiff Alderperson for the City who is supposed to be looking out for the best interests of the City, taking matters into her own hands with express and willful defiance of this Court's prior orders and the order of the Court of Appeals. For those reasons, your Honor, remedial sanctions are in order under the statute. Her behavior continued after the motion to sanction was filed. So she apparently didn't stop after being aware that the City was taking the position that she was in contempt and, by definition, contempt under 785.01 is disobedience, resistance, or obstruction of the authority process or order of a court. Your Honor, we submit that $15,000 is a reasonable remedial sanction to send a message to Ms. Weidner that what she did was wrong, and it was defiance of this Court. THE COURT: All right. Thank you, Mr. Cohen. Mr. Rose? MR. ROSE: Thank you, Judge. I would just make these remarks in to what Mr. Cohen stated to the Court. First of all, she has never revealed the emails. We haven't even discussed that. This is the first time that's been even discussed this afternoon. Mr. Cohen referred to some specific emails involving some other Alderman other than Alderman Weidner. She never went into that. That privilege has never been breached by her. Second, she has every right to criticize another public official, City Attorney Scott Letteney. There's nothing in the constitution that supports opposing counsel's argument there. She can criticize any public official she wants. That's politics, that's the First Amendment. She is part of the City governing body. It's not the other way around. So when counsel says she took a shot at Scott Letteney and his professional opinion, professional reputation, that has nothing to do with this case whatsoever, and one can't be found in contempt for criticizing another public official. That's part of the right we have as Americans. $15,000 here, frankly, it is grossly disproportionate to the harm. I understand people are supposed to abide by Court orders, and I advise clients routinely of that, and I think we as lawyers do that. Sometimes clients don't follow people's advice, and you have to realize that she is a political figure in this community and has spoken out on countless issues. But to suggest that somehow $15,000 is an appropriate sanction, it is related to nothing here. It's not -- There has really been no harm demonstrated except that she defied the Court order. But harm to the public, and that's what I think what the Court really has to examine. What harm is there to the public? She never embarrassed anybody who had an e-mail that was discussed or, as counsel has suggested here, no projects of the City have ever been halted as a result of the revelation of this decision. So I would suggest to the Court that the conduct has stopped, we've gone through this hearing. I think it is clear what the Court's opinion is, and I don't see this as something that she's going to repeat. The issue is before the Court of Appeals, and they will have to deal with all of the various issues that this case involves. So I let it be said that it is, I think, important not to overexpand here what is before this Court and make more of it than it really is. Thank you. THE COURT: All right, Mr. Rose, thank you. Mr. Cohen, thank you for your comments. Prepare yourself. This will be a fairly-lengthy decision on my part. I want to start out by indicating some information that I can divulge regarding this case, because it bears that the general public believes that this was done under a cloak of secrecy by this Court, and that's how it's been portrayed in the newspaper. First, I'll start off by saying that the City has made a prima facie case. That as a result of that and the articles that have been placed into evidence in this matter, over no objection whatsoever, that Ms. Weidner, the presumption that befalls you by taking your Fifth Amendment, which you chose to do, now is an adverse inference relative to that, and the Court takes it as such, so takes as a verity the statements that are contained within those articles as being authored by you when they say they were authored by you. You have not met your burden that those actions were non-contemptuous. This case started out by a writ of mandamus, which is an extraordinary writ under the law, against the City of Racine for failing to provide items under a public record's request. The City appeared and requested a sealing of filed documents under section 801.21 (2) of the Wisconsin statutes to ensure that confidentiality and privileged information is not disclosed to the public. The City cited three reasons for that sealing. One, the request, materials pertaining to attorney-client and work-product privilege, which are statutory privileges recognized by Wisconsin law. The request pertained to confidential and privileged communications of an executive committee, which is also confidential under state law. Thirdly, it pertained to communications that would be revealed or forwarded to a City internal review committee who retains anonymity and is a confidential matter under city ordinance, a city ordinance that I point out that Ms. Weidner should well have been aware of, because she was a City Alderperson for all those years. The Court reviewed the law of mandamus and reviewed the law of public records. There was an initial court hearing on February 5 of 2018 that two parties from the general public appeared at that proceeding. Rather than proceeding in open court, because there was a motion to seal for the reasons that I just mentioned, the Court invited counsel back to its library to discuss the motion to seal. At that time, the official record reflects Ms. Weidner's counsel, Mr. Hinkston, verbalized no objection to the sealing of the record and to eliminating the public from the courtroom. That remained the rule and was not altered until it was revisited after the Court rendered its decision, I believe, sometime in May, if I am not mistaken, May 16 of 2018. While there was an agreement, concession, or stipulation between counsel, that was not enough and does not alleviate from this Court's ability to review the calculus of whether or not documents should be sealed or not sealed. I will get into the specifics later on, but the Court was of the opinion that the reasons previously stated after I rendered my opinion, although Mr. Hinkston at that point asked for release of certain documents, had not significantly changed, and that the anonymous review, which was scheduled by city ordinance, essentially legislation that then existed to preserve the anonymity of that review, had not yet been taken place, and in an overabundance to protect not only other Alderperson but also Ms. Weidner's name from being disclosed to that body, this Court continued with the seal order. In fact, my decision will bear out that I retained jurisdiction of this case, Ms. Weidner, to protect your interests to the extent that the City did not comply with their proffered word to this Court. That's a matter of record. Also, the Court believed that the overriding rule to protect the legislative mandate of a city ordinance for anonymity review overplayed the public need for disclosure of those documents. Stated on the record, I did not want them to be influenced by this Court's determination relative to certain matters of confidentiality in this matter. Also for the reason of one of state law, but also common law, but also for the fact that they were using a different standard for their review from the legislative or ordinance review than what would have been utilized by this Court, and that would provide miscommunication or misunderstanding on their part or over emphasis perhaps given to this Court's ruling in their own interface with the situation. Ms. Weidner disagreed with my determination and exercised her right to appeal my decision to the Court of Appeals. That was done on June 20 of 2018 shortly after my decision. Shortly thereafter, the Court of Appeals entered a seal order that was an order not of this Court, but of the Court of Appeals, and which now has pendency of that appellate decision. They sealed all the documents and affirmed this Court's ruling, at least temporarily, relative to disclosure. It is axiomatic that the content of the numerous articles that have been provided contained information that was previously sealed by this Court. That is undisputed. As far back as Marbury versus Madison, 5 US 137, an 1803 case, this country has established the separation of powers of the three branches of government, the legislative, the executive, and the judicial. They stand for the proposition that the courts have the power to determine the constitutionality of executive and legislative branches in the lower courts. No less a court than the United Supreme Court in Walker versus the City of Birmingham, 388 U.S. 307, a 1967 United States Supreme Court case reaffirmed this process by highlighting a procedural process for those aggrieved by lower court rulings. We hold that a Circuit Court had the duty and authority in the first instance to determine the validity of the ordinance, and until the decision of the circuit court is reversed for error by orderly review, either by the circuit court or a higher court, the orders of the circuit court, based on its decision are to be respected, and disobedience of them is contempt of the lawful authority to be punished. The case cited, Howat versus State of Kansas, a 258 U.S., a 1922 case, a case 96 years old in this country. The case in which an individual was punished by the Kansas Trial Court for refusing to obey an anti-strike injunction. The case determined that the trial court had general power to issue the injunction, and even if its exercise of the power was erroneous, the injunction was not void. And if the injunction was erroneous, the area was subject to correction only by the ordinary method of appeal, and disobedience of the order constituted contempt. The case, City of Birmingham, asserted that an ordinance in question was unconstitutional and thus need not be honored, and contempt would not lie. That was the defense. That happened to be a civil right's demonstration case, if you might recall. In rejecting this, the Court stated, United States Supreme Court stated, as a general rule, an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceeding. Yet, until its unconstitutionality has been judicially declared inappropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from the charge of contempt of court. The Court further stated, the rule of law followed in this case reflects the belief that in the fair administration of justice, no man can be judge of his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. The Court went on to state, this Court cannot hold that the Petitioners were constitutionally free to ignore all the procedures of law and carry their battle to the streets. One may sympathize with the Petitioner's impatient commitment to their cause, but with respect for the judicial process is a small price to pay for the civilizing hands of law which alone can give a binding meaning to Constitutional freedom. Wisconsin is well in accord with these factors. An order which requires specific conduct either to do or to refrain from doing specific actions can be enforced by contempt, Carney versus CNH Health and Welfare, 305 Wis.2d 443, 2007 Wisconsin Supreme Court case. Contempt of Court is the intentional disobedience, resistance, or obstruction of an order of a court. A person may be held in contempt of court if that person refuses to abide by a court order. Even though a person may disagree with an order, he or she is bound to obey it until relieved therefrom in some legal prescribed way, State versus Rose found at 171 Wis.2d 617 at page 623, Court of Appeals' decision from 1992. The Court must make a determination whether or not the person who is found to be in contempt or alleged to be in contempt had the power to abide by the Court's ruling. The Court makes a finding that you did. You were at every hearing, Ms. Weidner. You were advised by competent counsel of the Court's ruling with respect to this matter. You understood the rule, and your statements, that I am willing to defy the Judge's order that is sealed is the most egregious conduct I've seen towards the tribunal or the courts of this country by someone who they themself is a part of the third branch of the government, that being the legislation. Town of Seymour versus City of Eau Claire found at 112 Wis.2d 313 allows for the imposition of attorney fees as well as recovery of costs in an action for damages of contempt. I want to spend a moment about public access to court proceedings and do away with any misconceptions that have been articulated in the paper or by innuendo regarding this Court. This Court understands the need for public access to the courts and court proceedings. The Court understands the constitutional provisions regarding First Amendment, freedom of the press, public access, and the law of prior restraint. To say I don't is sheer folly. This Court is always very familiar with Wisconsin law, statutory and case law regarding sealing of records. Presumptions attended to such order and the factors which I have previously referred to in some form as rubric, and the balancing of those factors that the Court must consider prior to sealing. This Court also possesses inherent power to seal court records on its own motion sua sponte. The presumption against sealing of court records remains unless there is a good showing by the movant showing that the confidentiality of the parties outweighs the public interest. In this particular situation, we had situations of statutory privilege, confidentiality by state law, and confidentiality by city ordinance, three rules, designated laws, found in this state which talk about confidentiality of the items that we discussed. The Court has indicated earlier with respect to upholding the sanctity of those provisions which have good faith basis in the laws of this state as well as in the ordinances of the City of Racine to uphold the sealing of this matter until completion. As I eluded to earlier, Ms. Weidner, I retained limited jurisdiction to protect your individual interests if they were violated. It is disheartening that previous interveners in this case proper that this Court is unaware of the public access provisions of the law of this state or in this country. While the First Amendment guarantees the public and press a right to access, such right is not absolute. Prevention of disclosure of privileged information, prevent disclosure of private information, uphold the individual right of privacy, and prevention of disclosure to prevent embarrassment are all factors that need to be considered by the Court. To the first two, privileged information and private information enures to the benefit of the City; the right of privacy to prevent embarrassment enures to the benefit of Ms. Weidner. Upholding the sanctity of an anonymity review was also a factor maintained by city ordinance, so the law of the City. Generally speaking about the public's rights to records. Wisconsin Public Record's Law affords the public the right to inspect certain documents within the possession of state entities. It serves one of the basic tenets of the democratic system by providing an opportunity for public oversight over the workings of government. To that end, we have a presumption of open access to public records, which is reflected in both our statutes and our case law. It is with the public policy of the State that all persons are entitled to greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. This presumption reflects the basic principal that the people must be informed about the workings of their government, and the openness in government is essential to maintain the strength of a democratic society. Nevertheless, the public's right to access records is not unrestricted. Woznicki versus Erickson, 202 Wis.2d 178. However, the right to public access is not absolute. The strong presumption of public access may give way to statutory or specified common law exceptions, or if there is an overriding public interest in keeping the public record confidential found at 2006 WI App 227, not mentioning the other citations. Accordingly, under Wisconsin law, the record may be exempt from disclosure, one, if the record is statutorily exempt, which I have eluded to. Two, the record falls under the common law exception here being city ordinance and other statutory exceptions under Wisconsin or, three, public interest balancing test weighs in favor of non-disclosure. The process that was disclosed here had to do with a confidential review of records after my decision was rendered. That was the primary basis. The Court did not yield to the motion of Mr. Hinkston with respect to unsealing, because that situation had not yet occurred or was to occur and, as such, the Court, as I indicated earlier, did not want my decision to impede or influence that review, because it was on a different standard as well as my case law review was. It's often said, and I've talked about the Supreme Court cases, but Wisconsin stands, it is pure anarchy if people don't comply with Court orders. There is a process. You availed yourself of that process. The process is, go to a higher Court. But until the higher Court says that this Court erred, or was overshot, or overdid what it said, there is nothing that allows you to violate that court order. That is the heart blood of an orderly society. That is the heart blood of the efficiency and basis of a court system. Even your own counsel at this contempt hearing agrees with that, Ms. Weidner. The Court makes the following findings based on the hearing today. Ms. Weidner was fully aware of the Court seal order that existed throughout the proceedings and continued through its decision in May and thereafter by the Court of Appeals. Ms. Weidner availed herself of a right to appeal my decision to the Court of Appeals. Part of that appeal was my seal order specifically. Based on submissions on her own or through advice of someone else who was referred to in one of the articles, to her own detriment, she disclosed information that was subject to this Court's order. It's based on your presumption of taking the Fifth Amendment. That process evolved into several additional articles being generated regarding this Court's prior order. Ms. Weidner had the ability to be compliant with this Court's order. Ms. Weidner chose not to be compliant and uttered publicly her willingness to, quote, defy, end quote, this Court's order and did so. Ms. Weidner's actions in this regard impeded the existing city ordinance adopted legislative process regarding review with anonymity causing harm to the City. Here, I do agree with the assertion and argument of Mr. Rose with respect to Mr. Letteney. Harm to Mr. Letteney's reputation has nothing to do with this case, nor has it anything to do with this Court's ruling. This case is about the process of harming the process, a process which was generated by city ordinance with respect to anonymity, with respect to confidentiality, and with respect to state statutes with respect to executive committee orders and to attorney-client work-product privilege. The Court believes that your utterance in violation of this Court order, when you knew of that Court order, in fact, asked the Court of Appeals to relieve you of that order, shows premeditation on your part by taking your Fifth Amendment and the adverse presumption. The Court is of the opinion that your actions solely and individually caused the City to bring the present motion, which caused expense to the taxpayers of the City of Racine, which is an actual monetary loss, because they will have to pay for the time of Mr. Cohen. Eluded to this earlier, Ms. Weidner is a member of local government, above all others should understand and appreciate the three branches of government and respect required for the compliance with orders of the Court in an orderly society. This Court finds her in civil contempt of court. Her actions and defiance of this Court being conduct outside of the Court's presence call for remedial sanctions. Having so found, the Court believes that remedial sanctions under 784.01 (1)(a), (c), and (d) are appropriate and demanded. Under (a), this Court will award reasonable attorney fees and costs associated with the filing and pursuing of this action by the City of Racine. They are invited to file with this Court within 10 days of today's date a summary of those costs and disbursements. Mr. Rose will have 5 days thereafter to respond to their claim for reasonable attorney fees and costs in this matter. The Court then will make a determination, one, whether there needs to be another hearing with respect to the reasonableness of the assessed costs or, two, if the Court sees no reason to do so, will set a reasonable cost amount, which will be levied against Ms. Weidner. Two, under (c), order of continued violations of this Court are made with respect to disclosure of this information, a fine of $1,000 per day will be imposed upon you. While this is a civil contempt, you are entitled to a purge. That is, you are entitled to an order from this Court as to how you can avail yourself of not having to be compliant with a contempt order. Although it has been stated by Mr. Rose here in open court, and he is your agent and representative, the Court wants your word on record in this court on this day, Ms. Weidner, that you will honor this Court's seal order previously issued in this matter until some higher Court modifies that order. I ask you now, ma'am, will you abide by this Court's seal order, yes or no? VOICE: Yes. THE COURT: Having received her promise in this court, the Court accepts her word as being her bond to this Court, and will stay the execution of any sanctions under (a) and (c), as previously eluded to. However, I still want the attorney fees and modification of the attorney fees by Mr. Rose to be with the Court so I have that, will stay that pending any decision regarding this Court order by further modification by the Court of Appeals in this matter. Any clarification needed, Mr. Cohen? MR. COHEN: No, your Honor. THE COURT: Mr. Rose? MR. ROSE: Yes. Two points. I take it the attorney's fees are related to the contempt proceeding only? THE COURT: Only, absolutely. MR. ROSE: And second -- THE COURT: I am sorry. Thank you for that clarification. It's for bringing the motion and participation here today. MR. ROSE: And the $1,000 per day, I take it, is perspective -- THE COURT: It is prospective. MR. ROSE: From and after this Court, October 3. THE COURT: October 3. The Court is accepting her statement under oath that she will abide by my order until further clarification or modification by the Court of Appeals. MR. ROSE: All right, thank you. THE COURT: Mr. Cohen, will you prepare the order? MR. COHEN: Will do, your Honor. THE COURT: Do you need a 10-day date, or do you need the 15-day date? 10 days he has to provide me with his reasonable attorney fees and disbursements. Madam clerk, can I have a date, please? MR. ROSE: That's fine with me. THE COURT: We'll give you a date, sir. We'll put it on the record, no confusion. THE CLERK: October 15. MR. ROSE: For objections. THE CLERK: The 22nd. MR. COHEN: Your Honor, one housekeeping matter. The Trial Court record has been compiled. I think this should be part of the Trial Court record that goes up, so we're going to have to -- THE COURT: Agree it should be. Mr. Hinkston, do you agree with that? MR. HINKSTON: I agree. MR. ROSE: Can we also have, as long as we're talking about what goes up on record, yesterday's matter as well in my motion? THE COURT: I don't think that has been transcribed, but absolutely, if you request that. MR. HINKSTON: We'll request the transcript. THE COURT: If you request it, it should be made part of the appellate record as well, along with your motion, of course. MR. ROSE: Thank you. THE COURT: All right, we're adjourned. MR. COHEN: Thank you, your Honor. (Hearing adjourned).
(STATE OF WISCONSIN) SS: COUNTY OF RACINE ) I, Leslie M. Johnson, RMR, CRR, CPE, Official Court Reporter, Branch 2, do hereby certify that the foregoing transcript constituting of 55 pages inclusive is a true and accurate transcript of the proceedings taken on the 3rd day of October, 2018. Dated this 19th day of October, 2018. Leslie M. Johnson (electronically signed)
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