Readers know that I am opposed to confidentiality agreements in municipal litigation: lawsuits against public entities, about public matters, involving public figures should be publicly known. 
 
Recently, Wisconsin’s Crime Victims Rights Board reprimanded Columbia County District Attorney Jane Kohlwey for something worse: a secret deal with a defendant’s attorney.    
 
The AP Wire relates that
 

The Baraboo News-Republic newspaper reports Kohlwey signed a secret deal with Riedel’s [the defendant’s] attorney in February, saying the case would be dismissed if Riedel satisfied certain conditions. The agreement also called for Kohlwey to destroy all copies of the agreement.

 
The defendant, a former sheriff’s deputy, was accused of “backing over his then-girlfriend.”
 
Under Wisconsin law, a victim is entitled to information on a case’s disposition.  The secret deal between the prosecutor and defense counsel kept that information from the victim as the law requires. 

Secret deals are wrong because they distort justice by allowing prosecutors to extend opportunities to select parties without accountability to the public that elects prosecutors, and often in contradiction to the prosecutors’ own grandstanding public statements. 
 
D.A. Kohlwey contends that she never destroyed the records of the deal.
 
I am unsympathetic; she should never have made the secret deal, and deserves no credit for failure to execute all parts of it before discovery. 
 
This secret pact happened in Columbia County, but we should and must expect that there will not be similar deals in nearby Rock, Jefferson, or Walworth Counties. 
 
Here’s a link to the AP story —
 
http://hosted.ap.org/dynamic/stories/
W/WI_HIDDEN_RECORDS_CORRECTION_WIOL-
?SITE=WIMAD&SECTION=HOME&TEMPLATE
=DEFAULT

I saw a post at a website comment board, that had the name of the poster, and his supposed comments.

Here’s what it looked like:

Joe Biden –

“Here’s a little speech that I wrote last night: Friends, Romans, countrymen, lend me your ears…”

A small joke, but amusing to find on a comment board, between other posts.

Sheboygan confronts a lawsuit – a chaotic and troublesome matter. What are a few of the challenges awaiting a city in this situation?

(Sheboygan is far from my own small city – my analysis is general and implies no specific assessment or even comparison between the cities. Later this week, I will update on a case in Memphis. There is no hidden meaning in my assessment.)

Bad publicity.
A municipality and its so-called people of influence are vulnerable to bad publicity.  Their positions don’t depend on principle; they depend on social connections.  They value how they appear to others, and the outside press that follows a lawsuit isn’t easy to control. 

The Web spreads stories fast, and within a day or two, people from across America will be writing to the plaintiff-blogger, and posting on websites continent-wide, with messages of support.  People in Oklahoma will be following Mayor Perez of Sheboygan. 

The farther away from the small-town elite, the less sympathy there will be for his conduct, and that of the other defendants.      

(A favorable local press won’t help – the Web allows the plaintiff to leapfrog local flacks and hacks to reach a sensible, serious audience.) 

An American community’s reputation is strongest when it embraces the strong American embrace of liberty. 

Damages.
  There is a risk of having to pay damages – money – in most civil suits.  Worse, a federal forum will not include friends, cronies, etc., of the local officials.  If anything, federal staff will look askance at municipal officials who’ll seem small-time compared with federal practice and procedure.

To Social Standing. 
These situations go bad because a few local officials, egged on by ignorant and outraged locals, think they can do whatever they want to a blogger. 

They tell their circle that they’ll ‘handle the problem,’ ‘resolve the matter,’ ‘get the evil blogger,’ etc.  Their friends expect tough measures, and they assure their supporters and sycophants that they’ll ‘take care of things.’ 

When it becomes clear that the law does not allow municipal interference with a blogger’s lawful speech, suddenly all those officials who were going to get ‘tough’ look…weak, ignorant, and foolish. 

From the chatter and admissions of others.
  Most of these cases begin because politicians and their toadies think that their interests are all that matters, and they confer endlessly on the supposed threat that a blogger represents.  They chatter about it like mad.  These officials talk with friends about plans, schemes, theories, etc. 

When confronted from the outside, they’ll try to deny that half the conversations they had ever took place.  It’s too late by then – the same chattiness that causes them to squawk to their friends will lead to some of those friends to admit wrongful conduct in depositions or in affidavits. 

(Someone’s “I have no idea” denial faces a friend’s “Yeah, we talked about doing that a few weeks before it actually happened.”)

By the time a lawsuit’s filed, plaintiff’s counsel may already know who’ll provide impeaching testimony.  

To potential criminal conduct. 
In the Sheboygan case, the plaintiff contends that she is the victim of death threats. 

Death threats against a writer from Sheboygan. There is no one in Sheboygan or anywhere else who has, or ever will have, the right to threaten anyone. 

Not from detestable places like Iran, North Korea, or Libya – from Sheboygan, Wisconsin. 

Those involved deserve meaningful punishment. 

Look how wrong and risky all this might be, though, to those who might have circulated threats initially made by others. 

I have no idea how the threats were made, but look at the risk to everyone involved: did others know and circulate threatening statements made by third parties? 

Did anyone provide comfort and support for threatening statements that others made to a blogger?  (“Go ahead, do it,” “here’s what you should say,” “this is great,” “gotcha,” etc.)

Most or all of these risks to the defendants will might be present in a free speech case.

All might have been avoided, if the defendants had respected individual rights initially, or been sincerely contrite and reconciled to liberty afterward.  

In a prior post, I mentioned the egregious and reprehensible treatment of Jennifer Reisinger, the blogger at Sheboygan Shenanigans. Her encounter with municipal officials occurred in 2007.

Why do municipal officials go wrong this way? I am not from Sheboygan, but I will offer a few guesses about how so-called public servants go astray, and run roughshod over individual rights.

Local officials fixate on their role as community leaders and people of influence. “I’m somebody” (true) becomes “I’m somebody special” (false).

Town politicians assume local ordinances and practices matter more than state or federal law.

Defenders of entrenched power rationalize their behavior as ‘for the good of the community.’ Government stops being instrumental, and becomes a supposedly higher calling. No it’s not; the defendants in the Sheboygan case will find out how far it is from a higher calling.

Police Lieutenants. There’s always one in these matters? What is it about the use of police lieutenants to enforce orthodoxy in the name of an ‘investigation,’ ‘civil discourse,’ or some other asinine excuse? Is this why someone joins a force – to be nothing but a caddy on behalf of third-rate officials?

Many politicians are ignorant of the law. Elect or appoint someone to office, and he suddenly thinks he’s an expert on the law. Someone memorizes a few rules of parliamentary procedure, and he imagines himself an expert on eminent domain, constitutional doctrine, contract law, etc.

I can’t tell you how many times I’ve watched a politician pontificate erroneously on the law, all the while a staff lawyer sits in the room, whose opinion is never sought. In most areas, people wouldn’t assume that position confers knowledge and wisdom, but politicians often think that holding local office is the equivalent of reading law at Oxford. Suddenly they’re all-knowing.

If a person sat on a hospital board, it wouldn’t make him think that he could perform surgery; politicians often read a few words from a statute, wholly omitting the decades of judicial interpretation, and think they’ve found a quick, convenient answer.

Sometimes one thinks: “Do you believe what you say, or are you just hoping others believe it?”

Many of these locals bemoan coverage that’s lawful, and constitutionally protected, but actually tame. They think that if the coverage is critical, it’s evil. These are people who don’t understand a real press in cities across America – those accustomed to a compliant weekly paper are ignorant of what a vigorous press is like.

I have remarked before that, in my own situation, “America does not end where the Whitewater city limits begin.”

The same is true is Sheboygan, and across all America.

Bloggers typically love America – I know that I do, and I am certain that Ms. Reisinger does, too. When officials try to intimidate and silence a blogger, they place themselves against the American traditional of liberty. Bloggers – modern day pamphleteers — love and embrace this tradition, and those who try to scare them should and will fail.

America is bigger and better than any self-interested, rationalizing official who puts himself ahead of America’s free way of life.

Wisconsin has thousands of bloggers, and among that number is one who covers municipal affairs in Sheboygan. Her name is Jennifer Reisinger, and she is the blogger at Sheboygan Shenanigans.

There are both similarities and differences between her website and FREE WHITEWATER: she is conservative, where I am a libertarian; she uses her own name, while I write under a pseudonym.

She would likely disagree with many of my views; I would expect as much.

Although we have neither met nor written to each other, we have one thing in common – like a few other bloggers across America, we live in communities where municipal officials have committed acts of over-reach against lawful blogging.

She has obtained counsel and filed suit in federal court against Sheboygan and her leading officials for infringement of her First Amendment rights (as a 42 U.S.C. sec. 1983 action).

I have followed her
situation these many months, and I have read the recently-filed federal complaint (a public document) in the Eastern District of Wisconsin.

I will briefly summarize her claims, in a second post offer observations on how public officials go wrong this way, and in a third discuss the risks to Sheboygan of litigation.

Ms. Reisinger has retained Paul Bucher, former Waukesha County District Attorney, to represent her in this lawsuit. Her complaint was filed on August 20, 2008 and sets out her allegations against the defendants in 29 paragraphs.

She has filed suit against Sheboygan mayor Juan Perez (as mayor and personally), the chief of police, and the city itself, among others.

Ms. Reisinger is a web designer, and a community activist. She was supportive of efforts to recall the city’s mayor.

Ms. Reisinger alleges that the city’s unlawful insistence that she remove a weblink from one of her websites, and a subsequent police investigation about her because of it, caused damage to her business, health, and subjected her to death threats and other acts of intimidation.

She seeks both compensatory and punitive damages.

(An sad irony of this is that she intended the link to show support for the police, but the leadership of the city – leaders, not patrol officers – saw her actions in a different and wrong light. I find this common – arrogance is to be found principally among leaders, not the field.)

I wish her the very best in the vindication of her rights.

Next: How public officials go astray.