Archive | July, 2010

Government Planning Agency Can’t Conduct "Open" Business Via Private Email

28 Jul

The ACLU of Wisconsin has told a Wisconsin agency, the Southeastern Wisconsin Regional Planning commission, that it can’t conduct the public’s business in a private e-mail list serve.

The group called SEWRPC is an urban/rural governmental planning organization that is charged with the task of hearing and weighing business, development and environmental decisions for an area spanning seven southeastern Wisconsin counties. The group wanted to have one of its committees, the Environmental Task Force, discuss and vote on whether to accept a consultant’s report about the water supply in southeastern Wisconsin. Karyn Rotker, ACLU Senior Staff Attorney, stepped in to remind SEWRPC that Wisconsin’s Open Meetings Law prohibits agencies from discussing and voting on issues in private – and that includes a private email exchange.

The ACLU of Wisconsin has sent the message to SEWRPC before (PDF) about how important it is to weigh environmental and human concerns when making development decisions. We’ve blogged before about how government needs to take into consideration the environmental impact planning decisions have, especially on communities that need help with resources like accessible transportation and clean water.

New Berlin Planning Commission Should Allow, Not Limit, Public Comments on Housing Development

27 Jul

The New Berlin Plan Commission in the midst of the recent controversy over affordable housing in New Berlin altered its bylaws to prohibit virtually everyone except residents and land owners from speaking during the open comment portion of its public meetings (you can read the change on the city’s website – PDF). In response the ACLU of Wisconsin has written the Commission (PDF) chiding it for engaging in censorship that will undermine the planning process.

“Free speech exists in the public spaces of even the most exclusive communities,” said ACLU of Wisconsin Executive Director Christopher Ahmuty today. “The Commissioners are engaged in an important public service. Allowing all interested parties to speak will result in a better future for New Berlin,” he added.

“The New Berlin Plan Commission is refusing to allow public comment from persons who might want to live in the community,” noted Karyn Rotker, ACLU of Wisconsin Senior Staff Attorney. “And the timing of its actions – changing its public comment policies in the middle of the affordable housing debate – strongly suggest it is doing this because some people in New Berlin objected to the efforts of faith-based groups and others to try to develop affordable housing.

“These efforts to suppress speech can also have wider-ranging consequences. For example, in addition to shutting out the speech of people who might want to live in New Berlin, the Plan Commission’s new rules would also prohibit other interested persons – like those who work or own businesses in New Berlin, but don’t live there – from commenting at public meetings,” added Rotker.

In a letter sent to Plan Commission members on Monday, the ACLU suggested alternative measures to allow the Commission to efficiently conduct its business without suppressing speech, such as limiting the amount of time given to each speaker.

“As the U.S. Supreme Court made clear many years ago, there is a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide open,’” wrote Ahmuty. “We urge the New Berlin Plan Commission to take those principles to heart.”

The issue got a mention on the Milwaukee News Buzz website as well as some attention on the website.

On Tuesday, Let’s Hope ‘Forward’ — Influences the National Organization for Marriage

26 Jul

Posted in the op-ed section of the Capitol Times.

The National Organization for Marriage tour bus will stop by our Capitol building on Tuesday at noon to bring its message to the residents of Dane County that only different-sex couples are families. Local residents who support marriage for all loving, committed couples will hold a counterdemonstration where they will likely outnumber the NOM folks. The Madison office of the ACLU of Wisconsin will send volunteer legal observers to witness the protest and counterdemonstration as people on both sides of the marriage debate flex their free speech rights. We love it.

The ACLU of Wisconsin welcomes the National Organization for Marriage bus tour to rally on our Capitol steps. And not just because everyone has the right to free speech. We welcome the NOM because we are for marriage too. Like free speech, everyone should have the right to marry. And the ACLU of Wisconsin continues to work to advance the fair treatment of same-sex couples.

Until the time when voters can successfully repeal the discriminatory constitutional amendment prohibiting same-sex couples from marrying, there are more real families that need equal protection under law today. Just over a year ago, the state Legislature created a domestic partner registry and benefits for same-sex partners of state employees. But these steps fall far short of the necessary legal protections provided to the families of married couples. National and local foes of the domestic registry want to challenge it.

Among the opponents, the National Organization for Marriage wants to convince voters of the need to restrict the freedom and liberty of loving, committed couples to have their marriages recognized by law. This group should have a hard time proving that heterosexual marriages are threatened by recognizing other relationships. Fortunately most Madisonians know exactly how much stronger our community is because of the diverse families who live here. And that is the kind of freedom we all can be proud of.

In the long run, people who work to restrict freedom and liberty will fail. The history of our country and our Constitution is a story of evolution, progress and an expansion of rights for individual freedom. Hopefully, when the National Organization for Marriage bus tour stops at the Capitol near a statue emblazoned with our state motto “Forward,” they will be welcomed as freedom of speech dictates, and then they will take the statue’s advice.

Please visit the op-ed webpage and log in to leave your comments on why NOM is wrong about same-sex marriage.

Police GPS Tracking Question Left Unanswered by WI Supreme Court; ACLU Seeks Legislative Response

20 Jul

On Tuesday July 20th, the Wisconsin Supreme Court sidestepped the question of whether there are any constitutional limits on police use of global positioning system devices to track people in their cars. Instead, the Court decided that a court order obtained by the police in the case of State v. Sveum satisfied the warrant requirement of the Fourth Amendment to the U.S. Constitution and the Wisconsin Constitution. We’ve blogged before on the privacy implications of this issue.

Although the Court did not decide whether a warrant is required, its ruling has the effect of overturning the Court of Appeals’ prior decision, which held that placement of and tracking with GPS devices was not “search or seizure,” and thus did not require a warrant from a judge or even that the placement and tracking be “reasonable.”

“The Court’s decision leaves open the core question of whether there are any constitutional limits to prevent the police from misusing such powerful technology to invade the privacy of innocent people,” said Catherine Crump, a lawyer with the American Civil Liberties Union, who submitted a friend-of-the-court brief along with the ACLU of Wisconsin (PDF) and the Electronic Frontier Foundation.

“The Court’s decision underlines the need for the legislature to put common-sense limits on use of GPS technology to prevent police officers with personal grudges or elected sheriffs with political axes to grind from placing GPS units on enemies’ vehicles to see what meetings they attend, what night spots they frequent and what churches they do – or do not – attend,” said Chris Ahmuty, Executive Director of the ACLU of Wisconsin. “Except in rare emergencies, law enforcement should have to show a judge they have a reasonable law-enforcement basis for tracking someone before they start.”

Lawyers on the friend-of-the-court brief include Amelia Bizzaro of Henak Law Office in Milwaukee, Crump of the national ACLU, Jennifer Granick of the EFF, and Larry Dupuis of the ACLU of Wisconsin. G. Michael Halfenger of Foley & Lardner argued the case before the Supreme Court on behalf of the amici. Madison Attorney Dean Strang, of Hurley, Burish & Stanton, represented Sveum.

The issue has had news coverage by the Associated Press and the Milwaukee Journal Sentinel and on WCCO, a CBS affiliate that serves the Twin Cities and western Wisconsin, WAOW-TV in Wausau, the Wisconsin Radio News and Wisconsin Public Radio.

Police Censorship of Gay-Themed Play Lawsuit Settled: City Pays MKE Gay Arts Center and Clarifies Theater License Requirements

15 Jul

On July 14th, 2010, the Milwaukee Gay Arts Center (MGAC) received a check for $20,000 from the City of Milwaukee in settlement of a federal lawsuit filed on its behalf by the ACLU of Wisconsin. The suit alleged that the City violated the First Amendment by shutting down “Naked Boys Singing,” a musical play with gay themes that has been produced around the country, after receiving complaints from a citizen who objected to its content.

Paul Masterson, the Executive Director of the Milwaukee Gay Arts Center, said the settlement sends a message that the government should not interfere lightly with theatrical works, including works that express and celebrate gay identity. “Good theater sometimes challenges convention,” Masterson said. “The police should not shut down a play because some people find it offensive.”

City officials told MGAC representatives in August of 2005 that it could not stage the play because the Center had not obtained a theater license required by a local ordinance. The ordinance requires that the Common Council approve theater license applications, but the Common Council was not meeting until long after “Naked Boys Singing” was scheduled to run.

After the play was shut down, the City determined that, because the Milwaukee Gay Arts Center was a non-profit organization, it was exempt from the license requirement. After the dispute over “Naked Boys Singing” emerged, the City changed its theater licensing forms to make clear that non-profits were not required to get a theater license. However, the city ordinance still requires for-profit theaters to obtain a license and puts no time limit on when the Common Council must decide on the license application.

“Requiring any theater to get a license before putting on a play comes dangerously close to the kind of ‘prior restraint’ on speech the First Amendment was designed to prohibit,” said ACLU of Wisconsin Legal Director Larry Dupuis. “We are pleased that the City has clarified the process so that non-profits will know they are not required to get a license. However, we continue to believe that the City should amend its ordinance to limit the time the City has to issue any theater license. It’s too easy for the authorities to just delay giving the permit to performances they don’t like.”

The Milwaukee Gay Arts Center was represented in the case by cooperating counsel Steve Porter and Jeff Scott Olson of Madison, Wisconsin, and ACLU of Wisconsin legal director Larry Dupuis.

The story has had news mentions on WCCO CBS in the Twin Cities and western Wisconsin, The Onion’s Milwaukee AV Club, WBAY ABC-2 in Green Bay, WTAQ 97.5 and 1360 AM News Talk, as well as on, Milwaukee, and Our Lives magazine in Madison.

ACLU of Wisconsin Issues Travel Advisory for State of Arizona

1 Jul

The American Civil Liberties Union of Wisconsin alerts Wisconsin residents to potential threats to the constitutional rights and civil liberties of individuals planning to travel or stay in Arizona. This is especially important for those traveling during the holiday weekend.

Get your bust card:
The ACLU has prepared an informational card for the public entitled, “What to Do if You’re Stopped by Police, Immigration Agents or the FBI.” While the card provides information that applies throughout the United States in any encounter with law enforcement officials, individuals are particularly advised to download and read this card before traveling to Arizona. A copy is available here (en Español).

Key information that applies to all individuals considering travel through Arizona includes the following:

    • If you travel through the state of Arizona and encounter law enforcement officers, remember that all persons within the boundaries of the United States, regardless of immigration status, are protected by the U.S. Constitution.


  • Racial and ethnic profiling is illegal. An officer cannot stop you because of physical features or English ability. The officer must be able to articulate a reason for a “lawful stop or detention.”



  • If you are stopped for questioning:


Stay calm. Don’t run. Don’t argue, resist or obstruct the police, even if you are innocent or police are violating your rights. Keep your hands where police can see them. If you are driving a car, stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.

Ask if you are free to leave. If the officer says yes, you have the right to calmly and silently walk away. If you are under arrest, you have a right to know why.

You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. However, under state law in Arizona and some other states, you must give your name if asked to identify yourself. If you are the driver of a vehicle, upon request, show police your driver’s license, registration, and proof of insurance. Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently in the car or calmly leave. Even if the officer says no, you have the right to remain silent.

You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect your rights later in court. If you are the driver of a vehicle and an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.


  • If you are questioned about your immigration status:


You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)

If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.

Do not lie about your citizenship status or provide fake documents.


  • If you feel your rights have been violated, write down everything you can remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses.



  • Residents of Hawai’i, New Mexico, and Washington should be aware that, because the driver’s licenses of their states do not require proof of legal residence for issuance, they may not satisfy Arizona criteria for identification under the new Arizona racial profiling law.


Wisconsin residents who are subjected to racial or ethnic profiling or other rights violations are encouraged to report these concerns to the ACLU of Wisconsin at (414) 272-4032 x 23.

More on the Arizona racial profiling law:
On April 23, 2010, Arizona enacted a state racial profiling law, SB 1070, that has generated fear and confusion among the public about the treatment and rights of Americans in the State of Arizona. Although the law is not scheduled to go into effect until July 29, 2010, and multiple lawsuits have already been filed to prevent it from taking effect at all, a history of rampant racial profiling by law enforcement officials in Maricopa County, Arizona (which includes the cities of Phoenix, Glendale, Mesa, and Scottsdale) and a stated policy of “attrition through enforcement” adopted by lawmakers in the state give credible reason to be concerned even before the date SB 1070 is supposed to go into effect.

The law will require police officers to demand papers proving U.S. citizenship or immigration status from any individual whom they stop, detain, or arrest, based on an undefined “reasonable suspicion” that the individual is in the country unlawfully. It invites discrimination against and pretextual stops and arrests of Latinos, other racial minorities, and individuals believed to look or sound “foreign,” based on their race, ethnicity, or national origin.

The law expressly provides that even suspected infractions of city or town ordinances – such as jaywalking, excessive noise, or having an overgrown or untidy lawn – can and should lead to immigration questioning. If individuals are unable to prove to the police officer that they are permitted to be in the United States, they may be subject to warrantless arrest without any probable cause that they have committed a crime.

Since 2007, the Maricopa County Sheriff’s Office (MCSO) has systematically engaged in selective enforcement of minor traffic laws to target Latino motorists for stops and investigation of their U.S. citizenship or immigration status. The U.S. Department of Justice has initiated an investigation into the practices of the MCSO, and there are at least two pending civil rights lawsuits challenging this activity in the federal courts.

The increased risk that individuals and motorists will be stopped, questioned, detained, and arrested because of their race, ethnicity, or national origin makes it imperative that individuals understand their rights when encountering law enforcement authorities in Arizona.