April 15, 2016 at 4:42 p.m.
First Amendment a major factor in denial of gag order in Eliason case
First Amendment a major factor in denial of gag order in Eliason case
After hearing roughly 90 minutes of argument in Vilas County Circuit Court, Forest County Judge Leon Stenz ruled that assistant attorney general Amber Hahn and her colleague Christopher Liegel had not proven that the risk of pre-trial publicity tainting the jury pool in the case of Brian and David Eliason should outweigh those rights.
Stenz is hearing the case because Neal A. Nielsen, Vilas County's circuit judge, recused himself.
Prior to the hearing, Stephen Kravit, attorney for David Eliason, and Dean Strang, attorney for Brian Eliason, and Hahn traded paperwork in response to Hahn's April 7 motion requesting an order prohibiting statements to the media. Also joining the fray was Steve Mandell representing the Lakeland Times, Gray Television Group, Inc., Journal Sentinel Inc, Madison Newspapers Inc., Quincy Media, Inc., Rockfleet Broadcasting/Northland Television, USA TODAY NETWORK- Wisconsin, the Wisconsin Broadcasters Association and the Wisconsin Newspaper Association.
Once the brothers made their initial appearance and the matter of bond had been dispensed with, the court's full attention turned to the requested gag order.
The Eliasons are facing 10 counts of securities fraud. The state filed identical complaints in late February alleging that between Aug. 21 and Sept. 30. 2009, the brothers failed to inform potential investors that their company did not have the finances necessary to stay in business.
After area media outlets, including The Lakeland Times/Northwoods River News, reported on the allegations, Kravit issued a press release March 2 attacking the state's case and proclaimed the brothers' innocence. After the media reported on the contents of the press release, Hahn filed her motion for a gag order.
After announcing he had read all of the briefs, Stenz opened the floor to oral argument.
"This order that the state is requesting today, your honor, would restrict both parties - the state and the other litigants - from making statements directly to the media, which identify witnesses, identify the potential testimony of witnesses, states opinions regarding the state's decision regarding the filing of criminal complaints in these cases, that states opinions regarding the guilt or innocence of the defendants, or advances legal arguments that have not yet been decided by the court," Hahn said. "The point of this order, your honor, is to prevent further prejudice going forward to the state's right to a fair trial."
As the case moves closer to a potential trial, if the defendants or their attorneys are allowed to continue making statements to the press, it will make finding potential jurors from Vilas County who have not be influenced by the media reports more difficult, she said.
Hahn then filed clarifying responses to the briefs filed by Kravit and Mandell, explaining her request more specifically. Stenz referenced the original motion, noting he was concerned Hahn was seeking a broad, detailed order that might be outside the scope of the Wisconsin State Supreme Court Rule 20:3.6 which governs attorney ethics and pre-trial publicity. She assured him she was not.
Because Hahn filed her motion requesting the gag order in response to his press release, Kravit asked his partner Aaron Aizenberg to argue on his behalf. Despite Hahn's recent filings attempting to walk back the scope of her request, Aizenberg argued Hahn's continued insistence that the order apply not only to the lawyers but to the defendants would make an order fitting her request an unconstitutional violation of the Eliasons' First Amendment rights.
He cited the first sentence of Hahn's original motion requesting an order "prohibiting the parties in this case from talking to the media or the public about this case."
"Now the state, admittedly, has backed way off of that now, and they say they never meant that," Aizenberg said, adding that Hahn closed her motion by asking for an order that would follow the rules stated in Wisconsin Supreme Court Rule (SCR) 20:3.6, which governs ethical behavior by lawyers in regard to statements made to the media. However, she left out the word "substantial" when she quoted from the rule.
"And, as you probably saw from our briefing, the case law holds that is the critical word that makes 20:3.6 constitutional," Aizenberg said. "That's what makes it narrowly tailored. So omitting that word isn't a little deal, it's a big deal."
The day before the hearing, 40 days after the state filed its motion and two weeks after the defense had filed its response, and after she had already filed her own reply brief, Hahn filed another statement saying she "regrets omitting the word substantial when quoting SCR 20:3.6."
"If it were inadvertent, it is confusing to us why it would take 40 days to correct the error," Aizenberg said. "We're not sure why the motion would have been amended or simply withdrawn?"
Aizenberg then pointed out that the very case hinges on the Eliasons omitting "important words" from the financial disclosures.
"That is what the case is about, and here we have the first motion brought by the state, and they omit literally the most important, critical word in the rule that makes it constitutional," he said, adding that there is no reason to enter a court order restating an existing rule that all lawyers in Wisconsin are required to abide by. He added the state was not seeking to have Kravit sanctioned for his actions, nor seeking the judge to issue a finding that the press release violated SCR 20:3.6.
"They certainly imply that they think it violated the rule," Aizenberg said. "We don't think it violated the rule."
Stenz said he didn't think the press release was unethical or that it violated SCR 20:3.6. He noted that he thought Hahn was seeking the order mainly to prevent such conduct in the future. He also said there are plenty of ways to determine if potential jurors have been unduly prejudiced by statements in the media.
At that point, Hahn argued that what is contained in the criminal complaint, which is a public record, is not a "statement" by the state that necessitates a response under SCR 20:3.6 from the defense. When asked by the judge if she was seeking an order in keeping with the rule, Hahn replied, "That would be a correct statement."
Despite the late clarification, Strang said Hahn's request far exceeds what SCR 20:3.6 intended by including the defendants, as well as their attorneys. He said the rule binds only lawyers and other officers of the court "not citizens who have had their names smeared in a 21-page complaint and been called a fraud," Strang said. "It doesn't bind a citizen who has to shop at the Shopko here who is from three generations of a family in Oneida and Vilas counties whose kids go to the public schools here, from saying 'I am innocent.' That would be a prior restraint, incompatible with the First Amendment."
Hahn cited case law that gives trial courts the authority to bind defendants as well as their attorneys to SCR 20:3.6. She said the requested order should apply only to defendant's statements to the media, not to members of the public in everyday conversation. When Stenz asked Hahn to clarify whether she was asking that the defendants be bound by the gag order, she replied she was.
Kravit responded by arguing that Hahn has not shown there is any factual basis that his press release violated SCR 20:3.6 and therefore there is no reason to issue an order. Doing so would give the state "bully contempt power" over the defense, he added.
Stenz pointed out that Wisconsin Attorney General Brad Schimel has made statements to the press regarding this case, so they had the same authority under such a rule as the state.
On behalf of the nine media outlets, Mandell asked Stenz to deny the request for the gag order "to protect the free flow of information" to the public about what happens in court in this case.
"The right to gather the news, that's something that has been recognized by the U.S. Supreme Court, by the Wisconsin Supreme Court," Mandell said. "The proposed gag order here, no matter how the state reformulates it, amounts to a prior restraint. And a prior restraint has to be subject to the strictest form of scrutiny. And the government here, the state, carries a heavy burden of showing that restraint is justified because there is a presumption that any prior restraint is really void under the law."
He also argued that the state could not show that the speech in question poses a "clear and present danger or a serious or imminent threat to protect a competing interest."  Before a court can issue such an order, it has to issue findings as to what the threat or danger is, he noted, adding that the courts have also said that any restraint must be narrowly drawn, and cannot be upheld if there are less restrictive, more reasonable alternatives available.
He and the other lawyers on the defense side of the courtroom then reiterated that the state had not shown there was a need to suppress the speech, and argued there were less restrictive means to make sure that potential jurors have not reached an opinion before being seated.
This includes extensive questioning of potential jurors, bringing in a jury pool from another county, and moving the trial out of Vilas County as a last resort.
"I'm not convinced, at this point, that we need a gag order," Stenz said. "I still think we can get a fair trial in this county."
The next time the Eliasons appear before Stenz their attorneys will seek to have the case thrown out on the grounds the law they are charged with violating is unconstitutional because it does not clearly address intent. The defense attorneys have 30 days to file a joint motion to that effect. The state will then have 30 days to file a response, and the two sides will then have 10 days to file answers.
When asked how much time would be needed to hear arguments on their motion, Kravit told the judge "about an hour."
Stenz then scheduled two hours on Aug. 4 for the hearing.
"You've been around attorneys too long," Kravit replied.
If the motion to dismiss is unsuccessful, the two cases will head to a consolidated preliminary hearing to determine if probable cause exists for the cases to proceed. Stenz has not yet set a date for that hearing.
Jamie Taylor may be reached at [email protected].
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