Municipal Judge Finds Left of Center Managers Guilty in Drug Paraphernalia Case; Defense Planning to Appeal
The City of Hudson has won the first round of legal action in its drug paraphernalia case against two Left of Center managers, but the defense attorney said he plans to file an appeal to have the case decided in St. Croix County Circuit Court.
The City of Hudson has won the first round of legal action in its drug paraphernalia case against two local smoke shop managers.
City of Hudson Municipal Judge Susan S. Gherty issued a 16-page decision on Wednesday afternoon finding both Melissa Daniels and Brian Orcutt, managers of Left of Center, guilty of 25 counts of selling 25 pieces of merchandise in the tobacco and adult novelty shop on May 21, 2012. Each citation carries a fine of $240. Together, the two managers have been fined $12,000.
The following is the conclusion of Gherty's 16-page decision (attached):
City of Hudson Ordinance §118-2 is explicit and precise in its language. The evidence is likewise clear, convincing and satisfactory and established that exhibits 7 through 31 conform to the definition of drug paraphernalia as set forth in the ordinance.
The defendants are found guilty on all 25 counts and ordered to pay forfeitures of $240 per citation for a total of $6000 per defendant.
"I agree with the judge's findings and believe she took a common-sense approach in making her decision," said Max Neuhaus, the attorney who represented the city in the case.
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Options for Appeal
Neuhaus said the defendants have a few options to keep the case alive.
"When a municipal court finds a defendant guilty, the defendant has a right to appeal to the circuit court, which must be granted," he said.
According to Neuhaus, the defendants can opt for a new trial with a St. Croix County Circuit Court judge deciding the matter or a new trial with a six-person jury deciding the matter in circuit court. They could also have a circuit court judge simply review a transcript of the municipal court trial and issue a decision on the case.
Defense attorney Andrew Nelson hasn't yet decided which of the three options is best for the two defendants, but he has every intention of filing an appeal.
Defense Attorney Reaction
"I'm pretty frustrated with the decision. The decision kind of speaks for itself." Nelson said. "The judge essentially found that of the 14 categories and factors that courts consider in defining whether an item is or is not paraphernalia, nearly all of them fell in favor of the defense. The ones that didn't, I don't understand how a logical assessment of the facts and evidence would find that there was proof that was clear, convincing and satisfactory."
Nelson pointed out that the judge's decision established that somehow the items in question were legal to possess, but not to sell.
"There's a reason why we have appellate review in any state or federal court," Nelson said. "It's because sometimes the judges in charge of making these decisions just plain don't make the right decision. And I don't think the judge made the correct decision, so we will appeal to the circuit court. That's our next step."
Nelson has 20 days to file his appeal.
Legal Costs Mounting for City
This municipal court trial could be just the beginning of costly litigation for the City of Hudson. If Daniels and Orcutt file an appeal, they could force the city to spend for Neuhaus' services in a circuit court jury trial.
Also pending are municipal court trials for Left of Center Inc., The Hideaway LLC and the manager of The Hideaway — all of which are clients of Nelson.
A manager at The Hideaway was hit with 52 citations in a similar situation in January.
"And then, any time there is a new product or new item that comes out, there's going to have to be a trial on it to determine whether or not it's drug paraphernalia," Nelson said. "At the heart of this matter is that the police chief is picking and choosing what he decides is drug paraphernalia or not."
According to City Administrator Devin Willi, the city has spent $23,532 on Neuahus' legal fees for the case against Daniels and Orcutt starting in September 2012 just through January 2013.
"The city is going to spend a lot of money litigating this, and for what purpose?, to what end?," Nelson said.
Nelson said he found it strange that the city would opt to move forward with municipal trials against other defendants before the a decision has been reached in the Orcutt-Daniels appeal.
"Now we've got Rodli, Beskar, Krueger & Pletcher advocating for additional trials and continuing the case to pad their pockets," Nelson said. "It seems bizarre that they wouldn't have taken the Hudson Police chief's advice and gone forward on the tickets against the entity rather than wasting everybody's time on three separate trials."
Despite city budget difficulties, Hudson Mayor Alan Burchill isn't concerned with the amount of legal fees spent on the case so far.
"I don't think we're going to reduce any city services as a result of this," Burchill said. "The purpose of this ordinance is to protect the citizens of Hudson, not to harm them."
Hudson Police Chief Marty Jensen could not be reached for comment for this article.