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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 . 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.


RELATED:

  • Hudson Police Issue 52 Drug Paraphernalia Citations to The Hideaway Smoke Shop

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.


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Joe Osterberg February 22, 2013 at 12:39 PM
What a joke. Turn in your horse and buggy Hudson; Come join the 21st century, it's nice here.
yomammy February 22, 2013 at 01:24 PM
I am no fan of drugs, but this is a bit odd. legal to own, but not use (with illegal drugs)? Is that what i am reading? So you arrest them for something that COULD (but has not yet) be used with drugs? hmmm
Paine Reliever February 22, 2013 at 01:54 PM
So, we can't afford to hire police officers or keep the library open but we can spend how much on 3 separate court cases for what purpose? The mayor does not seem too concerned about $23,000 in legal fees to the taxpayers he has already spent. How much is he and the city council going to spend on this issue? How is this protecting the citizens. Is it not harming the city of Hudson to spend money on litigation instead of hiring officers that we are told we are in need of?
Chadwick February 22, 2013 at 02:10 PM
This is ridiculous! What a waste of money and resources. I am a big fan of the mayor and most of the city council but they need to step in and end this debacle.
Big Guy February 22, 2013 at 02:26 PM
Its easy to spend someone elses money to litigate this. Lets equate the 23K to the amount of tax revenue the city gets from the dog track annually that they couldn't live without. Why not spend that money (and the future money that will be spent) towards trying to cut down on the heroin problem in the city? I would assume the city has a budget for potential litigation expenses. Why not use that money towards cases we don't have a choice to litigate? Come on Mayor Burchill and City Council. Step up to the plate and stop this nonsense.
Concerned Citizen #1 February 22, 2013 at 03:16 PM
What a giant waste of money...way to be "fiscally responsible" city council. How were the "citizens of Hudson" being harmed in the first place?
Robert Burke February 22, 2013 at 03:29 PM
Libertarian Caucus tomorrow boys and girls. 8 AM registration 830 Caucus - UWRF University Center Room 321. The only way to change this is to organize. By the way, at the time the seizure was made I sent an email to the Chief Marty alerting him that he had best get to Menards and Home Depot. Pretty sure they have pipe making materials there that need confiscation. Youtube.com/LibertyValleyWI for more info on the Caucus.
PackerBacker February 22, 2013 at 04:34 PM
Robert Burke: Don't forget about Walmart, County Market, Family Fresh, and any other store that sells aluminum foil or other MacGyver Pipe materials. People will find a way to get high if they want to whether it's in a fancy piece of glassware or with a pack of rolling papers, and maybe the police should focus more on the Heroine and Prescription Drug issues of Hudson first. Somebody ought to look for a nice broom to sweep this current Hudson City Government out the door with come the next election; don't forget that they spit on the school referendum that Hudson voters passed in every district, want to raise park fees, shut down the library, and cut ties with the dinghies and docks on the river. Where is their sense of "Fiduciary Responsibility" when it comes to this paraphernalia issue? And why didn't they just deny the opening of the Hideaway in the first place since every other Hideaway store sells the same exact products???
R Stime February 22, 2013 at 04:47 PM
Most municipalities do not go looking to force litigation and resulting costs unless there is high probability of of success and benefit to the community related to cost, a strong public outcry for action, or probability that the costs will not continue to mount. I do not think we can state that we have a strong position on any of those criteria. Our public safety dollar is already stretched according to the council. Is this Chief Marty Jensen's initiative or is the council pushing him? What man hours not included in the lawyer fee have been spent researching, investigating and writing tickets to all of these businesses? I say this because I have noticed that there has often been a squad parked at one of tobacco shops, how much are we investing in this?
yomammy February 22, 2013 at 04:51 PM
What does the council/mayor have to do with this?
Robert Burke February 22, 2013 at 05:01 PM
Chief Jensen at the time of raid- “We all know there is a drug problem in Hudson. If we can slow the sale of drug paraphernalia, maybe we can slow down some of the drug use as well. We know that moving the sale of ephedrine to behind the counter slowed the methamphetamine traffic. Maybe this action can have a similar effect.” It should be noted that intentions are never a good measure. If I intended to run my car on paint that doesn't mean I will be successful. In fact my intentions would ruin the engine. I prefer to judge by outcome and the war on drugs has been a disaster.
bblair February 22, 2013 at 05:06 PM
That is why she is a municipal judge.....
Big Guy February 22, 2013 at 05:27 PM
'What does the council/mayor have to do with this?' They control the city budget.
Chadwick February 22, 2013 at 06:07 PM
I could be wrong but I believe it's also a city law that they are enforcing and not a state law.
T N T February 22, 2013 at 07:35 PM
seems to me that the shop did not care about the law as they were sent a letter giving them 30 days to remove the items from the store.
R Stime February 22, 2013 at 08:07 PM
I read that the owners left the display models out on purpose to basically force the police to give them the tickets. This may be a fight they are willing to have with the city. Is it a fight the city is willing to spend tax dollars on? If so, how much? I still am not clear on how this investment in legal fees and police man hours will protect our citizens. I do find it curious that the council let these smoke shops open their businesses knowing exactly what they market and sell and now seem to be trying to use a loophole to harm the business. It should be noted that the same paraphernalia is available in River Falls or any other local town. What is the point?
Colonel Mustard February 22, 2013 at 08:21 PM
Hudson has all modernity of the early 20th century and is rapidly sliding backwards. Entire states make it legal to smoke pot and Hudson goes out of its way to spend money to stop the sale of perfectly legal items. What can one expect from a City Council composed of petty TEAPublicans?
Colonel Mustard February 22, 2013 at 08:25 PM
Where are all of the "defenders of liberty" on this issue? The "defenders of freedom"? Why are they not picketing in front of these two stores to tell the police to leave the shop owners alone? What would Ayn Rand say?
Chadwick February 22, 2013 at 08:42 PM
Col Mustard, I am a die hard republican when it comes to fiscal responsibility and I completely disagree with the police and city council on this. Your broad swipe and childlike comment shows a lack of depth and understanding of any party. Do you even know what the Tea Party stands for? Go back to the Daily Kooks.
doogie howser February 22, 2013 at 09:44 PM
Hudson and St Croix county has bigger problems than this. Both city and county law enforcement and courts are cowards, They dont know how to deal with the problems that effect the citizens.
T N T February 23, 2013 at 03:30 AM
The City Council has little control as to what businesses come to town if it is zoned correctly. Businesses are popping up all the time and unless changes are needed they just go up. I did some research and this is not a new law on the books. This is not a law that the current or even recently past councils made. It is however a law that seems to be revisited due to the growing drug problem in the City. The high school and middle school seem to be flooded with this crap. I would like to see our K-9 unit there monthly. But hands are of course tied with gov't and the police have to give notice before going in and sniffing lockers. How lame.
Robert Burke February 23, 2013 at 03:59 AM
Hey Chadwick...You do know the Republican platform starts with "a freer America" right? Free and freer are a world apart. Hope to see you tomorrow.
Paine Reliever February 23, 2013 at 06:05 PM
@TNT, I am not claiming the current or recent council made this law. But I do hold them accountable for getting us into this potentially expensive rathole. We were told in the Star Observer that another municipality used this law to limit pipe sales successfully. Turns out the interpretation of this law is vague and is still being appealed in that municipality. The police chief wrote tickets based on an unproven interpretation of the standing law with the support of the mayor and certain council members. Now we are stuck with possibly 3 separate but redundant litigations on the taxpayer dime. Seems to me the only ones pleased with this situation is the lawyers. Just being told that we have a drug problem is not reason enough to trail blaze the gray area of law without a concern for cost. What is our real drug problem? Pot, meth, cocaine, alcohol? My question remains, how will limiting the sale of only some pipes stop this problem when they are available everywhere else or can be made out of a pop can? Who on the council besides the mayor supports this goose chase without concern for cost to the taxpayers? How much will it cost?
Colonel Mustard February 24, 2013 at 12:44 AM
@Chadwick...I know what the TEA Party stands for and I know how and why it was started along with knowing how it is funded. I also have a pretty good understanding of the politics of the Hudson Common Council and the St. Croix County Board of Supervisors. I did not make a broad sweep, nor is it chidlike. Also for your information I do not read the Daily Kos, nor do I read the Drudge Report, so you know not of what you speak (write). I respect you for being a "die hard" Republican; as such what are you going to do to regain control of your party which has been totally hi-jacked by the TEA Party fringe? Including the St. Croix County Republican Party.
Colonel Mustard February 24, 2013 at 12:45 AM
There's that pesky Constitution thingy again.
T N T February 24, 2013 at 02:12 PM
@colonial mustard. I am curious if u can give examples of how the st. Croix cty Republican party is high jacked by the tea party. Also please explain the politics behind the council and county board. You have passed a lot of judgment here. Just looking for facts to back up your statements
Paine Reliever February 24, 2013 at 06:37 PM
@tnt, interesting that you bemoan the constitution protecting privacy rights when commenting above regarding surprise locker checks. Would you use that same constitution (2nd amendment) to argue against an assault weapons ban? Pipes don't get people high, people get people high. Who are the city council members that support the mayor in waiting our money? How much will they spend before they become "concerned?"
Colonel Mustard February 25, 2013 at 05:34 AM
Rather than name specific individuals which would be rude I can suggest that you do some digging and check out the attendees at the recent TEA Party events which have been held in Lakefront Park; where the large motor homes from the TEA Party Express and other related organizations have been parked. If you compare those names with the namess of officers of the local Republican Party and those of local TEA Party organization you might be surprized at what you find. It's all available with a bit of Google searching. You might want to throw in some Face Book research also.
The Observer February 27, 2013 at 10:55 PM
It's hilarious that the managers at Left of Center are blaming the city for the misuse of 23k in legal fees when it's the actions of the managers that led to the prolonged court battle in the first place. The LOC managers obviously don't know the phrase "cut your losses". If a cop gives a person a warning, the person should be grateful. Purposely disobeying the cop in hopes of changing the law is as stupid as it is hopeless. If the managers would have simply cut their losses and accepted their fate the 23k in legal fees wouldn't exist, not to mention LOC's legal fees. Bringing this to the circuit court will waste even more taxpayer money and LOC's money, further proving that those managers don't understand how to "cut their losses". They are wasting taxpayer's money and they have no shame in doing so.
juztyn July 12, 2013 at 08:21 PM
LOC obviously doesnt care how much its going to cost. it is a battle they are willing to fight. how long will the mayor and city council continue to waste the tax payers money is the real issue here

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