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Tuesday, September 30, 2014 |  Madison, WI: 49.0° F  Overcast
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Jury finds Wisconsin Capitol protester guilty of breaking administrative code for chalking sidewalk
Jason Huberty ordered to pay $50 forfeiture and court costs

Credit:Judith Davidoff

Jason Huberty was found guilty of violating a state administrative code for writing with chalk on a sidewalk on the grounds of the Wisconsin Capitol.

The six-person jury delivered the unanimous verdict after the one-day trial ended early afternoon Tuesday.

Dane County Judge Julie Genovese ordered Huberty, who regularly attends the Solidarity Sing-Along at the Capitol, to pay a $50 forfeiture and court costs.

The state Department of Justice has dismissed dozens of tickets issued for Capitol violations since Capitol Police Chief David Erwin took over in August 2012, and this is the first time the state has taken one of the cases to trial.

Huberty, who has been cited 21 times while protesting at the Capitol, was ticketed Nov. 16 for writing "OMG GOP WTF" on a sidewalk near the State Street side of the Capitol. Both Huberty, a Ph.D. student in geology at UW-Madison, and Andrew Hyatt of the Capitol Police department testified that Hyatt asked Huberty to stop and warned him that he would be cited if he continued to write on the sidewalk.

Huberty said that he asked Hyatt whether he was on a public sidewalk, but Hyatt said he wasn't going to debate the matter.

Any effort by defense attorney Bob Jambois to introduce First Amendment considerations to the court were rebuffed by Genovese.

"The question is, does [Huberty's] conduct violate this ordinance," Genovese asked. "I'm not going to decide on the constitutionality because nobody asked me to do that."

At issue was whether state administrative code 2.07 prohibits sidewalk chalking. The provision reads that "no displays, signs, banners, placards, decorations or graphic or artistic material may be erected, attached, mounted or displayed within or on the building or the grounds of any state office building or facility without the express written authority of the department."

Jambois argued during the trial that the code does not prohibit sidewalk chalking.

"If the state of Wisconsin wants to enact legislation prohibiting somebody from chalking a sidewalk, then I think it's up to them to enact legislation that prohibits persons from taking washable sidewalk chalk and chalking the sidewalk."

But Jeffrey Gabrysiak, the prosecutor from the Department of Justice, insisted sidewalk chalking was covered. "Huberty testified prior to Nov. 16 he knew of the regulations. He blew it off because he wanted to. This is a strict liability violation of the administrative code."

Jambois had requested that if jurists found Huberty guilty they identify which behavior he had engaged in -- whether he had erected, attached or displayed something, for instance -- but Genovese declined to include that in her jury instructions.

Jambois said after the trial that he, co-counsel Patricia Hammel and Huberty would consider their options. Jambois said they could appeal or bring a motion requesting that Genovese vacate the guilty verdict or dismiss the charge.

"Whether chalking a sidewalk is included within the confines [of the administrative code] is ultimately a legal decision," said Jambois. "She could still decide it does not include chalking a sidewalk."

Department of Administration spokeswoman Stephanie Marquis could not be reached for comment.

[Editor's note: This report was corrected with the last name of Officer Andrew Hyatt.]

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