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TRANSCRIPT OF PROCEEDINGS
(Whereupon, the following transcript of proceedings commenced at two twenty-four p.m. in the afternoon).
THE CLERK: Calling Case Number 23-CV-7069. Patrick Tomlinson versus Daniel William Mullen. Can you state your name for the record, please.
THE PETITIONER: Patrick Tomlinson.
THE CLERK: Thank you.
THE COURT: Good afternoon, Mr. Tomlinson. This is Judge Watts. You're here in the trial court on a de novo hearing regarding the Commissioner's denial of your temporary restraining order known as a T.R.O. of an harassment injunction.
And I don't know what you know. So, when I make rulings, I want to make sure that people understand what's happening. But before I explain that, I want to know what happened to you as far as you know.
You filed this petition, correct?
THE PETITIONER: I did through a third-party service center, Sojourner.
THE COURT: I'm sorry. Through...
THE PETITIONER: It was through a third-party service known as Sojourner here in Milwaukee.
THE COURT: It is marked document 511. And we know that the Commissioner reviewed it. He looked it over and analyzed it and referred to the law and then made a decision to deny it; you know that?
THE PETITIONER: Yes.
THE COURT: Did the Commissioner explain to you what happened or why he made that decision?
THE PETITIONER: We received an e-mail this morning outlining-
THE COURT: You got an e-mail?
THE PETITIONER: Yes.
THE COURT: All right.
THE PETITIONER: This is all - - This is all filed electronically late yesterday afternoon.
THE COURT: All right.
THE PETITIONER: So, I mean, the Commissioner really only had an hour or two (2) to actually have seen it and then rendered a judgment and e-mailed out a Decision that I got approximately ten o'clock or so this morning.
THE COURT: All right. Off the record.
(Whereupon, a discussion was held off the record).
THE COURT: Thank you. We are back on the record.
THE CLERK: Judge, do you want me to print a copy for him so he knows --
THE COURT: Yes. We should have the Commissioner's explanation.
THE CLERK: Because that's not actually in the Court record yet. So, we can do that.
THE COURT: While you're doing that, I will continue to explain how it works and why and what my job is.
So, you're appealing the Commissioner's denial of your T.R.O.
THE PETITIONER: That is correct.
THE COURT: And I am not sure of the date. what date, you said that it was done a few days ago?
THE CLERK: This morning, Judge.
THE COURT: This morning. All right. So, the Judge has to follow the same law as the Commissioner. A de novo hearing is, essentially, from the beginning for a do-over. In other words, everything starts аnew.
But what I have to decide is what is in this petition and the law. So, I will start with the law.
So, the Clerk's giving you a copy of the Commissioner's reasoning. And, quite frankly, but to obtain a harassment T.R.O., the petition must be legally sufficient. The definition for the petition requirements is found in the T.R. -- in the injunction Statute 813.125(5): Petition, sub (a), The petition shall allege facts sufficient to show the following:
One (1), the name of the person who is the alleged victim. That's Mr. Tomlinson. That's done.
Two (2), the name of the respondent. That respondent is Daniel, D-A-N-I-E-L, Mullen, M-U-L-L-E-N. That's done.
Third, that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
Those are the pertinent sections for the definition. So, essentially, the Commissioner found that you did not allege facts sufficient in your petition. So, the requirement that the respondent engaged in harassment with intent to harass or intimidate the petitioner is the question.
So, what is harassment. That's also defined in the statute. And harassment is found in 813.125 (1) (am) 4: Harassment means any of the following: b: Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.
Now, the Court has interpreted some of those words I just read.
For example, a legitimate purpose is one (1) that is protected or permitted by law. That's from Welytok versus Ziolkowski, W-E-L-Y-T-0-K, Z-I-0-L-K-0-W-S-K-I, 312 wis. 2d 435 1987 Wisconsin Supreme Court case.
So, I am now going to look at the words that you used in your petition. And this is where the problem is or is not; because if the words aren't sufficient, then the Court will agree with the Commissioner. If the words are sufficient, I will grant it.
So, how do I discuss this, I do it simply by talking about the way it's written and the logical inferences that I have. The very first problem I see is, we have a number of sentences that would appear to be a paragraph.
So, this is the first paragraph, as I view the way it's written and the number of sentences. And it starts out with the words: The most recent incident was I had court hearing late last month. So, this would be late last month that this incident that we are talking about relates to.
And then it says: After weeks taunting my wife about the hearing. He flew -- Again, the typing is not strictly grammatically correct, because it says: He flew and to Milwaukee and attended the hearing.
But I can interpret that, that the respondent knew about a court hearing late last month, and while taunting my wife is kind of vague and-- taunting my wife about the hearing, the respondent flew to Milwaukee and attended the hearing.
THE PETITIONER: Your Honor, if I may, I did not actually write that.
THE COURT: I'm sorry?
THE PETITIONER: If I may clarify something, I did not actually write that. Again, this was prepared for my wife and I by services at Sojourner here in Milwaukee. They are the ones who took that -- took a statement from me over the telephone.
THE COURT: Right.
THE PETITIONER: That was done yesterday.
THE COURT: And this is precisely the problem with the petition. It's grammatically incorrect. And even when I make assumptions and inferences that are proper, it's very hard to understand, first of all, what's happening. And, secondly, that the conduct that you're talking about arises to harassment. And the idea that some photography of another is a permitted purpose; that is, that it's not improper or illegal.
THE PETITIONER: Well, I would be happy to add context for it.
THE COURT: Right. Okay. So, we are making grounds. But I just want to illustrate it from my discussion of the paragraph, the difficulties I have. Because the way it's written: I had a hearing late last month which -- this is September; last month would be August.
THE PETITIONER: Yes. The hearing date was August 24th.
THE COURT: Right. But, unfortunately, I have to do what is written on the paper, not from the Commissioner. That's the problem we have.
You can file another petition that has clearer words and more information.
THE PETITIONER: I'd be happy to do so.
THE COURT: Well, we are going to end up with that being the case. So, let me just explain a few more things. Because, as a Judge, I am concerned that some of the things I can infer from here could get close to harassment, but you need to think about the fact that some photography is legal here in a public place.
THE PETITIONER: Well, we were not in a public place.
THE COURT: What's that?
THE PETITIONER: We were not in a public place, Your Honor.
THE COURT: You were in a courtroom which is--
THE PETITIONER: No. No. No. That is not worth talking about.
THE COURT: Okay.
THE PETITIONER: Okay. This man for the last five (5) years has been part of an organized cyberstalking cult that has been attacking my family every day even every hour. They are responsible for forty-three (43) different swatting attempts or false calls to our home.
THE COURT: Right. Madam Reporter, swatting is just like it sounds. So, it's where people call up and create an emergency at some address where they have to send officers.
THE PETITIONER: They've also made half a dozen different bomb threats in our names three (3) different states. They have impersonated and have stolen my identity. They have created and made--
THE COURT: And who is they? You need to explain how this relates to--
THE PETITIONER: Mr. Mullen is by his own -- by his own description a ringleader of this on-line cyberstalking cult which is dedicated to stalking and criminally harassing my family. He is a proud leader of it. He has twice now flown from where he lived in Boston -- or just outside of Boston, Kingston to here to Milwaukee, specifically, for the express purpose of physically stalking and intimidating me.
Last October, he flew to Milwaukee for the express purpose --
THE COURT: Well, let's leave last October out. But even in the few sentences you said here today, that's quite different than what is in this petition. And that's what I am trying to explain. Am I clear?
THE PETITIONER: You are.
THE COURT: Okay. And I don't know of any barrier where you cannot write out a clear statement. But even in your statement to me, I know that you have documents, screen shots, e-mails, texts, and all of those are powerful fact bases. In other words, today, in today's society, anyone can say anything about anyone, okay.
That's just the society we have.
Whether it crosses the line in to harassment or another illegal category, that depends on various facts and how they are viewed in the context. And when you look at what the Commissioner wrote, one (1) of the concerns was that this context was absent here.
I think another way of saying the Commissioner and this Judge, who agrees with the Commissioner, were concerned is that, context also explains what is going on. And even if your few statements to the Court is now an explanation, that explains to me a very different picture than what I got when I read this.
And I could see that there was some smoke here, but I have to have the fire of the elements of harassment. And they have to be laid out. They have to be connected to the respondent. They have to form the course of conduct or repeated committing acts which harass or intimidate another person and which serve no legitimate purpose.
So, you have to explain how a course of conduct or repeated acts or both harass or intimidate you and document that and explain how they are connected both over a period of time. Because a course of conduct implies a period of time or repeated committed acts implies a period of time. You have to explain how they harass or intimidate. I am not saying you're making this up. Don't misunderstand.
THE PETITIONER: Well, you certainly are.
THE COURT: No. And I want you to know the Judge is sympathetic to this issue. But I think my point is, the Commissioner and I have to deal with the words on the page. And they are disjointed. They are not clear.
You say this hearing was for a defamation case. You sued against Daniel. So this--
THE PETITIONER: No, not against Daniel. Again, Your Honor, this is not something that I wrote. This is something that was generated after I had spoken to the professionals who work at--
THE COURT REPORTER: I'm sorry. Who works with...
THE PETITIONER: Sojourner.
THE COURT REPORTER: Sojourner.
THE COURT: Sojourner. That's Sojourner, Madam Reporter. They assist people to file these types of things; but in the last period of time, I found them not to be articulate. And that's the problem.
THE PETITIONER: Okay. Well, then if I can--
THE COURT: So, if you've understood my position, I am just trying to explain this. I think that you can be articulate. I think you can be substantive by attaching screen shots, e-mail chains, and any number of documents which support this.
And, also, understand this idea of harassment, intimidate, I think the large volume of these actions would more easily show harassment than a smaller one (1), if that makes any sense. And, also understand that if the conduct is protected by law, and that is, if it's legal, then it's not harassment.
Although, I think there's an argument to be made that even legal conduct done in an excessive way could violate the statute. But I've accomplished my purpose. And you're extremely intelligent. I appreciate this. But what is written on this paper is insufficient.
So, I do agree with the Commissioner. But I would give you these thoughts: You can type one (1) out or even write one (1) out. You can attach documents to support. You can explain the events. And I'm sorry, just out of curiosity, it was not a defamation case? Was there any case against Daniel Mullen?
THE PETITIONER: There has not been a case against Daniel Mullen at this point. There will be, though.
THE COURT: But it said, weeks -- you had a court hearing after weeks taunting my wife, was your wife involved in the hearing?
THE PETITIONER: No. She was not present at the hearing.
THE COURT: Okay.
THE PETITIONER: The background of the context for that was about three (3) years ago, my wife and I took out a lawsuit against this this cyberstalking cult.
THE COURT: Well, but that's the genesis; say that. You know, three (3) years ago, I and my wife filed one (1), two (2), three (3) case against Mr. Mullen.
THE PETITIONER: It was not my intention exactly. At that time we did not know his name.
THE COURT: Okay. Well, then explain. And then, I discovered how he is involved in this. This has resulted in these texts, in these that he posted on YouTube. And, frankly, if the YouTube 1s offensive, take a flash drive and attach it to the petition.
THE PETITIONER: It's quite offensive.
THE COURT: But I just want you to understand how Judges and Commissioners work and hear the high volume. My goal isn't to disappoint you.
THE PETITIONER: Well, we are.
THE COURT: I know. But my goal is to follow the law, and that's what I have to do.
THE PETITIONER: Our understanding was the temporary restraining order was a way to get in to the hearing for the permanent restraining order.
THE COURT: That's correct. But you can't--
THE PETITIONER: -- to all be present.
THE COURT: Right. But you have to get into the door and to get the hearing, and the T.R.O. is the door.
THE PETITIONER: May I ask a question?
THE COURT: Oh, of course. Because I'm here to -- I should not give legal advice, but I'm here to give you what I can.
THE PETITIONER: Is this a situation where we amend this case, or are we going to have to go back and re-start an entirely new file?
THE COURT: I am going to sustain Commissioner's, so, it would be dismissed; so, you'll have to start a new case. So, that would be the answer to that. Anything else I can help you with?
THE PETITIONER: No, sir.
THE COURT: Thank you so much.
(Whereupon, the transcript of proceedings was concluded at two forty-four p.m. in the afternoon.)
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