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COA affirms verdict finding violation of harassment injunction and stringent probation terms

State v. Leonard D. Kachinsky, 2020AP118-CR, 7/29/20, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2018, the circuit court imposed a harassment injunction against Kachinsky (then a municipal judge) based on his conduct toward M.B., the municipal court manager. This appeal concerns his conviction and sentence for violating that order by hanging a sexual harassment poster by M.B.’s desk and highlighting the term “sexual” each time it appeared.

Here are the terms of the harassment injunction:

All communications between [Kachinsky] and [M.B.] shall be limited to what is necessary to perform the functions of the Village of Fox Crossing Municipal Court. Communications related to the personal relationship or personal rapport between [Kachinsky] and [M.B.] are not included in the operation of the court and are prohibited under this section. Opinion, ¶2.

The court of appeals first disposed of Kachinsky’s argument that the injunction was ambiguous as to whether it applied to the conduct at issue. The court held that a defendant cannot collaterally attack an injunction in a subsequent criminal prosecution for its violation. State v. Bouzek, 168 Wis. 2d 642, 643, 484 N.W.2d 362 (Ct. App. 1992). It further noted that the jury was asked whether Kachinsky knowingly violated the injunction, and it answered “yes.” Opinion, ¶9.

The court of appeals observed that there is an open question about whether the State must show that the defendant knew his conduct violated the harassment injunction at issue. See State v. Sveum, 2002 WI App 105, ¶24, 254 Wis. 2d 868, 648 N.W.2d 496. In Kachinsky’s case, this didn’t matter because the jury specifically found a “knowing violation.” Opinion, ¶9 n.4.

Next, the court of appeals rejected Kachinsky’s claim that there was insufficient evidence of a violation. He argued that the poster related to M.B.’s official duties as court manager, but later told a sheriff that he hung the poster because it might help him negotiate as resolution of civil court cases concerning M.B. The court of appeals reviewed the evidence and held that the jury could have reasonably concluded that Kachinsky his knew the poster “was not necessary for the functioning of his court.” Opinion, ¶13. That is, it violated the terms of the injunction.

Finally, Kachinsky argued that the terms of his probation were unreasonable. The sentencing court barred him from posting on social media (specifically Facebook) and from entering the municipal building where M.B. works for 1 year. (SCOW suspended Kachinsky from his municipal court duties, so he no longer works there.).

A sentencing court may consider all relevant information bearing on a sentence. including facts related to offenses for which a defendant was acquitted. State v. Frey, 2012 WI 99, ¶¶45, 47, 343 Wis. 2d 358, 817 N.W.2d 436. Here, the sentencing court considered other incidents, charges, trials and disciplinary proceedings concerning  Kachinsky’s interactions with M.B. It also relied on M.B.’s sentencing statement, where she pleaded for relief from 2 1/2 years of harassment by him and on Kachinsky’s sentencing statement, where he said that M.B. was “overreacting.” Opinion, ¶¶18-19.

The court of appeals assumed that the terms of probation impinged Kachinsky’s constitutional rights and noted that this is permissible as long they are aimed at rehabilitating him and protecting society. Opinion, ¶15 and ¶22 (citing State v. Oakley, 2000 WI 37, ¶8, 234 Wis. 2d 528, 609 N.W.2d 786). It held that the circuit court appropriately exercised its discretion because the probation terms did not prohibit Kachinsky from browsing social media or even impact his daily life.  And they were necessary to “detach Kachinsky from his ongoing obsession with M.B.” and to “afford M.B. peace of mind–to end her years-long ‘living nightmare.”

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