STATE OF WISCONSIN
CIRCUIT COURT BRANCH 8
DANE COUNTY
JEREMY RYAN, LAURI MARIE HARTY, ANNE MARY HOPPE, KATHLEEN D.
HOPPE, JENNA BRIANNE POPE, and VALERIE ROSE WALASEK,
Plaintiffs,VS.
DECISION AND ORDER
MIKE HUEBSCH, Office of the Secretary, CHARLES TUBBS, Chief,
Division of Capitol Police, CHRIS WEISS, STEVEN B. MAEL and JAMES
BROOKS, Division of Capitol Police, all in their Official and
Individual Capacities, Defendants.
Case No. 11-CV-4913
DECISION AND ORDER ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
JUDGMENT AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The "Monday Morning Quarterback" is a person who, after the game
is over, criticizes the action from a position of hindsight. The
"Monday Morning Quarterback" is not pressed for time nor distracted
by the crowd. He does not have to react to an ever-changing series
of plays or events. But nonetheless, he feels confident in his
ability to render his opinion as if it should have been obvious to
everyone who ran out on to the playing field. About 18 months have
passed since the historic protests at the Wisconsin State Capitol
(hereinafter referred to as the "Capitol") over 2011 Wisconsin Act
10, also known as the "Wisconsin Budget Repair Bill." The passage
of time has made it easier to reflect back on the situation and
evaluate what people should have done. But in this instance, it is
certainly
1
apparent that the conclusions articulated below, from the calm
and peace of this chamber, are not something that would have been
obvious to anyone at that tumultuous time. The unusual analogy
above is offered because, as evident below, this Court has decided
this case on grounds not exactly in line with the arguments of the
parties. This Court has examined the facts and come to the
conclusion that the legal questions framed by both parties in their
motions are not presented by the case or controversy created when
the Plaintiffs were given their citations. It might be that this
Court has had the benefit of examining those facts in the rather
sterile atmosphere of these judicial proceedings. It is just, in
this Court's opinion, that the question presented today is framed
and decided below somewhat differently than how the Plaintiffs
presented and how Defendants defended. A voluminous record has been
created and both parties have presented written and oral arguments
in support of their respective motions. For the reasons explained
below, the Defendants' motion for summary judgment is GRANTED and
the Plaintiffs' motion for partial summary judgment is DENIED.
BACKGROUND What transpired in the Capitol in early 2011 was far
more than whether anyone could have a sign on the first floor of
the rotunda. The clash between what the Plaintiffs wanted and what
the police were instructed to do raises for review the question of
the extent of the lawful authority of the Capitol Police Department
and whether it could confine protesters to one part of the Capitol
rotunda. The importance of understanding what actually transpired
over a year ago cannot be overstated. This Court cannot consider
the legal issues raised by either party until it understands what
exactly went on.
2
I.
The parties The Wisconsin Department of Administration ("DOA")
has the authority to manage and
operate the Capitol under Wis. Admin. Code ch. Adm. 2. Defendant
Mike Huebsch is the Secretary of the DOA. The DOA has delegated the
issuance of permits to conduct activities in the Capitol, as well
as other state properties, to the Division of State Capitol Police.
Defendant Charles Tubbs was the Chief of the Wisconsin State
Capitol Police. Defendants Chris Weiss, Steven B. Mael, and James
Brooks were officers in the Wisconsin State Capitol Police. From
March 23, 2011, through March 27, 2011, the Plaintiffs were issued
a number of citations by the Defendant police officers for holding
signs bearing political content while standing on the first floor
of the Capitol rotunda. II. The initial lawsuit challenging
attempts to restrict access to protesters and the ensuing
injunction On March 1, 2011, approximately three weeks before the
Plaintiffs were given the citations that are at issue in the
present case, a number of organizations filed a motion for
temporary injunction (without a corresponding complaint)
challenging the constitutionality of the new policies the DOA had
issued to control access to the Capitol. (Lazar's Fourth Aff. Ex. 1
Transcript from March 3, 2011, oral ruling in Wisconsin State
Employees Union, et al. v. State of Wisconsin, et al., Dane County
Circuit Court Case No. 11-CV-0990, hereinafter referred to as "WSEU
v, Wisconsin"). In that case, it was undisputed that the Capitol,
or at least parts of it, was government property that,
notwithstanding being an "office building," was also a place were
the public could assemble to exercise their rights to free speech.
After lengthy testimony, Hon. John Albert ruled from the bench.
Judge Albert found that the State and the DOA had waived its
permitting process because the demonstration grew so fast. 3
(WSEU v. Wisconsin Trans. 9:14-10:4). He also observed that the
discord increased in reaction to DOA's attempt to regain order and
reinstitute the permitting process. Judge Albert recognized that
some parts of the Capitol were not a place for a public forum (like
the back corridors leading to individual offices). (Id. at
12:13-23). However, he singled out the rotunda specifically and
separately. Judge Albert ruled that free speech, protest, and
rallies should be allowed during the hours the Capitol is open and
at any other time when either House of the legislature is in
session or any committee or government body is conducting a public
hearing. (Id. at 15:15-19). In particular, Judge Albert ruled: the
permitting process must allow free speech in the Rotunda, and I am
not sure yet on the floor above that. Evidently, that's the first
floor. ... And in the permitting process I approve of one other
limitation, and that is, that within their discretion they can
through the permitting process allow rallies and protests within
the areas that I've talked about, but they can deny access during a
rally to the corridors that go to the offices of the legislators.
(Id. at 16:1-18:17). Although Judge Albert gave his instructions to
Defendant Secretary Huebsch on March 3rd, the "permitting process"
was not implemented by the time the Plaintiffs carried their signs
up to the first floor of the rotunda. On June 16, 2011, the parties
WSEU v. Wisconsin memorialized Judge Albert's order and their
agreement to resolve the case in a stipulation. (See Lazar's Fourth
Aff. Ex. 3). In the order, the parties reaffirmed the right of the
DOA to use the permitting process to allow for public access to the
Capitol. (Id. at 2). Interestingly, the DOA also agreed that "signs
are not precluded by Wis. Admin Code Adm. 2.06 on the ground and
first floor Rotunda." Id. 1
'Wisconsin Admin. Code Adm 2.06 is titled "Handbills and other
literature" and states the following: (1) No handbills, literature,
promotional materials or devices which advertise, promote or
identify a commercial enterprise may be distributed within or on
the grounds of the state office buildings and facilities or on the
grounds of state capitol park without the express written authority
of the department. The department may enforce the size, advertising
message and location for distribution of permitted materials.
4
III.
The Plaintiffs' citations On March 23, 2011, Plaintiffs Jeremy
Ryan ("Mr. Ryan") and Valerie R. Walasek ("Ms.
Walasek") were issued citations after refusing to leave the
first floor of the rotunda with their sign that read: "there's
class warfare alright, but its my class, the rich class, that's
making war, & we're winning Warren Buffet 2006." (Olson Aff.,
May 3, 2012, Ex. A, p. 5). Mr. Ryan was also given a citation after
refusing to leave the first floor of the rotunda with a sign on
March 25, 2011. On March 26, 2011, dressed as Batman (or perhaps
Batgirl), Plaintiff Jenna Pope ("Ms. Pope") was given a citation
after refusing to leave the first floor rotunda with her sign that
stated: "Even Batman Doesn't Support Scott Walker." (Id. at p. 2).
That same day, Mr. Ryan, Ms. Walasek, and Lauri Harty ("Ms. Harty")
also received citations after they refused to move from the first
floor of the rotunda with their signs. On March 27, 2011, Mr. Ryan,
Ms. Walasek, Ms. Harty, Anne Mary Hoppe ("Ms. M. Hoppe"), and
Kathleen D. Hoppe ("Ms. K. Hoppe") refused to move from the first
floor of the rotunda with their signs and, as a result, were issued
citations. Before they were given citations, the police officers
explained to each of the Plaintiffs that the "protest area" was
located on the ground floor. (See Tubbs Aff., May 1, 2012, Ex, A).
This information was communicated to the public via a sign placed
on the first floor of the rotunda that stated: "Demonstration Area
Ground Floor." (Id.). The police officers asked each Plaintiff more
than once to move downstairs where they could display their signs
and continue(2) No person may litter in any state building or
facility, or on state grounds by the distribution of handbills,
literature, promotional materials or devices. Regulation of conduct
in respect to littering shall be under the provision of s.
16.84(2), Stats., and the respective anti-litter ordinances of the
municipalities in which state office buildings and facilities are
located. (3) If the department approves a request to distribute
handbills, literature or promotional materials on or in buildings
and facilities managed or leased by the department, the department
shall designate the time and location for the distribution.
5
their protest.
(Id.). Most of the Plaintiffs engaged the police in a brief
discussion about their
"constitutional right" to protest on the first floor. (Id.).
After refusing their request to leave the first floor of the
rotunda, the police officers issued each of the Plaintiffs a
citation for violating Wis. Admin. Code Adm. 2.14(2)(zd) which
states: Pursuant to s. 16.846, Stats., whoever does any of the
flowing shall be subject to a forfeiture of not more than $500...
Engages in conduct otherwise prohibited by this chapter without the
express written approval of the department. (Emphasis added.). On
or about March 28, 2011, the Capitol Police ceased issuing
citations to individuals holding signs in the areas where the
Plaintiffs had been cited. (Tubbs Aff., May 1, 2012, 8). Chief
Tubbs stated that this decision was made in the interest of public
safety. (Id). IV. Dismissal of the Plaintiffs' citations
Ultimately, the Dane County District Attorney dismissed all of the
Plaintiffs' citations without the imposition of any forfeiture,
penalty, or court costs. According to the Defendants, there are no
records or writings that explain precisely why the Dane County
District Attorney dismissed the citations. (Compl. 423; Tubbs Aff.,
May 1, 2012, 5). Upon dismissal of the charges, the Plaintiffs were
offered the return of their signs. Although no forfeiture was
imposed, the Plaintiffs spent both time and money defending
themselves against the citations. For example, Attorney James J.
Mueller of Cross Plains was retained by Ms. Harty, Ms. Pope, Mr.
Ryan, and Ms. Walasek and charged legal fees in the amount of
$3,300.00, $2,500.00, $4,900.00, and $4,100.00 respectively. (Olson
Aff., Jun. 12, 2012, p. 2).
V.
The filing of the current lawsuit
6
On November 4, 2011, the Plaintiffs filed this lawsuit which
they describe as: a civil rights action arising out of the actual
and threatened enforcement of rules, regulations and policies that
unlawfully restrict the Plaintiffs [sic] freedom of expression on
the grounds of the Wisconsin State Capitol, in violation of the
First Amendment to the Constitution of the United States. (Compl.
101). Based on the allegations in the complaint, the Plaintiffs
assume that their citations under Adm. 2.14(2)(zd) for "conduct
otherwise prohibited" were issued for violating the substantive
provision of Wis. Admin. Code Adm. 2.07(2), which is titled
"exterior and interior displays and decorations." VI. The DOA's new
policy On December 16, 2011, the DOA issued a new permitting
policy. (See Lazar's First Aff. Ex. C). The new policy, entitled
"Wisconsin State Facilities Access Policy," establishes a permit
structure by which individuals may obtain permits. (Id.). The new
policy also allows for First Amendment expression without a permit
as long as the activity is a spontaneous reaction to some event.
(Id. at 4,5,6,8,10, and 11). VII. The Parties' competing summary
judgment motions and oral arguments
On May 3, 2012, the Plaintiffs filed a Motion for Partial
Summary Judgment and the Defendants filed a Motion for Summary
Judgment. On July 2, 2012, at the oral arguments on the parties'
motions for summary judgment, the Court noted that it is not
readily apparent what rules the Plaintiffs' violated because their
citations simply reference Adm. 2.14(2)(zd), which prohibits
"conduct otherwise prohibited by [Chapter Adm. 2]." (Ryan, et al.
v. Huebsch, et al. Trans. 36:10-37:1). The Court also noted that,
distinct from the challenge to any administrative rule or the
issuance of the citations, the issue remained whether the
Plaintiffs were denied their constitutional rights merely because
they were asked to move to the ground floor. (Id. at 58:1323). The
Court asked for supplemental briefing on these issues, which is now
complete. 7
ANALYSIS Before the law can be applied to the facts of this
case, it is essential to make clear what this lawsuit is not about.
This case is not about the content of the speech on the Plaintiffs'
signs. It is not about access to the Assembly or the Senate nor
does it challenge any particular act taken by the Assembly, Senate,
or the policies of the Governor. This lawsuit is not about sleeping
or camping in the Capitol and it does not involve congregating in
the hallways or outside offices occupied by state legislators. It
also does not challenge locked doors or searching backpacks or
prohibitions on singing, chanting, or noisemaking. This case is not
about the wisdom or corresponding problem with requiring "permits"
for using the public spaces in the State Capitol. Instead, the
issue presented in this lawsuit is whether the Defendants violated
the Plaintiffs' First Amendment right of free speech when in March,
2011 they required the Plaintiffs to protest on the ground floor.
I. Summary judgment standard Under Wis. Stat. 802.08(2), summary
judgment is appropriate where "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." The moving party has the burden of establishing
the absence of a genuine issue as to any material fact.
Kremers-Urban Co. v. American Employers Ins., 119 Wis. 2d 722, 734,
351 N.W.2d 156 (1984). All facts and reasonable inferences
therefrom are viewed in the light most favorable to the non-moving
party. Kraemer Bros. Inc. v. U.S. Fire Ins. Co., 89 Wis. 2d 555,
567, 278 N.W.2d 857 (1979).
8
When deciding a motion for summary judgment, the court must
first determine whether the pleadings set forth a claim for relief
as well as a material issue of fact. Swatek v. County of Dane, 192
Wis. 2d 47, 62, 531 N.W.2d 45 (1995). Next, the court must look to
the moving party's affidavits or other proof to determine whether a
prima facie showing has been made which would entitle that party to
judgment as a matter of law. Id. If the moving party has made a
prima facie case, the court must then examine the opposing party's
affidavits and other proof to determine whether a defense has been
raised or material factual issues exist which would entitle that
party to a trial. Ricchio v. Oberst, 76 Wis. 2d 545, 551, 251
N.W.2d 781 (1977). II. The Plaintiffs' claims According to their
complaint, the Plaintiffs are challenging the constitutionality of
both Adm. 2.07(2) and Adm. 2.14(2)(zd). However, their claims and
arguments focus only on Adm. 2.07(2). As such, the Court interprets
the Plaintiffs' action as challenging the constitutionality of the
substantive provision of Adm. 2.07(2), by way of the catch-all
provision in Adm. 2.14(2)(zd). Although the Plaintiffs focus their
claims on Adm. 2.07(2), it is not entirely clear whether they are
challenging the provision as unconstitutional as applied, on its
face, or both. In their Complaint, the Plaintiffs ask for an order
Idjeclaring... Adm. 2.07(2)... unconstitutional as applied to the
holding of signs in circumstances like those of the Plaintiffs
herein," and for an injunctionlelnjoining the Defendants and those
acting in concert with them from enforcing [ Adm. 2.07(2)]."
(Emphasis added.). However, despite the fact that their Complaint
specifically states that they are challenging the rule as applied,
the Plaintiffs argue in their briefs that Adm. 2.07(2) is
unconstitutional both as applied and on its face. (See Pls.' Opp'n
Br. 26).
9
Although the Plaintiffs believe that they can challenge the
provision on its face, the fact remains that the declaratory relief
they seek is limited to that which they plead in their Complaint an
order declaring Adm. 2.07(2) "unconstitutional as applied to the
holding of signs in circumstances like those of the Plaintiffs
herein." In contrast, the Plaintiffs' request for an injunction is
phrased in a way that arguably includes both as applied and facial
challenges to Adm. 2.07(2). As such, the Court will address both
the Plaintiffs' as applied and facial arguments. A. The Plaintiffs'
as applied challenges to Adm. 2.07(2) The Plaintiffs assumed that
their citations under Adm. 2.14(2)(zd) for "conduct otherwise
prohibited" were issued for violating the substantive provision of
Adm. 2.07(2) which states: (2) DISPLAYS AND DECORATIONS. 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. Any graphic or artistic material advertising,
promoting, or identifying a commercial enterprise or a political
activity is prohibited except as indicated in sub. (4). Any
unauthorized material shall be removed and disposed of by the
department. The department may set reasonable time limits on
permitted activities.
(4) DEPARTMENT APPROVAL. Commercial organizations sponsoring a
nonprofit event may be acknowledged during that event with
permission of the department. The department may specify the size
and location of any display, sign, banner or graphic and artistic
material, as indicated in sub. (2). The Plaintiffs argue that Adm
2.07(2) is unconstitutional as applied because it is a
priorrestraint and because it is an unreasonable time, place, and
manner restriction. (Pls.' Opp'n Br. 26).
10
However, the Plaintiffs' as applied challenges to Adm. 2.07(2)
can be dismissed without addressing any of their constitutional
arguments, which is in keeping with the preferred approach of
avoiding unnecessary constitutional decisions. Nat'l Paint &
Coatings Ass'n v. City of Chicago, 45 F.3d 1124, 1126 (7th Cir.
1995). This is because a review of the rule's language, the DOA's
new Facilities Access Policy, and the Offense Reports accompanying
the citations establish that Adm. 2.07(2) does not apply to the
Plaintiffs' conduct of holding signs on the first floor of the
rotunda. First, the language of Adm. 2.07(2) does not prohibit the
Plaintiffs' conduct. The title of the rule is "exterior and
interior displays and decorations." The text of Adm. 2.07(2) states
that the DOA's express written permission is required for a sign to
be "erected, attached, mounted or displayed." Here, the Plaintiffs
were issued citations for holding a sign on the first floor of the
rotunda. As such, their signs were not "erected, attached, [or]
mounted," which therefore means that their actions could only fall
within the text of Adm. 2.07(2) if their signs were "displayed."
However, the word "displayed" implies something more than an
individual holding a handmade sign over their head. Instead, as is
generally known, the Capitol rotunda is frequently a place where
freestanding artwork and such things are showcased, especially
around the holiday season. The term "displayed" implies something
like afreestanding exhibit showcased in the Capitol, not an
individual holding a handmade sign over their head comparing the
governor to a character in a comic book. Thus, the terms of Adm.
2.07(2) does not prohibit the Plaintiffs' conduct. Second, the
DOA's new Facilities Access Policy supports the conclusion that
Adm. 2.07(2) did not apply to the Plaintiffs' conduct. (Lazar's
First Aff. Ex. C). The Policy defines an "exhibit" as "[a]ny
display of... signs or banners not held by an individual." (Id. at
5). According to how "display" is used in this definition, the word
implies something more than an
11
individual holding a sign. In fact, it specifically excludes
signs or banners held by individuals from being considered a type
of "display" that is relevant for purposes of regulating exhibits.
When this definition is considered in light of Adm. 2.07(2), it is
clear that the rule did not apply to the Plaintiffs' actions
because their signs were not "displayed," but instead were held in
their hands. Finally, there is no definitive indication from the
five Offense Reports written by the officers that the Plaintiffs
were issued citations for violating Adm. 2.07(2). (See Tubbs Aft,
May 1, 2012, Ex. A). The only reference to Adm. 2.07(2) is in the
following narrative by Officer Brooks that describes the situation
surrounding the citations given to Mr. Ryan, Ms. Walasek, and Ms.
Harty on March 26th: It should also be noted that I've explained
administrative code 2.03, 2.04, 2.07 and 2.14(2)(zd) and its
subsections to Valerie and Jeremy. (Id. at p. 5). Although Officer
Brooks admits that he "explained" four administrative rules to the
Plaintiffs, his narrative does not establish with any type of
certainty which of the four different provisions the Plaintiffs'
were cited for violating. Put plainly, a reference to multiple
rules including Adm. 2.07(2) in one of the five Offense Reports
describing three of the citations does not prove by itself that
each of the Plaintiffs' 12 total citations were issued for
violating Adm. 2.07(2). As such, the Plaintiffs' as applied
challenges to Adm. 2.07(2) can be dismissed without addressing any
constitutional arguments because the rule's language, the
Facilities Access Policy, and the Offense Reports establish that
Adm. 2.07(2) does not apply then or now to the Plaintiffs' conduct
of holding signs on the first floor of the rotunda. i. The other
suggested administrative rules At the oral arguments on the
parties' motions for summary judgment, the Court noted that it is
not readily apparent what substantive rule the Plaintiffs'
violated. The Court ordered 12
supplemental briefing in hopes that the parties would clarify
this issue. Unfortunately, the parties' responses do not make the
answer any more readily apparent. For example, the Defendants
suggest that the Plaintiffs' citations could have been issued for
violating any one of as many as three different substantive rules.
(Defs.' Supplemental Br. 5-10). In contrast, although the
Plaintiffs agree that two of the substantive provisions the
Defendants' suggest could arguably apply to their conduct, they
dispute the applicability of the Defendants' third suggested
substantive rule to their actions. (Pls.' Supplemental Reply Br.
6). Although the supplemental briefs do not answer what substantive
provision the Plaintiffs were cited under, they do establish that
that no one seems to know what rule the Plaintiffs' conduct
violated. The Court considered whether not knowing the substantive
provision is a material disputed fact that precludes granting
summary judgment. Similarly, the Plaintiffs state that there might
have to be a trial if the Court considers the Defendants' third
suggested substantive provision because they believe that neither
party has submitted proposed findings on the issue nor submitted
any admissible evidence on it. (Id.). However, the Plaintiffs'
argument that no evidence has been submitted with regards to the
applicability of the Defendants' third suggested substantive
provision is equally applicable to all of the substantive rules the
parties suggest. In fact, proceeding to trial in this case would
not be productive because the Offense Reports describing the
situation surrounding the issuing of the citations establish that
there was no consensus as to what substantive provision the
Plaintiffs' conduct violated. For example, only four of the five
Offense Reports describing the situation surrounding issuing the
citations reference Adm. 2.14(2)(zd). (See Tubbs Aff., May 1, 2012,
Ex. A at pp. 5-6, 19, 24, 32). One of the Offense Reports is titled
"crowd management," while two others are titled "administrative
code." (Id. at pp. 4, 13, 19). Finally, two of the five
13
Offense Reports are titled "disturbance/disorderly conduct."
(Id. at pp. 23, 30). In light of this evidence, proceeding to trial
in this case would not be provided because the reality of the
situation is that no one knows what substantive provision the
Plaintiffs' citations referenced. Ultimately, the uncertainty as to
what substantive provision the citations reference extinguishes the
Plaintiffs' as applied challenges to the constitutionality of Adm.
2.07(2) or any of the other substantive rules the parties suggest.
An "as applied" challenge requires the Plaintiffs to show that the
rule was applied to them in an unconstitutional manner. See Eggert
Group, LLC v. Town of Harrison, 372 F. Supp. 2d 1123, 1134 (E.D.
Wis. 2005). However, the Plaintiff cannot establish what rule was
even applied to them. This observation is not intended as a
criticism of the Plaintiffs. Indeed it is entirely possible that
this is one reason the District Attorney declined to prosecute
these cases. Without first determining what substantive rule the
Plaintiffs violated, there is no way for this (or any) Court to
determine whether the application of that substantive rule was
unconstitutional. Accordingly, the Plaintiffs cannot bring an as
applied constitutional challenge to Adm. 2.07(2) or any of the
other substantive rules the parties suggest. B. The Plaintiffs'
facial challenges to Adm. 2.07(2) As previously stated, the
Plaintiffs' facial challenge to Adm. 2.07(2) is limited to their
claim for injunctive relief. "Permanent injunctions are not to be
issued lightly and the cause must be substantial." Pure Milk
Products Co-op. v. Nat'l Farmers Org,, 90 Wis. 2d 781, 800, 280
N.W.2d 691 (1979). The purpose of an injunction is to prevent
future violations. Id. To obtain an injunction, a plaintiff must:
(1) show a sufficient probability that future conduct of the
defendant will violate a right of will and injure the plaintiff;
and (2) establish that the injury is irreparable, i.e., not
adequately compensable in damages. Id. "[I]njunctive relief is
addressed to
14
the sound discretion of the trial court; competing interests
must be reconciled and the plaintiff must satisfy the trial court
that on balance equity favors issuing the injunction." Id. The
Plaintiffs argue that they are entitled to an injunction
prohibiting the Defendants from enforcing Adm. 2.07(2) because the
rule is a facially unconstitutional prior restraint. (Pls.' Opp'n
Br. 26). In support of their request, the Plaintiffs state that
they wish "to continue to engage in expressive activities in and on
the grounds of the Wisconsin State Capitol, advocating various
political positions, sometimes alone, sometimes in the company of a
few other persons, and sometimes as part of some fairly large
groups." (Compl. ri 301-306). They also state: For the ongoing
deprivation of their rights of expression, the Plaintiffs have no
plain, adequate, or speedy remedy at law and thus invoke the
Court's equitable jurisdiction to award... injunctive relief
against the Defendants prohibiting the enforcement of the
unconstitutional portions of the Wisconsin Administrative Code and
the interference with expressive activity protected by the First
Amendment. (Compl. 602). Despite their arguments, the Plaintiffs
are not entitled to injunctive relief because they have not shown a
sufficient probability that the Defendants' future conduct of
enforcing Adm. 2.07(2) will violate their rights and cause them
injury. This element is missing here because Adm. 2.07(2) clearly
did not apply to the Plaintiffs' conduct of holding signs on the
first floor of the rotunda. Because 2.07(2) does not apply to their
conduct, an injunction against the rule's enforcement is unlikely
to prevent any injury to these Plaintiffs even if they were to
repeat this conduct in the future. Furthermore, the Plaintiffs are
not entitled to an injunction because the DOA issued a new
Facilities Access Policy during the pendency of this litigation
that governs how individuals may obtain permits. Typically, "any
dispute over the constitutionality of a statute becomes moot if a
new statute is enacted in its place during the pendency of the
litigation, and the plaintiff 15
seeks only prospective relief." MacDonald v. City of Chicago,
243 F.3d 1021, 1025 (7th Cir. 2001). In the present case, there is
no evidence that establishes that the DOA will not apply the new
Facilities Access Policy in the future. Moreover, because the
Defendants are public officials, a greater stock is placed in their
acts of self-correction, so long as they appear genuine. Wisconsin
Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir. 2004).
In other words, the Court will not presume that the Defendants
enacted the new Facilities Access Policy in bad faith because the
Defendants are public officials. See Fed'n of Adver. Indus.
Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929-30 (7th
Cir. 2003). As such, the Plaintiffs' request for an injunction is
denied. III. Requiring demonstrators to protest on ground floor of
the rotunda The Plaintiffs also argue they were denied their
constitutional rights because they were asked to move to the ground
floor. However, this question is superceded by Defendants claim to
qualified immunity. The application of qualified immunity can be
evaluated without deciding the constitutionality of requiring the
Plaintiffs to protest on the ground floor of the rotunda. Deciding
this case without addressing the constitutionality of the
restriction is in keeping with the preferred approach of avoiding
unnecessary constitutional adjudication. Coatings Ass'n, 45 F.3d
1124 at 1126. A. Qualified immunity Qualified immunity is an
affirmative defense based on the principle "that government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 815-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
Whether a public official may be protected by Nat'l Paint &
16
qualified immunity turns on the objective legal reasonableness
of the action, assessed in light of the legal rules that were
clearly established at the time the action was taken. Id. at 818.
Because qualified immunity forestalls the lawsuit from proceeding,
the issue is therefore appropriate to address and resolve at the
summary judgment stage before extensive measures are taken to
defend the public officials. Burkes v. Klauser, 185 Wis. 2d 308,
327, 517 N.W.2d 503 (1994). A court considering a motion for
summary judgment based on qualified immunity has before it a pure
question of law: whether, based on all the undisputed facts, the
defendant's conduct violated any clearly established constitutional
or statutory right. Green v. Carlson, 826 F.2d 647, 652 (7th Cir.
1987). The court need not (and should not) resolve any disputed
questions of material fact. Id. Courts apply the following
two-pronged inquiry to determine if a government official is
entitled to qualified immunity: (1) whether facts alleged or shown
by plaintiff make out violation of constitutional right; and (2)
whether that right was clearly established at time of defendant's
alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236-42, 129
S. Ct. 808, 172 L. Ed. 2d 565 (2009). Courts may exercise their
sound discretion in deciding which of the two prongs should be
addressed first in light of circumstances in the particular case at
hand. Id. A government official's conduct violates clearly
established law when, at the time of the challenged conduct, "[t]he
contours of [a] right [are] sufficiently clear" that every
"reasonable official would have understood that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987). This is not to say that an
official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is to
say that in the light of pre-existing law the unlawfulness must be
apparent. Id. The relevant inquiry is the objective question
whether a reasonable public official
17
could have, though mistakenly, believed his actions were lawful
in light of the existing law, not whether in hindsight the public
official's actions were found to be lawful or unlawful. Mitchell v.
Forsyth, 472 U.S. 511, 535, 105 S.Ct. 2806, 86 L.Ed.2d 411
(1985).
B. The established law at the time the Plaintiffs were issued
their citations At the time the Plaintiffs were issued their
citations, it was (and still is) well-established that the
government may impose reasonable restrictions on time, place, or
manner of protected speech, even of speech in public forum,2 as
long as the restrictions meet the following three elements: (1)
they are justified without reference to the content of the
regulated speech; (2) they are narrowly tailored to serve a
significant governmental interest; (3) and they leave open ample
alternative channels for communication. Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82
L.Ed.2d 221 (1984); see Heffron v. International Society for
Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 69
L.Ed.2d 298 (1981) (quoting Virginia Pharmacy Bd. v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817,
48 L.Ed.2d 346 (1976)). As to the first element, restrictions on
speech are content-neutral if they are "justified without reference
to the content of the regulated speech." City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 48, 106 S. Ct. 925, 89 L. Ed. 2d 29
(1986). "The principal inquiry in determining content neutrality,
in speech cases generally and in time, place, or manner cases
in
The Plaintiffs argued in their brief in support of their motion
for summary judgment that the first floor of the rotunda is a
traditional public forum. (Pls.' Supp. Br. 9). However, they now
agree with the Defendants that the area is a designated public
forum. (Pls.' Supplemental Reply Br. 4; Defs.' Supplemental Reply
Br. 2). Ultimately, this distinction is not material for the
Court's analysis because government restrictions on speech in a
designated public forum are subject to the same strict scrutiny as
restrictions in a traditional public forum. Pleasant Grove City,
Utah v. Summum, 555 U.S. 460, 469-70, 129 S. Ct. 1125, 172 L. Ed.
2d 853 (2009).2
18
particular, is whether the government has adopted a regulation
of speech because of disagreement with the message it conveys."
Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746,
105 L. Ed. 2d 661 (1989). As to the second element, a regulation
satisfies this element if it "promotes a substantial government
interest that would be achieved less effectively absent the
regulation." Ward, 491 U.S. 781 at 799. However, a regulation need
not be the least restrictive method for achieving the government's
goal. Id. at 797. Nevertheless, while a regulation does not have to
be a perfect fit for the government's needs, it cannot
substantially burden more speech than necessary. Id. at 800.
Furthermore, consideration of a forum's special attributes is
relevant to the constitutionality of a regulation since the
significance of the governmental interest must be assessed in light
of the characteristic nature and function of the particular forum
involved. See, e. g., Grayned v. City of Rockford, supra, at
116-117, 92 S.Ct., at 2303; Lehman v. City of Shaker Heights, 418
U.S. 298, 302-303, 94 S.Ct. 2714, 2716-2717, 41 L.Ed.2d 770 (1974).
Finally, as to the third element, an adequate alternative does not
have to be the speaker's first choice. See Heffron, 452 U.S. 640 at
647; Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000).
However, "alternative channels of communication must be more than
merely theoretically available. They must be realistic as well."
Gresham, 225 F.3d 899 at 906. An alternative is not adequate if it
"foreclose[s] a speaker's ability to reach one audience even if it
allows the speaker to reach other groups." Id. at 907; see also
Bery v. City of New York 97 F.3d 689, 698 (2d Cir.1996) (holding
that a total ban on sidewalk art does not leave open alternative
means of communication because alternative display in galleries or
museums would not reach the same audience). C. The Defendants are
entitled to qualified immunity
19
In light of the existing law, the Defendants are entitled to
qualified immunity because a reasonable public official could have
believed that requiring the Plaintiffs to protest on the ground
floor of the rotunda was reasonable time, place, or manner
restriction. A reasonable official could have concluded that the
restriction was content-neutral and requiring the protest area to
be on the ground floor does not single out a particular viewpoint
or category of speech for different treatment. In fact, the
Plaintiffs do not allege, nor is there any evidence in the record,
that the police direction to the Plaintiffs to move to a different
location was based on the viewpoint expressed in their signs.
(Ryan, et al. v. Huebsch, et al. Trans. 7:18-23). Accordingly, a
reasonable official could conclude that the restriction was
content-neutral. A reasonable official could have believed
restricting the protest area to the ground floor was narrowly
tailored and promoted the substantial government interest. Case law
has recognized that the state's interest in protecting the "safety
and convenience" of persons using a public forum is a valid
governmental objective. Heffron, 452 U.S. 640 at 650; see also
Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 768, 114 S.Ct.
2516, 129 L.Ed.2d 593 (1994) (recognizing the state "has a strong
interest in ensuring the public safety and order, in promoting the
free flow of traffic on public streets and sidewalks"). In the
limited space on the first floor of the rotunda an area subject to
foot traffic for tourists, employees, and the public the official
could reasonably have believed that restricting the protest area to
the ground level was narrowly tailored to protect the safety and
convenience of the people. Finally, a reasonable official could
have believed that restricting the protest area to the ground floor
of the rotunda was lawful because it left open alternative channels
for communication. Restricting the protest area to the ground floor
did not completely ban the Plaintiffs from demonstrating inside the
Capitol. Instead, it merely regulated the location within
20
the Capitol in which the Plaintiff could protest. Demonstrating
on the ground level of the rotunda provided individuals with the
same audience as if they were on the first level because both
locations are visible to visitors from several different floors
inside the Capitol. Although the ground floor might not have been
the Plaintiffs' first choice for a location, such a consideration
is not material to determining whether the restriction left open an
alternative channel for communication. Based on these
considerations, a reasonable public official could have concluded
that restricting the protest area to the ground floor of the
rotunda was a constitutional time, place, or manner restriction.
The officials' belief that restricting the protest area to the
ground floor was lawful is particularly reasonable in light of the
court's holding in State v. Zwicker, 41 Wis. 2d 497, 164 N.W.2d 512
(1967).3 The facts in Zwicker are illuminating and illustrative.
The case took place in Madison at the height of the Viet Nam War
when unrest on the University of Wisconsin campus was increasing.
In response to the unrest, the University created a rule that
prohibited signs in campus buildings. Id. at 503. On February 21,
1967, then UW Police Ralph Hanson informed an assembled group of
students that signs were not permitted in the building. Id. When
signs appeared, the students were again told they were prohibited.
Id. Some students refused to put their signs away or surrender
them. Mr. Zwicker was one of these students and he was arrested for
disorderly conduct. Id. In the circuit court, Zwicker challenged
the disorderly conduct statute on the ground it violated his
constitutional right of speech and peaceable assembly. Zwicker
defended himself by
Mr. Zwicker also filed suit against a number of public
officials, including the District Attorney, the Police Chief, the
Circuit Court Judge and others as reported in Zwicker v. Boll, 270
F. Supp. 131 (W.D. Wis. 1967) aff'd, 391 U.S. 353, 88 S. Ct. 1666,
20 L. Ed. 2d 642 (1968). In that case, the majority of the three
judge panel declined to issue an injunction to prevent Mr.
Zwicker's prosecution.3
21
contended he "was convicted for nothing more than peacefully
holding a sign in a public building." Id. at 512. Zwicker knew
there was a rule prohibiting what he chose to do. Id. In the end,
the Supreme Court rejected his constitutional claim because
"[p]icketing and parading is conduct 'subject to regulation even
though intertwined with expression and association.' Id. (citation
omitted). Here, the similarities between Zwicker and the present
case lend weighty support to the officials belief that it was
lawful to restrict the protest area to the ground floor of the
Capitol rotunda especially reasonable. In Zwicker, Madison was
equally (if not more) divided during the protests at the Capitol
during the spring of 2011. Also like in Zwicker, the Plaintiffs
knew by the sign stating "Demonstration Area Ground Floor" that
there was a rule prohibiting what they choose to do. Accordingly,
the court's holding in Zwicker that picketing and parading is
conduct subject to regulation even though intertwined with
expression and association is equally applicable to the present
case. As a result, the Defendants are entitled to qualified
immunity. IV. Damages The Plaintiffs are not entitled to damages
because the Defendants' are protected by qualified immunity.
Furthermore, the Plaintiffs are not entitled to legal fees due to
the fact that the catalyst theory has been rejected. See Buckhannon
Bd. & Care Home, Inc. v. W. Virginia Dept. of Health &
Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855
(2001). For whatever it is worth, it seems readily apparent to this
Court the Plaintiffs have had an effect on subsequent changes to
how the police react and the kinds of restrictions that are imposed
in the future. This may be of little consolation give the fact
these Plaintiffs spent time and money vindicating themselves in the
underlying citations.
22
CONCLUSION It is not hard to appreciate that from the
Plaintiffs' perspective their citations did more than subject them
to civil forfeiture. The Plaintiffs received these citations
because they were protesting and they wanted to express themselves
by their presence, through their actions, by presumably joining in
the chorus of voices assembled, and by carrying a handmade sign
with words germane to the politics at the time. The Plaintiffs
wanted to do all of these things while standing on the first floor
of the Capitol rotunda. In their mind, it is reasonable to infer
that how they were treated shook the foundation of their beliefs
and their sense of place our Capitol had previously given them.
However, for the reasons stated in this opinion, this case does
not, under law, entitle them to prevail in this case.
For the reasons explained above, the Defendants' Motion for
Summary Judgment is GRANTED and the Plaintiffs' Motion for Partial
Summary Judgment is DENIED.
Dated: This 5th day of September, 2012. By t ourt:
114140NJudge Frank D. Re ington Circuit Court Judg , Branch 8
23
cc:
Attorney Jeff Scott Olson Assistant Attorney General Maria S.
Lazar
24