Judge John Markson could be the first Dane County judge to rule on the constitutionality of the state's permitting rules at the Capitol.
Nine attorneys will ask the judge this week to dismiss the tickets their clients received while attending the noontime Solidarity Sing Along protests over the summer. The attorneys will argue that the arrests, authorized under the state emergency rules banning "unlawful assembly," violate their clients' right of free speech and assembly under the U.S. and Wisconsin constitutions.
Attorney Jeff Scott Olson says the administrative code is "unconstitutional because on its face it requires a permit for any expressive activity in the Capitol Rotunda for individuals in very small groups as well as larger groups, where you can make an argument for a permit requirement."
Olson submitted a brief in October 2013 requesting that the court dismiss the ticket issued to his client, Michael Crute. Olson notes that in the federal lawsuit challenging the constitutionality of the state's permitting rules, Kissick v. Huebsch, U.S. District Court Judge William Conley enjoined the state in a July 8 preliminary ruling from requiring groups smaller than 20 to get a permit to gather at the Capitol. The state administrative rule 2.14(2)(v) and the Wisconsin State Facilities Access Policy had required that groups of four get a permit.
"Like Judge Conley, this court should hold the permit scheme embodied in the regulation at issue unconstitutional," Olson wrote.
The state Department of Justice, however, argued a different interpretation of Conley's decision in its Dec. 13, 2013, brief opposing Olson's move to dismiss Crute's ticket.
"The defendant ignores the fact that the district court authorized the enforcement of [the administrative rule] and the Access Policy with groups larger than 20. Therefore the court did not find any constitutional infirmity where the code is enforced with groups larger than 20."
Olson rejects that argument. "Our response to that is that Judge Conley wasn't construing the code provision. He was just imposing a temporary limit on its enforcement."
Conley never did issue a final ruling on the case because in October 2013 the state and Michael Kissick, who was represented by the ACLU of Wisconsin Foundation, signed a settlement. Under the agreement, groups like the Solidarity Sing Along need to give notice, rather than obtain a permit, to gather at the Capitol.
As soon as the agreement was announced, however, the parties disagreed on its interpretation.
The Department of Administration, the defendant in the suit, said the settlement recognized that the state's permitting rules were "constitutional."
"The permit process has been repeatedly upheld as constitutional by the courts, and today's settlement demonstrates ACLU's agreement with the process as well," said Mike Huebsch, secretary of the DOA, in a news release.
But Larry Dupuis, legal director of the ACLU of Wisconsin, said that claim was "nowhere in the agreement. They tried to get it in the agreement and we said absolutely not."
Markson could issue an oral ruling from the bench after hearing from the lawyers this week. Olson says even if he doesnâ€™t win this time around, there are other unconstitutional issues he could raise at trial.
"But we are very hopeful of success," he says.
Legitimate government interest?
Attorney Patricia Hammel also has a case before Markson this week. And, she, too, will argue that the state's administrative rules on gatherings at the state Capitol violate her client's "rights of speech and assembly under the First Amendment to the U.S. Constitution and Article 1 Sections 3 and 4 of the Wisconsin Constitution."
"There has been no evidence of any 'disturbance of public order' to justify a requirement of a permit for small groups in the state Capitol," Hammel wrote in a November 2013 brief on behalf of Karen Matteoni. "This court should conclude, as Judge Conley did in his opinion granting the injunction in the Kissick case, that the rules are not narrowly tailored to address a legitimate government interest. They regulate too much speech."
The state responded that the administrative code, together with the access policy, "provides clear and objective standards for issuing permits and for regulating speech inside and outside the Capitol."
In response to a request for further comment and explanation, Dana Brueck, spokesperson for the Department of Justice, says that assistant attorneys general typically don't discuss cases.
Individuals have been gathering daily at the state Capitol since March 11, 2011, to sing pro-union songs in protest of Gov. Scott Walker's policies.
In September 2012, Capitol Police officers began issuing hundreds of citations to protesters while enforcing new permitting restrictions put in place by the Department of Administration that limited gatherings without a permit at the Capitol to groups of four or fewer.
Capitol Police started issuing another round of tickets July 24, just weeks after Conley's ruling. At times this enforcement including warning observers, including Rep. Sondy Pope (D-Middleton), that they, too, were subject to arrest. But the Department of Administration reversed course following news reports on the warnings.
According to records obtained from the Department of Administration by Isthmus, the state has issued a total of 783 tickets since 2011 on a variety of charges: 183 citations were issued in 2011 and 148 in 2012. In 2013, 452 tickets were issued -- and 349 of those were between July 24, the renewed start of enforcement, and Sept. 6, just before the state's emergency rule expired and arrests ceased.
Nearly all of those ticketed have demanded jury trials, and the vast majority of the cases are still pending. Like all non-traffic forfeitures, the tickets were initially assigned to judges who primarily handle criminal cases. But when the volume of tickets increased over the summer, cases were also distributed to those who handle civil matters, says Carlo Esqueda, clerk of Dane County Circuit Court.
Esqueda says it is up to each judge to determine how to slot the cases into their schedules. Those who handle criminal cases likely "have bigger fish to fry," says Esqueda. "In terms of scheduling, [the citations] may not be as high a priority as other cases. They could string out for months and perhaps years."
Esqueda says the real impact of the cases would come down the road. The system will start to feel the burden "if it gets to the point where all of these individuals being cited are having six-person jury trials."
Olson says the cases are already overwhelming the court system.
"If someone could find a way to get these cases dismissed, it would ease a tremendous strain on the Dane County circuit judges who are currently inundated with over 400 of these cases, many of which are being defended quite vigorously by volunteer lawyers."
Brueck says there are now 13 attorneys in the DOJ working on one or more of these cases. One attorney is assigned to each judge handling the ticket cases.
The Dane County District Attorney's Office, led by Democrat Ismael Ozanne, would normally handle these forfeiture cases, but the Department of Administration used its statutory power in the fall of 2012 to request that the state Department of Justice, headed by Republican Attorney General J.B. Van Hollen, take over their prosecution.
It's hard to confirm what kind of effect these cases are having on the agency's workload. Brueck says the cases are not a full-time task for the 13 attorneys, who also handle other matters.
"Managing caseloads is always an issue, but these cases don't make that task any more or less difficult than any other cases."