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Dane County judge rules permit requirements for Wisconsin Capitol gatherings unconstitutional

Judge Markson calls the state's permitting rule "unconstitutional on its face."
Credit:Carl Gibson
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Dane County Judge John Markson has dismissed 29 tickets issued to participants in the Solidarity Sing Along, ruling the state's permitting requirements for Capitol gatherings unconstitutional.

In one of two written rulings issued Wednesday (available here and here), Markson said he agreed with defendant Michael W. Crute, who argued that the state's permit requirement "violates the First Amendment because it applies, on its face, to very small groups."

"The rule Mr. Crute is charged with violating is not narrowly tailored to the legitimate governmental interests it seeks to promote," Markson concluded. "It is not a valid time, place, and manner requirement. It is unconstitutional on its face. The citation must be, and it hereby is, dismissed."

Markson is the first Dane County judge to dismiss a Capitol protest ticket on constitutional grounds. Before Markson's ruling Wednesday, there were approximately 400 of these cases pending before Dane County judges.

Attorney Jeff Scott Olson, who defended Crute, says Markson understood the "difficult First Amendment issues at play" in these cases.

"It can be a lot to digest," says Olson. "Markson understood everything at issue in this case and got everything right."

Olson predicts that the remaining 12 Dane County judges with Capitol protest ticket cases before them will ultimately follow Markson's lead.

"These cases are going to fall over like bowling pins," he says.

Department of Justice spokesperson Dana Brueck says the agency is reviewing Markson's ruling. But she says in an emailed response that "Nothing handed down today changes the enforceability of the rules currently in place at the Capitol."

On Feb. 23, Olson and eight other attorneys asked Markson to dismiss the tickets their clients received while attending the noontime Solidarity Sing Along protests over the summer. The attorneys argued 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.

In an October 2013 brief on behalf of Crute, Olson relied on the recent ruling in a federal lawsuit challenging the constitutionality of the state's permitting rules.

In 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.

Olson argued that Markson should also "hold the permit scheme embodied in the regulation at issue unconstitutional."

The state Department of Justice, however, countered with a different interpretation of Conley's decision in a 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."

But Olson said that Conley was not weighing in on the merits of the permit requirement. "He was just imposing a temporary limit on its enforcement."

Individuals have been gathering weekdays over the lunch hour at the Capitol to sing songs in protest of Gov. Scott Walker's policies since March 2011.

Capitol Police officers began issuing hundreds of citations to protesters in the fall of 2012 while enforcing new permitting restrictions put in place by the Department of Administration. These rules limited gatherings without a permit at the Capitol to groups of four or fewer.

Police officers started issuing another round of tickets July 24, just weeks after Conley's ruling.

According to Department of Administration records obtained 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 demanded jury trials.

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