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11-CV-4913 Capitol Arrests Lawsuit Summary Decision 090512

11-CV-4913 Capitol Arrests Lawsuit Summary Decision 090512

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A summary decision by Dane County circuit court judge Frank Remington on a lawsuit brought against the Wisconsin Department of Administration and other officials regarding arrests at the Capitol in Madison
A summary decision by Dane County circuit court judge Frank Remington on a lawsuit brought against the Wisconsin Department of Administration and other officials regarding arrests at the Capitol in Madison

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Published by: Isthmus Publishing Company on Sep 07, 2012
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01/17/2013

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STATE OF WISCONSIN
IRCUIT COURT
ANE COUNTYBRANCH 8
JEREMY RYAN, LAURI MARIE HARTY,ANNE MARY HOPPE, KATHLEEN D.
HOPPE, JENNA BRIANNE POPE, and
VALERIE ROSE WALASEK,Plaintiffs,
ECISION AND ORDER
V
S.
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 SUMMARYJUDGMENT 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 notsomething 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 intheir 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 couldhave a sign on the first floor of the rotunda. The clash between what the Plaintiffs wanted andwhat 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 ofthe 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 Tubbswas 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 thecitations 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 ofWisconsin, 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.
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