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Kissick vs Huebsch Preliminary Injunction 070813

Kissick vs Huebsch Preliminary Injunction 070813

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A preliminary injunction ordered by United States District Court Judge William M. Conley in Michael Kissick vs. Michael Huebsch and David Erwin, blocking permit requirements for assemblies of groups 20 persons or smaller inside public spaces of the Wisconsin Capitol, dated July 8, 2013.
A preliminary injunction ordered by United States District Court Judge William M. Conley in Michael Kissick vs. Michael Huebsch and David Erwin, blocking permit requirements for assemblies of groups 20 persons or smaller inside public spaces of the Wisconsin Capitol, dated July 8, 2013.

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Published by: Isthmus Publishing Company on Jul 18, 2013
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10/17/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WISCONSINMICHAEL KISSICK,Plaintiff, OPINION AND ORDER  v.13-cv-099-wmcMICHAEL HUEBSCH, in his official capacity asSecretary of the Wisconsin Department of  Administration, and DAVID ERWIN, in his officialCapacity as the Chief of the Wisconsin CapitolPolice,Defendants.This motion for preliminary injunction concerns a public forum that has been atthe center of public discourse in the State of Wisconsin since its completion in 1917: themassive Capitol rotunda. As explained in its official nomination for designation as aNational Historic Landmark, which was granted on January 3, 2001:The soaring rotunda of the Wisconsin State Capitol is designed to induce
its citizenry to be, as individuals, among the “resources of Wisconsin.”
Whereas some statehouses are maintained apart from the urban fabric, theWisconsin Capitol Rotunda functions, both literally and symbolically, as acity center and is fully utilized as a public space to which all have claim.
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Despite this, a permit is now required if even a single person holds any “event” in the
rotunda of the State Capitol under recently amended rules and interpretive guidancepublished by the Wisconsin Department of Administration. Although not universally enforced, the permit requirement has teeth -- a person who participates in an
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National Historic Landmark Nomination (dkt. #59-5 at 4);
 see
complete nomination
(“
 Nomination
”) at
Case: 3:13-cv-00099-wmc Document #: 67 Filed: 07/08/13 Page 1 of 47
 
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unpermitted event is subject to citation, forfeiture up to $500 if convicted, and moresubtle repercussions that some fear from a record of political activism.Plaintiff Michael Kissick, who would like to participate occasionally in an informalevent know 
n as the “Solidarity Sing Along” that meets inside the Capitol, alleges that
this permitting scheme poses a dilemma for him personally. Sing Along participants have
resisted characterization as an “organized group” or “organization,” claim to gather
overthe lunch hour on an impromptu, if regular, basis and, therefore, have declined todesignate anyone to obtain a permit. As a result, Kissick feels vulnerable to being cited,convicted and fined, as well as criticized as a public employee, should he join the Sing Along on any given day be and deemed by the Capitol police to be violating the permitrequirement.In this suit, Kissick claims that as applied to the State Capitol rotunda, thepermitting requirement impinges his First and Fourteenth Amendment rights under theUnited States Constitution.
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The subject of this opinion and order is his request for apreliminary injunction barring defendants Michael Huebsch, Secretary of the WisconsinDepartment of Administration, and David Erwin, Chief of the Capitol Police, fromenforcing the permitting requirement. Although the court finds little merit in some of 
Kissick‟s more sweeping constitutional arguments, he has demonstrated a strong
likelihood of success on the merits of his claim that the permitting regulations impingeon his free speech rights and that the balance of relevant factors point in favor of a
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Kissick‟s claims may go further to include the “working” wings of the Capitol, but suchclaims are substantially weaker and not viable in the court‟s view as a basis for granting a
preliminary injunction.
Case: 3:13-cv-00099-wmc Document #: 67 Filed: 07/08/13 Page 2 of 47
 
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preliminary injunction
of its enforcement for smaller groups in the Capitol‟s rotunda
.Rather than impose a blanket prohibition on enforcing the existing permitting scheme,however, the court will preliminarily enjoin defendants from (1) distinguishing based onthe content of the speech
between “rallies” and other events for permitting purposes
inside the Capitol and (2) enforcing the permit requirement for gatherings expected todraw 20 or fewer persons inside the Capitol rotunda itself. Of course, nothing in thisdecision prohibits enforcement of existing laws and regulations that restrict disruptivenoise or other disorderly conduct.UNDISPUTED FACTS
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 A.
 
Parties
Plaintiff Michael Kissick is an adult resident of Madison, Wisconsin. He isemployed by the University of Wisconsin as an assistant professor.Defendant Michael Huebsch is the Secretary of the Wisconsin Department of  Administration. The Department of Administration is responsible for management of government buildings, including the State Capitol, under Wis. Stat. § 16.84(1) and its
implementing rules found at Wis. Admin. Code Chapter Adm 2 (“Adm 2”). Defendant
David Erwin is the Chief of the Wisconsin Capitol Police, a division of the Departmentof Administration that enforces rules governing the State Capitol and its grounds.
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Except as specifically noted, the following is a summary of the undisputed facts taken
from the parties‟ proposed findings of fact, responses to the proposed findings, affidavits,
and other filings submitted by the parties.
Case: 3:13-cv-00099-wmc Document #: 67 Filed: 07/08/13 Page 3 of 47

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