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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

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.

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.

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.

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

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).

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).

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).

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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

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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

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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

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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 &

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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

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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

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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

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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

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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.
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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.

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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:

114140N
Judge Frank D. Re ington Circuit Court Judg , Branch 8 23

cc:

Attorney Jeff Scott Olson Assistant Attorney General Maria S. Lazar

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