STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
State of Wisconsin, Plaintiff
VS.
Joseph C. Salmons, Defendant
Case No. 13 FO 2736
FILED APR 2 2 2014
DANE COUNTY CIRCUIT COURT
RECEIVED
DECISION AND ORDER OF DISMISSAL 2 8 2014
IEFF SCOTT OLSON
INTRODUCTION
This case is one of many involving citations given to the "Solidarity Singers" for various
administrative code violations. On August 19, 2013, Joseph Salmons was given a citation for a
violation of Wis. Admin. Code. § ADM 2.14(2)(vm)(5), or "Unlawful Assembly," as is written on the
citation. Mr. Salmons has moved to dismiss the citation, arguing that the regulation at issue is not
a valid time place and manner restriction because it is not narrowly tailored to serve the
government's interests. Based on the decisions of the U.S. District Court in Kissick v. Huebsch,
956 F.Supp.2d 981 (W.D. Wis. 2013), and the Dane County Circuit Court in State v. Crute, Dane
Co. Case No. 13-FO-2108, I agree and accordingly grant the motion to dismiss.
DISCUSSION
I. The Rule at Issue
As is the nature of a forfeiture case based on a citation, there is little factual record present
in this case. The citation given to Mr. Salmons was for a violation of Wis. Admin. Code § ADM
2.14(2)(vm)(5), an emergency rule issued by the Department of Administration on April 11, 2013,
effective April 16, 2013. The emergency rules expired on September 12, 2013. The regulations
at issue, Wis. Admin. Code § ADM 2.14(2)(v) and (vm)(5) read:
(2) In order to preserve the order which is necessary for the enjoyment of freedom
by occupants of the buildings and facilities, and in order to prevent activities which
physically obstruct access to department lands and buildings or prevent the state
from carrying on its instructional, research, public service, or administrative
functions, and pursuant to s. 16.846, Stats., whoever does any of the following
shall be subject to a forfeiture of not more than $500:
(v) Without approval of the department, conducts an event in those buildings and
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facilities managed or leased by the department or on properties surrounding those
buildings.
(vm) Any participant or spectator within a group constituting an unlawful assembly,
who intentionally fails or refuses to withdraw from the assembly after it has been
declared unlawful, shall be subject to the penalties identified in sub. (2) (intro.).
Any event may be declared unlawful if its participants: ***
5. Enter or occupy any building or facility managed or leased by the department,
without authorization.
Wis. Admin. Code § ADM 2.14(2)(v) and (vm)(5) (as adopted by emergency rules effective April
16, 2013).
On its face, this regulation applies to very small groups, but in practice was not always enforced
against such small groups. The Department of Administration released an "Access Policy" to
provide supplemental guidance to the public regarding enforcement of the emergency rules.
Kissick, 956 F.Supp.2d at 988. The Access Policy exempted groups of fewer than four people
from the permit requirement of the emergency rule, while also exempting those conducting
informal tourist activities, visits to elected officials or business with state agencies, spontaneous
events, and any event on the Capitol lawn at which fewer than 100 people were expected. Id. at
989. The Access Policy, however, does not have the force of law. "[I]nterpretive rules simply
state what the administrative agency thinks the statute means, and only 'remind' affected parties
of existing duties." Jerri's Ceramic Arts, Inc. v. Consumer Prod. Safety Comm'n, 874 F.2d 205,
207 (4th Cir. 1989). They are "guides, and not laws: guides may be discarded where
circumstances require; laws may not." Prater v. U.S. Parole Comm'n, 802 F.2d 948, 954 (7th Cir.
1986).
II. Whether the rule is narrowly tailored to meet a significant governmental interest
The U.S. District Court considered these provisions in Kissick. In that case, a Solidarity
Sing-Along participant filed suit against the Secretary of the Department of Administration and
Chief of Capitol Police, seeking an injunction against the permit requirement contained in the
emergency rules as offensive to his First and Fourteenth Amendment rights. The Court
considered myriad constitutional arguments in Kissick, but it is one in particular that will be
examined here. Specifically, the Court in Kissick found that the permit requirement was not
narrowly tailored to a significant government interest and was therefore not a reasonable time,
place, and manner restriction on protected speech. Mr. Salmons has filed a motion to dismiss the
instant case on the same grounds, and it is those grounds on which Crute was decided.
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"The government may impose any reasonable restriction on the time, place or manner of
protected speech, so long as it is 'justified without reference to the content of the regulated
speech, ... narrowly tailored to serve a significant governmental interest, and ... leave[s] open
ample alternative channels for communication of the information." Kissick, 956 F.Supp.2d at
1000, quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The courts in both
Kissick and Crute held that the administrative rule at issue here is not narrowly tailored to serve a
significant governmental interest. I agree.
In making its finding, the Kissick court stated as follows:
Ultimately, the court concludes that as written, the permitting requirement draws in
too much expressive conduct in exchange for too little administrative benefit. It is,
therefore, not narrowly tailored to serve a significant governmental interest. This
finding is consistent with the holdings of federal courts across the country, which
have virtually unanimously struck down permitting requirements for small groups.
See, e.g., Cox v. City of Charleston, SC, 416 F.3d 281, 285 (4th Cir.2005) ("[T]he
unflinching application of the Ordinance to groups as small as two or three renders
it constitutionally infirm."); Am.-Arab Anti–Discrim. Committee v. City of Dearborn,
418 F.3d 600, 608 (6th Cir.2005) ("Permit schemes and advance notice
requirements that potentially apply to small groups are nearly always overly broad
and lack narrow tailoring."); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th
Cir.1996) (expressing concern about the "application of [a] permit requirement to
groups of ten"); Knowles v. Waco, 462 F.3d 430, 436 (5th Cir.2006) ("[O]rdinances
requiring a permit for demonstrations by a handful of people are not narrowly
tailored to serve a significant government interest."); Marcavage v. City of Chi., 659
F.3d 626, 635 (7th Cir.2011) (noting the "powerful consensus" of courts finding
"permit requirements for groups of ten and under to be either unconstitutional or
constitutionally suspect").
As defendants appropriately point out, none of the above-cited cases apply
to interior spaces, but the Capitol rotunda is closer to an out-of-doors, traditional
public forum in that it is a capacious gathering space with a unique history as a
place for government and public discourse, which admits for (indeed, was
designed for) a certain level of disturbance that would not be proper in a typical
state office building or even a typical state capitol. And, although its four wings are
offices for many, most of this work is sufficiently remote to be impacted by small
groups—otherwise how do defendants explain the myriad events and large groups
regularly parading through and gathering for events in the Capitol rotunda and its
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other public spaces. Moreover, the court relies on these cases not so much as a
guide to the precise numerical floor below which the state cannot require a permit,
but rather for a sense of the broad judicial consensus that pre-permitting schemes
which limit speech in public places must serve more than just scheduling or
administrative functions.
Said another way: permits chill speech. "Both the procedural hurdle of filling
out and submitting a written application, and the temporal hurdle of waiting for the
permit to be granted may discourage potential speakers." Grossman v. City of
Portland, 33 F.3d 1200, 1206 (9th Cir.1994).
As a matter of principle a requirement of registration in order to make a
public speech would seem generally incompatible with an exercise of the rights of
free speech and free assembly.
... Even if the issuance of permits by the mayor's office is a ministerial task
that is performed promptly and at no cost to the applicant, a law requiring a permit
to engage in such speech constitutes a dramatic departure from our national
heritage and constitutional tradition.
Watchtower Bible & Tract Soc. of N. Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 164-
66, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (quoting Thomas v. Collins, 323 U.S.
516, 539-40, 65 S.Ct. 315, 89 L.Ed. 430 (1945)). The extraordinary chilling effect
of permits explains why courts are careful to require that "if the legislative body
determines that a permit requirement is absolutely necessary to effectuate [its]
releVant goals, it should tailor that requirement to ensure that it does not burden
small gatherings posing no threat to the safety, order, and accessibility of [the
forum]." Cox v. City of Charleston, SC, 416 F.3d at 287.
Kissick, 956 F.Supp.2d at 1005-06.
The Kissick court then established a preliminary remedy, recognizing that the State had shown
that some threshold number of people at which a permit would be required would be appropriate.
Id. at 1007. The court established this number as twenty:
Defendants' failure to arrive at an appropriate "numerical floor" for requiring smaller
groups to obtain a permit could be grounds to enjoin enforcement of the entire
Policy until the Department arrives at an appropriate number. See Cox v. City of
Charleston, 416 F.3d at 286-87 (finding a permitting ordinance facially
unconstitutional, but declining "to announce a numerical floor below which a permit
requirement cannot apply"). This is not, however, a final judgment of facial
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unconstitutionality, and defendants have established that some threshold is
appropriate. Accordingly, the court will enjoin defendants from requiring permitting
for "events" in the Capitol rotunda of 20 persons or less. This preliminary number
attempts to protect the fundamental rights of plaintiff and others like him to freely
assemble and engage in speech while permitting defendants the ability to manage
the competing demands on the rotunda and quickly call on additional police
officers if necessary.
Kissick, 956 F.Supp.2d at 1007.
The Court then enjoined the defendants from enforcing the permit requirement as to "gatherings
within the Capitol that are anticipated to attract 20 or fewer persons." Id.
I find the Kissick decision persuasive on the issue of the facial constitutionality of the rule
in question. It is unconstitutional in that it is not narrowly tailored to a legitimate governmental
interest, the interest being maintaining order in the state capitol building. The rule draws in a great
deal more conduct, such as that engaged in by very small groups, than is necessary to regulate in
order to maintain order in the capitol building.
In its response brief to Defendant's reply, the State asserts that it complied with the
injunction issued in Kissick, and only applied the permit requirement to groups of twenty or more.
Pl. Resp. Br. at 4-5. This is not relevant to a determination of the constitutionality of the rule, and
this argument does not save the rule for several reasons. First, the rule itself does not contain the
new numerical floor of 20 as the federal court injunction provided. Therefore, a person who
wishes to demonstrate in the capitol and must determine whether a permit is required would still
encounter the old rule and access policy, and would think that a permit is required for even the
smallest of groups. As the Court in Crute persuasively stated:
The Kissick court had no power to make or re-make an administrative rule. It did
not do so. The Kissick court's preliminary injunction was a way to balance,
temporarily, the competing interests of the parties. The court's ruling must be
respected, but it is not self-executing. The state never amended the rule to
conform to the preliminary injunction. If the state wished to penalize citizens for
speaking and assembling without a permit, it was required to do so under a rule
that is constitutional.
Crute, supra, at 15-16.
The state requests that the court "not consider the rules in a vacuum, but rather how DOA
implemented them." Pl. Resp. Br. at 6. "Administrative interpretation and implementation of a
regulation are, of course, highly relevant to our analysis, for in evaluating a facial
challenge...a...court must consider any limiting construction that a state court or enforcement
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agency has proffered." Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989) (internal
quotations and citations omitted). However, while such limiting construction must be considered,
it is not necessarily dispositive. Moreover, the court will only consider a narrowing construction if
such a construction is apparent in the text of the statute or administrative rule at issue. There is
no need to consult extrinsic sources to interpret the rule because it is not ambiguous. See State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 50, 271 Wis. 2d 633, 681 N.W.2d
110. The 20 person floor imposed for the permit requirement in Kissick, while narrowing the
enforcement of the administrative code section in question, is not a narrowing construction
because it is not based on the language of the rule. If the state wished to conform the rule to the
Kissick injunction, the Department of Administration could have promulgated a new rule listing the
20 person floor for the permit requirement. It did not.
Adding to the confusion associated with the emergency rule is the Kissick injunction's
application only to gatherings that are anticipated to attract more than twenty participants. The
injunction is not worded to apply to gatherings that are in actuality over twenty participants, which
Defendant asserts is how the Capitol Police applied it. Def. Reply Br. at 8-10. This question need
not be resolved because the rule on its face is unconstitutional, but this example demonstrates the
consequences of the state's failure to enact a clear rule that comports with the constitutional
mandate of narrow tailoring.
III. Supplemental Filings on the Application of Crute
On February 24, 2014, the Court ordered supplemental briefing on the application of
Judge Markson's decision in Crute to this case. The state raised three issues in a letter brief
dated March 19, 2014: vagueness, issue preclusion, and claim preclusion. Because this Court
will decide this case based on its merits and not on the doctrine of issue preclusion or claim
preclusion, the Court need not address those two topics. The Court will briefly address the
contention that Judge Markson decided Crute under the wrong standards.
In its supplemental filing, the State first asserts that Judge Markson impermissibly merged
standards for a vagueness challenge with those for a First Amendment claim. Second, the State
again argues that it is the government's interpretation of the rule as it is applied that is at issue,
rather than the face of the rule. The second contention is dispensed with above — a narrowing
construction of the rule must be based on the text, and in this case it is only the enforcement of
the rule that has been narrowed based upon the Kissick injunction, not upon any basis within the
text of the rule.
The State's first contention is belied by the Crute decision itself. No vagueness challenge
was advanced or decided in Crute. Crute was decided on the basis of First Amendment
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concerns. In Crute, Judge Markson found the rule in question to be unconstitutional on its face
because it is not narrowly tailored to meet the governmental interests it seeks to promote. Crute
at 23. The Kissick court explicitly rejected a vagueness challenge to the administrative regulation
at issue. Kissick, 956 F.Supp.2d at 997. This was noted by Judge Markson in the Crute decision
in the context of explaining that even if a vagueness challenge fails, the law is still unconstitutional
as not narrowly tailored. Crute at 22. The defendant in Crute did not, and the defendant here
does not, challenge the rule's vagueness as applied to others as the State claims. Defendant
does not challenge the law's vagueness at all. The analogy provided by counsel at oral argument
in Crute was cited in that decision as an example illustrating "[t]he confusion and uncertainty
spawned by the state's failure to enact a clear rule complying with the First Amendment." Crute at
18. Even if the Crute decision impermissibly merged vagueness and First Amendment standards,
the persuasive holding from Kissick regarding facial unconstitutionality does not change. The
State's supplemental filing does not change the opinion of the Court that the rule is
unconstitutional on its face.
CONCLUSION
For the reasons as previously stated, Wis. Admin. Code § ADM 2.14(2)(vm)(5), the rule
which the defendant is charged with violating, is unconstitutional on its face, and the citation is
dismissed.
This is a final order for purposes of appeal.
22_,1 A By the court this day of 2014.
By the Court:
A)_g ft
David T. Flanagan
Circuit Court Judge, Branch 12
(21 6e rol+ A Pk-14\ .
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