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

1

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.

2

"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

3

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

4

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

5

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

6

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\ .

7