Hatchett v. Barland

• Decision Date: 14 September 2011
• Docket Number: Case No. 10–C–265.
• Citation: 816 F.Supp.2d 583
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Charles G. HATCHETT, Plaintiff, v. Judge Thomas BARLAND,1 in his official capacity as Chair of the Government Accountability Board; Judge Gerald Nichol, in his official capacity as Vice Chair of the Government Accountability Board; Judge Michael Brennan, in his official capacity as a member of the Government Accountability Board; Judge Thomas Cane, in his official capacity as a member of the Government Accountability Board; Judge David Deininger, in his official capacity as a member of the Government Accountability Board; Judge Timothy Voeke, in his official capacity as a member of the Government Accountability Board; and, Phillip A. Koss, in his official capacity as District Attorney, Defendants.

816 F.Supp.2d 583

Charles G. HATCHETT, Plaintiff,

v.Judge Thomas BARLAND,1 in his official capacity as Chair of the Government Accountability Board; Judge Gerald Nichol, in his official capacity as Vice Chair of the Government Accountability Board; Judge Michael Brennan, in his official capacity as a member of the Government Accountability Board; Judge Thomas Cane, in his official capacity as a member of the Government Accountability Board; Judge David Deininger, in his official capacity as a member of the Government Accountability Board; Judge Timothy Voeke, in his official capacity as a member of the Government Accountability Board; and, Phillip A. Koss, in his official capacity as District Attorney, Defendants.

Case No. 10–C–265.

United States District Court, E.D. Wisconsin.

Sept. 14, 2011.

Unconstitutional as Applied

W.S.A. 11.23, 11.30

James Bopp, Jr., Jeffrey P. Gallant, Bopp Coleson & Bostrom, Terre Haute, IN, Michael D. Dean, Michael D. Dean LLC, Waukesha, WI, Sarah E. Troupis, Bopp Coleson & Bostrom, Terre Haute, IN, for Plaintiff.

Christopher J. Blythe, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for Defendants.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

The Plaintiff, Charles G. Hatchett (“Hatchett”), a resident of Walworth County, Wisconsin, brings this civil action for declaratory and injunctive relief arising under the First and Fourteen Amendments to the United States Constitution. By this action, Hatchett challenges the constitutionality of the registration, record-keeping, reporting, and disclosure requirements imposed on individuals by Wisconsin's election law scheme contending that the challenged laws place severe burdens on core First Amendment-protected political speech and are not narrowly tailored to any compelling government interest. Specifically, he maintains that (1) Wis. Stat. § 11.23's political action committee (“PAC”) style requirements are unconstitutional in the context of individuals participating in ballot measure advocacy, and (2) Wisconsin may not compel identification disclosures on the communications of individuals participating in ballot referendum advocacy as required by Wis. Stat. § 11.30 and Wis. Admin. Code [GAB] § 1.655.

As previously stated, Hatchett has sued the members of the GAB in their official capacities. Defendants Barland, Nichol, Judge Michael Brennan (“Brennan”), Judge Thomas Cane (“Cane”), Deininger, and Voeke, are currently members of that board. Defendant Phillip A. Koss (“Koss”), sued in his official capacity as the District Attorney of Walworth County, has independent enforcement authority. See Wis. Stat. § 11.60(4).

By a March 31, 2011, Decision and Order, the Court granted Hatchett's motion for a preliminary injunction enjoining the Defendants from enforcing §§ 11.23 and 11.30, Wis. Stats., against Hatchett in relation to his advocacy regarding the April 6, 2010, referendum in the town of Whitewater. In granting the preliminary injunction, the Court found that Hatchett is likely to succeed on the merits, as illustrated by Judge J.P. Stadtmueller's ruling in Swaffer v. Cane, 610 F.Supp.2d 962, 969–70 (E.D.Wis.2009), finding §§ 11.23 and 11.30, Wis. Stats., unconstitutional as-applied to plaintiff John Swaffer use of postcards and yardsigns in opposition to referendum regarding liquor sales in Whitewater, Wisconsin, and plaintiff Michael Rasmussen's efforts to contribute to that activity.

This action is before the Court on the parties' cross motions for summary judgment. The motions are ready for resolution and are addressed herein.

STANDARDS APPLICABLE TO SUMMARY JUDGMENT

In considering a motion for summary judgment, the Court applies the following standards. Judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; See also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.2011). A party “opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Doe v. Cunningham, 30 F.3d 879, 883 (7th Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505; also citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); United States v. Rode Corp., 996 F.2d 174, 178 (7th Cir.1993)).

“Material facts” are those facts that under the applicable substantive law “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over “material facts” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The burden of showing the needlessness of a trial—(1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law—is upon the movant. In determining whether a genuine issue of material fact exists, the Court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587, 106 S.Ct. 1348.

FACTUAL BACKGROUND

Hatchett is an individual who resides in Walworth County, Wisconsin. When Hatchett moved to the Whitewater area in 1977, the town was “dry.” A short time later, however, the Whitewater town board issued two liquor licenses for locations within the town of Whitewater (“Whitewater”). Chairman Charlie Cruse (“Cruse”), who was the town chairperson at the time, stated that Whitewater had the right to issue licenses because Whitewater's records had been destroyed in a fire so there were no ordinances prohibiting it from doing so. The board did not post public notices or conduct hearings, it simply issued the licenses.

When word got out, Whitewater residents reacted strongly. They hired an attorney, got the licenses rescinded, and placed a referendum on the ballot at the next election that Whitewater should be free from liquor sales. The voters approved the referendum overwhelmingly, and Whitewater continued to be completely “dry” until 2008, when two referendums were passed allowing the sale of wine only. Class B liquor licenses for the sale of beer and hard liquor were still prohibited.

During the 2006 spring election, three referendums were added to the ballot to approve the sale of alcoholic beverages in Whitewater. However, there was very little publicity about the referendums and few contested offices, so few electors knew about them and there was little incentive to turn out to vote.

On March 27, 2006, Scott Hatchett (“Scott”),² Hatchett's son, phoned Hatchett and told him that a Whitewater town board member told Scott that most Whitewater residents were not aware that the referendums were on the ballot. Hatchett was concerned about the referendums and believed that if he did not know about them, it was unlikely that others in the community knew about them.

Having decided to inform the community, Hatchett contacted the local advertising newsletter, “Good Morning,” to see if it was possible to place an ad in the newsletter. He was told that there was insufficient time to do so before the election. As a result, Hatchett decided to send a mailing and called a local realtor to request a list of the town residents and their mailing addresses. He also called the Whitewater clerk asking for that information, but she was not available.

Hatchett eventually decided to send a postcard because it would be easier and less expensive than a letter. He wrote, photocopied, and mailed a simple postcard asking residents to vote “no” on the three referendums. Hatchett estimates that he purchased 524 stamps for the mailing. He personally paid all costs associated with the mailing including the cards, printing, and postage. He offered to pay the realtor for the residents' names and addresses, but the realtor declined.

Hatchett did not sign the card because of his long association with Joy Baptist Youth Camp (“Camp Joy”), a Christian youth camp on Whitewater Lake, where he had been the director until 2007. Hatchett sent the mailing as a private citizen, and did not want repercussions for the camp, which requires the Whitewater board's approval for construction and improvements to camp facilities. Hatchett believed it was his responsibility and duty as a citizen, town resident, and elector to inform the residents of the referendums and to encourage them to vote against them.

Hatchett felt strongly that the sale of alcohol in the town was not in the community's best interests and, for that reason, he urged his fellow citizens to vote “no.” He was solely responsible for the postcard, and mailed it as a private citizen, believing his neighbors should be informed and that he was exercising his First Amendment rights and responsibilities.

The mailing was successful, and the referendums were defeated by a substantial margin. The day of the election, a sheriff's deputy visited Hatchett and asked him whether he was responsible for the postcard mailing. Hatchett was intimidated by the deputy and declined to answer.

Shortly after the incident, Scott told Hatchett that two plainclothes deputies came to Camp Joy. Scott informed Hatchett that, after the officers advised Scott that criminal charges were possible if Scott refused to cooperate, he told the officers that Hatchett was involved with the mailing. Until these law enforcement contacts, Hatchett was not aware of any law controlling whether he could contact his neighbors and town residents about a political matter.

Hatchett contacted attorneys who were able to convince the district attorney that Hatchett did not...