Kissick v. Huebsch

• Decision Date: 08 July 2013
• Docket Number: No. 13–cv–099–wmc.,13–cv–099–wmc.
• Citation: 956 F.Supp.2d 981
• Parties: Michael KISSICK, Plaintiff, v. Michael HUEBSCH, in his official capacity as Secretary of the Wisconsin Department of Administration, and David Erwin, in his official Capacity as the Chief of the Wisconsin Capitol Police, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

956 F.Supp.2d 981

Michael KISSICK, Plaintiff,

v.Michael HUEBSCH, in his official capacity as Secretary of the Wisconsin Department of Administration, and David Erwin, in his official Capacity as the Chief of the Wisconsin Capitol Police, Defendants.

No. 13–cv–099–wmc.

United States District Court, W.D. Wisconsin.

July 8, 2013.

Allen Steven Porter, Attorney A. Steven Porter, Madison, WI, Laurence J. Dupuis, ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, for Plaintiff.

Daniel P. Lennington, Maria S. Lazar, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

This motion for preliminary injunction concerns a public forum that has been at the center of public discourse in the State of Wisconsin since its completion in 1917: the massive Capitol rotunda. As explained in its official nomination for designation as a National Historic Landmark, which was granted on January 3, 2001:

The soaring rotunda of the Wisconsin State Capitol is designed to induce its citizenry to be, as individuals, among the “resources of Wisconsin.” Whereas some statehouses are maintained apart from the urban fabric, the Wisconsin Capitol Rotunda functions, both literally and symbolically, as a city center and is fully utilized as a public space to which all have claim.¹

Despite this, a permit is now required if even a single person holds any “event” in the rotunda of the State Capitol under recently amended rules and interpretive guidance published by the Wisconsin Department of Administration. Although not universally enforced, the permit requirement has teeth—a person who participates in an unpermitted event is subject to citation, forfeiture up to $500 if convicted, and more subtle repercussions that some fear from a record of political activism.

Plaintiff Michael Kissick, who would like to participate occasionally in an informal event known as the “Solidarity Sing Along” that meets inside the Capitol, alleges that this permitting scheme poses a dilemma for him personally. Sing Along participants have resisted characterization as an “organized group” or “organization,” claim to gather over the lunch hour on an impromptu, if regular, basis and, therefore, have declined to designate anyone to obtain a permit. As a result, Kissick feels vulnerable to being cited, convicted and fined, as well as criticized as a public employee, should he join the Sing Along on any given day be and deemed by the Capitol police to be violating the permit requirement.

In this suit, Kissick claims that as applied to the State Capitol rotunda, the permitting requirement impinges his First and Fourteenth Amendment rights under the United States Constitution.² The subject of this opinion and order is his request for a preliminary injunction barring defendants Michael Huebsch, Secretary of the Wisconsin Department of Administration, and David Erwin, Chief of the Capitol Police, from enforcing the permitting requirement. Although the court finds little merit in some of Kissick's more sweeping constitutional arguments, he has demonstrated a strong likelihood of success on the merits of his claim that the permitting regulations impinge on his free speech rights and that the balance of relevant factors point in favor of a preliminary injunction of its enforcement for smaller groups in the Capitol's rotunda. Rather than impose a blanket prohibition on enforcing the existing permitting scheme, however, the court will preliminarily enjoin defendants from (1) distinguishing based on the content of the speech between “rallies” and other events for permitting purposes inside the Capitol and (2) enforcing the permit requirement for gatherings expected to draw 20 or fewer persons inside the Capitol rotunda itself. Of course, nothing in this decision prohibits enforcement of existing laws and regulations that restrict disruptive noise or other disorderly conduct.

UNDISPUTED FACTS ³

A. Parties

Plaintiff Michael Kissick is an adult resident of Madison, Wisconsin. He is employed by the University of Wisconsin as an assistant professor.

Defendant Michael Huebsch is the Secretary of the Wisconsin Department of Administration. The Department of Administration is responsible for management of government buildings, including the State Capitol, under Wis. Stat. § 16.84(1) and its implementing rules found at Wis. Admin. Code Chapter Adm 2 (“Adm 2”). Defendant David Erwin is the Chief of the Wisconsin Capitol Police, a division of the Department of Administration that enforces rules governing the State Capitol and its grounds.

B. Capitol rotunda

The massive scale of Wisconsin's State Capitol rotunda is difficult to capture in words alone. Just three feet shorter than our nation's Capitol in Washington D.C., it is the largest dome by volume in the United States and one of the largest in the world.⁴See www. wi. gov/ state/ capfacts/ cap_ 3 d_ s. html (last visited July 3, 2013). Principal architect George B. Post designed the rotunda to be the center of public interaction among the three branches of state government, the county and city, the University of Wisconsin and the public by constructing four massive wings around it, opening onto four major streets of the City of Madison: East and West Washington Avenue, which is the central route through the isthmus; State Street, which leads directly to the heart of the University campus; and Martin Luther King, Jr. Blvd, where city and county government are still based. Id.; Nomination at 10–12, 30–34. Each wing is 125 feet wide, 84 feet wide and 187 feet long. The west wing houses the State Assembly; the east wing the Governor's Office and formal conference room and the Wisconsin Supreme Court; the south wing the State Senate; and the north wing, the North and Grand Army of the Republic Memorial Hearing Rooms. Id.

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As described in the June 10, 2000, “Nomination of the Capitol as a National Historic Landmark,” there is a

clear demarcation between public and private spaces, [that] is central to the development of Post's scheme for the Capitol interior. The public spaces, such as the rotunda, chambers and major corridors, are monumental in scale and are characterized by ornate decoration, rich materials and lavish details. The private offices, designed with the goal of making them adaptable to changing needs, are constructed at a smaller and more intimate scale.

Nomination at 3.

As specified in the original building program, the Capitol is “in the form a St. Andrew's Cross, providing a double axial configuration that welcomes state citizens to walk beneath the four classical porticos and enter the halls of government.” Id. at 34. Indeed, the Nomination argues persuasively that the design was intended to embody Wisconsin's then-contemporaneous “Progressive” movement, articulated by the state's governor, Robert M. La Follette, Sr., as the pursuit of fair and open government informed by an educated, politically-involved citizenry and the “Wisconsin idea.” ⁵Id. at 32–34.

There are actually two general gathering places under the dome. Visitors may enter at the street level and proceed to the ground floor of the rotunda, where tourists congregate inside the inner-most colonnade at the very center of the building.⁶ In the winter, the ground floor is home to an extraordinarily large “holiday” tree which blocks direct east/west and north/south pedestrian traffic through the rotunda, as do regularly scheduled and impromptu tours of between 10 and 155 visitors. See http:// www. doa. state. wi. us/ events. asp? locid= 4 (last visited July 3, 2013).

The first floor circular rotunda provides the other meeting space. Overlooking the ground floor, which offers access via grand staircases to each of the four wings of the building, as do recessed and outside stairs, the first floor rotunda itself “can seat a maximum of 200” according to Wisconsin Department of Administration regulations. (Access Policy, dkt. # 51–3, at 19.) The Department has determined that the ground floor “rotunda corridors and first floor corridors do not work well for large groups or large events, but may be appropriate or work well for small groups or short events.” ( Id.) The Department website indicates that regular events occurring on the first floor of the Capitol rotunda include: American Red Cross blood drives, the State Superintendent's State of Education Address, Friends of Education and Teacher of the Year Recognition, the Wisconsin Department of Public Instruction School Recognition Awards, Veteran's Day ceremonies, annual Kiwanis Clubs Christmas pageants and choral concerts. ( See www. doa. state. wi. us/ events. asp? locid= 4 (last visited July 3, 2012)).

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C. Wisconsin Administrative Code chapter Adm 2

Administrative rules requiring a permit for public events in the State Capitol have apparently been in existence since at least 1979,⁷ and have been codified at Adm 2 since February 6, 1998. ( See 1998 Adm 2, dkt. # 51–1.) The 1998 version of Adm 2 allows the Department of Administration, “as managing authority of the state office buildings and facilities” to “permit building and facilities to be used ... for the purpose of governmental business, public meetings for the free discussion of public questions, or for activities of a broad public purpose” subject to reasonableness considerations. ( Id. at § 2.04(1).) Members of the public seeking to use the building for such activities are instructed to “complete a written application to the department at least 72 hours in advance.” ( Id. at § 2.04(2).) Beyond this, the rules provide no guidance as to what size or type of activity triggers the permit requirement.

By all accounts, the 1998 Adm 2 permit requirement garnered little controversy over most of its lifetime. There is no evidence that citations were ever issued for holding an event without a permit until recently. (Barica Aff., dkt. # 20, ¶ 15.) Between 2006 and 2013, the number of applications...