State v. Crute

• Decision Date: 29 January 2015
• Docket Number: No. 2014AP659.,2014AP659.
• Citation: 860 N.W.2d 284,360 Wis.2d 429
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Michael W. CRUTE, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

360 Wis.2d 429

860 N.W.2d 284

STATE of Wisconsin, Plaintiff–Appellant

v.Michael W. CRUTE, Defendant–Respondent.

No. 2014AP659.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 16, 2014.

Opinion Filed Jan. 29, 2015.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Winn S. Collins, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Jeff Scott Olson of The Jeff Scott Olson Law Firm, S.C., Madison.

Before LUNDSTEN, SHERMAN and KLOPPENBURG, JJ.

Opinion

KLOPPENBURG, J.¹

¶ 1 The circuit court dismissed a citation, issued to Michael Crute under Wis. Admin. Code § Adm 2.14(2)(vm)5., for participating in an unpermitted sing-along in the State Capitol rotunda.² The circuit court concluded that the rule was unconstitutional. According to the circuit court, the rule “violates the First Amendment because it applies, on its face, to very small groups [and] is therefore not narrowly tailored to address the legitimate interests of the government in requiring a permit.” The State appeals and argues that the circuit court erred in dismissing the citation because: (1) Crute did not satisfy his initial burden of showing that the rule implicated the First Amendment; and (2) the court erroneously failed to narrowly construe the rule so as to avoid constitutional infirmity. For the reasons set forth below, we conclude that the State fails to demonstrate that the circuit court erred, and, therefore, we affirm.

BACKGROUND

¶ 2 The pertinent facts of this case are undisputed. For some time leading up to the date of the citation, various individuals engaged in a noontime sing-along in the Wisconsin State Capitol rotunda. This became known as the Solidarity Sing–Along, a form of protest against recent legislation. On July 24, 2013, Michael Crute participated in the Solidarity Sing–Along in the rotunda. The Capitol Police issued Crute a citation for participating in an unpermitted event, in violation of Wis. Admin. Code § Adm 2.14(2)(vm)5.³ Crute filed a motion to dismiss the citation, claiming that the permit scheme created by the rule was facially unconstitutional under the First Amendment. Crute's principal argument was that the regulation was not a valid time, place, and manner regulation because it was not narrowly tailored to serve a substantial governmental interest. In particular, Crute argued that the rule did not specify a numerical floor for the group size that would trigger the permit requirement, and therefore, the rule unconstitutionally required a permit even for very small groups of individuals. The circuit court granted Crute's motion to dismiss the citation.

DISCUSSION

¶ 3 The constitutionality of a statute is a question of law, which we review de novo, benefiting from the analysis of the circuit court. State v. Trochinski, 2002 WI 56, ¶ 33, 253 Wis.2d 38, 644 N.W.2d 891. On appeal, the State argues that the circuit court erred in two respects: (1) placing the burden of proving the rule's constitutionality on the State even though Crute did not first satisfy his initial burden of showing that the rule implicated the First Amendment; and (2) failing to save the rule with a narrowing construction so as to avoid constitutional infirmity. We first review the rule and general principles pertaining to the First Amendment and burden of proof. We then address and reject each of the State's arguments in the sections that follow.

A. Chapter Adm 2: The Permit Scheme

¶ 4 The rule at stake here is an emergency rule issued by the Department of Administration in April 2013, modifying Wis. Admin. Code ch. Adm 2 relating to the use of state facilities.⁴ The provision in the emergency rule pertinent to this appeal authorized the Department to impose a civil forfeiture on individuals who participate in or spectate at any unpermitted “event” in state buildings and facilities:

(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:

....

(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)(vm).

¶ 5 A separate provision in the emergency rule defined “event” as: “any performance, ceremony, presentation, meeting, rally, organized tours not led by department or legislative staff or officials, festival, reception or the like held in public areas of state facilities or buildings.” Wis. Admin. Code § Adm 2.03(3m).

¶ 6 Another part of the emergency rule authorized the Department to issue permits for events in state buildings and facilities, and required that permit applicants “complete a written application to the department at least 72 hours in advance of the anticipated” event. Wis. Admin. Code § Adm 2.04(1) and (2).⁵

¶ 7 As to Wis. Admin. Code § Adm 2.14(2)(vm)5., the rule at issue here, we understand the parties to agree that the “assembly,” “event,” and “without authorization” language imposed a permit requirement on events held in public areas of state buildings, including the Wisconsin State Capitol rotunda. Persons attending unpermitted events, as participants or spectators, could be cited and compelled to pay a forfeiture. We discern no argument that the term “assembly” had independent meaning from the word “event.” As noted, “event” broadly included “any performance, ceremony, presentation, meeting, rally, organized tours, ... festival, reception or the like.”Wis. Admin. Code § Adm 2.03(3m).

¶ 8 There is also no dispute that, on its face, the rule did not contain a numerical floor and, therefore, without a limiting construction, the rule prohibited unpermitted events undertaken by as few as one person.⁶ The State does not defend the rule insofar as it applied to very small groups. Indeed, we understand the State to implicitly concede that requiring a permit for very small groups is unconstitutional. Rather, the State bases its merits argument on the contention that the rule may be saved by reading into the rule a specific numerical enforcement floor of 21, below which the State could not require a permit. We address that contention in section D below.

¶ 9 Finally, before moving on we observe an apparent quirk in the parties' arguments. The rule at issue appears to be a rule that applied generally to all state buildings and facilities. However, the parties discuss the rule as it applied to the public areas of a single and unique building, the State Capitol. The difference between the public areas of the State Capitol and public areas in smaller and different state buildings would seemingly affect the reasonableness of imposing a permit requirement on very small groups. However, because the parties ignore applications to other public areas, we do the same.

B. Speech Protected by the First Amendment and the Burden of Proof in First Amendment Cases

¶ 10 “The First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that ‘Congress shall make no law ... abridging the freedom of speech.’ ” State v. Hemmingway, 2012 WI App 133, ¶ 10, 345 Wis.2d 297, 825 N.W.2d 303 (quoted source omitted). The United States Supreme Court “ha[s] long recognized that [the First Amendment's] protection does not end at the spoken or written word” and “ha[s] acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the [First Amendment].’ ” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoted sources omitted). “In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, [courts] have asked whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” Id. (quoted source omitted). “In determining whether expressive conduct is at issue ..., we [look to] whether the activity in question is commonly associated with expression.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 769, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988).

¶ 11 Generally, statutes are afforded a presumption of constitutionality that the challenger must refute.

State v. Robert T., 2008 WI App 22, ¶ 5, 307 Wis.2d 488, 746 N.W.2d 564. But, when a statute infringes upon First Amendment rights, “ ‘the State bears the burden of proving the statute constitutional beyond a reasonable doubt.’ ” Id. (quoted source omitted). “It is, nevertheless, the initial duty of the person who claims the protection of the First Amendment to demonstrate that the [regulated] conduct is speech or its equivalent, to which First Amendment protections apply.” City of Madison v. Baumann, 162 Wis.2d 660, 669, 470 N.W.2d 296 (1991).

¶ 12 With these general principles in mind, we turn our attention to the State's arguments on appeal.

C. Whether the Circuit Court Improperly Imposed the Burden of Proving the Rule's Constitutionality on the State

¶ 13 As noted above, the State first argues that the circuit court erred by placing the burden of proving the rule's constitutionality on the State without first requiring Crute to satisfy his initial burden of showing that the rule implicated the First Amendment. As explained in the...