Capitol Crackdown gets a Smack Down

[EDITOR’S NOTE:  This is an open-source correction/continuation of a January 18, 2013, Department of Administration Press Release which shows Stephanie Marquis does not understand legal rulings or perhaps just selects and omits facts as she pleases. We are happy to report that she did not misspell “Huebsch” this time around, perhaps because he is not mentioned in the press release.]


January 18, 2013
For Immediate Release
Stephanie Marquis, 608-266-7362

Dane County Court Judge Upholds Not Asked to Rule on the Validity of the Administrative Code

DOA still believes a Permit Required to Hold Events at Capitol

A Dane County Circuit Court judge has NOT ruled that permits are required to hold events at the state Capitol building, as outlined in the state’s Administrative Code.  Judge Genovese merely stated what the Code says, and suggested that if the defendant thought it unconstitutional, he should file a motion for the court to decide that issue. No such motion was filed, and Genovese made no such decision.

Judge Genovese was asked to interpret the meaning of a portion of the law governing conduct at the Capitol, Wisconsin Administrative Code provision ADM 2.14(2)(v), which relates to conducting a picket, rally, parade or demonstration at the state buildings, including the Capitol.

In her oral decision yesterday in reviewing State vs. Jason Huberty, Judge Genovese reaffirmed that a person violates this law (2.14.(2)(v)) if he or she conducts a demonstration in the State Capitol Building without first obtaining Department of Administration (DOA) approval. This approval is given through the permit process administered by the Capitol Police. This provision has been part of Wisconsin’s Administrative Code since 1979 determined that “conducting” an unapproved picket or rally under section 2.14 means “acting in a leadership capacity”.

Previous court rulings have validated the Department’s ability to manage the State Capitol Building on an equal basis for all groups and members of the public by requiring permits for all demonstrations:

• In September 2012 in the case Ryan v. Huebsch, Judge Remington refused to rule that any portion of the Administration Code was unconstitutional, and instead stated, “it was (and still is) well established that the government may impose reasonable restrictions on the time, place or manner of protected speech, even in a public forum… .” Remington did not rule on the validity of the administrative code because the tickets were so vague he could not tell which part of the code the people arrested were accused of violating.

• In June of 2011, in WSEU vs. Huebsch, Judge Albert approved a settlement that the State Capitol Building rotunda and grounds are open to the public, but expressly stated events are, “subject to Wis. Admin. Code 2 and to DOA’s permitting authority under that Code.” Also in June of 2011, all the entrances were reopened bringing the Capitol back into compliance with the Americans with Disabilities Act and the metal detectors were removed. The DOA apparently felt the time was right to remove the metal detectors as the legislature would pass a concealed carry law. For many months prior, the DOA blatantly ignored a Court’s ruling about access to the Capitol with no repercussions.

Judge Genovese ruled in favor of DOA in two other issues in State vs. Jason Huberty, in which Huberty was cited for his unpermitted protest conduct in the Wisconsin State Capitol:

• Recaptioning Cases: Huberty’s attorney, Bob Jambois, had asked the court to recaption the court cases from “State” to “Department of Administration.” Jambois had made this request so that he could seek attorney’s fees in representing Huberty and other plaintiffs who have received citation. The court denied this action.

• Seeking Attorney’s Fees: Jambois was seeking reimbursement of $5,000-8,000 per case from anyone he represents related to the civil citations issued by Capitol Police for unpermitted events. To receive reimbursement, the case would first need to be recaptioned, which was denied. In addition, the court denied reimbursement. As long as the DOA can continue to hold the DOJ as captive prosecutors, the DOA does not have to put its money where its mouth is. It can continue to harass citizens with inappropriate tickets as it will not be responsible to reimburse the citizens and attorneys who fight them in court.

Judge Genovese also provided guidance on agreed with Huberty’s definition of the meaning of the word “conduct” as used in the Administrative Code, stating that “conduct” must involve an element of leadership. Therefore, DOA will work with the Department of Justice, who is representing the State, dismissed Huberty’s case and indicated that most of to review the other citations issued in other cases to ensure they meet the guidance provided by Judge Genovese for participation in the Solidarity Sing Along are likely to . Some citations may be dismissed in the future, while other cases are may be strengthened by the court’s ruling.

The National Lawyers’ Guild, which has been helping to organize legal representation for the Capitol Crackdown, issued its own Press Release on the matter.

Jason Huberty's citation for 2.14(2)(v) "no permit" given on Sept. 10, 2012, was dismissed following Judge Genovese's ruling on Jan. 17, 2013. Photo courtesy Rebecca Kemble.

Jason Huberty’s citation for 2.14(2)(v) “no permit” given on September 10th, 2012, was dismissed by the Department of Justice on January 18th, 2013. Photo courtesy Rebecca Kemble.

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