Scott Walker administration to accept just notice for Capitol protests, no more permits required to protest inside Capitol Building
Walker also agrees to pay ACLU $88,000 in legal fees
Madison — To settle a free speech lawsuit, Gov. Scott Walker’s administration agreed Tuesday to pay more than $88,000 in attorneys fees and drop its hard-and-fast requirement that larger groups protesting in the Capitol receive a permit.
The Walker administration faced a federal trial in January over the permitting requirement as part of a lawsuit brought by a protester with the assistance of the American Civil Liberties Union of Wisconsin. Under Tuesday’s agreement, the state Department of Administration would keep its permitting rules in place but also would allow up to five days of demonstrations if protesters simply give the state two days’ notice.
Michael Kissick, the University of Wisconsin-Madison assistant professor of medical physics and human oncology who brought the lawsuit, said the settlement provided a significant shift in how the state handles demonstrations. Instead of having to ask permission, now protesters can simply provide a heads up, he said.
“If you’re going to have a party, you might give a courtesy call to your neighbor,” he said. “You don’t ask permission. … It’s neighborly.”
The state agreed to pay $88,271 in attorney fees for Kissick and a woman who sometimes sings Christmas carols who was later added to the lawsuit. Both sides said the state was required to pay the fees under federal civil rights law.
A stipulation to dismiss the case because of the agreement will be submitted to U.S. District Judge William Conley in coming days.
The settlement comes after 21/2 years of frequent protests that grew out of opposition to Gov. Scott Walker’s move to end most collective bargaining for most public workers. Those demonstrations have at times prompted clampdowns by the police, most recently this summer.
Conley in July blocked two parts of the administration’s restrictions on demonstrations as unconstitutional, giving a partial victory to the protesters. But Conley left much of the remaining rules in place, including those requiring permits for larger events.
The Capitol Police began arresting protesters just weeks after Conley issued that preliminary decision, which left the permit requirement in place for protests featuring 20 or more people.
Arrests during near-daily protests at the state Capitol dropped off last month. A list of arrests recently released under the state’s open records law shows the last batch occurred Sept. 6.
Protesters have claimed the state constitution protects their right to assemble without a permit and so far have been fighting their tickets. But Tuesday’s agreement acknowledges that the state Administration Department has the responsibility and authority under Wisconsin law to manage state buildings and acknowledges the state permitting process for Capitol events is constitutional.
“The permit process has been repeatedly upheld as constitutional by the courts, and today’s settlement demonstrates ACLU’s agreement with the process as well. We have taken reasonable steps to ensure all visitors and citizens can enjoy our beautiful Capitol building, and I’m hopeful we can all move forward together,” Administration Secretary Mike Huebsch said in a statement.
Walker on Tuesday started the process of putting the new rules in place. Those rules eventually will have to be approved by legislative committees.
“This is a victory because giving notice is significantly different from forcing people to ask the government for permission to exercise free speech,” said a statement from Larry Dupuis, legal director of the ACLU of Wisconsin. “Giving notice is very informal. The state can’t deny use of the Capitol to anyone giving notice, unless someone else has reserved the entire space by obtaining a permit for the same time.”
Kissick regularly protested in the Capitol on his own and sometimes joined the near-daily Solidarity Singalong, but stopped in September 2012 because of concerns about ticketing and arrests. He said he would resume his protests, but wasn’t sure if he would return to the singalong right away.
“I think it’s a win for everybody,” he said. “We gave and we got.”
Allowing protesters to provide advance notice is “pretty free-form and loose, which I like,” Kissick said.
How the settlement will play out is unclear. The singalong participants have steadfastly refused to get permits and it is unknown if they will choose to provide advance notice to the Department of Administration.
“Devil is in the details as far as people supporting or rejecting this agreement. Some will never accept any restrictions on speech. DOA hasn’t acted in good faith up to this point but hope springs eternal,” Bill Dunn, a frequent participant in the protests, wrote in an email to the Journal Sentinel.
Rep. Joel Kleefisch (R-Oconomowoc), an occasional target of the protests, said he did not expect anything to change.
“I don’t think it will make much difference in reality,” he said. “You’re talking about a group of people who have made false claims, consistently been inconsistent and I don’t think we can count on them to stick by any agreement.”
He said he was disappointed the state was paying the group’s legal fees but understood why.
“Sometimes the best route out comes with a small expense,” Kleefisch said. “However, I’d be happier not giving them one thin taxpayer dime.”
Still unresolved are hundreds of tickets issued during this summer’s crackdown. The protesters — many of them facing multiple tickets for $200.50 — are demanding jury trials.
Dupuis said state officials had indicated they were considering backing off of the prosecutions or seeking deferred prosecution agreements. But state officials told the Journal Sentinel on Tuesday the tickets will still be prosecuted.
“I think it would be inflammatory of them to insist on pursuing the cases without recognizing the change in circumstances,” Dupuis said.
Under the agreement:
■ Groups with fewer than 12 participants in most cases would not be required to obtain a permit or provide advance notice for an event.
■ Groups with a dozen or more participants would be required to obtain a permit or provide advance notice of an event to use the Statehouse.
■ To provide advance notice, groups would have to notify the state at least two business days before the planned event and provide details of the event including the date, start and finish times, estimated number of attendees, and contact information for one or more people in the group. The event given advance notice could be canceled if it conflicted with a valid permitted event or a tour group.
Demonstrators could give notice for up to five days at a time, as long as they did so two business days ahead of time. For example, someone could call on a Thursday to announce events would be held each day the following week. The same person could make another call the next Thursday for the following week.
This story was reported by Jason Stein and Patrick Marley of the Journal Sentinel staff and correspondent Michael Phillis.