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Wednesday, December 24, 2014 |  Madison, WI: 34.0° F  Overcast
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ACLU and Wisconsin officials clash on interpretation of Capitol protest settlement
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The settlement ends a federal lawsuit filed by the ACLU against the DOA
Credit:Kristian Knutsen

The Department of Administration and the ACLU of Wisconsin Foundation have signed a settlement on a federal lawsuit involving permitting requirements for state Capitol protests. Under the settlement, announced Tuesday, groups like the Solidarity Sing Along will need to give notice, rather than obtain a permit, to gather at the Capitol. Nevertheless, the parties are still clashing over the interpretation, if not the terms, of the agreement.

The Department of Administration, the defendant in the suit, says the settlement recognizes that the state's permitting process 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," said Mike Huebsch, secretary of the DOA, in a news release.

But Larry Dupuis, legal director of the ACLU of Wisconsin, calls that claim "bizarre."

"It's pretty astonishing, because it's nowhere in the agreement," says Dupuis. "They tried to get it in the agreement and we said absolutely not."

A search of the settlement finds no explicit reference to the constitutionality of the permit process, though it does state that the DOA has authority under state and federal law "to manage and operate" the state Capitol and that the DOA may create a permit system for use of state facilities.

Stephanie Marquis, spokeswoman for the Department of Administration, would not comment on the record on Dupuis’ response, deferring to Huebsch's official comment.

Dupuis says the agreement solves a dispute between the parties and resolves the lawsuit, but does not determine what the law is.

And he dismisses as "ridiculous spin" any suggestion by the DOA that because the lawsuit was about the constitutionality of the state's permitting process, the ACLU agreed in signing the settlement that the process was constitutional.

"I suppose it's implicit that we agree a notice requirement is constitutional, but that doesn't mean we agree that a permit scheme is constitutional. And it certainly doesn't mean that we think the permit scheme the DOA adopted -- and that Judge Conley found to be unconstitutional -- is permissible."

U.S. District Judge William Conley in July struck down some of the permitting restrictions as unconstitutional, but left others in place.

Dupuis says the settlement offers a practical solution to the ongoing protests at the state Capitol.

"I think it solves a problem for the sing-along and the Capitol Police. I can't imagine anybody wanted this impasse to continue forever."

The settlement ends a federal lawsuit filed by the ACLU against the DOA on behalf of Michael Kissick, an assistant professor at UW-Madison who stopped attending the noontime Solidarity Sing Along at the Capitol to avoid getting ticketed by Capitol Police for not having a permit. The lawsuit charged that the state's permitting process violated the First Amendment.

Individuals have been gathering at noon at the Capitol on a daily basis since March 11, 2011, to sing pro-union songs in protest of Gov. Scott Walker's policies. Capitol Police officers have issued hundreds of citations to protesters since beginning to enforce in September 2012 new permitting restrictions put in place by the DOA. The rules adopted by the state in November 2011 required groups of four or more to obtain a permit to gather at the Capitol.

According to the terms of the Kissick settlement, groups of 12 or more must notify the DOA by phone, email, in person or via a form supplied by the state if they intend to gather at the Capitol. Notice must be given at least two business days, but not more than 10 business days, before an event. The state, according to the ACLU, can't deny anyone use of the Capitol unless someone else has reserved a permit for the same time.

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