Since new permitting rules went into effect at the state Capitol, the chief administrators of the policy have been virtually silent on the details, leaving almost all comment to Department of Administration spokeswoman Stephanie Marquis. But a new state appeals court ruling could put Capitol Police Chief David Erwin, Department of Administration Secretary Mike Huebsch and Capitol Police officers on the hot seat.
The three-judge panel ruled Dec. 19 that attorney Jim Murray has the right to "civil discovery" in his defense of Anica Bausch, who was cited in October 2012 for participating in the Solidarity Sing Along without a permit. That means Murray can request documents, video, interrogatories and depositions from relevant sources.
Murray is eager to depose higher-ranking state officials who he says have the "burden to justify restrictions on speech in a public forum." That's an issue, Murray adds, "that's never been squarely addressed."
Murray says participants of the Solidarity Sing Along gathered at the Capitol for 18 months without incident until Gov. Scott Walker's administration put in place emergency rules and started ticketing people for permit infractions. Members of the Solidarity Sing Along gather at noon at the Capitol on weekdays to protest Walkerâ€™s policies.
Murray says the state needs to justify what conditions created this alleged "crisis." "Where is the emergency all of a sudden?"
Spokeswoman Dana Brueck says the state Department of Justice has no comment on the appeals court ruling and has not yet decided whether it will appeal the decision.
Bausch and nearly every other individual cited for protesting at the Capitol have demanded jury trials rather than pay their tickets. But as some of these trials were getting underway last spring, Dane County judges William Hanrahan and Stephen Ehlke ruled in separate cases that the defense lawyers did not have the right to obtain testimony or documents under the normal rules of civil discovery.
Murray says these decisions shut down the process of civil discovery for most of the year. Some other Dane County judges faced with the issue were taking a wait-and-see attitude, he adds. "They knew this appeal was coming, so [they thought] why weigh in on it only to be reversed by the court of appeals?"
Murray says he took the unusual move of appealing Hanrahan's decision in Bausch's case before the trial itself had concluded because the issue was "so big and of statewide importance."
There's a chance the state Supreme Court would also step in with a ruling before the trial is finished, but Murray thinks it's unlikely.
Moreover, says Murray, the DOJ would be arguing against its own legal advice if it appealed to the Supreme Court. A 1988 opinion issued by the Attorney General's Office states that state law allows civil discovery in forfeiture cases. (A forfeiture action involves a penalty that is a fine.)
"I think it would be rather difficult for the Supreme Court to get judicially active and say the statutes do not mean what they say in this particular case."
The move by Department of Justice attorneys to deny civil discovery in Capitol protest cases came after they tried to get a Dane County judge to rule from the bench on a couple of tickets, arguing that no facts were in dispute.
In March 2013, Judge Nick McNamara refused. He told the Attorney General's Office its request was "bold and almost insolent" since higher court rulings had warned against using summary judgment in this way. He added that Wisconsin law is clear that "summary judgment was not permitted in forfeiture actions."
Assistant Attorney General Winn Collins then tried a different tack. He argued in motions that due to McNamara's decision, discovery -- another rule of civil procedure -- should not apply in two other pending cases involving Capitol tickets. Collins said the state was no longer required to turn over requested materials or submit to depositions.
Murray and Brenda Lewison, another defense attorney, fought Collins' motions, arguing in part that the 1988 attorney general opinion held that documents could be sought in a forfeiture action.
Ehlke and Hanrahan sided with the Attorney General's Office. In the case of Bausch, Hanrahan wrote that "no allowance has been made by the Legislature for use of the discovery methods sought by the defendant."
The appeals court countered that civil discovery is available to Bausch because the Legislature "has not prescribed a 'different procedure'" for the tickets given Bausch and other protesters.
Read the ruling issued by the state Court of Appeals.