According to Assistant Attorney General Devra Ayala, the Wisconsin Department of Justice is planning to appeal Dane County Judge John Markson's ruling that the state's permitting requirements for Capitol gatherings are unconstitutional. Markson dismissed 29 tickets that had been issued to participants in the Solidarity Sing Along on the basis of his Feb. 5 decision in State of Wisconsin vs. Michael W. Crute and his ruling has since been used by other Dane County judges to also toss Capitol citations.
Attorney Jeff Scott Olson, who defended Crute, said Ayala stated the justice department's plans to appeal Markson's ruling during a status conference Wednesday in Dane County Court on another Capitol protest case.
Dana Brueck, spokeswoman for the Department of Justice, would not confirm or elaborate on the details of an appeal. "I have nothing to add since our previous correspondence on this matter," she said in an email. "So, I'm declining to comment. Thank you."
This would be the first appeal filed by the state Attorney General's Office of a circuit court judge's decision to dismiss citations issued to those who've joined in the daily noontime protests of Gov. Scott Walker.
"I think this is compounding the immense waste of public resources that these cases now represent," Olson said of the appeal.
Markson issued two written rulings on Feb. 5 (available here and here) on the Capitol tickets assigned to his court. In his Crute ruling, Markson said he agreed with the defendant's argument that the state's permit requirement "violates the First Amendment because it applies, on its face, to very small groups."
"The rule Mr. Crute is charged with violating is not narrowly tailored to the legitimate governmental interests it seeks to promote," Markson wrote. "It is not a valid time, place, and manner requirement.
Capitol Police officers began issuing hundreds of citations to protesters in the fall of 2012 while enforcing new permitting restrictions put in place by the Department of Administration. At first the rules limited gatherings without a permit at the Capitol to groups of four or fewer. But, based on its interpretation of a federal ruling, the department later expanded that number to 20.
According to records obtained from the Department of Administration by Isthmus, the state has issued a total of 783 tickets since 2011. The Capitol Police started its most recent round of enforcement on July 24, 2013. Nearly 350 tickets were issued over the summer. Nearly all of those ticketed demanded jury trials.