Judge Smacks Scott Walker Twice

Federal Judge William Conley dealt two blows to the Walker regime yesterday with the release of two orders. The judge issued a preliminary injunction prohibiting the Wisconsin Department of Administration from enforcing a portion of the Capitol Access Policy that violates First Amendment free speech protections, and he also issued a one-week restraining order on that portion of Act 37, the mandatory ultrasound law, that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic.

Planned Parenthood filed its complaint in the U.S. District Court this past Friday before the ink was dry on Walker’s signature on the bill. The complaint says that Act 37 unconstitutionally restricts the availability of abortions in the state, violates due process, and unconstitutionally treats doctors who perform abortions differently from those who perform other procedures.

In his decision, Judge Conley reasoned, “There will almost certainly be irreparable harm to those women who will be foreclosed from having an abortion in the next week either because of the undue burden of travel or the late stage of pregnancy, as well as facing increasing health risks caused by delay.”

A preliminary injunction hearing in the case is scheduled for July 17.

Commenting on the order, Larry DuPuis, legal director of the Wisconsin ACLU, said, "We're thankful that the judge has put the brakes on a dangerous law that was rammed through the Legislature with no thought to the health and well-being of Wisconsin women and families."

DuPuis had another reason to celebrate yesterday. The Wisconsin ACLU’s case against the Walker Administration’s permitting rules in the Capitol building chalked up a victory with Judge Conley ruling portions of the scheme unconstitutional.

Artistic rendition of Lazar's comment. Photo by Rebecca Kemble
<i>Artistic rendition of Lazar's comment. Photo by Rebecca Kemble</i>

Plaintiff Michael Kissick, who argued that the rules violated his free speech rights in a traditional public forum said, “It’s a victory because it is saying that the Capitol Police and the Department of Administration have been doing some things unconstitutionally.”

Larry Dupuis called the ruling “a huge victory for free speech” adding, “The court recognized the Capitol’s unique and historic role as a forum for free speech and public gatherings.”

The order does not enjoin the entire permitting process. It abolishes the distinction made in the rules between a rally promoting a cause, and any other type of gathering, performance, ceremony or presentation in the building, and it raises the limit on how many people may be gathered before the permit requirement kicks in from a group of 4 to a group of 20 people.

During the preliminary injunction hearing last spring, Judge Conley struggled to wrap his mind around the convoluted rules, finally asking Assistant Attorney General Maria Lazar, “Why do you even have a definition of a rally? What’s the point?” Lazar famously answered, “We’re giving them more rights and they’re still complaining!”

Conley came down with a firm decision abolishing the distinction between rallies and other types of events based on the fact that Capitol Police officers would have to make a content-based decision on the type of speech expressed.

In a footnote to the decision he wrote, “Consider three hypotheticals. (1) On the first day of every month, four nuns kneel for an hour of silent prayer in the Capitol rotunda; (2) Ten National Rifle Association members meet at an agreed upon time in the Capitol rotunda after visiting their legislators, to discuss next steps in defense of the Second Amendment to the Constitution; (3) Adam dreams up a romantic civil union proposal for his boyfriend Steve: as they pass through Steve’s favorite spot, the Capitol rotunda, Adam and his friends bust into an a capella version of ‘Only You.’ All three of these groups could be cited for conducting an unpermitted ‘event.’ ”

Despite this ruling, a public hearing on the rules is scheduled for 2:30 pm this Friday in the St. Croix Room at the Department of Administration building, 101 E. Wilson St., Madison. Written comments on the rules will be accepted through July 15 and can be submitted to Donna.Sorenson@Wisconsin.gov . Click here to see the rules.

A trial for a permanent injunction on the rules is set to begin on January 13, 2014.

In a recent interview with the Milwaukee Journal Sentinel, Attorney Lester Pines who represents Planned Parenthood in its case against Act 37, held out some hope for free speech and women’s health advocates. "There is one place left in the governmental process where facts still matter — that is the courts," Pines says. "You don't get to come in and make stuff up.”

Judge Conley seems to agree.

Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along.