Moldy Jam played the market without incident for five years.
Capitol Police Chief David Erwin has followed up on his promise to crack down on anyone who strays from state Capitol permitting rules, including those who sing at noon with the Solidarity Singers. He's even sent deputies to deliver tickets to people's homes and workplaces.
Now his office is also requiring a group of musicians who play occasionally at the Westside Community Market to get a permit. The farmers' market is held in the parking lot of the Hill Farms state office building on Segoe Road that houses the Department of Transportation.
The group, known as Moldy Jam, have played at the market for the last five years without incident. They have no electrical equipment and don't accept money (busking on state property is illegal).
"The market did a fine job of placing us and sometimes multiple music groups around the market, and everyone was happy," says band member Terry O'Laughlin.
Barry Orton, who recently stepped down as market manager, says he received a call about two or three weeks ago from Sue Barica, the longtime staffer who administers permits for the Capitol Police.
Barica told Orton that Moldy Jam would now need to get a permit every time it played so that the enforcement of musical performances on state property is "consistent."
O'Laughlin explains in a letter to Erwin why obtaining a permit, which requires at least 10 days for processing, is impractical for his group, since they don't know whether they will perform until the last minute.
"Late each week, if we find we have enough members available on a Saturday morning, we gather at the market to play a traditional American musical style commonly referred to as 'old-timey' with some Irish mixed in. For the children, we put out boxes of shakers, rattles and other percussion instruments. This activity is quite popular."
Stephanie Marquis, spokeswoman for the Department of Administration, says that there is nothing new happening with the permit process. She says market managers were told five years ago, when the market opened at the site, that their annual permit would cover only farmers and that any other vendors or entertainers would need to obtain their own permits from the Capitol police.
Moldy Jam sat out the market on Sept. 1 due to questions about permitting, but inquired about particulars a few days later at the Capitol Police office. Confusion ensued.
"The woman in the office believed we need a permit but was unsure how the form should be filled out for a recurring but sometimes irregular event like ours," O'Laughlin wrote to Erwin.
O'Laughlin identifies inconsistencies he sees in the Wisconsin State Facilities Access Policy in his letter to Erwin.
On state Capitol grounds, permits are required for any event "if the event organizer reasonably expects more than 100 persons to attend," O'Laughlin writes. On all other state property, "permits are required for any event occurring in any area inside or outside a state building, unless the event is a bona fide spontaneous event."
"It strikes me as rather strange that a group of harmless musicians playing music to entertain children, their parents and market shoppers in a parking lot far away from the epicenter of political activity should be held to a higher standard than the protesters at the state Capitol," O'Laughlin concludes.
O'Laughlin regrets the creep of Capitol politics: "Moldy Jam's forced absence from the market is just collateral damage in a wider ideological conflict."
Since last week, the Capitol Police have issued more than 15 tickets for permitting infractions. The first slew were issued for violations of the Department of Administration's administrative code - AD 2.07, titled "Exterior and Interior Displays and Decorations.
According to the code, "no displays, signs, banners, placards, decorations or graphic or artistic material may be erected, attached, mounted or displayed within or on the building or the grounds of any state office building or facility without the express written authority of the department."
State Rep. Chris Taylor (D-Madison) has pointed out that this language does not refer explicitly to people who are simply holding signs, and a new court ruling issued by Dane County Circuit Court Judge Frank Remington adds support to that interpretation.
In a Sept. 10 interview with the Wisconsin Reporter, Erwin seems to acknowledge the court ruling might have complicated matters: "We're going to look at those citations and evaluate what was issued and what was done last week, because that is new information to us as of Thursday."
The Department of Justice will be taking the lead on this new round of citations, at least according to news reports and Dane County District Attorney Ismael Ozanne.
Ozanne says the Department of Administration used its statutory power to request that the justice department handle these forfeitures, and the "DOJ has agreed."
"At this point referrals for ordinances or civil tickets are going to be referred to DOJ," says Ozanne. "If they review it and feel it should be criminally charged, they can communicate with us."
When asked for confirmation on this new protocol, Department of Justice spokeswoman Dana Brueck emailed that "it isn't quite correct. Cases get reviewed and then a decision about how to proceed is made."
When asked to confirm that the DOA requested that the Department of Justice begin to handle these tickets, Brueck sidestepped the question.
"We receive referrals from Capitol Police, a law enforcement agency," she wrote in an email. "As the Department of Justice, we naturally think it's in the state's interests to enforce the law, and that's why we're working with our law enforcement partners to do so. It's in everybody's interest that the Capitol be a safe place to work and to visit, and when individuals or groups violate the law, the rights of others to use and enjoy the Capitol are diminished. Further, when violations of the law are ignored, the rule of law is undermined."
Brueck seems to be alluding to criticism that Ozanne's office routinely dismissed tickets issued during the Capitol protests. Ozanne denies the charge.
"We look at every case that comes in," he says. "Some we prosecuted and some we didn't. Some had proof issues. And some of them we prosecuted criminally and took to jury trials and got convictions."