When Capitol protesters were ticketed during the 2011 uprising against Gov. Scott Walker, the charges were handled by the Dane County District Attorney's Office.
Republicans later grumbled that District Attorney Ismael Ozanne, a Democrat, dismissed too many of the tickets. So when a new round of tickets was issued this fall as part of a crackdown on protesters by the new Capitol police chief, David Erwin, the Department of Administration used its statutory power to request that the Department of Justice, headed by Republican Attorney General J.B. Van Hollen, handle the forfeitures.
But last week the Department of Justice moved to dismiss four tickets issued this fall.
Two of the tickets were issued to Jason Huberty in early September for holding a sign in the Capitol in violation of Wisconsin Administrative Code 2.07. According to the code, "no displays, signs, banners, placards, decorations or graphics 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."
The Attorney General's motion to dismiss (PDF) Huberty's tickets cited a recent decision by Dane County Judge Frank Remington, who ruled, in part, that Wisconsin Administration Code 2.07 "did not apply to a person holding a sign."
This scenario was predicted by state Rep. Chris Taylor (D-Madison), a critic of the crackdown, who had tried to warn Erwin at the time that these tickets would not hold up given Remington's ruling.
The DOJ brief said that the state could still reissue citations for other administrative code violations occurring the same day Huberty was ticketed. It also said the state could continue to issue citations based on other sign violations and for failing to get a permit to demonstrate at the Capitol.
The DOJ dismissed two other tickets issued for unlawful display of a sign or holding a sign over a railing, says DOJ spokeswoman Dana Brueck.
According to DOJ attorney Winn Collins, four attorneys from the Department of Justice are working on these citations. Brueck says approximately 110 citations have been referred to the DOJ.
Madison attorney Patricia Hammel is one of about 15 local attorneys who have stepped forward to represent those charged, almost all of whom have requested jury trials rather than agree to pay the fines.
"What [the DOJ does not] realize is that they are giving lawyers in Dane County an opportunity to have fun," says Lester Pines, who met Collins at the courthouse Friday to discuss the ticket issued to Steve Books for writing "This is far from over" in chalk on a Capitol sidewalk.
Bob Jambois, a retired Kenosha County district attorney and former legal counsel at the state Department of Transportation, says he is working eight to nine hours a day on the cases he already has and is getting more referrals every day.
"I have done a lot of trials, and I like doing trials, and I want to take every one of these to trial," says Jambois, who represented state Rep. Peter Barca (D-Kenosha) in a high-profile challenge to Gov. Scott Walker's collective bargaining law.
"I am just so offended by what this government is doing at this juncture, that I decided to jump in with both feet, and I'm prepared to do this until we're done," says Jambois.
Former Capitol Police Chief Charles Tubbs was widely credited with helping to forge a respectful relationship between protesters and police during the winter 2011 protests, when tens of thousands of people descended on the Capitol. Tubbs left in June 2012 to become director of Dane County Emergency Management, and Erwin, his successor, soon pledged to get tough with the Solidarity Sing Along, which gathers daily at the Capitol, by enforcing newly defined permitting rules.
Capitol Police started citing protesters for a variety of infractions, including holding signs over railings and obstructing passageways. Police tracked down protesters at work and home to deliver tickets.
Jambois, along with Hammel, is representing Huberty on two of his tickets that appear to be heading to trial. In both incidents, he was charged with "obstruct[ing] access passage, etc."
Huberty says he refuses to pay these tickets because he doesn't think he has done anything wrong. The Capitol, he says, "is a public forum, and if there is one place where you should be able to express dissent it's the state Capitol."
Adds Huberty, "I am exercising my right to free speech."
It is precisely that argument, however, that the Department of Justice would like to keep out of the courtroom. In a motion (PDF) filed Dec. 4, the Department of Justice asks that the judge prohibit the defendant "from arguing to a jury that his or her conduct constitutes protected First Amendment Speech."
"The Department of Administration has the authority to impose reasonable time, place and manner restrictions on activities within the Capitol as long as they are content neutral," the DOJ brief said. "The defendant has the obligation to provide proper notice when alleging the unconstitutionality of a statute or administrative code. Whether DOA's permit requirements and other rules unconstitutionally limit the free speech rights of those who intentionally do not apply for a permit is a legal question appropriately addressed by the Court, not a jury."
Huberty calls that request "absolutely outrageous."
Jambois says he and Hammel will fight the motion. "Obviously we consider the First Amendment a major factual and legal consideration in these cases," he says.
Jambois, who expects to ultimately receive attorneys' fees from the state upon conclusion of these cases, and Huberty say attorneys in the Department of Justice have better things to do than take these noncriminal offenses to trial.
"This is a big waste of resources," says Huberty.
When asked about the time and expense of these cases, Brueck says in an email that "there is no additional expense to taxpayers."
"Representing the government is our job," she says.
