State v. Crute
860 N.W.2d 284
Wis. Ct. App.2015Background
- Michael Crute was cited under Wis. Admin. Code § Adm 2.14(2)(vm)5. for participating in an unpermitted "event" (a Solidarity Sing-Along) in the State Capitol rotunda; the rule authorized forfeitures for participants/spectators of unpermitted events.
- The emergency rule defined "event" broadly ("performance, ceremony, presentation, meeting, rally, ... or the like") and contained no numerical minimum triggering the permit requirement.
- Crute moved to dismiss on First Amendment grounds, arguing the permit scheme was not a valid time, place, and manner restriction because it was not narrowly tailored and could apply to very small groups or individuals.
- The circuit court granted dismissal, concluding the rule was facially unconstitutional as not narrowly tailored; the State appealed.
- On appeal the State argued (1) Crute failed to carry the initial burden to show the rule implicated the First Amendment, so the State should not have borne the burden to prove constitutionality, and (2) the court should have adopted a narrowing construction (a numerical floor, e.g., 21) to save the rule.
- The court affirmed dismissal, holding the State had forfeited contesting that the rule implicated protected expression and failed to carry its burden to prove the rule constitutional; the court also refused to graft a specific numerical floor into the rule.
Issues
| Issue | Plaintiff's Argument (Crute) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the rule implicated First Amendment–protected expression | The permit requirement regulates expressive conduct (e.g., protests, sing‑alongs) and thus triggers First Amendment protection | The State did not contest below that the rule implicates speech; on appeal argued Crute never met initial burden | Court: State effectively conceded the First Amendment context; burden shifted to State to prove constitutionality |
| Proper burden of proof when a regulation implicates speech | Once speech is implicated, State must prove the regulation constitutional beyond a reasonable doubt | State argued circuit court should have required Crute first to show the conduct was protected | Court: Initial burden to show conduct is expressive lies with challenger but State forfeited contest; court properly required State to prove constitutionality |
| Whether the permit scheme is a narrowly tailored time, place, and manner regulation | The rule is not narrowly tailored because it contains no numerical floor and could require permits for very small groups/individuals | State conceded the rule, as written, is not narrowly tailored and urged the court to read in a numerical floor (e.g., 21) to save it | Court: Rule as written is not narrowly tailored and cannot be saved by judicially inserting a specific numerical floor; affirmed dismissal |
| Whether agency practice or Kissick injunction supplies a narrowing construction | Crute: reliance on post‑litigation agency conduct or injunctive orders is insufficient to save the rule | State: Department’s compliance with Kissick and its enforcement practice (not enforcing for ≤20) shows an available narrowing construction | Court: Kissick granted preliminary injunctive relief and did not judicially construe the rule to include a numerical floor; agency compliance with an injunction is not the kind of independent pre‑litigation limiting construction courts may use to save a statute |
Key Cases Cited
- Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988) (facial challenges require consideration of whether a narrowing construction is readily available)
- Forsyth Cnty. v. The Nationalist Movement, 505 U.S. 123 (1992) (time, place, and manner permit schemes and consideration of governmental constructions)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (three‑part test for time, place, and manner regulations: content neutrality, narrow tailoring, and ample alternative channels)
- City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) (conduct may be expressive; courts should examine common association with expression)
- Kissick v. Huebsch, 956 F. Supp. 2d 981 (W.D. Wis. 2013) (preliminary injunction enjoining enforcement of the permitting requirement for gatherings anticipated to attract 20 or fewer persons; did not judicially construe the rule to include a numerical floor)