KLOPPENBURG, J.
¶ 1 The circuit court dismissed a citation, issued to Michael Crute under WIS. ADMIN. CODE § Adm 2.14(2)(vm)5., for participating in an unpermitted sing-along in the State Capitol rotunda.
¶ 2 The pertinent facts of this case are undisputed. For some time leading up to the date of the citation, various individuals engaged in a noontime sing-along in the Wisconsin State Capitol rotunda. This became known as the Solidarity Sing-Along, a form of protest against recent legislation. On July 24, 2013, Michael Crute participated in the Solidarity Sing-Along in the rotunda. The Capitol Police issued Crute a citation for participating in an unpermitted event, in violation of WIS. ADMIN. CODE § Adm 2.14(2)(vm)5.
¶ 3 The constitutionality of a statute is a question of law, which we review de novo, benefiting from the analysis of the circuit court. State v. Trochinski, 2002 WI 56, ¶ 33, 253 Wis.2d 38, 644 N.W.2d 891. On appeal, the State argues that the circuit court erred in two respects: (1) placing the burden of proving the rule's constitutionality on the State even though Crute did not first satisfy his initial burden of showing that the rule implicated the First Amendment; and (2) failing to save the rule with a narrowing construction so as to avoid constitutional infirmity. We first review the rule and general principles pertaining to the First Amendment and burden of proof. We then address and reject each of the State's arguments in the sections that follow.
¶ 4 The rule at stake here is an emergency rule issued by the Department of Administration in April 2013, modifying WIS. ADMIN. CODE ch. Adm 2 relating to the use of state facilities.
WIS. ADMIN. CODE § Adm 2.14(2)(vm).
¶ 5 A separate provision in the emergency rule defined "event" as: "any performance, ceremony, presentation, meeting, rally, organized tours not led by department or legislative staff or officials, festival, reception or the like held in public areas of state facilities or buildings." WIS. ADMIN. CODE § Adm 2.03(3m).
¶ 6 Another part of the emergency rule authorized the Department to issue permits
¶ 7 As to WIS. ADMIN. CODE § Adm 2.14(2)(vm)5., the rule at issue here, we understand the parties to agree that the "assembly," "event," and "without authorization" language imposed a permit requirement on events held in public areas of state buildings, including the Wisconsin State Capitol rotunda. Persons attending unpermitted events, as participants or spectators, could be cited and compelled to pay a forfeiture. We discern no argument that the term "assembly" had independent meaning from the word "event." As noted, "event" broadly included "any performance, ceremony, presentation, meeting, rally, organized tours, ... festival, reception or the like." WIS. ADMIN. CODE § Adm 2.03(3m).
¶ 8 There is also no dispute that, on its face, the rule did not contain a numerical floor and, therefore, without a limiting construction, the rule prohibited unpermitted events undertaken by as few as one person.
¶ 9 Finally, before moving on we observe an apparent quirk in the parties' arguments. The rule at issue appears to be a rule that applied generally to all state buildings and facilities. However, the parties discuss the rule as it applied to the public areas of a single and unique building, the State Capitol. The difference between the public areas of the State Capitol and public areas in smaller and different state buildings would seemingly affect the reasonableness of imposing a permit requirement on very small groups. However, because the parties ignore applications to other public areas, we do the same.
¶ 10 "The First Amendment to the United States Constitution, made applicable
¶ 11 Generally, statutes are afforded a presumption of constitutionality that the challenger must refute. State v. Robert T., 2008 WI App 22, ¶ 5, 307 Wis.2d 488, 746 N.W.2d 564. But, when a statute infringes upon First Amendment rights, "the State bears the burden of proving the statute constitutional beyond a reasonable doubt.'" Id. (quoted source omitted). "It is, nevertheless, the initial duty of the person who claims the protection of the First Amendment to demonstrate that the [regulated] conduct is speech or its equivalent, to which First Amendment protections apply." City of Madison v. Baumann, 162 Wis.2d 660, 669, 470 N.W.2d 296 (1991).
¶ 12 With these general principles in mind, we turn our attention to the State's arguments on appeal.
¶ 13 As noted above, the State first argues that the circuit court erred by placing the burden of proving the rule's constitutionality on the State without first requiring Crute to satisfy his initial burden of showing that the rule implicated the First Amendment. As explained in the subsections below, we reject the State's argument for two reasons: (1) the State forfeited the argument by effectively conceding before the circuit court that the rule implicated the First Amendment; and (2) the State's alternative argument — that Crute could not, regardless of effort or circuit court action, have met his initial burden — is not persuasive.
¶ 14 Crute argues that the State effectively conceded before the circuit court that the rule implicated the First Amendment, and that the burden, therefore, shifted to the State to prove the rule constitutional. We agree.
¶ 15 At the pretrial hearing, Crute put the State and court on notice that he would be moving to dismiss the citation "on 1st Amendment grounds." In his brief in support of his motion to dismiss, he stated, "Because of the First Amendment context in which this case is brought, the burden of proof is on the State." In that same brief, Crute plainly asserted that the rule implicated protected speech. He referred to the rule's restriction of "expressive activity of individuals acting alone, not just groups," to the rule's requiring "an
¶ 16 In its brief opposing Crute's motion, the State did not contest "the First Amendment context" asserted by Crute, or argue in any way that the rule did not implicate the First Amendment. Rather, the State set forth the uncontested law that the State has the burden of proving that a statute is constitutional "when [the] statute implicates the exercise of First Amendment rights." The State then proceeded to state that it was "offer[ing] evidence" to meet that burden. We find nothing in the State's written response suggesting that the State contested the proposition that enforcement of a rule imposing a permit requirement on persons wishing to participate in rallies or other events in public buildings does not implicate the First Amendment.
¶ 17 Nor during oral argument before the circuit court on Crute's motion to dismiss, did the State contest that the rule implicated the First Amendment, and that, therefore, the burden of proof was on the State. Indeed, at one point counsel for the State agreed with the circuit court that the burden was on the State:
¶ 18 On appeal, the State would have us interpret this exchange differently, based on the part of its answer that references page 4 of its circuit court brief. The State asserts that this reference to its brief was a reference to "a general summary of the burden-shifting approach found within First Amendment cases." The State seems to argue that its reference to "page 4" in its response to the circuit court's question should have alerted the court that the State was taking the position that Crute did not meet his initial burden in the referenced burden-shifting scheme. We are not persuaded. First, a mere reference to general case law does not communicate a dispute. More importantly, the State's argument ignores the "yes" part of its response. The State offers no reason why we should not give the "yes" part of its answer its normal meaning — here, an affirmation that the State had the burden.
¶ 19 We turn to the State's alternative argument that, regardless of the circuit court's failure to require Crute to meet his initial burden, Crute could not have met this burden because he could not have shown that the rule implicated the First Amendment. In this respect, the State attempts to persuade us that the rule on its face implicated unprotected conduct only. Our review of the record reveals that this argument is made for the first time on appeal. The State did not argue to the circuit court that the rule regulated only unprotected conduct. Thus, we deem the conduct-only argument forfeited and reject it on that basis. See Bank of America NA v. Neis, 2013 WI App 89, ¶ 53, 349 Wis.2d 461, 835 N.W.2d 527 (argument not raised in the circuit court is forfeited on appeal).
¶ 20 We note that even if we addressed the merits of the State's conduct — only argument, it does not appear to have merit. Beyond the mere assertion that the rule implicated unprotected conduct only, we
¶ 21 Confusingly, while asserting that the rule implicated unprotected conduct only, the State simultaneously seems to accept the proposition that the activities regulated by the rule often involve protected speech. For example, the State's appellate brief argues that while "some forms of expressive conduct may include speech ... [the rule] applie[d] regardless of an event's message." Thus, the State seemingly concedes the obvious, that the activities regulated by the rule included protected activities. If the State means to argue that a rule does not implicate the First Amendment if the rule applies regardless of the message intended to be conveyed by participants, the State provides no support for that proposition.
¶ 22 In sum, we conclude that the State has forfeited both its argument that the circuit court improperly failed to require Crute to meet his initial burden of showing that the rule implicated the First Amendment, and its argument that Crute could not have met that burden because the rule implicated unprotected conduct only. Under the circumstances, the court properly placed the burden on the State to demonstrate the rule's constitutionality.
¶ 23 In considering a facial challenge to a regulation, "if it be `readily susceptible' to a narrowing construction that would make it constitutional, it will be upheld." See Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Courts have a duty to construe regulations "so as to render them constitutional whenever possible." See State v. Dronso, 90 Wis.2d 110, 115, 279 N.W.2d 710 (Ct.App.1979).
¶ 24 Here, the parties dispute whether the rule was "narrowly tailored" within the meaning of First Amendment law.
¶ 25 We first summarize the time, place, and manner test on which the parties focus and then further explain the part of that test at issue here. We then reject the two reasons the State gives to support its view that we may save the rule by reading into it a specific numerical floor.
¶ 26 Generally, a "government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally.... Such a scheme, however, must meet certain constitutional requirements." Forsyth Cnty. v. The Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). In particular, a permit scheme controlling the time, place, and manner of speech is subject to a three-prong test: (1) it must be content-neutral; (2) it must be "narrowly tailored to serve a significant governmental interest"; and (3) it must "leave open ample alternatives for communication." Id.; see also Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (applying the same three-prong test to restrictions on the time, place, and manner of protected speech).
¶ 27 As to the first and third prongs of the test above, the parties agree that the rule here was content-neutral and left ample alternative channels for communication.
¶ 28 As to the second prong of the test, the parties are in agreement with regards to the "significant government interests" aspect of this prong. More specifically, the parties appear to agree that the State's significant interest here was managing competing demands for public space and limiting "events" so that they did not interfere either with specially planned activities at the Capitol, such as Red Cross blood drives and holiday celebrations, or with normal daily uses of the Capitol such as general public tours and legislative committee meetings and sessions.
¶ 29 However, the parties disagree as to the "narrowly tailored" aspect of the second prong. Specifically, they disagree over whether a court may read into the rule a specific numerical floor so that the rule would be narrowly tailored. Thus, we focus our attention on the part of the second prong requiring that such a permit scheme be "narrowly tailored."
¶ 30 A time, place, and manner regulation of expressive activity is considered narrowly tailored so long as it "`promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoted source omitted). The regulation need not be "the least restrictive or least intrusive means." Id. at 798, 109 S.Ct. 2746. However, "this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Id. at 799, 109 S.Ct. 2746.
¶ 31 The State did not in the circuit court, and does not on appeal, argue that the rule as worded, without any minimum number of persons required to trigger the permit requirement and forfeiture authority, was constitutional. To the contrary, the State agreed in the circuit court that "the only way that this rule can be sustained... is to graft onto the rule" a numerical floor.
¶ 32 The circuit court found that "the state does not dispute the premise that the rule cannot be constitutionally applied to very small groups." The circuit court then referred to the reasoning of the district
¶ 33 To sum up, we understand the parties to agree that events involving large numbers of people have the potential for interference with normal uses of the Capitol and, thus, a permit requirement is constitutional when applied to such events, however defined. Conversely, the parties agree that events involving small numbers of people do not typically interfere with normal uses of the Capitol and, thus, the State may not, consistent with the Constitution, require small groups to obtain a permit.
¶ 34 As to the insertion of a numerical floor, the State presents three arguments why the circuit court here could have selected a specific numerical floor: (1) there was textual support in the rule for a specific number; (2) the circuit court could have
¶ 35 The State argues that the term "assembly" in the rule provided a textual anchor for a narrowing construction. We conclude that this argument is without merit.
¶ 36 The State presents a dictionary definition of "assembly" as the "coming together of a number of persons." Nothing in that definition specifies a "number" and, thus, nothing in the definition supports a court's inserting a specific number into the rule. It follows that the State's argument based on the term "assembly" does not supply a basis for selecting a specific number as a narrowing construction of the rule. See State v. Zarnke, 224 Wis.2d 116, 139, 589 N.W.2d 370 (1999) ("`While a statute should be held valid whenever by any fair interpretation it may be construed to serve a constitutional purpose, courts cannot go beyond the province of legitimate construction to save it, and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative.'" (quoted source omitted)); see also Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 575, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (refusing to adopt limiting construction where "the words of the resolution simply leave no room for a narrowing construction").
¶ 37 We understand the State to argue that the circuit court could have followed the example of the federal district court in Kissick and, like that court, could have selected 21 as a numerical floor. This argument is based on a misunderstanding of the Kissick opinion and order. As we proceed to explain, the court in Kissick did not engage in construing the rule to save it. Rather, the court provided temporary injunctive relief pending litigation of the merits of the constitutional challenge to the rule.
¶ 38 Kissick is a federal district court opinion and order — issued sixteen days before Crute's citation — prohibiting enforcement of the emergency rule at issue in this case to groups anticipated to attract 20 or fewer persons in the Capitol. Kissick was an individual who wanted "to participate occasionally in ... the `Solidarity Sing Along.'" Kissick, 956 F.Supp.2d at 984. Kissick felt "vulnerable to being cited" because "Sing Along participants have resisted characterization as an `organized group' or `organization' ... and, therefore, have declined to designate anyone to obtain a permit." Id. Kissick claimed that the permit requirement in the emergency rule infringed upon his First Amendment rights under the United States Constitution and asked the district court to issue a preliminary injunction barring the Department from enforcing the permit requirement. Id.
¶ 39 In seeking a preliminary injunction, Kissick had the burden to "`establish that
Id. at 1004 (alterations in original).
¶ 40 Having concluded that Kissick had "a fairly strong likelihood of success on the merits of his claim," the district court balanced the harm to Kissick if there was no injunction and the injury that an injunction would cause the Department. Id. at 1006. The court noted that it had the option of "enjoin[ing] enforcement of the entire Policy until the Department arrives at an appropriate [numerical floor]," but because the court's finding was not a "final judgment of facial unconstitutionality, and [the Department] established that some threshold is appropriate," the court decided to "enjoin [the Department] from enforcing... the permitting requirement generally, as ... to gatherings within the Capitol that are anticipated to attract 20 or fewer persons." Id. at 1007.
¶ 41 One key to understanding the district court's Kissick opinion and order is understanding that the district court did not hold that the rule could be constitutionally enforced as to events with more than 20 persons. Indeed the opinion did not affirmatively approve of enforcement at all. Rather, the opinion concluded that the plaintiff was entitled to some temporary protection from enforcement while the merits of the suit were litigated. Balancing equities and acknowledging a proposition that is not in dispute in this appeal — that the State may require a permit for groups anticipated to be large enough to interfere with the normal use of the Capitol — the district court selected a 20-person threshold and enjoined enforcement
¶ 42 Another key to understanding Kissick is understanding that the district court did not hold that the language of the rule could be construed to include 21 as the numerical floor for enforcing the permit requirement. That is, the district court in Kissick did not conclude that the rule could be interpreted as meaning that its permit requirement applied only to groups anticipated to attract more than 20 persons.
¶ 43 The State repeatedly mischaracterizes the meaning and import of Kissick:
As indicated, none of these statements by the State find support in Kissick. The portion of Kissick that the State cites in support simply repeated the injunctive relief granted to the plaintiff — that is, the Department was prohibited from "enforcing the permit requirement for gatherings expected to draw 20 or fewer persons." Kissick, 956 F.Supp.2d at 985. The State fails to direct our attention to any language in Kissick that opined as to the constitutionality of enforcing the permit requirement for events expected to draw more than 20 persons.
¶ 44 In sum and as the circuit court here understood, Kissick, properly read, did not hold that the Department could lawfully enforce the rule as to persons involved in events made up of more than 20 people and, more specifically, did not hold that the rule was amenable to a 21-person numerical floor construction so as to save it from a facial challenge. Therefore, the State's reliance on the Kissick decision for the proposition that the circuit court could have independently inserted 21 as a numerical floor fails.
¶ 45 In the alternative, the State contends that the circuit court should have considered and adopted the Department's interpretation and implementation of the permit scheme. By "interpretation and
¶ 46 The State cites case law that sets out the general proposition that a court, in evaluating whether a regulation is narrowly tailored, may consider a narrowing construction that a government has given the challenged law. For example, the State cites Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395 for the proposition that when analyzing a "facial challenge, [courts] must consider the [government's] authoritative constructions of the [regulation], including its own implementation and interpretation of it." Similarly, the State cites Ward, 491 U.S. at 795-96, 109 S.Ct. 2746, which explains: "Administrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for `[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.'" (Quoted source omitted.)
¶ 47 In Forsyth County, Ward, and all other cases brought to our attention, the references to an interpretation, implementation, and narrowing construction were references to the governmental entity at issue having previously limited the reach of a broad law, as evidenced by the entity having, independent of a directive from a court, undertaken a past practice in implementing the law. See Forsyth Cnty., 505 U.S. at 130-33, 112 S.Ct. 2395 (striking down a parade and assembly ordinance, in part by looking to evidence that, prior to any litigation, the county administrator had based a parade and assembly fee on his own judgment); Ward, 491 U.S. at 784, 796, 109 S.Ct. 2746 (upholding a city regulation requiring performers in a bandshell to use sound-amplification equipment and a sound technician provided by the city, in part by looking to evidence that the city, apparently prior to any litigation, had a history of deferring to sponsors' desires concerning sound); Sauk Cnty. v. Gumz, 2003 WI App 165, ¶¶ 25, 66-67, 266 Wis.2d 758, 669 N.W.2d 509 (upholding certain portions of a county open-air assembly ordinance by looking at evidence that the county had, prior to litigation, interpreted and implemented the term "minimum" as a misprint and to mean "maximum," and the hard-wired telephone line requirement as applying only in areas where cellular phones did not adequately function).
¶ 49 Accordingly, when the State asserts that the Department's enforcement of this "greater than 20 person threshold" constituted the "interpretation and implementation of the enforcement agency," that assertion is unaccompanied by an analysis demonstrating why the Department's actions might actually have been "interpretation and implementation" within the meaning of the case law on this topic.
¶ 50 In sum, the State fails to meet its burden to show that the circuit court erred when it declined to consider the Department's response to the Kissick preliminary injunction as a narrowing construction of the rule.
¶ 51 For the reasons set forth above, the State fails to persuade us that it met its burden of proving beyond a reasonable doubt that the rule was a constitutional restriction on speech and expressive conduct protected by the First Amendment.
Order affirmed.
THE ACCESS POLICY § III (alteration in original). The parties cite this language but do not explain its significance to any disputed issue. Therefore, we do not address the Access Policy further.