The court of appeals bills this as “a State Capitol protester case with a twist.” The “twist” is that Gruber was cited for disorderly conduct under one administrative rule whereas other protesters were cited for lacking a permit under another rule. So when the circuit court dismissed the charges in this case based on the reasoning used in the “no permit” cases, it erred.
Judge Sumi, acting sua sponte, dismissed the disorderly conduct charges against Gruber saying:
For the reasons well stated in State of Wisconsin v. Michael W. Crute, Dane County Circuit Court, Branch 1, “Decision and Order of Dismissal,” the administrative rule sought to be enforced in this forfeiture action violates the First Amendment to the United States Constitution. Because an unconstitutional law is void and unenforceable, this action must be dismissed. Slip op. ¶4.
The court of appeals noted that Judge Markson’s decision in Crute determined that the rule requiring an event permit was facially unconstitutional, but did not address the disorderly conduct rule. Id. The court of appeals further noted that the disorderly conduct rule is substantially similar to §947.01(1).
Thus, declaring the disorderly conduct provision at issue here facially unconstitutional is akin to declaring the state disorderly conduct statute facially unconstitutional. I doubt Judge Sumi had this in mind when she dismissed the charges against Gruber. Slip op. ¶7.
This appeal is odd. The AAG filed an initial brief challenging the dismissal of the charges against Gruber. Gruber requested the appointment of counsel, which the court of appeals denied. We don’t know why. Gruber did not file a response brief. The AAG did not file a reply. And at the end of its opinion, the court of appeals wagged its finger at the AAG for obtaining reinstatement of the charges against Gruber by filing an appeal rather than by filing a motion for reconsideration in the circuit court. Slip op. ¶10.