United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
prior opinion and order, the court determined that defendants
Jesse Kramer, John Nygren and Robin Vos -- all elected
members of the Wisconsin State Assembly -- violated plaintiff
One Wisconsin Now's First Amendment rights by blocking it
from their respective Twitter pages. (1/18/19 Op. & Order
(dkt. #80).) The court then directed the parties to submit
briefs on the appropriate relief in light of this finding of
liability. Having reviewed those submissions, the court will
enter a declaratory judgment and direct plaintiff to submit
its motion for attorney's fees, but will decline to enter
an injunction at this time. Also before the court is
defendants' motion to dismiss plaintiff's claims
against defendant Jesse Kremer as moot given that he is no
longer a state representative. (Dkt. #84.) For the reasons
that follow, the court will grant that motion.
Mootness of Claim Against Defendant Jesse Kremer and Proposed
Substitution of Defendant Timothy Ramthun
described in the court's prior opinion and order,
defendant Jesse Kremer opted not to run for reelection.
Instead, Timothy S. Ramthun was elected and now serves as the
State Representative to Wisconsin's 59th Assembly
District. Under Federal Rule of Civil Procedure 25(d),
Ramthun would ordinarily be automatically substituted for
Kremer, though there is no need to change the caption given
that this order disposes of the case, leaving only the issue
of attorney's fees remaining. Defendants further seek to
dismiss plaintiff's claim against Kremer (now ostensibly
asserted against Ramthun) on mootness grounds.
essentially concedes that Kremer's leaving public office
renders its claim for injunctive relief against him moot. In
particular, for obvious reasons, plaintiff no longer has any
need to seek entry of an injunction against him. Still,
plaintiff argues that a claim against the new state
representative is not moot because “there is a
reasonable expectation that OWN could be subjected to the
same conduct by Kremer's successor, who recently created
an official Twitter account that OWN now follows.”
(Pl.'s Opp'n (dkt. #85) 3.) This is a silly argument.
The fact that Ramthun now has a Twitter account with some of
the same features of Kremer's does not mean that he is
likely to block OWN, especially in light of this court's
decision that Representatives Vos, Nygren and Kremer violated
OWN's First Amendment rights. To the extent that he does,
plaintiff is free to bring another lawsuit against Ramthun,
but the court will not presume a future violation will occur,
much less allow plaintiff to pursue a claim against Ramthun
based on the facts before it in this lawsuit. Even so, Jesse
Kremer remains as a defendant for purposes of seeking
declaratory judgment as set forth below, since the violation
of plaintiff's rights occurred during his time in office.
to the question of relief against the existing defendants,
plaintiff seeks three remedies: (1) a declaration that
defendants' actions violated their First Amendment
rights; (2) an injunction requiring defendants Vos and Nygren
to unblock plaintiff from their twitter accounts and
prohibiting them from blocking them in the future; and (3) an
award of attorneys' fees and costs pursuant to 42 U.S.C.
§ 1988(b). Defendants do not dispute that a declaration
is appropriate and remain silent as to an award of
attorneys' fees, but contend that the court need not, and
should not, enter an injunction.
determination of whether to enter an inunction in addition to
a declaratory judgment is left to the discretion of the
district court. See Badger Catholic, Inc. v. Walsh,
620 F.3d 775, 782 (7th Cir. 2010). As the Seventh Circuit
explained in Badger Catholic, “[a] declaratory
judgment cannot be enforced by contempt proceedings, but it
has the same effect as an injunction in fixing the
parties' legal entitlement.” Id. (citing
Steffel v. Thompson, 415 U.S. 452, 466-71 (1974)).
Moreover, the court further explained, “[a] litigant
who tries to evade a federal court's judgment-and a
declaratory judgment is a real judgment, not just a bit of
friendly advice-will come to regret it.” Id.
submission on remedies, which was filed before
defendants' response, plaintiff focused on the
four-factor test set forth in eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388 (2006). The court finds no fault in
plaintiff's analysis, agreeing that the four factors are
satisfied in this case. Still, the question remains whether
an injunction is necessary.
defendants' argument, plaintiff points to a footnote in
defendants' opposition brief to plaintiff's motion
for summary judgment, in which defendants state that they
“do not disagree [that OWN has met the legal
requirements for an injunction] if the Court holds the
defendants liable.” (Defs.' Opp'n (dkt. #57) 33
n.8.) Given the context, this statement appears to be more of
a concession that a finding of liability, coupled with the
recognition that a violation of First Amendment rights
constitutes irreparable injury, could form a sufficient basis
for the award of an injunction, rather than a formal
relinquishment of their right to argue against an injunction,
never mind against the scope of any injunction.
entry of an equitable remedy is ultimately for the court to
decide and, as defendants argue in their brief, there are
several reasons why an injunction may unnecessarily
complicate this case. First, the injunction would need to be
limited, so that it did not encroach on defendants'
rights to block plaintiff or other individuals or entities
for legitimate reasons not implicating First Amendment
concerns. Second, defendants may opt to change their Twitter
accounts in a manner sufficient to remove the
“swathings” of state action and the reach of the
public forum doctrine. Finally, defendants Vos and Nygren
represent that they unblocked OWN following the court's
summary judgment decision, providing additional support that
the availability of a contempt proceeding offered by an
injunction is not necessary here. See City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)
(“It is well settled that a defendant's voluntary
cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.
Such abandonment is an important factor bearing on the
question whether a court should exercise its power to enjoin
the defendant from renewing the practice, but that is a
matter relating to the exercise rather than the existence of
close question, the court concludes a declaratory judgment
will provide sufficient relief here, making an injunction an
unnecessary complication. See Badger Catholic, 620
F.3d at 783 (“If the entry of a regulatory injunction
can be avoided by a simpler declaratory judgment, everyone
comes out ahead.”) (citing Horne v. Flores,
557 U.S. 433, 449 (2009) (discouraging the use of regulatory
injunction in litigation against parts of state government));
see also Knight First Amendment Inst. at Columbia Univ.
v. Trump, 302 F.Supp.3d 541, 579 (S.D.N.Y. 2018)
(declining to enter an injunction despite finding blocking
access to a ...