United States District Court, W.D. Wisconsin
REBECCA KOWALD, JOANN WINTER, ROBERT ZEIER, JOHN GRUBER, WILLIAM CADWALLADER, ROBERT WENTWORTH, RAYMOND BOYLE, MICHAEL O'GRADY, DAVID THOM, and CRYSTAL THOM, Plaintiffs,
COLUMBIA COUNTY, PORTAGE COMMUNITY SCHOOLS, CITY OF PORTAGE, VERN GOVE, JOSEPH RUF, MARK HAZELBAKER, ROGER BRANDNER, BENJAMIN OETZMAN, and CHARLES F. CHURCH, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
case was severed from case number 18-cv-582-jdp, which was
filed originally in the Circuit Court for Columbia County and
removed to this court. In the original complaint in case
number 18-cv-582-jdp, several plaintiffs sued more than 40
defendants associated with numerous local government entities
for violations of their rights under the United States
Constitution and state law. I severed the original case into
seven different cases. In case number 19-cv-519-jdp,
plaintiffs Rebecca Kowald, Joann Winter, Robert Zeier, John
Gruber, William Cadawaller, Robert Wentworth, Raymond Boyle,
Michael O'Grady, David Thom, and Crystal Thom contend
that Wisconsin's harassment injunction statute, Wis.Stat.
§ 813.125, is unconstitutional. The defendants in this
case are Columbia County, Portage Community Schools, City of
Portage, Vern Gove, Joseph Ruf, Mark Hazelbaker, Roger
Brandner, Benjamin Oetzman, and Charles Church.
the court are three motions to dismiss. First, defendant Mark
Hazelbaker filed a motion to dismiss plaintiffs'
challenge to the constitutionality of Wis.Stat. §
813.125. Dkt. 9. Second, defendants Columbia County, Portage
Community Schools, Vern Gove, Joseph Ruf, Roger Brandner,
Benjamin Oetzman, and Charles Church filed a motion to
dismiss that adopts Hazelbaker's arguments about
Wis.Stat. § 813.125. Dkt. 20. Third, defendant City of
Portage filed a motion to dismiss that adopts
Hazelbaker's arguments, seeks dismissal for failure to
state a claim of count 5 and paragraph 158 of count 9 of the
original complaint that was filed in 18-cv-582-jdp, and seeks
dismissal for lack of standing of retaliation claims brought
by all plaintiffs except O'Grady. Dkt. 15. The city also
filed a motion to certify the constitutional question
regarding § 813.125 to Wisconsin's attorney general
under Rule 5 of the Federal Rule of Civil Procedure and 28
U.S.C. § 2403. Dkt. 21.
turning to the merits of the motions to dismiss, I must
clarify for the parties the scope of this case. The only
claim in this case is plaintiffs' claim challenging the
constitutionality of Wis.Stat. § 813.125. Therefore, the
city's motion to dismiss count 5 and paragraph 158 of
count 9 is unnecessary, because those counts do not challenge
the constitutionality of § 813.125. Also, I already
dismissed the claims in those counts in the order severing
these cases. Dkt. 1; Kowald v. Columbia Cty., No.
18-CV-582-JDP, 2019 WL 1332583, at *3 (W.D. Wis. Mar. 25,
2019) (dismissing “plaintiffs' claim that several
defendants failed to prevent others from conspiring to
violating plaintiffs' rights (Count 5)” and
“plaintiffs' claim that several defendants
conspired under 42 U.S.C. § 1985(3) to violate their
rights . . . (Count 9)”). The city's motion to
dismiss retaliation claims for lack of standing is also
unnecessary, because there are no retaliation claims in this
case. Plaintiffs' retaliation claims were assigned to
case number 19-cv-518-jdp. Therefore, I will address the
city's standing arguments and plaintiffs' arguments
regarding their retaliation claims in a separate order in
argument that Wisconsin's harassment injunction statute
is constitutional is properly raised in this case. Under
Wis.Stat. § 813.125, a court may grant a harassment
injunction if there are “reasonable grounds to believe
that the respondent has engaged in harassment with intent to
harass or intimidate the petitioner.” Wis.Stat. §
813.125(4)(a)3. Harassment is defined as any of the
1. Striking, shoving, kicking or otherwise subjecting another
person to physical contact; engaging in an act that would
constitute abuse under s. 48.02(1), sexual assault under s.
940.225, or stalking under s. 940.32; or attempting or
threatening to do the same.
2. Engaging in a course of conduct or repeatedly committing
acts which harass or intimidate another person and which
serve no legitimate purpose.
Id. § 813.125(1).
contend that plaintiffs have failed to state a claim
challenging the constitutionality of § 813.125, because
that statute provides adequate procedural due process and
First Amendment protections. In response, plaintiffs contend
that § 813.125 is unconstitutional for several reasons.
plaintiffs argue that they were not given adequate process
when they were served with a harassment injunction petition.
Plaintiffs do not argue that the statute itself fails to
provide adequate procedural protections. Instead, they allege
that they were served with a defective harassment petition
that did not provide the information required by the statute.
But an allegation that defendants failed to comply with state
law notice requirements is not sufficient to state a claim
under federal law. Guajardo-Palma v. Martinson, 622
F.3d 801, 806 (7th Cir. 2010) (“[A] violation of state
law is not a ground for a federal civil rights suit.”).
plaintiffs argue that the statute is unconstitutional because
it has been interpreted to permit government entities, not
just individuals, to seek injunctions. But plaintiffs do not
explain why permitting government entities to seek
injunctions renders the statute unconstitutional. Wisconsin
courts have long interpreted § 813.125 as protecting
governmental entities, institutions, and individuals. Bd.
of Regents-UW Sys. v. Decker, 2014 WI 68, ¶ 26, 355
Wis.2d 800, 850 N.W.2d 112 (holding that University of
Wisconsin Board of Regents could seek injunction under §
813.125); Vill. of Tigerton v. Minniecheske, 211
Wis.2d 777, 783, 565 N.W.2d 586, 588 (Ct. App. 1997) (holding
that § 813.125 can protect a municipal corporation).
Plaintiffs' disagreement with how § 813.125 has been
interpreted by Wisconsin courts raises an issue of state law,
not federal constitutional law.
plaintiffs contend that the injunction statute infringes on
their First Amendment right to free speech, because it can be
used to enjoin them from filing John Doe petitions, open
record requests, and lawsuits. But § 813.125 does not
target speech. It does not expressly preclude anyone from
filing John Doe petitions, open record requests, lawsuits, or
engaging in speech that is critical of governmental
decisions. The statute only prohibits conduct that is
harassing, intimidating, or threatening, and which
serves no legitimate purpose. The First Amendment does not
protect such conduct. “The First Amendment does not
guarantee the right to communicate one's views at all
times and places or in any manner that may be desired.”
Lac du Flambeau Band of Lake Superior Chippewa Indians v.
Stop Treaty Abuse-Wisconsin, Inc., 759 F.Supp. 1339,
1353 (W.D. Wis. 1991) (quoting Heffron v. International
Soc'y for Krishna Consciousness, 452 U.S. 640,
646-47 (1981)). See United States v. Parr, 545 F.3d
491, 496-497 (7th Cir. 2008) (“[T]he First Amendment
does not preclude restrictions on certain categories of
speech having little or no social value. . . .”);
In re Stonegate Sec. Servs., Ltd., 56 B.R. 1014,
1018 (N.D. Ill. 1986) (“It is not unconstitutional to
prohibit harassing conduct, even if that conduct involves
verbal components.”). Therefore, § 813.125 is not
unconstitutional on its face. Decker, 2014 WI 68,
¶ 45 (rejecting protester's First Amendment
challenge to § 813.125 and concluding that the
“right to protest on UW property can be restricted when
[protester] engages in harassment with the intent to harass
also have not alleged facts suggesting that the statute is
unconstitutional as applied to them. Plaintiffs argue that
their litigation and advocacy does not rise to the level of
“harassing” conduct contemplated by the statute.
But whether plaintiffs' conduct met the statutory
definition of harassment is not a First Amendment question,
but rather, is a question that depends on the specific facts
presented in the state courts that considered defendants'
injunction petition. Whether the state courts abused their
discretion in entering temporary restraining orders or
injunctions is also a matter of state law, and does not
implicate the federal constitution. Therefore, plaintiffs
have failed to allege facts to support a claim that §
813.125 is unconstitutional on its face or as applied to
plaintiffs contend that because the harassment injunction
statute permits a court to enter an injunction without
factual findings by a jury, the statute deprives plaintiffs
of their constitutional right to a trial by jury. But this
argument fails to state a federal claim for relief because
the federal Constitution does not guarantee the right to a
trial by jury in a civil action in state court. Curtis v.
Loether, 415 U.S. 189, 192 (1974) (“The Court has
not held that the right to jury trial in civil cases is an
element of due process applicable to state courts through the