Hatchett v. Eich et al

Filing 15

ORDER signed by Judge Rudolph T Randa on 03/31/2010 granting 8 Motion for TRO. The defendants are ENJOINED from enforcing the provisions of §§ 11.23 and 11.30, Wis. Stats., against Hatchett in relation to his advocacy regarding the April 6 referendum in the Town of Whitewater. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

C H A R L E S G. HATCHETT, P l a in tif f , C a s e No. 10-C-265 -vsJ U D G E WILLIAM EICH, in his official capacity a s Chair of the Government Accountability Board; J U D G E GORDON MYSE, in his official capacity a s Vice Chair of the Government Accountability Board; J U D G E THOMAS BARLAND, in his official capacity as S e c r e ta r y of the Government Accountability Board; J U D G E MICHAEL BRENNAN, in his official capacity a s a member of the Government Accountability Board; J U D G E THOMAS CANE, in his official capacity as a member of the Government Accountability Board; P H I L L I P A. KOSS, in his official capacity as District Attorney, Defendants.

D E C IS IO N AND ORDER

C h a rle s Hatchett ("Hatchett") wants to send post cards (a "Mailer") and distribute by h a n d and mail a Flyer bringing awareness to, and advocating a vote against, a referendum in the town of Whitewater. The text of the Mailer and Flyer will state "Town of Whitewater re sid e n ts , Vote NO on referendum to sell beer on Whitewater Lake, April 6. Help us keep o u r lake safe." The referendum is up for a vote on April 6, 2010. M r. Hatchett will make a "disbursement" of over $25 to print and distribute the Mailer a n d Flyer. This triggers the registration and reporting requirements of Wis. Stat. § 11.23. M r. Hatchett also must comply with the disclaimer requirements of Wis. Stat. § 11.30. Mr.

H a tch e tt does not want to comply with these provisions because he believes they violate his F irs t Amendment rights. Mr. Hatchett fears both civil and criminal prosecution if he does n o t comply. His fear is based upon the controversial nature of the referendum and his past e x p e r ie n c e s advocating against similar referendums. O n March 30, the Court issued an order denying Hatchett's motion for a TRO based o n the lack of required certification pursuant to Fed. R. Civ. P. 65(b). The Court also denied the preliminary injunction because of the apparent lack of notice under Fed. R. Civ. P. 65(a). After the Court issued its order, Attorney Christopher Blythe from the Wisconsin Attorney G e n e ra l's Office contacted the Court, explaining that the defendants would not be enforcing th e laws in any event in light of Judge Stadtmueller's decision that §§ 11.23 and 11.30, Wis. S ta ts ., are unconstitutional as applied to a similar factual situation involving a previous liquor s a le s referendum in the Town of Whitewater. Swaffer v. Deininger, 610 F. Supp. 2d 962 (E .D . Wis. 2009). Defendants filed a letter to the same effect. D. 14. N o w before the Court is Hatchett's renewed motion for a TRO and/or a preliminary injun ctio n , explaining that he actually did provide notice to opposing counsel (although there is no proof of service on file with the Court). Setting aside this apparent misunderstanding, th e renewed motion seems unnecessary in light of the defendants' concession that the laws are unconstitutional as applied to Mr. Hatchett and that they will not be enforced. However, M r. Hatchett insists that he wants legal relief to ensure that he will not be prosecuted. Under th e unique circumstances presented here, injunctive relief can be entered to ensure that the law s are not enforced. The standards for injunctive relief are satisfied. Judge Stadtmueller's

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ru lin g in Swaffer illustrates that Hatchett is likely to succeed on the merits. 610 F. Supp. 2d at 969-70 (finding §§ 11.23 and 11.30, Wis. Stats., unconstitutional as applied to plaintiff's u se of postcards and yardsigns in opposition to referendum regarding liquor sales in W h i te w a t e r ) . N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. H a tc h e t t' s motion for a preliminary injunction [D. 8] is GRANTED; and T h e defendants are ENJOINED from enforcing the provisions of §§ 11.23 and

1 1 .3 0 , Wis. Stats., against Hatchett in relation to his advocacy regarding the April 6 ref ere n d u m in the Town of Whitewater. D a te d at Milwaukee, Wisconsin, this 31st day of March, 2010. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

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