Hatchett v. Eich et al

Filing 7

ORDER signed by Judge Rudolph T Randa on 03/30/2010 denying 3 Motion for TRO; denying 3 Motion for Preliminary Injunction. (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

T h is matter comes before the Court on Charles Hatchett's ("Hatchett") motion for a te m p o r a ry restraining order and/or a preliminary injunction. Hatchett wants to send post c a rd s (a "Mailer") and distribute by hand and mail a Flyer bringing awareness to, and a d v o c atin g a vote against, a referendum in the town of Whitewater. The text of the Mailer a n d Flyer will state "Town of Whitewater residents, Vote NO on referendum to sell beer on W h ite w a te r Lake, April 6. Help us keep our lake safe." The referendum is up for a vote on A p ril 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. M r. Hatchett filed the instant action and accompanying motions on Friday, March 26. L a te in the day on March 29, this matter was reassigned to the undersigned for purposes of re so lv in g the motions for injunctive relief. Mr. Hatchett wants to send the Mailer and d is trib u te the Flyer beginning today, March 30, just over a week prior to the election. He s e e k s immediate injunctive relief allowing him to produce and distribute the Mailer and Flyer w ith o u t complying with the requirements of §§ 11.23 and 11.30, Wis. Stats. Mr. Hatchett d o e s not provide proof of service, and the defendants have not made any sort of appearance in this case. To obtain a temporary restraining order, Hatchett must comply with Fed. R. Civ. P. 6 5 (b ). Rule 65(b) provides that the Court may issue a temporary restraining order without n o tic e to the adverse party or its attorney only if "specific facts in an affidavit or a verified c o m p lain t clearly show that immediate and irreparable injury, loss, or damage will result to th e movant before the adverse party can be heard in opposition," and "the movant's attorney c e rtif ie s in writing any efforts made to give notice and the reasons why it should not be

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re q u ire d ." Hatchett fails to comply with either requirement. Therefore, to the extent that H a tc h e tt moves for a TRO, his motion is denied. T o the extent that Hatchett moves for a preliminary injunction, Rule 65(a)(1) provides th a t a preliminary injunction may issue "only on notice to the adverse party." Put simply, w ith o u t notice, the Court may not issue a preliminary injunction. See Granny Goose Foods, In c . v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 432 n.7 (1974). A c c o rd in g ly, the Court cannot issue an injunction allowing Hatchett to commence d is trib u tio n on March 30 while ignoring the registration and disclaimer requirements under W is c o n s in law. M o re o v e r, in the context of Rule 65(a), notice implies the opportunity to be heard and to present evidence. Medeco Security Locks, Inc. v. Swiderek, 680 F.2d 37, 38 (7th Cir. 1 9 8 2 ). The Court must "allow [the adverse] party sufficient time to marshal his evidence and p re se n t his arguments against the issuance of the injunction," i.e., the adverse party must be a f f o rd e d a "fair opportunity" to oppose the preliminary injunction. Garcia v. Yonkers Sch. D ist., 561 F.3d 97, 105 (2d Cir. 2009) (quoting Rosen v. Siegel, 106 F.3d 28, 31 (2d Cir. 1 9 9 7 )). Given the short amount of time between the filing of the motion (March 26), H a tch e tt's desired date to commence distribution (March 30), and the referendum vote (April 6 ), the Court finds that the defendants cannot be given a fair opportunity to oppose the in ju n c tio n . U n d e r normal circumstances, a party opposing a motion for a preliminary injunction is allowed 21 days to respond under the local rules of this judicial district. Civil L.R. 7(b)

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(E .D . Wis.) Similarly, Fed. R. Civ. P. 6(c)(1) contemplates at least 14 days notice for a h e a rin g (with certain exceptions). The Court has the discretion to expedite matters, but the re f ere n d u m is only seven days away, and that is not enough time to comport with due p ro c e ss . In reality, the time frame is even shorter because Hatchett wants relief today (March 3 0 ), or presumably as soon as possible thereafter. As the referendum date approaches, the v a lu e of a court order necessarily diminishes. The Court cannot grant the relief sought by H a tc h e tt without violating the notice requirements of Rule 65(a). "Although the timing re q u ire m e n ts are applied flexibly in practice, the underlying principle of giving the party o p p o s in g the application notice and an adequate opportunity to respond is carefully honored b y the courts." 11A WRIGHT & MILLER, FED. PRACTICE AND PROCEDURE § 2949 at 215; G o s s v. Beilfuss, No. 06-C-737, 2006 WL 1889282, at *1 (E.D. Wis. July 7, 2006) ("The a b ility of an adversary to respond to a motion necessarily means the opportunity to respond in a meaningful way"). N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT Hatchett's motion for a temporary restraining order and a preliminary in j u n c tio n [D. 3] is DENIED. D a te d at Milwaukee, Wisconsin, this 30th day of March, 2010. S O ORDERED,

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

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