Helbachs Cafe LLC v. City of Madison et al

Filing 70

OPINION AND ORDER denying 16 Motion for Partial Summary Judgment; granting 30 Motion for Summary Judgment; denying as moot 55 Motion to Compel; granting in part and denying in part 62 Motion for Leave to File Sur-Response. The clerk of court is directed to enter judgment in defendants' favor on all federal causes of action alleged in claims 2, 3 and 4. The clerk of court is directed to remand the state law causes of action, namely claim 1 and part of claim 2, to the Dane County Circuit Court for further proceedings. Signed by District Judge William M. Conley on 11/16/2021. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
HELBACHS CAFÉ, LLC,
Plaintiff,
v.

OPINION AND ORDER
20-cv-758-wmc

CITY OF MADISON, COUNTY OF
DANE, JANEL HEINRICH, MARCI
PAULSEN and BONNIE KOENIG,
Defendants.
Plaintiff Helbachs Café, LLC (“Helbachs”), a coffeeshop operating in Madison,
Wisconsin, brought this civil rights action under 42 U.S.C. § 1983 against the City of
Madison, Dane County, Madison Assistant City Attorney Marci Paulsen, and Public
Health Madison & Dane County (“PHMDC”) employees Janel Heinrich and Bonnie
Koenig, all in their official capacities. Specifically, Helbachs asserts that during the summer
of 2020, defendants violated its rights under the First Amendment and Fourteenth
Amendment by enforcing Dane County Emergency Order #8 (“the Order”), which
required masks be worn in indoor, public and commercial spaces and that businesses post
signs requiring the wearing of masks in response to the COVID-19 pandemic. Helbachs
further claims that (1) the issuance of the Order exceeded the power of PHMDC; (2) the
Order was enforced without providing sufficient notice; and (3) the Order violates the nondelegation doctrine.
Before the court are the parties’ cross motions for summary judgment. (Dkt. ##16,
30.) The court finds plaintiff Helbachs has failed to put forth sufficient evidence from
which a reasonable jury could find any violation of its rights were the result of a policy,

custom or practice, or other action satisfying the requirements of Monell v. Department of
Social Services, 436 US 658 (1978).

The court further finds that Helbachs federal

constitutional claims fail for other, independent reasons. For reasons explained in greater
detail below, therefore, the court will grant defendants’ motion for summary judgment on
all federal claims, while declining to exercise supplemental jurisdiction on plaintiff’s
remaining state law claims.

UNDISPUTED FACTS 1
A. The Parties
Plaintiff Helbachs is a limited liability company formed in 2016 and authorized to
conduct business in the state of Wisconsin. Nathan Helbach is its chief executive officer,
and Casey Helbach, Nathan’s father, is the company’s chief financial officer. The café
itself is managed by Casey, Melissa Helbach, Nathan’s mother, and Joshua Helbach,
Nathan’s brother. These four Helbachs comprise the LLC’s entire membership. 2
In July of 2020, during the incidents that form the basis of this lawsuit, Helbachs
Café operated out of a location at 1824 Parmenter Street in Middleton, although it
currently operates at 410 D’Onofrio Drive in Madison. The court takes judicial notice
that both of these addresses are located in Dane County, Wisconsin.
As previously noted, the named defendants consist of two government entities -the City of Madison and Dane County -- and three individuals -- Madison Assistant City

1

Unless otherwise noted, the following facts are material and undisputed.

2

For ease of reference, the court will refer to the members of the LLC by their first names.

2

Attorney Marci Paulsen and PHMDC employees Janel Heinrich and Bonnie Koenig. All
three of the individual defendants were named in their official capacity.

B. The Issuance of Dane County Emergency Health Order #8
In March of 2020, a then novel strain of coronavirus, now commonly referred to as
COVID-19, began to spread throughout the United States. The epidemiology of COVID19 suggested that the disease spreads through close contact with infected persons, including
airborne transmissions via respiratory droplets created by activities such as sneezing,
coughing, speaking and breathing. In response, Wisconsin Governor Tony Evers declared
a public health emergency in the State of Wisconsin on March 12, 2020. Instituting
several, statewide emergency health orders aimed at curbing infection rates, including a
statewide mandate that masks be worn in public and commercial spaces.
On April 1, 2020, however, the Wisconsin Supreme Court invalidated a number of
these health orders, including the statewide mask mandate. In response to this and other
rulings striking down statewide emergency health orders, many Wisconsin counties and
municipalities began enacting their own local health orders.

Among those, PHMDC

Emergency Order #8 was enacted on July 7, 2020, and applied to all persons in Dane
County. (Heinrich Aff., Ex. 9 (dkt. #34-9).) That Order stated that face coverings were
required effective July 13, 2020, “In any enclosed building where other people, except for
members of the person’s own household or living unit, could be present.” (Id.) The Order
also included specific directives to businesses, including limiting capacity to 50%, adhering
to the “PHMDC requirements” listed on its website, and posting PHMDC’s “Workplace

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Requirements for Employers and Workers” guidance document in a prominent location
for employees to see. (Id.) 3
If persons in Dane County observed what they believed to be a violation of any
PHMDC health order by a commercial business, they were encouraged to lodge a
complaint by telephone or email.

Upon receipt of a complaint against a business,

PHMDC’s policy was first to reach out to the business, provide education regarding the
requirements of the health orders, and attempt to obtain voluntary compliance.

If

PHMDC received a second complaint, however, its policy was to have someone from the
City Attorney’s office follow up with that business to discuss the importance of its
compliance. Moreover, receipt of a third complaint generally resulted in a citation, and
receipt of any subsequent complaints could result in an onsite visit by PHMDC officials.
Finally, if these officials observed continued violations of a health order, the matter is
referred to the City Attorney’s office for prosecution.

C. Helbachs Café’s Interactions with PHMDC and Resulting Citations
On July 13, 2020, the day that PHMDC Emergency Order #8 went into effect,
Casey Helbach posted a sign on the front door of the café stating, “This is a Mask Free
Zone. Please remove mask before entering.” Casey did not confer with any other members
of Helbachs Café, LLC before making and posting the sign. Moreover, the sign was on the

The parties dispute whether the PHMDC’s first version of the Order that took effect on July 13th
expressly required posting a “Masks Required” sign at entrances or whether that requirement was
added at a later date to the list of “PHMDC requirements” on the website. However, the parties
agree that as of July 16, Emergency Order #8 encompassed a requirement to post a “Masks
Required” sign.
3

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door for approximately thirty minutes before Casey took it down, again without input from
any other LLC member. Nevertheless, as fate would have it, a patron took a photo of the
sign during the short time that the sign was up, then posted it to social media, which
garnered thousands of reactions, comments and shares, as well as commentary from local
and national media.
Beginning midday on July 13, PHMDC also began receiving complaints regarding
Helbachs’ noncompliance with the Emergency Order, eventually totaling over 150.
Plaintiff disputes the characterization of these calls and emails as “complaints” -- at least
to the extent that persons lodging the complaints were not speaking from first-hand
knowledge, but rather from what they saw on social media -- but the parties agree that
PHMDC was contacted over 150 times regarding the café’s lack of compliance with
Emergency Order #8. Moreover, due to the sheer volume of these contacts, PHMDC sent
two employees, Bonnie Koenig and Molly Budlong, to Helbachs for a compliance check on
July 14. Koenig and Budlong observed that café employees were not wearing masks, and
they further noted that neither the “Masks Required” sign nor the “Workplace
Requirements for Employers and Workers” sign was posted in the café. On this initial
occasion, however, Koenig and Budlong only observed the café, choosing not to make
contact with a manager or any of its employees.
Later that same day, Koenig attempted to call the café, as well as Casey personally,
to provide education on the requirements of Emergency Order #8, leaving voicemails at
both phone numbers. Koenig also emailed Helbachs to convey the same information. The
next day, July 15, having received no reply to either of her calls or the follow-up email, and

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with PHMDC itself receiving more calls and emails regarding Helbachs, Koenig returned
to the café with City of Madison Assistant City Attorney Marci Paulsen and spoke with
Casey.

Both Koenig and Paulsen attempted to educate Casey on the importance of

following the provisions of Emergency Order #8. However, Casey told Koenig and Paulsen
that he not only had no intention of complying, but would not require employees or
patrons to wear masks, nor would he post either of the required signs. Casey further admits
Helbachs “did nothing” in response to Koenig and Paulsen’s requests that the café comply
with Emergency Order #8, and Helbachs continued operating the café without requiring
masks for employees or patrons and without posting the required signage.
On July 16, PHMDC sent an email to all businesses in its listserv, including
Helbachs, reminding them that Emergency Order #8 required them to post the “Mask
Required” signage for workers or patrons. This email was received and opened
[e-mail].
On July 20, 2020, PHMDC received a complaint from a Kathryn Vellon, who
claimed that an employee at Helbachs asked her to remove her mask while in the café.
Assistant City Attorney Paulsen spoke with Vellon to verify her complaint. While plaintiff
purports to dispute whether the investigation conducted into the incident with Vellon was
thorough enough, there is no dispute that Paulsen spoke with Vellon regarding her
complaint. Based on this complaint, and in accordance with PHMDC policy for businesses
receiving three or more complaints, Paulsen next authorized a citation for violation of
Section 1(e)(i)(1) of Emergency Order #8. The space on the citation marked “Description

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of Violation” reads, “Asking an individual to remove her face covering in violation of
Emergency Order #8 Sec. 1(e)(i)(1).” (Paulsen Aff., Ex. 3 (dkt. #33-3).)
On July 21, Paulsen and Budlong once again visited Helbachs, and they again
observed that the café had still not posted either of the required signs, despite Paulsen’s
earlier visit and admonitions to Casey Helbach on July 15. Accordingly, Paulson and
Budlong issued a second citation to the café for violating the Order, this time for failure to
post the required signage, although inexplicably the date of the violation on that citation
was recorded as July 15, 2020.
On July 23, PHMDC employee Doug Voegeli went back to Helbachs to serve the
July 20th citation Paulsen had authorized. While there, Voegeli also observed that neither
of the required signs had been posted, and employees and patrons were still not wearing
masks. Voegeli then asked the manager on duty to post both the “Masks Required” sign
and the “Workplace Requirements for Employers and Workers” sign, while attempting to
explain the importance of compliance with Emergency Order #8. However, the manager
once more refused to post the signs, and Voegeli served the café with both Paulsen’s July
20 authorized citation and a second citation for failure to post required signage dated July
23.
On July 24, Paulsen returned to Helbachs Café, this time to deliver a letter
requesting a meeting between Helbachs and PHMDC to discuss their non-compliance with
Emergency Order #8, which Helbachs agreed to attend. The next day, on July 25, Nathan
Helbach walked around to businesses surrounding the café, observing that 14 of those
businesses were also not in compliance with Emergency Order #8’s requirement that

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retailers post “Masks Required” signs, although PHMDC had not received any complaints
about those businesses Nathan observed.
The Helbachs met with PHMDC officials via Skype on July 28, 2020, but continued
to refuse to comply with Emergency Order #8 following this meeting, prompting PHMDC
to issue a Notice of Intent to Revoke License to Helbachs on August 3, 2020. The Notice
indicated PHMDC’s intention to revoke Helbachs’ license for violation of Dane County
Code of Ordinances 46.40(2), which states, “It shall be a violation of this chapter to refuse
to obey an Order of the Director of Public Health Madison and Dane County entered to
prevent, suppress or control communicable disease pursuant to Wis. Stat. 252.03.”
(Heinrich Aff., Ex. 10 (dkt. #34-10).) The Notice also listed seven, separate violations:
the posting of the “Mask Free Zone” sign on July 13; the July 20th incident where patron
Vellon was asked to remove her mask; and PHMDC employee observations of employees
and patrons not wearing masks in the café and refusing to post required signage on July
14, 15, 21, 23, and 24. (Id.) 4 To avoid revocation of the license, the Notice further advised
Helbachs that it must comply with Emergency Order #8, as well as “refraining from posting
or communicating that the premises is a “‘mask free zone.’” (Id.) A hearing regarding the
notice was scheduled for August 25, 2020.
After receiving that notice, Helbachs retained counsel and filed this lawsuit, seeking
a motion for temporary injunctive relief enjoining PHMDC from enforcing its health
orders, as well as declaratory relief that: (1) Helbachs had not violated any provision of

The court notes that the posting of the “Mask Free Zone” sign was noted in the Notice of Intent
to Revoke, but Helbachs did not receive a citation for having posted this sign.
4

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Emergency Order #8; and (2) any citations issued were invalid. On August 19, Helbachs
withdrew its motion for temporary injunctive relief but proceeded with its claims on the
merits. Upon filing of this lawsuit, the August 25th revocation hearing was also cancelled,
and PHMDC did not proceed with the license revocation. 5

OPINION
A court will grant a motion for summary judgment when there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a summary judgment motion, the court must view disputed
facts in a light most favorable to the non-moving party. However, the court need not draw
inferences in the non-moving party’s favor when only supported by speculation or
conjecture. Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008).

I. Monell Liability
To sue a municipal employee in their official capacity or to sue the municipality
itself, a plaintiff must show that the employee violated a constitutional right by executing
the government’s policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Accordingly, courts recognize three main theories of liability for such a suit to proceed:
“(1) an express policy; (2) ‘a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to constitute a “custom

Around this same time, Casey created a “Go Fund Me” page titled, “Helbachs Coffee Freedom
Fund” for the purpose of raising money for the lawsuit against PHMDC. (Zurfluh Aff., Ex. 3 (dkt.
#35-1).) That page includes a lengthy summary of Helbachs’ legal arguments in this suit, as well
as messages thanking supporters and inviting them to a “freedom party” at the café’s new location
in Madison on April 1, 2021. (Id.)

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or usage” with the force of law’; or (3) [the violation is] caused by a person with ‘final
policymaking authority.’” McTigue v. City of Chi., 60 F.3d 381, 382 (7th Cir. 1995)
(internal citations omitted). Additionally, a municipality may be liable for a failure to train
employees that amounts to deliberate indifference to constitutional violations committed
by those employees. City of Canton v. Harris, 489 U.S. 378, 389 (1989).
In their opening brief in support of summary judgment, defendants pursued
qualified immunity as a defense. In its opposition, however, plaintiff clarified that its
claims were asserted against the individual defendants in their official capacity only and
are, therefore, duplicative of the same claims asserted against the two municipal defendants
-- Dane County and the City of Madison. See Kentucky v. Graham, 473 U.S. 159, 166
(1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a
suit against the entity.”). In their reply brief, defendants now argue that plaintiff has failed
to plead, as well as present evidence from which a reasonable jury could find, the necessary
elements under Monell. Because plaintiff had no opportunity to respond to this specific
argument, the court granted plaintiff leave to file a supplemental brief on the Monell defense
only, which it has now done. (Dkt. #60.) Moreover, defendants also requested leave to
file a reply brief, which the court will grant only as to the Monell issue and has also reviewed.
(Dkt. #62.) With that context aside, the court now turns to plaintiff’s arguments.
Plaintiff Helbachs does not choose a single theory to pursue defendants Heinrich,
Paulsen, and Koenig in their official capacity, but rather argues that they executed
government policies under all recognized theories of Monell liability. Specifically, plaintiff
contends that:

(1) Emergency Order 8 was an express policy that violated its First

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Amendment right to free speech; (2) the county’s procedure for investigations regarding
violations of Emergency Order 8 was a widespread practice that violated its Fourteenth
Amendment right to Due Process; 6 (3) its failure to train and supervise employees led to a
violation of some unspecified right; and (4) Heinrich and Paulsen are final policymakers
whose decisions violated its Fourteenth Amendment right to Equal Protection by being
singled out as a class of one. Although none of these theories have merit, the court will
address each separately.

A. Emergency Order 8 as Policy
A plaintiff can show that a municipality is liable under an express policy theory of
Monell liability if it can demonstrate that “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690. Plaintiff
Helbachs claims that the requirements in Emergency Order 8 to post PHMDC’s
“Workplace Requirements for Employers and Workers” sign and to adhere to PHMDC
requirements, which included posting a “Masks Required” sign violated its constitutional
right to free speech.

Alternatively, plaintiff claims that because this new order was

instituted shortly after it posted its “Mask free zone” sign, defendants created the
requirement to punish plaintiff and “ensure only speech they supported was posted by a
business.” (Pl.’s Suppl. Br. (dkt. # 60) 2.)

Although plaintiff failed to allege a violation of this constitutional right in its complaint or any
earlier submissions, the court will address it on the merits.

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Importantly, plaintiff concedes that a requirement that a commercial business post
signage is constitutional; instead, it argues a single statement taken from Heinrich’s
deposition -- that the “Mask free zone” sign was impermissible because it contradicted the
message of the Order’s required signs -- discloses an express policy within Emergency Order
8 that restricts contrary speech. (Pl.’s Suppl. Br. (dkt. #60) 3.) This argument fails on at
least three levels. First, nowhere in the Order does it state that businesses cannot post
certain types of signage; it only states that it must post other types. Second, the “express
policy” that plaintiff claims restricts its free speech is based on a lone statement from the
deposition of one PHMDC employee, which cannot be classified as a policy statement,
ordinance, regulation or decision officially adopted by lawmakers. Rather, it is accurately
characterized as a decision by a government actor, not an express policy. Third, the actual
government action that plaintiff opposes in this lawsuit is the speech restriction imposed
on it through the Notice of Intent to Revoke License, not through Emergency Order 8.
Regardless, plaintiff has produced no evidence from which a reasonable jury could find an
express policy in place that imposed speech restrictions on businesses generally.

B. PHMDC Investigation Procedure and Practice of Pre-writing Citations
Although not expressly pleaded, plaintiff also claims that PHMDC’s process for
investigating complaints and issuing citations violated its Fourteenth Amendment right to
due process, as well as punished it for exercising its First Amendment right to free speech.
This argument also fails for at least two reasons: (1) the complaints alone led to no adverse
action against Helbachs; and (2) the pre-writing of citations did not harm Helbachs, or at
least plaintiff has failed to explain or provide a basis for a reasonable jury to so find.

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A municipality can be held responsible for a constitutional violation if a plaintiff
shows “the existence of an official policy or other governmental custom that not only
causes but is the moving force behind the deprivation of constitutional rights.” Wilson v. Cook
Cnty., 742 F.3d 775, 779 (7th Cir. 2014) (emphasis added). In this case, plaintiff has
failed to put forth sufficient evidence for a reasonable jury to find that the complaint
investigation system was the moving force behind the citations issued to plaintiff Helbachs.
To the contrary, while plaintiff’s brief attempt at humor may have (intentionally or not)
made it a cause célèbre among thousands who felt strongly for or against mask mandates,
the record is overwhelming that Helbachs’ own hubris in repeatedly refusing to comply
with the Order’s basic requirements, despite repeated warnings, resulted in issuance of a
series of citations.
In response, plaintiff simply asserts that there is an uncodified practice under which
“complaints were assumed to be true in every instance, resulting in enforcement actions
against individuals, and businesses, who had unwarranted and unsubstantiated complaints
lodged against them.” (Pl.’s Suppl. Br. (dkt. # 60) 3.) However, the undisputed record
provides no evidence for this sweeping assertion.

Instead, there is no dispute that

PHMDC’s policy to enforce Emergency Order 8 involved receiving complaints from
citizens, investigating the complaint on site, and potentially issuing a citation, based on the
results of the investigation. (Voegeli Dep. (dkt. #47) at 10-11.) Similarly, in this case, an
unsubstantiated complaint alone would not, and did not, lead to a citation, or at least
plaintiff has failed to advance any evidence otherwise, much less create a material factual
dispute on this point.

Indeed, the citations actually issued to Helbachs were for:

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“[f]ail[ing] to post signage required under Emergency Order 8 4.i & 4.k”; “asking an
individual to remove her face covering”; and “failure to post signage in violation of
Emergency Order #8 sec 4.i&k.” (Eisberner Aff., Exs. 4-6 (dkt. ##19-4 to 19-6).) While
Helbachs is correct that a substantial number of complaints resulting in investigations
mentioned the “mask free zone” sign, which had initially pulled the café into a larger
political maelstrom over mask wearing mandates (willingly or not), the record establishes
that those complaints were not the basis for issuance of any citations.
Rather, Helbachs decided to disregard Emergency Order 8 within its premises
despite its owners and employees being informed personally and repeatedly of the
requirements to post the “Mask Required” signage on July 15, July 16, July 21, July 23,
July 24, and July 28. (Defs.’ PFOFs (dkt. #39) ¶¶ 87-92, 94-95, 103-05, 108-115.) Even
if investigators might not have been on sight to observe these violations, Monell requires
the government policy to be the “moving force” behind the injury, 436 U.S. at 694, and
the general complaints of third-parties were not the “moving force” behind the violations;
instead, Helbachs’ deliberate, repeated refusals to conform its conduct with the law was.
See also Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997) (“[T]here is a particular
danger that a municipality will be held liable for an injury not directly caused by a
deliberate action attributable to the municipality itself. Every injury suffered at the hands
of a municipal employee can be traced to a hiring decision in a ‘but-for’ sense.”). Similarly,
whether it exists at all, any policy of pre-writing citations did not cause an injury, since the
investigation procedure as a whole still required the finding of a violation to issue the
citation.

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C. Failure to Train Theory
Plaintiff next argues that defendants are liable under Monell because they failed to
train their employees adequately in deliberate indifference to the likelihood that they might
cause a constitutional violation. Broadly speaking, plaintiff alleges, “it is obvious that there
was no formal training given to the ‘investigators’ who received and ‘investigated’ citizen
complaints” and that “this ‘compliance team’ was wholly without any formal training.” 7
(Pl.’s Suppl. Br. (dkt. #60) 5-6.) Plaintiff then revisits its general discontent with the
procedure for investigating citizens that “resulted in fines being levied” and contends that
“training would have prevented an army of angry online personas from being able to utilize
PHMDC as a weapon to intimidate . . . businesses.” (Id. at 6.) As explained in the previous
section, however, the employees followed the investigation procedure for complaints, and
despite the hundred-plus complaints received, only three citations were issued, two of them
for the demonstrable failure to post required signs and one upon investigation by Assistant
City Attorney Paulsen following a specific complaint by a patron that she had been
affirmatively instructed by a Helbachs’ employee to remove her mask. (Voegeli Dep. (dkt.
#47) 35-36.)

The excessive use of quotations in Section 3 of plaintiff’s supplemental briefing reflects a degree
of sarcasm that has no place in court filings. Plaintiff also purports to support these claims of “no
formal training” within the compliance team by mischaracterizing testimony from the Voegeli
Deposition. (Pl.’s Suppl. Br. (dkt. #60) 6 (emphasis in original) (citing Voegeli Dep. (dkt #47)
47:3-7).) For example, plaintiff represents that the compliance team “was wholly without any
formal training or supervision to investigate complaints” (Pl.’s Suppl. Br. (dkt. #60) 6), while the
full quote from Voegeli was actually “No, I wouldn’t say formal [training]. Semiformal with our
attorney. Also, the people that are in that section are sanitarians, and sanitarians are trained in
conducting inspections of restaurants. And so they know, you know, how to write violations and
how to observe violations” (Voegeli Dep. (dkt. #47) 47).
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Thus, plaintiff points to nothing in support of its argument that the complaints were
presumed to be true; instead, the record reflects that the complaints were investigated.
That Helbachs does not like the procedure for conducting investigations on the basis of
complaints actually received does not mean that employees following that procedure
received inadequate training, or again, at minimum, plaintiff has failed to put forth
sufficient evidence from which a reasonable jury could find defendants’ deliberate
indifference to training was a cause of its alleged constitutional injury.
In the end, plaintiff’s primary complaint seems to be that a large number of the
complaints received by PHMDC employees pertained to the “mask free zone” sign that
was in its window for a very short period of time. Plaintiff further claims, and the court
agrees, that not all of these complaints could have been firsthand. Regardless, the nature
of public complaints does not bear on the legitimacy of the official investigation that
followed. While Helbachs issued a provocative statement that gained positive and negative
traction on social media by private citizens, to the extent some of those private citizens
listed that sign’s statement as a reason for PHMDC to investigate Helbachs for compliance,
among others, any ultimate action against Helbachs independently resulted from later noncompliance with Order No. 8 actually observed by investigators, not from some vague,
alleged failure to train or failure to investigate properly.

D. Decisions of Policymakers
Finally, plaintiff argues that the City of Madison is liable under Monell for injuries
caused by actions of “final policymakers” Madison Assistant City Attorney Paulsen and
PHMDC Head Janel Heinrich. A municipal official is considered a final policymaker if she

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has final decision-making authority in a particular area or on a particular issue.

See

Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir. 2009). To determine
whether an official has final decision-making authority, a court may consider: “(1) whether
the official is constrained by policies of other officials or legislative bodies; (2) whether the
official’s decision on the issue in question is subject to meaningful review; and (3) whether
the policy decision purportedly made by the official is within the realm of the official’s
grant of authority.” Id. (internal citations omitted). As with other theories of liability
under Monell, the policy in question must also be the “moving force” behind the
constitutional injury. Monell, 436 U.S. at 694.
Plaintiff contends that the unreviewable decisions of these two officials to issue
citations and a Notice of Intent to Revoke License caused it harm in the form of “the
shuttering of its business, as well as the loss of its lease, loss of employees, loss of revenue,
and loss of reputation within the community.” (Pl.’s Suppl. Br. (dkt. #60) 10.) However,
the undisputed record demonstrates that both Heinrich and Paulsen were expressly
constrained by other authorities, making their decisions subject to meaningful review.
First, plaintiff argues that Heinrich is a final policymaker whose decision to issue the Notice
of Intent to Revoke License was not reviewable, while the express language of the Notice
itself establishes a date and time for a hearing before the Board of Health for Madison and
Dane County for review. (Eisberner Aff., Ex. 7 (dkt. #19-7) 4.) Moreover, the hearing
process shows that Heinrich was constrained by other officials, and an opportunity for a
meaningful review of her decision was provided. Thus, the Notice does not and did not
alone lead to the revocation of Helbachs’ license.

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Helbachs also argues that Paulsen is a final policymaker whose orders to issue prewritten citations were not subject to review. However, similar to the Notice of Intent to
Revoke License, the citations issued provide a date for a hearing, at which time the
Helbachs could have contested the validity of the citations before the Dane County Circuit
Court. (Id., Exs. 4-6 (dkt. ##19-4 to 19-6).) Furthermore, Wisconsin statutes provide a
process by which a party may have an administrative decision against it reviewed. Wis.
Stat. §68.01.

As such, plaintiff cannot show that Heinrich and Paulsen are final

policymakers because their decisions are constrained by other municipal authorities and
are subject to meaningful review. 8

II. Merits of Constitutional Claims
Even if plaintiff were able to point to a municipal policy practice or other action
that a jury might reasonably find satisfied the requirements for Monell liability, plaintiff
has failed to offer evidence at summary judgment from which a reasonable jury could find
that its constitutional rights were violated.

A. First Amendment Retaliation Claim
In order to prevail on a First Amendment retaliation claim, a plaintiff must show
(1) that it engaged in activity protected by the First Amendment; (2) it suffered a
deprivation that is likely to deter future exercise of First Amendment freedoms; and (3)

For this same reason, plaintiff also has failed to put forth sufficient evidence from which a
reasonably jury could conclude that the decisions of Heinrich or Paulsen were the moving force
behind any constitutional injuries.

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the First Amendment activity was a motivating factor in defendants’ decision to take
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Whether the
speech is protected is a question of law for the court. Kubiak v. City of Chi., 810 F.3d 476,
481 (7th Cir. 2016). Plaintiff cannot prevail on its retaliation claim because the speech in
question was not protected and as such, any action taken by the defendants would not
deter future First Amendment activity. 9
With limited exceptions, plaintiff principally argues that the First Amendment
protects its right to post any sign with any message it may choose because “signs are a form
of expression protected by the Free Speech Clause,” and there is no ordinance or law
empowering the city to determine whether a sign violates an ordinance or law. (Pl.’s
Opening Br. (dkt. #17) 12 (quoting City of Ladue v. Gilleo, 512 U.S. 43 (1994)).) However,
the Supreme Court in Ladue struck down an ordinance restricting all yard signs because it
completely foreclosed the use of an important medium of communication. City of Ladue,
512 U.S. 43.

A single, out-of-context quote from that case about the restriction of

communication media does not bear on the constitutionality of a targeted, content-based
restriction. Here, unlike the City of Ladue, the City of Madison did not forbid all signage
on private property; instead, it determined that this individual sign created a public health
risk by encouraging others to flout COVID safety measures.

Accordingly, Helbachs’

argument that defendants do not have the explicit authority to regulate signs oversimplifies

Defendant attempts to argue that the “Mask Free Zone” sign is not at issue here because it was
Casey Helbach’s speech, who is not a named plaintiff, and as such Helbachs cannot show that its
speech led to a retaliatory deprivation. The court is unpersuaded by this argument as Casey
Helbach is a part-owner and manager of the business, who acted with apparent authority as its
agent in posting a sign in the cafe’s’ window.
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the broader question of what actions fall within a municipality’s realm of authority,
including the scope to which it can regulate speech. As such, Helbachs’ assertion that the
First Amendment protects its “mask free zone” message because it was on a sign is
irrelevant to the determination of its status as protected or unprotected speech.
Perhaps anticipating this ruling, plaintiff alternatively argues that because the sign’s
content was not “obscene, defamatory, a true threat, nor did it incite violence,” it did not
fall within one of the well-recognized exceptions to First Amendment protection of speech.
(Pl.’s Opening Br. (dkt. #17) (citing United States v. Alvarez, 567 U.S. 709, 717 (2012)).)
However, in its supposed application of Alvarez, plaintiff again either carelessly or
intentionally misstates its holding. The section of Alvarez that plaintiff cites actually lists
speech likely to “incite imminent lawless action” as the very first category of unprotected
speech. 567 U.S. at 717. Moreover, plaintiff’s isolated factual assertion that the sign “did
not reflect the actual policy that plaintiff has when it came to wearing masks inside” (Pl.’s
Opening Br. (dkt. #17) 12), suggests that without acknowledging it, plaintiff is well aware
of this exception to free speech protections. Nonetheless, plaintiff has deliberately declined
to engage in any substantive discussion of the exception in favor of issuing a conclusory
statement, unsupported by facts, that even if the sign expressly directed patrons to do so,
its actual policy did not require people to remove their masks in the café.
Thus, disregarding plaintiff’s red herring argument that the sign did not incite
violence, the court will turn to its tacitly posed argument that the sign was not “likely to
incite” “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969).
Courts evaluate whether speech is directed at inciting imminent lawless action by

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considering whether the speech is “inseparably locked with action” and whether the action
sought by speech is immediate. United States v. Dellinger, 472 F.2d 340, 360 (7th Cir.
1972). Speech advocating the “moral propriety or even moral necessity” of lawless action
can fall within the protections of the First Amendment provided that the speaker only
encourages such action in abstract and indefinite terms. Id. at 448; see also Hess v. Indiana,
414 U.S. 105, 108 (1973) (determining that the First Amendment protected a student’s
declaration, “We’ll take the […] street later” at a protest because it only advocated such
action at “some indefinite time in the future,” even if the speech was directed at inciting
lawless action later); Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 450 (1974)
(holding that the government could not bar communist political candidates from running
for office based on a refusal to promise not to advocate government overthrow in the
abstract, as opposed to advocacy of action).
In contrast, certain types of speech so clearly constitute or encourage imminent
lawless action as to be a lawless action in and of itself. Federal and state statutes regulate
and outright bar many of these forms of speech without encroaching on the protections of
the First Amendment. For example, it is hard to imagine any court finding that the First
Amendment protects blackmail, extortion, perjury, or harassment. Similarly, “the First
Amendment does not necessarily pose a bar to liability for aiding and abetting a crime,
even when [it] takes the form of the spoken or written word.” Rice v. Paladin Enters., 128
F.3d 233, 244 (4th Cir. 1997). However, the First Amendment does not protect speech if
“the objective meaning of the words used are so close in time and purpose to [an unlawful
act] as to become part of the ultimate crime itself.” United States v. Freeman, 761 F.2d 549,

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552 (9th Cir. 1985); see also United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987) (holding
that the First Amendment does not protect speech encouraging listeners to avoid income
taxes in a situation where they are likely to do so); Nat’l Mobilization Comm. to End War in
Viet Nam v. Foran, 411 F.2d 934, 937 (7th Cir. 1969) (holding that the teaching of the
use, application, and making of incendiary devices was not protected by the First
Amendment where speakers “know, or have reason to know, or intend[]” for the knowledge
to be used unlawfully); Rice,128 F.3d at 242-43 (holding that publishing a book of detailed
instructions for aspiring “hitmen” made the author civilly liable for aiding and abetting a
contract murderer that followed those instructions).
Whatever humorous intent Helbachs’ part owner and manager Casey Helbach may
have had on the morning of July 13, 2020, the First Amendment did not protect his
placement of the “Mask Free Zone” sign in the front window because the objective meaning
of those words was an instruction to patrons to engage in an unlawful action immediately
upon entering the café. Thus, the content of the sign in question went beyond protesting
the county’s mask policy; it directed customers to “[p]lease remove mask[s] before
entering.” Whatever Casey’s subjective motives, such a statement does not merely criticize
a government policy, nor makes an abstract suggestion that citizens should not be wearing
masks because it is wrong; in fact, it says nothing about policy or morality of the policy, it
merely demands that people entering the establishment engage in an unlawful action at a
specified time,: remove mask “before entering [Helbachs].” Unlike Hess, therefore, the
sign proscribes the exact time and circumstance under which a person should take an
unlawful action.

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Moreover, even if plaintiff’s speech were protected, its retaliation claim still fails.
As discussed above, to prevail on a retaliation claim, plaintiff must also show that its
protected speech was a substantial or motivating factor in the adverse action taken against
it. Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir.
2002). If the plaintiff can do so, the burden shifts to the defendants to show that they
would have taken the same action despite the First Amendment activity; and if defendants
can show that, then the burden shifts back to the plaintiff to demonstrate that the cited
reasons for defendants’ action are pretextual. Id. At minimum, Helbachs’ claim fails
because it has not raised a genuine issue of material fact that the defendants’ other
justifications for issuing the Notice of Intent to Revoke License are pretextual.
Defendants offer several, plausible reasons for issuing a “Notice of Intent to Revoke
License.”

Indeed, the Notice itself listed seven, distinct instances where Helbachs

committed violations of the Order, including seven days on which employees and
customers were seen not wearing masks, four instances in which a manager refused to post
the required signs instructing customers to wear masks, four instances in which a manager
refused to post signs listing workplace requirements for employees, one instance where an
owner expressly stated he would not enforce the mask policy, and one instance in which
an employee told a customer to remove her mask. (Heinrich Aff., Ex. 10 (dkt. #34-10) 23.) Having met their burden of producing evidence to show that they would have taken
action to revoke Helbachs’ license even if the sign has not been posted, the burden shifted
back to the plaintiff to show that these reasons are just thin excuses. Plaintiff has not done
so. Thus, even if the “mask free zone” sign were deemed protected speech, the reasons for

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the issuance of the Notice of Intent to Revoke License was on the whole driven by a pattern
of repeated violations of Emergency Order 8, all occurring after removal of the sign,
repeated warnings as to the unlawful nature of employees’ and patrons’ failures to wear
masks, and issuance of a series of citations for ongoing violations of the Order. Accordingly,
no reasonable jury could find that the Notice did not issue for these violations, completely
apart from the original, posted sign. 10

B. Fourteenth Amendment Class-of-One Equal Protection Claim
Plaintiff also claims that defendants violated its Fourteenth Amendment right to
equal protection under the law because they singled it out to enforce the requirements of
Emergency Order 8. To prevail under a Fourteenth Amendment Equal Protection claim as
a “class of one,” however, plaintiff must show that: (1) it has been intentionally treated
differently from similarly situated establishments and (2) there was no rational basis for
that different treatment. Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008). One this
record, plaintiff has failed both to identify similarly situated establishments and to refute
the defendants’ reasoning for taking action against it and not against other businesses.
First, plaintiff has offered no admissible evidence to show that there were similarlysituated businesses that were treated differently under Emergency Order 8. For other
businesses to be considered “similarly situated,” a plaintiff must show that it is “identical

This is not to hold that the sign’s posting and the publicity surrounding it played no role in
calling Helbachs’ ongoing violations to defendants’ attention, nor that they may not have been
motivated in part to send a message to the community about the importance of complying with the
Order’s mask wearing requirement, but rather that there is absolutely no basis for a reasonable jury
to find that had plaintiff simply brought itself into compliance with the law, it would still have been
issued the citations, and ultimately a Notice of Intent to Revoke.

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or directly comparable in all material respects” to its comparators. LaBella Winnetka, Inc.
v. Vill. of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010). This is typically a fact-intensive
inquiry unsuited for summary judgment. However, by plaintiff identifying no similarly
situated comparator, it has failed to make even a prima facia claim for denial of equal
protection. Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005).
In fairness, Nathan Helbach conducted his own “informal survey” on one occasion
by walking around the block to see which businesses did or did not have the required signs
posted and reported that fourteen did not. (Nathan Helbach Aff. (dkt. #18) ¶¶ 26-27.)
However, geographic proximity and a failure to post a sign on the one day the survey was
conducted is insufficient to establish that these businesses were “similarly situated” to
Helbachs in a number of material respects. Specifically, Helbachs had a history of repeated
violations leading up to its eventual citations and Notice of Intent to Revoke License,
including personal visits to educate its owners and employees of the requirements of the
Order, numerous, direct refusals to post signage at the request of county officials, numerous
documented reports of customers and employees not wearing masks indoors, and over one
hundred public complaints lodged against it. Whatever plaintiff’s motives for continuing
to refuse to comply or attribution of ulterior motives to defendants, each of these
considerations reasonably factored into PHMDC’s decision to enforce Emergency Order 8
against Helbachs, and plaintiff has not offered any evidence that any of these other
businesses were similar in any of these respects. Rather, while plaintiff asserts that it “could
point to countless number of businesses,” it asserts that “doing so would serve no purpose.”
(Pl.’s Opp’n (dkt. #44) 15.) In fact, showing similarly situated businesses being treated

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differently not only serves a purpose, but it is a required element for plaintiff in opposing
summary judgment. Summary judgment is the “proverbial ‘put up or shut up’ moment”
at which point a party needs to present evidence that would permit a rational trier of fact
to find in its favor. Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020).
Having provided no evidence demonstrating that there were similarly situated businesses
treated differently, the court is left to conclude that no reasonable jury could find for
plaintiff on its Fourteenth Amendment claim.
Even if plaintiff had provided evidence that similar businesses were treated
differently, it also failed to meet its burden to demonstrate that defendants had no rational
reason for doing so. In order to prevail on an Equal Protection claim, a plaintiff must
“negate any reasonably conceivable state of facts that could provide a rational basis for the
classification.” Bd. of Trs. v. Garrett, 531 U.S. 356, 367 (2001). PHMDC operated on a
complaint system under which, after receiving public complaints, it would send an
employee to investigate whether there were indeed violations of the Order as reported.
Such a system helped conserve department resources and use them only where it was more
likely to find a violation. There is nothing unreasonable, much less irrational, about a
municipal department with limited resources relying on reports of the public in
determining which businesses to investigate for non-compliance.
As plaintiff itself notes, “[i]t would be seemingly impossible to ticket each and every
parking, health ordinance, and zoning regulation violation.” (Pl.’s Opp’n (dkt. # 44) 16.)
Plaintiff makes this observation in an attempt to distinguish between random law
enforcement, which it concedes is proper, with selective enforcement, which it maintains

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is not. However, building on plaintiff’s metaphor to bring it closer to its situation, it would
also be rational to ticket a car parked in a no-park zone after the city received numerous
complaints about that specific car. Indeed, what more rational way to send a message to
the larger community that its order will be enforced than for a municipality to devote its
limited resources to bring its most notorious scofflaw into compliance through education,
citations and eventually threat of putting out of business. See Del Marcelle v. Brown Cnty.
Corp., 680 F.3d 887, 900 (7th Cir. 2012) (Easterbrook, J., concurring) (explaining that the
fact that a municipality has “limited enforcement resources and could not fully investigate
all complaints” serves as a rational basis for differential treatment, defeating a class-of-one
claim).
Accordingly, the county’s chosen enforcement procedure was also rational, and
defendants are entitled to summary judgment in their favor on plaintiff’s Equal Protection
claim.

C. Takings Clause Claim
Finally, though least meritorious, plaintiff alleges that defendants’ requirement that
it post a sign violates the Takings Clause of the Fifth Amendment. U.S. Const. Amend. V
(“nor shall private property be taken for public use, without just compensation”). In
support of its claim, plaintiff directs the court to Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982), in which the Supreme Court considered a takings claim
brought by the owner of an apartment building challenging a regulation requiring her to
allow the installation of cable in the building. Agreeing that forced installation of cable
constituted a taking, the Supreme Court adopted a categorical rule: “a permanent physical

27

occupation authorized by government,” regardless of size, constitutes a taking, requiring
compensation. Id. at 423.
Unlike Loretto, however, there was no permanent taking here, as plaintiff essentially
acknowledges in its opposition brief.

(Pl.’s Opp’n (dkt. #44) 23.) 11

Still, plaintiff

maintains that a temporary action can also be a taking, requiring compensation, pointing to
United States v. Westinghouse Electric & Manufacturing Company, 339 U.S. 261, 267 (1950),
which involved the government’s condemnation of land and buildings for use during World
War II. Id. at 262. However, while that taking was temporary -- only to be used during
the war -- the taking denied Westinghouse Electric complete use of its property. Id. Thus,
the Supreme Court clarified in First English Evangelical Lutheran Church of Glendale v. Los
Angeles County, California, 482 U.S. 304 (1987), that the only temporary takings requiring
government compensation under the Fifth and Fourteenth Amendments is one that
deprives an occupant of “all use of property.” Id. at 321.
In its opposition brief, plaintiff also hints that its takings claim may be based on
the reduced capacity limits also included in the Order. (Pl.’s Opp’n (dkt. #44) 24.)
However, that argument is not only undeveloped, plaintiff did not even allege a takings
claim based on reduced capacity. Rather, plaintiff’s complaint only concerns the mask

The court need not consider whether the required posting of a sign constitutes a “taking” under
the Penn Central factors, but that position seems dubious as well. See Penn Cen. Transp. Co. v. New
York City, 438 U.S. 104, 124 (1978) (listing factors to consider including (1) “[t]he economic
impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered
with distinct investment-backed expectations,” and (3) “the character of the governmental action”).
Indeed, the court is aware of no case holding that merely requiring compensation for mandatory,
prominent postings in a place of business constitutes a taking, whether for its employees or general
public. Rather, it is simply a cost of doing business, which even if a “taking,” is more than amply
compensated by all the public benefits that entails.

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requirement in the Order. (Compl. (dkt. #1-2) p.25 (describing Fifth Amendment claim
as “The County/City Requirement to Post Signage Constitutes an Unconstitutional Taking
Protected Under the 5th Amendment of the Constitution of the United States”).) If
anything, plaintiff’s complaint expressly disavows a capacity claim, among others noting
instead that “[t]he Order requires businesses limit their capacity to 50%, develop and
implement certain hygiene and cleaning policies, along with other requirements not at issue
here.” (Id., Statement of Facts ¶ 1 (emphasis added).) As such, the court will not take up
plaintiff’s assertion of entirely new decreased capacity or utilization claim at summary
judgment.
Because the court’s rulings resolve all federal claims in this case, it declines to
exercise supplemental jurisdiction over the remaining, largely unrelated state law claims.
See 28 U.S.C. § 1367 (providing that a court may decline to exercise supplemental
jurisdiction where “the district court has dismissed all claims over which it has original
jurisdiction”); Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015) (“The general rule,
when the federal claims fall out before trial, is that the [district court] should relinquish
jurisdiction over any supplemental (what used to be called ‘pendent’) state law claims in
order to minimize federal judicial intrusion into matters of purely state law.” (internal
citation omitted)). Instead, those claims will be dismissed without prejudice.

ORDER
IT IS ORDERED that:
1) Plaintiff Helbachs Cafe LLC’s motion for partial summary judgment (dkt. #16)
is DENIED.

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2) Defendants’ motion for summary judgment (dkt. #30) is GRANTED.
3) Defendants’ motion to compel (dkt. #55) is DENIED AS MOOT.
4) Defendants’ motion for leave to file sur-response (dkt. #62) is GRANTED as to
defendants’ response to plaintiff’s Monell arguments AND DENIED in all other
respects.
5) The clerk of court is directed to enter judgment in defendants’ favor on all
federal causes of action alleged in claims 2, 3 and 4. The clerk of court is directed
to remand the state law causes of action, namely claim 1 and part of claim 2, to
the Dane County Circuit Court for further proceedings.
Entered this 16th day of November, 2021.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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