An ordinance many thought to be unconstitutional was repealed by the Mount Pleasant Village Board Monday after 11 years of being on the books.
The rule, which dates back to Mount Pleasant’s establishment as a village, barred people running for public office from speaking during the public comment section of village board meetings.
Board members, those that supported and protested the ordinance, agree the legal argument behind its codification was to prevent electioneering and campaigning at board meetings. But opponents also said they believe it’s a deliberate attempt to silence political opponents during a public meeting, whether that person is “electioneering” or not.
Free speech or electioneering?
In a recent board meeting the trustees repealed the ordinance in a unanimous vote, though some had voiced support of the ordinance previously.
Along with being potentially unconstitutional, it was also not equally enforced.
“And there had been numerous times we were violating that policy, by having judges and county executives,” that were running for office speak before the board, said Trustee Gary Feest.
This sentiment has led the charge in recent months to have the ordinance repealed.
Chuck Haakma, a village board candidate, was on the restricting end of the rule since filing his candidacy in December. After hiring an attorney to challenge the rule, he posed the first threat to the ordinance the board had seen. On Feb. 14, his attorney, Walter Stern, sent a letter to Village Board President Jerry Garski threatening to sue the village for a violation of Haakma’s constitutional rights.
Trustee David DeGroot was a proponent of the ordinance before its repeal, and was the trustee that most often brought up the ordinance when Haakma tried to speak.
“It’s a common sense thing,” DeGroot told Racine County Eye in Feb. “It’s about keeping people from electioneering in the village hall.”
“It’s not something that we just pulled out of the seat of our pants,” he said. “All that stuff is well thought out, ya know, is drawn up by attorneys. It’s very defensible the way it is.”
The laws around public comment
Still, UW-Milwaukee Professor David Allen, an expert on free speech and media law, didn’t disagree with the potential defensibility of the ordinance. Allen said its defense could come down to the board’s interpretation of the public comment period.
If the comment section was viewed as a “limited public forum” in legal terms, then the rule could be viable. Since the board places other limits on the comment section such as a time and content restriction, the forum can be considered “limited,” he said.
“I think it is inherently a limited public forum,” he wrote in an email. “But that is really a guess on my part.”
The ordinance would be what’s called a “time, place and manner restriction,” which is a form of restraint on free speech deemed constitutionally viable. However, they must pass muster with stringent caveats including being narrowly defined and serving a significant government interest.
Still, DeGroot and other members of the board agreed that the comment section is open for citizens to address their elected leaders on any issue they want.
“Any other day of the year as a village resident he can speak on whatever he wants and it doesn’t have to be village related,” DeGroot said of Haakma. “He can talk about his thimble collection if he’s got one.”
This is where the ordinance becomes potentially unconstitutional. As Allen said, “And the thimble collections is the only issue I can see–where the rules say citizens can address any item.” Adding, “However, it seems that subsequent amendments to the code have limited that.”
The week before the repeal, the board stopped enforcing the ordinance, When DeGroot was asked why, he said they had to re-examine the ordinance on advice from legal counsel
The ordinance has never been tested in court and, ultimately, the village avoided litigation with their repeal.