Opposition Brief — Ovadal v. City of Madison (No. 06-1318)

FILED —

No. 06-1318 MAY 0 2 2097

In the SUPRENG COURT Ue

a ee

Supreme Court of the Gnited States

RALPH OVADAL, ~

Petitioner,

v.

CITY OF MADISON, WISCONSIN,

RICHARD WILLIAMS, CHRIS PAULSON

and PATRICK GRADY

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeal for the Seventh Circuit

BRIEF IN OPPOSITION

CATHERINE M. ROTTIER

Counsel of Record

CATHERINE CETRANGOLO

Boardman, Suhr, Curry & Field LLP

One South Pinckney Street, Fourth FI.

P.O. Box 927

Madison, WI 53701-0927

(608) 257-9521

Counsel for Respondents

QUESTIONS RESTATED

I. Should the Supreme Court grant review even

though no circuit court split exists as to the application of the

independent judgment rule in First Amendment cases and even

though the Seventh Circuit applied the correct standard of

review to the specific facts germane to the case before it?

‘$ Is a municipality without any ability to regulate on

a content-neutral basis a demonstration that creates a dangerous

traffic hazard for those traveling on a high-speed freeway?

TABLE OF CONTENTS

PAGE

CRD PU EP PR EEEN ov ccc cc kee davrncacecnctvus i

CA er ae Pe ob ip 5 5 5 ba cae Vena egress IV

DEA TMOUTS GAT BUMS SRD cr cdenpetasverevatveres I

REASONS FOR DENYING THE PETITION. ......... 10

I. SUPREME COURT PRECEDENT ON THE

STANDARD OF REVIEW IN FIRST

AMENDMENT CASES IS WELL-SETTLED. .... 12

Il. THE CIRCUIT COURTS ARE IN

AGREEMENT ON THE APPROPRIATE

STANDARD OF REVIEW FOR FIRST

AMENDMENT CASES. 2.0.60. ccccsccreencess i4

A. — The First, Second and Seventh Circuits

Understand and Apply the Standard of

Review Articulated in Bose................ 14

B. The Third, Eighth and Ninth Circuits

Also Understand and Apply the Bose

Standard of Review in First Amendment

C. The Seventh Circuit Applied the Proper

Standard of Review in This Case.. ......... 21

TT

| TABLE OF CONTENTS (Cont’d)

PAGE

lil. THERE IS NO NEED TO REVIEW THE

SEVENTH CIRCUIT’S UNREMARKABLE

CONCLUSION THAT A CITY MAY

CONSTITUTIONALLY IMPOSE A

CONTENT-NEUTRAL REGULATION ON

ACTIVITIES THAT CREATE SIGNIFICANT

TRAFFIC AND SAFETY HAZARDS............ 23

A! BSI ar yt rae an, Reamer Ce Aen Ene 28

iV

TABLE OF AUTHORITIES

PAGE

Cases

A Woman's Choice - East Side Women's Clinic v.

Newman, 305 F.3d 684 (7th Cir. 2002), cert.

denied, $37 U.S. 1192 (2003)... cece ess 16-17, 21

Agfa Corp. v. Creo Products, Inc., 451 F.3d 1366

Sr Gal, Bo os Soa ee RA es eens 23

Americans United for Separation of Church & State

v. City of Grand Rapids, 980 F.2d 1538

SNA TAS hs nid Coker eee ee 25

Bose Corp. v. Consumers Union of U.S., Inc.,

ed ek i ER eee ROE tee passim

Brazos Valley Coalition for Life, Inc. v. City of

Bryan, 421 F.3d 344 (Sth Cir. 2003)... ws esc cers 25

Crawford-El v. Britton, 523 U.S. 574 (1998). .......... 23

Duffy v. Sarault, 892 F.2d 139 (1st Cir. 1989). ... 15, 17-18

Fabulous Associates, Inc. v. Pennsylvania Public

Utility Comm., 896 F.2d 780 (3d Cir. 1990). ...... 18-19

FAIR v. Nebruska Dept. of Social Services,

EUSP .20 O06 COG, FFF oie ck te waaa ean. 19

Faustin v. City and County of Denver, 423 F.3d

RPI LP GAP, ROOK cos cee cnn ead pha eee: 26

Vv

TABLE OF AUTHORITIES (cont'd)

PAGE

Frye v. Kansas City, Missouri Police Department,

375 F.3d 785 (8th Cir. 2004), cert. denied, 544

Es Po eu o os ab ork Obie ses eon re ee 26

Gustafson v. Jones, 290 F.3d 895

i NE 0S dc Ve vse eh che ses pee sweve 14-16, 21

Harte-Hanks Communications v. Connaughton,

ee ee RI knee dh dev es ceases vas 13-14, 22

Hill v. Colorado, 530 U.S. 703 (2000). ......... 11-12, 27

Hurley v. Irish-American Gay, Lesbian &

Bisexual Group, 515 U.S. 557 (1995)... 0.0. ...000... 14

Locurto v. Giuliani, 447 F.3d 159

eI INI Were a fe ga ett Nak id's cial 14-15, 22

Lundell Mfg. Co. v. ABC, Inc., 98 F.3d 351

(8th Cir. 1996), cert. denied, 520 U.S. 1186 (1997).... 19

MacDonald v. City of Chicago, 243 F.3d 1021

(7th Cir. 2001), cert. denied, 534 U.S. 1113 (2002). ... 26

Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003). ...... 18-19

Newton v. National Broadcasting Co.,

930 F.2d 662 (9th Cir. 1990), cert. denied,

ee Oe EN os oun 6 Sy w'e's Cav ¥s ¢ hake akewes 20

New York Times Co. v. Sullivan, 376 U.S. 254

I tah ike Ss poate eras Fea oes here ekas 12-14

Vi

TABLE OF AUTHORITIES (cont'd)

PAGE

Ovadal v. City of Madison, 416 F.3d 531

go 8 Se Er oe er er re re eee 7

Ovadal v. City of Madison, 469 F.3d 625

CR Ga A ns 6 eb washivenwaeecuds emer ian 21-23

Planned Parenthood v. American Coalition of Life,

290 F.3d 1058 (9th Cir. 2002), cert. denied,

Fa es POR ann sehen bad ddes ee neaanse 20-21

Sanctity of Human Life Network v. California Highway

Patrol, 129 Cal. Rptr. 2d 708 (Ct. App. 2003),

cert. denied, 2003 Cal. LEXIS 6185 (2003). ......... 26

United States v. Grace, 461 U.S. 171 (1983)............ 26

United States v. Israel, 317 F.3d 768

NI a aa OS ed Oo ree aS 16, 21

United States v. Nelson, 450 F.3d 1201

(10th Cir. 2006), cert. denied, 127 S.Ct. 326 (2006)... . 23

Ward v. Rock Against Racism, 491 U.S. 781

SG Gs ba hbo ve 8a dads 6oe VNU cee 11, 26-27

Statutes and Provisions

Ns OR > SO re eerie 12, 13,17

“

EG IE FRE TS ig ok chic cu cepcivncecckeus 11,21

STATEMENT OF THE CASE

Petitioner Ralph Ovadal is a pastor who, on numerous

occasions, has exercised his First Amendment rights to express

his viewpoints on religious and political issues. App. 59a-60a.

He often engages in expressive activity with a number of his

followers. App. 60a. In the last five years, he and his group

engaged in expressive activities at some 33 different events and

locations in and around the City of Madison, Wisconsin. App.

109a-110a. The target audience for his message is “the whole

world.” App. 61a.

During 2002 and the first eight months of 2003, Ovadal and

his group expressed their religious viewpoints on

homosexuality at least six times on Beltline overpasses. App.

53a, 100a. The Beltline is Madison’s restricted access freeway

where the average traffic speed exceeds 60 miles per hour.

App. 2a. The overpasses are pedestrian walkways spanning the

freeway. On those six occasions, Ovadal observed no traffic

problem developing as a result of his group’s activity and he

and his group were not ordered to disperse. App. 100a-101a.

On Tuesday, September 2, 2003, the day after Labor Day,

Ovadal and nine other individuals set up a demonstration with

signs and banners on a Beltline overpass during rush hour

traffic. App. 8la. The particular Beltline overpass the group

selected was between the exits for Seminole Highway and

Verona Road. App. 79a. The Beltline in this area is a fast

moving, heavily traveled road with three lanes of traffic in each

direction. App. 53a-54a. This is a notorious stretch of the

Beltline for on and off traffic, with a through lane turning into

an exit lane unexpectedly. App. 154a. That day, Ovadal and

his group displayed two bright yellow banners, each 16 feet

long by 2 3/4 feet wide, with large black lettering stating,

2

“Homosexuality Is Sin.” App. 53a. The group had two or three

additional signs, plus a large American flag. App. 82a.

Don Johnson, an off-duty deputy sheriff for Jefferson

County, Wisconsin, happened to be driving on the Beltline

approaching the area where Ovadal and his group were located

that day. App. 144a-145a. Way ahead of him, he saw vehicles

slowing down and some even slamming on their brakes and

weaving out of their travel lane. App. 145a-146a. Johnson

himself almost hit the vehicle in front of him. App. 145a.

When he looked up briefly, he saw people holding a bright

banner and yelling and waving their arms. App. |46a-148a.

Johnson concluded it was a dangerous situation and that

somebody was likely to get hurt. App. 148a. He called 911 to

report his concerns. App. 147a. Based on what Johnson saw

on the Beltline that day, the spectacle of the people with the

banners and signs on the overpass was adversely affecting

traffic. App. 148a. Johnson did not care what was written on

the banner, but did care about a situation developing in which

somebody might get hurt. App. 149a.

Madison police officer Curtis Fields also happened to be

driving on the Beltline. App. 152a. Several times in traffic, he

had to apply his own brakes and, at one point, had to stop his

vehicle completely as traffic in his lane was not moving. App.

153a. Officer Fields tried to figure out what was causing the

traffic problems; he suspected a traffic accident but did not see

one. App. 153a. Then, he noted a group of about ten people on

the overpass above the traffic with signs and banners. App.

154a. He saw some of the people in this group shouting down

to vehicles traveling on the Beltline below. App. 296a. When

Officer Fields reported his observations to police dispatch, he

was told that others had already called with concerns about near

crashes in the area of the Beltline where the protest was taking

place. App. 154a-155a. Officer Fields was then dispatched to

3

the scene, where he spoke to Ovadal, the leader of the group.

App. 155a-1S6a.

Officer Fields asked Ovadal to move his protest to a less

hazardous place off the Beltline. App. 87a. He asked for

cooperation in the interests of the greater good of protecting

public safety. App. 88a. When Ovadal declined to relocate the

protest voluntarily, Officer Fields contacted his supervisor, Sgt.

Chris Paulson, to get direction on what he should do. App.

67a-69a, 156a. Initially, Sgt. Paulson instructed Officer Fields

to let the demonstration continue so long as the walkway

remained open to other pedestrians. App. 157a. Officer Fields

conveyed that information to Ovadal and then he and his two

backup officers left the overpass. App. 157a.

En route to the police district, Officer Fields received a call

to return to the overpass because dispatch was receiving an

increased number of calls stating that people had nearly gotten

into collisions on the Beltline. App. 157a-158a. When Officer

Fields arrived back at the overpass, he again appealed to

Ovadal’s concern for the greater good and asked his group to

depart voluntarily. App. 158a. He told Ovadal about more

reports of near crashes and, in response, Ovadal said near

crashes liappen all the time on the Beltline. App. 92a. When

Ovadal again refused to leave the overpass, Officer Fields

conveyed that information to Sgt. Paulson, who said that he was

going to call the district attorney’s office to get legal advice on

what to do. App. 158a.

Sgt. Paulson communicated with Dane County Deputy

District Attorney Judy Schwaemle, a 20-year veteran of the

DA’s office. App. 175a-176a. Sgt. Paulson questioned her

about what officers could do regarding a demonstration on a

Beltline overpass. The sergeant’s specific concern was

whether, given the demonstrators’ right to protest, law

4

enforcement could do anything about reports that had been

received regarding motorist safety. App. 176a. In response to

that inquiry, Schwaemle advised Sgt. Paulson that, if genuine

traffic hazards were observed, police officers could ask the

demonstrators to relocate. App. 176a. She knew Sgt. Paulson

intended to rely on her legal input in determining how to handle

the situation. App. 177a. By the time he contacted Schwaemle,

Sgt. Paulson had already been informed by dispatch of about 12

more calls reporting traffic disruption and near collisions on the

Beltline in the area of the protest. App. 182a.

After receiving Schwaemle’s advice, Sgt. Paulson instructed

Officer Fields to order Ovadal and his group off the overpass.

App. 183a-184a. Originally, Sgt. Paulson wanted to get to the

site himself to directly convey the order to disperse. Traffic

was so congested, however, that he had difficulty reaching the

scene. App. 184a. Therefore, it fell to Officer Fields to issue

the order. If the group refused to disperse, Officer Fields told

them they would be cited for disorderly conduct. App. 159a.

He explained to Ovadal that his group could stay on the

overpass if they would put down their signs and discontinue

creating the spectacle. App. 97a, 160a.

Officer Fields noticed Beltline motorists who were visibly

angry as they traveled on the Beltline near the arca of the

protest. While he could see they were angry, he could not

know whether their anger resulted from disagreement with

Ovadal’s message or from disgust over the traffic snarl in

which they had gotten caught. App. 17la. Ovadal recalls

Officer Fields saying that people were upset and mentioning a

disturbance, but he does not know whether Officer Fields tied

those comments to Ovadal’s message or to the traffic snarl in

general. App. |11a-112a.

5

Sgt. Paulson arrived at the scene after Ovadal and his group

had already departed the overpass, but had not yet left the area.

App. 162a. Ovadal peppered Sgt. Paulson with questions and

Sgt. Paulson attempted to respond in a way that would end the

episode and allow him and his officers to address other police

business. App. 99a. Sgt. Paulson repeatedly assured Ovadal

that his order that evening was not content based. App. 98a.

He told Ovadal that his order would have been no different if

demonstrators with great big Green Bay Packer signs were

creating the same traffic hazard. App. 98a.

Sgt. Paulson declined to respond to Ovadal’s question about

whether he could be on the overpass at 2:00 a.m. or 3:00 a.m.,

a question Ovadal characterized as “hyberbole.” App. 100a,

18S5a. Sgt. Paulson was exercising incident authority, but not

policymaking authority, when he spoke to Ovadal that evening.

App. 186a. Sgt. Paulson’s lack of policymaking authority is

something Ovadal fully understood. App. 99a. Ovadal knew

that Sgt. Paulson was not the City’s final policymaker on the

issue of expressive activities on Beltline overpasses. App. 99a.

In response to the safety hazard, Sgt. Paulson did not

consider allowing the demonstrators to maintain their position

on the overpass with their signs and banners, but then sending

police officers down on the Beltline to direct traffic. App.

188a. He did not consider that alternative because it was not a

prudent or safe alternative. App. 188a. Directing traffic on the

Beltline would have created a greater hazard. App. 222a.

On Saturday, October 11, 2003, at about 8:30 a.m., Ovadal

and a group that this time numbered about 14 again chose a

Beltline overpass, this one near the Park Street exit, as the site

at which to display large banners and signs expressing religious

and political viewpoints. App. 105a-106a. This overpass also

spans six lanes of Beltline traffic. App. 53a-S4a.

6

Sgt. Patrick Grady was traveling on the Beltline near the

Park Street overpass that morning. App. 20S5a-206a. He saw

vehicles slowing up by about 15 to 20 mph as he approached

the area of the overpass. App. 206a. He looked around to

determine what was causing the traffic slow down and saw a

group of people on the overpass displaying banners and signs

to the motorists below. App. 206a. Sgt. Grady concluded the

display was creating a hazard to both eastbound and westbound

traffic on the Beltline. App. 208a. He did not see anyone

responding angrily to the message on display, but he did see

cars slowing abruptly to look at the display. App. 209a. If he

had not seen the traffic slow down and recognized the traffic

hazard himself, Sgt. Grady would have simply driven by

without stopping. App. 210a.

Sgt. Grady felt obliged to deal with the traffic hazard. App.

210a. He explained to Ovadal that the Beltline was a special

situation because many drivers were going 60 to 70 mph and

distractions to their driving created an unacceptable safety risk.

App. 214a-21 Sa.

Sgt. Grady did not tell Ovadal’s group to disband. Rather,

he asked the group to move their protest elsewhere. App. 209a.

His response had nothing to do with Ovadal’s message.

Instead, it had everything to do with the fact that the display of

signs and banners was causing people to slow down

significantly and creating a traffic hazard. App. 209a-21 la.

Ovadal and his group complied with Sgt. Grady’s request to

leave the overpass on October 11, 2003; no citations were

issued and no arrests were made. App. 54a.

On Saturday, November 8, 2003, during the late moming,

Ovadal again engaged in expressive activity on a Beltline

overpass, this one closer to the City of Monona. App. 108a-

109a. It was a smaller group this time and they were on the

7

overpass from about 10:30 to 11:30 a.m. App. 109a. Ovadal

observed no traffic problems resulting from the expressive

activity that day. App. 109a. The overpass was under the

City’s jurisdiction and a Madison police sergeant interacted

with the group there. App. 109a. The officer told them that

complaints about the group’s message would not be reason to

halt the expressive activity. App. 115-I16a, 141a-142a.

Because there was no traffic hazard that morning, the police

officer saw no reason to halt the demonstration and told Ovadal

and his group they were “good to go.” App. ! 16a.

On May 25, 2004, Ovadal filed his lawsuit in the United

States District Court for the Western District of Wisconsin,

alleging that the City, its former police chief, and Sgts. Grady

and Paulson had violated his First Amendment rights by

ordering him and his fellow demonstrators to move their

expressive activities from the Beltline overpasses on September

2 and October 11, 2003 after traffic hazards had developed. In

September 2004, both sides moved for summary judgment.

The Court granted defendants’ motion and denied Ovadal’s

motion, App. 37a-48a, and he appealed to the Seventh Circuit.

In a decision dated July 19, 2005, the Seventh Circuit

reversed the summary judgment and remanded the case for

further proceedings. Ovadal v. City of Madison, 416 F.3d 531

(7th Cir. 2005); App. 20a-30a. In its 2005 opinion, the Seventh

Circuit noted that the key question that required further factual

development was whether the City’s rule that no protest may

take place on Beltline overpasses when those protests cause a

traffic hazard is capable of content-neutral application or

whether the City had imposed a _ content-based and

impermissible “no-Ovadal-on-overpasses” rule. App. 29a-30a.

In the process of identifying that key question, the Seventh

Circuit stated that a policy prphibiting not just Ovadal’s but all

protests and all signs on all Beltline overpasses could certainly

be a constitutional place and manner restriction on speech

because it would be clearly content-neutral. App. 28a.

After remand, the district court entered a new scheduling

order, setting the matter for trial in December 2005. Ovadal

moved for a bench trial and that motion was granted. The

bench trial took place on December 12, 2005. App. 5la. At

trial, Ovadal called two witnesses and the City called six.

Other evidence was admitted by stipulation. App. 7a. Notably,

Ovadal called no witness to testify that he or she caused a

traffic hazard on the Beltline in reaction to Ovadal’s message.

On the other hand, two of the witnesses called by the City, Don

Johnson and Officer Fields, testified that they personally

observed and were caught up in the traffic hazard without

caring one way or another about the content of the

demonstrators’ message. App. 149a, 153a-155a.

At the completion of the evidence and the closing

arguments, the district court issued its decision, dismissing

Ovadal’s claims. App. 246a. The next day, the district court

issued a memorandum and order to amplify its oral decision

from the bench. App. Ila. The district court made findings of

facts and conclusions of law expressly addressing the questions

highlighted by the Seventh Circuit in its remand order. App.

ila-13a. The district court held that Ovadal was not banned

from the overpass on the two occasions in question because of

the content of his message or the response of drivers to his

message. Instead, the district court held, Ovadal was asked to

leave the overpass on those two occasions because the spectacle

of signs and banners on the overpass caused an observable

traffic hazard. App. 12a. The Court concluded that any ban

was content-neutral because it was based solely on \whether a

traffic hazard occurred. App. 13a. Further, the Court held that

the City’s respons€ was necessary to serve the compelling

governmental interest in assuring the safety of Beltline

\

\

9

motorists and narrowly drawn to achieve that purpose by

restricting expressive activity only when an observable traffic

hazard developed. /d. Finally, the district court determined

that Ovadal had ample alternative avenues to engage in

expressive activities in and around the City of Madison. /d.

From the judgment against him, Ovadal again appealed to

the Seventh Circuit. This time, the Seventh Circuit affirmed in

a decision issued on November 20, 2006. App. la-!0a. The

Court held as follows:

The evidence at trial does not support any

allegation that there was a genera! unwritten

policy that placed content-based prohibitions on

Ovadal’s speech. The record indicates that

Ovadal was not chilled or deterred from

exercising his First Amendment rights.

App. 10a. The Seventh Circuit found “particularly telling” that

Ovadal was again exercising his First Amendment rights on a

Beltline overpass after the two occasions about which he

complained in this lawsuit. App. 9a. The Court found that “the

facts . . . do not support the allegation that there was ever any

absolute ban on Ovadal protesting from bridges” in Madison.

App. 9a.

Until November 29, 2005, the City of Madison did not have

an express written policy banning all display of signs and

banners on Beltline overpasses. App. 218a. On November 29,

2005, the City instituted such a policy by passing Ordinance

05-00193. App. 58a. The new ordinance prohibits hand carried

Or permanent signs on bridges or overpasses Over expressways

like the Beltline, other than official traffic control signs. App.

3a-4a. The ordinance was first effective a few days after the

bench trial in December 2005. App. 3a. Adoption of the

10

ordinance was in direct response to the advice contained in the

2005 opinion of the Seventh Circuit, stating that a ban on all

signs and banners displayed on Beltline overpasses would

clearly be content-neutral. Thus, the City adopted the

ordinance to establish a clear policy beyond challenge and to

avoid future litigation of cases like this one.

Until the new ordinance’s enactment, the mere presence of

a sign, a group of signs, or a protest on a Beltline overpass was

insufficient to warrant removal by the police. App. 220a-22 1a.

If there was no significant impact on traffic safety, there was no

City policy dictating removal. App. 220a-221a. Therefore, a

“Go Team” sign, an anti-war sign, a pro-war sign, political

candidate signs, or Ovadal’s signs would not have been

removed absent the added element of a significant impact on

traffic safety. App. 224a.

In concluding that the police reaction to Ovadal’s

demonstrations on the two occasions in question was content-

neutral, the Seventh Circuit found it noteworthy that Ovadal

and his followers had demonstrated on Beltline overpasses with

signs at least six times before the dates in question and once

after the date in question without any police restrictions on their

activities. App. 9a. Thus, the Seventh Circuit concluded there

was no unwritten and widespread policy that effectively

prevented Ovadal from engaging in protected speech. App. 8a.

Because the Court found no constitutional violation, it never

reached the questions of qualified immunity and municipal

liability, issues which respondents raised as alternative grounds

to affirm the judgment.

REASONS FOR DENYING THE PETITION

There are three primary reasons to deny the petition. First,

Supreme Court precedent on the standard of review in First

1]

Amendment speech cases is well-settled, a proposition with

which petitioner agrees. Pet. Br. at 12. Petitioner claims there

is a circuit split as to the application of specific facts to this

established rule of law. However, as Supreme Court Rule 10

teaches, even if petitioner’s analysis were correct (which it ts

not), the Court should deny certiorari review that would center

on only allegedly erroneous factual findings or misapplication

of a properly stated rule of law. In short, this petition simply

plows old ground.

Second, petitioner’s description of a circuit split is

inaccurate. He contends that the First, Second and Seventh

Circuits review ail factual findings in First Amendment cases

using a Clearly erroneous standard, while the Third, Eighth and

Ninth Circuits review a// factual findings (other than credibility

facts) using a de novo standard. Petitioner is incorrect. His

characterization of the law is overly simplistic and fails to

appreciate that not all facts are entitled to the same level of

review under First Amendment law. Typically, a First

Amendment case involves two types of facts: (1) non-

constitutional facts, which a court reviews for clear error; and

(2) constitutional facts, which a court reviews de novo.

Although appellate courts use different words to describe non-

constitutional facts (such as “predicate,” “historical” and “non-

crucial” facts), they generally apply the same standard of

review depending on the specific facts at issue.

Third, the Seventh Circuit opinion at issue conforms with

this Court’s precedent recognizing the ability of a municipality

to regulate the time, place and manner of protected speech if the

restriction is content-neutral, narrowly tatlored to serve a

significant governmental interest, and leaves open ample

alternative channels for communication of the speaker’s

message. This standard, enunciated in Ward v. Rock Against

Racism, 491 U.S. 781 (1989), and further explained in Hill v.

12

Colorado, 530 U.S. 703 (2000), was applied properly in this

case, making further review wholly unwarranted.

I. SUPREME COURT PRECEDENT ON THE

STANDARD OF REVIEW IN FIRST AMENDMENT

CASES IS WELL-SETTLED.

In New York Times Co. v. Sullivan, 376 U.S. 254, 285

(1964), a defamation case, the Supreme Court noted that it does

not merely explain constitutional principles; it also tries to

make certain those principles are constitutionally applied. To

do that, the Court examines for itself the allegedly defamatory

statements at issue and the circumstances under which they

were made to see whether the statements are of the character

that the First Amendment protects. /d.

The Court’s role as independent examiner in First

Amendment cases was considered again, two decades later, in

another defamation case, Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485 (1984). In Bose, the Supreme Court

confronted an apparent conflict between Fed. R. Civ. P. 52(a),

which provides that findings of fact shall not be set aside unless

clearly erroneous, and the rule in First Amendment cases that

“an appellate court has an obligation to ‘make an independent

examination of the whole record’ in order to make sure that ‘the

judgment does not constitute a forbidden intrusion on the field

of free expression.’”” Bose, 466 U.S. at 498-99, quoting New

York Times, 376 U.S. at 284 and 286.

Bose explains that an appellate court’s independent review

of the record in a defamation case is necessary to determine

whether the speech in question falls within a category of

unprotected speech and also to insure that protected expression

is not unduly inhibited. 466 U.S. at 505. To apply its

independent judgment to the speech in question, the Court must

13

review findings of fact where such facts are so intermingled

with a conclusion of law as to make an analysis of the facts

necessary in order to pass upon the federal question. /d. at 509

n.27. Nevertheless, Bose clearly staked out the limits of an

appellate court’s independent assessment of the facts, writing

as follows:

There are, of course, many findings of fact in a

defamation case that are irrelevant to the

constitutional standard of New York Times Co. v.

Sullivan and to which the clearly-erroneous

standard of Rule 52(a) is fully applicable. Indeed,

it is not actually necessary to review the “entire”

record to fulfill the function of independent

appellate review on the actual-malice question;

rather, only those portions of the record which

relate to the actual-malice determination must be

independently assessed. The independent review

function is not equivalent to a “de novo” review

of the ultimate judgment itself, in which a

reviewing court makes an original appraisal of all

the evidence to decide whether or not it believes ~

that judgment should be entered for plaintiff.

Bose, 466 U.S. at 514 n.31.

Five years after Bose, the Court revisited the issue in Harte-

Hanks Communications v. Connaughton, 491 U.S. 657 (1989),

a libel action against a newspaper. In Harte-Hanks, the Court

held that credibility determinations are reviewed under a clearly

erroneous standard because the fact-finder has had the

Opportunity to observe the witness, even though “the reviewing

court must ‘examine for [itself] the statements in issue and the

circumstance under which they were made to see . . . whether

they are of a character which the principles of the First

14

Amendment . . . protect.” /d. at 688 (brackets and ellipses in

original), quoting New York Times, 376 U.S. at 285. As part of

its review of the entire record, the Court in Harte-Hanks

gleaned from the jury verdict what facts the jury “must” have

rejected and, based on those findings of fact, concluded that the

newspaper acted with actual malice. 491 U.S. at 690-91. In

short, the Court relied on jury findings as a predicate for its

own independent assessment of the actual malice question.

Six years later, in Hurley v. Irish-American Gay, Lesbian &

Bisexual Group, 515 U.S. 557, 567 (1995), a First Amendment

case involving a parade permit under public accommodations

law, the Court reiterated the confines of the independent

judgment rele, noting that a reviewing court is “obliged to

make a fresh examination of crucial facts” to determine

whether First Amendment rights have been violated, but to do

so without limiting its deference to the trial court on matters of

witness credibility. For those propositions, Hurley cited the

standards already established in New York Times, Bose and

Harte-Hanks. Id. at 567-68. Thus, the rule of law petitioner

wants reviewed in this case is one this Court has already

addressed and settled in an unbroken string of opinions that

need not be revisited.

II. THE CIRCUIT COURTS ARE IN AGREEMENT ON

THE APPROPRIATE STANDARD OF REVIEW FOR

FIRST AMENDMENT CASES.

A. The First, Second and Seventh Circuits Understand and

- Apply the Standard of Review Articulated in Bose.

Petitioner contends that the First, Second and Seventh

Circuits review “all factual findings” in First Amendment cases

under a clearly erroneous standard. See Pet. Br. at 15, citing

Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006), Gustafson v. ,

15

Jones, 290 F.3d 895 (7th Cir. 2002), and Duffy v. Sarault, 892

F.2d 139 (1st Cir. 1989). This is incorrect. These circuit courts

(as do the other circuit courts) draw a distinction between the

types of facts at issue in a First Amendment case, namely, non-

constitutional facts, which are reviewed for clear error, and

constitutional facts, which are reviewed de novo.

Petitioner first cites a Second Circuit case involving

government employee speech and contends that Judge

Calabresi, in an unanimous opinion, applied the wrong standard

of review. Pet. Br. at 18, citing Locurto, 447 F.3d at 177 n.6.

However, petitioner’s citation is incomplete and misleading. In

support of its contention that the Second Circuit applies a

Clearly erroneous standard to all factual findings in First

Amendment cases, petitioner quotes this fragment from a

footnote in Locurto: “defendants’ intent is a factual question,

which we review for clear error... .” The full quote tells a

different story, however, providing as follows:

although the defendants’ intent is a_ factual

question, which we review for clear error,

whether that intent ultimately amounts to

“retaliation” forbidden by the Constitution is a

question of law, which we review de novo.

Locurto, 447 F.3d at 177, n.6. As the full quote illustrates, the

Second Circuit applies a clearly erroneous standard to the non-

constitutional facts felevant to a defendant’s intent and a de

novo standard to constitutional facts, such as whether that intent

actually amounts to-a violation of the Constitution. That

standard of review comports squarely with Supreme Court

precedent.

Likewise, petitioner cites Gustafson, 290 F.3d at 906, a

government employee speech case, for the proposition that the

16

Seventh Circuit reviews “all factual findings” in First

Amendment cases for clear error. This too is incorrect. The

Seventh Circuit held in Gustafson that:

Whether-a government employee’s speech ts

protected by the First Amendment ts a question of

law that the district court properly withheld from

the jury, even though it may have required

predicate factual determinations. Although our

review of the court’s legal conclusions is de novo,

we review the record as a whole, and we will

accept the district court’s conclusions of

historical fact unless they are clearly erroneous.

Gustafson, 290 F.3d at 906 (emphasis added and citations

omitted). Thus, the Seventh Circuit clearly distinguishes non-

constitutional facts (“predicate” or “historical” facts) from

constitutional facts.

Even if one could find ambiguity in the standard articulated

in Gustafson, the Seventh Circuit has demonstrated its

adherence to the Supreme Court’s independent judgment rule

in First Amendment cases on many occasions. In United States

v. Israel, 317 F.3d 768, 770 (7th Cir. 2003), for example, the

Seventh Circuit made the following observation:

Where First Amendment concerns are at issue,

appellate courts must conduct an “independent

examination of the whole record” in order to

make sure that “the judgment does not constitute

a forbidden intrusion on the field of free

expression.”

Id., quoting Bose, 466 U.S. at 499. Likewise, in A Woman's

Choice - East Side Women's Clinic v. Newman, 305 F.3d 684,

17

689 (7th Cir. 2002), cert. denied, 537 U.S. 1192 (2003), the

Seventh Circuit demonstrated its clear understanding of the

review standard articulated in Bose, writing as follows:

That admixture of fact and law, sometimes called

an issue of “constitutional fact,” is reviewed

without deference in order to prevent the

idiosyncrasies of a single judge or jury from

having far-reaching legal effects. Only the

findings of historical fact are sheltered by Rule

52(a). Thus our consideration of the studies’

significance is not deferential.

(emphasis in original).

Petitioner fares no better in asserting that the First Circuit

misunderstands the review standard. For that proposition,

petitioner cites Duffy, 892 F.2d at 145, a speech termination

case decided by the First Circuit in 1989. The precise question

Duffy addressed was whether Bose required de novo review of

a finding that the defendant’s termination would have occurred

regardless of the plaintiff's protected conduct or whether a

clearly erroneous standard applied to that determination. /d. at

143. After a lengthy recitation of the law concerning the

standard of review in First Amendment cases, the First Circuit

held that findings on what is protected free speech are reviewed

de novo because these findings of fact “directly touch First

Amendment rights.” /d. at 145. Thus, the First Circuit clearly

understood that it was required by Bose to undertake an

independent review of the district court’s ultimate finding that

the defendant’s statements to the press were protected under the

First Amendment. /d. at 143. That being said, the court still

applied a clearly erroneous standard to factual questions about

whether speech substantially\ affected the defendant's

employment decision and whetherthe defendant met his burden

a

a;

18

of proof. As to those predicate questions, the First Circuit

observed that they were “factual determinations subject to the

clearly erroneous standard.” /d. at 145. In making that

distinction, the First Circuit did not misunderstand the

independent judgment rule set forth in Bose.

As the case law reveals, the First, Second and Seventh

Circuits do not apply a clearly erroneous standard to “all factual

findings” in First Amendment cases. Accordingly, no circuit

split exists and no review is necessary.

B. The Third, Eighth and Ninth Circuits Also Understand

and Apply the Bose Standard of Review in First

Amendment Cases.

Petitioner contends next that, in contrast to the First, Second

and Seventh Circuits, the Third, Eighth and Ninth Circuits

apply a de novo standard to all factual issues other than

credibility facts. Pet. Br. at 15. However, as the discussion

below reveats, all six circuits apply the same independent

judgment standard of review articulated by this Court.

As to the Third Circuit, petitioner contends that it applies a

de novo standard to all facts in a First Amendment case, citing

Fabulous Associates, Inc. v. Pennsylvania Public Utility

Comm., 896 F.2d 780, 783 (3d Cir. 1990), a case involving

sexually explicit telephone messages. Pet. Br. at 15. But that

is not quite what the case says. To the contrary, the Third

Circuit held explicitly that “in the area of constitutional fact, we

are not required to defer to factual inferences reached by the

district court.” /d. at 783 (emphasis added). In another more

recent case, the Third Circuit again used the phrase

“constitutional fact” to identify those issues that required

independent appellate rewgw. Mitchell v. Horn, 318 F.3d 523,

19

531 (3d Cir. 2003). Thus, the Third Circuit did not extend its

de novo review to all facts, rather only to constitutional facts.

Moreover, the Third Circuit even applied a clearly erroneous

standard in Fabulous Associates, the very case petitioner cites

for the opposite proposition. Specifically, the court noted that

the commonwealth of Pennsylvania never asserted that the

speech at issue was obscene. 896 F.2d at 783. Therefore, no

constitutional fact was raised. Because no constitutional fact

was at issue, the appellate court and “the parties agree that [the]

scope of review of the district court’s findings of fact is under

the clearly erroneous test.” /d. Thus, Fabulous Assoc:ates

illustrates that the Third Circuit applies a de novo review to

constitutional facts and a clearly erroneous standard to non-

constitutional facts.

The same is true for the Eighth Circuit. Petitioner cites

FAIR v. Nebraska Dept. of Social Services, 111 F.3d 1408,

1411 (8th Cir. 1997), a speech case, for the proposition that the

Eighth Circuit does not apply a clearly erroneous standard in

First Amendment cases. Pet. Br. at 16. However, the Eighth

Circuit has not painted with such a broad brush. To the

contrary, the Eighth Circuit held in FAJ/R that it “review{s]

findings of noncritical facts for clear error,” but “independently

review(s] the evidentiary basis of critical facts, giving due

regard to the trial court’s opportunity to observe the demeanor

of witnesses.” FA/R, 111 F.3d at 1411 (emphasis added); see

also Lundell Mfg. Co. v. ABC, Inc., 98 F.3d 351, 355-59 (8th

Cir. 1996), cert. denied, 520 U.S. 1186 (1997) (discussing in

detail whether a particular fact is a constitutional fact requiring

application of the independent judgment rule). As the holdings

in FAIR and Lundell demonstrate, the Eighth Circuit

distinguishes between critical and non-critical facts in

determining the appropriate standard of review in First

Amendment cases.

20

The Ninth Circuit also understands the nuanced standard of

review articulated in Bose. Petitioner is simply wrong to

contend that the Ninth Circuit applies a de novo standard to all

factual findings in First Amendment cases, with the exception

of credibility assessments. See Pet. Br. at 12, citing Newton v.

National Broadcasting Co., 930 F.2d 662 (9th Cir. 1990), cert.

denied, 502 U.S. 866 (1991). In its careful review of the

applicable standard, Newton recognized that the Supreme Court

had fashioned a process for reviewing evidence which “permits

judicial protection of First Amendment values while still

paying due deference to the fact-finding role of juries... .” 7d.

at 672. Thus, the Ninth Circuit understood that the rule of

independent review allowed the appellate court to accept all the

purely factual findings of the district court, but nevertheless to

decide for itself whether the record as a whole demonstrated the

existence of actual malice. /d. at 670.

The Ninth Circuit further explained its understanding of the

standard of review in Planned Parenthood v. American

Coalition of Life, 290 F.3d 1058 (9th Cir. 2002), cert. denied,

539 U.S. 958 (2003), a threat of force case under the First

Amendment. After an exhaustive analysis of both Supreme

Court and Ninth Circuit law on the standard of review in First

Amendment cases, the Court held as follows:

We will consider the undisputed facts as true, and

construe the historical facts, the findings on the

statutory elements, and all credibility

determinations in favor of the prevailing party. In

this way we give appropriate deference to the trier

of fact, here both the jury and the district judge,

yet assure that evidence of the core constitutional

fact — a true threat — falls within the

2|

unprotected category and is narrowly enough

bounded as a matter of constitutional law.

Id. at 1070. This consistent approach is layered, but not

unclear.

As the case law demonstrates, the Third, Eighth and Ninth

Circuits, just like the the First, Second and Seventh Circuits,

review non-constitutional facts for clear error and constitutional

facts de novo. The appellate courts are not in disarray over the

independent judgment doctrine.

C.The Seventh Circuit Applied the Proper Standard of

Review in This Case.

As explained earlier, the Seventh Circuit has correctly

articulated and applied the independent judgment rule in many

First Amendment cases. See Gustafson, 290 F.3d at 906;

Israel, 317 F.3d at 770; and Newman, 305 F.3d at 689. In this

case, the Seventh Circuit did not spend much time explaining

the intricacies of the standard of review, but nonetheless it

applied the correct standard. Ovadal v. City of Madison, 469

F.3d 625, 630 (7th Cir. 2006) (Ovadal IT). Moreover, even if

the Seventh Circuit had failed to apply the correct standard, the

case would not warrant certiorari review because, as Supreme

Court Rule 10 explains, review is not granted to address

allegedly erroneous factual findings or misapplication of a

properly stated rule of law.

In the case at hand, the Seventh Circuit applied a clearly

erroneous standard of review to the determination of driver

intent, a non-constitutional fact, and a de novo standard to

whether that intent demonstrated a violation of the First

Amendment, a constitutional fact. Ovadal 11, 469 F.3d at 630.

As to the constitutional fact, the Court held that, if the findings

of fact supported the view that drivers on the Beltline created

a traffic hazard in angry response to petitioner’s message, then

the police must permit the speech and control the crowd

because there is no heckler’s veto. /d. This application of the

review standard comports with Supreme Court precedent as

well as the law articulated in other circuits. In fact, the Seventh

Circuit reached the same conclusion the Second Circuit had

reached in Locurto on the issue of appellate review of intent

findings. Locurto hetd that intent is a non-constitutional fact

reviewed for clear error, but whether that intent ultimately

amounts to a constitutional violation is a constitutional fact

reviewed de novo. Locurto, 447 F.3d at 159 n.6.

Petitioner concedes, as he must, that credibility

determinations are reviewed for clear error in First Amendment

cases. Pet. Br. at 18. As explained in Harte-Hanks, 491 US.

at 688:

credibility determinations are reviewed under the

clearly-erroneous standard because the trier of

fact has had the “opportunity to observe the

demeanor of the witness.”

Id., quoting Bose, 466 U.S. at 499-500.

Gleaning intent on the basis of conflicting testimony 1s the

epitome of a credibility determination. The Seventh Circuit

understood this. It noted that the trier of fact plays a

particularly significant role as the arbiter of credibility in

weighing direct and circumstantial evidence. Ovadal II, 469°

F.3d at 630. Deferring to the district court’s credibility

determinations on the issue of driver intent was, therefore,

wholly proper.

23

The Seventh Circuit is not alone in recognizing intent as a

fact-bound issue dependent on credibility determinations. This

Court in Crawford-El v. Britton, 523 U.S. 574, 589 (1998),

characterized intent as “a pure issue of fact.” Likewise, Agfa

Corp. v. Creo Products, Inc., 451 F.3d 1366, 1383 (Fed. Cir.

2006), observed that “findings of deceptive intent often require

findings of credibility” and that “[c]redibility is unequivocally

the province of the jury.” See also United States v. Nelson, 450

F.3d 1201, 1209 (10th Cir. 2006), cert. denied, 127 S.Ct. 326

(2006), a case “[a]ffording deference to the district court’s

credibility findings which are central to the question of

discriminatory intent.”

In sum, no conflict exists among the circuit courts and,

moreover, the Seventh Circuit applied the correct standard of

review in this case. Accordingly, the petition should be denied.

Ili. THERE tS NONEED TO REVIEW THE SEVENTH

CIRCUIT’S UNREMARKABLE CONCLUSION

THAT A CITY MAY CONSTITUTIONALLY

IMPOSE A CONTENT-NEUTRAL REGULATION

ON EXPRESSIVE ACTIVITIES THAT CREATE

SIGNIFICANT TRAFFIC HAZARDS.

Petitioner attempts to characterize this case as nothing more

than the City impermissibly applying a heckler’s veto to a run-

of-the-mill demonstration. The facts paint a much different

picture. Notably, petitioner fails to disclose the significant and

undisputed fact that he had protested with signs on Beltline

overpasses concerning his beliefs on homosexuality on at least

six other occasions before and one occasion after the two dates

in question and had interacted with police on several of those

occasions without any restrictions on his activities. Ovadal I],

469 F.3d at 631; see also App. 53a, 100a. Because there was

no observable traffic hazard on those occasions, there was no

24

restriction on his exercise of First Amendment rights. Based on

petitioner’s own experience, therefore, the City of Madison

never had or enforced a content-based no-Ovadal-on-

overpasses rule. App. 9a.

On two occasions in the fall of 2003, a significant traffic

hazard did develop in response to the spectacle created by

petitioner and his followers. During rush hour on the day after

Labor Day, petitioner and nine others chose to express their

views on homosexuality from a Beltline overpass. App. 81a.

Petitioner and his group came equipped with two bright yellow

banners, each 16 feet long by 2 3/4 feet wide, with large black

lettering. App. 53a. The group had two or three additional

signs, plus a large American flag. App. 82a. The Beltline

overpass they chose that day is situated over a dangerous

stretch of the Beltline for on and off traffic, with a through lane

turning into an exit lane unexpectedly. App. 154a. One

witness, Don Johnson, was traveling on the Beltline that day

and saw vehicles slamming on their brakes and weaving out of

their travel lane. App. 145a-146a. Johnson himself almost hit

the vehicle in front of him. App. 145a. He testified he did not

care what was written on petitioner’s banners, but he did care

about the situation developing in which someone was likely to

get hurt. App. 147a, 149a. Johnson called 911, as did at least

eleven other callers reporting their concern about near

collisions on the Beltline near the site of the demonstration.

App. 182a.

Even with a situation that unsafe, petitioner argues that the

City was without power to impose any restriction on him to

move his protest because doing so would be ta:tamount to a

heckler’s veto. Petitioner cites no law to support such a strident

stance, much less an actual circuit court split on the issue.

Indeed, petitioner’s certiorari arguments on this question can be

dispensed with quickly.

25

On the issue of a circuit split, petitioner contends that the

Sixth Circuit steadfastly prohibits any regulation that turns on

listener reaction. Pet. Br. at 22, citing Americans United for

Separation of Church & State v. City of Grand Rapids, 980

F.2d 1538, 1553 (6th Cir. 1992). Petitioner claims the Sixth

Circuit holding in Americans United creates a circuit split from

decisions issued by the Fifth, Seventh and Eighth Circuits.

Petitioner’s characterization is inaccurate. Americans United

is an establishment clause case involving the placement of a

menorah in a downtown public plaza. /d. 1539-40. The

placement of the menorah had nothing to do with creating a

traffic or safety hazard of any kind. /d. In fact, the Court’s

brief discussion of a heckler’s veto was only a backdrop to its

discussion of what it called an “ignoramus’s veto,” a phrase the

Court used to characterize those individuals determined to

perceive government endorsement of religion at every turn,

even when no such endorsement exists. /d. at 1553.

Americans United cannot create a circuit split when it does

not even address the same issues addressed by the Fifth,

Seventh and Eighth Circuits in the cases petitioner identifies.

The Fifth Circuit case, Brazos Valley Coalition for Life, Inc. v.

City of Bryan, 421 F.3d 314, 326 (Sth Cir. 2005), did not, as

petitioner suggests, permit a heckler’s veto. Instead, Brazos

considered whether a property owner had any say in the matter

if a stranger decided to plant a flag in the public right-of-way

in front of the property owner’s home. Allowing someone to

do that, the Fifth Circuit correctly observed, would be

analogous to sending a letter to the newspaper under so:neone

else’s name, something the First Amendment cannot be

interpreted to condone. /d. at 326. Thus, Brazos 1s a far cry

from a heckler’s veto case.

There are many cases that do address governmental

regulation of speech in the face of traffic and safety hazards

26

and, as one might expect, these cases do not allow for unbridled

speech at any cost to the public. For example, in MacDonald

v. City of Chicago, 243 F.3d 1021, 1025 (7th Cir. 2001), cert.

denied, 534 U.S. 1113 (2002), the Seventh Circuit noted that an

individual has the right to demonstrate and speak freely on

controversial issues, but “that right does not allow him and

other participants to create chaos by disrupting traffic,

impeding pedestrians, endangering themselves or other people,

and otherwise causing gridlock on the busy streets and

sidewalks of the city... .” Likewise, in Frye v. Kansas City,

Missouri Police Department, 375 F.3d 785, 791 (8th Cir. 2004),

cert. denied, 544 U.S. 920 (2005), the Eighth Circuit

recognized that a City police department has the ability to

regulate a protest on a content-neutral basis in order to alleviate

the significant traffic hazard caused by the demonstration. See

also Faustin v. City and County of Denver, 423 F.3d 1192 (10th

Cir. 2005) (upholding ability to prevent anti-abortion banners

from being displayed on highway overpasses because local

government has a significant interest in traffic safety); Sanctity

of Human Life Network v. California Highway Patrol, 129 Cal.

Rptr. 2d 708 (Ct. App. 2003), cert. denied, 2003 Cal. LEXIS

6185 (2003) (upholding ability of police to discontinue anti-

abortion demonstrations on freeway overpasses because of

traffic hazard).

Indeed, this Court has repeatedly held that content-neutral

regulations, such as those imposed on petitioner in this case, are

constitutional. See, e.g., United States v. Grace, 461 U.S. 171,

177-78 (1983) (“We have regularly rejected the assertion that

people who wish ‘to propagandize protests or views have a

constitutional right to do so whenever and however and

wherever they please.’”) (internal citation omitted); Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989) (“Government

regulation of expressive activity is content neutral so long as it

is justified without reference to the content of the regulated

27

_

speech.”); Hill v. Colorado, 530 U.S. 703 (2000) (upholding

constitutionality of statute establishing boundaries for

protesting and leafleting at healthcare facility entrances because

the statute in question reflected an “acceptable balance between

constitutionally protected rights of law-abiding citizens and the

interests of unwilling listeners.”)

According to Ward, the controlling consideration in deciding

content neutrality is the government’s purpose in developing its

policy. Here, the City’s controlling consideration was traffic

safety. Because the City’s regulation of petitioner’s expressive

activity was justified without reference to the content of his

message, it was, under Ward, content neutral. That is so

whether or not the regulation “has an incidental effect on some

speakers or messages but not others.” Ward, 491 U.S. at 791.

Because it is well-established that municipalities may

regulate expressive activities on a content-neutral basis tn order

to control traffic and safety hazards, the Court should deny

Ovadal’s petition for certiorari review.

28

CONCLUSION

For all the reasons discussed, the Court should deny Ralph

Ovadal’s petition for writ of certiorari.

Respectfully submitted,

CATHERINE M. ROTTIER

Counsel of Record

CATHERINE CETRANGOLO

Boardman, Suhr, Curry & Field LLP

One South Pinckney Street, Fourth FI.

P.O. Box 927

Madison, WI 53701-0927

(608) 257-9521

Counsel for Respondents

May 2007