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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2382%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2382%3A2. Public record. Not legal advice.