A judge weighing whether state officials overstepped their bounds by restricting protesters' access to the state Capitol nearly ordered all the demonstrators out on moments' notice Wednesday evening before state and union attorneys talked him out of it.
Dane County Circuit Judge John Albert has been listening to two days of testimony on whether he should make a temporary court order ensuring full public access to the building permanent. He is expected to rule on the matter Thursday.
He told the packed courtroom shortly after 6 p.m. that he wanted to test the state Department of Administration's contention that building access would return to normal quickly if the protesters who have spent the last two weeks sleeping overnight in the rotunda left. He presented a draft order that would have forced anyone who was still in the Capitol after its regular 6 p.m. closing time to be out by 8 p.m. and said he planned to have DOA officials hand one to each protester.
"It's worth a try," a weary-sounding Albert said as he massaged his temples. "They should be out of the Capitol because it's closed to business."
The order would have given the 100 or so protesters still camping out in the Capitol only minutes' notice and potentially set up confrontations with the multiple police agencies that have been guarding the building.
Assistant Attorney General Steven Means, who is representing the DOA, urged Albert not to do it. He said the order wouldn't be fair because the protesters didn't get a chance to be heard. Union attorney Peg Lautenschlager pointed out that the protesters may not take the order seriously because she contends the DOA has ignored the temporary court order to fully open the building.
"If you do the order, I don't know how people in the building will react," she said.
Albert reluctantly relented and decided to resume the hearing Thursday afternoon.
The protesters are among tens of thousands of others who demonstrated in and around the Capitol for two weeks against Republican Gov. Scott Walker's plan to strip most public workers of nearly all their collective bargaining rights. They've had free run of most of the building and the grounds for days, staging massive rallies, pounding bongo drums and spending the nights on the Capitol's floor on air mattresses and in sleeping bags. They even set up their own makeshift day care center in the building's north wing.
The DOA announced Friday that everyone had to be out by 4 p.m. Sunday so crews could finally clean the building. Agency Secretary Mike Huebsch testified Wednesday that protesters jammed the Capitol at 4 p.m. that day hoping to get arrested, going so far as to write their attorneys' phone numbers in marker on their arms.
Huebsch said he decided not to have police remove the protesters by force because he wanted to avoid confrontations between protesters and police. Those still in the Capitol were allowed to stay overnight, but many left after they realized they weren't going to be arrested.
About 200 people stayed overnight into Monday. That morning, the DOA imposed tougher access restrictions. Police limited public access to only one entrance, allowing in only those who had appointments with lawmakers or other specific business. Anyone else could enter one by one and only when someone left the building.
The restrictions have had an immediate effect on the demonstration. Dozens of die-hard protesters are still pounding away on their bongos and staying overnight on the ground floor, but the Capitol's corridors and stairways are clear again and the noise isn't quite as loud.
Huebsch said police have overlooked multiple violations by protesters, allowing them to tape posters to the walls and use amplifiers in the building during rallies.
But he said the state can't continue to pay for the army of officers the DOA brought in from around the state to guard the building, noting that law enforcement costs are already approaching $5 million. He also said the protesters' constant noise made it impossible for Capitol workers to get their work done.
State Sen. Glenn Grothman, R-West Bend, said protesters cornered him outside a locked Capitol entrance on Tuesday, shouting "Shame!" as he banged on windows and doors to get inside. He testified Wednesday that he thinks the protesters are abnormal.
"Normal people don't sit cross-legged on the floor and bang on drums," he said in court. "It's an uncivil situation."
Huebsch said he believes access could return to normal quickly if the overnight campers would leave.
"These restrictions are meant to be short-term," he said.
Curtailing the demonstrations is the last thing Democrats and unions want. The protests have been one of their most effective weapons against the bill, helping them drawing national attention to the debate.
Three unions won a temporary court order Tuesday to keep the Capitol completely open during normal business hours. The DOA didn't change its policies, however. Agency officials said they believe the building is open.