Bachowski v. Salamone

• Decision Date: 19 June 1987
• Docket Number: No. 86-0281,86-0281
• Citation: 407 N.W.2d 533,139 Wis.2d 397
• Parties: John J. BACHOWSKI, Petitioner-Respondent, v. Margaret SALAMONE, Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 533

407 N.W.2d 533

139 Wis.2d 397

John J. BACHOWSKI, Petitioner-Respondent, v. Margaret SALAMONE, Appellant-Petitioner.

No. 86-0281.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 10, 1987.

Opinion Filed June 19, 1987.

Michael B. Rick, Eugene E. Detert and Godsell, Weber, Bruch & Rick, S.C., Hales Corners, for appellant-petitioner.

Milton R. Bordow, Milwaukee, for petitioner-respondent.

BABLITCH, Justice.

Margaret Salamone (Salamone) appeals challenging the constitutionality of sec. 813.125, Stats.1985, the "harassment injunction" statute. That statute sets forth the procedures for obtaining civil injunctive relief against a person who has allegedly violated the harassment statute, sec. 947.013(1). ¹ Salamone argues the "harassment injunction" statute 1) fails to provide sufficient notice to prepare for the final hearing on the injunction, thereby violating her rights to due process, and 2) is unconstitutionally vague and overbroad. We find the statute does provide sufficient notice, and is neither vague nor overbroad. However, because the proof offered at the hearing did not conform to the conduct alleged in the petition and because the specific injunction issued in this case was overbroad, we conclude the statute was improperly applied. Accordingly, we reverse.

Salamone and Bachowski are neighbors. Approximately two years preceding Bachowski's petition for an injunction against Salamone, the two began feuding. The feud escalated in the summer and fall of 1985 and a number of their neighbors joined the fray. On December 5, 1985, Bachowski petitioned for a sec. 813.125, Stats., injunction ("harassment injunction") against Salamone. The statute is cited in full below. ² The petition stated:

"My wife and I and neighbors who will be present at the hearing have been constantly harrassed (sic) by virtue of both the actions and conduct of the respondent, including many false charges made to the Police Department of Hales Corners, Wisconsin. In addition, physical damage to property has been caused by the conduct of the respondent."

On the day this petition was filed, the circuit court granted a temporary restraining order (TRO) ex parte based on the petition, pursuant to sec. 813.125(3), Stats. The TRO restrained and enjoined Salamone "from harassing John J. Bachowski in any manner" until the injunction hearing which was scheduled for December 12, 1985 at 10:30 a.m. On December 9, 1985, at 9:00 p.m., Salamone received notice of this hearing and a copy of the petition filed by Bachowski.

At the injunction hearing on December 12, Mrs. Bachowski and five neighbors testified concerning the incidents which precipitated the harassment petition. Mr. Bachowski did not testify. Review of the hearing testimony reveals that both Bachowski and Salamone may have engaged in inappropriate conduct toward each other. The neighbors and Mrs. Bachowski testified that Salamone repeatedly yelled at Bachowski, and stared at him and his family. Salamone asserted that the yelling was in response to obscene gestures and comments Bachowski made to her in the presence of her young children. It was also revealed at the hearing that charges against Bachowski for improper use of the telephone, stemming from obscene phone calls allegedly made to Salamone, were pending. The trial court acknowledged that Salamone might have a reciprocal claim for harassment and may also be entitled to an injunction under sec. 813.125, Stats. However, the trial court noted that without having filed a petition for such relief Salamone's testimony concerning the actions of Bachowski which "harassed" her was simply not relevant to disposition of Bachowski's injunction request.

The judge granted Bachowski's injunction concluding that Salamone "has no right to stand out on her driveway and yell at another neighbor no matter what the relationship between those parties is." The injunction enjoined Salamone for a period of two years from "harassing petitioner, having any contact with petitioner or coming upon petitioner's premises." This appeal followed.

Salamone argues that the statute is unconstitutional and, alternatively, that it was improperly applied. We note that neither the trial court nor court of appeals have ruled on the constitutional issues presented in this case. Nevertheless, the constitutionality of a statute is a question of law which we review de novo without deference to the lower courts' decisions. See State v. Ludwig, 124 Wis.2d 600, 607, 369 N.W.2d 722 (1985).

In reviewing the constitutionality of sec. 813.125, Stats., we recognize that there is a strong presumption that a legislative enactment is constitutional. State v. Cissell, 127 Wis.2d 205, 214, 378 N.W.2d 691 (1985). The party challenging the constitutionality of a statute assumes a heavy burden of persuasion. This court has repeatedly stated that it is not enough that the challenger of a law

"... establish doubt as to the act's constitutionality nor is it sufficient that respondent establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality." State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784 (1973).

With these principles in mind, we turn to the constitutional challenges to sec. 813.125 raised in this appeal. We begin with the question of whether certain procedures set forth in sec. 813.125 violate the notice requirements of the due process clause of the fourteenth amendment of the United States Constitution.

Salamone asserts that the summary procedures set forth in sec. 813.125, Stats., fail to allow sufficient time to prepare for the final hearing on the injunction, thereby denying her due process.

Under the statute a court may, upon the filing of a petition by a victim, issue an ex parte TRO ordering the respondent to "cease or avoid the harassment" of the victim. Section 813.125(3)(a), Stats. The judge must hold a hearing on the issuance of the requested injunction within seven days of the issuance of the TRO. Section 813.125(3)(b). One of the prerequisites to granting the injunction is that the court find that the petitioner has served upon the respondent a copy of the TRO and notice of the time for the hearing on the issuance of the injunction. Section 813.125(4)(a)3.

We acknowledge that no minimum notice period is specified in the statute but we must interpret the statute to avoid constitutional invalidity. See State ex rel. Lynch v. Conta, 71 Wis.2d 662, 689, 239 N.W.2d 313 (1976) ("[g]iven a choice of possible interpretations, this court must select the construction that results in constitutionality rather than invalidity....") Because an alternative construction would render the statute unconstitutional, we construe notice to mean "reasonable notice," which is all that is required by due process. E.g., Jones v. Jones, 54 Wis.2d 41, 45, 194 N.W.2d 627 (1972). The notice must be "reasonably calculated to inform the person of the pending proceeding and to afford him or her an opportunity to object and defend his or her rights." In Matter of Estate of Fessler, 100 Wis.2d 437, 447, 302 N.W.2d 414 (1981). There is nothing in the statute which precludes the trial court from recessing the hearing until a later date if reasonable notice has not been provided to the respondent. In fact the statute precludes a judge from granting an injunction unless "notice," which we construe as meaning "reasonable" notice, has been given to the respondent. If a judge fails to delay the hearing to afford the respondent adequate time to prepare or grants the injunction when reasonable notice has not been given to the respondent, the judge's action may upon review be deemed an abuse of discretion. We conclude that the procedures set forth in the statute are sufficient to provide the type of notice due process requires.

We now turn to Salamone's vagueness challenge. A statute is "unconstitutionally vague if it fails to afford proper notice of the conduct it seeks to proscribe or if it encourages arbitrary and erratic arrests and convictions." Milwaukee v. Wilson, 96 Wis.2d 11, 16, 291 N.W.2d 452 (1980). In State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750 (1983) this court explained that "[t]he principles underlying the void for vagueness doctrine ... stem from concepts of procedural due process." Id. at 172, 332 N.W.2d 750.

To survive a vagueness challenge a statute must be sufficiently definite to give persons of ordinary intelligence who wish to abide by the law sufficient notice of the proscribed conduct. Id. at 173, 332 N.W.2d 750; Wilson, 96 Wis.2d at 16, 291 N.W.2d 452. A vague law " 'may trap the innocent by not providing fair warning.' " Popanz, 112 Wis.2d at 173, 332 N.W.2d 750 quoting, Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). It must also permit law enforcement officers, judges and juries to enforce and apply the law without forcing them to create their own standards. Id. "The danger posed by a vague law is that officials charged with enforcing the law may apply it arbitrarily or the law may be so unclear that a trial court cannot properly instruct the jury as to the applicable law." Id. at 173, 332 N.W.2d 750. However, it is not necessary in order to withstand a vagueness challenge, "for a law to attain the precision of mathematics or science...." Wilson, 96 Wis.2d at 16, 291 N.W.2d 452.

Salamone contends that the statutory definition of harassment set forth in sec. 813.125(1)(b), Stats., fails to state with sufficient definiteness or certainty the specific conduct which is proscribed by the law. That section defines harassment as "[e]ngaging in a course of conduct or repeatedly committing acts...