Brandmiller v. Arreola, 93-2842

• Citation: 525 N.W.2d 353,189 Wis.2d 215
• Decision Date: 08 November 1994
• Docket Number: No. 93-2842,93-2842
• Parties: Diane BRANDMILLER, Shane Evans, Jodie Kowalski, Wendy Miller and Pamela Rogers, Plaintiffs-Appellants, d v. Phillip ARREOLA, John C. Butoric, DuWayne Dzibinski, City of Greenfield, Village of Hales Corners, Chester Kass, City of Milwaukee, City of West Allis and Wayne Sagodzinski, Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

Page 353

525 N.W.2d 353

189 Wis.2d 215

Diane BRANDMILLER, Shane Evans, Jodie Kowalski, Wendy Miller and Pamela Rogers, Plaintiffs-Appellants, d v. Phillip ARREOLA, John C. Butoric, DuWayne Dzibinski, City of

Greenfield, Village of Hales Corners, Chester

Kass, City of Milwaukee, City of West

Allis and Wayne Sagodzinski,

Defendants-Respondents.

No. 93-2842.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 2, 1994.

Opinion Released Nov. 8, 1994.

Opinion Filed Nov. 8, 1994.

For the plaintiffs-appellants the cause was submitted on the briefs of Rex R. Anderegg of Law Offices of William A. Pangman & Associates, S.C. of Waukesha.

For the defendant-respondent City of Greenfield the cause was submitted on the joint briefs of Roger C. Pyzyk, City Atty., of West Allis; for the defendant-respondent Village of Hales Corners the cause was submitted by Jesse A. Wesolowski, Village Atty., of Franklin; for the defendant-respondent City of Milwaukee the cause was submitted by Charles R. Theis, Deputy City Atty., of Milwaukee; for the defendant-respondent City of West Allis the cause was submitted by Scott E. Post, Asst. City Atty., of West Allis.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

WEDEMEYER, Presiding Judge.

Diane Brandmiller, Shane Evans, Jodie Kowalski, Wendy Miller and Pamela Rogers (collectively, Brandmiller ¹) appeal from an order granting summary judgment concluding that the City of West Allis Ordinance No. 10-18, City of Milwaukee Ordinance No. 900-41, City of Greenfield Ordinance No. 1691 and Village of Hales Corners Ordinance No. 90-16 are constitutional. Each ordinance prohibits "cruising."

Brandmiller essentially raises three issues of error: (1) whether the cruising ordinances are unconstitutional; (2) whether the municipalities' cruising ordinances are violative of the police powers doctrine; and (3) whether state law preempted the municipalities' regulation of "cruising." Because the cruising ordinances do not violate any constitutional rights, because they demonstrate a valid exercise of police power, and because the preemption argument raised by appellants was waived at the trial court level, we affirm.

I. BACKGROUND

The municipalities of West Allis, Milwaukee, Greenfield and Hales Corners enacted ordinances barring "cruising." The ordinances are essentially identical in findings, purpose and wording. Each municipality found that a threat to public health, safety and welfare arises from the traffic congestion generated by repetitive unnecessary driving of motor vehicles on certain streets. Based on these findings, each municipality enacted a "cruising" ordinance, the purpose of which was to reduce the dangerous traffic congestion, noise, and air pollution; to ensure access for emergency vehicles on the designated streets; and to reduce impediments to normal traffic flow.

The ordinances ² defined "cruising" as driving a motor vehicle past a designated traffic control point more than twice in any two-hour period during a designated time span. In addition, the ordinance designated specific streets on which it is illegal to "cruise." A violation of the ordinance is penalized by a monetary forfeiture.

On May 26, 1990, West Allis police ticketed Brandmiller for violating the City's cruising ordinance. ³ Brandmiller filed a motion for summary judgment requesting declaratory and injunctive relief. The municipalities similarly sought summary judgment declaring the cruising ordinances constitutional. The trial court granted the municipalities' motion for summary judgment. Brandmiller now appeals.

II. STANDARD OF REVIEW

In reviewing a summary judgment decision, we apply the standards set forth in § 802.08(2), Stats., in the same manner as the trial court. County of Dane v. Norman, 174 Wis.2d 683, 686, 497 N.W.2d 714, 715 (1993). Because there is no disagreement as to the issues of material fact, this court must decide which of the moving parties is entitled to judgment as a matter of law. This court decides questions of law de novo. This same standard applies to constitutional challenges when the facts are not in dispute. State v. Bertrand, 162 Wis.2d 411, 415, 469 N.W.2d 873, 875 (Ct.App.1991).

III. DISCUSSION

1. Constitutional Challenges.

Brandmiller asserts eleven constitutional challenges; however, in reviewing the record and briefs, we recognize that the eleven challenges fall into three categories that we will discuss. Brandmiller claims: (1) the ordinances violate the constitutional right to travel and other constitutional rights emanating therefrom; (2) the ordinances violate the right of privacy; and (3) the ordinances are unconstitutionally overbroad. Any of Brandmiller's challenges not discussed with specificity can be deemed to lack sufficient merit to warrant individual attention. See State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 564, 261 N.W.2d 147, 151 (an appellate court need not address every issue raised), cert. denied, 439 U.S. 865, 99 S.Ct. 189, 58 L.Ed.2d 175 (1978).

In reviewing each constitutional challenge, we note that ordinances are presumed to be constitutional and the burden is on Brandmiller to establish, beyond a reasonable doubt, that the ordinance is unconstitutional. Peppies Courtesy Cab Co. v. City of Kenosha, 165 Wis.2d 397, 401, 475 N.W.2d 156, 158 (1991).

Right to Travel and Other Constitutional Rights

We begin our discussion with Brandmiller's claim that the ordinances are unconstitutional because they violate her right to travel. We acknowledge that this court discussed the right to travel in relation to a cruising ordinance in Scheunemann v. City of West Bend, 179 Wis.2d 469, 478-81, 507 N.W.2d 163, 166-67 (Ct.App.1993). The Scheunemann court, however, did not specifically address whether the right to travel guarantees the right to drive a car repeatedly on the same street. We specifically address this issue and conclude that the right to travel does not guarantee such a right. Our conclusion is based on the meaning and application afforded the "right to travel."

The right to travel, both interstate and intrastate, involves the freedom to migrate from one state to another (the right to change one's residence from one state to another) or the right to change one's residence within a state. See United States v. Guest, 383 U.S. 745, 757-59, 86 S.Ct. 1170, 1177-79, 16 L.Ed.2d 239 (1966); Town of Vanden Broek v. Reitz, 53 Wis.2d 87, 96-98, 191 N.W.2d 913, 918-19 (1971), appeal dismissed, 406 U.S. 902, 92 S.Ct. 1608, 31 L.Ed.2d 813 (1972). Cruising does not involve moving from one residence to another. Cruising involves driving the same motor vehicle three times or more, within a two-hour period, past a traffic control point on a designated street during a designated time period. Because cruising does not involve migration, the right to travel does not protect "cruising."

Brandmiller attempts to bring cruising under the ambit of the right to travel by defining the right to travel, in a more transitory sense, as the freedom to drive repeatedly on the streets of her community. We reject Brandmiller's attempt to expand the meaning of the right to travel. We do acknowledge, however, that transitory movement within a community is a constitutionally guaranteed right--the right of freedom of movement. Ervin v. State, 41 Wis.2d 194, 200-01, 163 N.W.2d 207, 210-11 (1968). The inherent right of freedom of movement involves the freedom to move about on the sidewalks and streets of a community. Id. This right to freely move about one's community is separate and distinct from the right to interstate travel. City of Milwaukee v. K.F., 145 Wis.2d 24, 42, 426 N.W.2d 329, 337 (1988). The ordinances do not prohibit all means of movement, only movement of motor vehicles on designated streets during a designated time period. If Brandmiller wanted to exercise her freedom to move about on the designated street, during the designated time, past a traffic control point more than twice, she is entirely free to do so on foot, on a bicycle, on a bus, in a taxi or by any other means imaginable, except in her car. Travel by car is subject to regulation. See State v. Seraphine, 266 Wis. 118, 123, 62 N.W.2d 403, 406 (1954); State v. Stehlek, 262 Wis. 642, 646, 56 N.W.2d 514, 516 (1953) (the operation of motor vehicles on the highways in this state is a privilege, not a right and is subject to reasonable regulation by the police power). Therefore, we conclude that the cruising ordinances do not violate either the right to travel or the right of freedom of movement.

Brandmiller also claims the cruising ordinances violate liberty rights, inherent rights, natural law, and the Ninth, Tenth and Fourteenth Amendments. ⁴ Each of these challenges is based on the proposition that driving a car is a fundamental right. We reject this proposition for the same reason that an individual's right of freedom of movement is not compromised by the prohibition of "cruising"; that is, driving a car in Wisconsin is a privilege, not a right. Seraphine, 266 Wis. at 123, 62 N.W.2d at 406; Stehlek, 262 Wis. at 646, 56 N.W.2d at 516. In accepting a driver's license from this state, one must accept and agree to abide by all reasonable conditions imposed by the state. Stehlek at 647-48, 56 N.W.2d at 516-18. Therefore, whenever an individual chooses to get behind the wheel of a motor vehicle, that person surrenders individual liberties to the extent necessary for compliance with relevant traffic statutes and ordinances that are necessary for the general welfare of the public.

There is no basis in any of the constitutional premises Brandmiller has raised that enables an individual who has accepted the privilege of driving a car to ignore speed limits, traffic signals or other rules of the road. The cruising ordinances are no different than any other traffic ordinance; they restrict the operation of motor vehicles on the city's streets. The "right to cruise" cannot be found in...