Brandmiller v. Arreola

• Decision Date: 13 March 1996
• Docket Number: No. 93-2842,93-2842
• Citation: 544 N.W.2d 894,199 Wis.2d 528
• Parties: , 64 USLW 2598 Diane BRANDMILLER, Shane Evans, Jodie Kowalski, Wendy Miller and Pamela Rogers, Plaintiffs-Appellants-Petitioners, 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: Wisconsin Supreme Court

Page 894

544 N.W.2d 894

199 Wis.2d 528, 64 USLW 2598

Diane BRANDMILLER, Shane Evans, Jodie Kowalski, Wendy Miller and Pamela Rogers, Plaintiffs-Appellants-Petitioners, 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.

Supreme Court of Wisconsin.

Argued Nov. 28, 1995.

Decided March 13, 1996.

Appeal from the Circuit Court of Milwaukee County; Robert J. Miech, Judge.

For the plaintiffs-appellants-petitioners there were briefs by William A. Pangman Rex R. Anderegg and William A. Pangman, S.C., Waukesha and oral argument by William A. Pangman.

For the defendants-respondents there was a brief by Scott E. Post, City of West Allis, Roger C. Pyzyk, City of Greenfield, Kurt A. Behling, City of Milwaukee, Daniel J. Sielaff, Village of Hales Corners and oral argument by Scott E. Post & Roger C. Pyzyk.

BABLITCH, Justice.

Brandmiller, et al. (Brandmiller) challenge the constitutionality of various "cruising" ordinances enacted by the municipalities of West Allis, Milwaukee, Greenfield and Hales Corners (the Municipalities). Brandmiller argues that the cruising ordinances are unconstitutional under both the federal and the Wisconsin constitution because they violate the fundamental right to travel and are overbroad. The Municipalities argue that the ordinances do not impinge upon any fundamental right since they are merely traffic regulations. Although we recognize a fundamental right to intrastate travel, we hold that the cruising ordinances are constitutional as they are appropriate time, place and manner restrictions on the right to travel. In addition, the ordinances are not overbroad. Accordingly, we affirm.

The facts are undisputed. The Municipalities 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. "Cruising" caused many problems which the cities could not control by the enforcement of existing laws or through increased police presence. The affidavit of Chester D. Kass, Chief of Police for the City of Greenfield, explains the severity of these problems:

That the cruising increased to such a volume ... that it created continual traffic congestion, specifically in the evening hours, which resulted in bumper-to-bumper traffic moving at very slow speeds to traffic stopped in a standing position for long periods of time; restricting patrons of ... business lots because of their inability to enter a normal flow of traffic; preventing emergency vehicles from properly and expeditiously responding to emergencies ... as a result of the congested bumper-to-bumper traffic conditions....

That other problems caused by the cruising include excessive noise from the volumes of vehicles and people on foot ... excessive noise from the honking of horns, racing of engines and squealing of tires; increased automobile accidents and traffic offenses; other acts of disorderly conduct....

In addition, John C. Butorac, Police Chief of the City of West Allis, also stated, in part:

That cruising along Hwy. 100 has created traffic congestion which, at times, has resulted in: bumper to bumper traffic which moves at very slow speeds or not at all; ... situations in which emergency vehicles have been unable to respond to emergencies [or] have been delayed in their response, or have [had] to take extraordinary action such as driving on the median or sidewalk.

Based on these findings, each municipality enacted a "cruising" ordinance. ¹ The Municipalities claim that the ordinances are necessary to reduce 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 define "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 ordinances designate specific streets on which it is illegal to cruise. A violation is penalized by a monetary forfeiture. Finally, the cruising ordinances contain specific exceptions that exempt the following: governmental vehicles, emergency vehicles, taxicabs, buses, and other vehicles being driven for business purposes.

On May 26, 1990, the West Allis police ticketed Diane Brandmiller for violating the city's cruising ordinance. ^{2 2} Brandmiller filed a motion for summary judgment requesting declaratory and injunctive relief. The Municipalities similarly sought summary judgment declaring the cruising ordinances constitutional. The circuit court granted the Municipalities' motion for summary judgment. The court of appeals affirmed.

Brandmiller raises various state and federal constitutional challenges to the Municipalities' cruising ordinances. We start with the presumption that the ordinances are constitutional and that, in order to prevail, Brandmiller must demonstrate otherwise beyond a reasonable doubt. Richland School Dist. v. DILHR, 174 Wis.2d 878, 905, 498 N.W.2d 826, 836 (1993).

We begin our discussion with Brandmiller's claim that the ordinances are unconstitutional because they violate her right to travel. ³ As to the constitutional aspects of this case, our review is de novo. State v. Bertrand, 162 Wis.2d 411, 415, 469 N.W.2d 873 (1991).

The right to travel has long been recognized by the courts as inherent in our constitutional concepts of personal liberty. Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969). The Supreme Court acknowledged that to enjoy the freedom to travel, citizens must be allowed to move "throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict that movement." Id. at 629, 89 S.Ct. at 1329. Because that right is fundamental, the Court reasoned, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling government interest, is unconstitutional." Id. at 634, 89 S.Ct. at 1331. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Court stated that "[t]he right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment." Id. at 125, 78 S.Ct. at 1118. The Supreme Court has firmly established interstate travel as a protected right that can be found in numerous constitutional provisions, but the Court has mentioned the right to travel intrastate only in passing. In Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), the Court recently revisited the travel doctrine. The Court noted that the " 'freedom to travel throughout the United States has long been recognized as a basic right under the Constitution' ... [a]nd, it is clear that the freedom to travel includes the 'freedom to enter and abide in any State in the Union.' " Id. at 901-02, 106 S.Ct. at 2320. The holding in Soto-Lopez, although recognizing the importance of an individual's travel within the boundaries of a state, indicates that the Supreme Court has not yet squarely addressed whether there exists a fundamental right to travel intrastate; instead, this issue has been left to the lower federal courts. See Comment, Wisconsin, A Constitutional Right to Intrastate Travel, and AntiCruising Ordinances, 78 Marquette Law Review 735, 742 (1995).

Under the Wisconsin Constitution, however, this court explicitly recognized the right to travel intrastate in Ervin v. State, 41 Wis.2d 194, 200, 163 N.W.2d 207 (1968). Ervin involved a constitutional challenge to a curfew proclamation imposed by the mayor of Milwaukee under the emergency powers statute because of riots during the summer of 1967. In Ervin we stated:

The freedom to move about is a basic right of citizens under our form of government, in fact, under any system of ordered liberty worth the name. It was not added to our United States Constitution by the enactment of the first ten amendments. It is inherent, not only in the Bill of Rights, but in the original document itself. It has properly been termed "engrained in our history" and "a part of our heritage."

Id. at 200-01, 163 N.W.2d 207.

Ervin also recognized that the right to travel is interwoven with the full enjoyment of other fundamental rights retained by the people. Among the freedoms intertwined with the right to travel is the First Amendment's guarantee of the right to assemble.

We would not deny the relatedness of the rights guaranteed by the first amendment to freedom of travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom to worship is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the streets of a community, opportunities for freedom of speech are sharply limited. Freedom of movement is inextricably involved with freedoms set forth in the first amendment.

Id. at 200, 163 N.W.2d 207.

Twenty years after Ervin, this court in City of Milwaukee v. K.F., 145 Wis.2d 24, 426 N.W.2d 329 (1988), likewise reminded: "This right to be free to move about within one's own state is inherent and distinct from the right to interstate travel...." Id. at 42, 426 N.W.2d 329. In K.F., this court considered the constitutionality of a curfew ordinance. The appellants argued that the ordinance unconstitutionally intruded upon the freedom of movement and travel, and the freedom of association and assembly. Id. at 40, 426 N.W.2d 329. This court upheld the constitutionality of the...