City of Milwaukee v. Burnette

• Decision Date: 09 October 2001
• Docket Number: No. 00-2308.,00-2308.
• Citation: 2001 WI App 258,248 Wis.2d 820,637 N.W.2d 447
• Parties: CITY OF MILWAUKEE, Plaintiff-Respondent, v. Michelle M. BURNETTE, Yolanda C. Jenkins, Vivian V. Nicholson, Theresa A. Roth, and Patricia Wheeler, Defendants-Appellants, Tanya M. BEAN, Marvin T. Blount, Tracy A. Blue, Jansee R. Boens, Schonda F. Butcher, Teresa M. Chojnacki, Deborah A. Darby, Ruthann Dzibinski, Carmen M. Estrada, Gloria J. Fulford, Marsha A. Greene, Patricia A. Greer, Kelly J. Hirschfied, Lora I. Hudson, Faith A. Jefferson, Sandra Jefferson, Precious L. Johnson, Candice K. Kane, Mary B. Koller, Linda J. Kroeck, Tammie L. Lasko, Therese S. Lumley, Annette M. Matthews, Christine S. McEvoy, Evelyn Melendez, Joy R. Nevels, Juantean L. Nolan, Valerie D. Pagan, June M. Paquette, Victoria L. Pharr, Linda A. Pionter, Michelle Profit, Linda M. Prophett, Carmen Rodriguez, Kim M. Rossettie, Lisa A. Ruiz, Lynette D. Sechrest, Mary L. Sandlin, Tanya R. Sears, Cynthia F. Singh, Melissa A. Tavidian, Trina M. Thomas, Maria J. Vazquez, Denise A. West, Bobbie J. Williams, Tonni R. Wilson, Terry A. Wuerzberger, Linda M. Yoebstl, Christine Adams, Lakesa L. Anderson, Doreen Arvelo, Veronica L. Batton, Melissa Berry, Patricia Burgess, Cynthia M. Cook, Pamela D. Cook, Lillian J. Feliciano, Rose M. Garcia, Tara Greenwood, Marie T. Guyton, April R. Hancock, Lacretha Jackson, Gerry S. Kearney, Terri J. Martin, Lisa A. Mayes, Theresa A. Northern, Otis Rawls, Jr., Yoland D. Redditt, Linda D. Robinson, Carmen M. Taylor, Debra L. Williams, Luberta Williams, Loteria H. Willis, Marsha Vann, Diane M. Williams, Genoria Morris, Carol R. Titra, Jacqulynn E. Frazer, Sandra Butler, Debbie R. Eichorn, Darlene M. Manns, Lisa M. Gardner, Danita L. Henderson, Genice B. Jackson, Jennifer R. Wright, Carolyn A. Wynos, Debra S. Blachowski, Helaine D. Burks, Dawn M.Camus, Karen A. Chirpke a/k/a Karen A. Zembrzuwski, Jennifer L. Curtis, Sheila C. Hinton, Patricia D. Holmon, Gerry S. Kearney, John W. Keepers, Joy L. Landgraf, Polly A. Lausch, Lara L. Lewis, Cheryl A. Marunowski, Patricia A. McCoy, Evelyn Melendez, Floura L. Owens, Lorraine Perry, Sheila M. Pocan, Helen M. Poe, Cheryl Y. Pope, Laurie A. Powell, Kimberly D. Prather, Lucy M. Santana, Manessa L. Smith, Rosanna M. Wheeler, Marie A. Wison a/k/a Marie Kosmicki, and Sharon L. Winzer, Defendants.
• Court: Wisconsin Court of Appeals

248 Wis.2d 820

2001 WI App 258

637 N.W.2d 447

CITY OF MILWAUKEE, Plaintiff-Respondent, v. Michelle M. BURNETTE, Yolanda C. Jenkins, Vivian V. Nicholson, Theresa A. Roth, and Patricia Wheeler, Defendants-Appellants,¹ Tanya M. BEAN, Marvin T. Blount, Tracy A. Blue, Jansee R. Boens, Schonda F. Butcher, Teresa M. Chojnacki, Deborah A. Darby, Ruthann Dzibinski, Carmen M. Estrada, Gloria J. Fulford, Marsha A. Greene, Patricia A. Greer, Kelly J. Hirschfied, Lora I. Hudson, Faith A. Jefferson, Sandra Jefferson, Precious L. Johnson, Candice K. Kane, Mary B. Koller, Linda J. Kroeck, Tammie L. Lasko, Therese S. Lumley, Annette M. Matthews, Christine S. McEvoy, Evelyn Melendez, Joy R. Nevels, Juantean L. Nolan, Valerie D. Pagan, June M. Paquette, Victoria L. Pharr, Linda A. Pionter, Michelle Profit, Linda M. Prophett, Carmen Rodriguez, Kim M. Rossettie, Lisa A. Ruiz, Lynette D. Sechrest, Mary L. Sandlin, Tanya R. Sears, Cynthia F. Singh, Melissa A. Tavidian, Trina M. Thomas, Maria J. Vazquez, Denise A. West, Bobbie J. Williams, Tonni R. Wilson, Terry A. Wuerzberger, Linda M. Yoebstl, Christine Adams, Lakesa L. Anderson, Doreen Arvelo, Veronica L. Batton, Melissa Berry, Patricia Burgess, Cynthia M. Cook, Pamela D. Cook, Lillian J. Feliciano, Rose M. Garcia, Tara Greenwood, Marie T. Guyton, April R. Hancock, Lacretha Jackson, Gerry S. Kearney, Terri J. Martin, Lisa A. Mayes, Theresa A. Northern, Otis Rawls, Jr., Yoland D. Redditt, Linda D. Robinson, Carmen M. Taylor, Debra L. Williams, Luberta Williams, Loteria H. Willis, Marsha Vann, Diane M. Williams, Genoria Morris, Carol R. Titra, Jacqulynn E. Frazer, Sandra Butler, Debbie R. Eichorn, Darlene M. Manns, Lisa M. Gardner, Danita L. Henderson, Genice B. Jackson, Jennifer R. Wright, Carolyn A. Wynos, Debra S. Blachowski, Helaine D. Burks, Dawn M.Camus, Karen A. Chirpke a/k/a Karen A. Zembrzuwski, Jennifer L. Curtis, Sheila C. Hinton, Patricia D. Holmon, Gerry S. Kearney, John W. Keepers, Joy L. Landgraf, Polly A. Lausch, Lara L. Lewis, Cheryl A. Marunowski, Patricia A. McCoy, Evelyn Melendez, Floura L. Owens, Lorraine Perry, Sheila M. Pocan, Helen M. Poe, Cheryl Y. Pope, Laurie A. Powell, Kimberly D. Prather, Lucy M. Santana, Manessa L. Smith, Rosanna M. Wheeler, Marie A. Wison a/k/a Marie Kosmicki, and Sharon L. Winzer, Defendants.

No. 00-2308.

Court of Appeals of Wisconsin.

Submitted on briefs September 4, 2001.

Decided October 9, 2001.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Pamela S. Moorshead of Buting & Williams, S.C., Brookfield.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and David R. Halbrooks and Genevieve O'Sullivan-Crowley, assistant city attorneys, Milwaukee.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

¶ 1. FINE, J.

Michelle Burnette, Yolanda Jenkins, Vivian Nicholson, Theresa Roth, and Patricia Wheeler appeal from a judgment permanently enjoining them from engaging in prostitution-related activities within certain specified areas in the City of Milwaukee; namely:

• "Engaging in, beckoning to stop, or engaging male or female passersby in conversation, or stopping or attempting to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture, or yelling in a loud voice";

• "Having or offering to have or requesting to have nonmarital sexual intercourse for anything of value; committing or offering to commit an act of sexual gratification, in public or private, involving the sex organ of one person and the mouth or anus of another for anything of value; masturbating a person or offering to masturbate a person for anything of value; and committing or offering to commit or requesting to commit an act of sexual contact for anything of value";

• "Walking off public sidewalks into the City streets to meet occupied motor vehicles to discuss any activity listed [in the immediately preceding bulleted paragraph] or to direct the vehicle operator acting in concert with the [person subject to the injunction] to a destination other than the point of initial contact between the [person subject to the injunction] and the operator such as directing the vehicle off of a high volume traffic street to a more secluded street in which the [person subject to the injunction] walks to the vehicle and then enters the vehicle at the new vehicle location";

• "Waiting at bus stops for more than one cycle of busses [sic] or waiting at bus stops with no money or bus transfers on their person or standing at pay phones for lengthy periods of time without making an actual telephone call";

• "Loitering in doorways of businesses whether open or closed, sitting on the porch or standing anywhere on private residential property without the permission of the property owner or a legal resident of the property";

• "Standing, sitting, walking, driving, gathering or appearing anywhere in public view within 25 (twenty-five) feet of any other [person subject to the injunction] engaged in any of the above listed activities."

The injunction was entered by the trial court on an amended complaint filed by the City alleging that the appellants were prostitutes and that their prostitution activities in specified areas were a "public nuisance" under WIS. STAT. § 823.02. Section 823.02 authorizes a "city" to bring "[a]n action to enjoin a public nuisance."² ¶ 2. The case was decided on summary judgment. In support of its motion for summary judgment, the City submitted the following evidentiary material:

1. An affidavit executed in February of 2000 by a Milwaukee police officer assigned to the Vice Control Division averring that:

• the appellants had been previously arrested for prostitution;

• that he had seen Burnette "approximately six times in the past year loitering and flagging down cars"; and

• that "[o]n several of these occasions, Ms. Burnette fled the scene after recognizing me while I was working as an undercover officer."

None of these averments was disputed by the appellants.

2. An affidavit executed in July of 1998, by the same officer averring that:

• the police department gets "public complaints regarding street prostitution," including "complaints about prostitution on the City streets" and "complaints about prostitutes working on adjoining properties or even on the complainant's own property";

• "the type of enforcement required to control street prostitution" is dangerous because the "officers are required to work singularly undercover" and cannot "wear bullet proof vests or sidearms while interacting with the street prostitutes" because the officers "are required to appear as prostitution customers";

• street prostitutes frequently "carry weapons," including "sharpened metal objects," knives with long blades, and "razor blades," and the officers are vulnerable to attack because they are undercover.

None of these averments was disputed by the appellants.

3. The testimony from a City police captain in charge of the Vice Control Division. The captain told the trial court that when he drives down streets in areas where his officers are operating, prostitutes, not aware that he is a police officer, try to get his attention by yelling or waiving at him, and, indeed, that some were "actually jumping up and down to gain [his] attention." He also testified that he "often" sees those whom he believes are "customers for prostitutes driving up and down the streets" and that they would drive "very slowly in the right hand lanes, constantly looking at the sidewalk, stopping, slowing down, when they see a single female walking." He said that he sees "the girls or ladies on the street sometime making the initial contact with the cars that are stopping and passing."

None of this testimony was disputed by the appellants.

¶ 3. The police captain also testified that he has "seen prostitutes that I've picked up standing at bus stops, standing at pay phones, acting like they're talking on the phone." He explained that they were "acting" because he never would see them "actually talking," but, rather, "be on the phone for like 45 minutes and just listening . . . constantly looking around." He never saw them put any money into the coin operated telephones. He also told the trial court that the prostitutes would wait at bus stops, but never get on any of the buses, and that they would linger on private property, "standing in doorways, closed and open businesses."

None of this testimony was disputed by the appellants.

4. Testimony from a person who rehabilitates and manages rental property in one of the areas included in the injunction. He told the trial court that prostitution drives away prospective tenants who, when "they see prostitutes and drug addicts on the street . . . won't even come in to see the apartments despite all the work we've done." He also testified that he loses tenants who have moved in because of prostitution activity in the area.

None of this testimony was disputed by the appellants.

5. Testimony from a woman who lives in one of the areas included in the injunction that she does not feel comfortable leaving her apartment without either her two large dogs or her boyfriend "because it's happened many, many times where I've been approached, asked what I will do for ten dollars, or just other basic questions about assuming that I'm a prostitute because of where I live, and because I'm on the streets."

None of this testimony was disputed by the appellants.

¶ 4. Although the appellants were joined as defendants after the trial court held the evidentiary hearing, and thus did not have the chance to either crossexamine or present evidence, they did not ask the trial court either to re-open the hearing or to hold a new hearing. Rather, they submitted affidavits executed by two of them, Burnette and Jenkins, on March 2, 2000, as well as one executed by Eleanor Miller, Ph.D., an assistant professor of sociology and former chair of the sociology...