City of Milwaukee v. Wilson

• Decision Date: 06 May 1980
• Docket Number: No. 77-670,77-670
• Citation: 291 N.W.2d 452,96 Wis.2d 11
• Court: Wisconsin Supreme Court
• Parties: CITY OF MILWAUKEE, Plaintiff-Respondent, v. Gwendolyn WILSON, Defendant-Appellant-Petitioner.

Page 452

291 N.W.2d 452

96 Wis.2d 11

CITY OF MILWAUKEE, Plaintiff-Respondent, v. Gwendolyn WILSON, Defendant-Appellant-Petitioner.

No. 77-670.

Supreme Court of Wisconsin.

Argued March 31, 1980.

Decided May 6, 1980.

Michael A. Campbell (argued) and Campbell & Sturm, Milwaukee, on behalf of Wisconsin Civil Liberties Union Foundation, Inc., on brief, for defendant-appellant-petitioner.

Sandra S. Ruffalo, Asst. City Atty. (argued), James B. Brennan, City Atty., and David A. Felger, Deputy City Atty., on brief, for plaintiff-respondent.

BEILFUSS, Chief Justice.

The defendant-appellant, Gwendolyn Wilson, was found guilty in Milwaukee county court of loitering with intent to solicit for prostitution contrary to sec. 106.31(1)(g) of the Municipal Code for the City of Milwaukee. An appeal was taken to the circuit court for Milwaukee county and the judgment was affirmed. A second appeal was taken to the court of appeals, and again the judgment was affirmed.

We granted defendant's petition for review because of the importance of the constitutional issues raised and the need for clarification in this difficult area of law. For the reasons set forth below, we also affirm.

The ordinance which defendant was found to have violated reads as follows:

"SECTION 106.31. LOITERING OR PROWLING. (1) Whoever does any of the following within the limits of the city of Milwaukee may be fined not more than five hundred ($500) or upon default of payment thereof, shall be imprisoned in the house of correction of Milwaukee county for not more than 90 days:

"(g) To loiter in or near any throughfare (sic) or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Among the circumstances which may be considered in determining whether such purpose is manifested: that such person is a known prostitute or panderer, repeatedly beckons to, stops or attempts to stop, or engages male or female passersby in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waiving of arms or any other bodily gesture. The violator's conduct must be such as to demonstrate a specific intent to induce, entice, solicit or procure another to commit an act of prostitution. No arrest shall be made for a violation of this subsection unless the arresting officer first affords such persons an opportunity to explain such conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose. As used in this subsection:

"1. 'Public place' is an area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), and buildings open to the general public including those which serve food or drink, or provide entertainment, and the doorways and entrances to buildings of dwellings and the grounds enclosing them;

"2. 'Known prostitute or panderer' means a person who within one year previous to the date of arrest for violation of this section, has within the knowledge of the arresting officer been convicted in Milwaukee County or Circuit Court of an offense involving prostitution."

Prior to trial the defendant moved to dismiss the complaint against her on the grounds that sec. 106.31(1) (g) was unconstitutionally vague and overbroad. The motion was denied and the case was tried to the court.

At trial the city presented the testimony of two undercover police officers. Both testified that on April 16, 1976, between 1:55 and 2:30 a. m., they observed the defendant at the intersection of North 5th Street and West Wisconsin Avenue in the city of Milwaukee. They stated that during the period in which they were observing her, the defendant stopped several male pedestrians on the sidewalk and appeared to engage them in brief conversations. She also appeared to exchange words with the male drivers of two automobiles which had pulled over and parked next to the curb.

The officers testified that in each instance it was the defendant who initiated the contact with the pedestrians by walking up to them as they were passing by. They also stated that at least one of the automobiles pulled up to the curb only after the defendant had beckoned to it. Each encounter lasted approximately one or two minutes, but neither of the officers were able to testify as to what, if anything, was said by the defendant. When one of the officers approached the defendant and asked what she was doing in the area, she simply looked at him and laughed. It was at this point that she was arrested.

The officers also testified at trial that they knew the defendant because she had previously been arrested for prostitution and loitering. In addition, one of the officers stated that the area in which they observed the defendant was known to have a high concentration of prostitutes.

Following its presentation of the above-summarized testimony, the city rested. The defendant presented no evidence of her own, but moved for dismissal on the ground that the evidence was insufficient to sustain a finding that she had violated sec. 106.31(1)(g).

The trial court denied defendant's motion and found her guilty of loitering in violation of the ordinance. Defendant was ordered to pay a fine of $200.

The principal issues presented on this review are:

(1) Is Milwaukee Ordinance sec. 106.31(1)(g) unconstitutionally vague and overbroad?

(2) Was the evidence adduced at trial sufficient to sustain the trial court's finding that the defendant had violated Milwaukee Ordinance sec. 106.31(1)(g)?

We hold that Milwaukee Ordinance sec. 106.31(1)(g) represents a constitutionally permissible exercise of the city's police power and that the evidence presented at trial was sufficient to support the trial court's finding of guilt.

Defendant's primary challenge in this case is to the constitutionality of the ordinance she was found to have violated. She claims that the city's ordinance is unconstitutional because it is both vague and overbroad.

A statute or ordinance 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. ¹ The test to determine vagueness is whether the statute or ordinance is so obscure that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability. ² In order to withstand a vagueness challenge, it is not necessary for a law to attain the precision of mathematics or science, but it must be sufficiently definite so that potential offenders who wish to abide by the law are able to discern when the region of proscribed conduct is neared and those who are charged either with enforcing or applying it are not relegated to creating their own standards of culpability instead of applying the standards prescribed in the law. ³

In State v. Starks, supra, the court struck down as vague and overbroad a general vagrancy statute which defined vagrant to mean:

"A person found in or loitering near any structure, vehicle or private grounds who is there without the consent of the owner and is unable to account for his presence; . . ."

The court carefully reviewed decisions from other jurisdictions which had passed on the constitutionality of similar statutes and concluded that statutory prohibitions against loitering were impermissibly vague unless the term "loitering" was limited as to scope, place or purpose. The use of the term "loitering" without such restrictions, we said, "renders the statute vague as it fails to provide fair notice of the proscribed conduct, it classifies innocent conduct as criminal, and it is susceptible to arbitrary law enforcement." State v. Starks, supra, 51 Wis.2d at 262, 186 N.W.2d at 248.

The defendant contends that sec. 106.31(1)(g) of the ordinance suffers from the same defect as the vagrancy statute challenged in Starks. She argues that the city has not limited its prohibition of loitering to those areas it has an interest in protecting and, further, that the city's attempt to limit the prohibited loitering to conduct which manifests a particular criminal purpose fails to create a definite realm of illegal conduct. Thus, she argues, the city's ordinance fails to provide the degree of certainty required by the state and federal constitutions.

The conduct which sec. 106.31(1)(g) seeks to proscribe is described as loitering in a manner and under circumstances which manifest the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. The ordinance lists several circumstances which may be considered in determining whether the required purpose is manifested. It expressly states: "The violator's conduct must be such as to demonstrate a specific intent to induce, entice, solicit or procure another to commit an act of prostitution."

Although the city's prohibition of loitering is not restricted to certain specified areas, it is only a limited kind of loitering that is prohibited. The ordinance is directed only to loitering in a manner and under such circumstances that manifest an intent to induce, entice, solicit or procure another to commit an act of prostitution. This language sufficiently defines the conduct which the city seeks to proscribe such that one inclined to obey the ordinance would be able to understand what is and is not allowed. The requirement that there be overt conduct which manifests an unlawful purpose accompanied by a specific intent to accomplish that purpose insures that the ordinance cannot properly be applied to innocent activity such that it could become merely a "convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.' " Papachristou v. City of...