City of Milwaukee v. K.F., s. 87-0936

Decision Date20 July 1988
Docket Number87-0937,Nos. 87-0936,s. 87-0936
Citation145 Wis.2d 24,426 N.W.2d 329
PartiesCITY OF MILWAUKEE, Plaintiff-Respondent, v. K.F., Defendant-Appellant. CITY OF MILWAUKEE, Plaintiff-Respondent, v. D.A., Defendant-Appellant.
CourtWisconsin Supreme Court

Robert M. Courtney, argued, and Courtney, Pledl & Molter, S.C., Madison, for defendants-appellants.

Scott G. Thomas, Asst. City Atty., argued, with whom on the brief Grant F. Langley, City Atty., for plaintiff-respondent.

CECI, Justice.

This case is before the court on petition to bypass the court of appeals, pursuant to section 808.05, Stats. The issue presented concerns the constitutionality of Milwaukee's curfew ordinance, Milwaukee Code of Ordinances, section 106-23. We find the ordinance constitutional and, therefore, affirm the order of the trial court.

This case arose from citations issued by the Milwaukee Police Department on January 4, 1986, to approximately 95 youths who were attending a dance sponsored by the University of Wisconsin Black Student Union for the purpose of promoting higher education. The dance was held at the War Memorial Center in Milwaukee. In addition to approximately 400 youths, several adults were present at the dance, including those overseeing the event and operating equipment, security personnel, and police officers.

One of the Milwaukee police officers who was involved in the enforcement of the ordinance at the dance was a member of the gang squad and testified that he had learned that a gang confrontation which had occurred in another part of the city on January 4, 1986, involving the display of weapons, was to be continued at the War Memorial Center that evening. The officer informed the individual in charge of security at the War Memorial Center that there was a possibility of gang activity and advised security personnel to be alert to certain indications of gang activity.

The police returned to the War Memorial Center at about 10:00 p.m. after receiving several complaints of vehicle thefts in the area which, according to the police officer, suggested the presence of gangs. At that time, the officer advised one of the individuals in charge of the dance of the curfew ordinance and requested that an announcement be made that youths under age 17 leave the premises by the 11:00 p.m. curfew time. The parties stipulated that the announcement was made pursuant to this instruction. The officers then departed, but returned shortly after 11:00 p.m., at which time they were summoned by a security guard due to an incident involving the vandalization of vending machines at the War Memorial Center. In the course of investigating this incident, the police discovered graffiti associated with certain gangs.

Subsequently, the police officers entered the dance hall and observed about 400 people in attendance, 70 of whom were estimated to be under the age of 17, including some youths believed to be 11 or 12 years old. The officer advised a supervisor of the dance that because there appeared to be individuals under the age of 17, unaccompanied by a parent or adult, in attendance at the dance after the 11:00 p.m. Milwaukee curfew time, the dance was to be shut down.

When the dance was terminated, individuals who appeared to be under the age of 17 were stopped and questioned. Those who were under the age of 17 were arrested and taken to the police administration building. The police officer testified that youths whose parents had arrived to pick them up at the War Memorial Center were permitted to leave without the issuance of citations and further stated that any juveniles who had wished to call their parents were afforded the opportunity to do so. However, the appellants testified that they were not permitted to call their parents at the time the dance was terminated. 1

The appellants, K.F. and D.A., were at the dance and were issued citations for violation of the Milwaukee curfew ordinance. K.F. was 15 years old, and D.A. was 16 years old at that time. The appellants pleaded not guilty and requested a jury trial. Appellants filed motions to dismiss the charges, challenging the constitutionality of the curfew ordinance on the basis that it was unconstitutionally vague and overbroad. The trial court issued a decision on November 25, 1986, denying the motion to dismiss and finding the ordinance constitutional. The appellants waived their right to a jury trial, and a trial before the court was held. The trial judge rendered a decision, finding the appellants guilty of violating the curfew ordinance. Suspended sentences were ordered for both appellants. A written order finding K.F. and D.A. guilty of violation of the curfew ordinance was entered on April 10, 1987. 2 Appellants appealed from this order, which we now affirm.

The text of the challenged Milwaukee ordinance is as follows:

"Loitering of Minors (Curfew Hours). It shall be unlawful for any person under the age of seventeen (17) years to congregate, loiter, wander, stroll, stand or play in or upon the public streets, highways, roads, alleys, parks, public buildings, places of amusement and entertainment, vacant lots or any public places in the city of Milwaukee, either on foot or in or upon any conveyance being driven or parked thereon, between the hours of 11 p.m. and 5 a.m. of the following day, official city time, unless accompanied by his or her parent, guardian or other adult person having his or her care, custody or control." Milwaukee Code of Ordinances, section 106-23. 3 The appellants challenge the Milwaukee ordinance on separate but related grounds: unconstitutional vagueness and overbreadth, contrary to the first and fourteenth amendments of the United States Constitution and corresponding provisions of the Wisconsin Constitution. See Wis. Const. art. I, sections 1, 3, 4, and 18. Both vagueness and overbreadth challenges constitute assertions that the ordinance is unconstitutionally imprecise. However, whereas a vagueness challenge draws its essence from procedural due process, constitutional overbreadth concerns the distinct principle of substantive due process. See Bachowski v. Salamone, 139 Wis.2d 397, 406, 411, 407 N.W.2d 533 (1987).

We first address the appellants' vagueness challenge. The concept of vagueness may be generically described as resting on the "constitutional principle that procedural due process requires fair notice and proper standards for adjudication." State ex rel. Hennekens v. City of River Falls Police & Fire Commission, 124 Wis.2d 413, 420, 369 N.W.2d 670, reconsideration denied 126 Wis.2d 39, 373 N.W.2d 672 (1985). The constitutional demand of procedural due process is not a requirement that the statute or ordinance be drafted with mathematical exactitude. As stated by the United States Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972): "Condemned to the use of words, we can never expect mathematical certainty from our language." Accordingly, the standard applied to examine a statute or ordinance has been expressed as follows: "A fair degree of definiteness is all that is required to uphold a statute or regulation, and a statute or regulation will not be voided merely by showing that the boundaries of the area of proscribed conduct are somewhat hazy." Hennekens, 124 Wis.2d at 420, 369 N.W.2d 670 (citing State v. Courtney, 74 Wis.2d 705, 710-11, 247 N.W.2d 714 (1976)). See also State v. McCoy, 143 Wis.2d 274, 286, 421 N.W.2d 107 (1988). We have further explained:

" '... Before a ... rule may be invalidated for vagueness, there must appear some ambiguity or uncertainty in the gross outlines of the duty imposed or conduct prohibited such that one bent on obedience may not discern when the region of proscribed conduct is neared, or such that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the ... rule.' " Hennekens, 124 Wis.2d at 420-21, 369 N.W.2d 670 (quoting Courtney, 74 Wis.2d at 711, 247 N.W.2d 714).

Prior to embarking upon an analysis of the ordinance upon vagueness grounds, this court must first determine whether the appellants' conduct is clearly proscribed by the ordinance because "a plaintiff whose conduct is clearly proscribed by the statute in question cannot complain of the vagueness of a law as applied to others; the law must be impermissibly vague in all of its applications." State ex rel. Smith v. Oak Creek, 139 Wis.2d 788, 802-03, 407 N.W.2d 901 (1987). 4 Rules of standing have been liberalized with respect to overbreadth challenges such that even where the challenger's conduct might constitutionally be regulated, the challenger "may hypothesize situations where the statute is so broad that it would chill legitimate activities and apply to fact situations where the regulation sought to be imposed would violate fundamental first-amendment rights." State v. Tronca, 84 Wis.2d 68, 89, 267 N.W.2d 216 (1978). In Oak Creek, first amendment challenges were not implicated, so the court did not resolve the issue of whether standing should be similarly liberalized with respect to vagueness claims. Oak Creek, 139 Wis.2d at 802, 407 N.W.2d 901. We now determine that even where first amendment rights are implicated, a challenger whose conduct was clearly prohibited by the terms of a statute or ordinance does not have standing to challenge the vagueness of a statute or ordinance as hypothetically applied to the conduct of others; there is absolutely no nexus between the status of an individual whose conduct is clearly prohibited by a regulation and a constitutional challenge asserting an absence of fair notice. See Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974). See also Tronca, 84 Wis.2d at 89, 267 N.W.2d 216; L. Tribe, American Constitutional Law, § 12-32, at 1036 (2d ed. 1988). 5 See also ...

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