City of Oak Creek v. King

Decision Date23 February 1989
Docket NumberNo. 87-1305,87-1305
Citation148 Wis.2d 532,436 N.W.2d 285
Parties, 16 Media L. Rep. 1273 CITY OF OAK CREEK, Plaintiff-Respondent, v. Peter Ah KING, Defendant-Appellant.
CourtWisconsin Supreme Court

Robert A. Christensen (argued), and Foley & Lardner, Milwaukee (in Court of Appeals), for defendant-appellant.

Lawrence J. Haskin (argued), Oak Creek (in Court of Appeals), for plaintiff-respondent.

CECI, Justice.

This case is before this court on certification from the court of appeals, pursuant to sec. (Rule) 809.61, Stats. The defendant-appellant (appellant) appeals from a judgment of the circuit court for Milwaukee county, Clarence R. Parrish, circuit judge, finding the appellant guilty of disorderly conduct in violation of City of Oak Creek Municipal Ordinance Sec. 9:947:01. The appellant raises three issues for review. The first issue is whether the appellant's conduct in this case constitutes disorderly conduct under City of Oak Creek Municipal Ordinance Sec. 9:947:01. The second issue is whether the City of Oak Creek Municipal Ordinance Sec. 9:947:01, as applied, is void for vagueness. The third issue is whether the appellant as a news gatherer had a right of access to the scene of this airplane crash beyond the general public's right to access under the first and fourteenth amendments to the United States Constitution, art. I, sec. 3 of the Wisconsin Constitution, or Wisconsin law. We affirm the decision of the circuit court finding the appellant guilty of disorderly conduct in violation of sec. 9:947:01. In addition, we hold that sec. 9:947:01 as applied in this case is not unconstitutionally vague. Finally, we hold that the appellant as a news gatherer had no first amendment right of access to the scene of this airplane crash beyond the general public's right to access.

The facts of this case are as follows. At approximately 3:20 p.m. on September 6, 1985, Midwest Express Flight 105 crashed shortly after takeoff from General Mitchell Field in the city of Oak Creek, Milwaukee county, Wisconsin. The crash occurred in a nonpublic area which is owned by Milwaukee county and is administered by the General Mitchell Field airport administration.

Shortly after the crash occurred, Lieutenant Thomas Orlick of the Milwaukee county sheriff's department, who was in charge of airport security, ordered the crash site secured, i.e., that officers should keep everyone out except emergency personnel and equipment. Pursuant to this order, a roadblock was established on East College Avenue just east of the intersection of East College Avenue and South Howell Avenue by Detective Virgil White and another officer of the Oak Creek police department. East College Avenue provided the sole means of direct access to the crash site by emergency vehicles and personnel. Detective White was given instructions to prohibit any traffic except emergency vehicles from traveling farther east on East College Avenue. Detective White testified that at approximately 4:00 p.m., a light-colored, unmarked sedan proceeded through the roadblock, heading east on East College Avenue, by following an emergency vehicle through the roadblock. Detective White was forced to leave his post at the roadblock to pursue the unmarked sedan which went through the roadblock without stopping.

Detective White located the vehicle parked on East College Avenue near an access road which led to the crash site. As Detective White approached the vehicle from behind, the four occupants of the vehicle, who were employed by WTMJ-TV of Milwaukee, were getting their camera equipment from the trunk of the vehicle. Detective White informed the four individuals that they were in a restricted area and that they would have to leave. One of the individuals then asked Detective White if they, with the exception of the driver, could walk back to the nonrestricted area along East College Avenue. Detective White agreed with this arrangement. The appellant, however, appeared to have not heard Detective White's order, because the appellant started to walk away from Detective White along the right side of the vehicle in which he had been riding. Detective White walked over to the appellant and advised him that he was also addressing him and that he would also have to leave.

At this point, the driver turned the vehicle around and proceeded west on East College Avenue, away from the restricted crash area. The three remaining individuals, including the appellant, started to walk back on East College Avenue toward the roadblock, also in a westerly direction. As the appellant approached an area known as the Michael F. Cudahy Nature Preserve, located south of East College Avenue and to the west of the crash site, the appellant jumped over a fence which separated the public road from the nonpublic portion of the airport to the south. Detective White's testimony indicates that there were approximately five individuals in the immediate area at this time who had not crossed the fence. "No Trespassing" signs were posted on this fence. The appellant then proceeded to run approximately 20 to 30 yards to the top of a small hill.

Detective White, who had been observing the appellant's actions, got back into his vehicle and drove to the point at which the appellant had crossed the fence. He told the two associates of the appellant to leave the restricted area, which they did. Detective White then crossed over the fence and pursued the appellant up the hill. He caught up with the appellant at the top of the hill, where the appellant appeared to be taking pictures of the crash site. Detective White once again told the appellant to leave the restricted area. The appellant refused to leave the restricted area and stated that he would not leave unless he was arrested. Detective White then arrested the appellant for disorderly conduct. 1

The General Mitchell Field Media Guide for Airport Emergencies, which was introduced at trial, provides that "no representatives of the media will be permitted to enter non-public/restricted areas of the airport without an authorized escort." The reason for the escort system, according to the guide, is that such a system is an accommodation between the news media's primary responsibility to cover situations at the county's airport that at times are dramatic and of major interest to the public and the airport staff's primary responsibility to control the situation and render emergency services as needed. At 4:30 p.m., Mr. Barry Bateman, the airport director, held a briefing for the media representatives in his office. The meeting lasted approximately 15 minutes. Immediately thereafter, Mr. Bateman took the media representatives directly to the crash site to take photographs or film the scene.

On September 23, 1986, the appellant was adjudged guilty in the city of Oak Creek municipal court of disorderly conduct under City of Oak Creek Municipal Ordinance Sec. 9:947:01. On February 13, 1987, the Milwaukee county circuit court, pursuant to sec. 800.14, Stats., conducted a trial de novo and found the defendant guilty of disorderly conduct in violation of sec. 9:947:01. Judgment was entered on June 30, 1987. On July 15, 1987, the appellant appealed his conviction to the court of appeals. On March 17, 1988, the court of appeals requested certification to this court, which we granted.

WHETHER THE APPELLANT'S CONDUCT IN THIS CASE CONSTITUTES

DISORDERLY CONDUCT UNDER SEC. 947.01, STATS

., AS ADOPTED BY CITY OF OAK CREEK

MUNICIPAL ORDINANCE SEC. 9:947:01

This issue presents a question as to the application of law to uncontroverted facts. Questions involving statutory construction are afforded independent review without the necessity of deferring to the conclusions of the lower court. Kania v. Airborne Freight Corp., 99 Wis.2d 746, 758-59, 300 N.W.2d 63 (1981). The appellant was charged with and convicted of a violation 947.01 Disorderly conduct. Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

of City of Oak Creek Municipal Ordinance Sec. 9:947:01, adopting sec. 947.01, Stats., which provides:

In State v. Givens, 28 Wis.2d 109, 115, 135 N.W.2d 780 (1965), this court held that there are two distinct elements of disorderly conduct under sec. 947.01(1), Stats. (1965). 2 First, the conduct must be of the type enumerated in the statute or similar thereto in having a tendency to disrupt good order. Second, the conduct must be engaged in under circumstances which tend to cause or provoke a disturbance. See also State v. Zwicker, 41 Wis.2d 497, 515, 164 N.W.2d 512, appeal dismissed sub nom. Zwicker v. Wisconsin, 396 U.S. 26, 90 S.Ct. 199, 24 L.Ed.2d 147 (1969).

A review of the record demonstrates that the appellant's conduct does not fall directly into any of the specifically enumerated categories forbidden by sec. 9:947:01. Therefore, the question becomes whether there are any facts in this situation which would sustain the conclusion that the appellant's conduct was "otherwise disorderly."

In Givens, this court held in regard to sec. 947.01(1), Stats. (1965), "When the statute, after the specific enumerations, in a 'catchall' clause proscribes 'otherwise disorderly conduct' which tends to 'provoke a disturbance,' this must mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance." Givens, 28 Wis.2d at 115, 135 N.W.2d 780.

" 'While it is impossible to state with accuracy just what may be considered in law as amounting to disorderly conduct, the term is usually held to embrace all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts.' "

Id. at 116...

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