Scheunemann v. City of West Bend

Citation179 Wis.2d 469,507 N.W.2d 163
Decision Date29 September 1993
Docket NumberNo. 92-3073,92-3073
PartiesKeven SCHEUNEMANN, John Hahn, Richard Foltz, Dave Ameringer and Rachel Justman, Plaintiffs-Appellants, d v. CITY OF WEST BEND, a local government, and James Skidmore, Chief of Police, City of West Bend, in his official capacity, Defendants-Respondents.
CourtCourt of Appeals of Wisconsin



This is a declaratory judgment action in which the appellants challenge on statutory and constitutional grounds a city of West Bend ordinance banning "cruising" on a limited basis. By summary judgment order, the circuit court upheld the validity of the ordinance. 1 We affirm the order.


The facts are undisputed. The affidavit of James Skidmore, Chief of Police for the City of West Bend, recites, in part, the following:

That for the 6-month period prior to said effective date [of the cruising ordinance] the West Bend Police Department received innumerable reports in increasing frequency from members of the business community, residents, and other citizens of said city who travelled in the area of Main Street between Washington Street and Paradise Drive between the hours of 8:00 P.M. and 4:00 A.M., complaining of profanity, public alcohol consumption, public urination, unreasonably loud music and other noise, loitering, littering, disorderly conduct, traffic congestion and safety hazards, and traffic violations perpetrated by motorists and their passengers while cruising said area as well as by pedestrian onlookers associated with cruising....

Chief Skidmore's affidavit further states that the department's investigations of these complaints verified the problems associated with cruising. In an effort to eliminate or reduce these problems, the city arranged In response to these problems, the city's common council enacted the cruising ordinance at issue in this case. The preamble to the ordinance states:

with a local school district to make a school parking lot available to cruisers. However, this experiment simply transferred the problems from the city streets to the parking lot. Thereafter, the police department[179 Wis.2d 474] stepped up its enforcement of state and local traffic laws in the Main Street area. However, this effort produced little effect on the number of complaints and problems associated with cruising.

The Common Council find that a public nuisance and a threat to the public health and safety result from the repetitive, unnecessary driving of motor vehicles, also known as cruising, on Main Street.

The Common Council further find that this ordinance will reduce the noise, air pollution and congestion resulting from cruising and make access to the downtown area faster for safety vehicles.

The ordinance goes on to recite an elaborate definition of "cruising." 2 The ordinance limits its prohibition against cruising to a designated area ("Main Street between Paradise Drive and Washington Street") and to a designated daily time span ("between the hours of 8:00 P.M. and 4:00 A.M.").

By declaratory judgment, the appellants challenged the ordinance on statutory and a host of constitutional grounds. At summary judgment, the circuit court upheld the ordinance. This appeal followed.


Upon review of a summary judgment decision, we apply the standards set forth in sec. 802.08(2), Stats., in the same manner as the trial court. County of Dane v. Norman, 174 Wis.2d 683, 686, 497 N.W.2d 714, 715 (1993). Since there is no disagreement as to issues of fact, we must determine whether the moving parties were entitled to judgment as a matter of law. See id. This court decides questions of law independently, without deference to the decision of the trial court. See id. As to the constitutional aspects of this case, our review is also de novo. State v. Bertrand, 162 Wis.2d 411, 415, 469 N.W.2d 873, 875 (Ct.App.1991).

Despite our de novo standard of review, we hasten to add that we value a trial court's decision on such questions. Here, the trial court provided a thorough and well-reasoned decision. We will liberally borrow from it in our discussion.


The appellants raise various state and federal constitutional challenges to the city's cruising ordinance. We begin our analysis with the presumption that the ordinance is constitutional and that, in order to prevail, the appellants must demonstrate otherwise beyond a reasonable doubt. See Richland School Dist. v. DILHR, 174 Wis.2d 878, 905, 498 N.W.2d 826, 836 (1993). However, as to

the appellants' overbreadth challenge on first amendment grounds, the burden is on the city to establish the constitutionality of the ordinance. See State v. Mitchell, 169 Wis.2d 153, 162-63, 485 N.W.2d 807, 811 (1992), rev'd on other grounds, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993).

A. Overbreadth

The appellants allege that the city's cruising ordinance is overly broad, thereby violating their first amendment right to assemble. The degree of acceptable overbreadth will depend on where the regulated activity falls on the continuum of pure speech at the one extreme and pure conduct on the other. See, e.g., New York v. Ferber, 458 U.S. 747, 770-73, 102 S.Ct. 3348, 3361-63, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). The parties do not explore this question in their briefs. We conclude, however, that the cruising activity in this case falls closer to conduct than to pure speech.

A law is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate. Bachowski v. Salamone, 139 Wis.2d 397, 411, 407 N.W.2d 533, 539 (1987). "The essential vice of an overbroad law is that by sweeping protected activity within its reach it deters citizens from exercising their protected constitutional freedoms, the so-called chilling effect." Id.

Here, however, the cruising ordinance is specifically limited in its application to a designated daily time span ("between the hours of 8:00 P.M. and 4:00 A.M.") and to a designated area ("Main Street between Paradise Drive and Washington Street"). Moreover, the ordinance prescribes standards for cruising: three vehicular passes in the same direction of a traffic control point within a two-hour period under circumstances manifesting a purpose to cruise. In addition, the ordinance requires attendant circumstances which manifest a purpose to cruise and it offers examples of such circumstances. Also, the ordinance requires that the offender harbor a specific intent to cruise. And finally, the ordinance requires that the officer give the suspected violator an opportunity to explain the driving conduct. If such explanation falls outside the reach of the ordinance, the officer is instructed not to arrest the suspect. 3

Thus, this cruising ordinance carefully carves out, on both a spatial and temporal basis, a narrow slice of driving conduct for regulation. Given these limitations, we conclude that the city has satisfactorily demonstrated that the cruising ordinance is not unconstitutionally overbroad.

B. Constitutional Right to Travel

Besides overbreadth, the appellants raise other constitutional challenges to the city's cruising ordinance. 4 In developing their arguments, the appellants present a separate and detailed analysis under each challenge.

We do not answer the appellants' challenges with corresponding specificity because the common foundation for all of these arguments is the constitutional right to travel. 5 See Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); Ervin v. State, 41 Wis.2d 194, 200-01, 163 N.W.2d 207, 210 (1968). Moreover, the answer to all of the appellants' remaining constitutional challenges turns on a common methodology: a determination of the proper degree of scrutiny which we must apply to the ordinance and a balancing of the governmental

interests served by the ordinance against the restrictions imposed by it.

1. Scope of Judicial Scrutiny

The parties disagree whether the West Bend cruising ordinance should be reviewed under the strict scrutiny test or the more relaxed intermediate scrutiny test. 6 Under the strict scrutiny approach, we inquire whether the ordinance is no more restrictive than necessary to achieve compelling state interests. Lutz v. City of York, 899 F.2d 255, 268 (3d Cir.1990). See also Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973). Under the intermediate scrutiny test, we inquire whether the ordinance imposes "content-neutral time, place and manner restrictions that are narrowly tailored to serve significant government interests--not necessarily compelling ones--while leaving open ample alternative channels [by which the citizen may exercise the right at issue]." Lutz, 899 F.2d at 269. Under the intermediate scrutiny approach, the tailoring requirement does not require that the ordinance employ the least restrictive means of achieving its end, as it would under a full-blown strict scrutiny approach. Id.

In Lutz, the Third Circuit concluded that a cruising ordinance was properly measured by the intermediate scrutiny test where the constitutional challenge was based on substantive due process. The court placed particular importance on cases from the United States Supreme Court which had applied this test in free speech cases. Id. The Lutz court reasoned:

Nonetheless, the time, place and manner doctrine allows certain restrictions on speech to survive under less than fully strict scrutiny. If the freedom of speech itself can be so qualified, then surely the unenumerated right of localized travel can be as well.

Id. 7

We, like the circuit court, agree with the logic of the Lutz court on this...

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