Schultz v. Frisby

• Decision Date: 07 October 1985
• Docket Number: Civ. A. No. 85-C-1018.
• Citation: 619 F. Supp. 792
• Parties: Sandra C. SCHULTZ and Robert C. Braun, Plaintiffs, v. Russell FRISBY, George E. Hunt, Robert Wargowski, Harlan Ross, Clayton A. Cramer, and the Town of Brookfield, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

619 F. Supp. 792

Sandra C. SCHULTZ and Robert C. Braun, Plaintiffs, v. Russell FRISBY, George E. Hunt, Robert Wargowski, Harlan Ross, Clayton A. Cramer, and the Town of Brookfield, Defendants.

Civ. A. No. 85-C-1018.

United States District Court, E.D. Wisconsin.

October 7, 1985.

Walter M. Weber, Associate Gen. Counsel, and Steven Frederick McDowell, Gen. Counsel, Catholic League for Religious and Civil Rights, Milwaukee, Wis., for plaintiffs.

George A. Schmus, West Allis, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action to enjoin the enforcement of an anti-picketing ordinance.

Plaintiffs Sandra C. Schultz and Robert C. Braun filed a complaint on July 2, 1985, under § 1983 of Title 42 U.S.C., seeking declaratory, preliminary, and permanent injunctive relief from an alleged deprivation of their rights under the First and Fourteenth Amendments of the United States Constitution. Defendants in the action are Russell Frisby and George Hunt, Supervisors of the Town Board of Brookfield, Wisconsin; Robert Wargowski, Chairman of the Town Board; Harlan Ross, Chief of the Brookfield Police; Clayton Cramer, attorney for the Town of Brookfield; and the Town of Brookfield itself.

The plaintiffs wish to picket on streets in a residential neighborhood in Brookfield. They challenge the enforcement of a town ordinance which bans such picketing. This court has jurisdiction under 28 U.S.C. § 1343.

At the hearing for a preliminary injunction held on August 13, 1985, the Court considered the facts contained in the following submissions: (1) plaintiffs' proposed statement of facts; (2) defendants' proposed statement of facts; (3) §§ 9.05, 9.06, 9.08, 9.09, 9.10, 9.17, 9.943.13, 9.943.14, and 9.947.01 of the General Code, Town of Brookfield; (4) a plat map of the Summit Lawn Estates and Black Forest Knoll, Town of Brookfield; (5) a photocopy of a story and accompanying photograph in the May 21, 1985, edition of the Milwaukee Sentinel; and (6) affidavits of Mary T. Baxa, Robert C. Braun, Mary E. Bruders, Reid Brueser, Scott M. Heitman, William B. Peterman, Sandra C. Schultz, Daniel J. Schwantz, Charles Setzke, Mary Setzke, David Setzke, Paula W. Smith, Arlene Victoria, Todd A. Victoria, and Audrey Wright.

Based on the above-cited materials and on the oral arguments, I make the following findings of fact and conclusions of law.

FINDINGS OF FACT

Plaintiffs Sandra Schultz and Robert Braun believe that abortion is immoral and unjust. Between April 20 and May 20, 1985, Schultz, Braun, and groups of prolife demonstrators, ranging in size from 11 to more than 40 persons, have on at least six occasions picketed in front of the home of Dr. Benjamin M. Victoria who performs abortions at facilities in Appleton and Milwaukee.

The Town of Brookfield is a residential suburb of the City of Milwaukee and has a population of approximately 4,300 persons. The Town's police force consists of a chief and eight officers. The street on which the Victoria family lives is within a subdivision of the Town zoned exclusively for single-family residences. The road surfaces in the subdivision are approximately 30 feet wide and blacktopped. During the winter the roads are narrowed further by snow piles which accumulate due to plowing. There are no sidewalks, curbs, gutters, or street lights.

On May 7, 1985, the Town of Brookfield enacted an ordinance which provided as follows:

9.17 RESIDENTIAL PICKETING ...

(2) PICKETING RESIDENCE OR DWELLING UNLAWFUL. It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual. Nothing herein shall be deemed to prohibit (a) picketing in any lawful manner during a labor dispute of the place of the place sic of employment involved in such labor dispute, or (b) the holding of a meeting or assembly on any premises commonly used for the discussion of subjects of general public interest.

On the following day, defendant Town Attorney Cramer informed plaintiff Schultz that he had instructed defendant Chief of Police Ross not to enforce the new ordinance pending Cramer's research into its constitutionality. The results of this research apparently led to the repeal of the above ordinance and the passage on May 15, 1985, of a substitute ordinance as § 9.17, General Code, Town of Brookfield, which provides as follows:

9.17 RESIDENTIAL PICKETING. (1) DECLARATION. It is declared that the protection and preservation of the home is the keystone of democratic government; that the public health and welfare and the good order of the community require that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy, and when absent from their homes and dwellings, carry with them the sense of security inherent in the assurance that they may return to the enjoyment of their homes and dwellings; that the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants; obstructs and interferes with the free use of public sidewalks and public ways of travel; that such practice has as its object the harassing of such occupants; and without resort to such practice full opportunity exists, and under the terms and provisions of this chapter will continue to exist for the exercise of freedom of speech and other constitutional rights; and that the provisions hereinafter enacted are necessary for the public interest to avoid the detrimental results herein set forth....

(2) PICKETING RESIDENCE OR DWELLING UNLAWFUL. It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.

(3) PENALTY FOR VIOLATIONS. Any person violating the provisions of this section of the Town Code of the Town of Brookfield shall upon conviction for a first offense forfeit not less than $5 nor more than $300.00, together with the costs of prosecution, and in default of payment of such forfeiture and costs of prosecution, shall be imprisoned in the County Jail until such forfeiture and costs are paid, but not to exceed 30 days.

Any person who shall be guilty of violating this section of the Town Code of the Town of Brookfield who has previously been convicted of a violation thereof within one year, shall upon conviction thereof forfeit not less than $100.00 nore sic more than $500.00 for each such offense, together with the costs of prosecution and in default of payment of such forfeiture and costs, shall be imprisoned in the County Jail until such forfeiture and costs are paid, but not exceeding 90 days.

The General Code of the Town of Brookfield includes a number of ordinances designed to preserve peace and order in the community. These include §§ 9.05 Obstructing Streets and Sidewalks, 9.06 Loud and Unnecessary Noise Prohibited, 9.08 Loitering Prohibited, 9.09 Destruction of Property Prohibited, 9.10 Littering Prohibited, 9.943.13 Criminal Trespass to Land, 9.943.14 Criminal Trespass to Dwelling, and 9.947.01 Disorderly Conduct.

On May 18, 1985, defendant Cramer informed plaintiffs that he had instructed the Brookfield Chief of Police to enforce the new ordinance beginning on its effective date, May 21, 1985. Plaintiffs continued picketing the Victoria residence through May 20 but have refrained from picketing since that time for fear of arrest and prosecution under the new ordinance.

The picketing seems to have been conducted for the most part in a peaceable and orderly fashion. The Town police never had occasion to make an arrest, though this may be a function of the limited surveillance they were able to conduct. On at least one occasion picketers entered onto the Victoria property to tie red ribbons to shrubbery growing there, place a protest sign at the front door of the Victoria house, and tie another red ribbon to the front door knob.^* Mrs. Victoria and one of the Victoria children claim that on one occasion the picketers temporarily prevented them from leaving their residence. The Victorias also believe that picketers photographed their children and residence.

The picketers carried signs with a variety of inscriptions including "Stop Abortion Now," "Aborted Babies Sold for `Cosmetics,'" "Abortion is Legal Murder," "God Bless America," and "Forgiveness Is Yours for the Asking." Picketers on occasion sang and cheered or shouted other slogans that witnesses say include references to Victoria as a "baby killer." Picketers conversed with passers-by, including at least one neighbor who was told that Victoria was a baby killer. The parent and grandparent of a five-year-old child claim that a woman carrying a cross, who was marching with other picketers to the Victoria home, told the child that a baby killer lived nearby and that the child should not go to the Victoria house. The child apparently became frightened following this encounter and would not leave his grandparent's home for the remainder of the day.

Some of the picketers belong to an anti-abortion group in the Milwaukee area where many of them live. Others come from the area of Appleton, a city about 100 miles north of Milwaukee where one of Dr. Victoria's clinics is located. The picketers chose the Victoria residence as a target for picketing because, in the words of plaintiff Schultz:

picketing at locations at which Victoria performs abortions would not accomplish what picketing on the public street by his house can accomplish. Moreover, the greater media coverage of residential picketing allows us to reach audiences who might not otherwise receive our messages. As an additional concern, we do not wish to interfere with efforts of sidewalk counselors to contact prospective abortion clients; picketing near the Victorias' residence (away from the site of the abortions) removes the possibility of such problems, while more effectively conveying our messages to the abortionist and those in his community.

Affidavit of Sandra Schultz (filed...