State v. Bagley
| Decision Date | 13 August 1991 |
| Docket Number | Nos. 90-2446,s. 90-2446 |
| Parties | , 17 A.L.R.5th 1072 STATE of Wisconsin, Plaintiff-Appellant, v. James F. BAGLEY, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Daniel J. OLEJNICZAK, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Tommy THOMPSON, Defendant-Respondent. to 90-2448. |
| Court | Wisconsin Court of Appeals |
James E. Doyle, Atty. Gen., and Gregory M. Posner-Weber, Asst. Atty. Gen., for plaintiff-appellant.
Frederic E. Hatch, Lakeside Law Office, Sayner, for defendants-respondents.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
The state appeals an order dismissing the interference with fishing citations against the defendants in violation of sec. 29.223(2)(a)3, Stats. The trial court dismissed the citations upon concluding that this statute is unconstitutionally vague and overbroad. Because the statute is not vague or overbroad, we reverse the order of dismissal.
The defendants, James Bagley, Daniel Olejniczak and Tommy Thompson, each received a Department of Natural Resources (DNR) citation for violations of sec. 29.223(2)(a)3, Stats. The state alleges that on April 25, 1990, the defendants intentionally prevented Indian spearfishers from launching a boat on Catfish Lake by blocking the boat landing with their own boat. The state also alleges that the defendants knowingly failed to obey the orders of The constitutionality of a statute is a question of law that we review de novo. State v. Migliorino, 150 Wis.2d 513, 524, 442 N.W.2d 36, 41 (1989). Because a statute is presumed to be constitutional, the challenger must prove that it is unconstitutional beyond a reasonable doubt. Id. at 524-25, 442 N.W.2d at 41. The constitutionality of sec. 29.223(2)(a)3, Stats., is challenged on two grounds. First, the defendants contend that the statute is unconstitutionally overbroad. Second, they contend that the statute is unconstitutionally vague.
DNR wardens to desist from such conduct in violation of sec. 29.223(2)(b). By preventing the spearfishers from launching their boat, the defendants "impeded or obstructed" persons "engaged in an activity associated with lawful ... fishing." Section 29.223(2)(a)3, Stats. By failing to obey the wardens' orders to desist, the defendants were subject to citation under sec. 29.223(2)(b).
The defendants argue, and the trial court agreed, that sec. 29.223(2)(a)3, Stats., is overbroad because it restricts rights to free speech protected under the first amendment to the Constitution. 1 The defendants maintain that the statute, in addition to prohibiting physical interference with persons preparing to lawfully hunt or fish, also prohibits persons from exercising their first amendment right to verbally interfere with hunters and fishers. We disagree. Section 29.223 provides in pertinent part:
Interference with hunting, fishing or trapping. (1) DEFINITION. In this section, "activity associated with lawful hunting, fishing or trapping" means travel, camping or other acts that are preparatory to lawful hunting, fishing or trapping and that are done by a hunter, fisher or trapper or by a member of a hunting, fishing or trapping party.
(2) PROHIBITIONS. (a) No person may interfere or attempt to interfere with lawful hunting, fishing or trapping with the intent to prevent the taking of a wild animal by doing any of the following:
....
3. Impeding or obstructing a person who is engaged in an activity associated with lawful hunting, fishing or trapping.
(b) No person may knowingly fail to obey the order of a warden or other law enforcement officer to desist from conduct in violation of par. (a) if the order is based on any of the following:
1. The warden or other law enforcement officer personally observed such conduct by the person.
....
(3m) AFFIRMATIVE DEFENSE. It is an affirmative defense to the prosecution for violation of this section if the defendant's conduct is protected by his or her right to freedom of speech under the constitution of this state or of the United States.
A statute is unconstitutionally overbroad if it "has the effect or the potential of chilling or inhibiting speech, which is protected by the first amendment...." City of Milwaukee v. Wroten, 160 Wis.2d 207, 225, 466 N.W.2d 861, 868 (1991). However, it is not enough that a party challenging the statute is able to hypothesize a situation where the statute may reach protected expression. "The overbreadth of the statute must be real and substantial." Id. at 226, 466 N.W.2d at 868. Moreover, a court can by a process of judicial construction apply a statute, which appears to sweep too widely on its face, to non-speech related conduct. Id.
First, we look to the language of the statute to determine whether on its face it applies to conduct protected by the first amendment. The defendants argue that the words "interfere," "impede" and "obstruct" refer to verbal as well as physical conduct and thereby cause the constitutional demise of the statute. We disagree.
The trial court, in reaching its conclusion, relied on Dorman v. Satti, 678 F.Supp. 375 (D.Conn.), aff'd, 862 F.2d 432 (2d Cir.1988). In Dorman, the court concluded that Connecticut's hunter harassment statute was unconstitutionally overbroad. Because Wisconsin's statute is substantially different from Connecticut's, reliance on Dorman is improper. The Connecticut statute provided:
No person shall: (1) Interfere with the lawful taking of wildlife by another person, or acts in preparation for such taking, with intent to prevent such taking; or (2) harass another person who is engaged in the lawful taking of wildlife or acts in preparation for such taking.
Significantly, the district court in Dorman stated: "[B]ecause the Act fails to define the nature of the interference it proscribes ... it thus cannot be saved by a limiting construction...." Dorman, 678 F.Supp. at 381-82. Wisconsin's statute, however, does define the nature of interference it proscribes. Interference is defined as that which "impedes" or "obstructs" a hunter or fisher. Therefore, "impede" and "obstruct" as used in this statute are not synonymous with "interfere." In addition, because "impede" and "obstruct" are limitations on the word "interfere," the former two are the words we focus on to determine the breadth of the statute.
The following are partial definitions of "impede" and "obstruct" in Webster's Third New International Dictionary (Unabr. 1976):
Impede ... to interfere with or get in the way of the progress of : hold up : BLOCK ....
Obstruct ... to block up : stop up or close up : place an obstacle in or fill with obstacles or impediments to passing 2: to be or come in the way of : hinder from passing, action, or operation : IMPEDE, RETARD....
Id. at 1559. It is clear from these definitions and examples that the everyday usage of these words contemplates physical interference or obstruction, not verbal.
The defendants also argue that a finding of overbreadth in this case is compelled by the recent Wisconsin Supreme Court decision, Wroten. Wroten, however, does not govern the outcome in this case. The Wroten court examined the constitutionality of an ordinance that prohibited a person from resisting or in any way interfering with a police officer in the discharge of his duty, or from hindering or preventing an officer from discharging his duty. The court held the ordinance to be unconstitutional, stating: "[T]he 'any way' language ... leads inexorably to the conclusion that the prohibited activity includes speech that 'interferes,' 'prevents,' or 'hinders,' as well as physical conduct that has the same effect." Id., 160 Wis.2d at 231, 466 N.W.2d at 870.
In this case "interfere" is further defined by the words "obstruct" and "impede." These qualifying words signify types of physical disturbance. Our conclusion that the statute limits its application to physical interference is further supported by the inclusion of subsec. (3m) in the statute. This subsection provides an affirmative defense to a person who believes his rights to free speech were abridged. The legislature clearly intended to exclude protected speech from the strictures of this statute. Therefore, unlike Wroten, this statute contains qualifications that exclude protected speech from its prohibitions.
The trial court also erred by concluding that the phrase "activity associated with lawful hunting and fishing" renders the statute constitutionally deficient. Operating under the belief that the statute encompassed protected speech, the trial court went on to determine whether the statute was a reasonable time, place or manner restriction. It concluded that the "activity associated" language made the statute impermissibly overbroad. However, it is only after the challenger has demonstrated that a constitutionally protected right is being encroached that the However, even if the statute did extend to verbal conduct, it would not be unconstitutional on that ground alone. Constitutional rights to free speech are not absolute. A variety of speech has been held to be unprotected speech. 3 Additionally, time, place and manner restrictions on protected speech pass constitutional muster if the restrictions are narrowly tailored to serve substantial government interests. Id. at 675-76, 470 N.W.2d at 301. However, we need not scrutinize these issues because this statute encompasses only unprotected physical conduct.
burden shifts to the proponent of the statute to justify whatever restrictions are imposed. City of Madison v. Baumann, 162 Wis.2d 660, 672, 470 N.W.2d 296, 300 (1991). Because we agree with the state's argument that this statute proscribes only physical conduct intended to harass hunters or fishers, and not protected speech, we do not reach this issue. 2
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