State v. Castellano, C4-93-356

• Decision Date: 28 September 1993
• Docket Number: No. C4-93-356,C4-93-356
• Citation: 506 N.W.2d 641
• Parties: STATE of Minnesota, Respondent, v. Leo CASTELLANO, Appellant.
• Court: Minnesota Court of Appeals

Page 641

506 N.W.2d 641

STATE of Minnesota, Respondent, v. Leo CASTELLANO, Appellant.

No. C4-93-356.

Court of Appeals of Minnesota.

Sept. 28, 1993.

Syllabus by the Court

1. A municipal targeted residential picketing ordinance is a constitutionally valid time, place, or manner regulation of expression in a public forum if the ordinance is content-neutral, narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication.

2. A municipal targeted residential picketing ordinance that defines targeted residential picketing as an "activity focused on a single residential dwelling without the consent of the dwelling's occupant" is not unconstitutionally overbroad under the First Amendment or Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), when activity is narrowly construed to mean solely "picketing activity."

3. A municipal targeted residential picketing ordinance is not void for vagueness where the ordinance provides sufficient notice that all targeted residential picketing is prohibited "without the consent of the dwelling's occupant." The ordinance's consent provision provides a defense to a municipality's prima facie case that focused residential picketing violated the ordinance. Under the ordinance, an "occupant" is a person with a legal right to control or to possess the single residential dwelling.

Hubert H. Humphrey, III, Atty. Gen., Martin J. Costello, Hughes & Costello, St. Paul, John G. Dillon, Minneapolis, for respondent.

Thomas W. Strahan, Minneapolis, for appellant.

Considered and decided by HUSPENI, P.J., and SCHUMACHER and KLAPHAKE, JJ.

OPINION

HUSPENI, Judge.

Appellant, convicted of violating a township ordinance that prohibits targeted residential picketing, facially challenges the constitutionality of the ordinance on the grounds of overbreadth and vagueness. We affirm.

FACTS

On August 24, 1991, approximately 20 men and women were picketing in the area of 5758 Meadowview Drive in the Town of White Bear. Several of the individuals carried graphic signs depicting aborted fetuses. Thomas Webber, Executive Director of Planned Parenthood of Minnesota, who resides at 5758 Meadowview Drive, called the Ramsey County Sheriff's Department to report the noise and disruption caused by the protestors.

A sheriff deputy arrived at 5758 Meadowview Drive and talked to Webber. Webber told the deputy that appellant Leo Castellano had stood directly in front of his residence for approximately 30 minutes and shouted "Tom Webber in his hour of death" and "Pray for us sinners now and in the hour of Tom Webber's hour of death" numerous times loudly enough to disrupt Webber and several other neighborhood residents.

The deputies informed the group that they would be arrested if they continued to picket in front of Webber's residence on Meadowview Drive. The protestors reluctantly dispersed after the deputy told them he would not debate the legal issues involved and took photographs of the graphic signs. Appellant, however, refused to leave the area and stayed in front of Webber's residence. He stated "I am not a part of the group" and "[t]his is a public street." Appellant then commenced marching in one place as though he was walking but did not physically leave the street in the area in front of Webber's residence. Webber signed a certificate of arrest by private citizen, and a deputy took appellant into custody for violating the targeted residential picketing ordinance. See White Bear Township, Minn., Ordinance No. 63.

The trial court denied appellant's motion to dismiss and held that the ordinance was constitutional. Based on stipulated facts, the trial court adjudicated appellant guilty of violating Ordinance No. 63 and ordered him to pay a $60 fine plus a surcharge.

ISSUES

1. Is the Town of White Bear, Minn., Ordinance No. 63 (1990), prohibiting targeted residential picketing, facially unconstitutional on the grounds of overbreadth?

2. Is the Town of White Bear, Minn., Ordinance No. 63 (1990), prohibiting targeted residential picketing, facially unconstitutional under the void for vagueness doctrine?

ANALYSIS

At issue in this case is a municipal ordinance prohibiting focused, or targeted residential picketing. ¹ The constitutionality of an ordinance is a question of law. See Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985) (construction of a statute is clearly a question of law fully reviewable by an appellate court); State v. Clarke Plumbing & Heating, Inc., 238 Minn. 192, 197, 56 N.W.2d 667, 671 (1952) (whether an ordinance is constitutionally valid is a question of law). Although ordinances are ordinarily afforded a presumption of constitutionality, ordinances restricting First Amendment rights are not so presumed. Goward v. City of Minneapolis, 456 N.W.2d 460, 464 (Minn.App.1990). The burden of proving the need of such a law rests with the government. Id. (citing Meyer v. Grant, 486 U.S. 414, 426, 108 S.Ct. 1886, 1894, 100 L.Ed.2d 425 (1988)).

I. Overbreadth

In the area of freedom of expression, it is well-established that an overbroad regulation may be subject to facial review and invalidation even though the application in a particular case may be constitutionally unobjectionable. Forsyth County, Ga. v. Nationalist Movement, --- U.S. ----, ----, 112 S.Ct. 2395, 2400-01, 120 L.Ed.2d 101 (1992). Permitting a facial challenge to allegedly overbroad legislation is an exception to general standing principles. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). The exception is "based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Forsyth County, --- U.S. at ----, 112 S.Ct. at 2401.

In order to invalidate a statute or ordinance on its face, the overbreadth not only must be real, but "substantial." Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987). The requirement that the overbreadth be substantial arose from the Court's recognition that striking an ordinance on overbreadth grounds imposed "manifestly, strong medicine." Id. (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916). The Court has required that there be a "realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court" to facially challenge legislation on overbreadth grounds. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984).

The United States Supreme Court addressed the facial constitutionality of an ordinance restricting residential picketing in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). In Frisby, the Court found constitutional a Brookfield, Wisconsin, ordinance that provided:

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.

Id. at 477, 108 S.Ct. at 2498. The Brookfield ordinance stated that its purpose was "the protection and preservation of the home" through assurance "that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy." Id. According to the Town of Brookfield, prohibiting residential picketing was necessary because such picketing "causes emotional disturbance and distress to the occupants * * * [and] has as its object the harassing of such occupants." Id.

An ordinance restricting targeted residential picketing "operates at the core of the First Amendment" because it prohibits picketing on issues of public concern. Id. at 479, 108 S.Ct. at 2499. In Frisby, the Court stated that restrictions on public issue picketing are typically subject to careful scrutiny because of the importance of "uninhibited, robust, and wide-open" debate on public issues. Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964)). The Court specifically held that picketing on public streets is "the archetype of a traditional public forum" and such status is not lost because a public street runs through a residential area. Id. 487 U.S. at 480, 108 S.Ct. at 2500. Although in a "quintessential public forum[ ], the government may not prohibit all communicative activity," Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983), the government may

enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Id.

Respondent argues that White Bear Ordinance No. 63 meets all the requirements of Frisby. Appellant, conversely, would have this court find the White Bear ordinance unconstitutional because it does not, in fact, satisfy the requirements of Frisby. We agree with respondent that White Bear Ordinance No. 63 is facially constitutional under Frisby. However, we believe that Frisby compels us to narrowly construe the White Bear Ordinance in order to avoid constitutional overbreadth. We address each of the Frisby factors in turn.

A. Content Neutrality

In First Amendment time, place, or manner cases, the principal inquiry in determining whether legislation is content-neutral is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). An ordinance restricting expressive activity is content-neutral so long as it is "justified without reference to the content of the regulated speech." Id. (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d...