State v. Dronso, No. 78-701-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before DECKER, C. J., CANNON, P. J., and MOSER; MOSER
• Citation: 90 Wis.2d 110,279 N.W.2d 710
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. John DRONSO, Sr., Defendant-Respondent.
• Docket Number: No. 78-701-CR
• Decision Date: 30 April 1979

Page 710

279 N.W.2d 710 90 Wis.2d 110 STATE of Wisconsin, Plaintiff-Appellant,
v.
John DRONSO, Sr., Defendant-Respondent. No. 78-701-CR. Court of Appeals of Wisconsin. Submitted on Briefs April 10, 1979.
Opinion Released April 30, 1979.
Opinion Filed April 30, 1979.

Page 711

[90 Wis.2d 111] Kirbie Knutson, Asst. Atty. Gen., and Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-appellant.

James M. Shellow and Joan P. Clark of Shellow & Shellow, Milwaukee, on brief, for defendant-respondent.

[90 Wis.2d 112] Before DECKER, C. J., CANNON, P. J., and MOSER, J.

MOSER, Judge.

On April 6, 1978, the defendant, John Dronso, was charged with five counts of disorderly conduct contrary to sec. 947.01(2), Stats. ¹ According to the complaint, Dronso

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had made several telephone calls to his wife and her relatives.

On one occasion Dronso allegedly called his wife's mother and, upon being told that his wife was not with her mother, said, "I want my money not your son-of-a-bitching fucking daughter, I just want my money." Dronso is also alleged to have called his wife's brother and said "Tonight your van is going to blow up."

Dronso allegedly called his wife three times and made the following three statements: "A bullet"; "Thirteen Thousand Five Hundred"; and "Ride scared." The complaint also stated that Dronso made numerous calls to his wife's parents' home, and when the phone was answered, he coughed, whistled, sang or made unintelligible statements. Dronso's wife and her relatives stated that they were annoyed by the calls.

On May 18, 1978, Dronso made a motion to dismiss the prosecution on the grounds that the statute under which he was charged was unconstitutionally vague and overbroad and that the court lacked jurisdiction to hear the case. A hearing on the motion was held in the county court for Milwaukee county on May 22, 1978. Following the hearing and consideration of briefs, the county court, the Hon. Frederick P. Kessler, presiding, held that sec. 947.01(2), Stats., is unconstitutionally overbroad in [90 Wis.2d 113] violation of the first and fourteenth amendments of the United States Constitution and art. I, §§ 1 and 3 of the Wisconsin Constitution. This order was filed June 14, 1978. The state appealed that order to the circuit court.

On appeal to the circuit court for Milwaukee county, the county court's judgment was affirmed. The circuit court, the Hon. Victor Manian, presiding, held that Dronso had standing to challenge the constitutionality of sec. 947.01(2), Stats., and that that statute is unconstitutional on its face as it is vague and overbroad in violation of the first amendment of the United States Constitution and art. I, § 3 of the Wisconsin Constitution. The circuit court's memorandum decision was appealed to this court.

The issue framed by the state is thus: Is sec. 947.01(2), Stats., which proscribes making a telephone call with intent to annoy another, whether or not conversation ensues, unconstitutionally vague and overbroad?

STANDING

Generally, litigants to whom a statute constitutionally applies, cannot challenge the constitutionality of the statute, if the same, by hypothesis, could be applied to others unconstitutionally. ² One exception to this general rule is where the issue before the court is the first amendment free speech rights. ³ Here courts permit defendants, such as Dronso, to attack overly broad statutes with no requirement that the challenger demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. ⁴ Courts entertain such [90 Wis.2d 114] challenges because, where a statute is overbroad, it will chill legitimate activities ⁵ and cause others to refrain from a legitimate exercise of free speech. ⁶

Overbreadth claims have been entertained by courts in cases involving statutes

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seeking to regulate only spoken words ⁷ or to regulate the time, place and manner of expressive or communicative conduct. ⁸ Courts, in looking to overbreadth, must proceed with caution and restraint as invalidation may result in unnecessary interference with a state regulatory program. In accommodating the competing interests of interference with legitimate state regulatory power and first amendment free speech rights, courts must note that: (1) a state statute should not be deemed facially invalid for overbreadth unless it is not readily subject to a narrowing construction by the state courts, ⁹ and (2) its deterrent effect on legitimate expression must be both real and substantial. ¹⁰ The state concedes that Dronso has standing to challenge sec. 947.01(2), Stats., on grounds of overbreadth for a violation of first amendment free speech rights, and further that the statute is overbroad on its face as it regulates free speech. The respondent agrees and states, quite naturally, that these concessions and the case as the statute is unconstitutional. NARROWING CONSTRUCTION

Dronso's first amendment challenge to overbreadth against sec. 947.01(2), Stats., falls within the exception [90 Wis.2d 115] to the general rule. Courts must entertain his challenge as it involves first amendment free speech rights....