State v. Horn, 85-0246-CR

• Decision Date: 23 June 1987
• Docket Number: No. 85-0246-CR,85-0246-CR
• Citation: 407 N.W.2d 854,139 Wis.2d 473
• Court: Wisconsin Supreme Court
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Bonnie J. HORN, Defendant-Appellant-Petitioner, STATE of Wisconsin, Plaintiff-Respondent, v. Norman L. STONE, Defendant-Appellant-Petitioner, STATE of Wisconsin, Plaintiff-Respondent, v. Jerry G. HORN, Defendant-Appellant-Petitioner.

Page 854

407 N.W.2d 854

139 Wis.2d 473

STATE of Wisconsin, Plaintiff-Respondent, v. Bonnie J. HORN, Defendant-Appellant-Petitioner, STATE of Wisconsin, Plaintiff-Respondent, v. Norman L. STONE, Defendant-Appellant-Petitioner, STATE of Wisconsin, Plaintiff-Respondent, v. Jerry G. HORN, Defendant-Appellant-Petitioner.

No. 85-0246-CR.

Supreme Court of Wisconsin.

Argued March 4, 1987.

Decided June 23, 1987.

Jonathan M. Menn, Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, Steven F. McDowell Gen. Counsel, (orally), Catholic League for Religious and Civil Rights, Milwaukee, for defendant-appellant-petitioner.

Marguerite M. Moeller, Asst. Atty. Gen., for plaintiff-respondent; Bronson C. La Follette, Attorney General, on brief.

DAY, Justice.

This is a review of a decision of the court of appeals, State v. Horn, 126 Wis.2d 447, 377 N.W.2d 176 (1985), affirming a judgment and order of the circuit court for Outagamie county, Hon. Nick F. Schaefer. The trial court entered a judgment of conviction against Bonnie J. Horn, Norman L. Stone, and Jerry G. Horn (Defendants) for criminal trespass contrary to section 943.13(1)(b), Stats., (1981-1982). ¹ The trial court also entered an order denying Defendants' motion for post-conviction relief.

The issue presented is: Do the free-speech protections of Art. I, section 3 of the Wisconsin Constitution ² extend to protect speech activities on the grounds of a private medical clinic? In Jacobs v. Major, 139 Wis.2d 492, 504, 407 N.W.2d 832; 837 (1987), this court held that Art. I, section 3 of the Wisconsin Constitution "has plain, unambiguous meaning that free speech is protected constitutionally against state interference" and does not afford protection from private interference. The facts of the instant case show that the Defendants seek protection from private interference with their speech activities. On the basis of our holding in Jacobs, we conclude Defendants' actions were not constitutionally protected under Art. I, section 3. We, therefore, affirm the decision of the court of appeals.

Defendant's convictions for criminal trespass arose out of two incidents which took place on November 14, 1983 and November 18, 1983. On these dates, the Defendants entered property occupied by the Fox Valley Reproductive Health Care Center (Center). The Center performs medical services, including general gynecology, outpatient vasectomies, and abortions up to and including the fifteenth week of pregnancy.

Defendants are the pastor (Norman L. Stone), associate pastor (Jerry G. Horn) and wife of the associate pastor (Bonnie J. Horn) of an Appleton area church, the Valley Christian Center. Defendants are opposed to abortion, and their activities in the present case represent part of their effort to counsel women "on the question of abortion decisions and alternatives."

On November 14, 1983, the Defendants and their children arrived at the Center in a car and a van. Defendant Jerry Horn and his son went to the rear of the building and planted white wooden crosses in the lawn. Defendant Norman Stone "engaged in prayer and communication activities" in the outdoor area owned by the Center. Later Mr. Horn entered the waiting room of the Center and attempted to communicate to the patients about "alternatives to abortion." Horn and Stone were asked by police to leave and both refused. Jerry Horn and Norman Stone were charged with violation of the Outagamie county trespass ordinance. These charges were later amended to charges of violations of section 943.13, Stats.

On November 18, 1983, the Defendants returned to the Center. Jerry Horn and Bonnie Horn approached a car that had driven into the Center and attempted to converse with and give leaflets to its female occupant. All three Defendants were advised by police that they were trespassing and would be arrested if they did not leave and were subsequently arrested and charged with criminal trespass. ³

Prior to trial, Defendants brought a motion outlining several constitutional defenses, including the right of free speech under Art. 1, section 3, of the Wisconsin Constitution. The State responded by filing a motion in limine, asking that evidence related to these defenses be suppressed.

On January 31, 1984, the trial court ordered that the parties file briefs on the motion. By written decision dated April 2, 1984, the trial court granted the State's motion in limine, ruling that the Defendants would not be allowed to raise and present evidence "relating to an asserted right to trespass premised on the grounds of freedom of religion [sic] expression, assembly and to consult for the common good." ⁴

Defendants' argument to the trial court was that the application of the trespass statutes would violate the Defendants' rights to freedom of speech and rights to assemble and consult for the common good guaranteed by the Wisconsin Constitution. The trial court looked to the analysis employed by the United States Supreme Court in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). PruneYard had been cited by Defendants. The trial court, in discussing it, termed it an "extreme case." In PruneYard, the United States Supreme Court concluded that the California Supreme Court could require that individuals be allowed to exercise their state constitutional rights to free speech on the grounds of a privately-owned shopping center, and that such requirement did not amount to an unconstitutional taking of the shopping center owners' property, nor an infringement on the owners' first amendment rights. 447 U.S. at 88, 100 S.Ct. 2044.

In analyzing the Takings Clause question, the PruneYard Court noted that the speech activity would not impair the "value or use of the property as a shopping center." Id. at 83, 100 S.Ct. at 2042. The Court also noted that the shopping center was a large commercial complex and not a small retail establishment. Id.

The trial court in the instant case, relying on PruneYard's treatment of the shopping center owners' arguments, distinguished PruneYard on its facts. (The significance of PruneYard is discussed later in this opinion). The trial court also noted the lack of definitive treatment of the issue of protection of free speech in a private context in Wisconsin law. The trial court stated:

"In the instant case, the property owner is a small single purpose medical facility with access limited to employees and patients. Further, there is every reason to believe that permitting the activity would impair the use of the property as an abortion clinic as the defendants' express purpose was the prevention of abortions. Their expressive activity directly impaired the owner's use of the property. There is no applicable authority in Wisconsin or Federal law for such a defense and defendants cite none. On this basis, this court can only find that this defense is unavailable as a matter of law and the State's motion prohibiting testimony and argument relating to an asserted right to trespass premised on the grounds of freedom of religion [sic] expression, assembly and to consult for the common good is granted."

On appeal, Defendants raised several arguments, including the argument that the freedom of speech provision of the Wisconsin Constitution protects them from prosecution for trespass. As to the free speech issue, the court of appeals' analysis consisted of the following paragraph:

"The facts of this case do not require us to decide whether the Wisconsin Constitution will ever protect free speech from purely private interference. Although state courts are free to interpret their own constitutions to provide such protection, we decline to extend protection to speech engaged in on property belonging to a small private medical clinic. Accordingly, we hold that appellants had no right under the Wisconsin Constitution to exercise their free speech rights on the clinic's property." Horn, 126 Wis.2d at 453, 377 N.W.2d 176. (Footnote omitted).

Defendants argue that, in granting the State's motion in limine, the trial court improperly prohibited the jury from considering whether the Defendants' activities at the Center were protected under Wisconsin Constitution, Article 1, section 3. Defendants assert that, in ruling on the State's motion, the trial court "neither held an evidentiary hearing nor made findings of fact," but instead treated the Defendants' brief as an "offer of proof."

Defendants contend that the trial court should have taken evidence bearing on the free speech defense since their claim of free speech protection "turns completely upon the particular facts of this case." The resolution of the constitutional question raised in this case, Defendants argue, requires "a close analysis of the legally significant facts, or what are sometimes called 'constitutional facts,' " citing, State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984).

Defendants argue that the constitutional issue raised in this case is similar to the constitutional issue raised in cases involving trial court determinations of the voluntariness of a confession, and whether constitutional rights have been properly waived. Defendants note that in Phillips v. State, 29 Wis.2d 521, 528, 139 N.W.2d 41 (1966), this court suggested that trial courts should "make specific and complete findings of the facts underlying a constitutional question." Defendants state that the trial court should have considered the "unique factual circumstances" of this case, including: "content-discrimination, the openness of the property, the impact on the property owner, the peacefulness of the speakers, and the desires of the audience."

The Defendants rely on State v. Johnson, 74 Wis.2d 169, 246 N.W.2d 503 (1976), where two females were criminally charged with committing an act of sexual perversion with a male, who was not charged with any offense. 74 Wis.2d at 171, 246 N.W.2d 503. The defendants moved to dismiss the...