State v. Mahaney

• Decision Date: 30 June 1972
• Docket Number: No. S,S
• Citation: 55 Wis.2d 443,198 N.W.2d 373
• Parties: STATE of Wisconsin, Respondent, v. Francis Edward MAHANEY, Appellant. tate 19.
• Court: Wisconsin Supreme Court

Page 373

198 N.W.2d 373

55 Wis.2d 443

STATE of Wisconsin, Respondent, v. Francis Edward MAHANEY, Appellant.

No. State 19.

Supreme Court of Wisconsin.

June 30, 1972.

The plaintiff in error, Francis Edward Mahaney (hereinafter defendant), on August 25, 1970, in a trial before a judge, the Honorable Louis J. Ceci, without a jury in county court, was found guilty of sec. 946.80, Stats. This section seeks to prohibit misconduct on public grounds. The defendant was fined $50 and placed on probation for one year.

A violation of the statute is a misdemeanor and accordingly an appeal was taken to the circuit court. The appeal was heard and determined on the record. On February 22, 1971 the judgment of conviction and sentence of the county court were affirmed.

The defendant appeals.

Robert J. Lerner, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, for respondent.

BEILFUSS, Justice.

The defendant has raised three issues on appeal, namely, that the complaint for the arrest warrant does not state probable cause; that evidence is not sufficient to support a finding of guilt; and that the statute is unconstitutional because it is vague and overbroad.

Our opinion will decide only the constitutional issue because, in the view of the majority of the court, it is controlling.

The statute in question is sec. 946.80, Stats. It provides:

'Misconduct on public grounds. (1) No person shall commit any act in a public building or on public grounds which interferes with the peaceful conduct of activities normally carried on in such building or on such grounds.

'(2) Any person violating sub. (1) who refuses to leave such building or grounds upon request by the proper official or any person aiding, counseling or abetting another to violate sub. (1) may be fined not more than $500 or imprisoned not more than 6 months or both.

'(3) In this section 'public building' means any building that is a part of the university of Wisconsin system or state universities system and used for any university purpose and any county, city, school by the state or any county, city, school district or other political subdivision of the state and used for any public purpose.

'(4) Nothing in this section shall be construed to prohibit peaceful picketing or distribution of handbills.'

The facts giving rise to the prosecution are as follows:

During regular working hours on the morning of January 22, 1970, the defendant, Father Francis Edward Mahaney, as a spokesman, together with about 20 members of the Milwaukee Welfare Rights Organization, met with Arthur Silverman, the director of the Milwaukee County Welfare Department, for a prearranged meeting in his third-floor office at the county welfare building on West Vliet Street in Milwaukee.

The meeting broke up at about the noon hour. The defendant and the members of the group left the room and were escorted by Lieutenant Klamm of the Milwaukee county sheriff's department and other deputy sheriffs. The group, including the officers, got to the first floor of the building from the third floor by means of an escalator. There was some noise and loud talking by the defendant and some members of the group which attracted office workers who came out of their offices to see and hear the activity. There was testimony to the effect that some office workers were disrupted in their work because of the noise.

When the members of the group reached the ground floor they faced and were closer to the 13th Street exit than they were to the 12th Street exit. Lieutenant Klamm testified, over objection, that there was a disturbance at the 13th Street exit and that by prearrangement the defendant and the entire group had agreed to leave the building by the 12th Street exit.

While the testimony is in dispute as to just what was done and said, the facts permit a finding that the defendant and the group were proceeding toward the 13th Street exit and Lieutenant Klamm told them they would have to leave by the 12th Street exit. Words passed between the defendant and Lieutenant Klamm and the defendant reputedly told the officer he was 'not their shepherd (for the group).' There is marked dispute as to whether the defendant was persisting in leaving by the 13th Street exit and whether he struck at the officer. In any event, he was physically seized by the officers and forcibly taken from the building by the 12th Street exit and arrested.

The defendant has attacked the constitutionality of sec. 946.80, Stats., based upon his allegation that the statute is both vague and overbroad in violation of the Fourteenth and the First amendments of the United States Constitution.

In this challenge to sec. 946.80, Stats., the First amendment rights of freedom of speech, freedom of assembly, and right to petition for grievance are considered by virtue of the Fourteenth amendment prohibition against state abridgment of privileges or immunities; and the lack of fair notice because of the due process clause of the Fourteenth amendment.

The distinction between vagueness and overbreadth set forth in Landry v. Daley (D.C.Ill.1968), 280 F.Supp. 938, 951, has been adopted by this court in State v. Zwicker (1969), 41 Wis.2d 497, 507, 164 N.W.2d 512, 517. It is as follows:

"The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.

"The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution. . . ."

However, where First amendment rights are involved and the challenge is both as to vagueness and overbreadth, the United States Supreme Court in N.A.A.C.P. v. Button (1963), 371 U.S. 415, 432, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, has stated:

'The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U.S. 717, 733, 81 S.Ct. 1708, 1717, 6 L.Ed.2d 1127. These freedoms are delicate and vulnerable as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, 361 U.S. (147) at 151--154, 80 S.Ct. (215) at 217--219; Speiser v. Randall,...