State v. Migliorino, s. 88-0426-C

• Decision Date: 28 June 1989
• Docket Number: 88-1147-CR,Nos. 88-0426-C,s. 88-0426-C
• Citation: 442 N.W.2d 36,150 Wis.2d 513
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Monica MIGLIORINO and Edmund Bond Miller, Defendants-Respondents. STATE of Wisconsin, Plaintiff-Respondent, v. Anne HAINES, Christine Leblanc, Carol Robbins, Mary Lou Gagnon, Claude Gagnon, Jr., Monica Migliorino, Thaddeus Bryl, Robert Braun and Robert Holmberg, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 36

442 N.W.2d 36

150 Wis.2d 513

STATE of Wisconsin, Plaintiff-Appellant, v. Monica MIGLIORINO and Edmund Bond Miller, Defendants-Respondents.

STATE of Wisconsin, Plaintiff-Respondent, v. Anne HAINES, Christine Leblanc, Carol Robbins, Mary Lou

Gagnon, Claude Gagnon, Jr., Monica Migliorino,

Thaddeus Bryl, Robert Braun and Robert

Holmberg, Defendants-Appellants.

Nos. 88-0426-CR, 88-1147-CR.

Supreme Court of Wisconsin.

Argued June 1, 1989.

Decided June 28, 1989.

Jeffrey A. Kremers, Sp. Prosecutor for Milwaukee county, argued, and Fox, Carpenter, O'Neill & Shannon, S.C., on briefs, Milwaukee, for the State.

Ronald L. Wallenfang, argued, and Quarles & Brady, on briefs, Milwaukee, for defendants-respondents in No. 88-0426-CR.

Eugene R. Pigatti, Asst. State Public Defender, and Michael A. Bowen, argued, and Foley & Lardner, Milwaukee, for Anne Haines and Robert Braun in No. 88-1147-CR.

Thomas G. Cannon and O'Neill, Cannon & Hollman, S.C., Milwaukee, amicus curiae, for St. Thomas More Lawyers Soc. of Wisconsin.

DAY, Justice.

This opinion, among other things, addresses the constitutionality of sec. 943.145, Stats. 1987-88 (Criminal trespass to a medical facility). ¹ The issue comes to us as a certification by the court of appeals pursuant to sec. 809.61, of two consolidated cases: ² State v. Migliorino and State v. Haines. In Migliorino, the circuit court for Milwaukee county, Honorable Thomas P. Doherty, judge, held sec 943.145, unconstitutional and dismissed charges against Monica Migliorino and Edmund Miller for its violation. In Haines, Anne Haines and eight others were convicted of violating the statute. The circuit court for Milwaukee county, Honorable Patricia McMahon, judge, held the statute constitutional.

The issues which both cases share, as phrased by the court of appeals in its certification, are:

(1) Is sec. 943.145, Stats., a nullity as applied to clinics or offices because the Medical Examining Board regulates personnel, not facilities, and the statute defines a clinic or office as one that is "subject to rules promulgated by the medical examining board for the clinic or office?" (2) If the answer to the above question is no, is the statute constitutional?

We conclude sec. 943.145, Stats., is not a nullity and that it is constitutional. Accordingly, Judge McMahon's decision on the constitutionality of the statute is affirmed and Judge Doherty's holding on the same issue is reversed.

There are several additional issues presented in Haines: (3) Did the circuit court err by erroneously defining "consent" in the jury instructions? We conclude it did not. (4) Did the circuit court abuse its discretion by excluding certain questions in voir dire relating to prospective jurors' beliefs concerning abortion? We conclude it did not. (5) Did the circuit court err by excluding defendants' questions on cross-examination pertaining to subjects such as the number of abortions a testifying physician had performed and whether the associate director of the clinic believed there was anything wrong in what she did at the clinic? We conclude it did not. (6) Did the circuit court err by not permitting the defendants to introduce their proposed affirmative defenses of coercion and defense of others? We conclude it did not. (7) Did the circuit court err by refusing to honor a defendants' request to be sentenced rather than placed on probation? We conclude it did.

STATE V. MIGLIORINO AND MILLER--FACTS

The facts as alleged in the criminal complaint are as follows: Ms. Migliorino and Mr. Miller were arrested in Affiliated Medical Services, a private medical facility. It is a clinic used by a physician licensed under ch. 448 of the statutes and is subject to the rules promulgated by the Medical Examining Board. Judge Doherty noted it was "allegedly an abortion clinic."

Migliorino sat next to people in the waiting room of the facility and began talking to them. They soon became upset because of Migliorino's actions. Miller attempted to enter a treatment area of the clinic but was prevented from doing so by a locked door. He then began handing out literature which also caused people in the waiting room to become upset. The two were asked to leave but they continued their conduct. The police were called and the security guard for the building escorted the two from the premises. When Migliorino and Miller reached the clinic's door, the police arrived and they were arrested. Neither Migliorino nor Miller had obtained permission to enter into the facility.

Migliorino and Miller were charged in a criminal complaint with violating sec. 943.145, Stats. They moved to dismiss the complaint for two reasons: (1) Affiliated Medical Services was not a clinic subject to regulation by the Medical Examining Board and therefore sec. 943.145, was inapplicable; and (2) "the statute could not be constitutionally applied to reach [their] conduct." In a supplemental brief on the constitutionality issue, they also contended that sec. 943.145(3), the "labor dispute" subsection, was "content based discrimination" which made the statute unconstitutional.

In a written decision, Judge Doherty "believe[d] that Affiliated Medical Services qualifies as a medical facility and was intended to be a protected area under the statute." He also held, however, that sec. 943.145(3), Stats., unconstitutionally granted "labor a First Amendment right shared by no one else" and flew "directly in the face of Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) and Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)." Consequently he dismissed the case. The State of Wisconsin (State) appealed and the court of appeals certified the case to us. We granted the certification.

STATE V. HAINES, ET AL.--FACTS

In Haines, the facts are as follows: Ms. Haines and eight others (collectively hereafter known as the Defendants) were arrested for violating sec. 943.145, Stats., in the Bread and Roses Women's Health Center located in Milwaukee. The center provides various medical health services for women; including abortions.

On the day of the incident in question, the Defendants and several others met down the street from the building in which the health center was located on the seventh floor. They "straggled" into the building, signing in at a security guard's station on the ground floor. The group assembled in the elevator; some people had waited on other floors to join the rest in the elevator.

When they reached the seventh floor they immediately saw the glass wall and door demarcating the area occupied by the health center. The door was unlocked and open to the public. There were no signs which restricted entry. The group then entered the health center.

Two individuals from the group blocked the door to the facility and refused entry to anybody, including the police when they arrived later. Several others locked arms and blocked entry into the facility's medical treatment rooms. Four of the Defendants entered one treatment room and handcuffed themselves to various objects in that room. These Defendants had not brought the keys for the handcuffs and the police had to break the handcuffs to remove Defendants.

Defendants disrupted the health center's operations and they were asked by the associate director of the center to leave. The Defendants refused. When police arrived, Defendants also refused a request by the police to leave. The police then arrested Defendants and removed them from the premises. Some of the Defendants had to be carried away in wheelchairs.

Defendants were charged with violating sec. 943.145, Stats. Several pretrial motions were filed by the Defendants, including a motion to dismiss because the statute was inapplicable and unconstitutional. This latter motion was denied.

A jury trial in the circuit court for Milwaukee county was held and Defendants were convicted of violating the statute. In voir dire and during the trial, Judge McMahon made several rulings which the Defendants now claim were error. Those rulings include Judge McMahon's decisions to exclude questions to prospective jurors about their specific beliefs on abortion, sustaining the State's objections to questions on cross-examination, which will be discussed more fully below, and prohibiting Defendants from introducing their proposed affirmative defenses of coercion and defense of others.

Postconviction motions for relief from the verdict were made and Judge McMahon denied these motions, entered judgement, and sentenced the Defendants to a variety of penalties. At the sentencing hearing, Judge McMahon placed defendant Carol Robbins on probation of eighteen months with certain conditions. After the penalty was pronounced, Ms. Robbins stated she "would not accept probation," and would rather "spend time in jail." Judge McMahon did not honor her request and imposed probation. Ms. Robbins contends on appeal that Judge McMahon erred by not complying with her request to be sentenced to jail rather than placed on probation.

Defendants appealed Judge McMahon's various rulings to the court of appeals. The case was consolidated with Migliorino and certified by the court of appeals to this court. We accepted the certification.

I. APPLICABILITY OF THE STATUTE

Initially, Migliorino, Miller, and Defendants in the Haines case contend sec. 943.145, Stats., does not apply to the facilities in which they were arrested. Migliorino and Miller argue that the "rules promulgated by the medical examining board" only regulate physicians, not clinics or offices. Judge Doherty ruled the statute was applicable as did Judge McMahon when she denied Defendants' motion challenging the jury instruction regarding the definition of a medical facility. We agree with the circuit courts.

The application of a statute to a set of facts is a question of law which this court reviews without deference to the circuit court's determination. Minuteman, Inc....