State v. Ovadal

• Court: Wisconsin Court of Appeals
• Decision Date: 14 March 2000
• Docket Number: 99-2067-CR
• Citation: State v. Ovadal (Wis. App. 2000)
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Ralph Ovadal, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62

State of Wisconsin, Plaintiff-Respondent v Ralph Ovadal, Defendant-Appellant

No. 99-2067-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

March 14, 2000

APPEAL from a judgment of the circuit court for Barron County: JAMES C. EATON, Judge. Affirmed.

1. HOOVER, P.J.¹

Pastor Ralph Ovadal appeals his conviction for erecting an unauthorized sign within highway limits, contrary to Wis. Stat. 86.19(3).² Ovadal argues that (1) the trial court erred by finding a violation because 86.19 regulates permanently fixed roadside signs and he was holding an unattached sign; (2) the statute impermissibly limits his first amendment right of expression; (3) the statute is not content neutral, serves no compelling state interest and is not narrowly drawn; (4) the statute is an overbroad regulation of protected communicative conduct; (5) the statute provides selective access to traditional public fora-highways-and thus violates equal protection; and (6) the statute is impermissibly vague. This court concludes that the evidence supports Ovadal's conviction under the broadly defined term "erecting" and that Ovadal's constitutional challenges are without merit. The judgment of conviction is therefore affirmed.

2. The material facts are undisputed. A group of people were stationed with large signs along both sides of U.S. Highway 8 in Barron County in the vicinity of the Turtle Lake casino. The signs were approximately six feet tall and two and one-half to three feet wide and depicted aborted fetuses. Ovadal was identified as "being in charge" of what both parties referred to as the "picketers." It was undisputed, as the trial court found, that "Ovadal, an antiabortion picketer, ... was found standing within a State highway right-of-way holding a two and a half foot by six foot sign." Exhibit 5 shows a large sign set on the ground with Ovadal holding it upright, in place. The court heard unrefuted testimony from a Department of Transportation employee that Odaval was not issued a permit to place a sign within the highway's limits. The first police officer to arrive at the scene, Alan Gabe, testified that the signs, Ovadal's included, created a hazard by blocking motorists' view. Another officer similarly testified that Ovadal's sign created a hazard because "[I]t obstructed the view for vehicles making the turn." Gabe discussed with Ovadal his concern that the picketers move back from the exits or entrances along Hwy. 8, and particularly those accessing the casino. Exhibit 5 shows Ovadal and his sign positioned between highway traffic and a casino entrance sign. According to Gabe, Ovadal and the sign were situated four to five feet from the highway curb. The exhibit also discloses that Ovadal and the sign were very near the casino entrance sign so as to obscure part, if not all, of the sign. Ovadal initially refused to comply with the officer's request that he move away from the entrance. Eventually, Ovadal moved between fifteen to twenty feet from the entrance after officers first requested that he move 100 and, later, fifty feet.

3. A criminal complaint charged Ovadal with erecting a sign within the limits of a highway in violation of Wis. Stat. 86.19.³ The first issue is whether the facts satisfy the definition of "erect." Ovadal notes that two subsections that precede subsec. (3) refer to signs that are "placed."⁴ Ovadal contends that "place" refers, at least with regard to subsec. (1m), to the fashion in which signs are set. He then asserts that, viewed "against the backdrop of the 'be placed' prohibitions of the preceding paragraphs ... Statute 86.19 is nothing more than a regulation of permanently fixed roadside signs." Ovadal concludes that, because there is no evidence that he permanently fixed his sign within highway limits, the statute was improperly applied to convict him.

4. The trial court held that "the placement by the defendant of his signs, as well as the others depicted in the evidentiary pictures, satisfy the terms 'place' or 'erect' as contained in the statute."⁵ It based this conclusion on the grounds that the signs in this case serve the same purpose as those that are fastened to objects within the highway's limits, they are motionless and "they serve the same obstruction and obscuring roles as permanently fixed signs." This court agrees that, under the undisputed facts, Ovadal's conduct constitutes erecting a sign within the meaning of Wis. Stat. 86.19(3).

5. Ovadal obviously takes exception to the court's construction of "erect," but this court does not appreciate how the observations Ovadal offers as argument call into question the court's interpretation, or in any way inform on the matter. He offers no explanation or analysis why Wis. Stat. 86.19(3) applies only to signs that are fixed in place. This court, however, must concede that, although more a proposition than a syllogism, Ovadal's position nonetheless has some intuitive appeal. This court will therefore undertake a de novo review of the trial court's statutory interpretation. See Katzman v. State Ethics Bd., 228 Wis.2d 282, 290-91, 596 N.W.2d 861 (Ct. App. 1999) (interpretation and application of a statute to undisputed facts is a question of law that is reviewed de novo).

6. Wisconsin Stat. 86.19(2) authorizes the DOT to promulgate regulations concerning highway sign erection.⁶ Wisconsin Admin. Code TRANS 200.015(2)(g) defines "erect": "Erect" means to construct, manufacture, fabricate, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish a sign or sign structure ....

While the definition is broad, it generally implies a sense of relative permanency, with a possible exception for the inclusion of the verb "place." Webster's defines the verb "to place" as to "arrange, dispose, station : to put into ... a particular position : cause to rest or lie : set, fix. Webster's Third New Int'l Dictionary (unabr. 1993).⁷ The dictionary definition of "place" is similarly broad, so that some synonyms do not connote the sense of permanency otherwise suggested by the definition of "erect" in Wis. Admin. Code TRANS 200.015(2)(g). The facts of this case encompass those synonyms: Ovadal's sign was "set" or "stationed" along the highway.

7. Wisconsin Stat. 86.19(2), by prohibiting sign placement that endangers travel on the highways by obstructing motorists' view or otherwise, demonstrates that 86.19 is a safety statute. See 74 Op. Att'y Gen. 219 (1985). As the trial court observed, broadly construing the statute to prohibit holding an eighteen-square-foot sign in place near the traveled portion of the highway effectuates the public safety concerns that 86.19 was intended to address. Thus, in view of the broad definition the term "place" supports and 86.19's public safety character, this court is satisfied that Ovadal violated 86.19(3) when he obstructed motorists' view of peripheral traffic by setting or stationing his large sign on the ground and holding it in place.

8. Ovadal raises multiple constitutional challenges to Wis. Stat. 86.19.)⁸ The trial court's thoughtful and thorough opinion appropriately disposes of most of these issues. Accordingly, the trial court's opinion is adopted and incorporated by reference as expressing this court's rationale and holding, except as discussed below.

9. Ovadal contends, and the trial court concurred, that Wis. Stat. 86.19 "functions as an 'anti-picketing statute.'"⁹ This court does not agree.¹⁰ Section 86.19 does not prohibit carrying signs in a public area to protest or otherwise disseminate ideas. Under the facts of this case, however, Ovadal was not merely indulging his right to express a viewpoint in a public place. Rather, he communicated his message by using a sign of a size and in a placement calculated to inevitably distract the motoring public. By doing so, he obstructed motorists' view of peripheral traffic and thereby jeopardized public safety. Placing a sign so as to obstruct motorists' view of the highway in such a way as to compromise public safety is all that 86.19 proscribes.

10. Ovadal contends that Boos v. Barry, 485 U.S. 312 (1988), is directly on point and mandates that Wis. Stat. 86.19 be declared unconstitutional. Ovadal's reliance upon that portion of Boos that found a District of Columbia code provision unconstitutional is both underdeveloped and confusing. More to the point, it is utterly misplaced.

11. District of Columbia Code 22-1115 prohibited, in pertinent part, displaying within 500 feet of a foreign embassy any sign that tends to bring the foreign government into public odium or public disrepute. See id. at 315. Among the issues the Supreme Court addressed in Boos is whether 22-1115 violated the First Amendment on its face. The Court held that it did because it was a content-based restriction on political speech in a public forum that was not narrowly tailored to serve a compelling state interest. A majority of justices agreed with Justice O'Connor that the code provision was content-based because whether picketing in front of a particular embassy was prohibited was entirely dependent upon whether the signs were critical of the foreign government. See id. at 319. It is true, as Ovadal recites, that the Court noted the "'profound national commitment' ... that 'debate on public issues should be uninhibited, robust, and wide-open.'" Id. at 318. It goes too far, however, to imply as Ovadal does, that this observation transforms into an unequivocal constitutional rule that placing signs of such a size and in such a manner as to endanger the public is beyond the government's reach. There is no merit to Ovadal's contention that...