State v. Zwicker
| Decision Date | 13 February 1969 |
| Docket Number | 77--80,Nos. 73,s. 73 |
| Citation | 41 Wis.2d 497,164 N.W.2d 512 |
| Parties | , 32 A.L.R.3d 531 STATE of Wisconsin, Respondent, v. Robert K. ZWICKER, Appellant. STATE of Wisconsin, Respondent, v. Robert WEILAND, Appellant. STATE of Wisconsin, Respondent, v. Michael OBERDORFER, Appellant. STATE of Wisconsin, Respondent, v. William SIMONS, Appellant. STATE of Wisconsin, Respondent, v. Gregor SIROTOF, Appellant. State |
| Court | Wisconsin Supreme Court |
Percy L. Julian, Jr., Marc Stickgold, Madison, for appellants.
Bronson C. La Follette, Atty. Gen., William A. Platz and Sverre O. Tinglum, Asst. Attys. Gen., James C. Boll, Dane County Dist. Atty., Madison, for respondent.
THE FEBRUARY 21, 1967, DEMONSTRATION
(Zwicker)
The appellant Zwicker was arrested at this demonstration. It was preceded by a meeting on February 17, 1967, in the office of the Dean of Student Affairs, at which the Dean, the Chief of University Protection and Security, Ralph Hanson, and others were present. Those present agreed upon certain rules for the anticipated demonstration on February 21, 1967, including a rule that demonstrators were not to be allowed to take signs into campus buildings.
The rule was made by persons having authority to make rules respecting the use of university buildings for student activities.
On the morning of February 21, 1967, Chief Hanson specifically advised the defendant and others assembled of the rule against taking signs into campus buildings. The demonstrators, including the defendant, were informed of this rule on two occasions before they entered the building. A group estimated at 60 to 70 persons, and including Zwicker, then entered the building in apparent compliance with the rule against carrying or displaying signs. They took up positions in a corridor adjacent to the room where the interviews were to be conducted.
Approximately 10 or 15 minutes later, signs appeared in the hands of the demonstrators and they were again advised that signs were not permitted.
Following the arrest of another demonstrator and the confiscation of a number of signs, the demonstration continued in an orderly fashion until defendant raised a sign over his head and allegedly told other demonstrators to raise their signs. Defendant refused to surrender or put down the sign when told to do so.
He was then arrested and when officers attempted to remove him from the building, he 'went limp' and other demonstrators physically prevented his removal. Thereafter, 40 to 50 other signs appeared, but the police officers made no further arrests or attempts to enforce the rule because, as one officer testified, it had become 'impossible to control the situation.' Later that day, a warrant was issued for defendant's arrest on charges of disorderly conduct. He was served with the warrant on February 23, 1967.
(Weiland, Oberdorfer, Simons & Sorotof)
During the morning of October 18, 1967, a group of approximately 200 persons entered a university building and took positions in a corridor adjacent to rooms in which the chemical manufacturer was to interview persons seeking employment. The presence of the group filled the corridor making passage difficult. They sat on the Later in the morning, three demonstrators were arrested when they refused to move. They could not be physically removed as other demonstrators held onto those arrested.
floor of the corridor, and there was testimony that they were 'packed just as tight as they could be,' taking up all available space. There is also testimony that persons attempting to pass through the corridor had to walk over the seated demonstrators.
Chief Hanson then called the city of Madison police department for assistance. Chief Hanson also testified that on three different occasions between 1:00 and 1:30 p.m. he informed the demonstrators that their assembly was unlawful and ordered them to disperse.
The order to disperse was not obeyed and at approximately 1:30 p.m. a combined force of university and city police forcibly removed them.
Testimony was given at the defendants' joint trial showing that defendants, during the demonstration, conducted themselves as follows:
Robert Weiland
He blocked the door to the business office by maintaining a sitting position and joining arms with two other demonstrators. He refused to move when asked to do so by the Chief and he could not be removed as other demonstrators held onto him.
There is also testimony that he attempted to strike an officer but missed because other demonstrators restrained him.
He struck out at officers who were attempting to move the demonstrators away from the building and spat at an officer several times. He called the officers 'f---ing cops', 'bastards', 'swine', 'fascist', 'Nazi storm trooper', and 'a dirty, rotten c--k-s---er.'
There is testimony that he used a bullhorn amplifier in the building to lead the demonstrators in chants and yells; advised them to allow no one to enter or leave an adjacent room; and advised them to 'shove the cops out,' to 'lock their arms and legs together,' and 'to kick policemen between the legs.'
There is also testimony that he advised fellow demonstrators to block an entrance to a corridor, attempted to bar a student from entering the building by blocking him physically, and used the following language: 'Cops are fascist pigs and bastards', 'Kauffman is a bastard', 'Bronson Laf---er', 'f---'em' and 'f--- the University.'
Assistant Dean of Student Affairs, Cipperly, who was present during the entire demonstration, testified that he did not hear Simons use any vulgarity and that Simons helped in the attempt to keep the passageways clear and had a calming effect on the rest of the demonstrators.
There is testimony that when Sirotof learned the police were going to clear the building he said 'If they come in, kick them right in the b----, right between the legs.' There is testimony that in a loud voice he called the officers 'f---ing, fascist pigs,' and that when an officer allegedly attempted to take hold of his shoulder he threatened to kill the officer and then spat upon him.
The transcript of Zwicker's trial, in which he was a codefendant with another person, exceeds 450 pages and in the other cases 725 pages. Suffice it to say, that all of the conduct of the appellants set forth occurred within the view and hearing of the other demonstrators. In the Weiland, Oberdorfer, Simons and Sirotof cases the crowding of the passageways and the noise generated by the demonstration prevented students from reaching their classrooms and In seeking reversal of their convictions of disorderly conduct under sec. 947.01, Stats., appellants contend that: (1) the statute is so vague and overly-broad as to deprive them of due process of law under the fourteenth amendment to the United States Constitution; (2) the statute is unconstitutional as applied to their conduct; (3) the trial courts erred in instructing the jury; (4) the trial court erred in State v. Zwicker when it failed to afford the defendant service of subpoenas at state expense; (5) the trial court abused its discretion in denying appellants' motion for severance of trial; (6) there was not sufficient credible evidence to support the verdicts. We have given consideration to all the issues raised by the defendants.
disrupted class activity to the extent that at least one class had to disband. All traffic to and from a dean's office was blocked and the demonstration upset the routine carried on in the building.
Appellants contend that the language of sec. 947.01, Stats., is so vague and overly-broad that the defendants were deprived of due process of law as afforded them under the fourteenth amendment to the United States Constitution.
The distinction between a challenge of vagueness and a challenge of overbreadth is well stated in Landry v. Daley (N.D.Ill.1968), 280 F.Supp. 938, 951:
* * *'
(a) VAGUENESS
This statute has previously been challenged for vagueness. In State v. Givens (1965), 28 Wis.2d 109, 135 N.W.2d 780, we determined that the statute sufficiently identified the type of behavior which the legislature intended to be contrary to law and that the statute was not subject to an attack for vagueness. Appellants present no convincing arguments or authorities which would indicate that the holding in Givens should not continue to prevail.
It seems obvious that the great and varied number of offenses which come within the category of disorderly conduct defy precise definition in a statute. 'Impossible standards of specificity are not required.' Jordan v. De George (1951), 341 U.S. 223, 231, 71 S.Ct. 703, 708, 95 L.Ed. 886, rehearing denied 341 U.S. 956, 71 S.Ct. 1011, 95 L.Ed. 1377.
Wisconsin's disorderly conduct statute proscribes conduct in terms of results...
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