Zwicker v. Boll

• Decision Date: 06 June 1967
• Docket Number: No. 67-C-36.,67-C-36.
• Citation: 270 F. Supp. 131
• Parties: Robert ZWICKER, Henry Haslach, Jr., Bourtai Scudder, Garrett Webb, Robert Cohen, David L. Goldman, Individually and on Behalf of those similarly situated, Plaintiffs, v. James BOLL, Individually and as District Attorney of Dane County, Wisconsin, Ralph Hanson, Individually and as Chief of the University of Wisconsin (Madison Campus) Department of Protection and Security, Wilbur H. Emery, Individually and as Chief of Police of the City of Madison, Wisconsin, William L. Buenzli, Individually and as Judge of the County Court (Branch II, Criminal) of Dane County, Franz Haas, Individually and as Sheriff of Dane County, Wisconsin, William C. Sachtjen, Individually and as Judge of the Circuit Court (Branch IV) of Dane County, Wisconsin, The Regents of the University of Wisconsin, and their agents, assistants, successors, employees, and attorneys, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

270 F. Supp. 131

Robert ZWICKER, Henry Haslach, Jr., Bourtai Scudder, Garrett Webb, Robert Cohen, David L. Goldman, Individually and on Behalf of those similarly situated, Plaintiffs, v. James BOLL, Individually and as District Attorney of Dane County, Wisconsin, Ralph Hanson, Individually and as Chief of the University of Wisconsin (Madison Campus) Department of Protection and Security, Wilbur H. Emery, Individually and as Chief of Police of the City of Madison, Wisconsin, William L. Buenzli, Individually and as Judge of the County Court (Branch II, Criminal) of Dane County, Franz Haas, Individually and as Sheriff of Dane County, Wisconsin, William C. Sachtjen, Individually and as Judge of the Circuit Court (Branch IV) of Dane County, Wisconsin, The Regents of the University of Wisconsin, and their agents, assistants, successors, employees, and attorneys, Defendants.

No. 67-C-36.

United States District Court W. D. Wisconsin.

June 6, 1967.

Percy L. Julian, Jr., Madison, Wis., for plaintiffs.

John P. Koberstein, Asst. Dist. Atty., Madison, Wis., for defendant Boll.

Charles A. Bleck, Asst. Atty. Gen., Thomas A. Lockyear, Asst. Atty. Gen., Madison, Wis., for defendants Hanson and The Regents of the University of Wisconsin.

William A. Jansen, Asst. City Atty., Madison, Wis., for defendant Emery.

Glenn L. Henry, Asst. Dist. Atty., Madison, Wis., for defendants Haas, Sachtjen and Buenzli.

Before FAIRCHILD, Circuit Judge, and DOYLE and GORDON, District Judges.

OPINION

MYRON L. GORDON, District Judge.

This is an action in which plaintiffs seek equitable relief to prevent their being prosecuted by officials of the state of Wisconsin for an alleged violation of Sec. 947.01, Wis.Stats. The Wisconsin statute provides as follows:

"947.01 Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance."

The state court actions were commenced against these plaintiffs before the latter began the instant action. The state court actions remain pending.

The complaint in this court seeks either a declaratory judgment or interlocutory injunctive relief to enjoin the alleged deprivation of the plaintiffs' rights, privileges and immunities under the United States Constitution.

A temporary restraining order was entered by the U. S. district court enjoining the defendants from further proceedings to enforce Wisconsin Statute 947.01, pending a further order of the court. Then a three-judge court was convened, and a hearing was held on April 17, 1967. At the conclusion of that hearing, this court took under advisement the plaintiffs' request for equitable relief and continued the temporary restraining order. I believe that the plaintiffs' application should be denied and further that the temporary restraining order should be terminated.

The conduct which gave rise to the state court prosecutions, and, subsequently, to the complaint in this court, stemmed from occurrences on February 21 and February 22, 1967, in Madison, Wisconsin. The pleadings disclose conflicting factual claims. There are before us affidavits by the plaintiffs, and also copies of the criminal complaints filed against them in the state court. These documents, together with the other pleadings now before this court, reflect that the plaintiffs were arrested while engaging in protest demonstrations on the campus of the University of Wisconsin in Madison. The plaintiffs expressed their views regarding the war in Vietnam and the use of napalm. The immediate occasion of the protests related to the University's permitting a private company, which manufactures napalm, to conduct employment interviews in campus buildings. Upon their arrest, each was charged with violation of the disorderly conduct statute, and each was released upon bail in the sum of $105.

The plaintiffs contend that they were engaged in the legitimate exercise of their rights of free speech and assembly and that they were doing so by lawful and peaceful means, including picketing and leafletting. The complaints in the state court, appended to the answer in this action, itemize the nature of the alleged disorderly conduct and are specific as to both time and place; they indicate that certain of the plaintiffs, by continued presence in the buildings after requests to leave, and that others of the plaintiffs by loud speech interfered with or interrupted interviews and classes being conducted in the university building.

The plaintiffs contend that Sec. 947.01 of the Wisconsin statutes, on its face, is vague, over broad and also encompasses within its coverage activities which are protected by the first amendment to the United States Constitution. In State v. Givens (1965), 28 Wis.2d 109, 135 N.W. 2d 780, the Wisconsin disorderly conduct statute was challenged as being too indefinite, and that view was rejected with the state court relying upon Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888, and Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.

Plaintiffs' conduct, according to the state's version, bears some similarity to the conduct involved in the Givens Case, where the convictions related to a demonstration within a public building, interfering with the activities usually carried on there, and in deliberate and knowing violation of reasonable regulations of those in charge of the area, reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Although distinguishable, there is some degree of similarity to the facts in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (presence within a public building, continued after official direction to leave). In that case, decided after Givens, the Supreme Court of the United States reversed convictions under a Louisiana statute.

The pleadings suggest the factual issues between the parties. The dominant legal issue for adjudication is also readily apparent: Is the disorderly conduct statute one which regulates expression, and is it "over broad" so that these plaintiffs are entitled to an adjudication of invalidity whether or not their own conduct could properly be prohibited by a more specific statute?

The legal and factual issues in this court are the same as those which would have to be resolved in the state court actions if they were permitted to proceed. The nub question is whether it is appropriate for this court to step in and determine these issues first.

Applying common sense principles of comity to the existing situation, I find no compelling reason why this court should assert power to decide these issues in this action and thus displace the state court from a resolution of the same issues in an action already before it.

The seventh circuit court of appeals recently reviewed a challenge to the Illinois disorderly conduct statute. In United States v. Woodard and United States v. Seelig, 376 F.2d 136, decided April 4, 1967, (Cases Nos. 15566 and 15567), the court ruled that the statute was not void for vagueness. The Illinois statute provides, in part, as follows:

"A person commits disorderly conduct when he knowingly * * * does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace."

In analyzing the vagueness argument, the court stated as follows:

"The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey `sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). When measured by this criterion, section 26-1(a) (1) of the Illinois disorderly conduct statute does not offend due process.

"The statute proscribes conduct that is so unreasonable as to `alarm or disturb' another and provoke a `breach of the peace.' The term `breach of the peace' has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. `The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.' Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The term connotes conduct that creates consternation and alarm. It is an indecorum that incites public turbulence; yet violent conduct is not a necessary element.

Statutes which intrude upon first amendment rights may be held to be over broad because such freedoms are "delicate and vulnerable, as well as supremely precious in our society." N.A. A.C.P. v. Button (1963), 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405; Thornhill v. State of Alabama (1965), 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093; State v. Smith (1966), 46 N.J. 510, 218 A.2d 147, cert. denied, 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71. However, in the case at bar, there is no reason to believe that Wisconsin is about to punish these plaintiffs for "peacefully expressing unpopular views." Cox v. State of Louisiana (1965), 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471. See also Edwards v. S. Carolina (1963) 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697.

I would distinguish the type of protest involved in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, from the conduct alleged in the case at bar because in the latter case the demeanor of the protestors was clearly not disorderly. In the Brown Case, there was a civil rights issue presented when...