MILWAUKEE v. WROTEN, 160 Wis.2d 207 (1991)

466 N.W.2d 861

Supreme Court of Wisconsin.
No. 89-1628.Argued October 30, 1990. —
Decided March 6, 1991.

(On bypass from the court of appeals.)

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APPEAL from an order of the circuit court for Milwaukee county, LEAH M. LAMPONE, circuit judge Affirmed.

For the plaintiff-appellant the cause was argued b Scott G. Thomas, Milwaukee assistant city attorney with whom on the briefs (in the court of appeals) was Grant F. Langley, city attorney.

For the defendant-respondent there was a brief b Kathleen Walsh and Legal Aid Society of Milwaukee, Inc., Milwaukee and oral argument by Ms. Walsh.

HEFFERNAN, CHIEF JUSTICE.

This is an appeal on bypass pursuant to sec. 808.05, Stats., from an

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order of the circuit court for Milwaukee county, Leah M. Lampone, judge, which affirmed the order of the municipal court of the City of Milwaukee dismissing the complaint of the city charging the defendant, Eloise Wroten, with “resisting” a police officer, contrary to the provisions of Ordinance 2-138. We affirm.

The municipal court, James A. Gramling, Jr., municipal judge, dismissed because he found the ordinance to be overbroad and, hence, unconstitutional.

On appeal to the circuit court and to this court, the city contends that the municipal court, as a statutory court, has no authority to declare an ordinance unconstitutional and, in addition, contends that the ordinance is not overbroad and is constitutional.

We conclude that a municipal court created by the legislature pursuant to article VII, sec. 2, of the Wisconsin Constitution has the authority to determine the constitutionality of a municipal ordinance upon which an action for a civil forfeiture is based. We also conclude that Ordinance 2-138 of the City of Milwaukee is unconstitutionally overbroad.

The facts of this case are basically undisputed. On September 21, 1987, at approximately 7:15 p.m., City of Milwaukee police officers were conducting an investigation into a juvenile disturbance in an apartment building. During the course of the investigation, Wroten, a resident of the apartment building, entered the building and began to question the police officers about their presence. The police officers told Wroten what they were doing and then asked her to leave the hallway where they were conducting their investigation. At this point, it is alleged Wroten became “verbally abusive” and refused to leave the area.

After three to five minutes, Wroten again refused to leave the area after being directed to do so. Wroten was

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then “arrested” for violating the City of Milwaukee’s resisting ordinance. The police officers described the violation on the front of the citation as follows: “[A]fter numerous warnings to the contrary [Wroten] verbally interfered in ongoing investigation.” The back of the citation contained a longer explanation of the incident:

. . . Subj entered building and immediately began to question officers as to presence in the Building. When informed of presence and told to leave the area (Hallway) Subj continued to verbally badger officers and interfere with investigation.
After tolerating subject’s behavior for 3-5 minutes, Subj was again told to leave the area, Subj refused, taken into custody.

On September 27, 1987, Wroten was formally charged with violating sec. 2-138 of the Milwaukee Code of Ordinances, which reads:

2-138. Resisting Officer. Whoever in this city shall resist, or any way interfere with any police officer or member of the police department in the discharge of his duty, or shall hinder or prevent him from discharging his duty as such officer or member, or shall offer or endeavor so to do, and whoever shall in any manner assist any person in custody of any officer or member of the police department to escape or attempt to escape from such custody, or shall rescue or attempt to rescue any person in custody, shall forfeit a penalty of not less than ten dollars ($10) nor more than two hundred and fifty dollars ($250), or be imprisoned in the house of correction for not less than thirty (30) days nor more than six (6) months, or by both such free and imprisonment.[1]

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I

Authority of a Municipal Court to Determine the Constitutionality of an Ordinance

The city has argued at each stage of this litigation that the municipal court was without such authority. The city contends that a municipal court is a court of limited jurisdiction and, without an express grant of authority, it lacks the capacity to decide constitutional questions. The city points out that municipal courts are special courts with specifically enumerated authority.

The city, while recognizing that municipal courts are referred to in the Wisconsin Constitution, article VII, sec. 2,[2] contends their powers, even if created by legislative action, are limited in their jurisdiction to that specified by article VII, sec. 14.[3]

Further, the statutes, sec. 755.045, Stats.,[4]
distinguishes municipal courts from all other courts, because

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municipal courts, with exceptions for transfer to circuit court, have exclusive jurisdiction over actions to impose forfeitures for ordinance violations.

The city convincingly establishes that a municipal court is not a court of record, but acknowledges that its exclusive jurisdiction in respect to ordinance enforcement exceeds that of all other courts.

The city also asserts that a municipal court is different from other courts referred to in the Wisconsin Constitution because there are specific limitations on the exercise of equitable jurisdiction. The city, pointing out that a judge of municipal court need not be a lawyer,[5]

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argues that it is unreasonable to expect complicated constitutional questions to be decided by nonlawyer judges.

The city most convincingly establishes that the authority of a municipal court is not identical with that of a circuit court and, therefore, reaches the conclusion that, because the circuit court has plenary jurisdiction, including the power to declare an ordinance unconstitutional, the municipal court, being different in many respects, cannot have that same power or authority. We do not believe that conclusion logically follows from the premises established by the city.

The city does, however, demonstrate that the constitution, by article VII, sec. 2, divides the judicial power into segments:

One supreme court

A court of appeals

A circuit court

Such trial courts of general uniform statewide jurisdiction as the legislature may create by law

A municipal court if authorized by the legislature

This segmentation becomes an important component of the city’s argument when it cites the holding i Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761
(1972), that, in addition to the supreme court having the authority to declare legislation unconstitutional, “trial courts” also have that power; but the city argues that, under the classification of article VII, sec. 2, the municipal court provision is stated separately and, therefore Just did not include municipal courts within the ambit of “trial courts,” whose power to determine constitutionality was ratified in that case.

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The city asserts that Just is authority that municipal courts, because they are not trial courts, cannot make determinations of constitutionality.

We believe that the City of Milwaukee relies on trivial verbal differences in Just where no significant distinction was intended. Just uses interchangeably the terms, “lower court[s],” 56 Wis.2d at 24, “inferior courts,” id. at 24, and “trial courts,” id. at 25. It is apparent that there was no intention to limit the holding of Just — that courts other than the supreme court could adjudicate constitutionality — to “trial courts,” as referred to in the constitution. Rather, the teaching o Just is that all courts in which constitutional questions are raised should decide them. The only meaningful distinction between court levels is the distinction between “appellate courts,”[6] id. at 25-26, and all other courts. The holding of Just is simply that determination of constitutionality reasonably cannot abide initial adjudication by the appellate court at a time long subsequent to the onerous imposition of the strictures of an unconstitutional legislative act. The teaching of Just is that, whenever a constitutional question is raised, it should be decided. of course, questions of constitutionality, like other questions of law, cannot finally be laid to rest until decided by final appellate adjudication — since 1978, either by the court of appeals by published opinion or by determination by the Wisconsin Supreme Court.[7]

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Just supports not the city’s position, but Wroten’s that optimum utilization of our court facilities requires that all courts have the authority to decide constitutionality.

The city has yet another argument that must be addressed — that a municipal court is not a court at all but is a mere administrative agency, which this court has held does not have the authority to decide constitutionality because administrative agencies are a part of the legislative branch of government that created them and, by implication, are not clothed with the power to declare unconstitutional the laws of their creator. See Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 646, 211 N.W.2d 471 (1973).

The city asserts that the same reasoning and conclusion is applicable to a municipal court, for under the constitution municipal courts can only exist if “authorized” by the legislature. Moreover, the legislature has limited their jurisdiction to “proceedings arising under ordinances of the municipality.” Does it not then follow that such a tribunal, by reason of its legislative genesis, cannot question the constitutionality of its progenitor — the state and, indeed, the city which established the municipal court by appropriate municipal legislative action.

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We conclude that the constitutional structure provides the answer, “No.”

Article VII of the constitution is captioned as the Judiciary Article. Section 2 of that article provides that the judicial power of this state shall be vested in a unified court system consisting of the supreme court, the court of appeals, the circuit court, trial courts that may be created by the legislature, and a municipal court if authorized by the legislature.

Thus, under our organic law, once a municipal court is created, its power is not that of the legislature that has authorized it, but its power is judicial as a part of the unified court system. A municipal court under the constitution is a repository of judicial power even as are the supreme court, the court of appeals, and the circuit court. It is not inhibited as is an administrative agency, which can only be the repository of some of the attributes of its legislative creator.[8] Rather, by legislative action, specifically contemplated and authorized by the constitution, a municipal court is endowed by its creation with judicial powers. It is the constitution, the organic document of our sovereignty, that gives the legislature the power to create courts, which by enabling legislation are then endowed with the constitutionally bestowed attributes of judicial powers. The legislature is but a catalyst in this process of court creation. The municipal court is a court that is constitutionally a part of the court system.[9]

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Thus, the question is what powers inhere in any court in respect to determination of constitutionality. The answer is found in venerable constitutional law aptly and irrevocably stated by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803):

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

See also Lent v. Tillson, 140 U.S. 316, 330 (1891), which stated, “[T]he power to [rule on a statute’s constitutionality] is necessarily involved in the power of the court to act at all.”

Thus, in conformity to the “separation of powers” doctrine, a municipal court, as a part of the judicial branch, must have the inherent authority to rule on

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constitutional issues affecting the municipal ordinance which is involved in the case before it.

Marbury v. Madison is also the seminal rationale for making the judge’s oath an important criterion or guideline for judicial conduct when a judge is faced with the prospect of proceeding with an action based upon an unconstitutional legislative act. The judicial oath, an oath taken by all Wisconsin judges, provides in part, “I do solemnly swear that I will support the constitution of the United States and the constitution of the state of Wisconsin.”

It is argued by the defendant, and it was asserted by the municipal judge, that this oath by its words obligated him to hold unconstitutional the ordinance that came before him.

While we agree with the conclusion of the municipal judge and the assertion of the defendant, we do not view the oath, per se, as conferring the power to declare an ordinance unconstitutional. As the city has pointed out, legislative, executive, and administrative officers take the same oath, but it cannot be argued that those officers thereby acquire the power to declare legislation unconstitutional. As we view the oath, it obligates the officer to adhere to constitutional principles in administering the public trust of the particular office. For an executive officer or for a legislative officer, this means he or she swears to perform those executive, legislative, or administrative duties in a constitutional manner. The oath taken by a judge has the same significance, and it includes the obligation to perform judicial duties in the manner prescribed by our constitution, including the exercise of the inherent authority and obligation so well stated in Marbury v. Madison. Thus, when judicial officers subscribe to the oath, they obligate themselves

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to determine the constitutionality of legislation when the legislation is challenged on that basis. Their power comes not from the oath, but from the constitution, as is explained in Marbury v. Madison.

Nowhere in the constitution is the power to declare a law unconstitutional expressly given to any court, whether it be the supreme court, the court of appeals, or the circuit court; but all of those courts have that power because they are courts, even as the municipal court has that power and for the same reason. No express constitutional delegation is appropriate or necessary. It is an inherent power that derives from the doctrine of separation of powers and the fact that the constitution is the supreme law of the land and of the state and only the courts can finally adjudicate that supremacy.

Nevertheless, the city, quoting article VII, sec. 14, of the constitution, states that the municipal court has jurisdiction “limited to actions and proceedings arising under ordinances of the municipality in which established.” How then can it have the awesome power to declare a matter unconstitutional? We conclude that, once a court, including a municipal court, appropriately invokes its jurisdiction, it has the power to exercise all of its constitutional powers within the framework of that conferred jurisdiction. Thus, in the exercise of its jurisdiction in the instant case in respect to the municipal ordinance, which is unquestioned, it could, in fulfillment of its jurisdictional mission,[10] invoke all judicial powers

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that are not specifically denied.

Therefore, municipal courts, once created by the legislature and by appropriate municipal action, are courts endowed with all judicial powers not expressly denied them, which powers may be exercised in all cases that fall within their jurisdiction. We hold that the municipal court has the authority to determine the constitutionality of an ordinance that is the basis of an action brought before it.[11]

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II

Constitutionality of Sec. 2-138 of City of Milwaukee Ordinances

The municipal court and the circuit court held the Milwaukee ordinance to be unconstitutionally overbroad.

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We agree with the determination of both courts and accordingly affirm.

The overbreadth doctrine in principle is easy to state but sometimes difficult to apply. The principle is simply that an ordinance or statute which has the effect or the potential of chilling or inhibiting speech, which is protected by the first amendment, is unconstitutional. In application, it recognizes the right of a person whose own speech or conduct is not protected by the first amendment to challenge a statute or ordinance which on its face sweeps too broadly and substantially reaches protected first amendment expression. See City of Milwaukee v. Nelson, 149 Wis.2d 434, 451-52, 439 N.W.2d 562 (1989).

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Thus, it is reasoned that an overbroad legislative enactment, “threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution and undertake to have the law declared . . . invalid.”Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).

Accordingly, a court will strike an overbroad statute because it might apply to others not before the court who may engage in protected activity which the statute appears to outlaw. See generally, Nowack, Rotunda
Young, Constitutional Law (West Publishing Co., 1986). As was said in N.A.A.C.P. v. Button, 371 U.S. 415, 432
(1963):

[T]he [statute] may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.

While, as the excellent opinions of both the municipal judge and the circuit judge demonstrate, a party challenging the statute or ordinance, or a judge contemplating its constitutionality, can hypothesize situations where the language of the statute can reach and inhibit protected expression, there are limits that are to be placed upon the use of hypothetical situations. The overbreadth of the statute must be real and substantial. This court said in Milwaukee v. K.F., 145 Wis.2d 24, 40, 426 N.W.2d 329 (1988):

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[I]n asserting an overbreadth challenge an individual may hypothesize situations in which a statute or ordinance would unconstitutionally intrude upon the first amendment rights of third parties . . . . However . . . the court will not deem a statute or ordinance invalid because in some conceivable, but limited, circumstances the regulation might be improperly applied.

Also, the cases of the United States Supreme Court exclude from privileged speech “fighting words” which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

Opinions of the United States Supreme Court have indicated that what may be “fighting words” under Chaplinsky may nevertheless be protected speech when directed against a police officer who as “a properly trained officer may reasonably be expected to `exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to `fighting words.'” Lewis v. City of New Orleans, 415 U.S. 130, 135
(1974) (Powell, J., concurring); Houston v. Hill, 482 U.S. 451, 462 (1987) (see also Powell, J., concurrence at 479).

Additionally, there are cases where an ordinance may on its face appear to sweep too widely, but by a process of judicial construction, a state court might conclude that, on the basis of legislative history and examination of the verbiage, the enactment can be applied constitutionally to nonspeech-related conduct. The city urges us to so construe the ordinance if we otherwise were to find it overbroad.

With these general principles in mind, we examine the particular ordinance before us.

The ordinance was adopted by the common council of the City of Milwaukee in 1855, long before the enactment

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of the Civil War amendments to the constitution that eventually led to the incorporation of the Bill of Rights by the use of the fourteenth amendment into the constitutional law that is applicable to every state. The Milwaukee ordinance’s passage long antedated any specific statement of the overbreadth doctrine, although as early as 1875, the Supreme Court in United States v. Reese et al., 92 U.S. 214, 221 (1875), stated:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.

We know nothing of the legislative history, the particular facts, or societal problems that impelled the passage of the Milwaukee ordinance.[12] We must therefore appraise this ordinance[13] on the basis of its language alone:

2-138. Resisting Officer. Whoever in this city shall resist, or any way interfere with any police officer or member of the police department in the

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discharge of his duty, or shall hinder or prevent him from discharging his duty as such officer or member, or shall offer or endeavor so to do, and whoever shall in any manner assist any person in custody of any officer or member of the police department to escape or attempt to escape from such custody, or shall rescue or attempt to rescue any person in custody, shall forfeit a penalty of not less than ten dollars ($10) nor more than two hundred and fifty dollars ($250), or be imprisoned in the house of correction for not less than thirty (30) days nor more than six (6) months, or by both such fine and imprisonment.

The city argues that, in any event, the overbreadth doctrine which protects free speech is inapplicable here, because the violative element leading to Wroten being charged was conduct, not speech. The facts, sketchy as they are, do not determine this issue. A portion of the citation refers to “verbal abuse” directed to the police officers — clearly, a matter denominated as speech. Another portion of the citation refers to Wroten’s refusal to leave the area. This is arguably conduct, although mere presence, or refusal to leave a place in some instances, such as peaceful picketing, may be protected as speech. However, what Wroten did at the time of her being charged is irrelevant. At issue is the facial invalidity of the ordinance and not whether the person charged has been improperly denied the right of free speech. Even if Wroten’s action could properly be denominated conduct in a narrowly and carefully crafted ordinance, the question is whether the enforcement of the ordinance as enacted by the common council of Milwaukee could have the effect of chilling freedom of expression. We therefore address the ordinance itself.

In paraphrase, the ordinance prohibits a person from resisting or in any way interfering with any police

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officer or hindering or preventing him from the discharge of his duty or from offering or endeavoring to do so.

If these words refer exclusively to conduct, they are constitutionally acceptable. If, however, they can also apply to verbal expressions which are not “fighting words,” the ordinance is on its face, without resorting to the underlying facts which led to the charge against Wroten, overbroad and constitutes an infringement upon protected speech.

The following are partial definitions of the key words of the ordinance as stated in Webster’s Third New International Dictionary:

Resist — “to exert oneself to counteract or defeat”

Interfere — “to enter into or take a part in the concerns of others”

Hinder — “to make slow or difficult the course or progress of; to keep from occurring, starting, or continuing”

Prevent — “to keep from happening”

Each of these, with the possible exception of “resist,” could as reasonably refer to verbal expression as to conduct.

In Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found the ordinance overbroad when it prohibited anyone from “interrupting” a police officer in the execution of his duty. The use of the word, “interrupts,” was found to be excessively sweeping and, therefore, constituted an unconstitutionally overbroad restriction on speech. The Court, at 462, said, “It is not limited to fighting words nor even to obscene or opprobrious language, but prohibits speech that `in any manner . . . interrupt[s]’ an officer.”

It is significant to note that “interrupts,” the word that was found to sweep too broadly in Houston v. Hill,

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is synonymous with three of the words used in the Milwaukee ordinance. Webster’s Third New International Dictionary defines “interrupt” as to “halt, hinder, o interfere with the continuation of . . .,” or to “prevent
(one) from proceeding.” (Emphasis supplied.)

Thus, the critically unconstitutional term used in the Hill ordinance is defined to encompass three of the activities prohibited by the Milwaukee ordinance.

The Hill ordinance was prefaced with the words prohibiting a person “in any manner [to] . . . interrupt any policeman in the execution of his duty.” At 455 (emphasis supplied). In the ordinance before us, the analogous language is “resist, or any way interfere . . . .” (Emphasis supplied.)

Thus, if it were not apparent from the words themselves, the “any way” language, as does the “any manner” language of Hill, leads inexorably to the conclusion that the prohibited activity includes speech that “interferes,” “prevents,” or “hinders,” as well as physical conduct that has the same effect. A broad and expansive interpretation is dictated by the language.

The explication of the language of the ordinance makes it unnecessary to hypothesize situations in which freedom of speech will be abridged at the untrammeled option of a police officer, but both Judge Gramling, the municipal judge, and Judge Lampone, the circuit judge, well stated examples of the potential sweep of the ordinance. Judge Gramling stated:

Analysis of the Milwaukee ordinance reveals that it has the same constitutional infirmities as those described above. It applies to verbal conduct and has no measurable limitations. Any spoken words which a police officer believes have in any way interfered with the officer subject the person to prosecution.

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A Milwaukee citizen who wishes to question or challenge police conduct at an arrest scene may be deterred by this ordinance from doing so. The speaker’s comments or questions may reflect reasoned judgment or short-tempered frustration. Their unpleasant content, standing alone, cannot make them punishable, however, if the First Amendment is to retain its treasured status in our society.

Judge Lampone in her opinion stated:

. . . the Milwaukee ordinance does not require that an obstruction actually take place; all one need offer or endeavor to hinder the officer. This is less than would be required under an “attempt” statute, which requires an intent to commit the offense and an act toward commission of the offense which demonstrates “unequivocally” that he formed the intent and would commit the offense but for the intervention of an extraneous factor. Sec. 939.32(3), Stats. Under the American Law Institute version, equivocal or preparatory conduct is excluded; under the Milwaukee ordinance, it could be the basis for an arrest. This far-reaching prohibition against an “offer” or “endeavor” increases dramatically the already extremely broad discretion vested in the officer.

She also stated:

The Milwaukee ordinance could apply to a substantial amount of constitutionally protected conduct. One who complained of the amount of force used by an officer in effecting the arrest of a third party could be deemed to be interfering with that officer’s arrest. A witness who, loudly professing dislike of authority, refused to identify the perpetrator of a crime could be deemed to have “prevented” the officer from arresting the culpable party. A bystander who advised a suspect to refrain from making any

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statement to investigating officers until his attorney arrived could be “endeavoring” to prevent the police from obtaining a statement. A mother who verbally challenged an officer’s right to take her minor child into custody would be “interfering” with the officer’s duty to detain the child.

We also note that the Milwaukee ordinance could apply irrespective of any purpose or “intent” to eventually interfere, hinder, or prevent police from carrying out their duties. We do not belabor that lacuna of the ordinance, for it is unconstitutional because of the facial overbreadth of the words used. We point out, however, that in Milwaukee v. Wilson, 96 Wis.2d 11, 291 N.W.2d 452 (1980), we concluded that the presence of an intent element was crucial to preserving the constitutionality of a prostitution-loitering ordinance.[14]

The city also urges that the ordinance be construed in such a manner as to preserve its constitutionality. If at all possible, an ordinance or statute should be construed to preserve its constitutionality. The city acknowledges that protected speech cannot be controlled but asserts that a proper construction would render the ordinance constitutional. It urges that “[t]he ordinance should be found to include only physical conduct or verbal conduct which is not protected, i.e., `fighting words.'”

While it is our obligation to so construe the ordinance as to preserve its constitutionality, we cannot in

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this case do so. The ordinance is unambiguous. Not only from the dictionary definition of the words referred to above that are clearly applicable to speech alone, but also from the statement that interfering, preventing, or hindering in “any way,” we are precluded from excluding by construction verbal means of accomplishing what the ordinance prohibits. We cannot construe out of the ordinance the prohibitions that chill the first amendment rights of free speech. It is unambiguously overbroad. Nor can we even venture an opinion of the original intent of the drafters 135 years ago. As stated in footnote 12, one purpose of the ordinance might well have been to prevent the rescue of fugitive slaves from the toils of the slave catchers. But even this is sheer speculation. Without any guideline of the purpose of this very old ordinance, such construction would of necessity be not to give the legislation the meaning the enacting body intended it to have, but for us to give it the meaning and intent that we conclude it must have now — 135 years later — to preserve its constitutionality. This would be judicial legislation of unparalleled audacity. We decline to rewrite the ordinance. In view of the unambiguous meaning of the ordinance — that even protected speech falls within its sweep — no reconstructive manipulation can preserve it. As the Court stated in Shuttlesworth v. Birmingham, 394 U.S. 147, 153 (1969), not even “a remarkable job of plastic surgery upon the face of the ordinance” can save it. We conclude that the ordinance is constitutionally defective for overbreadth — for its chilling effect on protected speech — and no construction of the ordinance by this court can preserve its constitutionality.

The municipal court, and the circuit court correctly affirming it, so found. We hold that a municipal court

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has the judicial power to determine the constitutionality of an ordinance that is properly within its jurisdiction.

We affirm the order of the circuit court which affirmed the order of the municipal court dismissing the city’s complaint on the merits because the ordinance was unconstitutionally overbroad.

By the Court. — Order affirmed.

STEINMETZ, J. (dissenting).

The majority holds that a municipal court in Wisconsin has the authority to declare a municipal ordinance unconstitutional. The majority also holds that city of Milwaukee ordinance 2-138 (1979) is unconstitutionally overbroad on its face. Because I disagree with the majority’s analysis and conclusions, I dissent. I would reverse the decision of the circuit court.

Municipal courts in Wisconsin are not constitutional courts;[1] rather, they are the product of legislative enactment.[2] As such, they have no jurisdiction except that which is conferred upon them by statute. While it may be presumed that a particular creating statute endows a superior court with jurisdiction, no presumption exists as to inferior courts such as municipal courts. 20 Am. Jur. 2d Courts sec. 28 (2d ed. 1965). In fact,

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jurisdiction conferred upon municipal courts by statute must be express. 57 Op. Att’y Gen. 11, 14 (1968); 9A E. McQuillin, The Law of Municipal Corporations, sec. 27.02 (C. Keating 3d ed. 1986); C. Sands, Local Government Law, sec. 11.28 (1981).

Clearly, sec. 755.045, Stats.,[3] which prescribes the jurisdiction of municipal courts, makes no express grant of jurisdiction to declare an ordinance unconstitutional. Arguably, the jurisdiction that the majority purports the municipal courts to have in this case is not even implied in the statute. Because the municipal courts in Wisconsin are endowed neither by the constitution nor by statute with the authority to declare unconstitutional a municipal ordinance, the majority has reached a mistaken result.[4]

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Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972), logically and reasonably requires my conclusion. In Just, we determined that trial courts, as such, have authority to pass on constitutional issues. Id. at 26. As article VII, sec. 2 of the Wisconsin Constitution itself makes clear, Wisconsin distinguishes “trial courts” from “municipal courts.” In essentially characterizing our conclusion in Just as a singular exception to the long-standing rule that “inferior courts” normally should regard a legislative enactment as constitutional until the contrary is decided by a court of appellate jurisdiction, we specifically referred to “trial courts,” identifying them with “circuit courts.” Id. at 24-26. Just‘s holding is properly extended only to trial courts, i.e., circuit courts, and not to inferior courts such as municipal courts. Indeed, it is patently unreasonable to extend the Just
exception to municipal courts. Just requires, with good reason, that any constitutional issues be “thoroughly briefed” and “fully presented” to the court, Id. at 26, whereas in municipal court it is often the case that no counsel is available on behalf of the defendant.[5]

As the majority acknowledges, municipal courts, unlike trial courts, are not courts of record. Majority op. at 215. Indeed, sec. 800.13(2), Stats., says as much. The majority ignores the significance of this distinction. Nevertheless, the distinction has been acknowledged by the United States Supreme Court. In Houston v. Hill, 482 U.S. 451, 470-71 (1987), the Houston municipal courts apparently did not rule on the question of the constitutionality of the ordinance. However, the Supreme Court evidently considered the Houston municipal courts to have had the authority to do so precisely because they are courts of record. “It is undisputed

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that Houston’s Municipal Courts, which have been courts of record in Texas since 1976, have had numerous opportunities to narrow the scope of the ordinance.”Id. at 469-70.

Because Wisconsin municipal courts are not courts of record, they are able to provide something of a summary procedure, less costly and less protracted than the procedure used in courts of record, in applying local regulations to the facts of a particular case. Certain legal technicalities that may encumber an ordinary proceeding are generally dispensed with in municipal court proceedings. As the United States Supreme Court announced in Colten v. Kentucky, 407 U.S. 104, 117
(1972):

`[T]he inferior courts are not designed or equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms. They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses.’

In other words, municipal courts, by definition and necessity, are not courts in which the fullest and most careful legal consideration is given to the issues presented, generally speaking.

In this connection, I would invoke the well established maxim that questions involving the interpretation and application of the constitution must be approached with the greatest possible deliberation. 20 Am. Jur. 2 Courts, sec. 66 (2d ed. 1965). Even those courts which have jurisdiction to declare an ordinance unconstitutional must exercise that power with the greatest possible caution and even reluctance. Id. Clearly, municipal courts are neither formulated nor equipped to provide the particularly careful attention needed to pass on constitutional issues.

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Even assuming that counsel is available in any given case before the municipal court, there is another important consideration that the majority fails to recognize: municipal court judges are not required to be attorneys at law. According to a very recent study using raw data furnished by this court, only about 40 percent of all municipal court judges in Wisconsin are attorneys.[6] See
Wisconsin Municipal Judges Association Court Survey (5th ed. 1990). Formally uneducated in constitutional law, non-attorney municipal judges may not be adequately trained so as to be able to declare an ordinance unconstitutional.[7] Insofar as this raises any concern as

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to the ability of municipal courts in Wisconsin to fully and equally deliver justice to all who appear before them, it is inappropriate for the majority to conclude, as it presumptively does, that municipal courts have the constitutional jurisdiction with which the well represented defendant as here would endow them. The result of the majority’s decision may well be that, in the future, constitutional ordinances will be invalidated as unconstitutional.[8]

The fact that municipal courts have neither the jurisdiction nor the practical wherewithal needed to exercise jurisdiction to declare an ordinance unconstitutional is related to the very nature of the actions that municipal courts address. First of all, constitutional issues arise very infrequently in municipal courts. L. Wasby, Public Law, Politics and the Local Courts, 14

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Journal of Public Law 105 (1966). As a natural consequence, in the rare circumstance of a constitutional issue actually surfacing, the municipal judge will be unpracticed in addressing it, even if he is an attorney. Particularly if the municipal judge is not an attorney, his potential disadvantage in being able to address the issue will be reinforced and exaggerated by his practical lack of familiarity and experience with constitutional issues.

In addition, an action for violation of a municipal ordinance is civil rather than criminal in nature. Section 800.02(1), Stats.; State ex rel. Prentice v. County Court, 70 Wis.2d 230, 241, 234 N.W.2d 283 (1975). This rule is well-settled generally. See e.g., E.C. Yokley, Municipal Corporations sec. 376 (1957). There are two primary reasons for the rule. “The first is that only the state is the sovereign, and that only an offense against the sovereign is a crime.” Prentice, 70 Wis.2d at 241. “Another reason is that violations of municipal ordinances are minor offenses for which a forfeiture is the only permissible direct punishment.” Id. at 241-42. This court has said that, at least to the extent that the potential forfeiture does not exceed $500, there is no criminal penalty involved. State v. Kramsvogel, 124 Wis.2d 101, 369 N.W.2d 145, cert. denied 474 U.S. 901 (1985). Under the ordinance in question in this case, the maximum forfeiture is $250.[9]

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Thus, the proceeding in this case clearly was civil and not criminal in nature. Given that civil proceedings are to be less closely examined than criminal ones Record Head Corp. v. Sachen, 682 F.2d 672, 676 (7th Cir. 1982), it is all the more clear that the municipal court did not have any legitimate basis upon which to declare unconstitutional the civil ordinance in question.[10]

Although it denies it is doing so, the majority essentially asserts that because a municipal court judge pledges to uphold the constitution when he takes his

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oath of office, a municipal court has the authority to declare an ordinance unconstitutional as did the municipal court in this case. Majority op. at 221-222. This is a nonsequitur. As even the majority points out, Id. at 222, Wisconsin’s constitutional officers, legislators, and members of the bar all take oaths to uphold the constitution; their reading of their oaths does not endow them or their respective positions with the authority to pass upon constitutional issues that might surface in a court. The majority confuses the oath made by the particular judge with the jurisdiction of the court in general.

The conclusion I draw has support in the case law of other jurisdictions. For example, the New Jersey Superior Court has noted that a “municipal court is an inferior court and it is not ordinarily within its purview to deal with debatable questions relating to the constitutionality of statutes, especially those of long standing.”State v. Celmer, 384 A.2d 894 (N.J.Super.Ct. App. Div. 197 8), rev’d on other grounds, 404 A.2d 1 (N.J. 1979). Other courts have indicated that a municipal court has jurisdiction to pass upon constitutional issues only under circumstances where the municipal court proceedings are regarded, because of the relative severity of the possible penalties prescribed by the respective ordinances or because of statutory grants of criminal jurisdiction conferred upon the municipal court, as criminal in nature See, e.g., West v. Winnsboro, 252 La. 605, 211 So.2d 665
(1967); State v. Price, 105 Ohio St. 376, 152 N.E.2d 776
(Ohio Ct. App. 1957). Even where the municipal court proceeding was regarded as criminal in nature, one court concluded that it would be improvident to permit the “poorly equipped” municipal court jurisdiction to pass upon the constitutional question at issue. Aluminum Cooking Utensil Co. v. City of North Bend, 210 Or. 412, 311 P.2d 464, 467 (1957). These courts obviously recognize

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that to burden municipal courts with a responsibility they are not authorized or equipped to handle jeopardizes the fair and proper delivery of justice by the municipal courts.

In conclusion, then, I submit that municipal courts in Wisconsin do not have jurisdiction to declare municipal ordinances unconstitutional. Moreover, it simply is not wise to put Wisconsin municipal courts in a situation in which some are called upon to accomplish things for which they are inadequately trained. Allowed to carry out their useful and necessary function of considering the merits of the case before them, Wisconsin municipal courts, which have earned a reputation for excellence, will continue to be a widely esteemed pillar of the judicial function of government. Asked by the majority to go beyond their constitutional and statutory mandate, municipal courts could potentially lose some of the popular respect they now enjoy and deserve.[11]

If a defendant wishes to raise constitutional objections to a given ordinance, the proper approach, assuming the defendant is not successful on the merits of his case in municipal court, is for the defendant to address his constitutional concerns on appeal to the circuit court, pursuant to sec. 800.14, Stats., in which case the

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defendant receives a trial de novo. See, e.g., State ex rel. Beaudry v. Panosian, 35 Wis.2d 418, 151 N.W.2d 48
(1967). As Just makes clear, constitutional questions are properly considered at trial to the circuit court.

I also dissent as to the majority’s conclusion that the Milwaukee ordinance is unconstitutional. As the majority has shown, Milwaukee ordinance 2-138 (1979)[12] is, at first glance, facially overbroad. Unfortunately, that is where the majority’s analysis effectively ends, and where its error begins. The majority gives only perfunctory attention to the duty of this court to devise limiting construction of the ordinance so as to render it constitutional if such is possible. Further analysis shows that the ordinance can be rendered constitutional.

“[T]his court must interpret an ordinance, as it would a statute, to preserve its constitutionality.” Milwaukee v. K.F., 145 Wis.2d 24, 47, 426 N.W.2d 329
(1988). “It is elementary that an ordinance is presumed to be constitutional and that the attacking party must establish its invalidity beyond a reasonable doubt.” J N Corp. v. Green Bay, 28 Wis.2d 583, 585, 137 N.W.2d 434
(1965). “[T]his court will not interfere with a municipality’s exercise of police power unless it is clearly illegal.” Id.

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As noted by the United States Supreme Court i Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973), challenged legislation generally should not be found facially overbroad “when a limiting construction has been or could be placed” on it. In this regard, the Supreme Court looks for state courts to craft a suitable limiting construction. State legislation or a municipal ordinance “should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts.” Id. Indeed, only the state courts can supply the requisite narrowing construction, since the Supreme Court lacks jurisdiction to authoritatively construe state legislation. Gooding v. Wilson, 405 U.S. 518, 520 (1972).

The majority fails to take up the task of crafting a suitable limiting construction. Instead, at majority op. at 230, the majority cites Hill. In Hill, the Supreme Court found unconstitutionally overbroad an ordinance that prohibited any person “in any manner [to] . . . interrupt” any policeman in the execution of his duty. The majority focuses on the ordinance’s use of the words “in any manner,” likening it constitutionally to the words “any way” used in the Milwaukee ordinance regulating that a person may not “resist, or any way interfere . . . .” Majority op. at 231.

The most notable feature of the majority’s discussion in this regard is that it fails to consider that in Hill
the state courts had never even attempted to craft a limiting construction upon that ordinance.[13] Hill, 482 U.S. at 469-71. Had the state courts prescribed a limiting construction, the Supreme Court would have been bound by it. Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

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It is possible that the Supreme Court in Hill might have concluded that the result of a particular limiting construction devised by the state courts was to render the ordinance not constitutionally overbroad.[14]

Thus, Hill is poor precedent for the majority. If need be, this court has the power to completely sever from an ordinance arguably constitutionally objectional words, leaving intact the rest of the ordinance. See Madison v. Nickel, 66 Wis.2d 71, 223 N.W.2d 865 (1974); see also State ex rel. McStroul v. Lucas, 215 Wis. 285, 29 N.W. 73 (1947). Insofar as the words “any way” in the Milwaukee ordinance are truly objectionable, this court can simply sever those words from the ordinance.

The majority also suggests that the ordinance is unconstitutional because it “could apply irrespective of any purpose or `intent.'” Majority op. at 233. In City of Milwaukee v. Nelson, 149 Wis.2d 434, 453, 439 N.W.2d 562 (1989), aff’g 142 Wis.2d 944, 419 N.W.2d 573 (Ct. App. 1988), however, this court found the particular ordinance in question in that case not overbroad even though it, like the ordinance here, did not contain an element of intent. Whether or not an ordinance contains an intent element clearly is not dispositive of the ordinance’s constitutionality.

For its part, the City of Milwaukee has submitted that, as a matter of police practice, the ordinance in question here does not apply to all verbal conduct as such but only to physical conduct and “fighting words.”

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For all intents and purposes, the majority has ignored Milwaukee’s argument.[15] In doing so, it also has ignored the longstanding rule that, in construing an ordinance for constitutionality, a court should consider “very persuasive” the particular construction given by those responsible for enforcement of the ordinance. Adams Express Co. v. New York, 232 U.S. 14, 30-31 (1914). Cf. Milwaukee Fire Fighters Assoc. v. Milwaukee, 50 Wis.2d 9, 18, 183 N.W.2d 18 (1971) (the practical administrative construction of an ordinance over a long period of time is entitled to great weight). Had the majority given due consideration to Milwaukee’s construction of the ordinance, it would have found the ordinance not constitutionally overbroad.

Given this court’s duty, as articulated in K.F., J N Corp. and other case law, to find an ordinance constitutional if at all possible,[16] it is unfortunate that the majority does not even attempt a limiting construction. The ordinance here quite easily could be constructed so as to reach only physical conduct and “fighting words.”[17] The majority’s dictionary definitions of the words “resist,” “interfere,” “hinder,” and “prevent,” majority op. at 230, do little to advance the majority’s position. “Each of

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these [words], with the possible exception of `resist,'” the majority asserts, “could as reasonably refer to verbal expression as to conduct.” Majority op. at 230.

That is not, at least it should not be, the question. The question should be whether the words and the ordinance as a whole can be construed so as not to be overbroad. As a preliminary matter, given the meaning attributed to “resist,” “interfere,” “hinder,” and “prevent” in common usage, the words arguably relate primarily to physical and not to verbal conduct. In any case, within the ordinance, they can be construed in a limited way so as to be rendered constitutional in general application. Furthermore, if necessary, an “intent” element can be read into the ordinance. See State v. Williams, 534 A.2d 230 (Conn. 1987). Such a construction certainly would render the ordinance here constitutional.

One might hypothesize, as does the majority opinion, situations in which the ordinance might unconstitutionally intrude upon a third party’s first amendment rights. “However, in analyzing the constitutionality of potential applications of a regulation, the court should not deem an ordinance invalid because in some conceivable, but limited, circumstances the regulation might be improperly applied.” K.F., 125 Wis.2d at 40.

Even after Hill, courts in other jurisdictions have construed legislation very similar to the Milwaukee ordinance to be constitutional. For example, in Matter of E.D.P., 573 A.2d 1307 (D.C.App. 1990), the court construed as constitutional a hindering statute that made it unlawful to “assault,” “resist,” “oppose,” “impede,” “intimidate,” or “interfere” with a police officer or government supervisor of juveniles. The court said:

[The statute] can be narrowly construed to apply to physical conduct rather than speech. [Citations omitted.] As applied to appellant, the statute can be construed

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to prohibit individuals from physically opposing District juvenile supervisors. This construction is consistent with the plain language of the statute, eliminates free speech and assembly concerns, and sufficiently clarifies the standard of conduct required by the statute.

573 A.2d at 1309.

In Wilkerson v. State, 556 So.2d 453 (Fla.App. 1990), a Florida court of appeals chose to limit and save that state’s resisting statute. That statute generally made it unlawful to “obstruct or oppose” a police officer in the execution of his or her duty “without offering or doing violence to the person of the officer.”556 So.2d at 454. The defendant was arrested after yelling at the police officers (who were arresting drug sellers) and refusing to leave the area. The court said it did not “construe the language of [the statute] as reaching protected free speech.” Id. at 455. “[W]e agree with the state’s argument that this statute may be given a limiting construction that avoids the overbreadth deficiency found in the Houston ordinance by the Court in Hill.”Id. at 456.

Other jurisdictions as well have distinguished Hill
and have imposed limiting constructions on ordinances alleged to have been unconstitutionally overbroad. See Williams; State v. Krawsky, 426 N.W.2d 875 (Minn. 1988). See also People v. Dietze, 75 N.Y.2d 47, 549 N.E.2d 1166 (1989) (Wachtler, C.J., concurring).

Milwaukee ordinance 2-138 (1979) has a legitimate purpose — primarily to prohibit acts or conduct that operate to physically oppose an officer in the performance of his lawful duties. The ordinance can and should be constructed so as not to be unconstitutionally overbroad. The majority ignores the opportunity and duty it

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has to save this statute from extinction. I therefore dissent and would reverse the holding of the trial court.

I am authorized to state that JUSTICE LOUIS J. CECI joins this dissenting opinion.

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