State v. Schwebke
253 Wis.2d 1, 2002 WI 55, 644 N.W.2d 666 (2002)
Rule of Law:
The Wisconsin disorderly conduct statute, which explicitly applies to conduct in a public or private place, can extend to private harassing acts like anonymous mailings if the conduct, viewed objectively under the circumstances, tends to cause a disturbance that creates a real possibility of spilling over and disrupting the peace, order, or safety of the surrounding community.
Facts:
- Between May 1996 and February 1997, Glenn Schwebke sent multiple anonymous, stenciled mailings containing newspaper clippings about her high school and college activities, 30th birthday greetings, and 45 RPM records (including songs like 'Every Breath You Take' and 'Hot For Teacher') to Robbie Twohig, at her home and workplace.
- Robbie Twohig felt 'completely violated' and 'frightened' by the mailings, experiencing increasing fear with each delivery, and consequently moved multiple times, changed her phone number, and sought advice on harassment.
- In February 1997, Schwebke sent anonymous, stenciled mailings containing 34th birthday greetings and newspaper clippings about her life to Patty Marcinko, Robbie Twohig's sister, at her home and workplace.
- Patty Marcinko found the mailings threatening, especially in light of the similar mailings her sister had received, causing concern for her and her family.
- Prior to October 1996, Thomas Lamke, Robbie Twohig's former boyfriend, received unrequested gay literature at his home and workplace, which led to substantial ridicule from his co-workers.
- In October 1996, Schwebke sent Lamke an anonymous, stenciled mailing containing 45 RPM records with songs like 'Where The Boys Are' and 'San Francisco (Be Sure To Wear Some Flowers In Your Hair)', which Lamke believed were related to homosexuality.
- Lamke was bothered by the records and felt the anonymous mailings reinforced attempts to upset him, which negatively affected his relationships with his co-workers.
Procedural Posture:
- Glenn Schwebke was initially charged with 14 counts of disorderly conduct in Fond du Lac County Circuit Court.
- The circuit court (Honorable Dale L. English presiding) issued an order partially granting and partially denying Schwebke's motion to dismiss, dismissing one count due to the statute of limitations and five counts for insufficient facts, but finding probable cause for the remaining allegations.
- Schwebke filed a petition for leave to appeal this circuit court order, which the Wisconsin Court of Appeals denied.
- Two other counts were later severed by the circuit court, resulting in six remaining counts against Schwebke.
- A jury in the circuit court convicted Schwebke on all six remaining counts of disorderly conduct.
- Schwebke appealed his conviction and sentence to the Wisconsin Court of Appeals.
- The Wisconsin Court of Appeals affirmed the judgment of conviction but reversed the sentence based on an error in imposing consecutive terms of probation.
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Issue:
Does anonymous, non-threatening, private mail that causes personal discomfort and fear to recipients, but not direct public disruption, constitute 'otherwise disorderly conduct' under circumstances tending to cause or provoke a disturbance, thereby supporting a conviction under Wisconsin's disorderly conduct statute?
Opinions:
Majority - William A. Bablitch, J.
Yes, anonymous, non-threatening, private mail that causes personal discomfort and fear to recipients can constitute 'otherwise disorderly conduct' under circumstances tending to cause or provoke a disturbance, supporting a conviction under Wisconsin's disorderly conduct statute. The court affirmed that Wis. Stat. § 947.01 applies to conduct in a 'public or private place' and requires 'a disturbance,' not necessarily a 'public' one. The term 'otherwise disorderly' refers to conduct similar to the enumerated types (violent, abusive, etc.) that tends to disrupt good order. While prior cases often involved public disturbances, the statute's reach is not exclusively limited to such instances, as shown by convictions in domestic disputes. The court clarified that conduct causing a disturbance that is personal or private can be disorderly if there exists a 'real possibility that this disturbance or disruption will spill over and disrupt the peace, order or safety of the surrounding community as well,' going beyond mere personal annoyance. An examination of legislative history confirmed that the creation of separate harassment statutes did not render harassment and disorderly conduct mutually exclusive, upholding prosecutorial discretion. Constitutional concerns regarding overbreadth or vagueness were not directly implicated because the prosecution targeted the defendant's overall conduct (repeated mailings of unwelcome items) rather than the content of speech, and such challenges were not properly raised below. The evidence was sufficient to convict Schwebke, as his obsessive mailings caused significant fear and concern among the victims and their families and friends, leading to police involvement, thereby demonstrating the necessary 'spillover' effect into the community.
Dissenting - Shirley S. Abrahamson, Chief Justice
No, the disorderly conduct statute should not be stretched to cover anonymous, non-threatening, private mailings that cause personal discomfort and fear to recipients, as such conduct does not constitute 'otherwise disorderly conduct' under circumstances tending to cause or provoke a disturbance. Chief Justice Abrahamson argued that the State had other appropriate and effective legal remedies for harassment and stalking, which were more specifically tailored to address the defendant's conduct. She contended that the majority's interpretation of Wis. Stat. § 947.01 inappropriately extended the statute's reach beyond its intended scope, which traditionally required a threat to public order, not solely private harassment. The dissent asserted that the majority erroneously conflated 'disturbing' (causing personal upset) with 'disturbance' (a public disruption), thereby expanding the statute to criminalize virtually any antisocial or offensive private conduct if it is merely reported to others, thus potentially affecting the community. This broad interpretation, she warned, risks returning to overly expansive laws that grant unchecked police and prosecutorial discretion and could lead to the inappropriate incarceration of individuals, including the mentally ill, who might be better served by mental health treatment rather than criminal penalties.
Analysis:
This case significantly broadens the application of Wisconsin's general disorderly conduct statute, allowing it to encompass private harassing conduct that was traditionally viewed as outside its scope. The 'spillover' doctrine, which dictates that private disturbances requiring police intervention or causing community concern can rise to the level of disorderly conduct, provides prosecutors with considerably broader discretion. This could lead to increased use of the general disorderly conduct statute in situations that might otherwise fall under more specific harassment or stalking laws, potentially blurring legislative intent and the appropriate legal avenues for addressing certain anti-social behaviors. Future cases will likely need to further refine the precise definition of 'spillover' and the circumstances under which private conduct sufficiently implicates broader public peace and order.
