State v. Schwebke
2002 WI 55, 253 Wis. 2d 1, 644 N.W.2d 666 (2002)
Rule of Law:
Wisconsin's disorderly conduct statute (Wis. Stat. § 947.01) can apply to private conduct, such as anonymous mailings, if the conduct goes beyond mere personal annoyance and, under the circumstances, tends to cause a disturbance that has a real possibility of spilling over to disrupt the peace, order, or safety of the surrounding community.
Facts:
- In May 1996, Glenn Schwebke sent two anonymous manila envelopes with stenciled addresses and 30th birthday greetings to Robbie Twohig, one at her home and one at her workplace, containing newspaper clippings detailing her high school and college activities.
- In September 1996, Schwebke sent Twohig another anonymous envelope containing a stenciled letter saying, 'I love you Robbie,' and two 45 RPM records, one titled 'Roberta' and the other 'Every Breath You Take,' a song known for its lyrics about surveillance.
- Between January and February 1997, Schwebke sent Twohig two more anonymous envelopes, each containing two 45 RPM records (with one side's label blackened) and messages like 'I will always love you Robbie' and a silk rose with 'FRAGILE Open on Valentine's Day' alongside a record titled 'Hot For Teacher.'
- These repeated mailings caused Twohig to feel 'completely violated' and increasingly 'frightened,' leading her to take precautions like moving several times, changing her phone number, and consulting harassment experts, and her family became distraught.
- On February 22, 1997, Schwebke sent two anonymous envelopes with stenciled addresses and 34th birthday greetings to Patty Marcinko, Robbie Twohig's sister, one to her home and one to her workplace, containing newspaper clippings about her life, which Marcinko found threatening due to Twohig's experiences.
- Prior to October 1996, Schwebke sent unrequested gay literature to Thomas Lamke, Twohig's former boyfriend, at his home and workplace, causing him to experience 'substantial ridicule' from co-workers.
- In October 1996, Schwebke sent Lamke an anonymous manila envelope to his workplace containing a blank piece of paper and two 45 RPM records, 'Where The Boys Are' and 'San Francisco (Be Sure To Wear Some Flowers In Your Hair),' which Lamke believed related to homosexuality and further impacted his relationship with co-workers.
Procedural Posture:
- Glenn Schwebke was initially charged with 14 counts of disorderly conduct in Fond du Lac County Circuit Court for mailings and telephone calls to four individuals.
- The circuit court, Honorable Dale L. English presiding, partially granted Schwebke's motion to dismiss, dismissing some counts due to statute of limitations and insufficient facts, but finding probable cause for the remaining allegations.
- Schwebke filed a petition for leave to appeal this order, which the Wisconsin Court of Appeals denied, concluding it would not materially advance the litigation or present novel issues of general importance.
- Two additional counts were later severed by the circuit court, leaving six counts related to three victims.
- 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 conviction but reversed the sentence based on an error in imposing consecutive terms of probation.
- Schwebke petitioned the Wisconsin Supreme Court for review.
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Issue:
Does Wisconsin's disorderly conduct statute, Wis. Stat. § 947.01, apply to a defendant's repeated private mailings containing non-threatening but disturbing content, even if the direct impact is personal discomfort, so long as there is a real possibility of a broader disturbance to the community?
Opinions:
Majority - William A. Bablitch, J.
Yes, Wisconsin's disorderly conduct statute, Wis. Stat. § 947.01, can apply to a defendant's repeated private mailings that cause personal discomfort, so long as the conduct, under the circumstances, tends to cause a disturbance that has the real possibility of spilling over to disrupt the peace, order, or safety of the surrounding community. The court interpreted 'otherwise disorderly' conduct to mean conduct of a type not specifically enumerated but similar in its tendency to disrupt good order and provoke a disturbance. The court rejected Schwebke's argument that the statute requires a 'public' disturbance, noting the plain language only requires 'a disturbance.' While past jurisprudence often involved public disturbances, the statute's reach is not limited, citing domestic dispute cases as examples. The crucial standard is whether, even if the disturbance is personal or private, 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.' The mailings to Twohig, Marcinko, and Lamke went beyond mere annoyance; they were obsessive, abusive, caused significant concern among family and friends, necessitated police involvement, and disrupted the victims' lives and relationships, thereby satisfying the 'spill over' requirement. The court dismissed legislative history arguments that harassment statutes were meant to be exclusive, asserting that harassment and disorderly conduct are not mutually exclusive, and prosecutors retain broad discretion. Constitutional concerns regarding overbreadth and vagueness were not directly implicated because the prosecution focused on Schwebke's overall conduct of repeated mailings rather than the content of his speech, and Schwebke failed to raise such challenges below. Finally, the court found sufficient evidence to convict Schwebke on all counts, concluding that a rational trier of fact could find the mailings constituted abusive, unwelcome conduct tending to disrupt peace, safety, and good order, and provoked disturbances causing community concern.
Dissenting - Shirley S. Abrahamson, Chief Justice
No, the Wisconsin disorderly conduct statute, Wis. Stat. § 947.01, should not be stretched to cover the private harassment-type conduct involved in this case, as it was not intended to apply to such actions. Chief Justice Abrahamson argued that the majority opinion excessively extends the reach of the disorderly conduct statute beyond its intended scope, which traditionally required a threat to public order, not just personal disturbance. She contended that the majority 'conflated' 'disturbing' with 'disturbance,' thereby allowing almost any antisocial or offensive private conduct to be criminalized under the statute if it merely causes discomfort that others are told about. The dissent emphasized that the legislative history, including the creation of separate harassment and stalking statutes with specific intent requirements, indicates a legislative intent for these narrower statutes to address such conduct, not the broad disorderly conduct statute. She also raised concerns about the statute's vagueness and the potential for it to be used to incarcerate individuals, including the mentally ill (as the defendant appeared to be), who might be better served by mental health-focused interventions, thus exacerbating issues of overcrowded jails. Justice Abrahamson highlighted that other specific remedies, such as harassment restraining orders and stalking charges, were available but the State chose the broad disorderly conduct statute. Justice Ann Walsh Bradley joined the dissenting opinion.
Analysis:
This case significantly broadens the application of Wisconsin's disorderly conduct statute to encompass private acts of harassment that previously might have been confined to more specific harassment or stalking statutes. By introducing the 'real possibility of spillover' into the community, the court provides a framework for criminalizing conduct that causes primarily personal disturbance but has secondary effects on family, friends, or necessitates police involvement. This interpretation gives prosecutors greater flexibility in charging such conduct but may raise concerns about the breadth of the statute and its potential to be applied to a wider range of interpersonal disputes or behaviors, including those by individuals with mental illness, without requiring specific intent elements present in harassment statutes. Future cases will likely refine what constitutes a 'real possibility of spillover' and how directly linked the private disturbance must be to community peace and order.
