HEFFERNAN, CHIEF JUSTICE.
This is an appeal on bypass pursuant to sec. 808.05, Stats., from an
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
On September 27, 1987, Wroten was formally charged with violating sec. 2-138 of the Milwaukee Code of Ordinances, which reads:
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,
Further, the statutes, sec. 755.045, Stats.,
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,
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:
A municipal court if authorized by the legislature
This segmentation becomes an important component of the city's argument when it cites the holding in 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.
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 of 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,"
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.
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.
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 constitutional
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
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,
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.
Constitutionality of Sec. 2-138 of City of Milwaukee Ordinances
The municipal court and the circuit court held the Milwaukee ordinance to be unconstitutionally over-board.
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).
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):
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):
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
We know nothing of the legislative history, the particular facts, or societal problems that impelled the passage of the Milwaukee ordinance.
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
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:
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,
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 untrammelled 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:
Judge Lampone in her opinion stated:
She also stated:
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.
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
The municipal court, and the circuit court correctly affirming it, so found. We hold that a municipal court
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;
Clearly, sec. 755.045, Stats.,
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
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):
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. 2d 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.
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
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.
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
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. 1978), 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
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.
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
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)
"[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.
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.
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."
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,
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:
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
I am authorized to state that JUSTICE LOUIS J. CECI joins this dissenting opinion.
Moreover, the chief justice, as the "administrative head" of the judicial system under article VII, and the supreme court exercise administrative authority over municipal courts. The chief justice, under sec. 751.03, Stats. (Rule), may exercise assignment authority over municipal judges and assignment of cases in municipal courts in the following instances: While acting under a temporary assignment, an active or reserve justice or judge may exercise all the authority of the court to which he or she is assigned.
Municipal courts account for a huge number of case dispositions. For example, in 1989, with approximately two-thirds of the municipal courts in Wisconsin reporting, 358,350 cases were disposed of in municipal courts.
Article VII, sec. 2 of the Wisconsin Constitution reads:
As will be noted later in this dissenting opinion, judges in courts that have jurisdiction to pass on constitutional issues have the responsibility of crafting a limiting construction where such is necessary and possible. Such a task requires skills and a knowledge of constitutional law that, at least in some instances, would seem to require that the judge have gained a formal constitutional law education.