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§ 947.01, Disorderly Conduct — Private Mailings

State v. Glenn F. Schwebke, 2002 WI 55, affirming 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213
For Schwebke: Keith A. Findley, UW Law School

Issue: Whether private, anonymous mailings to several individuals may support prosecution for disorderly conduct.

Holding:

¶26… (T)he plain language of the statute does not specifically require a ‘public’ disturbance. Instead, the statute only requires ‘a disturbance.’ Along these lines, all that we have required for a disruption is one that affects ‘good order;’ we have not specifically required a disruption to ‘public order.’ Certainly, the failure to use such a modifier suggests that the statute does not require the conduct to necessarily reach the public in some capacity….

¶30. … (T)he disorderly conduct statute does not necessarily require disruptions or disturbances that implicate the public directly. The statute encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that this disturbance or disruption will spill over and disrupt the peace, order or safety of the surrounding community as well. Conduct is not punishable under the statute when it tends to cause only personal annoyance to a person. See Douglas D., 2001 WI 47, ¶27. An examination of the circumstances in which the conduct occurred must take place, considering such factors as the location of the conduct, the parties involved, and the manner of the conduct.

¶31…. Nevertheless, we conclude that the disorderly conduct statute requires, at a minimum, that, when the conduct tends to cause or provoke a disturbance that is private or personal in nature, there must exist the real possibility that this disturbance will spill over and cause a threat to the surrounding community as well. In this respect, the state’s interest in maintaining peace and order in the community is not limited only to threats of riots or interference with traffic upon public streets. Certainly, as in domestic disputes, even though the disturbance may only occur on a private level, such conduct affects the overall safety and order in the community, and the state has an interest in regulating this conduct as well.

¶32. Based on this analysis, we conclude that the disorderly conduct statute was appropriately applied to Schwebke’s conduct in this case. In each instance, the conduct at issue, in light of the circumstances, went beyond conduct that merely tended to annoy or cause personal discomfort in another person….”

The court also upholds the prosecution against constitutional challenges, stressing that any content of “speech” or “communication” is merely incidental to “repeated mailings to related recipients containing unwelcome gifts and numerous newspaper clippings.” ¶¶38-39.

Issue: Whether the evidence of these mailings was sufficient to sustain the convictions.

Holding: 

¶41…. (T)he elements in this case required (1) otherwise disorderly conduct, which must be similar to the conduct enumerated in the statute in having a tendency to disrupt good order, and (2) under circumstances that tended to cause or provoke a disturbance.

¶42. The mailings sent to Robbie Twohig show an obsessive interest from an unidentified person in her life. Although the messages sent were not overtly threatening, the evidence showed a person who was obsessively interested in every detail of Twohig’s life. The subsequent mailings exemplified the extent of the obsession, including songs that indicate the sender would perhaps be watching ‘every move she makes.’ Such conduct certainly has the tendency to disrupt the peace, safety, and good order because they were unwelcome advances and the extent of this obsession was abusive in nature. Under such circumstances, the conduct was likely to cause or provoke a disturbance because such conduct would cause concern from other members of the community, including the police.

Mailings to Twohig’s sister and ex-boyfriend also established disorderly conduct, because they similarly evinced “an obsessive interest” in the, and evoked concern from, the recipient. ¶¶43-44.

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