overbreadth doctrine in Wisconsin

2020Cf. Stevenson, 236 Wis. 2d 86, ¶13 . ¶184 Given the absence of third-party standing issues and the gravity of the harm alleged with respect to these provisions, there is "good reason" for this court to apply the overbreadth doctrine to the Litigation Control provisions,16 consistent with the United States Supreme Court's approach.

2020Cf. Stevenson, 236 Wis. 2d 86, ¶13 . ¶184 Given the absence of third-party standing issues and the gravity of the harm alleged with respect to these provisions, there is "good reason" for this court to apply the overbreadth doctrine to the Litigation Control provisions,16 consistent with the United States Supreme Court's approach.

2006We rejected that argument for the following reasons: (1) the overbreadth doctrine is inapplicable when a limiting construction will maintain the legislation's constitutional integrity (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973)); (2) the statute is rationally related to the compelling state interest of protecting the well-being of children; and (3) the overbreadth doctrine is employed only as a last resort (citing New York v. Ferber, 458 U.S. 747, 769 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982)).

2006We rejected that argument for the following reasons: (1) the over-breadth doctrine is inapplicable when a limiting construction will maintain the legislation's constitutional integrity (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)); (2) the statute is rationally related to the compelling state interest of protecting the well-being of children; and (3) the overbreadth doctrine is employed only as a last resort (citing New York v. Ferber, 458 U.S. 747, 769 (1982)).

2019We are to be careful to “only sparingly utilize the overbreadth doctrine as a tool for statutory invalidation, proceeding with caution and restraint,” Oatman, 365 Wis. 2d 242, ¶8 (citation omitted), as invalidating a statute is “strong medicine” to be “employed … with hesitation, and then ‘only as a last resort,’” New York v. Ferber, 458 U.S. 747, 769 (1982) (citation omitted). ¶14 The first task in our constitutional analysis is to construe the challenged statute.

2008However, finding a statute invalid because of overbreadth should not be done lightly. *494 Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, [the Supreme Court has] recognized that the overbreadth doctrine is "strong medicine" and [has] employed it with hesitation, and then "only as a last resort." Id. at 769 (citation omitted).

2020Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citing United States Supreme Court cases applying an overbreadth test to facial challenges in various substantive contexts).

2020Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citing United States Supreme Court cases applying an overbreadth test to facial challenges in various substantive contexts).

2020Cf. Stevenson, 236 Wis. 2d 86, ¶13 ; see also Gabler, 376 Wis. 2d 147, ¶5 (warning that absent separation of powers the legislature could "first 'enact tyrannical laws' then 'execute them in a tyrannical manner.'" (quoting 1 Montesquieu, The Spirit of the Laws 151-52 (Oskar Piest et al. eds., Thomas Nugent trans., 1949) (1748))).

2020Cf. Stevenson, 236 Wis. 2d 86, ¶13 ; see also Gabler, 376 Wis. 2d 147, ¶5 (warning that absent separation of powers the legislature could "first 'enact tyrannical laws' then 'execute them in a tyrannical manner.'" In other words, the facial remedy would be no broader 14 than the as-applied remedy since the only potential as-applied challenger is currently under this court's jurisdiction.

2020See Horn, 226 Wis. 2d at 644 .

2020See Horn, 226 Wis. 2d at 644 .

2000The overbreadth doctrine should not be used to invalidate the statute merely because " 'in some conceivable, but limited, circumstances the regulation might be improperly applied.'" Janssen, 219 Wis. 2d at 373 , (quoting City of Milwaukee v. K.F., 145 Wis. 2d 24, 40 , 426 N.W.2d 329 (1988)).

2000The overbreadth doctrine should not be used to invalidate the statute merely because " 'in some conceivable, but limited, circumstances the regulation might be improperly applied.'" Janssen, 219 Wis. 2d at 373 , (quoting City of Milwaukee v. K.F., 145 Wis. 2d 24, 40 , 426 N.W.2d 329 (1988)).

1998Also anticipating an overbreadth challenge, the circuit court followed State v. Thiel, 183 Wis. 2d 505 , 515 N.W.2d 847 (1994), and narrowly construed the disputed Ordinance to apply only to establishments with liquor licenses.

1998Also anticipating an overbreadth challenge, the circuit court followed State v. Thiel, 183 Wis. 2d 505 , 515 N.W.2d 847 (1994), and narrowly construed the disputed Ordinance to apply only to establishments with liquor licenses.

2021See Salerno, 481 U.S. at 745 . “[A] facial challenge for overbreadth must show ‘a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” State v. Culver, 2018 WI App 55, ¶9 , 384 Wis. 2d 222 , 918 N.W.2d 103 (second alteration in original; citation omitted). ¶38 The Supreme Court has enumerated a few, limited examples of fundamental rights protected under the overbreadth doctrine.

2006United States v. Salerno, 481 U.S. 739, 745 (1987); see also State v. Stevenson, 2000 WI 71, ¶¶ 11-18 , 236 Wis. 2d 86 , 613 N.W.2d 90 . *356 "A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions maybe applied to constitutionally protected conduct which the state is not permitted to regulate." Janssen, 219 Wis. 2d at 374 (citation omitted).

2020See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19 ). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697 , 478 N.W.2d 582 (1992) (quoting J.F.

2020See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19 ). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697 , 478 N.W.2d 582 (1992) (quoting J.F.

2020See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19 ). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697 , 478 N.W.2d 582 (1992) (quoting J.F.

2020See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19 ). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697 , 478 N.W.2d 582 (1992) (quoting J.F.

2020See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19 ). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697 , 478 N.W.2d 582 (1992) (quoting J.F.

2020See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19 ). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697 , 478 N.W.2d 582 (1992) (quoting J.F.

2015Related to the overbreadth doctrine is the vagueness doctrine, 19 which "requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'" State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 657 , 292 N.W.2d 807 (1980) (quoting Smith v. Goguen, 415 U.S. 566, 572-73 (1974)).

2015Stevenson, 236 Wis. 2d 86, ¶15 (internal citations omitted). 31 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W ¶54 Related to the overbreadth doctrine is the vagueness doctrine, 19 which "requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'" State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 657 , 292 N.W.2d 807 (1980) (quoting Smith v. Goguen, 415 U.S. 566, 572-73 (1974)).

2015"Like the overbreadth doctrine, the void-for-vagueness doctrine protects against the ills of a law that 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.'" Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir. 2012) (quoted source and citation omitted).

2015Once a court interprets the statute at issue, the second step is to determine whether it "criminalizes a substantial amount of protected expressive activity." Id. at 297 . ¶583 "Like the overbreadth doctrine, the void-for-vagueness doctrine protects against the ills of a law that 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.'" Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir. 2012) (quoted source and citation omitted).

1994See Bachowski v. Salamone, 139 Wis. 2d 397, 411 , 407 N.W.2d 533, 539 (1987). 5 Therefore, unless the cruising ordinances infringe on a fundamental right protected by the First Amendment, we should not address the overbreadth challenge.

1994See Bachowski v. Salamone, 139 Wis. 2d 397, 411 , 407 N.W.2d 533, 539 (1987). 5 Therefore, unless the cruising ordinances infringe on a fundamental right protected by the First Amendment, we should not address the overbreadth challenge.

2006The overbreadth doctrine is grounded in the right to substantive due process and "has the effect of preventing the limiting, by indirection, of constitutional rights." State v. Tronca, 84 Wis. 2d 68, 89 , 267 N.W.2d 216 (1978). ¶ 27.

2006The overbreadth doctrine is grounded in the right to substantive due process and "has the effect of preventing the limiting, by indirection, of constitutional rights." State v. Tronca, 84 Wis. 2d 68, 89 , 267 N.W.2d 216 (1978). ¶ 27.

1998The overbreadth doctrine "establishes an exception to the general rule that 'a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.'" Thiel, 183 Wis. 2d at 520 (quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989)). ¶ 17.

1998The overbreadth doctrine "establishes an exception to the general rule that `a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.'" Thiel, 183 Wis. 2d at 520 (quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989)). ¶ 17.

2021See, e.g., Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citing Broadrick v. Oklahoma, 413 U.S. 601 (1973) (free speech); Aptheker v. Secretary of State, 378 U.S. 500, 517 (1964) (right to travel)).

2020Id.; see, e.g., Aptheker v. U.S. Sec'y of State, 378 U.S. 500 , 515–517 (1964) (applying overbreadth to evaluate a facial challenge to a statute affecting the right to travel because it is "a personal liberty protected by the Bill of Rights"). ¶181 The United States Supreme Court's broader understanding of the overbreadth doctrine is instructive for this court, as we have not had the opportunity to address the overbreadth doctrine outside of the First Amendment context.

1999Ct. App. 1998). 3 Because a reviewing court "must apply the overbreadth doctrine only with hesitation and as a last resort, the . . . challenge must be both 'real and substantial.'" State v. Revels, 221 Wis. 2d 315, 322 , 585 N.W.2d 602, 606 (Ct. App. 1998) (quoting State v. Janssen, 213 Wis. 2d 471, 479 , 570 N.W.2d 746, 750 (Ct. App. 1997)).

1999Ct. App. 1998). 3 Because a reviewing court "must apply the overbreadth doctrine only with hesitation and as a last resort, the . . . challenge must be both 'real and substantial.'" State v. Revels, 221 Wis. 2d 315, 322 , 585 N.W.2d 602, 606 (Ct. App. 1998) (quoting State v. Janssen, 213 Wis. 2d 471, 479 , 570 N.W.2d 746, 750 (Ct. App. 1997)).

1998The overbreadth doctrine operates to render facially unconstitutional statutes or ordinances that "threaten[ ] 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 or undertake to have the law declared. . .invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985); see also City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226 , 466 N.W.2d 861 (1991). ¶ 16.

1998The overbreadth doctrine operates to render facially unconstitutional statutes or ordinances that "threaten[ ] 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 or undertake to have the law declared. . .invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985); see also City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226 , 466 N.W.2d 861 (1991). ¶ 16.

1998The overbreadth doctrine operates to render facially unconstitutional statutes or ordinances that "threaten[ ] 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 or undertake to have the law declared. . .invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985); see also City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226 , 466 N.W.2d 861 (1991). ¶ 16.

1998The overbreadth doctrine operates to render facially unconstitutional statutes or ordinances that "threaten[] others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so rather *23 than risk prosecution or undertake to have the law declared... invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985); see also City of Milwaukee v. Wroten, 160 Wis.2d 207, 226 , 466 N.W.2d 861 (1991). ¶16.

2015Once a court interprets the statute at issue, the second step is to determine whether it "criminalizes a substantial amount of protected expressive activity." Id. at 297 . ¶583 "Like the overbreadth doctrine, the void-for-vagueness doctrine protects against the ills of a law that 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.'" Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir. 2012) (quoted source and citation omitted).

2015Once a court interprets the statute at issue, the second step is to determine whether it "criminalizes a substantial amount of protected expressive activity." Id. at 297 . ¶583 "Like the overbreadth doctrine, the void-for-vagueness doctrine protects against the ills of a law that 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.'" Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 478-79 (7th Cir. 2012) (quoted source and citation omitted).

2006Because a statute can be unconstitutionally overbroad only if it regulates "constitutionally protected conduct," see Janssen, 219 Wis. 2d at 374 , and Wis. Stat. § 120.13 and 118.001 do not regulate conduct, rather they set forth the duties and powers of the school board, and instruct broad application of those duties and powers, respectively, the overbreadth doctrine cannot apply.

2000The overbreadth doctrine should not be used to invalidate the statute merely because " 'in some conceivable, but limited, circumstances the regulation might be improperly applied.'" Janssen, 219 Wis. 2d at 373 , (quoting City of Milwaukee v. K.F., 145 Wis. 2d 24, 40 , 426 N.W.2d 329 (1988)).

2009Neumann argued — exactly as Lesik does here — that "due to the broad definition of 'sexual intercourse,' any vaginally or anally intrusive medical procedure would technically violate [the statute] if the patient were not able to consent, as would be the case with a child, an unconscious person, or a mentally incompetent person." See Neumann, 179 Wis. 2d at 711 . ¶ 12.

1996State v. Neumann, 179 Wis. 2d 687, 711 , 508 N.W.2d 54, 63 (Ct. App. 1993).

2021See Salerno, 481 U.S. at 745 . “[A] facial challenge for overbreadth must show ‘a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” State v. Culver, 2018 WI App 55, ¶9 , 384 Wis. 2d 222 , 918 N.W.2d 103 (second alteration in original; citation omitted). ¶38 The Supreme Court has enumerated a few, limited examples of fundamental rights protected under the overbreadth doctrine.

2021See Salerno, 481 U.S. at 745 . “[A] facial challenge for overbreadth must show ‘a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” State v. Culver, 2018 WI App 55, ¶9 , 384 Wis. 2d 222 , 918 N.W.2d 103 (second alteration in original; citation omitted). ¶38 The Supreme Court has enumerated a few, limited examples of fundamental rights protected under the overbreadth doctrine.

2021See State v. Jackson, 2020 WI App 4, ¶13 , 390 Wis. 2d 402 , 938 N.W.2d 639 (2019) (explaining that we “only sparingly” use the overbreadth doctrine to invalidate statutes, exercising 13 Nos. 2020AP1127-CR 2020AP1128-CR “caution and restraint”).

2021See State v. Jackson, 2020 WI App 4, ¶13 , 390 Wis. 2d 402 , 938 N.W.2d 639 (2019) (explaining that we “only sparingly” use the overbreadth doctrine to invalidate statutes, exercising 13 Nos. 2020AP1127-CR 2020AP1128-CR “caution and restraint”).