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NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
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No. 93-2842
STATE OF WISCONSIN
: IN SUPREME COURT
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Diane Brandmiller, Shane Evans, Jodie Kowalski, Wendy Miller and Pamela Rogers, Plaintiffs-Appellants-Petitioners, v. Phillip Arreola, John C. Butoric, Duwayne Dzibinski, City of Greenfield, Village of Hales Corners, Chester Kass, City of Milwaukee, City of West Allis and Wayne Sagodzinski, Defendants-Respondents. |
FILED MAR 13,
1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
REVIEW of a decision of the Court of Appeals
affirming an order of the circuit court.
Affirmed.
WILLIAM A. BABLITCH,
J. Brandmiller, et al. (Brandmiller) challenge the
constitutionality of various "cruising" ordinances enacted by the
municipalities of West Allis, Milwaukee, Greenfield and Hales Corners (the
Municipalities). Brandmiller argues
that the cruising ordinances are unconstitutional under both the federal and
the Wisconsin constitution because they violate the fundamental right to travel
and are overbroad. The Municipalities
argue that the ordinances do not impinge upon any fundamental right since they
are merely traffic regulations.
Although we recognize a fundamental right to intrastate travel, we hold
that the cruising ordinances are constitutional as they are appropriate time,
place and manner restrictions on the right to travel. In addition, the ordinances are not overbroad. Accordingly, we affirm.
The facts are
undisputed. The Municipalities enacted
ordinances barring "cruising."
The ordinances are essentially identical in findings, purpose and
wording. Each municipality found that a
threat to public health, safety and welfare arises from the traffic congestion
generated by repetitive unnecessary driving of motor vehicles on certain
streets. "Cruising" caused
many problems which the cities could not control by the enforcement of existing
laws or through increased police presence.
The affidavit of Chester D. Kass, Chief of Police for the City of
Greenfield, explains the severity of these problems:
That the cruising increased to
such a volume . . . that it created continual traffic congestion, specifically
in the evening hours, which resulted in bumper-to-bumper traffic moving at very
slow speeds to traffic stopped in a standing position for long periods of time;
restricting patrons of . . . business
lots because of their inability to enter a normal flow of traffic; preventing
emergency vehicles from properly and expeditiously responding to emergencies .
. . as a result of the congested
bumper-to-bumper traffic conditions . . . .
That other problems caused by
the cruising include excessive noise from the volumes of vehicles and people on
foot . . . excessive noise from the honking of horns, racing of engines and
squealing of tires; increased automobile accidents and traffic offenses; other
acts of disorderly conduct . . . .
In addition, John C. Butorac, Police Chief of the City of West
Allis, also stated, in part:
That
cruising along Hwy. 100 has created traffic congestion which, at times, has
resulted in: bumper to bumper traffic
which moves at very slow speeds or not at all; . . . situations in which
emergency vehicles have been unable to respond to emergencies [or] have been
delayed in their response, or have [had] to take extraordinary action such as
driving on the median or sidewalk.
Based on these findings, each
municipality enacted a "cruising" ordinance.[1] The Municipalities claim that the
ordinances are necessary to reduce dangerous traffic congestion, noise, and air
pollution; to ensure access for emergency vehicles on the designated streets;
and to reduce impediments to normal traffic flow.
The ordinances define
"cruising" as driving a motor vehicle past a designated traffic
control point more than twice in any two-hour period during a designated time
span. In addition, the ordinances
designate specific streets on which it is illegal to cruise. A violation is penalized by a monetary
forfeiture. Finally, the cruising
ordinances contain specific exceptions that exempt the following: governmental vehicles, emergency vehicles,
taxicabs, buses, and other vehicles being driven for business purposes.
On May 26, 1990, the West
Allis police ticketed Diane Brandmiller for violating the city's cruising
ordinance.[2]
Brandmiller filed a motion for summary judgment requesting declaratory and
injunctive relief. The Municipalities
similarly sought summary judgment declaring the cruising ordinances
constitutional. The circuit court
granted the Municipalities' motion for summary judgment. The court of appeals affirmed.
Brandmiller raises various
state and federal constitutional challenges to the Municipalities' cruising
ordinances. We start with the
presumption that the ordinances are constitutional and that, in order to
prevail, Brandmiller must demonstrate otherwise beyond a reasonable doubt. Richland School Dist. v. DILHR, 174
Wis. 2d 878, 905, 498 N.W. 2d 826, 836 (1993).
We begin our discussion with
Brandmiller's claim that the ordinances are unconstitutional because they
violate her right to travel.[3] As to the constitutional aspects of this
case, our review is de novo. State
v. Bertrand, 162 Wis. 2d 411, 415, 469 N.W.2d 873 (1991).
The right to travel has long
been recognized by the courts as inherent in our constitutional concepts of
personal liberty. Shapiro v.
Thompson, 394 U.S. 618, 631 (1969).
The Supreme Court acknowledged that to enjoy the freedom to travel,
citizens must be allowed to move "throughout the length and breadth of our
land uninhibited by statutes, rules, or regulations which unreasonably burden
or restrict that movement." Id.
at 629. Because that right is
fundamental, the Court reasoned, "any classification which serves to
penalize the exercise of that right, unless shown to be necessary to promote a compelling
government interest, is unconstitutional." Id. at 634. In Kent
v. Dulles, 357 U.S. 116 (1958), the Court stated that "[t]he right to
travel is a part of the `liberty' of which the citizen cannot be deprived
without due process of law under the Fifth Amendment." Id. at 125. The Supreme Court has firmly established interstate travel as a
protected right that can be found in numerous constitutional provisions, but
the Court has mentioned the right to travel intrastate only in passing. In Attorney Gen. of New York v.
Soto-Lopez, 476 U.S. 898 (1986), the Court recently revisited the travel
doctrine. The Court noted that the
"`freedom to travel throughout the United States has long been recognized
as a basic right under the Constitution' . . . [a]nd, it is clear that the
freedom to travel includes the `freedom to enter and abide in any State in the
Union.'" Id. at 901-02. The
holding in Soto-Lopez, although recognizing the importance of an
individual's travel within the boundaries of a state, indicates that the
Supreme Court has not yet squarely addressed whether there exists a fundamental
right to travel intrastate; instead, this issue has been left to the lower
federal courts. See Comment, Wisconsin,
A Constitutional Right to Intrastate Travel, and AntiCruising Ordinances,
78 Marquette Law Review 735, 742 (1995).
Under the Wisconsin
Constitution, however, this court explicitly recognized the right to travel
intrastate in Ervin v. State, 41 Wis. 2d 194, 200, 163 N.W. 2d 207
(1968). Ervin involved a
constitutional challenge to a curfew proclamation imposed by the mayor of
Milwaukee under the emergency powers statute because of riots during the summer
of 1967. In Ervin we stated:
The
freedom to move about is a basic right of citizens under our form of
government, in fact, under any system of ordered liberty worth the name. It was not added to our United States
Constitution by the enactment of the first ten amendments. It is inherent, not only in the Bill of
Rights, but in the original document itself.
It has properly been termed "engrained in our history" and "a
part of our heritage."
Id. at 200-01.
Ervin also recognized
that the right to travel is interwoven with the full enjoyment of other
fundamental rights retained by the people.
Among the freedoms intertwined with the right to travel is the First
Amendment's guarantee of the right to assemble.
We
would not deny the relatedness of the rights guaranteed by the first amendment
to freedom of travel and movement. If,
for any reason, people cannot walk or drive to their church, their freedom to
worship is impaired. If, for any
reason, people cannot walk or drive to the meeting hall, freedom of assembly is
effectively blocked. If, for any
reason, people cannot safely walk the sidewalks or drive the streets of a
community, opportunities for freedom of speech are sharply limited. Freedom of movement is inextricably involved
with freedoms set forth in the first amendment.
Id. at 200.
Twenty years after Ervin,
this court in City of Milwaukee v. K.F., 145 Wis. 2d 24, 426 N.W. 2d 329
(1988), likewise reminded: "This
right to be free to move about within one's own state is inherent and distinct
from the right to interstate travel . . . ." Id. at 42. In K.F., this court considered the
constitutionality of a curfew ordinance.
The appellants argued that the ordinance unconstitutionally intruded
upon the freedom of movement and travel, and the freedom of association and
assembly. Id. at 40. This court upheld the constitutionality of
the ordinance while subjecting it to a strict scrutiny standard of review. We found that the ordinance was supported by
the compelling interest of the city in controlling the nighttime activities of
youths in order to protect both youths and the community from juvenile crime. Id.
at 49.
Thus, independent of federal
law, we recognize that the right to travel intrastate is fundamental among the
liberties preserved by the Wisconsin Constitution. This right to travel includes the right to move freely about
one's neighborhood, even in an automobile.
Therefore, although we look to federal law for support, we base our
present conclusion on the right to travel intrastate as protected by our state
constitution.
We now turn to the proper
standard of review. Brandmiller argues
that statutes that burden constitutionally protected rights survive only to the
extent they are no more restrictive than necessary to achieve a compelling
state interest. Brandmiller claims
that the Municipalities' cruising ordinances cannot survive strict
scrutiny. Although the Municipalities'
asserted interests--ensuring public safety and reducing unwanted congestion,
noise and pollution--are important, and can probably be deemed as compelling,
Brandmiller contends that the tailoring of the ordinances is not the least
restrictive means available.
The Municipalities contend
that, since the ordinances in question are merely traffic laws enacted under
the cities' police powers, the rational basis test should apply.
We disagree with both
parties. We conclude that the
intermediate level of scrutiny is the proper standard of review to apply. We adopt the intermediate scrutiny test as
developed in Lutz v. City of York, Pennsylvania, 899 F.2d 255 (3d Cir.
1990).[4] Under this test, we inquire whether the
cruising ordinances impose "content-neutral time, place and manner
restrictions that are narrowly tailored to serve significant government
interests--not necessarily compelling ones--while leaving open ample
alternative channels [by which the citizen may exercise the right at issue]
. . . ." Id. at
269.
Not every governmental burden
on fundamental rights must survive strict scrutiny.[5] Reviewing all infringements on the right to
travel under strict scrutiny is as inappropriate as applying no heightened
scrutiny to any infringement on the right to travel.
In Lutz, the Third
Circuit addressed an issue similar to that which we deal with today: whether the city of York's cruising ordinance
unconstitutionally violated the right to travel intrastate. The anticruising ordinance in Lutz,
like the ordinances in the present case, defined "cruising" as: "driving a motor vehicle on a street
past a traffic control point . . . twice in any two (2) hour period, between
the hours of 7:00 pm. and 3:30 a.m." Id. at 257. The court determined that "the right to
move freely about one's neighborhood or town, even by automobile" is a
constitutional right based on the due process clause of the Fourteenth
Amendment. Id. at 268.
In reaching its conclusion to
apply intermediate scrutiny, the Lutz court relied on the time, place,
and manner doctrine so firmly entrenched in the jurisprudence of free
speech. The court explained that if
freedom of speech, a right expressly protected by the First Amendment, could be
regulated by an intermediate standard of review in certain circumstances, then
the unenumerated right of intrastate travel could be similarly regulated under
such a judicial standard. Id.
The court stated:
The
concerns underlying York's cruising ordinance seem to us highly analogous to
the concerns that drive the time, place and manner doctrine: just as the right to speak cannot
conceivably imply the right to speak whenever, wherever and however one
pleases--even in public fora specifically used for public speech--so too the
right to travel cannot conceivably imply the right to travel whenever, wherever
and however one pleases--even on roads specifically designed for public travel.
Id. at 269.
In scrutinizing its cruising
ordinance, the Lutz court first acknowledged that York's objective of
ensuring the health, safety and welfare of its residents by enacting the
cruising ordinance was significant. Id. at 269. Moreover, the court concluded that the
anticruising statute was narrowly tailored to further these interests. The Third Circuit upheld York's cruising
ordinance as a constitutional regulation of intrastate travel.
Our court of appeals adopted the Lutz analysis in Scheunemann
v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (1993), in which
West Bend's cruising ordinance was subjected to a similar constitutional
challenge. In Scheunemann, the
cruising ordinance was specifically limited in its application to a designated daily
time span (between the hours of 8:00 p.m. and 4:00 a.m.) and to a designated
area (Main Street between Paradise Drive and Washington Street). The ordinance also prescribed standards for
cruising: three vehicular passes in the
same direction of a traffic control point within a two-hour period under
circumstances manifesting a purpose to cruise.
Id. at 477. Finally, the
ordinance required that the officer give the suspected violator an opportunity
to explain the driving conduct. Id.
The court of appeals stated
that it would "subject West Bend's cruising ordinance to intermediate
scrutiny, and . . . uphold it if it is narrowly tailored to meet the city's
objectives." Id. at 480.
The court concluded that the ordinance was properly narrowed to address
the safety and congestion problems of the city. Scheunemann, 179 Wis. 2d at 469. In addition, the court made an important observation:
The city's cruising ordinance is not one which
merely promotes a self-serving interest of government at the expense of the
constitutional right of people to freedom of movement. Rather, the purpose of the ordinance is to
create a safer and less congested public street so that the general populace
might more easily travel the area in question.
Viewed from this perspective, it can be said that the ordinance enhances
rather than restricts the constitutional right to travel.
Id. at 481.
We agree with the logic of
both Lutz and Scheunemann.
Despite the fact that Lutz is based upon federal law, we find the
reasoning of the Third Circuit in Lutz applicable to the facts of the
present case.
Unlimited access to roadways
would result not in maximizing an individual's opportunity to engage in
protected activity, but in chaos. To
prevent this, state and local governments must enjoy some degree of flexibility
to regulate access to, and use of, the publicly held instrumentalities of
travel. Therefore, in order to set out
a workable jurisprudence for the right of localized movement on the public
roadways, we borrow from both Lutz and the well-settled rules developed
in the free speech context.
In this case, the cruising
ordinances will be subjected to intermediate scrutiny, and will be upheld if
they are narrowly tailored to meet the significant objectives of the Municipalities.
We conclude that the cruising
ordinances are reasonable time, place and manner restrictions on the right of
localized intrastate travel. The
Municipalities' interest in ensuring public safety and reducing the significant
congestion caused by cruising are significant.
The ordinances are limited in their scope to locations undisputedly
affected by the current cruising problem, and it is undisputed that they leave
open ample alternative routes to get about town without difficulty. They prohibit only certain repetitive
driving on a specific stretch of highway, and they prohibit no one from driving
outside of this specific area. Under
these circumstances, the ordinances are narrowly tailored to combatting the safety
and congestion problems identified by the Municipalities.
Brandmiller responds,
however, that the ordinances are not as narrowly drawn as they should be. For example, they do not offer the
opportunity for an "on the scene" explanation by the suspect to the
officer which, if accepted, would allow the citizen to be on his or her
way. Additionally, there is no
requirement that there be a "purpose to cruise." Brandmiller asserts that the ordinances are
merely a convenient tool for arbitrary and discriminatory enforcement by police
officers against particular disliked groups.
We disagree. Like the ordinances in both Lutz and Scheunemann,
these cruising ordinances are specifically limited in their application to a
designated daily time span (between 8:00 p.m. and 5:00 a.m.) and to a
designated area (South 108th Street from the North Village Limits to the South
Village Limits; West Forest Home Avenue from the East Village Limits to the
South Village Limits; West Janesville Road from South 108th Street to the West
Village Limits). Further, the ordinances
prescribe specific standards for cruising:
driving a motor vehicle past a traffic control point on a highway more
than twice in any two (2) hour period.
In addition, the fact that
the ordinances lack an opportunity for an "on the scene" explanation
makes an officer's possible abuse of discretion less likely. Under the Municipalities' ordinances, police
officers do not have to subjectively evaluate an individual's statement after
he or she is stopped for cruising.
Therefore, with these
limitations built into the ordinance, we conclude that the Municipalities have
carefully narrowed the application of the ordinance. The Municipalities need only write a narrowly tailored ordinance,
not the least restrictive ordinance. Lutz,
899 F.2d at 270. Because the
Municipalities have done so, the cruising ordinances must be upheld.
We make one final
observation. Not every
"burden" on the right of intrastate travel is sufficiently serious to
trigger heightened scrutiny. Both the
Municipalities and the lower courts characterized the cruising ordinances as
traffic regulations. In the present
case, we apply heightened scrutiny only because we conclude that these traffic
regulations, unlike most, do impose nontrivial burdens on travel. Nothing we say today suggests that the more
conventional traffic regulations such as speed limits, stop signs, and the like
need now be subjected to heightened judicial scrutiny.
We now turn to the second
issue of whether the cruising ordinances are unconstitutionally overbroad. Brandmiller claims that the ordinances
effectively sweep "protected activity within [their] reach [and] deter[]
citizens from exercising their protected constitutional freedoms . . .
." Bachowski v. Salamone,
139 Wis. 2d 397, 411, 407 N.W. 2d 533, 539 (1987). The court of appeals failed to address this overbreadth claim
stating that Brandmiller did not have proper standing.
We conclude that the court of
appeals erred by failing to apply an overbreadth analysis in this case. This court has explained the concept of
overbreadth as follows:
"A statute is overbroad when its language,
given its normal meaning, is so sweeping that its sanctions may be applied to
constitutionally protected conduct which the state is not permitted to regulate. Wilson, 96 Wis.2d at 19, [291 N.W.2d
452]. The essential vice of an
overbroad law is that by sweeping protected activity within its reach it deters
citizens from exercising their protected constitutional freedoms, the so-called
`chilling effect.'" Bachowski,
139 Wis. 2d at 411, 407 N.W.2d 533.
K.F., 145 Wis. 2d at
39-40.
A plaintiff may have standing
to challenge the constitutionality of a statute or ordinance even where his or
her own conduct could constitutionally be regulated under a narrowly drawn
law. Id. at 40 (citing State
v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 656, 292 N.W. 2d 807
(1980). Accordingly, in asserting an
overbreadth challenge an individual may hypothesize situations in which a
statute or ordinance would unconstitutionally intrude upon First Amendment
rights of third parties. In analyzing
the constitutionality of potential applications of a regulation, however,
"the court will not deem a statute or ordinance invalid because in some
conceivable, but limited, circumstances the regulation might be improperly
applied." Id. at 40.
It is apparent from the face
of the cruising ordinances that these ordinances restrict the movement and
associational rights of those individuals driving in a "no-cruising"
zone. As discussed, the right to
"move freely about one's neighborhood or town, even by automobile, is
indeed `implicit in the concept of ordered liberty' and `deeply rooted in the
Nation's history.'" Lutz,
899 F.2d at 268. This court has
declared that "[e]qually important as the right to freedom of movement are
the first amendment rights of free speech and assembly." K.F., 145
Wis. 2d at 42. See U.S. Const.
amend. I; Wis. Const. art. I, §§ 3 and 4.
Therefore, we conclude that Brandmiller has standing to challenge the
cruising ordinances since both the right to travel and First Amendment freedoms
are implicated.
Brandmiller claims that the
Municipalities' cruising ordinances are unconstitutionally overbroad because
they lack an intent element and an opportunity to explain one's conduct to an
officer. Brandmiller argues that the Scheunemann
court determined that the West Bend ordinance was not overbroad because it had
significant limitations including the requirement that a cruiser have the
intent to cruise. Scheunemann,
179 Wis. 2d at 477.
We acknowledge that the
cruising ordinances in the present case do not have the limitations found in
the Scheunemann ordinance.
However, the lack of an intent element and an opportunity to explain
does not render the ordinances unconstitutional.
The cruising ordinances are
narrowly tailored to deal with the unquestioned problems associated with
cruising. The ordinances are limited in
time to those hours of the day where cruising was shown to be a problem. They are limited to those streets where the
Municipalities experienced cruising.
They set forth the standards for cruising: three vehicular passes of a control point within a two-hour
period. There are also numerous
exceptions for vehicles operating with governmental or business purposes.
Thus, these cruising
ordinances carefully carve out a narrow slice of driving conduct for
regulation. Scheunemann, 179
Wis. 2d at 477. Given these
limitations, we conclude that the Municipalities have satisfactorily demonstrated
that the cruising ordinances are not unconstitutionally broad.
Based on all the above, we
hold that the cruising ordinances are constitutional as they are appropriate
time, place and manner restrictions on the right to travel. They are narrowly tailored to serve the
significant government purposes discussed above. In addition, the ordinances are not overbroad.
By the Court.—The decision of the court of appeals is affirmed.
SUPREME
COURT OF WISCONSIN
Case No.: 93-2842
Complete Title
of Case: Diane Brandmiller, Shane Evans, Jodie Kowalski,
Wendy Miller and Pamela Rogers,
Plaintiffs-Appellants-Petitioners,
v.
Phillip Arreola, John C. Butoric,
Duwayne Dzibinski, City of Greenfield, Village
of Hales Corners, Chester Kass, City of
Milwaukee, City of West Allis and Wayne Sagodzinski,
Defendants-Respondents.
_____________________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 189 Wis. 2d
215, 525 N.W.2d 353
(Ct. App. 1994)
PUBLISHED
Opinion Filed: March 13, 1996
Submitted on Briefs:
Oral Argument: November
28, 1995
Source of APPEAL
COURT: Circuit
COUNTY: Milwaukee
JUDGE: ROBERT J. MIECH
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the plantiffs-appellants-petitioners
there were briefs by William A. Pangman, Rex R. Anderegg and William
A. Pangman, Waukesha and oral argument by William A. Pangman
For the
defendants-respondents there was a brief by Scott E. Post, City of West
Allis, Roger C. Pyzyk, City of Greenfield, Kurt A. Behling, City
of Milwaukee, Daniel J. Sielaff, Village of Hales Corners and oral
argument by Scott E. Post & Roger C. Pyzyk.
[1] Because
the ordinances are essentially identical, only the text of one ordinance is
reprinted here. The Village of Hales
Corners ordinance provides:
(1)
FINDINGS AND PURPOSE. It is hereby
found that a threat to the public health, safety and welfare arises from the
congestion created by the repetitive unnecessary driving of motor vehicles,
also known as cruising, at certain times on certain highways within the Village
of Hales Corners. The purpose of this
ordinance is to reduce the dangerous traffic congestion, as well as the noise,
air pollution, obstruction of streets, sidewalks and parking lots, impediment
of access to shopping centers or other buildings open to the public,
interference with the use of property or conduct of business resulting from
cruising, and to insure access for emergency vehicles to and through the said
highways.
(2)
DEFINITIONS.
(a) "Cruising" shall mean driving a
motor vehicle past a traffic control point, on a highway in the designated
area, more than twice in any two (2) hour period between the hours of 8:00 p.m.
and 5:00 a.m. Passing a designated
control point a third time under the aforesaid conditions shall constitute
unnecessary repetitive driving and cruising and, therefore, a violation of this
section.
(b) "Designated area" shall mean South
108th Street from the North Village Limits to the South Village Limits; West
Forest Home Avenue from the East Village Limits to the South Village Limits;
West Janesville Road from South 108th Street to the West Village Limits.
(c) "Traffic control point" shall mean
a reference point within or adjacent to a designated area selected by a police
officer for the purpose of enforcing this section.
(3)
CRUISING PROHIBITED. It shall be
unlawful for anyone to engage in cruising.
For the purposes of this section, the person having control or ownership
of a motor vehicle shall be considered the person cruising, without regard as
to whether that person was actually driving the motor vehicle each time it
passed the traffic control point.
Having control or ownership of a motor vehicle shall mean either the
owner of said vehicle, if present in the vehicle at the time of the violation,
or, if the owner is not present, the person operating the vehicle at the time
of violation.
(4)
EXCLUSIONS. This section shall not
apply to:
(a) Any publicly owned vehicle or any city,
county, state, federal or other governmental unit, while such vehicle is being
used for official purposes of said governmental unit.
(b) Any authorized emergency vehicle.
(c) Any taxicabs for hire, buses, or other
vehicles being driven for business purposes.
(5) PENALTY.
The penalties provided herein shall supersede the provisions of Section
2.21, Village Code, in the event of any conflict. Any person violating the provisions of this ordinance shall forfeit:
(a) The sum of $50 upon the first conviction
under this ordinance within a one-year period.
(b) The sum of $100 upon the second conviction
under this ordinance within a one-year period.
(c) The sum of $200 upon the third and each subsequent conviction under this ordinance within a one-year period.
[2] Each of the members of the class, certified pursuant to Wis. Stat. § 803.08, were ticketed for violation of a cruising ordinance. Given the issues on appeal, however, the dates and particular circumstances of each violation are irrelevant to our resolution and, therefore, Brandmiller will serve as a representative for the entire class throughout the text of this opinion.
[3]
Brandmiller asserts 10 constitutional challenges to the cruising
ordinances and presents a separate and detailed analysis under each
challenge. Brandmiller argues that:
(1) the right to freedom of movement is a
fundamental right; (2) the right to freedom of movement implicates other
fundamental rights; (3) freedom of movement is a natural right secured by the
Ninth Amendment; (4) freedom of movement is a natural right secured by the
Tenth Amendment; (5) freedom of movement is a natural right secured by the
Fourteenth Amendment; (6) freedom of movement is a natural right secured by the
penumbra privacy protections; (6) the cruising ordinances violate inherent
rights of liberty preserved and protected by Wis. Const. art. I, §§ 1 and 22;
(7) ordinances abridging fundamental rights must be strictly scrutinized to
ensure there is a compelling state interest and no less restrictive alternate
means; (8) the exercise of police powers in the case at bar extend beyond the
internal restraints placed upon those powers; (9) the cruising ordinances are
unconstitutionally overbroad on their face and in their application; (10) the
court of appeals erred by ignoring this court's precedent of applying the
overbreadth doctrine to all constitutionally protected liberties, and not just
to First Amendment rights.
We do not answer each of Brandmiller's challenges with the corresponding specificity as it appears to us that the common foundation for all of these arguments is the constitutional right to travel.
[4] We acknowledge that Lutz v. City of York, Pennsylvania, 899 F.2d 255 (3d Cir. 1990), is based on the right to travel as defined by federal constitutional law. We base our decision today on the right to travel intrastate as found in the Wisconsin Constitution. Notwithstanding this difference, we find the reasoning of the Lutz court persuasive and adopt its analysis as it applies to the facts of this case.