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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                  This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 5, 2002
A party may file with the Supreme Court a
Cornelia G. Clark                                petition to review an adverse decision by the
Clerk of Court of Appeals                        Court of Appeals.   See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. Nos.   01-FO-1589
Appeal No.                                       02-1083
01-FO-1592
STATE OF WISCONSIN                               IN COURT OF APPEALS
                                                 DISTRICT III
CITY OF SUPERIOR,
PLAINTIFF-RESPONDENT,
V.
HUNTER HILL,
DEFENDANT-APPELLANT.
CITY OF SUPERIOR,
PLAINTIFF-RESPONDENT,
V.
WENDY HILL,
DEFENDANT-APPELLANT.




No.   02-1083
APPEAL from judgments of the circuit court for Douglas County:
MICHAEL T. LUCCI, Judge.  Affirmed.
¶1                                                                                           CANE, C.J.1   Hunter Hill and Wendy Hill appeal judgments finding
they violated  the  City of  Superior’s disorderly conduct ordinance.    The  Hills
contend their actions did not constitute disorderly conduct under the language of
the  ordinance.    In  addition,  Hunter  argues  his  actions  were  constitutionally
protected  speech.    We  determine  Hunter’s  conduct  was  not  constitutionally
protected.     We further conclude both Hunter’s and Wendy’s actions constituted
disorderly  conduct  under  the  ordinance  and  therefore  affirm  the  trial  court’s
judgments.
BACKGROUND
¶2                                                                                           On the evening of August 25, 2001, sergeant major Patrick Hill and
his  family  celebrated  his  retirement  from  the  United  States  Army.    Several
members of the Hill family, including Patrick’s wife, Wendy, and his son, Hunter,
along  with  some  family  friends,  rented  a  limousine  to  take  them  to  several
restaurants and taverns in Superior.
¶3                                                                                           After midnight, the party made its way to a bar called Centerfolds.
The bouncers at Centerfolds refused to admit them, and an altercation developed
between the Hills and the bouncers.2   After kicking the party out of the building,
the bouncers called the police.
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2).  All references
to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
2 The record does not reflect why the Hills were refused entry or why the altercation
developed.
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No.   02-1083
¶4                                                                                    The first officer to arrive was Bonita Johnson.   At the Hills’ trial, she
testified she spoke with Hunter, asking him what had happened.   Hunter told her
his father had left and everything was all right, and then refused to answer any
other questions.
¶5                                                                                    A short time later, officer Christopher Kirchoff arrived.   At trial, he
testified there was an “agitated” crowd of people standing on the street around the
squad cars and on the sidewalk, watching the incident.   He said he talked with
Hunter, asking if he had already talked with the police.   According to Kirchoff,
Hunter replied “fuck you” in an adversarial tone and added “I suppose you think
you can make me stay here,” saying both phrases loud enough for the crowd to
hear.   In addition, Kirchoff said he smelled alcohol on Hunter and believed he was
intoxicated.    Kirchoff then arrested Hunter.    While being escorted to the car,
Hunter asked Kirchoff his name so he could “find you when you’re off duty [and]
kick your fucking ass.”   Hunter also continued to yell other obscenities.
¶6                                                                                    Kirchoff  testified  Wendy  Hill  approached  him  while  he  was
handcuffing Hunter and began yelling obscenities, further drawing the crowd’s
attention.   Kirchoff said he heard others telling her not to confront the police.
Both Kirchoff and another officer told Wendy several times to stand back, which
she refused to do.    Kirchoff testified Wendy yelled  “Fucking assholes, this is
another example of the Superior fucking police,” while he was arresting Hunter.
Kirchoff then arrested Wendy as well.
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No.   02-1083
¶7                                                                                                     The City charged Hunter and Wendy with disorderly conduct in
violation of SUPERIOR, WIS., CODE  OF ORDINANCES  §  23-4(a).3      Hunter and
Wendy tried their cases jointly to the court.   The City offered the testimony of
officers Johnson and Kirchoff.    In addition to recounting her brief discussion with
Hunter, Johnson’s testimony generally supported Kirchoff’s recollection of the
events.
¶8                                                                                                     Hunter and Wendy both testified.   Hunter said he might have told
Kirchoff, “I don’t have to show you my f’ing identification.”   He denied making
the specific threat to harm Kirchoff but admitted he made other threats after he
was in the squad car.   Wendy testified she approached Kirchoff to find out why
Hunter was being arrested.   She said she was told to stand back and also to “shut
the hell up, you’re going next.”   Wendy admitted she then told Kirchoff, “that’s
why you have the reputation yous  [sic] have as assholes.”    She said she was
arrested after she said this.   Both Wendy and Hunter admitted drinking alcohol
that evening.   In addition, the Hills offered the testimony of several other party
members, who generally supported Hunter’s and Wendy’s testimony.
¶9                                                                                                     In a written decision, the circuit court determined Hunter and Wendy
had violated the ordinance and assessed them each a $188 forfeiture.   They both
appeal.
3 All references to the SUPERIOR, WIS., CODE OF ORDINANCES are to the 2001 edition
unless otherwise noted.   Patrick was also charged with disorderly conduct.   He paid his fine prior
to Hunter’s and Wendy’s trial.
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No.   02-1083
DISCUSSION
¶10    SUPERIOR, WIS., CODE OF ORDINANCES § 23-4(a) prohibits the same
conduct as WIS. STAT. § 947.01, which provides:   “Whoever, in a public or private
place, engages in violent, abusive, indecent, profane, boisterous,  unreasonably
loud or otherwise disorderly conduct under circumstances in which the conduct
tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.”   The
maximum penalty for violating § 23-4(a) is a forfeiture of $188.
¶11    Ordinance violations constituting violations of Wisconsin criminal
laws  require  proof  by  clear,  satisfactory  and  convincing  evidence.    Monroe
County v. Kruse, 76 Wis. 2d 126, 130, 250 N.W.2d 375 (1977).   As in other civil
cases, we will not overturn the circuit court’s findings unless they are clearly
erroneous.   See Madison v. Geier, 27 Wis. 2d 687, 690, 135 N.W.2d 761 (1965).
¶12    Our resolution of ordinance violation appeals begins with the trial
court’s findings.    Kruse,  76 Wis. 2d at  130.    Here, the court found Hunter’s
actions,  while  consisting  of  speech  only,  still  constituted  disorderly  conduct.
Looking at the surrounding circumstances, including the language used, the tone
and volume of his voice, the location of the speech and who heard it, the court
concluded Hunter’s actions had a tendency to disrupt good order and provoke a
disturbance.
¶13    The court also found Wendy’s conduct disorderly, saying her actions
had a greater tendency to provoke a disturbance than Hunter’s.   In its decision, the
court noted Wendy’s use of abusive language while confronting Kirchoff and her
repeatedly approaching Kirchoff after being told to stand back.   The court also
pointed to the fact that Wendy’s conduct was in front of a crowd, that she had
been drinking, and the general unruly atmosphere of the arrest scene.
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No.   02-1083
¶14    To prove disorderly conduct the City must show:   (1) the defendant
engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud or
otherwise disorderly conduct and (2) that conduct, under the circumstances as they
then existed, tended to cause or provoke a disturbance.   WIS JI—CRIMINAL 1900.
Disorderly  conduct  can  include  physical  acts  or  language  or  both.    State  v.
Douglas D., 2001 WI 47, ¶22, 243 Wis. 2d 204, 626 N.W.2d 725; Teske v. State,
256 Wis. 440, 444, 41 N.W.2d 642 (1950).   It is not necessary that a disturbance
actually occur.   City of Oak Creek v. King, 148 Wis. 2d 532, 545, 436 N.W.2d
285 (1989).     The trier of fact must consider the nature of the conduct and the
surrounding circumstances.   WIS JI—CRIMINAL 1900.   What is proper under one
set of circumstances may be improper under another.   Id.
¶15    The evidence supports the trial court’s decision regarding Hunter.
The trial court is the sole judge of the credibility of the evidence.   See WIS. STAT.
§ 805.17(2).    Here  the  court  chose  to  believe  Kirchoff’s  testimony regarding
Hunter’s statements.   The court noted Hunter’s actions were loud, in public and in
front of a growing crowd, tending to provoke a disturbance.   This decision is not
clearly erroneous.
¶16    Hunter contends, however, that the court erred because it did not
find his conduct constituted a “true threat.”   He argues the court must find his
speech to be a  “true threat” in order to punish him.    In support, he points to
Douglas D., where the supreme court said a student’s written story describing the
killing of his teacher could not be punished as disorderly conduct because it was
protected speech.   Douglas D., 2001 WI 47 at ¶47.   The court said in order for the
story to be punishable, it had to constitute a “true threat.”   Id. at ¶34.   A true threat
is a statement in light of all the surrounding circumstances that a speaker would
foresee the listener interpreting it as a serious expression of a purpose to inflict
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No.   02-1083
harm.    Id.    Hunter argues his speech did not constitute a  “true threat” and is
therefore not punishable.
¶17    We disagree.   We do not read Douglas D. to require that all speech
forming the basis of a disorderly conduct charge constitute a true threat.   Instead, it
is only when that language is a threat that it must be a “true threat” to constitute
disorderly conduct.   In Douglas D., the court approvingly cited Lane v. Collins,
29 Wis. 2d  66, 138 N.W.2d 264 (1965), for the proposition that using abusive
language to another person under charged circumstances can constitute disorderly
conduct.   Douglas D., 2001 WI 47 at ¶23.   Hunter’s pre-arrest language was not a
threat and we need not subject it to a “true threat” analysis.
¶18    Nor are we persuaded by Hunter’s argument that his speech did not
constitute disorderly conduct because it was directed at a police officer.   He points
to City of Milwaukee v. Wroten, 160 Wis. 2d 207, 466 N.W.2d 861 (1991), in
which  our  supreme  court  struck  down  a  Milwaukee  ordinance  prohibiting
interference with the duties of police officers as unconstitutionally overbroad.   Id.
at  235.    WISCONSIN STAT.  § 947.01 has, however, survived similar challenges.
See State v. Zwicker, 41 Wis. 2d 497, 513, 164 N.W.2d 512 (1969).   Further, the
fact that the abusive language is directed to a police officer, even if it is not
overheard by others, does not prevent it from being disorderly conduct.   Lane, 29
Wis. 2d at 72.
¶19    Here, the court determined Hunter’s language was loud, abusive and
overheard by others.   His conduct occurred after he had been drinking, in a public
place,  and  in  the  presence  of  the  police  and  others.     Considering  these
circumstances, the trial court did not err by finding Hunter’s actions were of a type
tending to cause or provoke a disturbance.
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No.   02-1083
¶20    Nor  did  the  trial  court  err  by  finding  Wendy  had  violated  the
ordinance.    While Wendy argues she was merely inquiring about Hunter, the
court’s findings regarding her behavior show otherwise.   The court specifically
pointed  to  her  loud  and  abusive  language,  her  confrontation  of  Kirchoff,  her
drinking, and that her actions took place in front of a group of people. Wendy’s
actions tended to cause or provoke a disturbance as well.
¶21    Wendy argues her mere presence on the street and challenge to her
son’s arrest cannot constitute disorderly conduct.   She relies on State v. Werstein,
60  Wis.  2d  668,  211  N.W.2d  437  (1973).    In  Werstein,  the  supreme  court
overturned the disorderly conduct convictions of several antiwar protesters who
were at an Army induction center.   Id. at 677.   The protestors refused to leave after
the commanding officer and police ordered them to do so.   Id. at 670.   The court
said their conduct was not  “otherwise disorderly” because the protestors had a
legal right to be in the center and were not acting in any way that caused a
disturbance.   Id. at 674.   Wendy’s premise is faulty.   While she may have had a
legal right to be on the street, Wendy did not have a right to act as she did.   The
protestors in Werstein did not engage in loud or abusive conduct.   Id. at  671.
Wendy did, and her conduct was disorderly.
By the Court.—Judgments affirmed.
                                                                                          This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                 (b)4.
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No.   02-1083
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