(dissenting). I dissent because I believe that sec. 943.145(2), Stats., is unconstitutionally vague on its face. The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that people of common intelligence must necessarily guess as to its meaning and differ as to its applicability, it is unconstitutional. City of Oak Creek v. Ah King, 148 Wis. 2d 532, 546, 436 N.W.2d 285 (1989), citing State v. McCoy, 143 Wis. 2d 274, 285-86, 421 N.W.2d 107 (1988); Bachowski v. Salamone, 139 Wis. 2d 397, 406, 407 N.W.2d 533 (1987).
*546'A statute or ordinance is unconstitutionally vague if it fails to afford proper notice of the conduct it seeks to proscribe or if it encourages arbitrary and erratic arrests and convictions. The test to determine vagueness is whether the statute or ordinance is so obscure that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability .. . [it] must be sufficiently definite so that potential offenders who wish to abide by the law are able to discern when the region of proscribed conduct is neared and those who are charged either with enforcing or applying it are not relegated to creating their own standards of culpability instead of applying the standards prescribed in the law.'
City of Milwaukee v. Nelson, 149 Wis. 2d 434, 446-47, 439 N.W.2d 562 (1989), quoting Milwaukee v. Wilson, 96 Wis. 2d 11, 16, 291 N.W.2d 452 (1980) (footnotes omitted).
Section 943.145(2), Stats., provides:
Whoever intentionally enters a medical facility without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a breach of the peace, is guilty of a Class B misdemeanor.
I believe that the phrase "under circumstances tending to create or provoke a breach of the peace" is not sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. I believe sec. 943.145(2) is so obscure that people of common intelligence must necessarily guess as to its meaning and differ as to its applicability.
For example, sec. 943.145(2) could apply to an individual who enters a medical facility without consent wearing a shirt which graphically depicts what that per*547son believes happens during an abortion procedure if under the circumstances such conduct tended "to create or provoke a breach of the peace." Similarly, sec. 943.145(2) could apply to an individual who enters a medical facility without consent wearing a shirt which extols the virtues of a particular athletic team if under the circumstances such conduct tended "to create or provoke a breach of the peace." I believe that the foregoing demonstrates that sec. 943.145(2) simply does not give reasonable notice of the type of conduct prohibited by the statute to those who wish to avoid the penalty for violation of the statute.
I note that the fact that a statute fails to itemize with particularity every possible kind of conduct which would violate such statute does not make it unconstitutionally vague. Ah King, 148 Wis. 2d at 546. For example, in State v. Givens, 28 Wis. 2d 109, 115, 135 N.W.2d 780 (1965), this court, in finding that the disorderly conduct statute, sec. 947.01, Stats.,1 is reasonably explicit, held that:
[T]he six types of affirmative conduct which are expressly listed in the statute all tend to disrupt good order and to provoke a disturbance. When the statute, after the specific enumerations, in a 'catch-all' clause proscribes 'otherwise disorderly conduct' which tends to 'provoke a disturbance,' this must mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance. Such inter*548pretation rests upon the rule of ejusdem generis. . . . Upon this approach, the instant statute sufficiently identifies the type of behavior which the legislature intended to be contrary to law.
(Citations omitted.)
In contrast, sec. 943.145(2), Stats., does not provide any examples of the type of conduct which tends "to create or provoke a breach of the peace." As a result, people of common intelligence must necessarily guess as to its meaning and differ as to its applicability. Therefore, I would hold that sec. 943.145(2) is unconstitutionally vague on its face.
section 947.01, Stats., provides as follows:
947.01 Disorderly conduct. 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.