State v. Givens

Heffernan, J.

{dissenting). I respectfully dissent from the conclusions of the majority. I agree with the able analysis of the disorderly conduct statute, but I believe that the rationale of that analysis leads to the opposite conclusion. The majority concluded that the statute is saved from the *124attack of vagueness by the application of the doctrine of ejusdem generis. Hence, in order to convict the defendants under the catchall phrase of “otherwise disorderly conduct,” the conduct complained about must be similar in nature to that which the body of the statute typifies as “violent, abusive, indecent, profane, boisterous, unreasonably loud.” Certainly, none of these adjectives describe the conduct of the defendants. The record shows that at no time was there resort to violence or to any improper language. Conversations between defendants and the officers were restrained and courteous. The record shows that the defendants sat on the floor of the waiting room of the chairman of the county board. It does not appear that they were there for any great length of time. The duration of this conduct is not in evidence, but a perusal of the record indicates that the defendants were in this posture at the most for a very few minutes, perhaps for only a few seconds.

There is no evidence that the work of the county board chairman was impaired in any way, nor even that ingress and egress to the office was in any manner seriously impeded.

I do not doubt that a sit-in might be conducted in a manner that would constitute disorderly conduct, but absent evidence of acts of violence and disorder as enumerated in this statute, I believe this conclusion could be reached only if the access to buildings, offices, or streets was substantially impeded or if the sit-in continued for such a length of time or under such circumstances that it would interfere with the use of the premises by the public and public officials.

In Teske v. State (1950), 256 Wis. 440, 444, 41 N. W. (2d) 642, we quoted with approval the rule that “disorderly conduct” embraces “all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts.” *125I deem the conduct of the defendants herein neither immoral nor indecent, and, hence, not within the prohibition of the statute.

The majority opinion intimates that in some manner the conduct was abusive. None of the commonly accepted synonyms or definitions for “abusive” would appear to make this typification of the conduct appropriate. 1 Words and Phrases (perm, ed.), p. 364, cites, among others, the following definitions of the word “abusive”: “Tending to deceive; . . . prone to ill treat by coarse, insulting words” or “using ill treatment, injurious, improper, hurtful, offensive, reproachful.” “Abusive” is generally equated with “indecent” or “obscene.” Abusive language is generally thought to be that which includes vituperative, scurrilous, insulting, gross, vile, impure, or obscene language. Certainly, the conduct of the defendants or their words cannot be described by these epithets.

I believe that the majority has erred in attempting to proscribe conduct that by no reasonable interpretation can be said to be within the contemplation of the disorderly conduct statute.

I would reverse.