Court to consider hate crime

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Two cases currently pending in Wisconsin courts — one in the Supreme Court and the other in Waukesha County Circuit Court — raise an interesting issue: whether disorderly conduct can be charged as a hate crime.

In the case pending before the Supreme Court, three defendants were charged with disorderly conduct as a hate crime, based on allegations they called African Americans the N-word.

The Rock County Circuit Court held that, because the disorderly conduct consisted only of speech, and the speech itself was the basis for the penalty enhancer, the enhancer was multiplicitous and violated the Double Jeopardy Clause.

The Wisconsin Court of Appeals reversed in an unpublished opinion on July 24, but on Dec. 18, the Supreme Court accepted review.

The pending Waukesha County case began in November, when the defendant, Kenneth A. Pousha, allegedly called a fellow patron at a tavern the N-word. He was scheduled for a court appearance on Dec. 22, but an arrest warrant was issued when he failed to appear, according to the state courts Web site.

Supreme Court Issues

In the Supreme Court case, State v. Welda, No. 2007AP2024-CR, three issues have been raised so far:

Whether Wisconsin’s hate crime law permits additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer.

Whether Wisconsin’s hate crime law, sec. 939.645(1)(b), Stats., is unconstitutional under the First Amendment as applied to the facts of this case. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

Whether this is in fact a “speech only” disorderly conduct case or whether the facts would support a disorderly conduct charge based on the defendant’s actions in addition to his speech.

However, in the course of reaching those issues, it is likely that the Supreme Court will first have to consider a more fundamental question: whether the hate crime enhancer applies to disorderly conduct, or whether disorderly conduct is a “victimless crime” and therefore, a defendant cannot target a victim on account of race.

Disorderly Conduct Enhancer?

The hate crime enhancer, sec. 939.645, requires proof that the defendant “[i]ntentionally select[ed] the person against whom the crime … is committed … in whole or in part because of … the race … of that person.”

The disorderly conduct statute, sec. 947.01 requires proof that the defendant engaged 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.”

On its face, application of the enhancer to disorderly conduct is problematic, because disorderly conduct does not have a victim in the sense that battery or murder does — rather, it is a crime against the public peace, not an individual.

Nevertheless, the Court of Appeals has held this irrelevant in several other contexts.

For example, in State v. Vinje, 201 Wis.2d 98, 548 N.W.2d 118 (Ct.App.1996), the defendant was charged with disorderly conduct and intimidation of a victim based on his actions during a domestic dispute.

Kevin Vinje admitted guilt to disorderly conduct. However, he argued he could not be charged with intimidation of a victim, because disorderly conduct does not require the criminal actions be directed toward any person.

Because the underlying crime he did commit, disorderly conduct, has no victim, Vinje argued that the evidence could not support a conviction for intimidation of a victim.

The Court of Appeals disagreed, holding, “if the disorderly conduct is directed at a person, then that person is the victim for disorderly conduct as a matter of fact for the purpose of prosecuting a defendant with intimidation of a victim.” Vinje, 548 N.W.2d at 121.

In a dissent, Judge Robert Sundby wrote, “I do not believe that the legislature intended that crimes against public peace and good order should have as victims all members of the public affected by the offense.”

The holding in Vinje has since been extended by the Court of Appeals in other contexts.

In an unpublished decision, State v. Michael E.H., 571 N.W.2d 925, 214 Wis.2d 593 (Ct. App, Oct. 2, 1997), the court relied on Vinje to uphold an award of restitution for a disorderly conduct conviction.

The defendant’s disorderly conduct was directed at a group, and one of the people in that group was injured; therefore, the court upheld the restitution order.

However, whether Vinje was correctly decided has never been considered by the Supreme Court, and close examination by the court of the elements of disorderly conduct will raise statutory questions beyond the double jeopardy and First Amendment issues that the court has certified.