No. 86-31
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1986
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
A N L YTTERDAHL,
R OD
Defendant and A p p e l l a n t .
APPEAL F O :
R M D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M u s s e l s h e l l ,
The Honorable Roy Rodeghiero, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
-
Nye & Meyer; J e r r o l d L. Nye, B i l l i n g s , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
P a t r i c i a J . S c h a e f f e r , A s s t . A t t o r n e y G e n e r a l , Helena
John L . P r a t t , County A t t o r n e y , Roundup, Montana
S u b m i t t e d on B r i e f s : March 28, 1986
Decided: J u l y 1 5 , 1986
J L 15 I386
U
Filed:
b
& fq, d . d Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, Arnold Ytterdahl, appeals from the judgment
of the District Court, Fourteenth Judicial District, County
of Musselshell, affirming the judgment of the Justice Court
of Musselshell County, finding Ytterdahl guilty of the
offense of disorderly conduct in violation of §
45-8-101 (1)(g), MCA. We reverse and dismiss.
Prior to the incident described here, Musselshell County
and Ytterdahl were parties to a civil action regarding an
easement on Ytterdahl's property. On May 9, 1985, a judgment
was entered in that action. Thereafter, the Musselshell
County Commissioners sent a letter to Ytterdahl, asking him
to meet with them at 10:OO a.m. on May 20, 1985, to discuss
issues and problems arising from the judgment entered in the
easement action.
Ytterdahl came to the meeting as requested. Present at
the meeting were the three county commissioners, the county
attorney, the commissioner of public works, and Ytterdahl.
It appears that the easement was never discussed at the
commissioners' meeting. Ytterdahl arrived upset, because the
county, without his permission, had bladed a roadway across
his property to provide access to the fairgrounds during road
repairs. The State contends that Ytterdahl was
"discourteous, bordering on the irrational, and was hollering
and screaming at the commissioners." There is evidence to
that effect. When the county attorney told the defendant he
could initiate a lawsuit in regard to his new complaint of
trespass, the defendant "mumbled a bad word," got up, stomped
out and slammed the door so hard that the glass in the room
rattled. The commissioners then recessed their meeting to
"get their feelings settled down" for a period of 15 minutes.
The District Court, in a bench trial for which the defendant
waived a jury, determined that the defendant had violated the
statute under which he was charged. The complaint filed in
the Justice Court against Ytterdahl was that he had committed
a misdemeanor, disorderly conduct, a violation of 5
45-8-101 (1) (g), MCA, in that he "knowingly disturbed the
peace by disturbing or disrupting any lawful assembly or
public meeting, namely, a county commissioner's meeting, by
getting up, storming out of the meeting, and slamming the
door. "
The pertinent language of S 45-8-101, MCA, follows:
Disorderly conduct. (1) A person commits the
offense of disorderly conduct if he knowingly
disturbs the peace by:
(g) disturbing or disrupting any lawful assembly
or public meeting;
Ytterdahl raises two issues for our review:
1. Whether S 45-8-101(1)(g), MCA, is unconstitutionally
vague ;
2. Whether the evidence was sufficient to support
Ytterdahl's conviction.
With respect to the first issue, the State argues that
Ytterdahl is barred from raising a question of the
constitutionality of a statute because he failed to raise the
issue in the District Court. The State relies on the
provisions of S 46-20-104(1), MCA, as supplemented by S
46-20-702, MCA.
It is true that under S 46-20-702, MCA, it is provided
that no claim on appeal alleging an error affecting
jurisdictional or constitutional rights may be noticed by us
if the error was not objected to as provided in § 46-20-104,
MCA, unless certain conditions exist which are not pertinent
here. While a question might be raised as to whether any
appellant may be prevented on appeal from raising
jurisdictional or constitutional questions, it is not
necessary for us to face that problem here. Because
Ytterdahl raises the issue of the sufficiency of the
evidence, it is necessary for us to examine the provisions of
$ 45-8-101(1)(g), MCA, as to its proper interpretation in the
light of this case.
It is certain that from the provisions of our statute
defining disorderly conduct, in this case, at least two
conditions must be shown in the evidence; (1) that the
defendant knowingly disturbed the peace; and, (2) that he
disturbed it through disrupting a lawful assembly or public
meeting.
The gravamen of the statute defining the offense is
"knowingly disturbing the peace." It is noted in Fischbach
v. Ohio State Racing Commission (Oh. App. 1955), 147 N.E.2d
258, that in legal textbooks there is no classification known
as "disturbing the peace" and that reference is always made
to "breach of the peace." Montana's statute defining
disorderly conduct appears to be a hybrid of the concepts of
disorderly conduct and breach of the peace. It is stated in
The cases generally agree that disorderly conduct
is a broader term than breach of the peace, so that
a person who commits a breach of the peace is
necessarily guilty of disorderly conduct, but all
disorderly conduct is not necessarily a breach of
the peace. It should be noted that both breach of
the peace and affray were offenses under the common
law, whereas disorderly conduct, at least by that
name, is not an offense of common-law origin, but
one created by statute or ordinance.
In the sense of the foregoing quoted paragraph, we seem
to run contra to the general run of cases. Although
disorderly conduct is in the general sense a broader term
than breach of the peace, in Montana, under the statute, the
crime of disorderly conduct is not committed, unless the
person so acting, "knowingly disturbs the peace." We hold
that disturbing the peace is synonymous with breaching the
peace.
To establish a misdemeanor under 5 45-8-101(1) (g), MCA,
it is essential to show, as an element of the offense, a
disturbance of public order and tranquility by acts or
conduct not merely amounting to unlawfulness, but tending to
create public tumult and incite others to break the peace.
12 Am. Jur.2d 666, 5 4. The Restatement (Second) of Torts, S
116, defines a breach of the peace as a public offense done
by violence or one causing or likely to cause an immediate
disturbance.
The evidence in this case fails to show that the acts of
the defendant for which he was charged tended to create
public tumult, or to incite others to break the peace, or
that it caused an immediate disturbance by others.
There is another, more important reason, however, for
holding that Ytterdahl, in the circumstances of this case,
did not commit an offense. It is the necessity that we give
a narrow judicial interpretation of criminal statutes
affecting the right of speech in order to insure that they
prohibit only speech which is not constitutionally protected.
State v. John W. (Me. 1980), 418 A.2d 1097, 14 A.L.R.4th
1238. As the Supreme Court of Maine pointed out, the
interpretation of such a criminal statute must be restricted
to the kind of speech that produces or is likely to produce a
clear and present danger of the substantive evils that the
state may constitutionally seek to prevent. See Schenck v.
United States (1919), 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63
L.Ed. 470; Annot., "Supreme Court's Development of the Clear
and Present Danger Rule," 38 L.Ed.2d 835 (1974); Landmark
Communications, Inc. v. Virginia (1978), 435 U.S. 829, 842,
98 S.Ct. 1535, 1543, 56 L.Ed.2d 1, 12.
The right of a citizen to protest an alleged unlawful
act of his government is undoubted. His right of speech,
even though distasteful, must also be unfettered unless the
speech creates the evil of a breach of peace. In weighing,
in this case, the necessity that we preserve Ytterdahl's
right of protest and right of free speech, in the
circumstances here described, as against the interests of the
State in preserving the peace, we hold that under the
evidence here, the actual conduct of Ytterdahl was not
sufficient to constitute the offense of disorderly conduct.
Accordingly, the judgment and conviction of the
defendant herein is reversed and the cause is remanded to the
District Court with instructions to dismiss the cause.
I
We Concur: