NO. 87-570
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID L. LOWERY,
Defendant and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable James R . Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John W. Robinson, County Attorney, Hamilton, Montana
Peggy Tonon, Deputy County Atty., Hamilton, Montana
Submitted on Briefs: June 9, 1988
Decided: July 21, 1988
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Fourth Judicial District,
Ravalli County, found Mr. Lowery guilty of one count of
disorderly conduct under 5 45-8-101, MCA. Mr. Lowery ap-
peals. We affirm.
The issues are:
1. Was it unlawful to prosecute Mr. Lowery for resist-
ing a police officer's attempt to remove him from the town
council meeting at which he had exercised his right to speak?
2. Is a disturbance which affects eight people a suffi-
cient breach of the peace to constitute disorderly conduct?
Mr. Lowery was a city judge at Darby, Montana, at the
time of this incident. He supported a non-partisan initia-
tive which the town council had refused to put on the ballot
at the previous November election. He attended the council's
January 12, 1987, meeting with the purpose of raising the
question of why the initiative had not been placed on the
ballot. Others present at the council meeting were the
council members, the town clerk, a police officer, and a
local newspaper reporter.
About 45 minutes into the council meeting, Mr. Lowery
was recognized and allowed to speak. Mr. Lowery and several
council members discussed Mr. Lowery's concerns for a few
minutes. One council member testified that he told Mr.
Lowery that the council would ask for a court ruling on his
question. Then the discussion between Mr. Lowery and that
council member escalated in volume and emotion, with Mr.
Lowery complaining about irregularities in the council meet-
ing. The council member asked the police officer to escort
Mr. Lowery out of the meeting. The officer attempted to do
so, Mr. Lowery resisted, and a scuffle ensued in which a
chair was broken. Finally, the sheriff was called and Mr.
Lowery was taken out of the room.
Mr. Lowery was charged in justice court with three
counts of disorderly conduct. Count One was for fighting
with the police officer. Count Two was for making loud or
unusual noises at the town council meeting. Count Three was
for disrupting a public meeting. The charges were tried to a
jury in justice court. The justice of the peace dismissed
Count Two, but the jury found Mr. Lowery guilty of Counts One
and Three. Mr. Lowery appealed to district court, where he
received a trial - -
de novo.
Mr. Lowery waived a jury trial at the district court
level. The District Court dismissed Count Three and found
Mr. Lowery guilty of Count One. Mr. Lowery was sentenced to
ten days in jail, with the sentence suspended for six months
contingent on payment of $250 in costs, a $10 surcharge, and
$10 in medical expenses for the police officer. Mr. Lowery
appeals the judgment.
I
Was it unlawful to prosecute Mr. Lowery for resisting a
police officer's attempt to remove him from the town council
meeting at which he had exercised his right to speak?
Mr. Lowery maintains that since he was exercising his
right to free speech at the town council meeting, he cannot
be charged with disturbing the peace for resisting the police
officer's efforts to remove him from the meeting. He bases
his argument on this Court's opinion in State v. Ytterdahl
(Mont. 1986), 721 P.2d 757, 43 St.Rep. 1245. There, this
Court held that Mr. Ytterdahl's actions of "hollering and
screaming" at commissioners at a Musselshell County Commis-
sion meeting and stomping out and slamming the door, did not
constitute disorderly conduct under S 45-8-101(1)(g), MCA.
That section prohihits disturbing the peace by "disturbing or
disrupting any lawful assembly or public meeting. " This
Court held that under the circumstances of that case, Mr.
Ytterdahl's right to free speech outweighed the State's
interest in preserving the peace. Ytterdahl, 721 P.2d at
760.
Mr. Lowery was convicted of Count One of the charges
against him. That count read:
On or about January 12, 1987 in Ravalli County,
Montana, the Defendant DAVID L. LOWERY knowingly
disturbed the peace by quarreling, challenging to
fight or fighting, by fighting with the Darby Town
Marshall Larry Rose at a Darby council meeting[ . I
count One clearly relates to § 45-8-101(1) (a), MCA: " A
person commits the offense of disorderly conduct if he know-
ingly disturbs the peace by quarreling, challenging to fight,
or fighting. " Mr. Lowery's reliance upon Ytterdahl , then,
is misplaced because that case involved prosecution under a
different subsection of the statute.
Mr. Lowery argues that his forcible removal from the
council meeting was a physical censorship and that it is the
police officer who should be charged with disturbing the
peace, not he. This assertion is without legal support. The
decision of a presiding officer to have a citizen physically
removed from a public meeting for disrupting the meeting
cannot lawfully be challenged by forcible resistance. Gigler
v. City of Klamath Falls (0r.App. 1975), 537 P.2d 121; State
v. Smith (N.J. 1966), 218 A.2d 147, cert. denied, 385 U.S.
838. After reviewing the facts in the transcript, we con-
clude that Mr. Lowery's actions in physically resisting
removal from the council meeting do not fit within the con-
cept of speech protected under the Constitution. We further
conclude that there is sufficient evidence in the record from
which the lower court could find that Mr. Lowery violated the
prohibition against fighting in $ 45-8-101(1) (a), MCA. We
hold that it was not unlawful to prosecute Mr. Lowery under
Count One of the complaint.
Is a disturbance which affects eight people a sufficient
breach of the peace to constitute disorderly conduct?
Mr. Lowery failed to raise this specific argument in
district court. The State argues that for that reason, the
argument should not be considered on appeal. See
S 46-20-701 (1), MCA. Nevertheless, because Mr. Lowery made
the general argument below that his actions did not violate
the criminal statutes, we will address the issue raised.
The criminal law commission comments to § 45-8-101, MCA,
state that, for a charge of breach of the peace, "[ilt is not
sufficient that a single person or a very few persons have
grounds for complaint." However, in City of Billings v.
Batten (Mont. 1985), 705 P.2d 1120, 42 St.Rep. 1398, defen-
dant was convicted of using "fighting words" toward his
neighbor in the presence of the neighbor's family and several
passers-by and within the hearing of other neighbors. The
total number of persons present was about ten. In City of
Whitefish v. O'Shaughnessy (Mont. 1985), 704 P.2d 1021, 42
St.Rep. 928, defendant was convicted of using "fighting
words" in the presence of two friends and a police officer.
We hold that the circumstances presented here involve a
disturbance to a sufficient number of persons to justify
prosecution under 5 45-8-101 (1)(a), MCA.
Affirmed.
We Concur: A