State v. Poe

Justice SCHROEDER,

Dissenting.

I respectfully dissent from that portion of the opinion that holds that the third part of Idaho Code § 18-6409 is unconstitutional because as written it criminalizes speech that is protected by the First Amendment. There are several problems with the Court’s opinion in this regard. Since the Court affirms the conviction on an alternate ground, there is no reason to reach the extended overbreadth analysis encompassed within the opinion. The analysis confuses the constitutional interpretation previously given the statute by this Court by failing to overrule Hammersley or reconcile the earlier analysis in Suiter. The determination of overbreadth runs contrary to the construction previously given the statute by this Court. I.C. § 18-6409 could be read to be overbroad were it viewed in a vacuum, but this Court should follow its decision in Hammersley, which construed the statute to apply only to unprotected conduct. The analysis should also be consistent with Suiter, which it is not. Finally, the Court’s conclusion that Mr. Poe conceded his guilt under the traducing portion of the statute is not supported by the record. He pled not guilty and went to trial, conceding nothing.

The Court’s abstract analysis of the ease fails to adequately address the events that occurred in this case. Those events are not pleasant, but they are necessary to understand why Mr. Poe could properly be found guilty.under this Court’s prior limiting construction of the statute.

The victim in this case was a thirteen-year-old boy, unrelated to Mr. Poe. He came to Mr. Poe’s home with his mother to pick up his three-year-old half brother. Though the *907facts are in dispute, there is evidence that Mr. Poe had had a prior unpleasant contact with the child’s father and was in an emotional snit. Within the hearing of the child Mr. Poe made a comment to the effect that the child’s father “needed to add a couple of inches to the penis.” The child was angry and left the house, most likely slamming the door. Mr. Poe then opened the front door while the child was in the front yard and began yelling at him that he was going to come after him and his father, words to the effect that he was going to “kick his ass and kick his father’s ass.” He referred to the child as a “Jew bastard.” The child ran to the car, locked the doors and began shaking and crying — little doubt that his peace was disturbed. This is the predicate to the legal analysis in this case.

Contrary to the Court’s position, Ham-mersley did address the issue of whether I.C. § 18-6409 was unconstitutionally overbroad on its face. While the precise issue before the Court was whether I.C. § 18-6409 was overbroad as applied to Hammersley, the Court also conducted the following analysis on the face of the statute:

By its very terms, I.C. § 18-6409 is self-limiting in its application and does not infringe upon a significant amount of Ham-mersley’s speech. The first sentence of I.C. § 18-6409 requires the specific intent that the conduct regulated be willful and malicious. As defined by section 18-101 of the Idaho Code, “willfully” means a purpose or willingness to commit the act or make the omission referred. See I.C. § 18-101(1). “Maliciously” imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. See I.C. § 18-101(4). Through its specific intent requirement that the regulated speech be malicious, I.C. § 18-6409 limits its application to those circumstances where the speech is intended to “vex, annoy, or injure another person.” Such communications, as previously discussed, do not come within the realm of protections afforded by either the U.S. or Idaho Constitutions.

State v. Hammersley, 134 Idaho 816, 821, 10 P.3d 1285, 1290 (2000). The Court’s opinion in this ease that “as written [I.C. § 18-6409] criminalizes speech that is protected by the First Amendment” effectively overrules Hammersley, ignoring the limiting construction this Court has previously given the statute. To say that Hammersley was simply an as-applied challenge ignores the essential element of the case — that is the construction the Court gave I.C. 18-6409. That construction remains regardless of other language in the opinion concerning the nature of the challenge. The Court now says that the statute says something different than it said in Hammersley. This case overrules Ham-mersley without saying so. By doing so the Court avoids the task of analyzing why prior authority should be abandoned. Stare deci-sis is not an absolute principle, but typically when prior authority is overruled the reasons for that are articulated, such as the rule is unworkable, or leads to unjust results. As the record now stands Hammersley is good law, because the Court did not overrule it, but of course it is not good law because the reading of § 18-6409 the Court gave in Hammersley is ignored, and that reading is different from the one now given.

The Court’s opinion also deviates from the construction given to I.C. § 18-6409 in State v. Suiter, 138 Idaho 13, 56 P.3d 775 (2002). In Suiter, the Court parsed I.C. § 18-6409 into the following five, rather than three, subparts:

To convict one for disturbing the peace pursuant to I.C. § 18-6409, the state must prove beyond a reasonable doubt that one “maliciously and wilfully [sic] disturbed] the peace or quiet of any neighborhood, family or person” in one of five manners:
by [1] loud or unusual noise, or by [2] tumultuous or offensive conduct, or by [3] threatening, traducing, quarreling, challenging to fight or fighting, or [4] fir[ing] any gun or pistol, or [5] use[ing] any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner

Id. at 16, 56 P.3d at 778 (citing I.C. § 18-6409) (numbered brackets in original). Given this interpretation, the use of “vulgar, profane or indecent language within the presence or hearing of children” must necessarily *908disturb “the peace or quiet of any neighborhood, family or person” in order to constitute a violation under I.C. § 18-6409. The Court’s opinion in this case reinterprets I.C. § 18-6409 to create overbreadth and allow the conviction of anyone who maliciously and willfully “[2] fires any gun or pistol, or [3] uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner.” This interpretation undermines the very purpose of the statute. For example, given the Court’s interpretation, a person could conceivably be convicted for disturbing the peace by firing a gun or pistol without any showing that the peace or quiet of any neighborhood, family or person had been disturbed as a result.

The Court takes issue only with the so-called “third part” of I.C. § 18-6409, which regulates the use of “vulgar, profane or indecent language within the presence or hearing of children.” According to the Court, “this part of the statute is not intended to apply to ‘fighting words’ because there need not be any addressee in order to violate the statute.” Hammersley interpreted I.C. § 18-6409 to the contrary. “Through its specific intent requirement that the regulated speech be malicious, I.C. § 18-6409 limits its application to those circumstances where the speech is intended to ‘vex, annoy, or injure another person.’ Such communications ... do not come within the realm of protections afforded by either the U.S. or Idaho Constitutions.” Hammersley, 134 Idaho at 821, 10 P.3d at 1290. Clearly, merely uttering undirected “fighting words” within the presence or hearing of children would not be malicious and willful, and therefore would not constitute a violation of I.C. § 18-6409. Given the requirement that the words be communicated with an intent to “vex, annoy, or injure another person,” the words must necessarily be communicated directly to the child or to someone else in the presence or hearing of the child. Under either scenario, the communication constitutes unprotected speech, which may be regulated by the state.

The state has a legitimate interest in “protecting minors from exposure to vulgar and offensive spoken language.” See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 676, 106 S.Ct. 3159, 3161, 92 L.Ed.2d 549, 554 (1986) (citing FCC v. Pacifica Found., 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978)). To the extent I.C. § 18-6409 criminalizes speech, it does so pursuant to this interest. The Court in Hammersley narrowly construed I.C. § 18-6409 in order to uphold its constitutionality. The Court’s decision in this case is an unexplained abrogation of that construction which undermines legitimate state interests in protecting children. The result is to abandon a constitutional construction in favor of an unconstitutional one that is inconsistent with this Court’s decisions in Suiter and Hammersley.

In the presentation of this case there was some focus upon the potential that the statute would infringe upon parent-child relationships, criminalizing events within the family. That is a legitimate concern to be dealt with in an actual case, not an abstract analysis which amounts to nothing but an advisory opinion. This is not a parent-child case. This ease has nothing to say about that relationship. Principles that protect parents and guardians in either discipline or the hurley-burley of family life are not applicable in this ease. Mr. Poe is not the child’s parent, guardian or other care provider. He is a man who was troubled by another relationship and took his frustrations out on a child. He initiated by insulting the manhood of the child’s father. He then intimidated the child by threats and use of a racial and/or religious epithet. The child sought sanctuary in a locked car. Mr. Poe disturbed the peace of this child. That peaee is protected by a constitutional provision of this statute that the Court has abandoned, inconsistent with prior rulings of this Court.

Saving the day by justifying a conviction under another provision of the statute which was not the focus of this case raises more concerns than it solves. The Court has now found a valid Conviction, inferring a concession that the record does not justify. This creates the anomaly that Mr. Poe now stands convicted of a charge that may have been based upon what the Court has determined was an unconstitutional provision or may have been convicted on a constitutional provi*909sion in the statute. There is no way to tell which.

In State v. Townsend, 124 Idaho 881, 887, 865 P.2d 972, 978 (1993), the Court addressed the result when a jury verdict could have been based upon alternate grounds but did not specify the ground:

The jury verdict did not specify whether the jury found that the aggravated battery was committed with Townsend’s vehicle, his hands, or both. Thus, we are unable to discern whether the jury based its verdict on a valid or an invalid legal theory.

Since the basis of the verdict could not be determined, the case was remanded for a new trial. The same situation exists in this case. Mr. Poe pled not guilty. The verdict does not specify the basis of the verdict. It might have been on the basis the Court has determined to be unconstitutional or upon the basis the Court has determined to be constitutional. He did not plead guilty to either. The ease must be remanded for a new trial, although the proper resolution would be to affirm the conviction utilizing the construction this Court gave I.C. § 18-6409 in Hammersley and Suiter. The logic of the Court’s decision would lead to a reversal for new trial, not affirmance of the conviction.

Chief Justice TROUT concurs.