No. 85-153
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
CITY OF BILLINGS,
Plaintiff and Respondent,
-vs-
EARL BATTEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Calton & Hamrnan; Frances M. Calton, Billings, Montana
For Respondent:
Bonnie Sutherland, Assistant City Attorney, Billings,
Montana
Submitted on Briefs: June 28, 1985
Decided: September 12, 1985
Filed:
a f j [ G&w"
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant a.ppeals his conviction for disorderly con-
duct, a violation of S 45-8-101, MCA, following jury trials
in both the City Court of Billings and subsequently in the
District Court of the Thirteenth Judicial District,
Yellowstone County. He was fined $100 and assessed jury
costs of $316. Claiming that S 45-8-101, MCA, is unconstitu-
tional and that Billings failed to establish a prima facie
case, the defendant appeals to this Court.
We affirm the judgment of the District Court holding
that S 45-8-101, MCA, is constitutionally valid and that
appellant's violation of that statute has been established by
substantial evidence.
The following issues are raised on appeal:
1. Whether appellant's statements and conduct were
protected by the Constitution.
2. Whether § 45-8-101, MCA, is void for vagueness and
overbreadth.
3. Whether appellant's statements and conduct estab-
lish the necessary elements of disorderly conduct under
§ 45-8-101, MCA.
4. Whether the District Court erred in denying appel-
lant's motion to dismiss for failure of the respondent to
establish a prima facie case.
The testimony of the parties conflict. The following
facts come primarily from the testimony of Joseph Carlson,
his son, Mike Carlson, and his wife, Cathy Carlson.
Appellant Earl Batten was charged with the misdemeanor
crime of disorderly conduct as a result of his actions on the
night of April 21, 1984. On that date, Batten owned a
business named Rimrock Honda, which was located next to an
open field. On the other side of the open field and across
the street, approximately one-half block away, the Joseph
Carlson family resides. The Dennis Gambill family lives next
door to the Carlsons.
On the night of April 21, 1.984, at approximately 8:30
p.m., the Carlsons sent their fifteen-year-old son, Steve, to
Buttrey's food store for some milk. Buttrey's is located
across the street, a-crossthe field, and on the other side of
Batten's property from the Ca.rlson residence. The open field
and Batten's property were routinely used by pedestrians as a
route from the residential area to Buttrey's and the other
stores. As Steve left the house to go to Buttrey's, Joseph
Carlson watched him from the front window. Although it was
dark out, the area was illuminated by a sign on appellant's
property. As Joseph Carlson watched his son walk toward
Buttrey's, he noticed a person stand.ing by a cluster of small
trees near the route followed by Steve. As Steve started
down a path across the field, the person by the trees started
to follow the boy. This activity concerned Joseph and he
called his wife, Cathy Carlson, to the window. She saw the
figure of the person in the shadow of the trees. At that
point, neither Joseph nor Cathy Carlson could identify the
figure .
After seeing the figure follow his son, Joseph Carlson
believed his son might be in danger. He therefore ran out-
side after picking up a golf club for protection and started
after Steve. At that time his nineteen-year-old son, Mike
Carlson, drove into their driveway. Mike Carlson joined his
father, and both followed Steve to make sure that the uniden-
tified figure would not harm the younger boy.
As Steve continued on the path, Cathy Carlson went
outside onto the driveway. On her way out, she grabbed a
pair of binoculars to help her see the confrontation.
It then appears that appellant stopped and waited for
Joseph and Mike Carlson to overtake him. There ensued a
verbal battle in which appellant ordered the Carlsons off his
property. The Carlsons left appellant's property, but appel-
lant continued his verbal attack calling Joseph Carlson a
communist government worker, no good son-of-a-bitch,
chickenshit, and m---------- r. Appellant said, "Fight me.
Hit me. You have a golf club. Come on. I want to fight
you. " Appellant's voice had become loud and he started
laughing at the Carlsons. He continued to swear and chal-
lenge the Carlsons. Joseph Carlson testified to at least
five people turning around and looking in their direction
from an adjacent commercial parking lot.
Meanwhile, Cathy Carlson was observing the commotion
from the Carlsons ' front yard. She heard a loud "f--k you. "
Although she does not know who said that, she knows it was
not her husband's or her son's voice. She could hear that
particular language clearly, and it came from the area where
appellant and her husband were. Cathy Carlson was afraid for
her family and called their next-door neighbors, the
Gambills. The Gambills came outside and testified to hearing
the yelling and that it was loud, although they could not
make out individual words.
Mike Carlson was angered by appellant's profanity and
challenges and told his father he was going to hit appellant.
Joseph grabbed Mike and told him to go and get his brother at
Buttrey's instead. Mike followed his father's orders.
Appellant continued to yell at Joseph. After three or four
minutes of this, Joseph attempted to walk home. He planned
to get his car and drive over to Buttrey's to pick up his
sons so that they would not have to confront appellant again.
Appellant yelled after Joseph "come back and fight you
m---------- r. I want to get it over with." Joseph started
to walk faster, and appellant started to follow him. Joseph
then ran the rest of the way to his house. Joseph and
Gambill then drove to Buttrey's to pick up the boys.
Just after Cathy Carlson called the Gambills, she
called the police. Officer Keith Richard Buxbaum was dis-
patched to the Carlsons' residence in response to the call.
When Officer Buxbaum arrived along with Officer Barta, the
incident was over. The police searched the area for appel-
lant but could not find him. Officer Buxbaum then requested
a warrant for appellant for disorderly conduct in his report.
Appellant was arrested on May 3, 1984.
Appellant was charged under § 45-8-101, MCA, which
provides :
Disorderly conduct. (1) A person com-
mits the offense of disorderly conduct
if he knowingly disturbs the peace by:
(a) quarreling, challenging to fight, or
fighting;
(b) making loud or unusual noises;
fc) using threatening, profane, or
abusive language;
(2) A person convicted of the offense of
disorderly conduct shall be fined not to
exceed $100 or be imprisoned in the
county jail for a term not to exceed 10
days, or both.
The first two issues presented by appellant concern his
constitutional right of free speech and whether or not the
statute is unconstitutionally vague and overbroad. This
Court recently considered similar issues in City of Whitefish
v. O'Shaughnessy (Mont. 1985), - P.2d -, 42 St.Rep. 928.
In that case we expressly declined to construe S 45-8-101,
MCA, because appellant in that case was charged under a
Whitefish municipal ordinance rather than the statute.
However, O'Shaughnessy remains Montana's primary precedent
concerning statutes or ordinances which seek to preserve the
peace through regulation of loud, profane, and threatening
speech. In this decision, we will consider the specific
facts and construe 5 45-8-101(1), MCA, in light of the prin-
ciples we espoused in O'Shaughnessy.
In OIShaughnessy we were presented with the following
ordinance:
Whitefish Municipal Ordinance,
9.64.010. No Person within the munici-
pality, or within three miles of the
municipal limits, shall willfully and
maliciously disturb the peace and quiet
of any street, neighborhood, family, or
person by loud, tumultuous noise, or by
tumultuous or offensive conduct, or by
using offensive, loud radio or televi-
sion sets, or by threatening, quarrel-
ing, scolding, hallooing, hollering,
challenging to fight, or fighting, or by
cursing, swearing, uttering obscene,
profane, vulgar, or indecent language in
the presence of any person or persons,
or by committing any obscene, vulgar,
indecent, or lewd act in any public
place, or in view of any person or
persons.
The appellant's charge and conviction under this ordi-
nance stemmed from his offensive statement to a police offi-
cer, that is, "Well, m---------- r, I will holler and yell
when and wherever I want to . . ." We upheld the conviction
holding that the jury properly found that appellant's speech
constituted "fighting" words which are not protected. by the
Constitution, Chapli-nsky v. New Hampshire (1942), 315 U.S.
568, 62 S.Ct. 766, 86 L.Ed. 1031, and by narrowly construing
the ordinance as only applying to words that have a direct
tendency to violence and which are willfully and maliciously
uttered. Under this narrow construction Whitefish's ordi-
nance is not unconstitutional for vagueness and. overbreadth
because it is only applicable to unprotected speech. See
Gooding v. Wilson (19721, 405 U.S. 518, 92 S.Ct. 1103, 31
As just di.scussed, "fighting words" are not constitu-
tionally protected speech. The right of free speech is not
absolute. Chaplinsky, 315 U.S. at 571. A state has the
power constitutionally to punish "fighting words" under
carefully drawn statutes not susceptible of application to
protected expression. Gooding, 405 U.S. at 522.
In O'Shaughnessy we approved the following jury in-
structions regarding "fighting words":
You are instructed that the words and
language of the defendant must have been
of such nature that men of common intel-
ligence would understand would be words
likely to cause an average person hear-
ing such words to fight. Threatening,
profane, and obscene words, said without
a disarming smile, are generally consid-
ered to be "fighting words."
The appellant, by the City's version of the encounter,
repeatedly called Carlson a number of profanities and a
communist government worker, and also challenged him to
fight. Appellant's language and conduct nearly provoked Mike
Carlson to fight and so concerned Joseph Carlson that he ran
from the confrontation. This Court holds that appellant's
speech and conduct constituted "fighting words" that are
unprotected by the constitution.
Having thus determined that appellant's right to free
speech did not entitle him to conduct himself as he did, we
now turn to the statute to determine whether it is vague or
overbroad and facially invalid. A statute may be held uncon-
stitutional if it is vague and overbroad. 12 A.L.R.3d 1448.
Vagueness and overbreadth are related concepts often spoken
of together. A statute must be drawn with sufficient clarity
and definiteness to inform persons of ordinary intelligence
what actions are proscribed (vagueness) and it cannot be
susceptible of reaching constituti.onally protected activity
(vagueness and overbreadth). In O'Shaughnessy we also dis-
cussed vagueness and. overbreadth doctrine and concluded that
invalidation of a potentially vague or overbroad statute can
be avoided by a narrow construction of the statute. Statutes
or ordinances regulating expressive conduct must be carefully
drawn or authoritatively construed to punish only unprotected
forms of speech. Wurtz v. F.isley (9th Cir. 1983) , 719 F. 2d
1438. We therefore construed the Whitefish ordinance narrow-
ly to apply only to words that have a direct tendency to
violence and which are willfully and maliciously uttered.
The disputed portion of § 45-8-101, MCA, is very simi-
lar to the Whitefish ordinance we upheld in O'Shaughnessy.
The only difference of any substance is that the ordinance
requires the elements of willful and malicious whereas the
statute substitutes "knowingly" for those intent elements.
Such a substitution is explained by the fact that Montana's
Penal Code revamped common law intent requirements and no
longer utilizes terms like "willfully and malicious" but
replaced such terms with "purposely" and "knowingly." 37
Mont.L,.Rev. 401. If anything, the statute's utilization of
the intent element of "knowingly" rather than "willfully and
maliciously" makes the statute less vague than the ordinance
because S 45-2-101(33), MCA, specifically defines "knowing-
ly -" Use of the intent element of "knowingly" does not
render the statute unconstitutionally va.gue.
We now construe § 45-8-101(1), MCA, as only applying to
words that have a direct tendency to violence and which are
knowingly uttered. So construed, the statute is not uncon-
stitutional on its face for vagueness or overbreadth.
I1
Appellant next alleges that his words and actions were
not sufficient to support a charge of disorderly conduct.
Appellant disputes what the jury chose to believe and alleges
that the testimony could not establish the elements delineat-
ed in the statute under which he was charged. Specifically,
appellant alleges that the elements of "disturbing the peace"
and "using threatening, profane, or abusive language" were
not established.
This Court will not substitute its judgment for that of
the lury; a jury which, in this case, was able to view first-
hand the evidence presented, observe the demeanor of the
witnesses and weigh the credibility of each party. The facts
stated at the outset of this opinion are sufficient to sup-
port the verdict of the jury. We hold that those facts are
sufficient to establish the elements of disorderly conduct as
enumerated in § 45-8-101, MCA.
Appellant questions whether his behavior could consti-
tute "disturbing the peace" under the statute. He quotes the
Criminal Law Commission Comments under S 45-8-101, MCA, which
require that in order for conduct to disturb the peace, the
behavior must disturb "others" and that it is not sufficient
that a single person or a very few persons have grounds for
complaint. Appellant argues that there were not sufficient
people present to constitute "others" and that therefore he
could not have disturbed the peace.
Although we have never decided how many people must be
disturbed before the peace is disturbed, one Montana case
involving the crime of breach of the peace, former S 94-4560,
R.C.M. 1947, provides guidance. In State v. Turley (19741,
164 Mont. 231, 521 P.2d 690, Turley's conviction for disturb-
ing the peace was upheld. Section 94-3560, R.C.M. 1.947,
prohibited disturbances of the peace by ''loud or unusual.
noise or tumultuous or offensive conduct or threatening,
quarrelling, challenging to fight or fighting.'' Turley was
convicted under this statute when only he, his wife, and a
third party were present to witness his conduct.
In the instant case, not only did appellant directly
confront and threaten Joseph and Mike Carlson by calling them
names, using profanity, threatening and trying to get them to
fight him, but the commotion initiated by appellant also drew
the attention of more persons. The neighbors of the Carlsons
and Cathy Carlson could hear the appellant's yelling from a
half block away. Cathy Carlson heard appellant yell "f--k
you" at her husband and son. At least five people in the
Buttrey's parking lot turned around and looked in the direc-
tion of the commotion. We hold that sufficient people were
disturbed by appellant's conduct to constitute a disturbance
of the peace.
The next element which appellant argues has not been
sufficiently proven to support his conviction is his use of
"threatening, profane, or abusive language." In this opinion
we have already construed this element as applying only to
words that have a direct tendency to violence. We hold that
appellant's conduct and speech as outlined earlier in this
opinion were sufficiently offensive as to provoke violence in
others. Any reasonable man would be outraged by appellant's
conduct.
I11
Finally, appellant argues that the trial court commit-
ted reversible error in denying his motion to dismiss for
failure of plaintiff to establish a prima facie case. Since
we have held that a prima facie case was established, there
is no need to deal with this contention further.
The judgment is affirmed.
ief Justice
/
We concur: