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State of Montana v. Randall Jay Dugan

February 19, 2013

STATE OF MONTANA, PLAINTIFF AND APPELLEE,
v.
RANDALL JAY DUGAN, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-10-194C Honorable John C. Brown, Presiding Judge

The opinion of the court was delivered by: Jim Rice

February 19 2013

Argued: November 13, 2012

Submitted: November 20, 2012

Filed:

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Randall Jay Dugan appeals from an order of the Eighteenth Judicial District Court, Gallatin County, denying his motion to dismiss a charge of using obscene, lewd, and profane language in violation of the Privacy in Communications statute, § 45-8-213, MCA. Dugan challenges the constitutionality of the Privacy in Communications statute (the statute), arguing that it is overbroad, vague, and violates his free speech rights guaranteed by the Montana and United States Constitutions. We reverse the District Court's conclusion that Dugan's speech constituted "fighting words," and strike a portion of the Privacy in Communications statute as unconstitutionally overbroad. We remand to the District Court to allow Dugan to withdraw his nolo contendere plea and proceed to trial on the charges brought against him under the statute.

ISSUES

¶2 Dugan raises the following three issues on appeal:

¶3 1. Did the State violate Dugan's right to free speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution when it charged him with violating the Privacy in Communications statute, § 45-8-213, MCA?

¶4 2. Is the Privacy in Communications statute, § 45-8-213, MCA, facially overbroad in violation of the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution?

¶5 3. Is the Privacy in Communications statute, § 45-8-213, MCA, vague on its face, or as applied to Dugan, so as to violate the Due Process Clause of the United States Constitution and Article II, Section 17 of the Montana Constitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 In the lower court proceedings, the Justice Court and District Court relied on the facts as set forth in the parties' briefs concerning Dugan's motion to dismiss. Our recitation of the facts is similarly taken from briefing before these courts.

¶7 On October 21, 2009, Dugan visited the office of the Gallatin County Victim Assistance Program (Victim Services) and requested assistance with filling out and filing paperwork for obtaining an order of protection against the mother of his children, who was about to be released from prison. Victim Services is a joint effort of Gallatin County, the City of Bozeman, and the private nonprofit Network Against Sexual and Domestic Violence. It is located in the Law and Justice Center in Bozeman, Montana. The office door is locked and controlled by a video-monitored entry system. Dugan was not allowed to enter the office because he had been loud and disruptive in the past. An employee of Victim Services, Jan Brownell, informed Dugan that the person with whom he needed to speak, Krystal Redmond-Sherrill, was not in the office at that time. Brownell told Dugan to call Redmond-Sherrill and make an appointment to discuss the order of protection.

¶8 On October 28, 2009, Dugan contacted Gallatin County Dispatch to attempt to obtain an order of protection. Dispatch contacted Deputy Mayland of the Gallatin County Sheriff's Office and asked him to get in touch with Dugan. Deputy Mayland spoke with Dugan and Dugan told him that he was afraid the mother of his children would try to take his children when she was released from prison. Dugan reported that he spoke with Redmond-Sherrill at Victim Services, but she refused to provide him with the necessary paperwork or assistance to obtain an order of protection. Deputy Mayland contacted Victim Services to investigate Dugan's claims. Redmond-Sherrill informed Deputy Mayland that Dugan had stopped by the office a week ago and was told to make an appointment. Deputy Mayland also talked to Brownell, who told him about Dugan's past behavior. Brownell reported that the Victim Services' office staff felt threatened by Dugan.

¶9 Later that same day, Redmond-Sherrill contacted Deputy Mayland and reported that Dugan had just called her. Once again, Dugan requested assistance obtaining an order of protection. When Redmond-Sherrill informed Dugan that she could not help him and suggested that he obtain the necessary paperwork directly from the clerk of court, Dugan became aggressive and agitated. Dugan continued to argue with Redmond-Sherrill, and called her a "fucking cunt" as he hung up the phone. When Redmond-Sherrill described the conversation to Deputy Mayland, her voice was shaky and soft and he believed she was about to cry. Brownell observed that Redmond-Sherrill was visibly upset following the conversation. However, Redmond-Sherrill reported that Dugan did not threaten her or anyone else in the office. Redmond-Sherrill told Deputy Mayland that Dugan was "just really upset that-that [she wasn't] going to hand him an order of protection . . . and basically wasn't getting what he was wanting out of that conversation."

¶10 Deputy Mayland issued a citation to Dugan for violating the Privacy in Communications statute. On the citation, Deputy Mayland wrote that Dugan "called victim on telephone and used obscene, lewd and profane language, offending the victim."

¶11 Dugan appeared with counsel in Gallatin County Justice Court and filed a motion to dismiss. In his motion, Dugan argued that the charge against him violated his free speech rights under the Montana and United States Constitutions, and that the Privacy in Communications statute was unconstitutionally vague. The State opposed the motion. The Justice Court denied Dugan's motion to dismiss with no supporting analysis in the record and without providing Dugan an opportunity to file a reply brief. Following the Justice Court's denial of his motion, Dugan entered a plea of nolo contendere. Dugan was sentenced to 180 days in jail with all but five suspended, and ordered to pay fines and fees totaling $585. Dugan appealed the Justice Court's denial of his motion to dismiss to the District Court. Dugan's sentence was stayed pending appeal.

¶12 At the District Court, Dugan once again filed a motion to dismiss. Dugan contended that the charges against him violated his free speech rights, and that the Privacy in Communications statue was unconstitutionally vague and overbroad. The District Court determined that Dugan's utterance to Redmond-Sherrill constituted unprotected speech in the form of "fighting words." The District Court further concluded that the Privacy in Communications statute was not unconstitutionally vague or overbroad. Therefore, the District Court denied Dugan's motion to dismiss. Dugan appeals the District Court's decision.

STANDARDS OF REVIEW

¶13 We review de novo the denial of a motion to dismiss in a criminal case. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d 1278.

¶14 This Court's review of constitutional questions is plenary. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913. The constitutionality of a statute is a question of law, and we review a district court's legal conclusions for correctness. Walters, ¶ 9.

DISCUSSION

¶15 Did the State violate Dugan's right to free speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution when it charged him with violating the Privacy in Communications statute, § 45-8-213, MCA?

¶16 The statute under which Dugan was charged is § 45-8-213, MCA. It reads in pertinent part as follows:

45-8-213. Privacy in communications. (1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely:

(a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.

. . . (4) "Electronic communication" means any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

Section 45-8-213, MCA. As backdrop to our discussion of whether this statute infringed Dugan's free speech rights, we will analyze the protections historically accorded free speech under the United States and Montana Constitutions.

¶17 The First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution both protect the right to free speech. The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech." Montana is bound to the guarantees of the First Amendment by the Due Process Clause of the Fourteenth Amendment. City of Whitefish v. O'Shaughnessy, 216 Mont. 433, 438, 704 P.2d 1021, 1024 (1985) (citing Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625 (1925)). Article II, Section 7 of the Montana Constitution states that "[n]o law shall be passed impairing the freedom of speech or expression." Additionally, under Article II, Section 7, "[e]very person shall be free to speak . . . whatever he will on any subject, being responsible for all abuse of that liberty."

¶18 The right to free speech is a fundamental personal right and "essential to the common quest for truth and the vitality of society as a whole." St. James Healthcare v. Cole, 2008 MT 44, ¶ 26, 341 Mont. 368, 178 P.3d 696 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 503-04, 104 S. Ct. 1949, 1961 (1984)). The "vast majority" of speech enjoys constitutional protection. State v. Lance, 222 Mont. 92, 102, 721 P.2d 1258, 1265 (1986). However, neither the First Amendment nor Article II, Section 7, provide unlimited protection for all forms of speech. St. James Healthcare, ¶ 29. The United States Supreme Court has explained that the right of free speech is not absolute at all times and under all circumstances:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

Chaplinsky v. N.H., 315 U.S. 568, 571-72, 62 S. Ct. 766, 769 (1942) (internal quotations omitted). The District Court relied on the "fighting words" categorical exception to conclude that Dugan's speech was not protected by the First Amendment.

A. The "Fighting Words" Doctrine and the United States Supreme Court ¶19 The United States Supreme Court first declared that "fighting words" is a category of speech not protected by the First Amendment in Chaplinsky, 315 U.S. at 571-72, 62 S. Ct. at 769. Chaplinsky was a Jehovah's Witness preacher who caused a disturbance after distributing religious literature on public streets and denouncing all religion as a "racket." Chaplinsky, 315 U.S. at 569-70, 62 S. Ct. at 768. A police officer escorted Chaplinsky to the police station, and Chaplinsky told the officer "[y]ou are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky, 315 U.S. at 569, 62 S. Ct. at 768. Chaplinsky was convicted of violating a New Hampshire statute that stated as follows:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.

Chaplinsky, 315 U.S. at 569, 62 S. Ct. at 768. The United States Supreme Court upheld Chaplinsky's conviction, holding that his speech constituted "fighting words," which can be prevented and punished without raising any First Amendment problems. Chaplinsky, 315 U.S. at 571-72, 62 S. Ct. at 769.

ΒΆ20 The Court defined "fighting words" as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, 315 U.S. at 572, 62 S. Ct. at 769. "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight." Chaplinsky, 315 U.S. at 573, 62 S. Ct. at 770. The Court noted that the purpose of the statute was to "preserve the public peace," and the statute "does no more than prohibit the face-to-face words plainly likely to cause a breach of the ...


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