574 N.W.2d 415 (Minn. 1998), CX-96-1865, State v. Machholz

Docket NºCX-96-1865.
Citation574 N.W.2d 415
Party NameSTATE of Minnesota, Respondent, v. Kurtis Dean MACHHOLZ, petitioner, Appellant.
Case DateJanuary 22, 1998
CourtSupreme Court of Minnesota

Page 415

574 N.W.2d 415 (Minn. 1998)

STATE of Minnesota, Respondent,


Kurtis Dean MACHHOLZ, petitioner, Appellant.

No. CX-96-1865.

Supreme Court of Minnesota.

January 22, 1998

Page 416

[Copyrighted Material Omitted]

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Syllabus by the Court

1. Minnesota Statutes section 609.749, subdivision 2(7) (1996), which provides that a person who "engages in any other harassing conduct that interferes with another person or intrudes on the person's privacy or liberty" is unconstitutionally overbroad on its face, given the broad range of constitutionally protected activity reached by its language and the fact that it is not subject to a limiting construction.

2. Minnesota Statutes section 609.749, subdivision 2(7), is also overbroad as applied in this case, given that the activity engaged in by the appellant, uttering anti-gay sentiments while riding a horse through a group of people gathered in a public place to celebrate National Coming Out Day, is protected under the First Amendment.

3. Because Minn.Stat. § 609.749, subd. 2(7), is unconstitutionally overbroad on its face and as applied to the appellant, the charges brought against the appellant must be dismissed.

Dunlap & Seeger, P.A., Peter C. Sandberg, Rochester, for appellant.

Hubert H. Humphrey III, Atty. Gen., Raymond F. Schmitz, Geoffrey A. Hjerleid, Rochester, for respondent.

Gay & Lesbian Community Action Council, Joni M. Thome, Minneapolis, amicus curiae.

Minnesota Civil Liberties Union, Sean A. Shiff, St. Paul, amicus curiae.

Heard, considered, and decided by the court en banc.


PAGE, Justice.

Appellant Kurtis Dean Machholz is charged with felony harassment in violation of Minn.Stat. § 609.749, subds. 1(1), 2(7), and 3(1). At a pre-trial hearing, Machholz moved to dismiss the charges against him, claiming that subdivision 2(7), read in conjunction with subdivision 1(1), and subdivision 3(1) of Minn.Stat. § 609.749 are invalid under the First Amendment of the United States Constitution as vague and overbroad on their face and as applied to him. The district court agreed and dismissed the charges against Machholz, finding that Minn.Stat. § 609.749, subd. 2(7), is unconstitutionally vague and subdivision 3(1) is unconstitutionally overbroad. The court of appeals reversed, holding that the provisions in question are neither unconstitutionally vague nor overbroad. We conclude that Minn.Stat. § 609.749, subd. 2(7), is overbroad on its face and as applied and therefore reverse the court of appeals and dismiss the charges against Machholz. 1

On October 11, 1995, a group of people gathered at the Peace Plaza in downtown Rochester, Minnesota, to celebrate National

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Coming Out Day, an annual event for homosexuals, their families, and their friends. Kurtis Machholz was having dinner at Mac's Restaurant, located near the Plaza, and noticed the gathering through the restaurant's front window. Because Machholz believes that homosexuality is immoral and perverse, the gathering upset him. As a result, he left the restaurant, mounted the horse he had ridden 2 to the restaurant, and rode through the group of people gathered for the event approximately four times.

As Machholz rode through the crowd, he shouted: "You're giving us AIDS!"; "You're spreading your filth!"; "There are no homosexuals in heaven!"; and "You're corrupting our children!" He also swung the horse's lead rope at an easel that held a sign announcing the event, knocking the easel over. While Machholz admitted to swinging the lead rope at the easel and knocking down the sign, he denied that he was swinging the reins of his horse at the people in the crowd. After Machholz knocked over the easel, he left the Plaza. Machholz's actions did not result in anyone being struck, but a number of people attending the event did indicate that they felt very threatened and frightened by Machholz's actions.

Machholz was charged with felony harassment under Minn.Stat. § 609.749, subds. 1(1), 2(7), and 3(1), which provide in relevant part:

Subdivision 1. Definition. As used in this section, "harass" means to engage in intentional conduct in a manner that:

(1) would cause a reasonable person under the circumstances to feel oppressed, persecuted, or intimidated; and

(2) causes this reaction on the part of the victim.

Subd. 2. Harassment and stalking crimes. A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:

(1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;

(2) stalks, follows, or pursues another;

(3) returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;

(4) repeatedly makes telephone calls, or induces a victim to make telephone calls to the actor, whether or not conversation ensues;

(5) makes or causes the telephone of another repeatedly or continuously to ring;

(6) repeatedly uses the mail or delivers or causes the delivery of letters, telegrams, packages, or other objects; or

(7) engages in any other harassing conduct that interferes with another person or intrudes on the person's privacy or liberty.

* * * *

Subd. 3. Aggravated violations. A person who commits any of the following acts is guilty of a felony:

(1) commits any offense described in subdivision 2 because of the victim's or another's actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363.01, age, or national origin. * * *

Minnesota Statutes section 609.749 also has a savings clause which provides:

Subdivision 7. Exception. Conduct is not a crime under this section if it is * * * authorized, required, or protected by state or federal law or the state or federal constitutions.

Machholz contends that both subdivision 2(7) and subdivision 3(1) are unconstitutionally vague 3 and overbroad on their face and as applied to him.

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"In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law." In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). Accordingly, "this court 'is not bound by the lower court's conclusions.' " Id. (quoting Sherek v. Independent Sch. Dist. No. 699, Gilbert, 449 N.W.2d 434, 436 (Minn.1990)). "Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). A party challenging a statute has the "burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional." State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990) (citations omitted).

A statute is overbroad on its face if it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights. State v. Century Camera, Inc., 309 N.W.2d 735, 740 (Minn.1981) (citing Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972)). Thus, the overbreadth doctrine departs from traditional rules of standing to permit, in the First Amendment area, a challenge to a statute both on its face and as applied to the defendant. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); State v. Hipp, 298 Minn. 81, 86-87, 213 N.W.2d 610, 614 (1973). The underlying reason for allowing a defendant to challenge a statute on its face, even when the defendant's own conduct may be constitutionally prohibited, is the potential chilling effect that overbroad statutes have on the exercise of protected speech. Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987).

A statute should only be overturned as facially overbroad when the statute's overbreadth is substantial. Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 2507, 96 L.Ed.2d 398 (1987) (citing New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). Put another way, because the overbreadth doctrine has the potential to void an entire statute, it should be applied "only as a last resort" and only if the degree of overbreadth is substantial and the statute is not subject to a limiting construction. Broadrick, 413 U.S. at 613, 93 S.Ct. at 2908.

Before we can address a facial overbreadth challenge, we must determine whether the statute in question implicates the First Amendment. If the First Amendment is not implicated, then we need go no further because no constitutional question is raised. The state contends that no First Amendment protections are implicated here because subdivision 2(7) is clearly directed at regulating conduct, not speech, and, therefore, cannot be overbroad. See Minn.Stat. § 609.749, subd. 2(7) (1996) (providing that an individual who "engages in any other harassing conduct that interferes with another person or intrudes on the person's privacy or liberty" is guilty of harassment) (emphasis added).

It is true, as the state contends, that the language of subdivision 2(7) is specifically directed at harassing conduct. However, First Amendment protection is not limited to the written or spoken word; it extends to some expressive activity, because the activity by itself may be communicative. See Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (affixing a peace symbol to a flag was protected expression); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing armbands to protest the Vietnam War was constitutionally protected expression); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) (burning a draft card brought into play First Amendment...

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