City of Seattle v. Ivan

• Citation: 71 Wn.App. 145,856 P.2d 1116
• Decision Date: 30 August 1993
• Docket Number: No. 28062-7-I,28062-7-I
• Court: Court of Appeals of Washington
• Parties: The CITY OF SEATTLE, Appellant, v. Marion IVAN, Respondent. Division 1

Page 145

71 Wn.App. 145

856 P.2d 1116

The CITY OF SEATTLE, Appellant, v. Marion IVAN, Respondent.

No. 28062-7-I.

Court of Appeals of Washington,

Division 1.

Aug. 30, 1993.

Mark H. Sidran, City. Atty., and David F. Shayne, Asst. City Atty., Seattle, for appellant.

Colleen E. O'Connor, Washington App. Defender, Seattle, for respondent.

KENNEDY, Judge.

The City of Seattle has been granted discretionary review of a decision of the King County Superior Court in a RALJ appeal reversing the conviction of Marion Ivan for attempted coercion under Section 12A.06.090 of the Seattle Municipal Code. The City contends that the King County Superior Court erred by finding the ordinance unconstitutionally overbroad. Ivan argues that the Superior Court decision should be affirmed on the basis of overbreadth, vagueness and insufficiency of evidence. Finding the ordinance unconstitutionally broad, we affirm.

I.

The attempted coercion charge stems from an incident between Ivan and Katherine Hobson, an employee at a refugee resettlement office. One of Hobson's clients complained to Hobson that Ivan had kidnapped him. Hobsonrecommended to her client that he notify the police and pursue charges. An action was filed and Hobson was scheduled to testify in the subsequent proceedings.

Ivan contacted Hobson by phone and in person, asking her why she was helping her client to make a case against him. Ivan claimed he "wasn't bad" and asked her "to take a second look at the man [she] was helping". Ivan then contacted Hobson's supervisor, Huot Khun, at least three times, and requested that Khun ask Hobson not to testify. Khun testified that, during one such contact, Ivan stated that "he wanted to ask me to ask her [Hobson] don't come to the court and if she hurt him he would hurt her." Hobson was not present when Ivan made this statement.

The City of Seattle charged Ivan with attempted coercion under Seattle Municipal Code 12A.06.090, ¹ which states:

A. A person is guilty of coercion if by use of a threat he compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he has a legal right to engage in.

B. "Threat" as used in this section means:

1. To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or

2. Threats as defined in Section 12A.08.050(L).

SMC 12A.08.050(L) provides:

"Threat" means to communicate, directly or indirectly, the intent:

1. To cause bodily injury in the future to another; or

2. To cause damage to the property of another; or

3. To subject another person to physical confinement or restraint; or

4. To accuse another person of a crime or cause criminal charges to be instituted against another person; or

5. To expose a secret or publicize an asserted fact, whether true or false, tending to subject another person to hatred, contempt or ridicule; or

6. To reveal significant information sought to be concealed by the person threatened; or 7. To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

8. To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or

9. To bring about or continue a strike, boycott, or other similar collective action with the intent to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or

10. To do any other act which is intended to harm substantially any person with respect to his health, safety, business, financial condition, or personal relationships.

Ivan was tried in Seattle Municipal Court and found guilty of attempted coercion on December 12, 1988. Pursuant to RALJ 2.2, Ivan appealed his conviction to King County Superior Court, alleging that the evidence was insufficient to support his conviction and that the ordinance was unconstitutional on the basis of overbreadth and vagueness. The Superior Court ruled that the coercion ordinance was unconstitutionally overbroad because the ordinance omitted an express requirement of specific criminal intent and impinged upon protected free speech activities. The court also ruled that no acceptable limiting construction would cure the constitutional defects. The court did not reach the issues of vagueness or insufficiency of the evidence. Ivan's conviction was reversed. The City of Seattle then petitioned this court for discretionary review pursuant to RAP 2.3. Discretionary review was granted.

II.

The City asserts that the Superior Court erred by finding that SMC 12A.08.050(L) is unconstitutionally overbroad. ² Overbreadth analysis is intended to ensure that legislative enactments do not prohibit constitutionally protected conduct, such as free speech. Tacoma v. Luvene, 118 Wash.2d 826, 827 P.2d 1374 (1992). An initial inquiry in overbreadth analysis is whether Ivan has standing to attack the ordinance as facially overbroad in light of the fact that the Superior Court found his behavior to fall within the legitimate application of the ordinance. Although Ivan's behavior falls within the "hard core" of the statute, third party standing is appropriate when the challenged statute may chill constitutionally protected behavior. Luvene, 118 Wash.2d at 840, 827 P.2d 1374. This principle is justified on the basis that other individuals should not be put at risk of criminal prosecution for constitutional conduct. Luvene, 118 Wash.2d at 840, 827 P.2d 1374. The ordinance in this case extends on its face to encompass both conduct and speech; "threat" is defined as a communication. Therefore, Ivan has standing to assert overbreadth, and hypothetical behavior may be used to illustrate the alleged overbreadth of the ordinance. Blondheim v. State, 84 Wash.2d 874, 876, 529 P.2d 1096 (1975).

In order to determine whether a statute is overbroad, a reviewing court must first ascertain whether the law prohibits a real and substantial amount of constitutionally protected conduct. Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989) (citing Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 2507, 96 L.Ed.2d 398 (1987)). Criminal statutes receive a more exacting scrutiny and may be facially invalid even if they have a legitimate application. Huff, 111 Wash.2d at 925, 767 P.2d 572, Hill, 482 U.S. at 459, 107 S.Ct. at 2508.

The ordinance in the instant case prohibits "threats." The behavior proscribed by the statute encompasses pure speech, and not merely conduct. "Threat" is expressly defined as a communication of the speaker's intent to perform a specific act. Such communications are not necessarily outside the scope of protected speech. ³ Communications that are "fighting words" and inflict injury or encourage immediate breach of the peace are not protected speech under the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even offensive and provocative speech is protected unless it is likely to produce a "clear and present danger of a serious substantive evil ...". Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949). Similarly, words that are calculated to produce immediate panic may not be protected speech. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).

The ordinance in the present case defines "threat" broadly and prohibits a wide range of communications beyond mere fighting words and other non-protected speech. ⁴ The City itself concedes in its brief that the ordinance may prohibit otherwise protected speech. Brief of Appellant, at 8. However, the overbreadth analysis is not necessarily ended at that point because even protected speech may be regulated by view-point neutral, reasonable time, place and manner restrictions. Seattle v. Huff, 111 Wash.2d 923, 926, 767 P.2d 572 (1989) (citing Bering v. Share, 106 Wash.2d 212, 221-22, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987)); Seattle v. Eze, 111 Wash.2d 22, 33, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). A different standard for regulation applies depending on whether the speech takes place in a public or non-public forum. Public forums are places traditionally devoted to assembly and debate, or channels of communication used by the public for assembly and speech by certain speakers or for the discussion of certain topics. Seattle v. Huff, 111 Wash.2d at 927, 767 P.2d 572. The speech sought to be prohibited in the case at hand is more appropriately analyzed as taking place in a non-public forum because of the private nature of the proscribed behavior; the statute contemplates private communications between individuals. See Huff, 111 Wash.2d at 927, 767 P.2d 572 (telephone discussions are of a private nature and not a public forum). ⁵

Speech in a nonpublic forum may be regulated if "the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Seattle v. Eze, 111 Wash.2d at 32, 759 P.2d 366 (citing Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985). The Seattle ordinance, however, prohibits such a wide range of speech that it is impossible to find its proscriptions reasonable. As pointed out by Ivan, SMC 12A.08.050(L)(4) could be applied to proscribe prosecutors from plea-bargaining. Subsections (5) and (6) could impinge on freedom of the press to release information. Subsection (7) could discourage a witness from testifying. Subsection (9) could chill the ability of groups to engage in boycotts and collective bargaining.

This sample of prohibited behavior gives some indication of the wide scope of proscribed behavior. These situations are not reasonably distinguishable from other instances of protected speech and cannot be constitutionally regulated by...