Colten v. Commonwealth of Kentucky 8212 404

• Decision Date: 12 June 1972
• Docket Number: No. 71,71
• Citation: 407 U.S. 104,92 S.Ct. 1953,32 L.Ed.2d 584
• Parties: Lewis COLTEN, Appellant, v. COMMONWEALTH OF KENTUCKY. —404
• Court: U.S. Supreme Court

407 U.S. 104

92 S.Ct. 1953

32 L.Ed.2d 584

Lewis COLTEN, Appellant,

v COMMONWEALTH OF KENTUCKY.

No. 71—404.

Argued April 17, 1972.

Decided June 12, 1972.

Syllabus

$Appellant, arrested for disorderly conduct when he failed, notwithstanding several requests by an officer, to leave a congested roadside where a friend in another car was being ticketed for a traffic offense, was tried and convicted in an inferior court and fined $10.Kentucky has a two-tier system for adjudicating certain criminal cases, under which a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial do novo in a court of general criminal jurisdiction but must risk a greater punishment if convicted.Exercising his right to a trial de novo, appellant was tried for disorderly conduct in the circuit court, convicted and fined $50.The state appellate court affirmed, rejecting appellant's contention that the disorderly conduct statute is unconstitutional under the First and Fourteenth Amendments and that the greater punishment contravened the due process requirements of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and violated the Fifth Amendment's Double Jeopardy Clause.The disorderly conduct statute makes it an offense for a person with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, to congregate with others in a public place and refuse to comply with a lawful police dispersal order.As construed by the Kentucky Court of Appeals, a violation occurs only where there is no bona fide intention to exercise a constitutional right or where the interest to be advanced by the individual's exercise of the right is insignificant in comparison to the inconvenience, annoyance, or alarm caused by his action.Held:

1.The disorderly conduct statute was not unconstitutionally applied, there having been ample evidence that the action of appellant, who had no constitutional right to observe the ticketing process or engage the issuing officer in conversation, was interfering with enforcement of traffic laws.Pp. 108—110.

2.The statute is not impermissibly vague or broad as 'citizens who desire to obey (it) will have no difficulty in understanding it,' and, as construed by the Kentucky court, individuals may not be convicted thereunder merely for expressing unpopular ideas.Pp. 110—111 3.Kentucky's two-tier system does not violate the Due Process Clause, as it imposes no penalty on those who seek a trial de novo after having been convicted in the inferior court.The Kentucky procedure involves a completely fresh determination of guilt or innocence by the superior court which is not the court that acted on the case before and has no motive to deal more strictly with a de novo defendant than it would with any other.North Carolina v. Pearce, supra, distinguished.Pp. 112—119.

4.The Double Jeopardy Clause does not prohibit an enhanced sentence on reconviction.North Carolina v. Pearce, supra, 395 U.S. at 719—720, 89 S.Ct. at 2077—2078. Pp. 119—120.

467 S.W.2d 374, affirmed.

Alvin L. Goodman for appellant.

Robert W. Willmott, Jr., for appellee, pro hac vice, by special leave of Court.

Mr. Justice WHITEdelivered the opinion of the Court.

This case presents two unrelated questions.Appellant challenges his Kentucky conviction for disorderly conduct on the ground that the conviction and the State's statute are repugnant to the First and Fourteenth Amendments.He also challenges the constitutionality of the enhanced penalty he received under Kentucky's two-tier system for adjudicating certain criminal cases, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment.

Appellant Colten and 15 to 20 other college students gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial candidate and to demonstrate their lack of regard for Mrs. Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city.When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to the main highway.A state policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver, one Mendez, to pull off the road.He complied.Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter.The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued.Colten made some effort to enter into a conversation about the summons.His theory was that Mendez may have received an extension of time in which to obtain new plates.In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car.Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students' vehicles.At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so.Testimony also differed as to the number of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway.A state police captain asked on four or five occasions that the group disperse.At least five times police asked Colten to leave.¹ A state trooper made two requests, remarking at least once: 'Now, this is none of your affair . . . get back in your car and please move on and clear the road.'In response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he understood was to be towed away.Another officer asked three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky's disorderly conduct statute, Ky.Rev.Stat. § 437.016(Supp.1968).The arresting officer testified that Colten's response to the order had been to say that he intended to stay and see what might happen.Colten disputed this.He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement.At trial he added that he feared violence on the part of the police.²

The complaint and warrant charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly Court of Fayette County, where Colten was tried, convicted, and fined $10.Exercising his right to a trial de novo in a court of general jurisdiction, Colten 'appealed,' as the Kentucky rules style this recourse, Ky.Rule Crim.Proc. 12.02, to the Criminal Division of the Fayette Circuit Court.By consent, trial was to the court and Colten was convicted of disorderly conduct and this time fined $50.The Kentucky Court of Appeals affirmed.Colten v. Commonwealth, 467 S.W.2d 374(1971).It rejected Colten's constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656(1969).We noted probable jurisdiction.404 U.S. 1014, 92 S.Ct. 672, 30 L.Ed.2d 660(1972).

I

Colten was convicted of violating Ky.Rev.Stat. § 437.016(1)(f)(Supp.1968), which states:

'(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

'(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . ..'

The Kentucky Court of Appeals interpreted the statute in the following way:

'As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right.We think that the plain meaning of the statute, in requiring that the proscribed conduct be done 'with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,' is that the specified intent must be the predominant intent.Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitu- tional right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise.'467 S.W.2d, at 377.

The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, 'Colten was not undertaking to exercise any constitutionally protected freedom.'Rather, he'appears to have had no purpose other than to cause inconvenience and annoyance.So the statute as applied here did not chill or stifle the exercise of any constitutional right.'Id., at 378.

Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment.Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a traffic citation he was disseminating and receiving information.But this is a strained, near-frivolous contention and we have little doubt that Colten's conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment.Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on....