Musselman v. Com.
| Decision Date | 27 February 1986 |
| Docket Number | No. 85-SC-28-DG,85-SC-28-DG |
| Citation | 705 S.W.2d 476 |
| Parties | William A. MUSSELMAN, Movant, v. COMMONWEALTH of Kentucky, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
Thomas E. Clay, P.S.C., Louisville, for movant.
David L. Armstrong, Atty. Gen., John S. Gillig, Asst. Atty. Gen., Frankfort, Michael T. Alexander, Sp. Asst. Atty. Gen., Louisville, for respondent.
The movant challenges the constitutionality of KRS 525.070(1)(b), a paragraph in the Harassment statute.
On April 9, 1982 in Jeffersontown, Kentucky, the movant was stopped for speeding. Apparently he was provoked for being stopped when others were not, and admittedly he directed profane language towards a police officer. In the words of the Court of Appeals' Opinion, translated "out of good taste," he called the officer
The Jefferson District Court found the movant guilty of a violation of KRS 525.070, Harassment, Sec. (1)(b), which provides:
"(1) A person is guilty of harassment when with the intent to harass, annoy or alarm another person he:
....
(b) In a public place, makes an offensively coarse utterance, gesture or display, or addresses abusive language to any person present."
He appealed to the Jefferson Circuit Court which held the statute was impermissibly broad and that it imposed an undue restriction on constitutional guarantees of free speech. U.S. Const. First Amendment; Ky. Const. Sec. 8.
The Court of Appeals reversed. The Court of Appeals was of the opinion that the statute could be construed as "limited in its application to situations where the 'offensively coarse utterance' or 'abusive language' amounts to 'fighting words' which have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." The Court of Appeals held that so construed the statute is constitutional.
The problem is that the limiting language utilized to avoid unconstitutionality is supplied by the Court of Appeals and not by the statute. The statute itself, as quoted above, does not state in so many words, or in any words, that it is restricted to "fighting words" or words "which have a direct tendency to cause acts of violence by the person to whom ... addressed."
The restrictive language employed by the Court of Appeals is taken from Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). In Gooding a similar Georgia statute was declared unconstitutional. The United States Supreme Court stated:
"The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.' " 405 U.S. at 521-22, 92 S.Ct. at 1105-04.
Statutes of this nature, punishing offensively coarse utterances and abusive language, are only constitutional if limited to "fighting words," which are:
"[W]ords that 'have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.' " Id. at 524, 92 S.Ct. at 1107.
The Commonwealth interprets the Gooding case to permit this Court to construe a statute facially unconstitutional as constitution by giving it a construction limited in application. We admit to some difficulty in understanding certain dicta in the Gooding case which is capable of such an interpretation. While we agree that if the words of a statute are ambiguous the court can and should so construe it as to render it constitutional, clearly the judiciary lacks power to add new phrases to a statute to provide a new meaning necessary to render the statute constitutional. The statute as written punishes coarse or abusive language, per se. We cannot add to it a phrase restricting it to language likely to cause violence. As stated in Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1960):
"[W]here a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision."
We have no doubt as to the coarse and abusive nature of the utterance in this case. The language used and the circumstances in which it was used are deplorable. Such words delivered in these circumstances would constitute a violation of a statute written narrowly enough to provide criminal penalty without infringing upon the right of free speech as guaranteed by the United States and Kentucky Constitutions. But the fact that the movant's coarse and abusive language would justify a conviction if the statute were constitutionally adequate adds nothing to the statute as written. As written the statute is unconstitutionally vague and overbroad, and was so held in the United States v. Sturgill, 563 F.2d 307 (6th Cir.1977), on appeal from the United States District Court for the Western District of Kentucky.
We reject the argument that a criminal statute facially unconstitutional can be "authoritatively construed" by the courts to render it constitutional, if this is taken to mean the court can introduce an additional concept not present in the statute as written by the legislature. The problem here is not that the statute is unintelligible or ambiguous as written, but that it is overbroad as written. In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the court held that a loitering statute was unconstitutionally vague on its face within the meaning of the Due Process Clause of the Fourteenth Amendment, supplying the following measuring stick:
461 U.S. at 357-58, 103 S.Ct. at 1858-59.
The problem in the present case is not that the District Court judge failed to use an appropriate limitation. Indeed, contrary to the Court of Appeals' Opinion, the record shows that the District Judge made findings that in the circumstances these were "fighting words." She performed admirably in this respect. The problem here is that the statute itself has no such measuring stick, so that, consistent with its terms, in a broad range of cases persons may be found guilty of its violation in circumstances that will infringe constitutional guarantees of free speech.
The movant makes a further argument that if we should adopt the position taken by the Court of Appeals--that the statute though unconstitutionally vague may be authoritatively construed by an appellate court opinion so as to render it constitutional--this surgical narrowing should not apply to his conviction which took place before...
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