People v. Janousek

Decision Date04 April 1994
Docket NumberNo. 93SA151,93SA151
Citation871 P.2d 1189
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard A. JANOUSEK, Defendant-Appellee.
CourtColorado Supreme Court

Peter F. Michaelson, Dist. Atty., Fifth Judicial Dist., Timothy A. Meinert, Chief Deputy Dist. Atty., Tamara Barkdoll, Deputy Dist. Atty., Eagle, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Barbara A. Zollars, Deputy State Public Defender, Silverthorne, for defendant-appellee.

Justice VOLLACK delivered the Opinion of the Court.

This appeal was taken by the prosecution to review the Eagle County District Court's order finding section 18-8-306, 8B C.R.S. (1986), 1 unconstitutionally vague and overbroad on its face under the state and federal constitutions, 2 and its dismissal of the charge against the defendant, Richard Janousek. 3 We hold that the statute is not unconstitutional. We reverse the ruling of the district court and remand the case with directions to reinstate the charge.


The defendant, Richard Janousek (Janousek), was charged with disorderly conduct in Vail Municipal Court based on an altercation that occurred on New Year's Eve of 1990. Janousek was found guilty and was sentenced to pay fines and court costs totaling $325. After a $300 cash bond was forfeited, a stay of execution was granted for $25 in remaining fines. Janousek failed to pay the fines, and municipal court Judge Cyrus G. Allen issued a notice to show cause why the defendant should not be held in contempt of court. Janousek failed to appear in court on June 28, 1991, and a warrant was then issued for contempt of court. Janousek was arrested and found guilty of contempt on October 24, 1991. An additional $30 warrant fee was assessed against Janousek, bringing his total fine to $55. Between October 24, 1991, and July 2, 1992, Judge Allen granted several stays of the fine. On July 2, 1992, the municipal court issued another warrant for Janousek's arrest based on his failure to appear at the final contempt hearing. Janousek then wrote a letter addressed to three public officials, including Judge Allen; Ron Phillips, Vail Town Manager; and Ken Hughey, Vail Chief of Police. The letter demanded that the judge reimburse Janousek "for all the torment [the judge] caused" and take certain actions in favor of Janousek. 4 Janousek's letter states in pertinent part,

You must pay up now or face a much pricier levy, as I'll tolerate your crap no longer. One way or another, I'll GUARANTEE that you pay. You could make it VERY expensive for yourself, if you insist. In fact you might give up everything, just as you would have me do, all for the perversion you cooked up in your mind....


... We know you're a CROOK. You DAMNED BASTARD! How many other innocents have you screwed: Bet you lost count years ago! Does a dork like you think he can get away with MURDER? You might just end up your own victim!

... Of course, I'll make sure you pay for all of the torment you've caused. I wouldn't want you to do it again....


Next time you abuse someone, if there is a next time, consider that not everyone has the same tolerance for abuse. When you get around to screwing someone it just may be his survival instinct to pummel you back. Shaming someone can cause violent results; just ask any psychiatrist. Pointblank, you must lie in the grave you dig. You should never pervert reality in order to drive someone crazy; they may end up sharing it with you in a way you never intended. Remember, everything you say can and will be used against you. Everything you do can and will be used against you. Better look over your shoulder. Look at all the damage you've done.

The defendant closed the letter with,

See you soon, Frankenstein Janousek. The monster you created now turned against you[.]

Janousek never denied sending the letter; rather, he maintains that his purpose in writing this letter was merely to criticize Judge Allen's ruling in Janousek's disorderly conduct case. Janousek contends that he did not directly threaten Judge Allen or any other public official since, on the date defendant's letter was sent and received, Judge Allen no longer had jurisdiction to change the verdict or sentence. 5 Janousek further claims that, by writing "Next time you abuse someone, if there is a next time, consider that not everyone has the same tolerance for abuse," he did not personally intend Judge Allen any harm.

The district attorney charged Janousek with a violation of section 18-8-306, 8B C.R.S. (1986). 6 On April 1, 1993, Janousek moved to dismiss the case on the grounds that section 18-8-306 is unconstitutional on its face and that the statute cannot be constitutionally applied to him. The district court granted the motion to dismiss that same day. The court held that the statute was unconstitutional but made no further findings. On April 5, 1993, after conducting a hearing, the district court reaffirmed its earlier ruling to dismiss the case. 7 The district court found section 18-8-306 unconstitutional on its face since the words "economic reprisal" and "deceit" are vague. The district court further determined that the letter did not contain any direct threats against Judge Allen that justified criminal prosecution.


Janousek argues that the district court was correct in concluding that section 18-8-306 is unconstitutional on its face and that the statute cannot be constitutionally applied to the defendant. Janousek avers that the statute is facially overbroad because the prohibitions contained therein impermissibly infringe upon constitutionally protected rights of freedom of speech and expression under the First and Fourteenth Amendments to the United States Constitution and under article II, section 10, of the Colorado Constitution. Janousek further claims that the statute makes criminal a form of pure speech since the letter was not intended to "threaten" anyone. We do not find the defendant's arguments persuasive.


The first issue to be resolved is whether the statute is unconstitutionally overbroad on its face 8 and as applied to Janousek in this case; and if the statute is not unconstitutionally overbroad, we will then examine the issue of facial vagueness.

"The doctrine of overbreadth is designed to prevent the state, when it regulates unprotected speech, from encroaching upon protected communications" that are beyond the statute's reach. People v. Weeks, 197 Colo. 175, 179, 591 P.2d 91, 94 (1979). A facially overbroad statute will be struck down as invalid if it substantially infringes upon constitutionally protected speech. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); Whimbush v. People, 869 P.2d 1245, 1247 (Colo.1994). When analyzing a claim that section 18-8-306 is overbroad, we must examine whether the statute tries to prohibit speech that lies beyond the scope of governmental regulation. Whimbush, at 1247-48; Bolles v. People, 189 Colo. 394, 397, 541 P.2d 80, 82 (1975). If a statute regulates conduct and not merely speech, then "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." People In the Interest of J.M., 768 P.2d 219, 224 (Colo.1989) (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917; City of Englewood v. Hammes, 671 P.2d 947, 950 (Colo.1983)). In First Amendment cases, an overbreadth challenge will not void a statute on its face unless the statute substantially chills constitutionally protected expression or activity. People v. Ryan, 806 P.2d 935, 939 (Colo.1991), cert. denied, 502 U.S. 860, 112 S.Ct. 177, 116 L.Ed.2d 140 (1991).

Janousek claims that the statute attempts to control criminal conduct by curtailing his right to free speech. He argues that any critical letter written to a public official could conceivably violate that statute, and therefore it is overbroad on its face. Janousek argues that the broad language of the statute gives prosecutors a range of situations in which constitutionally protected communications could be construed as attempting to influence a public servant and result in prosecution under section 18-8-306. 9

In light of the basic principles of the overbreadth doctrine, we find that section 18-8-306 is not facially overbroad. The language challenged in the statute is not facially overbroad since the statute does not sweep so comprehensively as to include within its proscriptions constitutionally protected speech. Section 18-8-306 clearly prohibits a person from using deceit or threats of violence or economic reprisal to influence a public servant's actions. The statute is narrowly tailored to enable the People to proscribe the type of conduct that rises to a level of criminal culpability. 10

Nor does the statute chill the exercise of First Amendment rights. The minimal burden placed on a person's speech interests is constitutionally insufficient to provoke the overbreadth doctrine. See People v. Becker, 759 P.2d 26, 30 (Colo.1988). The forceful language of Janousek's letter goes beyond a mere expression of criticism and does not lie within the area of protected speech. Therefore, Janousek has no constitutionally protected right to make threats of violence to a public servant.

Because the statute purports to regulate conduct, the statute is not facially overbroad since any overbreadth does not appear to be real and substantial. For this court to invalidate the statute as overbroad, we would have to speculate whether prosecuting this defendant would cause others to be deterred based "on hypothetical conduct significantly different from that involved in this case." People v. Bridges, 620 P.2d 1, 5 (Colo.1980). We cannot say that the asserted overbreadth of this statute is substantial, and therefore find that Janousek's facial overbreadth challenge must fail.


In view of this conclusion, however, we must still reach defendant's additional claim...

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