Price v. State
| Decision Date | 01 November 1993 |
| Docket Number | No. 49S02-9311-CR-1197,49S02-9311-CR-1197 |
| Citation | 622 N.E.2d 954 |
| Parties | Colleen PRICE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Arrested after a noisy neighborhood party, appellant Colleen Price was eventually acquitted of obstructing or interfering with the officer who took her into custody. On the other hand, she was found guilty of disorderly conduct on the basis of her statements to the officer. We grant transfer to consider an issue of first impression, the boundaries imposed on our disorderly conduct statute by the Indiana Constitution's protection for freedom of expression.
The reticence with which police officers approach New Year's Eve is no doubt born of incidents like the one which spawned this prosecution. At about 3 a.m. on January 1, 1991, Officer Douglas Cook of the Indianapolis Police Department was patrolling the 1600 block of East Prospect Street when his attention was drawn to a boisterous knot of quarreling party-goers. This initial group included one Eddie Coleman and perhaps appellant Colleen Price, though her presence at this stage of the encounter is controverted. Officer Cook approached the group and requested that they continue their argument beyond the earshot of their neighbors, which request drew a hail of epithets from Coleman. This verbal confrontation escalated to the point that Officer Cook resolved to arrest Coleman, but Coleman managed to evade him and fled on foot.
Coleman was quickly apprehended in a nearby alley by another officer who had since happened upon the scene. Coleman remained uncooperative, and the officer had to subdue him to effect the arrest. Meanwhile, the alley began to fill with additional police officers, including Cook, and with some twenty spectators, many attracted from the party Coleman had been attending. At this juncture, Price appeared in the alley and confronted Cook regarding the conduct of the officers. Officer Cook testified that Price was "screaming" profanities while objecting first to Coleman's arrest and then to her own. Price insists that she was neither loud nor abusive and that her protests focused on the rough treatment accorded another spectator, Ms. Brown.
After several verbal exchanges, Cook directed Price to desist and threatened her with arrest for disorderly conduct, to which she responded Thereafter, she was arrested and subsequently charged with two counts of obstructing or interfering with a law enforcement officer by force, a Class A misdemeanor, Ind.Code Ann. Sec. 35-44-3-3(a)(1) (West Supp.1993); public intoxication, a Class B misdemeanor, Ind.Code Ann. Sec. 7.1-5-1-3 (West 1982); and disorderly conduct, a Class B misdemeanor, Ind.Code Ann. Sec. 35-45-1-3(2) (West Supp.1993). Price moved to dismiss the disorderly conduct charge, claiming that Ind.Code Ann. Sec. 35-45-1-3(2), was unconstitutional. This motion was denied. After a bench trial, Price was acquitted on the interfering counts but convicted of disorderly conduct and public intoxication.
Price appealed, challenging the sufficiency of the evidence as to both counts and the denial of her motion to dismiss. The Court of Appeals affirmed in all respects. Price v. State (1992), Ind.App., 600 N.E.2d 103. Price seeks transfer, assigning denial of her motion to dismiss as error on grounds that Ind.Code Ann. Sec. 35-45-1-3(2) is overbroad and vague in violation of the First and Fourteenth Amendments to the United States Constitution and in violation of Article I, Sec. 9 of the Indiana Constitution. We grant transfer and reverse.
Price has properly preserved her Sec. 9 challenge and supports it with an excellent and incisive brief by her attorney, Fran Quigley. This Court has never reviewed the constitutionality of Ind.Code Ann. Sec. 35-45-1-3(2) 1 nor have we had many opportunities to explicate the scope of Article I, Sec. 9. 2 Commentators opine that our constitution's documentary record leaves few clues about the original understandings of free expression which leavened the text of Sec. 9. The adoption of Sec. 9 from draft language supplied by the Committee on Rights and Privileges back in 1850 was accompanied by neither debate nor amendment. The conspicuous absence of documented dissidence notwithstanding, we find ample indicia of the meaning of Sec. 9. Interpretation of the Indiana Constitution is controlled by the text itself, illuminated by history and by the purpose and structure of our constitution and the case law surrounding it. State Election Bd. v. Bayh (1988), Ind., 521 N.E.2d 1313.
The State stakes its fortune on the contention that Price's utterances were not within the protection of Sec. 9:
No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
It draws its line too soon, however, for Sec. 9 expressly extends protection to speaking, writing or printing "on any subject whatever." Price was speaking; therefore the legality of her prosecution must stand or fall on the dictates of our constitution's free expression provision.
Price first challenges Ind.Code Ann. Sec. 35-45-1-3(2) on the ground that it is overbroad under Sec. 9 and therefore void "on its face." We need not dwell long on this claim either, for we find no persuasive precedent for the proposition that federal "overbreadth analysis" has taken root in the jurisprudence of the Indiana Constitution. The concept of overbreadth is apparently undergirded by the notion that expression occupies a "preferred" position within the Bill of Rights. See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); see generally Edmond Cahn, The Firstness of the First Amendment, 65 Yale L.J. 464 (1956). The history and structure of the Indiana Constitution do not demonstrate such a status for expression. Justice Arterburn observed as much some thirty years ago when he commented that First Amendment jurisprudence differs from the Indiana approach in that "[i]t first assumes that constitutional provisions protecting property, contracts and personal liberty are not as sacred or precious as that of freedom of speech." State v. Kuebel (1961), 241 Ind. 268, 290, 172 N.E.2d 45, 56 (Arterburn, J., dissenting).
Once an Indiana constitutional challenge is properly raised, a court should focus on the actual operation of the statute at issue and refrain from speculating about hypothetical applications. See, e.g., Hightower v. State (1976), 168 Ind.App. 194, 343 N.E.2d 300. Unless the court concludes that the statute before it is incapable of constitutional application, it should limit itself to vindicating the rights of the party before it. These restrictions resemble those of Article III of the U.S. Constitution but are self-imposed in light of our perception of the function of the judicial department of our state government and the special aptitude of courts to decide concrete controversies between interested parties. See In re Lawrance (1991), Ind., 579 N.E.2d 32. We thus pass over Price's contention that Ind.Code Ann. Sec. 35-45-1-3 is overbroad and turn instead to whether its application in this case was constitutional.
Section 9 forbids the General Assembly from passing any law "restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever." Ind. Const. art. I, Sec. 9. A corresponding clause stipulates that "for the abuse of that right, every person shall be responsible." Id. Common in state constitutions, this formulation is sometimes called the "freedom-and-responsibility standard." 3 Under this standard, a legislature may not impair the flow of ideas; instead, its sole authority over expression is to sanction individuals who commit abuse. Understanding the notion of "abuse" is therefore critical to resolving cases under Sec. 9.
When the import of a given word is at issue, a useful starting point is the documentary evidence which illuminates the contemporaneous understanding of its meaning. See, e.g., Fordyce v. State (1991), Ind.App., 569 N.E.2d 357. Dictionaries published proximate to the adoption of Sec. 9 define abuse variously as "a thing established by usage, though contrary to good order," Law Lexicon 11 (J.J.S. Wharton ed. 1860); accord I Bouvier's Law Dictionary 78 (1883); "the destruction of the substance of a thing in using it," id.; and "[t]he ill use of any thing," John Walker, Critical Pronouncing Dictionary 109 (1815). These descriptions yield an acceptable working definition which we characterize as follows: Abuse is the use of a thing in a manner injurious to the order or arrangement from which it derives its function.
The free expression guarantee of the Indiana Constitution is one of thirty-seven provisions in our Bill of Rights and, we may assume, was calibrated consonant with its overall design. This design reflects the influence of the natural rights paradigm ascendant during Indiana's formative years. Under that theory, individuals are deemed to have ceded a quantum of their "natural" rights 4 in exchange for "receiving the advantages of mutual commerce." Sir William Blackstone, Commentaries on the Laws of England I:125 (Thomas M. Cooley ed. 3d ed. 1884). The aggregate of these concessions, often called the state's police power, constitutes the authority by which the advantages of political community are secured. Viewed in this light, police power is properly understood...
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