State v. Comley, 87-239

• Decision Date: 28 July 1988
• Docket Number: No. 87-239,87-239
• Parties: The STATE of New Hampshire v. Stephen COMLEY.
• Court: New Hampshire Supreme Court

Page 1066

546 A.2d 1066

130 N.H. 688

The STATE of New Hampshire v. Stephen COMLEY.

No. 87-239.

Supreme Court of New Hampshire.

July 28, 1988.

Stephen E. Merrill, Atty. Gen. (John S. Davis, Asst. Atty. Gen., on the brief and orally), for the State.

Ernest C. Hadley, orally, Wareham, Mass., and Backus, Meyer & Solomon, Manchester (Ernest C. Hadley and Jon Meyer on the brief), for defendant.

BROCK, Chief Justice.

The defendant appeals his conviction under RSA 644:2, III(b) for disorderly conduct, following a trial in Concord District Court (Perkins, J.). For the reasons that follow, we affirm.

The transcript of proceedings in the trial court indicates that, on January 8, 1987, the defendant entered the State House, where guests were gathering for the inauguration of Governor John Sununu. The defendant purportedly wished to question the governor after the ceremonies about the Seabrook nuclear power station. He requested a press kit, but learned that none remained. He then entered Representatives Hall around 11:00 a.m. and stood at the rear of the hall, in an area reserved for members of the press.

Just before noon, in response to an identification request from a security officer, the defendant produced a press identification card, to the officer's apparent satisfaction. Shortly thereafter, the security officer returned to the defendant at the instruction of the House Information Officer, who indicated that attendance at the ceremonies required a special press pass, issued by the State police. The security officer informed the defendant that his press card was not valid and that he would have to leave the hall.

The defendant responded by collecting his briefcase and other belongings, and then running down an aisle toward the podium, where the Sergeant-at-Arms was announcing arriving guests. As he neared the front of the hall, the defendant began to shout remarks about the Seabrook plant. Three security officers subdued the defendant, and removed him from the hall. The Sergeant-at-Arms, who assisted in escorting the defendant from the hall, resumed his duties at the podium after a lapse between announcements of from one minute to one-and-one-half minutes.

The complaint filed by the Sergeant-at-Arms charged the defendant with the following violation, see RSA 644:2, V:

"knowingly disrupt[ing] the orderly conduct of business in a government facility, to wit, the New Hampshire State House, by running down the center isle [sic] to the front of the House of Representatives, and yelling and shouting anti-nuclear statements, the said Stephen Comely [sic] then causing House Security officers to physically remove him from chambers, the said actions disrupting the Inauguration Ceremonies that were in progress[.]"

The defendant moved to dismiss the charges in advance of trial, asserting that (1) the complaint failed to allege his "purposeful intent" as an element of the disorderly conduct with which he had been charged under RSA 644:2, III(b), and (2) the prosecution had violated his rights of expression under the first and fourteenth amendments of the United States Constitution, and part I, articles 22 and 32, of the New Hampshire Constitution. About a month before trial, and over the defendant's objection, the trial judge allowed the State to amend the complaint, to charge him with "purposely," rather than "knowingly," causing a breach of the peace through disruption of the inaugural ceremonies.

Following the defendant's bench trial in April 1987, the trial court denied his motion to dismiss, and found him guilty of disorderly conduct (RSA 644:2). Specifically, the court found beyond a reasonable doubt that the defendant purposely caused a breach of the peace in acting with the intent to disrupt, and actually disrupting, the conduct of business in a government facility, namely the inaugural ceremonies. The defendant was assessed a fine of $100.

On appeal, the defendant contends that (1) his prosecution under the disorderly conduct statute, RSA 644:2, violated his rights under the first and fourteenth amendments of the Federal Constitution and part I, articles 22 and 32 of the State Constitution; (2) even if his prosecution under RSA 644:2 was constitutionally permissible, the evidence was insufficient to support either the trial court's finding that he intended to cause a breach of the peace, or the finding that he disrupted the orderly conduct of government business; and (3) the trial court erred in permitting the State to amend the complaint. We consider each assertion in turn, and begin with the State constitutional challenge. See State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 351 (1983).

The State constitutional right of free speech, N.H. CONST. pt. I, arts. 22 & 32, is not absolute, but may be subject to reasonable time, place and manner regulations that are content-neutral, narrowly serve a significant governmental interest, and allow other opportunities for expression. Opinion of the Justices, 128 N.H. 46, 50, 509 A.2d 749, 752 (1986); see also State v. Derrickson, 97 N.H. 91, 93, 81 A.2d 312, 313 (1951). Even where a law regulates conduct generally, without addressing speech in particular, it nonetheless may effect an incidental regulation of speech that, like direct regulation, is constitutionally permissible if it does not exceed the bounds of the limited, content-neutral time, place and manner standard. See State v. Albers, 113 N.H. 132, 139, 303 A.2d 197, 202 (1973); cf. State v. Nickerson, 120 N.H. 821, 824-27, 424 A.2d 190, 192-94 (1980).

RSA 644:2, III(b), the disorderly conduct statute at issue in this case, provides that

"[a] person is guilty of disorderly conduct if:

................................................................................

* * *

III. He purposely causes a breach of the peace, public inconvenience, annoyance or alarm, or recklessly creates a risk thereof, by:

................................................................................

* * *

(b) Disrupting the orderly conduct of business in any public or government facility[.]"

While the statute does not specifically regulate speech, its application obviously may have such an effect where a prosecution under the statute concerns conduct encompassing expressive activity. We find, however, that if speech is a part of the conduct subject to prosecution, RSA 644:2, III(b) is no more than a reasonable regulation of the time, place and manner of that speech. In generally prohibiting disruptive conduct, the statute prohibits only that speech whose exercise, as distinct from its contents, interferes with the government's interest in preserving order in its business. The provision neither restricts non-disruptive speech, nor forecloses opportunities for speech altogether, and therefore does not suffer from the excessive breadth that has necessitated our invalidation of other disorderly conduct provisions on prior occasions. See State v. Nickerson supra.

Because the application of RSA 644:2, III(b) to the defendant does not offend the New Hampshire Constitution, we next consider the defendant's first amendment claim and whether the Federal Constitution affords him relief. See State v. Ball, 124 N.H. at 231-32, 471 A.2d at 351.

Like the State Constitution, the first amendment allows reasonable, content-neutral regulation...