State v. Immelt

• Decision Date: 27 October 2011
• Docket Number: No. 83343–5.,83343–5.
• Citation: 267 P.3d 305,173 Wash.2d 1
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Helen D. IMMELT, Petitioner.

173 Wash.2d 1

267 P.3d 305

STATE of Washington, Respondent,

v.Helen D. IMMELT, Petitioner.

No. 83343–5.

Supreme Court of Washington, En Banc.

Argued June 8, 2011.Decided Oct. 27, 2011.

John J. Tollefsen, Tollefsen Law, PLLC, Lynnwood, WA, for Petitioner.

Seth Aaron Fine, Charles Franklin Blackman, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.

STEPHENS, J.

[173 Wash.2d 4] ¶ 1 Helen Immelt sounded a car horn at length in front of a neighbor's house in the early morning hours. She was arrested for violating a Snohomish County noise ordinance that includes amongst its prohibited noise disturbances horn honking for a purpose other than public safety, or originating from an officially sanctioned parade or other public event. She challenges the horn ordinance as overbroad and in violation of free speech protections. We agree that the ordinance is overbroad and reverse Immelt's conviction.¹

FACTS AND PROCEDURAL HISTORY

¶ 2 The Snohomish County code bans “sound that is a public disturbance noise.” Snohomish County Code ( SCC) 10.01.040. The code defines “public disturbance noise” to include, among other things, “[t]he sounding of vehicle horns for purposes other than public safety.” SCC 10.01.040(1)(d) (horn ordinance). A violation of SCC 10.010.040 is an infraction unless two violations of the ordinance are committed within a 24–hour period, in which case the second violation is criminalized as a misdemeanor.

¶ 3 Although the facts of this case are not critical in an overbreadth challenge, see City of Seattle v. Webster, 115 Wash.2d 635, 640, 802 P.2d 1333 (1990), we offer them by way of background. Immelt lived in a cul-de-sac neighborhood governed by restrictive covenants. On May 12, 2006, Immelt received a letter from the homeowners' association indicating that she had violated a covenant prohibiting residents from keeping chickens. Immelt learned the complaint was lodged by her neighbor, Mr. Vorderbrueggen.

¶ 4 A little before 6:00 a.m. the next day, Immelt borrowed a friend's car and repeatedly honked the car's horn in front of Vorderbrueggen's house for approximately 5 to 10 minutes. Her actions awakened several neighbors. Vorderbrueggen called the police. Sergeant David Casey of the Snohomish County Sheriff's Office arrived around 7:00 a.m. and spoke with Immelt about the noise complaint. He then went to take Vorderbrueggen's statement.

¶ 5 While Sergeant Casey was at Vorderbrueggen's residence, Immelt drove past and made three long car horn blasts. Sergeant Casey followed in his patrol car, stopped Immelt, and arrested her.

¶ 6 Snohomish County charged Immelt by amended complaint with a violation of the local noise ordinance barring the sounding of a horn for purposes other than public safety, SCC 10.01.040(1)(d). A district court jury convicted Immelt, and her conviction was affirmed by both the superior court and the Court of Appeals. State v. Immelt, 150 Wash.App. 681, 208 P.3d 1256 (2009). Immelt petitioned this court for review, raising a variety of claims, including claims that the horn ordinance violated her state and federal constitutional rights. We granted review. State v. Immelt, 167 Wash.2d 1008, 220 P.3d 209 (2009).

ANALYSIS

¶ 7 First Amendment protections apply equally to statutes and local ordinances. Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949 (1938). The free speech protections of article I, section 5 of the Washington Constitution also extend to local ordinances. Kitsap County v. Mattress Outlet, 153 Wash.2d 506, 511, 104 P.3d 1280 (2005). The interpretation of constitutional provisions and legislative enactments, including municipal ordinances, presents a question of law, which we review de novo. City of Spokane v. Rothwell, 166 Wash.2d 872, 876, 215 P.3d 162 (2009); Fed. Way Sch. Dist. No. 210 v. State, 167 Wash.2d 514, 523, 219 P.3d 941 (2009) (citing State v. Chenoweth, 160 Wash.2d 454, 462, 158 P.3d 595 (2007)). Generally, we presume that legislative enactments are constitutional. State v. Bahl, 164 Wash.2d 739, 753, 193 P.3d 678 (2008). The party challenging an enactment bears the burden of proving its unconstitutionality. Voters Educ. Comm. v. Pub. Disclosure Comm'n, 161 Wash.2d 470, 481, 166 P.3d 1174 (2007) (quoting State v. Hughes, 154 Wash.2d 118, 132, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)). However, in the free speech context, “the State usually ‘bears the burden of justifying a restriction on speech.’ ” Id. at 482, 166 P.3d 1174 (quoting Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997)).

¶ 8 “[O]ur article I, section 5 analysis of overbreadth follows the analysis under the First Amendment.” Bradburn v. N. Cent. Reg'l Library Dist., 168 Wash.2d 789, 804, 231 P.3d 166 (2010). A law is overbroad if it “sweeps within its prohibitions” a substantial amount of constitutionally protected conduct. City of Tacoma v. Luvene, 118 Wash.2d 826, 839, 827 P.2d 1374 (1992). “A statute or ordinance will be overturned only if the court is unable to place a sufficiently limiting construction on a standardless sweep of legislation.” Id. at 840, 827 P.2d 1374.

¶ 9 Immelt claims the horn ordinance is overbroad because it sweeps into its prohibitions constitutionally protected speech. Thus, we must determine whether the horn ordinance actually implicates free speech; some burden on speech must exist before the protections of the First Amendment or article I, section 5 may be invoked. See State v. Halstien, 122 Wash.2d 109, 122–23, 857 P.2d 270 (1993) (noting that the “first task in overbreadth analysis is to determine if a statute reaches constitutionally protected speech or expressive conduct” (citing Luvene, 118 Wash.2d at 839, 827 P.2d 1374; Webster, 115 Wash.2d at 641, 802 P.2d 1333)).

¶ 10 This question does not require us to determine whether Immelt's particular actions amounted to protected speech. An overbreadth challenge allows “ ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)). The question is whether the horn ordinance impermissibly burdens protected expression. Conduct such as horn honking may rise to the level of speech when the actor intends to communicate a message and the message can be understood in context. See First Covenant Church of Seattle v. City of Seattle, 120 Wash.2d 203, 216–17, 840 P.2d 174 (1992) (quoting Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)).

¶ 11 Chief Justice Madsen's dissent incorrectly believes the court must examine Immelt's particular conduct in order to decide this overbreadth challenge. See, e.g., dissent (Madsen, C.J.) at 314. In Virginia v. Hicks, 539 U.S. 113, 115–16, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003), the United States Supreme Court considered an overbreadth challenge to a policy prohibiting conduct. There, the individual challenging the policy did not “contend that he was engaged in constitutionally protected conduct when arrested.” Id. at 118, 123 S.Ct. 2191. The Hicks Court did not find it necessary to first consider whether the particular conduct present in the case constituted speech. Instead, it noted that “[t]he First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.” Id. The policy reasons for such an exception arise “out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Id. at 119, 123 S.Ct. 2191.

Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech ... harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.

Id. (citation omitted). Given these policy concerns, an overbreadth challenge such as the one presented here does not require a showing that the specific conduct of the individual challenging the law constitutes speech. Chief Justice Madsen's dissent properly notes that the overbreadth doctrine attenuates as the sanctioned behavior moves from pure speech toward conduct. Dissent (Madsen, C.J.) at 315–16 (citing Broadrick, 413 U.S. at 615, 93 S.Ct. 2908). But Broadrick's discussion of the attenuation of the overbreadth doctrine occurs in the context of its requirement that the overbreadth of a statute be substantial before it may be invalidated. Broadrick, 413 U.S. at 615–16, 93 S.Ct. 2908. As noted below, the reach of this ordinance is substantial, as it sweeps into its scope many instances of protected expression through horn honking. These instances are not the type of speculative predictions cautioned against by Broadrick. See id. at 615, 93 S.Ct. 2908. Rather, this ordinance, on its face, prohibits legitimate expressions of speech conveyed by a horn honk.

¶ 12 A moment's reflection brings to mind numerous occasions in which a person honking a vehicle horn will be engaging in speech intended to communicate a message that will be understood in context. Examples might include: a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says “honk if you support our troops,” wedding guests who celebrate nuptials by sounding their horns, and a motorist who...