State v. Knowles

• Decision Date: 12 June 1998
• Docket Number: No. 20834-2-II,20834-2-II
• Citation: 957 P.2d 797,91 Wn.App. 367
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Veryl Edward KNOWLES, Appellant.

Page 367

91 Wn.App. 367

957 P.2d 797

STATE of Washington, Respondent, v. Veryl Edward KNOWLES, Appellant.

No. 20834-2-II.

Court of Appeals of Washington Division 2.

June 12, 1998.

Pamela Beth Loginsky, Kitsap Co. Deputy Pros. Atty., for Respondent

Anton Laurens Knappert (Court Appointed), Law Office of Wecker Hunko, Port Orchard, for Appellant.

HUNT, Judge.

Veryl Edward Knowles challenges his conviction for intimidating a judge under RCW 9A.72.160, arguing that the statute is unconstitutionally overbroad. Finding that it is not, we affirm.

FACTS

Between December 1995 and March 1996, Veryl Edward Knowles appeared in court as a defendant in various criminal matters in Kitsap County Superior Court before Judges Karen B. Conoley, Leonard W. Kruse, M. Karlynn Haberly, and Leonard W. Costello. During those proceedings, he sent letters, filed documents, and made statements to each judge, stating his intent to file liens on the judges' properties if they did not release him from custody and/or release his property; he warned that the judges would be subject to civil and/or criminal sanctions if they did not comply; and he claimed sovereign and diplomatic immunity from prosecution.

On April 8, 1996, the State charged Knowles by amended information with four counts of intimidating a judge, in violation of RCW 9A.72.160 and RCW 9A.04.110(25)(d) and (j), and one count of barratry, in violation of RCW 9.12.010. At trial, Knowles moved to dismiss, arguing that the intimidating statute is unconstitutionally overbroad. The trial court denied the motion. The jury convicted Knowles on all five counts.

On appeal, Knowles does not argue that his acts did not violate the statute. Rather, he argues that the statute is unconstitutionally overbroad and violates the free speech

protections of the first amendment to the United States Constitution. ¹

ANALYSIS

RCW 9A.72.160 provides:

(1) A person is guilty of intimidating a judge if a person directs a threat to a judge because of a ruling or decision of the judge in any official proceeding, or if by use of a threat directed to a judge, a person attempts to influence a ruling or decision of the judge in any official proceeding.

(2) "Threat" as used in this section means:

(a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or

(b) Threats as defined in RCW 9A.04.110(25).

The State proceeded under subsection (2)(b), charging Knowles with violations of RCW 9A.04.110(25)(d) and (j). Those subsections provide:

(25) "Threat" means to communicate, directly or indirectly the intent:

....

(d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or

....

(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships....

RCW 9A.04.110(25).

"Overbreadth analysis is intended to ensure that legislative enactments do not prohibit constitutionally protected conduct, such as free speech." City of Seattle v. Ivan, 71 Wash.App. 145, 149, 856 P.2d 1116 (1993) (citing City of Tacoma v. Luvene, 118 Wash.2d 826, 827 P.2d 1374 (1992)). "A criminal statute that 'sweeps constitutionally protected free speech activities within its prohibitions' may be overbroad and thus violate the First Amendment." State v. Stephenson, 89 Wash.App. 794, 800, 950 P.2d 38 (1998) (quoting City of Seattle v. Abercrombie, 85 Wash.App. 393, 397, 945 P.2d 1132, review denied, 133 Wash.2d 1005, 943 P.2d 663 (1997) (citing Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940))). But, "[a]pplication of the overbreadth doctrine is strong medicine"; courts employ it "sparingly and only as a last resort," upholding the constitutionality of statutes if possible. State v. Halstien, 122 Wash.2d 109, 122-23, 857 P.2d 270 (1993) (citing O'Day v. King County, 109 Wash.2d 796, 804, 749 P.2d 142 (1988); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)); Luvene, 118 Wash.2d at 839-40, 827 P.2d 1374.

Knowles contends the judge intimidation statute is unconstitutionally overbroad because it criminalizes a substantial amount of constitutionally protected speech or conduct. In considering an overbreadth challenge, we consider (1) whether the challenged statute reaches constitutionally protected speech or expression and (2) whether it proscribes a real and substantial amount of speech. "If the answer to those two questions is yes, [the court] must strike the statute as overbroad unless the regulation of protected speech is constitutionally permissible or it is possible to limit the statute's construction so that it does not unconstitutionally interfere with protected speech." Stephenson, 89 Wash.App. at 800, 950 P.2d 38 (citing City of Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989) (citing City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987))).

In Stephenson, we recently analyzed the overbreadth

                doctrine relative to the public servant intimidation statute, RCW 9A.76.180. 2  The public servant statute is similar to the judge intimidation statute and uses the same definitions of "threat" contained in RCW 9A.04.110(25).  InStephenson, the State charged the defendant under subsection (j).  We determined that the definition of "threat," in the context of intimidating a [957 P.2d 801] public servant, was not unconstitutionally overbroad.  The Stephenson analysis applies nearly identically to this case, except for two points:  (1) Knowles also challenges the definition in subsection (d);  and (2) the judge intimidation statute also applies to threats made in retaliation for a prior ruling of the judge, whereas the public servant statute applies only to threats made to influence future official acts
                

A. Constitutionally Protected Speech

The First Amendment generally prohibits government interference with speech or expressive conduct. Halstien, 122 Wash.2d at 121, 857 P.2d 270. But certain types of speech, such as "fighting words" and "true threats," are not protected. A "true threat" is a statement made "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual]." United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990) (quoting United States v. Hoffman, 806 F.2d 703, 707 (7th Cir.1986)) (alteration in original); United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir.1990).

Knowles' threats were not "true threats" of bodily harm. Rather he threatened the judges with financial or personal harm, including the filing of criminal charges, but did not threaten their physical safety. Similarly, in Stephenson, the threats were of a financial and business nature and, therefore, not "true threats." Stephenson, 89 Wash.App. at 801, 950 P.2d 38. There we ruled: "Consequently, the definition of threat in RCW 9A.04.110(25)(j) encompasses both protected and unprotected speech, and Stephenson's [threat] was entitled to some First Amendment protection." Stephenson, 89 Wash.App. at 801, 950 P.2d 38 (citing Khorrami, 895 F.2d at 1192).

Similarly, the definition of "threat" in RCW 9A.04.110(25)(d) and (j) encompasses both protected and unprotected speech. Knowles' communications were therefore entitled to some First Amendment protection. Stephenson, 89 Wash.App. at 801, 950 P.2d 38.

B. Substantial Amount of Speech

"The extent to which a statute 'chills or burdens constitutionally protected conduct' turns on whether the statute's prohibition against protected speech or conduct is 'real and substantial' compared to its plainly legitimate sweep." Stephenson, 89 Wash.App. at 801, 950 P.2d 38 (quoting Halstien, 122 Wash.2d at 123, 857 P.2d 270; Luvene, 118 Wash.2d at 841, 827 P.2d 1374). In Stephenson we determined that RCW 9A.04.110(25)(j) ("harm"), did burden a "real and substantial" amount of protected speech. Similarly, subsection (d) ("threats to institute criminal charges") potentially burdens a substantial amount of protected speech because it prohibits "a wide range of communications beyond mere fighting words and other non-protected speech." Ivan, 71 Wash.App. at 151, 856 P.2d 1116. But RCW 9A.72.160 criminalizes such threatening speech only if used to attempt to influence a judge's ruling or in retaliation for a past ruling.

C. Constitutionally Permissible Prohibition

In some circumstances, the government may regulate

protected speech. Huff, 111 Wash.2d at 926, 767 P.2d 572. "[E]ven protected speech may be regulated by view-point neutral, reasonable time, place and manner restrictions." Ivan, 71 Wash.App. at 152, 856 P.2d 1116 (citations omitted).

1. Public or Private Forum

First, the extent of permissible regulation depends on whether the speech takes place in a public or a private forum. Huff, 111 Wash.2d at 927, 767 P.2d 572. "[T]he First Amendment affords more protection to speech in a public forum, a place traditionally devoted to assembly and debate, and to channels of communication used by the public at large for assembly and speech." Stephenson, 950 P.2d at 41 (citing Ivan, 71 Wash.App. at 152, 856 P.2d 1116). In Ivan, Division One determined Seattle's coercion ordinance, with a threat definition virtually identical to the definition here, was non-public "because of the private nature of the proscribed behavior; the statute contemplates private communications between individuals." Ivan, 71 Wash.App. at 152, 856 P.2d 1116. Similarly, in Stephenson, we determined that the public official statute addressed private communications.

The sender of messages designed to frighten public officers into making official decisions based upon fears and concerns for their personal welfare, rather than upon the...