State v. Nye

• Decision Date: 23 July 1997
• Docket Number: No. 96-288,96-288
• Citation: 943 P.2d 96,283 Mont. 505
• Parties: STATE of Montana, Plaintiff and Respondent, v. David Nathan NYE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 96

943 P.2d 96

283 Mont. 505

STATE of Montana, Plaintiff and Respondent, v. David Nathan NYE, Defendant and Appellant.

No. 96-288.

Supreme Court of Montana.

Submitted on Briefs Jan. 9, 1997.

Decided July 23, 1997.

Dan Yardley, Livingston, for Appellant.

Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Tara Depuy, Park County Attorney, Livingston, for Respondent.

NELSON, Justice.

David Nathan Nye (Nye) was charged by information with the offense of malicious intimidation or harassment relating to civil or human rights, a felony, in violation of § 45-5-221, MCA. Nye pleaded guilty in the District Court for the Sixth Judicial District, Park County, pursuant to a plea agreement wherein he reserved his right to appeal the constitutionality of the statute. He now appeals his conviction. We Affirm.

We address the following issues on appeal:

1. Does § 45-5-221, MCA, violate Nye's right to freedom of speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution?

2. Did the District Court err in determining that § 45-5-221, MCA, is not unconstitutionally vague?

3. Did the District Court err in determining that § 45-5-221, MCA, is not unconstitutionally over broad?

4. Does § 45-5-221, MCA, set penalties grossly disproportionate to the offense in violation of Nye's rights under the Eighth Amendment to the United States Constitution and Article II, Sections 22 and 28 of the Montana Constitution?

Factual and Procedural Background

On April 14, 1995, Nye and four other individuals affixed bumper stickers that read "NO I do not belong to CUT" on state and county road signs near Gardiner, Montana. They also placed the stickers in several mailboxes in the area and affixed them to property belonging to the Church Universal and Triumphant (CUT).

On April 26, 1995, Nye was charged by information with violating § 45-5-221(1)(c), MCA, the "hate crimes" statute. He entered a plea of not guilty to the charge and was released on his own recognizance subject to certain conditions. On October 12, 1995, Nye filed a motion to dismiss the case on the grounds that § 45-5-221(1)(c), MCA,is void for vagueness, over broad as applied to Nye, and in violation of Nye's constitutional rights. This motion was subsequently denied by the District Court.

The State filed an Amended Information on December 6, 1995, adding an alternative charge of accountability for malicious intimidation or harassment relating to civil or human rights. Nye pleaded not guilty to the charges in the Amended Information and was again released on his own recognizance subject to the conditions previously imposed.

On March 15, 1996, pursuant to a plea agreement, Nye withdrew his not guilty plea and pleaded guilty to the charge of malicious intimidation or harassment relating to civil or human rights, a felony. Pursuant to § 46-12-204(3), MCA, Nye reserved his right to appeal the District Court's order denying his motion to dismiss.

On April 8, 1996, a sentencing hearing was held wherein the District Court ordered that sentencing be deferred for 18 months and that Nye be placed on probation with the Department of Corrections. Nye's sentence was ordered stayed pending appeal to this Court.

Standard of Review

A district court's denial of a motion to dismiss involves a legal question that were view de novo to determine whether the district court's interpretation of the law is correct. State v. Romero (1996), 279 Mont. 58, ----, 926 P.2d 717, 722 (citing State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66).

Section 45-5-221, MCA, the statute under which Nye was charged, provides:

Malicious intimidation or harassment relating to civil or human rights--penalty. (1) A person commits the offense of malicious intimidation or harassment when, because of another person's race, creed, religion, color, national origin, or involvement in civil rights or human rights activities, he purposely or knowingly, with the intent to terrify, intimidate, threaten, harass, annoy, or offend:

(a) causes bodily injury to another;

(b) causes reasonable apprehension of bodily injury in another; or

(c) damages, destroys, or defaces any property of another or any public property.

(2) For purposes of this section, "deface" includes but is not limited to cross burning or the placing of any word or symbol commonly associated with racial, religious, or ethnic identity or activities on the property of another person without his or her permission.

(3) A person convicted of the offense of malicious intimidation or harassment shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $5,000, or both.

All statutes carry with them a presumption of constitutionality and it is the duty of the courts to construe statutes narrowly to avoid an unconstitutional interpretation if possible. State v. Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041 cert. denied (1995), 513 U.S. 1078, 115 S.Ct. 726, 130 L.Ed.2d 630 (citing Montana Auto. Assn. v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303; State v. Ytterdahl (1986), 222 Mont. 258, 261, 721 P.2d 757, 759). This Court has made clear that, when construing a statute, it must be read as a whole, and terms used in the statute should not be isolated from the context in which they were used by the Legislature. Lilburn, 875 P.2d at 1041 (citing McClanathan v. Smith (1980), 186 Mont. 56, 61-62, 606 P.2d 507, 510). Statutes should be construed according to the plain meaning of the language used therein. Lilburn, 875 P.2d at 1041 (citing Norfolk Holdings v. Dept. of Revenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461.)

When the constitutionality of a statute is challenged, the party making the challenge bears the burden of proving the statute unconstitutional beyond a reasonable doubt. State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17 (citing Monroe v. State (1994), 265 Mont. 1, 3, 873 P.2d 230, 231; GBN, Inc. v. Montana Dept. of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597). Any doubt is to be resolved in favor of the statute. Martel, 902 P.2d at 18.

Issue 1.

Does § 45-5-221, MCA, violate Nye's right to freedom of speech under the First Amendment to the United States Constitution and Article II,Section 7 of the Montana Constitution?

Nye argues on appeal that his acts of distributing the bumper stickers were meant to convey his beliefs and ideas, thus his conduct invokes his right to freedom of speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution. He compares his conduct to that of the defendant in Texas v. Johnson (1989), 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342, whose conviction for burning the American flag in violation of a Texas statute prohibiting the desecration of a venerated object was overturned by the United States Supreme Court as infringing on his First Amendment rights.

Johnson was one of more than 100 political demonstrators who marched through the streets of Dallas, Texas, during the 1984 Republican National Convention. When the demonstrators reached Dallas City Hall, Johnson unfurled an American flag, doused it with kerosene, and set it on fire. He was the only demonstrator charged with a crime. In overturning Johnson's conviction, the Supreme Court held that the restrictions on Johnson's political expression were impermissibly content based. Johnson, 491 U.S. at 412, 109 S.Ct. at 2544, 105 L.Ed.2d 342. The Supreme Court also held that Johnson's actions were expressive conduct permitting him to invoke the First Amendment. Johnson, 491 U.S. at 406, 109 S.Ct. at 2540, 105 L.Ed.2d 342.

The Supreme Court has made it clear that to be protected as "expressive conduct," the activity must be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." Spence v. State of Washington (1974), 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842. Nye has not shown that his conduct meets this test.

In Wisconsin v. Mitchell (1993), 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436,the United States Supreme Court held that bias-motivated speech, coupled with assaultive or other nonverbal proscribed conduct, is not protected by the First Amendment. In that case, defendant's sentence for aggravated battery was enhanced because he intentionally selected his victim because of the victim's race. The Supreme Court concluded that violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection. Mitchell, 508 U.S. at 484, 113 S.Ct. at 2199, 124 L.Ed.2d 436 (quoting Roberts v. United States Jaycees (1984), 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462).

In Lilburn we noted that the Supreme Court has provided clear guidelines for distinguishing a content-neutral regulation from one which is impermissibly content-based:

The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.

Lilburn, 875 P.2d at 1042 (quoting Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661).

"The determination of whether a regulation is content-based turns not on whether its incidental effects fall more heavily on expression of a certain viewpoint, but rather on whether the governmental purpose to be served by the regulation is not motivated by a desire to suppress the content of the communication." Lilburn, 875 P.2d at 1042 (citing City of Renton v. Playtime...