# Colten v. Kentucky
## Dissenting Opinions

    Douglas
    Marshall
Supreme Court of the United States
407 U.S. 104
Colten v. Kentucky
Appeal from the Court of Appeals of Kentucky
No. 71-404. Argued: April 17, 1972 --- Decided: June 12, 1972
Appellant, arrested for disorderly conduct when he failed, notwithstanding several requests by an officer, to leave a congested roadside where a friend in another car was being ticketed for a traffic offense, was tried and convicted in an inferior court and fined $10. Kentucky has a two-tier system for adjudicating certain criminal cases, under which a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must risk a greater punishment if convicted. Exercising his right to a trial de novo, appellant was tried for disorderly conduct in the circuit court, convicted, and fined $50. The state appellate court affirmed, rejecting appellant's contention that the disorderly conduct statute is unconstitutional under the First and Fourteenth Amendments and that the greater punishment contravened the due process requirements of North Carolina v. Pearce, 395 U.S. 711, and violated the Fifth Amendment's Double Jeopardy Clause. The disorderly conduct statute makes it an offense for a person with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, to congregate with other in a public place and refuse to comply with a lawful police dispersal order. As construed by the Kentucky Court of Appeals, a violation occurs only where there is no bona fide intention to exercise a constitutional right or where the interest to be advanced by the individual's exercise of the right is insignificant in comparison to the inconvenience, annoyance, or alarm caused by his action.
Held:
    1. The disorderly conduct statute was not unconstitutionally applied, there having been ample evidence that the action of appellant, who had no constitutional right to observe the ticketing process or engage the issuing officer in conversation, was interfering with enforcement of traffic laws. Pp. 108-110.
    2. The statute is not impermissibly vague or broad as "citizens who desire to obey [it] will have no difficulty in understanding it," and, as construed by the Kentucky court, individuals may not be convicted thereunder merely for expressing unpopular ideas. Pp. 110-111.
    3. Kentucky's two-tier system does not violate the Due Process Clause, as it imposes no penalty on those who seek a trial de novo after having been convicted in the inferior court. The Kentucky procedure involves a completely fresh determination of guilt or innocence by the superior court which is not the court that acted on the case before and has no motive to deal more strictly with a de novo defendant than it would with any other. North Carolina v. Pearce, supra, distinguished. Pp. 112-119.
    4. The Double Jeopardy Clause does not prohibit an enhanced sentence on reconviction. North Carolina v. Pearce, supra, at 719-720. Pp. 119-120.
467 S.W. 2d 374, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., post, p. 120, and MARSHALL, J., post, p. 122, filed dissenting opinions.
Alvin L. Goldman argued the cause for appellant. With him on the brief were Melvin L. Wulf and Sanford Jay Rosen.
Robert W. Willmott, Jr., Assistant Attorney General of Kentucky, argued the cause for appellee pro hac vice. With him on the brief was Ed W. Hancock, Attorney General.