No. 86-31 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsARNOLD YTTERDAHL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

- 

Nye & Meyer; Jerrold L. Nye, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Attorney General, Helena 

John L. Pratt, County Attorney, Roundup, Montana 

Submitted on Briefs: March 28, 1986 

Decided: July 15, 1986 

Filed: 

JUL 1 5 I386 

& b fq, d.d 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, Arnold Ytterdahl, appeals from the judgment 

of the District Court, Fourteenth Judicial District, County 

of Musselshell, affirming the judgment of the Justice Court 

of Musselshell County, finding Ytterdahl guilty of the 

offense of disorderly conduct in violation of § 

45-8-101 (1) (g) , MCA. We reverse and dismiss. 

Prior to the incident described here, Musselshell County 

and Ytterdahl were parties to a civil action regarding an 

easement on Ytterdahl's property. On May 9, 1985, a judgment 

was entered in that action. Thereafter, the Musselshell 

County Commissioners sent a letter to Ytterdahl, asking him 

to meet with them at 10:OO a.m. on May 20, 1985, to discuss 

issues and problems arising from the judgment entered in the 

easement action. 

Ytterdahl came to the meeting as requested. Present at 

the meeting were the three county commissioners, the county 

attorney, the commissioner of public works, and Ytterdahl. 

It appears that the easement was never discussed at the 

commissioners' meeting. Ytterdahl arrived upset, because the 

county, without his permission, had bladed a roadway across 

his property to provide access to the fairgrounds during road 

repairs. The State contends that Ytterdahl was 

"discourteous, bordering on the irrational, and was hollering 

and screaming at the commissioners." There is evidence to 

that effect. When the county attorney told the defendant he 

could initiate a lawsuit in regard to his new complaint of 

trespass, the defendant "mumbled a bad word," got up, stomped 

out and slammed the door so hard that the glass in the room 
rattled. The commissioners then recessed their meeting to 

"get their feelings settled down" for a period of 15 minutes. 

The District Court, in a bench trial for which the defendant 

waived a jury, determined that the defendant had violated the 

statute under which he was charged. The complaint filed in 

the Justice Court against Ytterdahl was that he had committed 

a misdemeanor, disorderly conduct, a violation of 5 

45-8-101 (1) (g) , MCA, in that he "knowingly disturbed the 

peace by disturbing or disrupting any lawful assembly or 

public meeting, namely, a county commissioner's meeting, by 

getting up, storming out of the meeting, and slamming the 

door. " 

The pertinent language of S 45-8-101, MCA, follows: 

Disorderly conduct. (1) A person commits the 

offense of disorderly conduct if he knowingly 

disturbs the peace by: 

(g) disturbing or disrupting any lawful assembly 

or public meeting; 

Ytterdahl raises two issues for our review: 

1. Whether S 45-8-101(1)(g), MCA, is unconstitutionally 

vague ; 

2. Whether the evidence was sufficient to support 

Ytterdahl's conviction. 

With respect to the first issue, the State argues that 

Ytterdahl is barred from raising a question of the 

constitutionality of a statute because he failed to raise the 

issue in the District Court. The State relies on the 

provisions of S 46-20-104(1), MCA, as supplemented by S 

46-20-702, MCA. 

It is true that under S 46-20-702, MCA, it is provided 

that no claim on appeal alleging an error affecting 
jurisdictional or constitutional rights may be noticed by us 

if the error was not objected to as provided in § 46-20-104, 

MCA, unless certain conditions exist which are not pertinent 

here. While a question might be raised as to whether any 

appellant may be prevented on appeal from raising 

jurisdictional or constitutional questions, it is not 

necessary for us to face that problem here. Because 

Ytterdahl raises the issue of the sufficiency of the 

evidence, it is necessary for us to examine the provisions of 

$ 45-8-101(1)(g), MCA, as to its proper interpretation in the 

light of this case. 

It is certain that from the provisions of our statute 

defining disorderly conduct, in this case, at least two 

conditions must be shown in the evidence; (1) that the 

defendant knowingly disturbed the peace; and, (2) that he 

disturbed it through disrupting a lawful assembly or public 

meeting. 

The gravamen of the statute defining the offense is 

"knowingly disturbing the peace." It is noted in Fischbach 

v. Ohio State Racing Commission (Oh. App. 1955), 147 N.E.2d 

258, that in legal textbooks there is no classification known 

as "disturbing the peace" and that reference is always made 

to "breach of the peace." Montana's statute defining 

disorderly conduct appears to be a hybrid of the concepts of 

disorderly conduct and breach of the peace. It is stated in 

The cases generally agree that disorderly conduct 

is a broader term than breach of the peace, so that 

a person who commits a breach of the peace is 

necessarily guilty of disorderly conduct, but all 

disorderly conduct is not necessarily a breach of 

the peace. It should be noted that both breach of 

the peace and affray were offenses under the common 

law, whereas disorderly conduct, at least by that 
name, is not an offense of common-law origin, but 

one created by statute or ordinance. 

In the sense of the foregoing quoted paragraph, we seem 

to run contra to the general run of cases. Although 

disorderly conduct is in the general sense a broader term 

than breach of the peace, in Montana, under the statute, the 

crime of disorderly conduct is not committed, unless the 

person so acting, "knowingly disturbs the peace." We hold 

that disturbing the peace is synonymous with breaching the 

peace. 

To establish a misdemeanor under 5 45-8-101(1) (g), MCA, 

it is essential to show, as an element of the offense, a 

disturbance of public order and tranquility by acts or 

conduct not merely amounting to unlawfulness, but tending to 

create public tumult and incite others to break the peace. 

12 Am. Jur.2d 666, 5 4. The Restatement (Second) of Torts, S 

116, defines a breach of the peace as a public offense done 

by violence or one causing or likely to cause an immediate 

disturbance. 

The evidence in this case fails to show that the acts of 

the defendant for which he was charged tended to create 

public tumult, or to incite others to break the peace, or 

that it caused an immediate disturbance by others. 

There is another, more important reason, however, for 

holding that Ytterdahl, in the circumstances of this case, 

did not commit an offense. It is the necessity that we give 

a narrow judicial interpretation of criminal statutes 

affecting the right of speech in order to insure that they 

prohibit only speech which is not constitutionally protected. 

State v. John W. (Me. 1980), 418 A.2d 1097, 14 A.L.R.4th 

1238. As the Supreme Court of Maine pointed out, the 
interpretation of such a criminal statute must be restricted 

to the kind of speech that produces or is likely to produce a 

clear and present danger of the substantive evils that the 

state may constitutionally seek to prevent. See Schenck v. 

United States (1919), 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 

L.Ed. 470; Annot., "Supreme Court's Development of the Clear 

and Present Danger Rule," 38 L.Ed.2d 835 (1974); Landmark 

Communications, Inc. v. Virginia (1978), 435 U.S. 829, 842, 

98 S.Ct. 1535, 1543, 56 L.Ed.2d 1, 12. 

The right of a citizen to protest an alleged unlawful 

act of his government is undoubted. His right of speech, 

even though distasteful, must also be unfettered unless the 

speech creates the evil of a breach of peace. In weighing, 

in this case, the necessity that we preserve Ytterdahl's 

right of protest and right of free speech, in the 

circumstances here described, as against the interests of the 

State in preserving the peace, we hold that under the 

evidence here, the actual conduct of Ytterdahl was not 

sufficient to constitute the offense of disorderly conduct. 

Accordingly, the judgment and conviction of the 

defendant herein is reversed and the cause is remanded to the 

District Court with instructions to dismiss the cause. I 

We Concur: