No. 86-31 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsARNOLD YTTERDAHL, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Fourteenth JudicialDistrict, In and forthe County of Musselshell, The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant: 

## - Nye & Meyer; JerroldL. 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: 

## JUL1

## 5I386

b 

# &fq,

# d.d ClerkMr. 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 incidentdescribed here,Musselshell County and Ytterdahl were parties to a civil action regarding an easement onYtterdahl'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 themeeting 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 hisproperty toprovide access to the fairgroundsduring road repairs. The State contends that Ytterdahl was "discourteous, bordering on the irrational,andwashollering 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 "mumbleda bad word," got up, stomped out and slammed the door so hard that the glass in the roomrattled. The commissioners then recessed their meeting to "gettheir feelings settled down" for aperiod of 15minutes. The District Court, in a bench trial for which the defendant waived a jury,determined that thedefendanthad violated the statute under which he was charged. The complaint filed in the JusticeCourt against Ytterdahlwas thathehad 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 thepeaceby:

(g) disturbing or disrupting any lawful assembly orpublicmeeting; Ytterdahl raises two issues for our review: 1. Whether S 45-8-101(1)(g), MCA, isunconstitutionally 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 constitutionalityof 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 affectingjurisdictional or constitutional rights may be noticed by us if the errorwas not objected to asprovided 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 isnecessary forus to examine the provisions of $ 45-8-101(1)(g), MCA, as to itsproper interpretationin the lightof 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), 147N.E.2d 258,that in legal textbooks there isno classificationknown
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 abroader term thanbreach of thepeace, 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 thepeace and affraywere offenses under the common law, whereas disorderly conduct, at least by thatname, is not an offense of common-law origin, but one createdby statuteor 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, inMontana, 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. 12Am.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 failsto 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 disturbanceby 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 thatwe give
a narrow judicial interpretation of criminal statutes affecting the right of speech in order to insure that they prohibit only speech which isnot constitutionallyprotected. State v. John W. (Me. 1980), 418 A.2d 1097, 14 A.L.R.4th 1238. As the Supreme Court of Maine pointed out, theinterpretation of such a criminal statute must be restricted to thekind of speech that produces or is likely toproduce 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 interestsof 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 Courtwith instructionsto dismiss the cause. I

We Concur: