No. 92-500 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

CITY OF HELENA, 

Plaintiff and Respondent, a* 

a 

-vsCONNIE LYNN KRAUTTER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORE: 

For Appellant: 

Connie L. Krautter, Pro Se, Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General; Patricia 

J. Jordan, Assistant Attorney General, Helena, 

Montana 

Filed: 

Submitted on Briefs: April 8, 1993 

Decided: May 18, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

Connie Lynn Krautter (Krautter) was convicted of criminal 

trespass, a misdemeanor, in Helena Municipal Court. She appeals an 

order of the First Judicial District Court, Lewis and Clark County, 

affirming the Municipal Court conviction and denying her motion to 

dismiss. We affirm. 

Krautter was arrested at the Intermountain Planned Parenthood 

Clinic in Helena, Montana, on December 6, 1991, for violating § 45- 

6-203, MCA. This statute makes it a crime to enter or remain 

unlawfully on the premises of another. The primary issue on appeal 

is whether Krzutter had a constitutional right of access to private 

property for the purpose of exercising her right of free speech. 

At the time of her arrest, Krautter was sitting on a concrete 

step at the west door of the clinic. She was part of an antiabortisn demonstration that included appi-oxinrdtei y forty people. 

With Krautter at the west door was a group of three people who had 

locked themselves together with bicycle locks. Krautter had not 

locked herself to this group. 

"No trespassing" signs were posted around the perimeter of the 

clinic property. Like most of the other people at the 

demonstration, Krautter had stationed herself within the area 

defined by those signs. Shortly after the demonstration began, and 

before any patients had arrived at the clinic, the clinic manager 

and a police officer asked everyone to leave. About twenty-five 

people moved from the clinic property to the sidewalk or street. 

The remaining demonstrators, including Krautter, were arrested and 

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charged with trespass and disorderly conduct. 

The Helena Municipal Court found that Krautter was not guilty 

of disorderly conduct but guilty of criminal trespass, for which 

she was fined $24Q. Krautter appealed to the District Court, which 

heard the case on August 3, 1992. Shortly after the hearing, 

Krautter moved to dismiss the charge against her on the grounds 

that she was on the clinic property to exercise her constitutional 

right of free speech by discussing "physical, emotional, and 

psychological injuries that have occurred to other women at women's 

health clinics" with any interested women entering the clinic that 

day, and that she had no other reasonable opportunity to convey her 

message to her intended audience. 

On August 21, 1992, the District Court issued its decision, 

denying Krautter's motion and finding her guilty of trespass. 

Krautter appealed. 

The trespass charge and conviction clearly are correct. Under 

§ 45-6-203, MCA, a person "commits the offense of criminal trespass 

to property if he knowingly enters or remains unlawfully in or upon 

the premises of another." "Enter or remain unlawfully," as defined 

in 5 45-6-201, MCA, means to enter or remain without the permission 

of the landowner or other authorized person. Here, Krautter 

entered an area marked by "no trespassing" signs and remained there 

after an "authorized personu--the clinic manager--had asked her to 

leave. 

Krautter admits that she trespassed but contends that the fine 

was improper because she entered and remained on the clinic 
property to exercise the right of freedom of speech guaranteed by 

the First Amendment and by the Montana Constitution, Art. 11, 3 7. 

She argues that 5 45-6-203, MCA, is unconstitutional because it 

does not allow for protected speech on private property. 

The City of Helena, represented here by the Montana Attorney 

General's office, argues that we should not address the state 

constitutional issue because it was not raised in the District 

Court. See State v. Blalock (1988), 232 Mont. 223, 756 P.2d 454 

(defendant barred from raising issue of trespass statute's 

constitutionality because he did not raise it at trial). 

It is true that at the District Court hearing Krautter, 

representing herself, relied solely on United States Supreme Court 

cases that balance First Amendment rights against private property 

rights. Although no Montana case addresses the relation between 

property rights and freedom of speech, we concluded in City of 

Billings v. Laedeke (19911, 247 Mont. 151, 158, 805 P.2d 1348, 

1352, that Art. 11, 3 7 provides no greater protection for free 

expression than does the United states Constitution. Thus, if the 

trespass statute is constitutional under the First Amendment, it is 

also constitutional under Art. 11, § 7, Mont. Const. , which provides 

in pertinent part that: 

No law shall be passed impairing the freedom of speech or 

expression. Every person shall be free to speak or 

publish whatever he will on any subject, being 

responsible for all abuse of that liberty. 

The constitutionality of a statute is presumed; the party 

challenging it must prove beyond a reasonable doubt that it is 

unconstitutional. Laedeke, 805 P.2d at 1349, citing Fallon County 

4 
v. State (l988), 231 Mont. 443, 445, 753 P.2d 335, 339. The United 

States Supreme Court has held that "jilt would be an unwarranted 

infringement of property rights to require them to yield to the 

exercise of First Amendment rights . . . where adequate alternative 

avenues of communication exist." Lloyd Corp., Ltd. v. Tanner 

(l972), 407 U.S. 551, 567, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131, 

141. Here, the District Court found that Krautter did have 

alternative avenues of communication. We conclude that Krautter 

has not proved that she had no alternative avenue of communication 

and that the Montana trespass statute does not violate the First 

Amendment. 

The question remains as to whether Krautter has a 

constitutional right of access to private property for the purpose 

of exercising her right of free speech. 

Krautter relies on United States Supreme Court cases, 

particularly Amalgamated Food Employees Union Local 590 v. Logan 

Valley Plaza, Inc. (1968), 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 

603; and u. In both cases the Supreme Court recognized that a 

privately-owned shopping center has many of the attributes of a 

public forum. In Locran Valley, it held that "the State may not 

delegate the power, through the use of its trespass laws, wholly to 

exclude those members of the public wishing to exercise their First 

Amendment rights on the premises in a manner and for a purpose 

generally consonant with the use to which the property is actually 

put." 391 U.S. at 319-320. But in Lloyd the Court effectively 

overruled Locran Valley. 
held that shopping center management could enforce a 

policy prohibiting the distribution of handbills in the shopping 

center, where the handbills "had no relation to any purpose for 

which the center was built and being used," and people had ample 

opportunity to distribute handbills in public areas. 407 U.S. at 

564-567. The Supreme Court concluded in u, and reiterated in 

Hudgens v. National Labor Relations Board (1976), 424 U.S. 507, 

519, 96 S.Ct. 1029, 1036, 47 L.Ed.2d 196, 206, that 

the First and Fourteenth Amendments safeguard the rights 

of free speech and assembly by limitations on state 

action, not on action by the owner of private property 

used nondiscriminatorily for private purposes only. 

Unless a shopping center has assumed "all of the attributes of a 

state-created municipality, . . . performing the full spectrum of 

municipal powers," the Court held, members of the public do not 

have the same right of free speech in the streets and sidewalks of 

.. 

> shop":"" "^-+-- rs;uvzl. as they wuuld have in similar public facilities 

in the streets of a city or town. LJoy3, 407 U.S. at 569 

(distinguishing Marsh v. Alabama (1945), 326 U.S. 501, 66 S.Ct. 

276, 90 L.Ed. 265, which held that a state could not enforce a 

prohibition of expressive activity in a shopping center or "company 

townw with attributes of a municipality). 

Here, Krautter has not shown or even argued that the 

Intermountain Planned Parenthood Center is a public facility. It 

is not even the type of quasi-public facility that figured in 

Valley and LJoy3. Even if it were, Krautter still would have to 

show that no reasonable alternative to convey her message existed. 

She asserts that "the only way for her to communicate her 

6 
information to the target audience who could most benefit from her 

information was to be on the property of the Planned Parenthood 

clinic." As the District Court pointed out, however, "nothing . . 

. has been shown to this court that persons driving up to the 

clinic could not see her picketing in the street and would not have 

been able to stop and talk with her if they so desired.Ie 

Since 1976, when Hudqens was decided, courts have protected 

speech on private property under very limited circumstances. The 

United States Supreme Court held, in Pruneyard Shopping Center v. 

Robins (l980), 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 

741, 752, that a state could adopt in its own constitution 

"individual liberties more expansive than those conferred by the 

Federal Constitution," and affirmed a California Supreme Court 

decision holding that a privately owned shopping center could not 

prevent speech and petitioning, reasonably exercised, within the 

shopping center. The Court clearly distinguished w, where the 

state constitution did not create "rights to the use of private 

property by strangers, comparable to those found to exist by the 

California Supreme Court." 447 U.S. at 81. 

We do not find in Art. 11, 5 7 of the Montana Constitution any 

right to "the use of private property by strangers" that would 

entitle Krautter to access to clinic property for purposes of 

conveying a message to the clinic's invitees. 

Many other state courts have been asked to reverse trespass 

convictions based on facts similar to those in the case before us; 

none have found that anti-abortion demonstrators have a right to 
trespass on private property to express their views. See, e.g., 

Fardig v. Municipality of Anchorage (Alaska App. 1990), 785 P.2d 

911, modified, 803 P.2d 879 (1990) (affirming a trespass 

conviction; the defendant's free speech claims failed because a 

small, privately owned and operated health service commercial 

enterprise for profit is "not even remotely similar to the company 

town in Marsh") ; Brown v. Davis (N.J. Super.ch. l984), 495 A.2d 

900, affld sub nom. State v. Brown (N.J. Super. A.D. l986), 513 

A.2d 974 (trespass conviction of a woman who refused a request to 

leave while placing handbills on cars in an abortion-clinic parking 

lot was sustained even though the court found that "the New Jersey 

State Constitution has been interpreted more broadly than the 

Federal Constitution to permit the exercise of expressional rights 

on private property"); Planned Parenthood League of Mass., Inc. v. 

Operation Rescue (Mass. 1990)' 550 N.E.2d 1361 (preliminary 

injunction enjoining Operation Rescue members from engaging in 

trespass and other illegal activities was not overbroad and did not 

prohibit exercise of First Amendment rights); People v. Yutt (Ill. 

App. 1992), 597 N.E.2d 208, cert. denied, 606 N.Ed.2d 1234 (1992) 

(criminal trespass conviction did not violate the defendants1 free 

speech rights because the clinic, which leased a portion of a 

shopping center including the adjoining sidewalk and parking lot, 

had not opened its property as a public forum and had excluded all 

demonstrators regardless of their beliefs); and City of Sunnyside 

v. Lopez (Wash. App. 1988), 751 P.2d 313 (criminal trespass 

conviction upheld because the complex of professional offices in 
vhich the defendant was arrested was not sufficiently open to the 

public to lose its character as private property). 

We hold that neither the First Amendment nor Art. 11, § 7 of 

the Montana Constitution entitles Krautter to have access to 

Planned Parenthood's property in order to exercise her right of 

free speech. 

Affirmed. 

We concur: 
May 18, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Connie L. Krautter 

524 First St. 

Helena, MT 59601 

Hon. Joseph P. Erlazurek, Attoiriey General 

Patricia J. Jordan, Assistant 

215 N. Sanders, Justice Building 

Helena, &IT 59620 

Robert J. Wood 

City Attorney 

228 Broadway 

Helena, MT 59601 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF'MONTANA