No. 85-153 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

CITY OF BILLINGS, 

Plaintiff and Respondent, 

-vsEARL BATTEN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Calton & Hamrnan; Frances M. Calton, Billings, Montana 

For Respondent: 

Bonnie Sutherland, Assistant City Attorney, Billings, 

Montana 

Submitted on Briefs: June 28, 1985 

Decided: September 12, 1985 

Filed: 

a fj[ G&w" 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant a.ppeals his conviction for disorderly conduct, a violation of S 45-8-101, MCA, following jury trials 

in both the City Court of Billings and subsequently in the 

District Court of the Thirteenth Judicial District, 

Yellowstone County. He was fined $100 and assessed jury 

costs of $316. Claiming that S 45-8-101, MCA, is unconstitutional and that Billings failed to establish a prima facie 

case, the defendant appeals to this Court. 

We affirm the judgment of the District Court holding 

that S 45-8-101, MCA, is constitutionally valid and that 

appellant's violation of that statute has been established by 

substantial evidence. 

The following issues are raised on appeal: 

1. Whether appellant's statements and conduct were 

protected by the Constitution. 

2. Whether § 45-8-101, MCA, is void for vagueness and 

overbreadth. 

3. Whether appellant's statements and conduct establish the necessary elements of disorderly conduct under 

§ 45-8-101, MCA. 

4. Whether the District Court erred in denying appellant's motion to dismiss for failure of the respondent to 

establish a prima facie case. 

The testimony of the parties conflict. The following 

facts come primarily from the testimony of Joseph Carlson, 

his son, Mike Carlson, and his wife, Cathy Carlson. 

Appellant Earl Batten was charged with the misdemeanor 

crime of disorderly conduct as a result of his actions on the 

night of April 21, 1984. On that date, Batten owned a 
business named Rimrock Honda, which was located next to an 

open field. On the other side of the open field and across 

the street, approximately one-half block away, the Joseph 

Carlson family resides. The Dennis Gambill family lives next 

door to the Carlsons. 

On the night of April 21, 1.984, at approximately 8:30 

p.m., the Carlsons sent their fifteen-year-old son, Steve, to 

Buttrey's food store for some milk. Buttrey's is located 

across the street, a-cross the field, and on the other side of 

Batten's property from the Ca.rlson residence. The open field 

and Batten's property were routinely used by pedestrians as a 

route from the residential area to Buttrey's and the other 

stores. As Steve left the house to go to Buttrey's, Joseph 

Carlson watched him from the front window. Although it was 

dark out, the area was illuminated by a sign on appellant's 

property. As Joseph Carlson watched his son walk toward 

Buttrey's, he noticed a person stand.ing by a cluster of small 

trees near the route followed by Steve. As Steve started 

down a path across the field, the person by the trees started 

to follow the boy. This activity concerned Joseph and he 

called his wife, Cathy Carlson, to the window. She saw the 

figure of the person in the shadow of the trees. At that 

point, neither Joseph nor Cathy Carlson could identify the 

figure . 

After seeing the figure follow his son, Joseph Carlson 

believed his son might be in danger. He therefore ran outside after picking up a golf club for protection and started 

after Steve. At that time his nineteen-year-old son, Mike 

Carlson, drove into their driveway. Mike Carlson joined his 

father, and both followed Steve to make sure that the unidentified figure would not harm the younger boy. 
As Steve continued on the path, Cathy Carlson went 

outside onto the driveway. On her way out, she grabbed a 

pair of binoculars to help her see the confrontation. 

It then appears that appellant stopped and waited for 

Joseph and Mike Carlson to overtake him. There ensued a 

verbal battle in which appellant ordered the Carlsons off his 

property. The Carlsons left appellant's property, but appellant continued his verbal attack calling Joseph Carlson a 

communist government worker, no good son-of-a-bitch, 

chickenshit, and m---------- r. Appellant said, "Fight me. 

Hit me. You have a golf club. Come on. I want to fight 

you. " Appellant's voice had become loud and he started 

laughing at the Carlsons. He continued to swear and challenge the Carlsons. Joseph Carlson testified to at least 

five people turning around and looking in their direction 

from an adjacent commercial parking lot. 

Meanwhile, Cathy Carlson was observing the commotion 

from the Carlsons ' front yard. She heard a loud "f--k you. " 

Although she does not know who said that, she knows it was 

not her husband's or her son's voice. She could hear that 

particular language clearly, and it came from the area where 

appellant and her husband were. Cathy Carlson was afraid for 

her family and called their next-door neighbors, the 

Gambills. The Gambills came outside and testified to hearing 

the yelling and that it was loud, although they could not 

make out individual words. 

Mike Carlson was angered by appellant's profanity and 

challenges and told his father he was going to hit appellant. 

Joseph grabbed Mike and told him to go and get his brother at 

Buttrey's instead. Mike followed his father's orders. 

Appellant continued to yell at Joseph. After three or four 
minutes of this, Joseph attempted to walk home. He planned 

to get his car and drive over to Buttrey's to pick up his 

sons so that they would not have to confront appellant again. 

Appellant yelled after Joseph "come back and fight you 

m---------- r. I want to get it over with." Joseph started 

to walk faster, and appellant started to follow him. Joseph 

then ran the rest of the way to his house. Joseph and 

Gambill then drove to Buttrey's to pick up the boys. 

Just after Cathy Carlson called the Gambills, she 

called the police. Officer Keith Richard Buxbaum was dispatched to the Carlsons' residence in response to the call. 

When Officer Buxbaum arrived along with Officer Barta, the 

incident was over. The police searched the area for appellant but could not find him. Officer Buxbaum then requested 

a warrant for appellant for disorderly conduct in his report. 

Appellant was arrested on May 3, 1984. 

Appellant was charged under § 45-8-101, MCA, which 

provides : 

Disorderly conduct. (1) A person commits the offense of disorderly conduct 

if he knowingly disturbs the peace by: 

(a) quarreling, challenging to fight, or 

fighting; 

(b) making loud or unusual noises; 

fc) using threatening, profane, or 

abusive language; 

(2) A person convicted of the offense of 

disorderly conduct shall be fined not to 

exceed $100 or be imprisoned in the 

county jail for a term not to exceed 10 

days, or both. 
The first two issues presented by appellant concern his 

constitutional right of free speech and whether or not the 

statute is unconstitutionally vague and overbroad. This 

Court recently considered similar issues in City of Whitefish 

v. O'Shaughnessy (Mont. 1985), - P.2d - , 42 St.Rep. 928. 

In that case we expressly declined to construe S 45-8-101, 

MCA, because appellant in that case was charged under a 

Whitefish municipal ordinance rather than the statute. 

However, O'Shaughnessy remains Montana's primary precedent 

concerning statutes or ordinances which seek to preserve the 

peace through regulation of loud, profane, and threatening 

speech. In this decision, we will consider the specific 

facts and construe 5 45-8-101(1), MCA, in light of the principles we espoused in O'Shaughnessy. 

In OIShaughnessy we were presented with the following 

ordinance: 

Whitefish Municipal Ordinance, 

9.64.010. No Person within the municipality, or within three miles of the 

municipal limits, shall willfully and 

maliciously disturb the peace and quiet 

of any street, neighborhood, family, or 

person by loud, tumultuous noise, or by 

tumultuous or offensive conduct, or by 

using offensive, loud radio or television sets, or by threatening, quarreling, scolding, hallooing, hollering, 

challenging to fight, or fighting, or by 

cursing, swearing, uttering obscene, 

profane, vulgar, or indecent language in 

the presence of any person or persons, 

or by committing any obscene, vulgar, 

indecent, or lewd act in any public 

place, or in view of any person or 

persons. 

The appellant's charge and conviction under this ordinance stemmed from his offensive statement to a police officer, that is, "Well, m---------- r, I will holler and yell 

when and wherever I want to . . ." We upheld the conviction 
holding that the jury properly found that appellant's speech 

constituted "fighting" words which are not protected. by the 

Constitution, Chapli-nsky v. New Hampshire (1942), 315 U.S. 

568, 62 S.Ct. 766, 86 L.Ed. 1031, and by narrowly construing 

the ordinance as only applying to words that have a direct 

tendency to violence and which are willfully and maliciously 

uttered. Under this narrow construction Whitefish's ordinance is not unconstitutional for vagueness and. overbreadth 

because it is only applicable to unprotected speech. See 

Gooding v. Wilson (19721, 405 U.S. 518, 92 S.Ct. 1103, 31 

As just di.scussed, "fighting words" are not constitutionally protected speech. The right of free speech is not 

absolute. Chaplinsky, 315 U.S. at 571. A state has the 

power constitutionally to punish "fighting words" under 

carefully drawn statutes not susceptible of application to 

protected expression. Gooding, 405 U.S. at 522. 

In O'Shaughnessy we approved the following jury instructions regarding "fighting words": 

You are instructed that the words and 

language of the defendant must have been 

of such nature that men of common intelligence would understand would be words 

likely to cause an average person hearing such words to fight. Threatening, 

profane, and obscene words, said without 

a disarming smile, are generally considered to be "fighting words." 

The appellant, by the City's version of the encounter, 

repeatedly called Carlson a number of profanities and a 

communist government worker, and also challenged him to 

fight. Appellant's language and conduct nearly provoked Mike 

Carlson to fight and so concerned Joseph Carlson that he ran 

from the confrontation. This Court holds that appellant's 
speech and conduct constituted "fighting words" that are 

unprotected by the constitution. 

Having thus determined that appellant's right to free 

speech did not entitle him to conduct himself as he did, we 

now turn to the statute to determine whether it is vague or 

overbroad and facially invalid. A statute may be held unconstitutional if it is vague and overbroad. 12 A.L.R.3d 1448. 

Vagueness and overbreadth are related concepts often spoken 

of together. A statute must be drawn with sufficient clarity 

and definiteness to inform persons of ordinary intelligence 

what actions are proscribed (vagueness) and it cannot be 

susceptible of reaching constituti.onally protected activity 

(vagueness and overbreadth). In O'Shaughnessy we also discussed vagueness and. overbreadth doctrine and concluded that 

invalidation of a potentially vague or overbroad statute can 

be avoided by a narrow construction of the statute. Statutes 

or ordinances regulating expressive conduct must be carefully 

drawn or authoritatively construed to punish only unprotected 

forms of speech. Wurtz v. F.isley (9th Cir. 1983) , 719 F. 2d 

1438. We therefore construed the Whitefish ordinance narrowly to apply only to words that have a direct tendency to 

violence and which are willfully and maliciously uttered. 

The disputed portion of § 45-8-101, MCA, is very similar to the Whitefish ordinance we upheld in O'Shaughnessy. 

The only difference of any substance is that the ordinance 

requires the elements of willful and malicious whereas the 

statute substitutes "knowingly" for those intent elements. 

Such a substitution is explained by the fact that Montana's 

Penal Code revamped common law intent requirements and no 

longer utilizes terms like "willfully and malicious" but 

replaced such terms with "purposely" and "knowingly." 37 
Mont.L,.Rev. 401. If anything, the statute's utilization of 

the intent element of "knowingly" rather than "willfully and 

maliciously" makes the statute less vague than the ordinance 

because S 45-2-101(33), MCA, specifically defines "knowingly - " Use of the intent element of "knowingly" does not 

render the statute unconstitutionally va.gue. 

We now construe § 45-8-101(1), MCA, as only applying to 

words that have a direct tendency to violence and which are 

knowingly uttered. So construed, the statute is not unconstitutional on its face for vagueness or overbreadth. 

I1 

Appellant next alleges that his words and actions were 

not sufficient to support a charge of disorderly conduct. 

Appellant disputes what the jury chose to believe and alleges 

that the testimony could not establish the elements delineated in the statute under which he was charged. Specifically, 

appellant alleges that the elements of "disturbing the peace" 

and "using threatening, profane, or abusive language" were 

not established. 

This Court will not substitute its judgment for that of 

the lury; a jury which, in this case, was able to view firsthand the evidence presented, observe the demeanor of the 

witnesses and weigh the credibility of each party. The facts 

stated at the outset of this opinion are sufficient to support the verdict of the jury. We hold that those facts are 

sufficient to establish the elements of disorderly conduct as 

enumerated in § 45-8-101, MCA. 

Appellant questions whether his behavior could constitute "disturbing the peace" under the statute. He quotes the 

Criminal Law Commission Comments under S 45-8-101, MCA, which 
require that in order for conduct to disturb the peace, the 

behavior must disturb "others" and that it is not sufficient 

that a single person or a very few persons have grounds for 

complaint. Appellant argues that there were not sufficient 

people present to constitute "others" and that therefore he 

could not have disturbed the peace. 

Although we have never decided how many people must be 

disturbed before the peace is disturbed, one Montana case 

involving the crime of breach of the peace, former S 94-4560, 

R.C.M. 1947, provides guidance. In State v. Turley (19741, 

164 Mont. 231, 521 P.2d 690, Turley's conviction for disturbing the peace was upheld. Section 94-3560, R.C.M. 1.947, 

prohibited disturbances of the peace by ''loud or unusual. 

noise or tumultuous or offensive conduct or threatening, 

quarrelling, challenging to fight or fighting.'' Turley was 

convicted under this statute when only he, his wife, and a 

third party were present to witness his conduct. 

In the instant case, not only did appellant directly 

confront and threaten Joseph and Mike Carlson by calling them 

names, using profanity, threatening and trying to get them to 

fight him, but the commotion initiated by appellant also drew 

the attention of more persons. The neighbors of the Carlsons 

and Cathy Carlson could hear the appellant's yelling from a 

half block away. Cathy Carlson heard appellant yell "f--k 

you" at her husband and son. At least five people in the 

Buttrey's parking lot turned around and looked in the direction of the commotion. We hold that sufficient people were 

disturbed by appellant's conduct to constitute a disturbance 

of the peace. 

The next element which appellant argues has not been 

sufficiently proven to support his conviction is his use of 
"threatening, profane, or abusive language." In this opinion 

we have already construed this element as applying only to 

words that have a direct tendency to violence. We hold that 

appellant's conduct and speech as outlined earlier in this 

opinion were sufficiently offensive as to provoke violence in 

others. Any reasonable man would be outraged by appellant's 

conduct. 

I11 

Finally, appellant argues that the trial court committed reversible error in denying his motion to dismiss for 

failure of plaintiff to establish a prima facie case. Since 

we have held that a prima facie case was established, there 

is no need to deal with this contention further. 

The judgment is affirmed. 

ief Justice 

/ 

We concur: