State v. Stephenson

950 P.2d 38, 89 Wash. App. 794
CourtCourt of Appeals of Washington
DecidedJanuary 30, 1998
DocketNo. 20059-7-II
StatusPublished
Cited by28 cases

This text of 950 P.2d 38 (State v. Stephenson) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stephenson, 950 P.2d 38, 89 Wash. App. 794 (Wash. Ct. App. 1998).

Opinion

Seinfeld, J.

David Stephenson challenges the criminal intimidating a public servant statute, contending that it is unconstitutionally overbroad. We conclude that the statute’s limitations on protected speech are narrowly tailored to serve a compelling public purpose and are reasonable. Thus, the statute does not violate the First Amendment. Consequently, we affirm Stephenson’s convictions.

FACTS

In January 1995, Stephenson was convicted of two counts of second degree theft. Kitsap County Superior Court Judges Leonard Costello and Leonard Kruse had issued arrest warrants, and Judge Kruse had presided over the arraignment and omnibus hearings preceding trial.

In March 1995, Stephenson sent Judges Costello and Kruse by United States mail copies of a 31-page document entitled “Constructive Notice of Non-Judicial/Pre-Judicial Commercial Process and Intent to File Security Instrument and Commercial/Common Law Lien” (Notice of Intent). He recorded the original with the Kitsap County Records Department.

The n’otice of intent alleged, in part, that certain named parties, including Judges Costello and Kruse, attempted to prosecute Stephenson without a grand jury indictment, issued bench warrants for his arrest, and violated their oaths of office.1 It demanded that the named parties:

take what ever action is required to cause the action in the Superior Court of Washington in and for the County of Kitsap cause #93-1-00872-2 to be dismissed with prejudice and all records of this action essponged (sic).

[799]*799Finally, it contained Stephenson’s threat to file a $7,914,100 lien against the judges’ properties if they failed to meet his demands.

In response to a show cause order served upon him, Stephenson filed the threatened liens. Following a hearing, a superior court judge from another county struck the liens, finding no basis in law or fact supporting them. The visiting judge specifically found that Stephenson filed these liens with malicious intent and for the purpose of influencing the judges to alter rulings or decisions they made in official proceedings in the course of their duties as public servants.

The State then charged Stephenson with two counts of intimidating a public servant in violation of RCW 9A.76.180. Based upon stipulated facts, the trial court found Stephenson guilty as charged.

I. Constitutional Overbreadth

Stephenson contends that the intimidating a public servant statute is unconstitutionally overbroad because it criminalizes a substantial amount of constitutionally protected speech or conduct. RCW 9A.76.180 provides that:

(1) A person is guilty of intimidating a public servant if, by use of a threat, he attempts to influence a public servant’s vote, opinion, decision, or other official action as a public servant.
(3) “Threat” as used in this section means
(a) to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or[2]
(b) threats as defined in RCW 9A.04.110(25).

Here, the State proceeded exclusively under subsection [800]*800(3)(b), relying upon the definition of threat in RCW 9A.04.110(25)(j). It describes a threat as a direct or indirect communication with the intent

(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships.

A criminal statute that “sweeps constitutionally protected free speech activities within its prohibitions” may be overbroad and thus violate the First Amendment. City of Seattle v. Abercrombie, 85 Wn. App. 393, 397, 945 P.2d 1132, review denied, 133 Wn.2d 1005 (1997); Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). But, “[application of the overbreadth doctrine is strong medicine”; courts employ it “sparingly and only as a last resort,” upholding the constitutionality of statutes if possible. State v. Halstien, 122 Wn.2d 109, 122-23, 857 P.2d 270 (1993); City of Tacoma v. Luvene, 118 Wn.2d 826, 839-40, 827 P.2d 1374 (1992); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973).

In considering an overbreadth challenge, we first consider whether the challenged statute reaches constitutionally protected speech or expression and whether it proscribes a real and substantial amount of speech. If the answer to those two questions is yes, we must strike the statute as overbroad unless the regulation of protected speech is constitutionally permissible or it is possible to limit the statute’s construction so that it does not unconstitutionally interfere with protected speech. City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (citing Houston v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987)).

A. Constitutionally Frotected Speech

The First Amendment generally prohibits government interference in speech or expressive conduct. Halstien, 122 Wn.2d at 121. Although “true threats” do not [801]*801enjoy this protection, Stephenson’s notice of intent does not fit the definition of a true threat. City of Seattle v. Ivan, 71 Wn. App. 145, 150-51 n.3, 856 P.2d 1116 (1993); see e.g., State v. Kepiro, 61 Wn. App. 116, 124-25, 810 P.2d 19 (1991).

A true threat is

a statement “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual].”

United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990) (quoting United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986)); United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir.

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Bluebook (online)
950 P.2d 38, 89 Wash. App. 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stephenson-washctapp-1998.