People v. Hickman

paid the victim the impress upon restitution to be to public [him] and to protect the crime). of convicted the Restitution Id. his the of misconduct.” seriousness in case the is not warranted this because Prog to Similarly, did not sentence we by Boyer’s damages, any, actual caused never imprisonment ha[d] “he before because practice are not of unauthorized of law subjected for unauthorized been to sanctions agree Boyer this that record. We therefore Prog, 761 P.2d 1116. practice of law.” payable punished by a fine to this should be However, six did sentence Grimes to Boyer $8,332.50 the court. Because collected county jail, in with months’ confinement the suspended, the while he was PDJ recom- suspended, ninety days because of the all but merely requiring Boyer pay to mends he large of cases in which had en- number punish- would be sufficient amount not law, gaged practice of in the unauthorized suggests ment. The PDJ that three times injunctive disregard and for of our order his collected, $24,997.50, the amount would be practicing him from law. See punishment Boyer pre- fit in case. has this Grimes, at 826. why sented with no reason amount us this would or excessive. We be unreasonable Boyer previously been held in con- has not accept have to the PDJ’s therefore decided addition, Boyer tempt pre- of this court. of amount of fine. recommendation the the tending mitigate to sented medical evidence the of his offense. Under these seriousness IV. circumstances, agree the PDJ that Accordingly, we the rule to show make period imprisonment is not warranted. Boy- adjudge Yancy Fred cause absolute ex rel. Bar v. But see Colorado Ass’n contempt in violating er court for our this 426, 427-28, Humbert, 282 P. 86 Colo. April It is ordered that order. (1929) lawyer (finding al- 263-64 who Boyer $24,997.50 fine in amount of pay a the appear name to as an lowed his to continue Court, the Supreme Clerk of not later attorney city and in the directories and state days opin- than 120 after the issuance of this city telephone directory after he was Boyer pay ion. is further ordered contempt in the supreme disbarred was contempt proceeding, costs this in an sentencing thirty days in court and him PDJ, by the amount to be determined to the jail). county Committee, Attorney Regulation 600 Seven- The PDJ concluded that fine was Street, South, Denver, teenth Suite 200 Colo- appropriate. The evidence before the PDJ rado 80202-5432. suspended Boyer, indicated that after he was participate. BENDER not Justice does $8,332.50 attorney’s fees

collected under Oyuela contingent agreement. Al fee acknowledged though that we im he had Koransky contempt

posed restitution

case, the found PDJ that an order restitu payable private party Oyue-

tion such precluded by la was our Nussbeck decision. Colorado, PEOPLE State (“[A] Nussbeck, punitive 974 P.2d at 499 Plaintiff-Appellant, order, contempt intended to vindicate the court, dignity designed not bene HICKMAN, Defendant-Appellee. Glen Plainly party.... fit the of a interests third No. 98SA29. simply, punitive contempt proceeding is a matter court and offend between Colorado, Supreme Court of ing party.”). say prepared We En Banc. permissible case that restitution is never Nov. 1999. punitive contempt proceeding. in a Restitu Rehearing Denied Nov. entirely appro tion to victims is considered See, priate e.g., cases. 24-4.1- criminal

302.5(l)(h), (addressing C.R.S.

right of the court to determine amount Colorado, Denver, Defender, At- Public

State torneys Defendanb-Appellee. Opinion BENDER delivered Justice the Court. case, People appeal

In this decision County by the Mesa District Court dismiss- ing charges Hickman. The Glen People charged one count of Hickman with Victim, Against a Retaliation Witness (1998). section 6 C.R.S. violation of Ruling unconstitutional- statute was ly vague, the trial court dis- overbroad jurisdiction charge. have missed We appeal pursuant to section 13- consider 102(l)(b), (1998), 16- 4— 12-102(1), 6 conclude C.R.S. We term “act of in the statute is harassment” overbroad, but hold that section 18-8-706 is Accordingly, constitutional. we af- otherwise judgment part firm reverse the trial court. I. FACTS AND PROCEEDINGS BELOW defendant, Hickman, was mar- The Glen years, ried to Keri Johnson for three from daughter through 1997. had a Johnson previous relationship, and Hickman from together. had a and Johnson son Johnson in January after filed for divorce Hick- allegedly sexually man assaulted Johnson’s time, daughter. After Hickman saw his supervised times a son several week visita- During proceedings, tions. divorce Hick- argued custody man and Johnson over arrangements for their and visitation son. initially charged Hickman was with sexu- child, assaulting step-daughter. ally his prosecution witness in Johnson was hearing concerning this sexual assault charge. Approximately one month after days hearing at the and five she testified testify before Johnson was scheduled jury concerning trial the sexual assault off a charge, allegedly Hickman set fire- Daniels, Attorney, District Twen- Frank J. cracker near Johnson’s home. District, Tuttle, ty-First B. Judicial Richard said, that he her and contend then called Junction, Deputy Attorney, District Grand off,” gonna your “The next one’s blow head Colorado, Attorneys Plaintiff-Appellant. and, you “Hope sleep well after that.” Vela, De- no Public There was evidence that firecracker David F. Colorado State III, fender, Cleave, any Deputy physical property harm or dam- Thomas M. Van caused charged age. quate The defendant was with one prohibited notice of what conduct was Against count of Retaliation Witness

Victim, felony, in a class 3 violation of Colo- amendments, In the 1992 the General As- rado Revised Statutes section 18-8-706. sembly added the terms “threat” and “act of provides: This statute harassment,” and deleted the word “inten- tionally” along giving with the “for

An individual commits retaliation testimony any See proceeding.” official witness or victim if such uses a § ch. sec. 1992 Colo. Sess. threat, harassment, act or act of harm Laws 405.1 Because the added terms injury upon any person property, were defined in clearly the statute or action to or which is directed committed limited, the trial court reasoned that crime, upon any or a victim witness an prohibit statute could communications that whom individual believes has perceived were as a “threat” or as “harass- testify been or would have been called to ment,” constitutionally but were nonetheless victim, as a witness or a member of the protected by the First Amendment.2 family, witness’ a member of the victim’s Const, amend. I. family, relationship an individual in close victim, an the witness or individual resid- The trial court also found that the deletion ing in the same household with the witness of the terms from the statute increased the victim, as retaliation or retribution sweep, express statute’s because without an against such witness or victim. provision establishing culpable mental required state for this crime it was unclear 18-8-706(1), exactly legislature what sought conduct the allegations, argues Hickman denies the but prohibit. The trial interpreted these true, they that even were the statute is amendments to mean that the re- argue unconstitutional. Hickman does not required taliation or retribution was not to be that the applied statute is unconstitutional as in response person’s “giving to the testimony him, to but that the statute is unconsti- any in proceeding.” official Under this stat- tutionally vague overbroad and on its face. utory interpretation, the accused’s actions might concern a matter unrelated to the agreed po- The trial court with Hickman’s person’s testimony proceeding. in a criminal count, sition and dismissed the retaliation reasoning that According analysis, section 18-8-706 was uncon- to the trial court’s stitutionally vague- and for unconstitutionally overbroad void amended statute is over- ness as a result of amendments made to the broad because the statute criminalizes activi- in beyond scope governmen- statute 1992. The trial court found that ties that are regulation. the amendments to prohibit, the statute created an tal The statute would problem overbreadth certain example: making report because terms for a threat to or witness; prosecute perjury by that were added to and from the making deleted a a impermissibly scope boycott statute extended the threat initiate legal a or other constitutionally protected process the statute to com- collective action because of false tes- timony during concerning munication. The trial court also found that illegal a trial action strike; the 1992 to the membership during amendments statute rendered union unconstitutionally vague the statute picketing workplace because the home or of a witness provide during signs the amended statute failed to calling ade- who lied a trial with original provided: challenge 1. prohi- The 2. Hickman did not the statute’s against inflicting "injury” upon bition against ‘'harm” or A commits retaliation a witness intentionally property, or victim he or she inflicts and the court did not trial injury upon any person property, harm or address these issues. Thus we do not address upon which action is directed to or committed whether those terms render the statute unconsti- a witness or victim as retaliation or retribution tutional. giving testimony any proceeding. in for official Ch. sec. 1984 Colo. Sess. Laws, 499, (emphasis language 502 on the 1992). legislature removed from the statute in in additionally- proceedings. fied witness a liar. The trial earlier For sake convenience, we refer these classes vagueness, the statute void held that was people “persons the stat- as reasoning give failed to fair that the statute “protected ute” or classes.” warning what was as to conduct citizens thereby gave law prohibited and enforcement challenges 18-8- Hickman to decide unbridled discretion whether unconstitutionally 706 as and overbroad trial crime had been committed. vague.4 as an We note initial matter that and court held statute unconstitutional constitutional, presumed statutes are to be granted motion to the defendant’s dismiss. party challenging statute’s] and “the valid [a argue ity has People proving trial unconstitution court erred burden ality concluding beyond a reasonable in 18-8-706 is uncon- doubt.” that section (Colo.1994). Janousek, P.2d stitutionally vague. agree overbroad We contention, statute, For us invalidate a it must be part People’s in with the and we sufficiently limiting infirm con so no part in affirm and reverse the trial in legislature’s struction consistent with the ruling.3 court’s constitutionality. preserve tent will its See People, Whimbush v. 869 P.2d II. ANALYSIS (Colo.1994). A. OVERVIEW construing When guided by principles several basic of statuto Although the trial court examined the ry goal interpretation. Our ascertain is to constitutionality only as applied statute’s carry legislature. out the intent of the involving cases retaliation witnesses Baer, end, 973 P.2d at To this 1228. proceedings, who testified criminal earlier phrases “[w]ords and used in statutes are to scope. has a wider Section 18-8- interpreted according generally to their any protects persons who fall of sever accepted Janousek, meaning.” (1) classifications, including: al to a witness statutory language “Where the leaves (2) (3) crime; crime; a victim of a an individ meaning, doubt to its examine as ual has who defendant believes been or intent, legislative including other sources of testify would have been called a witness legislature’s objective, the circumstances victim; a close enactment, surrounding the and the conse personal relationship to the witness or victim Baer, quences particular of a construction.” § of a crime. See 18-8-706. This statute 973 P.2d at 1228. any applies by to an accused actions that are against per Thus, in retaliation for that we test section for uncon- 18-8-706 membership perceived membership son’s by vagueness stitutional overbreadth and ex- in one of these id. We amining classes. See examine plain meaning the the words of applied 18-8-706 to all section as of the “threat” in and “act of harassment” as used statute, persons by statute, protected classes of the the as well as the effect of the dele- simply already not who have tion of witnesses testi- certain terms from the statute. The statute, People following application party 3. The raised the the issues: tutional of the still 1) standing bring challenge has to facial to the finding Whether the erred in trial court that 18-8-706, constitutionality People Colorado Revised section as the Statutes of statute. See v. amended, unconstitutionally 1, (Colo.1999). is Shepard, overbroad. 983 P.2d 3 n. 3 Such 2) finding Whether the erred in trial court that challenges prevent in are allowed order to 18-8-706, Colorado Revised Statutes section chilling rights statute from the First Amendment amended, vague- is void unconstitutional as court, parties not before the other who refrain ness. acting being punished from out fear of under 3; Shepard, the statute. See P.2d at 3 n. 983 standing bring 4. We note that has Hickman to Baer, P.2d at 1231. Hickman 973 even if may challenge party claims. these a law as "[A] charged engaging speech is or conduct regardless party’s overbroad speech of whether that Amendment, by protected that is the he not First constitutionally protected.” is See Baer, 1225, standing challenge facially (Colo.1999). has the statute as 973 P.2d 1231 the context, vague. party First Amendment even if chal- overbroad and lenging subject to an statute is not unconsli-

635 history applies challenges 1992 amendments to trine to constitutional legislative of the 18-8-706, prohibit “pure speech” As- statutes that as well in which the General Ferber, plus speech.” as “conduct 458 potential sembly protect states its desire 771, 102 (applying conduct, U.S. at S.Ct. 3348 substan from witnesses and victims coercive pornography tial doctrine overbreadth analysis. our The General Assem- instructs statute); Hill, City see also Houston v. bly’s placement of intent is indicated 451, 466-67, 107 482 U.S. S.Ct. 96 piece section 18-8-706 within broader (1987) (using L.Ed.2d 398 substantial (a) over- purpose which is legislation: involving breadth doctrine case verbal crit provide protection for victims and witnesses officer). police icism of (b) crime; cited as the to a and which is be Protection Act “Colorado and Witness Victim encompasses If protect a statute of 1984.” See overbroad, speech substantially ed but is not may

then whatever overbreadth exist should B. OVERBREADTH case-by-case be resolved on a basis. See Broadrick, 615-16, 2908; at 413 U.S. 93 S.Ct. 1. Overbreadth Standard Ryan, 806 P.2d at 939-40. The court must People’s argument We now turn to the weigh degree protected speech to which holding trial erred in be deterred under the statute unconstitutionally over- section 18-8-706 was scope unprotected speech being that, given a broad. We determine suffi- Ferber, regulated. See at 102 U.S. ciently limiting term definition (finding legitimate S.Ct. 3348 reach of “threat,” substantially the statute is over- pornography argu child statute “dwarfs its prohibits the extent that it certain broad to ably impermissible applications,” and that against persons protected threats “tiny applications such were fraction” statute. We also hold “act of reach); the materials within the statute’s harassment” is overbroad and strike it from States, 705, 707-08, Watts v. United 394 U.S. (uphold 89 S.Ct. L.Ed.2d 664 ing speech protected statute that reaches begin analysis our review We valid, overwhelming” “a because of even an ing principles the constitutional of over- protecting interest the President from unconstitutionally A is breadth. statute threats). person engaged If proscrip overbroad it includes within its prosecuted under the constitutionally tions a substantial amount of particular prosgeution deem the court should Ferber, protected speech. See New York v. invalid, not invalidate the entire statute. See 747, 769, 102 458 U.S. S.Ct. 73 L.Ed.2d Ferber, 773-74, 458 U.S. at 102 S.Ct. 3348 (1982); Baer, at 1231. If a (upholding though might statute even description, statute meets this conceivably applied communi must be invalidated unless the court can Watts, cations); 707-08, S.Ct. supply limiting partial in construction or (upholding overturning 1399 but con statute scope validation that narrows the of the stat particu viction under the because the statute constitutionally acceptable applica ute to speech protected). lar was Oklahoma, v. tions. See Broadrick 413 U.S. 601, 613, 2908, purpose of the 93 S.Ct. 37 L.Ed.2d 830 The overbreadth 935, (1973); persons People Ryan, protect v. 940 doctrine is to whose (Colo.1991). constitutionally protected “The criterion of ‘substantial or conduct is but exercising precludes “may invali well refrain from their overbreadth’ court from who rights by a dating simply a statute on its face because of for fear of criminal sanctions application protected possibility, slight, might susceptible that it statute however of Ferber, 768, applied expression.” at 102 some unconstitutional manner.” 458 U.S. Baer, (citing Secretary (quoting Village Schaumburg 1231 v. 973 P.2d at S.Ct. 3348 of of Co., Env’t, 634, 620, 444 Maryland State v. Munson 467 U.S. Citizens a Better for of (1980)). 947, 964-65, 2839, 826, 104 81 L.Ed.2d 786 100 63 L.Ed.2d 73 As we S.Ct. S.Ct. (1984)). 4, supra, persons allow overbreadth doc discussed note we substantial 636 analysis, be- the trial court’s even when the liar. Under bring attacks overbreadth applied potentially could be cause the statute clearly unprotected and

person’s is conduct speech, the range protected of to a broad by a statute drawn proscribed could be Ferber, unconstitutionally overbroad. also statute was requisite specificity. See of 3348. Because 102 S.Ct. 458 U.S. by reasoning. persuaded We are striking a statute on its down the effects of Instead, supply limiting construction challenge by face as a result of under section 18-8-706 the term threat protected not be whose own conduct scope the statute to include narrows the Amendment, recognize courts the First or only expressions of intent to commit harm medicine,” “strong doctrine as overbreadth injury person, property, or to another’s applied as a “last the doctrine is through commission of an unlawful rights 3348; Ryan, Id. at S.Ct. resort.” limits the act. The statute itself further limiting or If a construction 806 P.2d at 939. prohibited speech because the threat scope of the statute partial invalidation that confines against person protected be made must sufficiently applications ap- narrow can be retaliatory pur- for retributive or the statute construe the statute plied, the court should scope poses. on limited of the Based light limiting construction. of that threats, prohibition we hold statute’s Whimbush, 869 P.2d at 1248. proscription of in section 18-8- threats caselaw, Summarizing we con- the relevant infringe on a amount 706 does not substantial analysis two involves clude overbreadth protected speech and thus we conclude First, if questions. the court must determine is not overbroad. that the statute encompasses at issue constitu- the statute Second, tionally protected communications. a. “Threat” Under Definition of protected communi- if the statute extends 18-8-706 Section cations, whether the court must determine the mean- Earlier Colorado cases address amount the statute extends to a “substantial” Hines, held, ing “threat.” In such that communication felony menacing in the context of our unconstitutional, uncon- or whether meaning is “a statement of of threat applications statute should stitutional injury purpose or intent to cause or harm case-by-case A be cured on a basis. another, by person, property, rights limiting responsibility apply a has the of an unlawful act.” 780 P.2d the commission doing partial invalidation so construction (Colo.1989). People, we In Schott v. constitutionality. preserve

will the statute’s defined “threat” in the context of a theft purpose as a “declaration of threat statute 2. The Term “Threat” Does Not Render injury person, prop- to work to the intention Unconstitutionally the Statute erty, rights by the commission of another Overbroad 15, 18, of an unlawful act.” Colo. agreed The trial court with Hickman’s con- (citing Black’s Law Dic- P.2d prohibition the statute’s tention (4th ed.1968)). tionary 1651 person protected by “threats” legisla presumed “It that a is to be statute is overbroad because cognizant adopts the construc sweeps scope amount ture is of and within its a substantial judicial prior tion decisions have The trial court which communications. language such lan placed particular “threats” that on when found that the statute covered guage employed subsequent legislation.” in speech, including examples: are (Colo. 1111, Binkley People, 716 P.2d 1114 report prosecute perjury or v. threats to 1986). witness; legislature provided no boycotts Because the threats to initiate or other 18-8-706, legal response in to false definition of “threat” under section collective action legislature concerning presume that intended testimony given during a trial we meaning adopted by membership during the term have the illegal by union that action strike; workplace in earlier decisions such as Hines picketing and the home or this court calling signs the witness a and Schott. of witness with

637 Massachusetts, Blake, League In to our earlier cases and hood Inc. v. addition of 985, legislature’s we make about the 417 Mass. 631 N.E.2d 990 presumption cases, other sources (accepting intent based on those definition of threat' as inten- “the an as a communication of inten- pressure define threat of tional exertion to make another harm”). through injury commit harm the commission apprehensive tion to or or fearful of Third Neiv In- Thus, of unlawful acts. Webster’s recognize we threat has several (1986), Dictionary 2382 defines ternational meanings, including some are definitions that as: “threat” applied broader than the one we have in our expression an to inflict earlier cases. of intention [An] by illegal harm on another means loss or Although both the narrow and broad especially] by involving coer- means interpre definitions of threat reasonable cion or duress of the threatened. term, capable if a tations of the “statute is (6th ed.1990), Dictionary Black’s Law constructions, alternative one of which is con threat “declaration of an inten- defines as a stitutional, interpreta then the constitutional injure property by another or his tion to adopted.” People McBurney, tion must be v. some unlawful act.”5 (Colo.1988). explain As we caselaw, Although presumption we our (c), in in our further discussions subsection Assembly’s intent make about General infra, a of threat definition limits caselaw, dictionary based on that term those statements intent of threat all indicate that “threat” definition injury through cause harm or the commission acts, illegal refers to the commission of of unlawful acts bolsters the statute’s consti in be conceived of note “threat” tutionality. By defining threat this fash fashion, including expressions of in- broader ion, we save the statute from overbreadth injury through tent to commit harm or encompass because the statute does not necessarily commission of an act that is not speech. substantial amount of illegal. example, For the extortion statute sum, Colorado caselaw defines in a invalidated Whimbush defined broad provides presuming threat and a basis for proscribed. threats See 869 P.2d manner the Assembly intended to use the General at 1247. The extortion statute defined the definition, support and we find for this , including prohibited threats as threats to analysis definition other sources. Our restrain, “confine, cause or or economic bodi- constitutionality of section 18-8-706 also ly injury person,” to the threatened as well interpreted in suggests that threat should be “damage property, as threats to economic fashion. construe threat narrow well-being, reputation or of the threatened expression to mean section 18-8-706 an person,” and this threat encom- definition of purpose an intent or statement to commit passed greater spectrum than injury person, property, harm or another’s supplied does the definition we in earlier through rights the commission of unlawful id.; also, e.g., Law cases. See see Black’s acts. ed.1999) (7th (defining Dictionary threat as a communicated intent to inflict b. First Amendment Protections another, harm or loss on without reference to “Threats” acts); Webster’s, unlawful the commission of Having sec supra, (defining threat as “an indica- construed threat under at 2382 question [usually] turn something impending and tion we now tion of infringes upon communi unpleasant” as “an ex- whether the statute undesirable or evil, injury, protected by First pression of an to inflict cations that are intention another”); reviewing a damage on Parent- Amendment. After substantial Planned (10th Viefhaus, ed v. 168 F.3d 5. As an additional source of a definition States threat, Cir.1999) (defining meaning the Tenth has defined threat as "a Circuit of threat under intention, design, goal, purpose, statute); declaration of threat see also United States bomb loss, pain punishment, determination to inflict Leaverton, (10th Cir.1987) 835 F.2d another, injure property his on or to another or statute). (defining postal threat under by some unlawful act.” Unit- the commission of 638 ’ addressing types protections.6 973 P.2d at 1231-

body of Amendment of caselaw Janousek, by person “has protected 32. In we held threats that are are Amendment, although constitutionally protected right First we conclude that no to make infringes protected public on communi- violence to a servant.” threats of 871 cations, substantially pro- it burden does not at P.2d 1193.7 speech. tected threats, category unprotected The how- Supreme clear that Court has made ever, conveniently cannot be defined as threats are communications without some bodily harm” “threats to commit immediate protections. In cases in First Amendment violence,” unpro- or “threats of because some President, volving against threats threats do not meet these definitions. tected acknowledged Supreme has that “true Court threats, example, for often in- Extortionate protected by First threats” are not threats to com- volve threats that are neither Watts, 707-08, Amendment. 394 at See U.S. mit violence nor threats to commit actions (1969)(overturning conviction 89 S.Ct. 1399 so, per illegal.8 that are Even extortion se prohibiting against the under statute threats prohibit range statutes that a wide of such upholding President but the statute on its routinely upheld threats are as constitution- face). explained The Court has that “threats al, explanation often without of what charac- fall Amendment of violence” outside First distinguish pro- these threats from teristics protect guarantees in order to individuals See, e.g., speech. tected United States v. violence, disruption from the fear of from the (9th Cir.1988) Hutson, 1232, F.2d 1235 843 engenders, possibility that fear and from the (“Because present case is threatened violence will occur. threats, limited to it does not extortionate Paul, 377, 388, City R.A.V. v. 505 St. U.S. political regulate speech relating to social or (1992). 120 L.Ed.2d 305 In S.Ct. conflict, engage where threats to in behavior Center, Inc., Madsen v. Women’s Health may be unlawful nevertheless be 753, 773, 114 129 L.Ed.2d S.Ct. ideas.”); part marketplace United (1994), that, “Clearly, the Court noted (5th Quinn, States v. 514 F.2d families, patients threats to or their however Cir.1975) (“It may categorically be stated communicated, proscribable are under the speech has no that extortionate more consti- First Amendment.” protection by tutional than that uttered Similarly, recognized have we some ordering robber while his victim to hand over threats are not the First all.”). money, protection which is no Baer, example, up- In Amendment. harassment-by-stalking stat- threats have no First held Colorado’s While some challenge, finding protections, Amendment other ute an overbreadth threats protected speech. Aguilar People, that “credible threats” do not have First constitutionality pertinent part: assessing 6. The harassment statute reads in of a federal law prohibiting forcibly against threats to retaliate person ... commits harassment [A] informants, stalking directly indirectly through government anoth- the Sev- witnesses person knowingly: er such emphatically upheld enth Circuit the statute. See Velasquez, United States v. 772 F.2d 1356- (II) Makes a credible threat to another (7th Cir.1985). person’s "A threat to break a and, threat, repeatedly in connection with such pulverize punishment his automobile knees or any form of communication with that makes having given govern- his information to the for ment,” person’s person or immedi- a member of that stated, the Seventh Circuit is not an ex- family, ate whether or not conversation en- pression opinion of an idea or "and is not sues marketplace of ideas” the First Amendment. Id. at 1357. (4)(a)(XI), § 18-9-111 The stat- ute defines "credible threat” as "a threat or threat, example, $500 "Give me or I 8.For physical action that cause a would reasonable her,” your you’re cheating will tell wife on does person’s safety fear life for the not involve violence or the commission of an act safety or the life or of his or her immediate (telling person spouse cheating l(4)(b)(I). that her on family.” § 18—9—11 her) necessarily illegal. that is 7. Other that some threats have courts have found protection. example, no First Amendment For

639 Robertson, protected (citing P.2d at 649 “constitutionally 1249-50 P.2d recognized that 587). 725, at threatening.” speech may be (Colo.1994). advocacy” The “mere

728 Along with some threats to com speech not or violence does remove force crimes, mit minor violence or to commit oth protections of the Amend- from the First types may er of “threats” have constitutional Ohio, 444, Brandenburg v. ment. 395 U.S. protection if the threat has a even coercive (1969) 1827, 447-49, 23 L.Ed.2d 430 89 S.Ct. people. effect on Threats of other social advocating (finding that violence as moral boy ostracism in the context of an economic “ necessity propriety or moral ‘is not the protected. cott are See v. NAACP Claiborne group for preparing a violent action same as Co., 886, 910, Hardware 458 U.S. 102 S.Ct. ”) steeling (quoting it to such action’ (1982) 3409, (“Speech 73 L.Ed.2d 1215 does States, 290, 297-98, v. 367 U.S. Noto United its ... protected simply not lose character (1961)). 1517, 81 6 L.Ed.2d S.Ct. 836 may because it others or embarrass coerce threats, of violence that are not true Threats action.”). Expressions them into made with hyperbole,” “political pro- but which are intent to exert a coercive influence over Watts, 706-08, speech. 394 U.S. at 89 tected protec necessarily others are outside the not statement, they (finding that “If S.Ct. 1399 Organi tions of the First Amendment. See carry a rifle I ever make me the first man Keefe, zation v. 402 a Better Austin for L.B.J.,” my sights get in was want to 419, 415, 1575, 1 91 29 L.Ed.2d S.Ct. Thus, protected hyperbole”). “political even (finding that “offensive” coercive may protected threats of violence or force be Whimbush, may protected). we be invali speech. dated an extortion statute threats, variety including wide some forms may as some threats of violence Just of.protected speech.10 869 P.2d at 1248. communications, protected be threats to com The extortion statute defined “threats” so mit minor crimes or “insubstantial harm” broadly encompassed a it substantial may protected speech also some con be in speech, as protected amount such threats Whimbush, 869 P.2d at 1249-50 texts. See engage in legal support collective action Robertson, 402, 293 (citing State v. Or. 649 group demands. See id. (1982)).9 P.2d 580-81 The concern general princi- that in some where a on our review of the these cases is instances Based ples addressing purports to reach threats to First Amend- easelaw activities, threats, protections illegal commit statute still en ment for conclude protected compasses a substantial amount of term threat under section court, it, protected speech. example, as we have extends to The Robertson construed speech. expression in- threats to means an reasoned that some commit minor Threat may injury to legitimate tent to commit harm or another’s insubstantial crimes be person, rights through speech, especially political property, the com- contexts. See This 649 stated in mission an unlawful act. definition P.2d 583-84. Whimbush, escape poten includes not entitled First “a statute does various threats solely protection, such as tial because it is limited to Amendment threats overbreadth conduct,” forcibly kill retaliate involving unlawful and threats to threats because However, against governmental speech. such be 869 witnesses. threats Hutson, authority (noting legal 9. F.2d at Whoever without threatens to See also 1235 confine, restrain, engage in bodily some threats to may "unlawful conduct” or cause economic speech); Landry be v. nevertheless injury person or another or to the threatened (N.D.Ill.1968) (hold Daley, F.Supp. well-being, damage property, economic ing public minor threats to commit crimes reputation the threatened or an- order or "insubstantial evil" cannot thereby other to induce threat- with intent prohibited), grounds rev’d on other sub nom. against his do ened or another will to Landry, Boyle 401 U.S. 91 S.Ct. doing a lawful act an act or refrain from com- L.Ed.2d 696 which is a class 4 felo- mits extortion criminal ny. 18-3-207(1), extortion 8B (1986), pertinent part: C.R.S. read unnecessary encompasses places of threat also an unreasonable and this definition protec- legislature. threats that have First Amendment the burden on tion, intersection such as threats to block an c. Test Substantial Overbreadth political protest or to obstruct part as of a for to a of a the entrance storefront We now ask whether section 18-8- alone, Thus, boycott. standing the term infringes 706 as a whole on a substantial “threat,” it as we define under section 18-8- communications, protected amount of speech protected as well as extends to conclude that does not. it unprotected communications. Viewing light the statute of our ambiguous nature of a We note that the threat, definition of we see that section 18-8- threat, pro- term like which involves both First, 706 has three essential elements. communications, unprotected tected and there must be a communicated intent to com difficulty legislature. presents special a for a injury person, prop mit harm or to another’s apparent of the law It is from our review erty, rights by the commission of unlawful concerning protections First Amendment for Second, acts. the threat must be directed protected threats that some threats person protected by toward a not, some are but it is not evident how to Third, the threat be for must made retribu precisely define the differences between the retaliatory purposes tive or based on the categories. ambigui- two As result of this membership victim’s protected one of the ty, any attempt compose prohib- a statute put classes. To retaliate means “to or inflict iting unprotected speech will almost neces- wrong!;] in return ... a ... to return like for sarily encompass protected speech. It requital; especially]: like: make to return difficult, impossible, perhaps even to con- Webster’s, swpra, evil for evil.” at 1938. applies struct a statute to a maximum dispensing receiving Retribution is “the unprotected the amount of elements of punishment according reward to the des speech category from a both contains something giv erts of the individual ... [or] communications, protected unprotected recompense.” en or exacted in Id. at 1940.11 infringing protected speech without also on Each of these terms thus defines retaliation Whimbush, as well. 869 P.2d at 1250 Cf. occurring specific under the statute as for a (“If Assembly the General chooses to reen- is, specifi the reason: defendant must statute, act the criminal extortion it must cally punishment intend to inflict or exact many policy make choices to define the revenge on a as a result of that scope of the statute and the nature of the person’s perceived relationship actual or prohibited.”); conduct to be see also Kent proceedings. criminal the statute re Crime, Greenawalt, Speech, & the Uses of quires threat be made

Language (“Finding appropri- retaliatory purposes. retributive or language just [proscribable] ate to reach task.”). easy difficulty protected speech threats is no This While some instances of highlights the need to test a statute’s over- involve threats that all meet of the by determining breadth whether substan- elements of section instances such protected speech tial amount of is burdened cannot be considered a “substantial” amount by Requiring ’legislature by speech statute. of the covered the statute because significant speech construct a statute so that a the bulk of covered the statute unprotected speech pro- protected. example, amount of but no is not For kill threats to injure tected is covered witness retaliation for Although person protected the definition of "retribution” in- the statute. The statute does possibility using contemplate cludes illegal the word in a the use of a threat of manner, reward, positive providing such as conduct or the actual commission of harm or clearly meaning injury word does person’s not have such a with- to a as a "reward” for a relationship proceedings in the context of section 18-8-706. As we con- aas member of one (a) above, strue the term in subsection "threat” classes. Because the term "ret- applies illegal means a declaration of intent to commit harm or injury through ribution” to threats or other acts illegal prohibited by an act. The statute other- "retribution” cannot applies injury against positive meaning wise to acts of harm or have a such as a reward. However, protected speech. appli- doubted that testimony are not Court these witness’s “tiny could to more family, cations amount than a injure potential Threats to witness’s fraction” of materials within the statute’s discouraging testimo- made with the intent reach, any so Court held that unconstitu- speech. ny, We reason are not applications tional statute should unprotected that these and similar forms of case-by-case on a cured basis. id. majority pro- speech comprise the vast 102 S.Ct. speech, though scribed even we concede speech conceivably protected Similarly, only of some forms because we determine that speech encompassed fraction meet a small of the will all three elements of by protected, may statute a cure is scope of the excludes The limited statute possible applications protected speech to on many protected speech that the trial forms of Hence, case-by-case in- basis. the few court assumed would be covered. Threats protected speech might when stances be expose perjury, example, a witness’s for may prosecuted under the a court encompassed would not under section 18- be particular prosecution. invalidate the “threat” case does 8-706 because the in that Although we commented Whimbush rely illegal not on commission of an act. escape potential that “a statute does not boycott legal Threats to or other initiate solely it overbreadth because is limited to response collective action in to untruthful conduct,” involving threats unlawful 869 P.2d testimony union would about members also 1249-50, required we at are not to find sec- by not be covered the statute because this tion 18-8-706 overbroad on basis. Our illegal. not threatened actions are holding that section 18-8-706 is not over- section also Our construction of 18-8-706 solely does not on the broad rest fact that we category protected excludes of “threats” narrowly have the term In construed threat. might the stat- otherwise contribute to only being addition to limited threats to example, For ute’s overbreadth. because acts, commit unlawful fur- 18-8-706 legislature applied a broader definition of by scope prohibited limits the of ther threats applied by threat than court in this describing specific persons class of Schott, ex- by earlier cases like Hines and be whom threat must directed and requiring en- threat be made for retalia- tortion statute invalidated in Whimbush Thus, tory purposes. or retributive our hold- compassed engage in protected threats ing has not saved section from 18-8-706 legal action collective activities. See solely because it limited to overbreadth is at 1248. not encom- Section 18-8-706 does illegal threats to commit conduct. pass protected these or other threats because sum, our renders consid- construction the statute In we the term under construe threat erably identify only than like the extor- a limited narrower statutes section 18-8-706 Whimbush, category expressions, and the fur- statute tion statute addressed category ther narrows the com- engage legal threats otherwise activities only munications to those threats made by we covered statute. person protected for the statute persuaded are not that a amount substantial retaliatory purposes. retributive or Because speech is prohibited by the statute speech prohibited a small fraction of the protected speech. protected this section of the statute is in any prosecution If involves an speech, we that section is not hold 18-8-706 that meets the elements stance all prohibits overbroad insofar as actually of this statute but threat making against person from threats Amendment, protected under First for retributive courts on a case- retaliatory cure overbreadth purposes. Ferber, by-ease example, the basis. for S. “Act Harassment” Is acknowledged pornogra that the child Court Unconstitutionally might conceivably phy statute at issue Overbroad applied to as medi protected materials such magazines. Geographic cal texts or National agree the trial court that “act We 773-74, in section 18-8-706 en- See 468 102 S.Ct. 3348. harassment” as used compasses a substantial amount constitu- b. Test Substantial Overbreadth tionally protected communications. Follow- Having determined that “act of ing the standard for overbreadth we outline encompasses constitutionally harassment” 11(B)(1), supra, in section we hold that sec- communications, turn to the substantially protect- tion 18-8-706 burdens question of whether this overbreadth is sub phrase ed can- communications limiting stantial. Because no construction Therefore, sufficiently not be limited. permissible appli can narrow the statute to prohibition strike this from the statute. cations, we conclude that the “act of harassment” in section 18-8-706 is substan Encompasses

a. “Act Harassment” overbroad, tially it we strike from the Protected Communications statute. We turn to the definition of “act consistently Our cases invalidate as sub harassment” under the trial statute. The stantially prohibit overbroad that statutes court found that “act of harassment” was speech made with “harassing,” the intent of statute, by phrase undefined the and that the Smith, “annoying,” “alarming” or others. encompasses speech and conduct that are example, for we invalidated a subsection of constitutionally protected. agree. We the prohibited harassment statute that “all repeated plain containing meaning We look to the communications ‘offen the terms sively language’ coarse they order made with the in to determine whether encom- harass, annoy, tent to pass protected or alarm” communications. The term because of synonymous “vex,” protected speech by the amount of “harassment” is covered “trouble,” Webster’s, Bolles, the “annoy.” statute. See 862 P.2d at 942. In supra, or See 1031; prohibited see also Black’s invalidated statute that cer Dictionary Law (7th ed.1999) tain communications (defining made with the intent to harassment as con- “harass, annoy, specific person person,” duct that at a or alarm is directed another alarms, significant “annoys, because a speech or causes amount of the substantial emo- by protected tional covered legitimate pur- speech. distress and serves no statute was pose”). See 189 Colo. at 541 P.2d at 84. meaning This applies broad of the term Similarly, phrase “act of harassment” range conduct, a wide of communications and encompasses section 18-8-706 a substan- many by of which protected protected the First tial amount of communications. example, Amendment. For forecasting example, a For if a defendant calls a witness change weather, engaging political in a proposes liar or to turn the witness in for discussion, discouraging or perjury a witness from as retribution for the witness’s testi- lying “vex,” “trouble,” might mony, on the stand “vex,” or may these communications “annoy” person protected by “trouble,” “annoy” witness, section 18-8- and would protected but such pro.secutable communications are thus be under statute. Al- by See, e.g., People ternatively, First Amendment. if a manager union leader tells a Smith, (Colo.1993) 862 P.2d (finding manager gives that workers will strike if the that subsection of harassment testimony concerning statute was false the union’s mem- “anything narrowly but drawn” and dispute, conclud- bers in a labor certainly this could ing protected speech); statute covered “annoy” manager “trouble” or and be 394, 398, People, Bolles v. prosecuted 189 Colo. However, under the statute. (finding forecasting protected these speech, communications are trends, predicting political weather or they even if were intended to harass a instance, person, could protected by “alarm” a but are still the statute.12 These and other Thus, protected speech). protected we conclude that pros- forms of that could be “act encompasses of harassment” protected ecuted under the statute as acts of harass- communications. “tiny ment amount to more than a fraction” examples 12. We note that neither of these could because neither involves the infliction of harm or prosecuted injury be as a through “threat” under the statute the commission of unlawful acts. prohibits it an act harassment” prohibited under sec- insofar as the communications statute, persons by against tion 18-8-706. from the This we strike statute. though requires that an the statute Even partial invalidation does not the basic alter be directed at act harassment prohibition making a threat or com- by made for the statute be mitting injury” against an “act harm or purposes, retaliatory the stat- retributive protected by scope limited adequately ute’s broad is requirements. these A considerable C. VAGUENESS protected speech encompassed amount is argue also that the trial by prohibiting of harassment directed acts court erred when it determined that section persons protected statute for towards vagueness. agree. 18-8-706 was void for We retaliatory our purposes. As retributive construed, pro We hold that this demonstrate, retaliatory examples above adequate vides notice of the be designed per- communications “harass” vagueness. havior and not void for protected by nonetheless son require- protected speech. Vague are unconstitutional laws directed Baer, ments the act harassment be they process. because offend due person protected statute for at a vague P.2d at A due law offends retaliatory purposes do not retributive give process it fails to fair notice of because permissible applications. limit the statute to supply conduct and not does the arbitrary adequate prevent to and standards proscription that the of an We conclude discriminatory A law enforcement. id. See under 18-8-706 “act of harassment” section vagueness prohibitions if its are is void for amount of includes substantial clearly may reasonably not defined and it be supply and that cannot communications susceptible interpretation to than one more limiting for the We construction statute. person id. intelligence. of common See not suffi- also conclude that the statute does penal sufficiently “A definite statute must ciently scope limit of communi- give warning proscribed so to fair of conduct applies. to we hold cations which it persons may guide their accord that actions phrase of in the “act harassment” ... with ingly[,] must define an offense [and] unconstitutionally and statute is overbroad arbitrary clarity prevent and sufficient to it from strike discriminatory statute.” enforcement of the Janousek, However, Although find the term at 1195. “[a] 871 P.2d only is if not vague, “act of harassment” section 18-8-706 is it ‘is law unconstitutional overbroad, unconstitutionally requires not in to person we need in the sense that it only imprecise if of but com validate entire statute one conform his conduct to an standard, objectionable. may prehensible A normative but rather a statute is court sever is of from the whole in the sense that no standard of conduct one section a statute Wilder, specified rid at all.’” Board v. “partial invalidation will the statute of Educ. (Colo.1998) infirmity (quoting Coates 703 constitutional overbreadth.” Cincinnati, 611, 614, 91 City The 402 Ryan, 806 at 940. Assem P.2d General (1971)). engage 214 bly provided by L.Ed.2d We has statute that we S.Ct. only challenge necessary vagueness partial invalidation when sustain facial such ‘impermissibly complete the enactment from invalidation. “where save statute ” Baer, (1999).13 Therefore, vague applications.’ § in all of its C.R.S. (quoting Village at 1233 18-8-706 is invalid P.2d we hold Hoffman provision upon, that it cannot be provides: dent the void 13. Section 2-4-204 legislature enacted presumed have would any provision statute is a court If of a found one; provisions valid without the void competent jurisdiction to be unconstitution- of al, pro- valid determines that the unless remaining provisions are of the statute alone, visions, incomplete are valid, standing appears to court that the unless it essentially incapable being accordance executed in provisions valid of the statute are so with, depen- legislative inseparably with the intent. connected and so Estates, Inc., Flipside, Estates v. vagueness by ute’s deleting overbreadth and Hoffman 489, 497, 455 U.S. 102 S.Ct. 71 L.Ed.2d “intentionally” the word and the “for (1982)). giving testimony any proceeding” official The trial court determined that section 18- from the statute. The trial court reasoned vague 8-706 was because the terms “threat” spe- that the 1992 amendments removed the adequately “act of harassment” were not requirement cific intent from the statute. susceptible multiple defined and were explained The trial court that this lack of a interpretations. common sense In the trial culpability requirement “cast doubt on exact- view, provide court’s the statute failed to fair ly legislature what the wanted the warning concerning pro- what conduct was prohibit,” and that the deletions also “did scribed comport and therefore did not help sweep narrow” of the statute. We process. disagree. due We disagree with the trial court and hold that sufficiently The specific pro- statute is requires, culpable as a mental constitutionally required guidance vide the state, intentionally the defendant act seeking comply individuals with the law specific and that this statute is a intent of- and to law applying enforcement officers fense. statute.14 We believe that our construction sufficiently of the statute type delineates the To determine whether this offense is a illegal behavior —threats action or specific crime, intent we refer to the Crimi- injurious harmful or conduct in retaliation or guidance. nal Code for When a criminal retribution for an individual’s status as one “intentionally,” statute includes the word persons protected by the statute —-for a particular specific offense is “declared to be a intelligence of normal to have fair 18-1-501(5), intent crime.” proscribed. notice what acts are ‘intentionally’ “A acts or ‘with intent’ prosecution prove: must the defendant objective when his conscious injuri- threatened or is to cause the committed harmful or ous conduct protected by towards a proscribed by result defining offense.” (2) statute; the the defendant made a threat Id. The Criminal Code also states that when engaged in the conduct because the defen- a criminal expressly desig- statute does not dant knew or believed that the victim of the culpable state, a nate pro- mental but the threat or conduct was a member of the class “necessarily scribed conduct involves” a cul- protected persons; and the defendant pable state, culpable mental a mental state intended the threat or conduct as retaliation may required for the commission of the or retribution for the perception defendant’s offense or some elements of the offense. of the relationship victim’s pro- to criminal 18-1-503(2); § Gross, see also ceedings. requirements sufficiently These (Colo.1992) P.2d (finding that be- prohibited define the conduct under section ordinarily requires cause crime an act and persons that 18-8-706 so conform their simultaneously accompanying an culpable statute, they present actions to the and state, mental necessarily court should not determining standard for whether enforce- legislative construe ment of the silence arbitrary statute has been on the element of and discriminatory. Hence, we conclude that intent in a criminal statute as an indication section 18-8-706 is not unconstitutionally culpable that no required). mental state is vague. though legislature Even the deleted the REQUIREMENT “intentionally” statute, D. THAT word PROHIBIT- from the the

ED THREATS OR CONDUCT BE statute requires nonetheless intentional con- MADE FOR RETRIBUTIVE OR RE- statute, duct. In the amended the TALIATORY PURPOSES threat or conduct must still be “as made

The trial retaliation or retribution.” As we concluded that the reasoned Assembly 11(B)(1)(c) General above, contributed to the stat- section both the terms 14. phrase, Because we have vagueness stricken the "act of the of the term "threat.” statute, harassment” from the we address testified.15 yet Hearing who on definition had not and “retaliation”

“retribution” person Judiciary A can conduct. H.B. Before the House Com- require intentional retaliatory only mittee, fashion in a retributive or Assembly, act 2d 58th General Sess. objective so. (statement to do (Jan. if she has conscious 23,1992) of Bonnie Benedet- Thus, plain meaning of its the statute the Council). ti, Attorneys By Dist. Colo. to have as her requires the defendant terms sought amending legislature the the objective to inflict harm the intent conscious sweep the statute’s to include within threats specific specific person for a reason— on a yet persons made who had testi- is, specific intent to retaliate or to that the thereby expanded per- fied the class of against a seek retribution protected by Nothing in sons the statute.16 person’s rela- statute because of the interpre- legislative history supports the proceeding. Because tionship to a criminal by deleting tation the word “intentional- requires act defendant ly” require- legislature eliminated objec- specifically conscious with a defined ment that the threat conduct be retaliation tive, mental culpable infer state we relationship person’s for a or retribution though legislature de- even “intentional” proceedings. criminal statute. the term from the leted specific bolstering intent holding that section is our is the stat- hold 18-8-706 Further placement offense. ute’s in the Revised Statutes. is of the “Colorado Section 18-8-706 holding for our support As additional Victim Witness Protection Act 1984.” specific intent the statute’s terms contain This Act legislative we turn to the histo- requirement, designed protect a involved in a According ry amendments. to the intimidation, bribery, tamper- trial from testimony meetings in the con- committee ing.17 18-8-706 is entitled itself “Re- Section amendments, cerning propo- the 1992 against a victim.” Given taliation witness or noted that the stat- nents of the amendment title, in this location 18-8-706 originally required witness ute as written legislature’s pur- intended infer already prohibit- to have before testified people and, pose protect are or who are therefore, is to who conduct occurred this stat- ed thought potential to be actual or witnesses to criminal acts threats ute did not include as proceedings. a victim or criminal against a who was witness Tampering example, tion and the Witness Stat- For former statute failed 18-8-706 discourage only applied gang poten- ute that section 18-8-706 reach threats made was testifying occurring the fu- testified. See tial witness victim from in acts witness has after recog- (Colo.App.1995). We ture: holding today nize conflicts this that our about because of cases The amendment came However, view, in there remains our statement. against witnesses retaliated before where were significant two difference between the statutes. testifying.... especially gang is true in This tampering specifically ad- witness gone and have back told a wit- cases. in which the accused has dresses a situation "you squealed police,” al- to the and ness: approached witness the witness before that testi- actually though person not been called had attempt fies to influence the individual’s in an testify in the case was resolved to because hand, 18-8-706, testimony. the other Section on fashion, was evident the reason another it against prohibits any threat an individual for particular was for that retaliation because being willing testify, regardless of whether the to testify prepared to and had had been testified, and need not or has not be witness has given statements. attempt testimo- an to influence the individual’s Hearing on H.B. Before the Judicia- House Gardner, Therefore, ny. we do not overrule but Committee, Assembly, ry 2d Sess. 58th General only modify to the that it limited the it extent 1992) (statement Benedetti, (Jan. of Bonnie application to threats made of section 18-8-706 Council). Attorneys In such scenar- Colo. Dist. against witness after that had testified. ios, yet "giv[en] where the individual had testimony any proceeding,” in official ("Bribing § a witness vic- 17.See 18-8-703 prosecuted making under threats could not tim”); ("Intimidating a witness or § 18-8-704 original version of the statute. victim”); ("Aggravated § intimidation 18-8-705 (“Tam- victim”); Gardner, of a 18-8-707 People v. witness We note that in the court and victim”). witness or appeals pering with a stated the difference between sec- statutory ty’s Based on our review of the holding “threat,” lan- the term when guage, legislative history properly construed, of the 1992 does not render section amendments, placement unconstitutionally overbroad, and of this stat- 18-8-706 I Statutes, ute separately explain within the Colorado Revised the write fully my more joining specific require- part statute still contains a intent reasons majority’s ment, opinion. which both narrows the statute’s sweep specific types and identifies the indispensable participants Witnesses are in prohibited by

behavior justice our system. criminal The Fifth changes the 1992 to section 18-8-706 do not Amendment to the United States Constitu- any impermissible cause overbreadth or provides tion rights criminal defendant the vagueness. “to against be confronted with the witnesses him” compulsory and “to have process for III. CONCLUSION obtaining witnesses in his favor.” U.S. Const, amend. Y. Without witnesses who 18-8-706, We conclude that section after willing report testify crimes and invalidation, partial our is not unconstitution- defendants, against the state ally cannot enforce vague or overbroad. We construe the its criminal constitutionally. laws The state expressed word “threat” to refer to an intent therefore an highest has interest of the order through to commit harm the commission of ensuring in that witnesses will illegal continue to acts. We conclude that the term “act report willing crimes and will be and able harassment” is overbroad and strike it testify either on behalf of or from criminal but hold that the statute is defendants. penalizes otherwise valid insofar as it retri- retaliatory butive or against per- “threats” challenged The statute here has been en- protected by sons Accordingly, statute. merely preserve acted not safety part reverse in part and affirm in victims, witnesses protect but court, judgment of the trial and we remand administration justice against of criminal the case to pro- the trial court for further those who improper would use means in- ceedings consistent with opinion. this fluence prevent witnesses or them from testi- fying. construed, Properly the term “threat” Chief Justice MULLARKEY concurs in in narrowly section 18-8-706 is tailored to part part, in dissents and Justice achieve the state’s interest in preserving a join HOBBS and Justice RICE climate where witnesses and report victims concurrence and dissent. testify. crimes and Consequently, targets it government may that the regulate in Chief Justice concurring MULLARKEY accordance with the First Amendment. part dissenting part: Having conclusion, reached this I further respectfully I dissent majority’s from the find that the term “threat” in section 18-8- II.B(3) holding “act of 706 does not render the statute unconstitu- harassment” in section tionally merely overbroad it because conceiv- (1999), unconstitutionally overbroad. ably applies to some speech. The my opinion, proper statutory construction constitutionally amount of protected speech and a application considered of the over- might by legislature’s be chilled the use breadth permit doctrine would this court to surely of the term “threat” is de minimis uphold constitutionality the of section 18-8- relation to plainly legitimate the statute’s entirety. 706 in its Therefore, sweep. the defendant’s over- challenge breadth to the term “threat” must I. fail. This upon case calls to us determine phrase “threat, whether the act of harass- II. ment, injury” or act of harm or in section 18- 8-706 unconstitutionally renders the statute majority The concludes that the agree majori- overbroad. While I with the “act of harassment” renders section 18-8-706 maj. op. at The definition Black’s indicates that unconstitutionally overbroad. See range meanings, a agree. I in .the “harassment” can have explain As I cannot 641-43. words, conduct, follow, “annoys” action that majority unnecessarily from or pages that words, conduct, to action that of “act or “causes ignores construction a constitutional ... and Crimi- substantial emotional distress serves found in the Colorado of harassment” range legitimate purpose.” no This of mean- adopts plainly a over- and instead nal Code ings statutory ambiguity raises an fit within that does not broad construction Consequently, language. we must use other of section 18-8-706. the context statutory construction to inter- methods New In- consulting Webster’s Third After pret “act of harassment.” (1986), Dictionary the ma- ternational majority interprets “threat” to mean The jority that “act of harassment” states “vex, trouble, expression of to harm or to “an intent commit means context of statute injury person, property, to or maj. op. 642. Based on its another’s annoy.” See at or rights constitutionally through the commission of an unlawful pro- that certain assessment vex, trouble, Maj. A annoy op. at 639. reasonable inter might or act.” activities tected should, majority pretation of “act harassment” provides as a victim or witness —the therefore, subject to refer to matter similar ordering a labor strike in retalia- examples “act of harm falsely testifying manager a what is meant “threat” and and tion injury.” report Sheely People, to or Colo. informing a of an intent witness Cf. (1912). 136, 138, 129 harass- P. perjury court strikes “act of —the ment” from the statute. “act harassment” interpretation of One with “threat” and “act of reading that is consistent Under a context-sensitive injury” or can be found in section 18- statute, however, harm “act of harassment” should 9-111(1), 6 In section 18-9- merely C.R.S. not understood an action 111(1), legislature the crime of codified troubles, vexes, annoys a or vic- or witness “harassment.” tim, majority errs when it substitutes and if, person with in- text of statute. A commits harassment these words for the actual harass, annoy, or alarm Rather, tent another type of denoted “act of action she: person, he or from its must be determined harassment” “threat, context, (a) shoves, kicks, Strikes, act of harass- or otherwise immediate subjects ment, injury,” physi- him to act of harm or as well as its a or or touches contact; place in the broader or context cal designed encourage report (b) witnesses place In a obscene lan- public directs testify unreservedly. When gesture crimes or guage or makes an obscene contexts, “act of harassment” viewed in these person; another or not be construed mean behavior (c) should in or public about Follows vexes, troubles, annoys. merely or To place; or contrary, phrase should be under- (d) Repealed. charac- connote same stood to actions (e) person, communication with Initiates injury that cause or ter as threats acts telephone, in anonymously or otherwise harm. manner to harass or threaten intended bodily injury property damage, or alternative, an majority also offers comment, request, suggestion, any makes “Words, legal of “harassment”: definition obscene; proposal by telephone which (usu. persis- repeated or conduct or action tent) that, specific person, being at a directed (f) telephone call or causes Makes a alarms, emo- annoys, or causes substantial ring repeatedly, telephone whether in that serves no tional distress ensues, purpose no conversation legitimate purpose.” Black’s Laiv Dictio- conversation; legitimate or ed.1999) of (7th (cited maj. op. in at nary 721 642). in- repeated (g) communications This under- Makes definition offers better privacy of hours that invade the standing “act harassment” means convenient of what enjoy- in and interfere the use Yet another and in of section 18-8-706. even the context private resi- ment of another’s home or simply substituted this definition cannot private property; or dence other for the word “harassment” (h) taunts, insults, challenges, Repeatedly would not be as actionable “acts harass- offensively 18-8-706, communications in they makes ment” under section because to, language coarse another a manner would not constitute the crime of harassment 18-9-111(1). likely provoke disorderly a violent under section response. 18-9-111(1).

§ The harassment statute III. clearly targets actions that are in same The overbreadth doctrine should be used league “threats” and “acts of harm or as resort, to strike a last statute as a Moreover, injury.” narrowly this party challenging where proscribe speech govern- drafted to that the proves beyond a reasonable doubt that the regulate legitimately may ment well- under statute admits no reasonable constitutional recognized exceptions to the First Amend- Here, reasonably interpretation. in- can prohibition against regulating ment’s laws terpret “act of harassment” to mean the Paul, speech. City See R.A.V. v. St. crime harassment defined section 18-9- 383, 2538, 112 S.Ct. 120 L.Ed.2d 111(1). majority’s interpretation Unlike the (1992) (noting government may harassment,” my interpretation of “act of regulate fighting obscenity words and consis- entirety render would of section 18-8-706 tently Amendment); with the also First see constitutional under the overbreadth doc- People, Whimbush v. I respectfully trine. therefore dissent from (Colo.1994)(acknowledging power the state’s majority’s opinion holding of the proscribe fighting likely provoke words “act of harassment” unconstitutional. violence). immediate my opinion, construing “act of harass- join Justice HOBBS and Justice RICE ment” in section to mean crime 18-8-706 this concurrence and dissent. 18-9-111(1) of harassment defined in section give legislature’s would effect to the intent.

§See inter- This

pretation comply would constitutions and State Colorado the United

States, would render section 18-8-706 effec- entirety, produce just

tive in its and would and reasonable result feasible of execution. Cathy DANIELS, Petitioner-Appellee 2-4-201(a) (d). view, §§ Under this Cross-Appellant, harassment, ordinarily crime of which is misdemeanor, a class 3 would be enhanced felony long a class 3 so as the other elements CITY, CITY OF COMMERCE CUSTODI Compare section 18-8-706 met. were RECORDS, Respondent-Ap AN OF 18-9-111(2) 18-8-706(2). Thus, §with pellant Cross-Appellee. against commission harassment a witness No. 97CA1886. or victim in retaliation retribution for the witness or victim’s prosecu- role in a criminal Appeals, Colorado Court tion would constitute offenses under either Div. I. 18-9-111(1) ordinary harassment Feb. 1999. or section 18-8-706 as retaliation witness or victim. Rehearing 6,May Denied Given understanding of “act of harass- Certiorari Denied Nov. 1999.* ment,” proscribe protect- does not expression. ed forms of examples majority ordering offered — threatening report strike and perjury—

* grant following Justice HOBBS would as to ap- Whether the district and the court of peals issue: determining erred in that records main-

Case Details

Case Name: People v. Hickman

Court Name: Supreme Court of Colorado

Date Published: Nov 8, 1999

Citation: 988 P.2d 628

Docket Number: 98SA29

Court Abbreviation: Colo.