*1 Colorado, The PEOPLE of the State of
Plaintiff-Appellant, JANOUSEK,
Richard A.
Defendant-Appellee.
No. 93SA151. Colorado,
Supreme Court
En Banc.
April 1994. *2 Michaelson, Atty., Fifth Ju-
Peter F. Dist. Dist., Meinert, Depu- Timothy dicial A. Chief Barkdoll, ty Atty., Deputy Dist. Dist. Tamara Atty., Eagle, plaintiff-appellant. Vela, Public De- David F. Colorado State Zollars, fender, Deputy A. Barbara State Defender, Silverthorne, Public for defendant- appellee. Opinion
Justice VOLLACK delivered of the Court. appeal prosecution
This was taken Eagle County District to review the Court’s 18-8-306, finding 8B order section C.R.S. (1986),1 unconstitutionally vague over- and federal broad on its face under state constitutions,2 charge dismissal of the and its defendant, Richard Janousek.3 that the is not unconstitu- We hold ruling tional. reverse the of the district We court and remand the case with directions charge. reinstate the Attempt and the Colorado United States Constitution Constitution, 1. "18-8-306. II, §§10 servant.” and 25. article copy appeal of Janou- 2. The record on contains a properly pursuant before this court 3.This case argued Amend- motion in which he First sek’s (1987). 4—102(l)(b), § 6A C.R.S. 13— vagueness based on the ment overbreadth and
H91 I. you’re ... know a CROOK. You We (Janou- defendant, Richard Janousek DAMNED BASTARD! How many other sek), disorderly charged was conduct you innocents have screwed: Bet lost Municipal based on an altercation
Vail Court *3 years you ago! count Does a dork like of 1990. that occurred on New Year’s Eve get away think can with he MURDER? guilty and was sen- Janousek was found just your might up You end own victim! totaling pay to fines and court costs tenced forfeited, After a cash bond was $300 $325. course, you pay ... I’ll make sure for Of in stay granted of execution was for $25 you’ve I all of the torment caused. remaining pay to the fines. Janousek failed you again.... want to do it wouldn’t fines, Cyrus municipal Judge and court G. why Allen a notice to cause issued show someone, you if contempt in Next time abuse there is
defendant should not be held time, everyone a next consider that not has appear to in court on court. Janousek failed you 28,1991, the same for abuse. tolerance When June and a warrant was then issued just get screwing around to someone it contempt for of court. was arrest- Janousek may pummel you be his survival instinct guilty contempt ed and found on October Shaming violent back. someone can cause An 1991. additional warrant fee was $30 results; just any psychiatrist. ask Point- Janousek, against bringing assessed his total blank, you you dig. grave must lie in the 24, 1991, fine to Between October and $55. reality in pervert You should never order July Judge granted Allen several crazy; they may up to drive someone end 2,1992, stays July the munic- fine. On sharing you way you in it with never ipal court issued another warrant for Janou- Remember, everything you say intended. appear at sek’s arrest based on his failure to against you. Every- can and will be used contempt hearing. the final Janousek then thing you can and will be used do three offi- wrote a letter addressed to you. your Better look over shoulder. cials, Allen; including Judge Phillips, Ron you’ve damage Look at all the done. Manager; Hughey, Ken Town Vail Vail that Chief of Police. The letter demanded with, The defendant closed the letter judge “for all the reimburse Janousek soon, you Frankenstein Janousek. See judge] torment caused” and take certain [the you The monster created now turned actions in favor of Janousek.4 Janousek’s against you[.] pertinent part, letter states letter; sending never pay up or face a much Janousek denied You must now rather, crap he that levy, your I’ll no maintains his writ- pricier as tolerate another, merely Judge way I’ll GUAR- this letter was criticize longer. One ruling disorderly con- You could make it Allen’s Janousek’s you pay. ANTEE that you if duct case. Janousek contends that he did yourself, for insist. expensive VERY just directly Judge any everything, threaten Allen or you might give up In fact since, do, per- other official on the date defen- all for the you have me as would received, Judge your dant’s letter was sent and you up in mind.... version cooked goods response judge to be reference to canned was a a bill to the 4. submitted Janousek including litigation, Judge ordering cost of reimbursed for the Allen’s habit of defendants in his bail, legal expenses, edu- goods the return of travel to donate courtroom canned to a charita- himself, filing defending expenses cation organization part ble of their Jan- sentence. fees, wages. also re- copying Janousek and lost demanded, ousek "See that Vail sends a check to up putting pass for with quested ski a "life-time Courthouse, Eagle County [my] in care " Judge Allen your and indicated bullshit” pronto! case ... needy. The goods send 200 canned should jurisdiction change II. longer Allen no had further verdict or sentence.5 Janousek court argues that the district Janousek that, by writing “Next time abuse claims concluding that section 18-8- was correct time, someone, consider if there is a next on its face and 306 is unconstitutional everyone the same tolerance for that not has constitutionally applied cannot be abuse,” Judge personally intend he did not Janousek avers defendant. Allen harm. pro- facially overbroad because the statute is impermissibly in- therein hibitions contained charged attorney Janousek The district constitutionally protected rights fringe upon 18-8-306, 8B a violation section speech expression under of freedom of (1986).6 April Janousek C.R.S. On Amendments to the the First and Fourteenth *4 grounds case on the to dismiss the moved article Constitution and under United States on is unconstitutional that section 18-8-306 10, II, the Constitution. section Colorado cannot be consti- face and that the statute its statute further claims that the Janousek tutionally applied to him. The district court pure speech since criminal a form of makes day. granted to dismiss that same the motion to “threaten” the letter was not intended unconsti- that the statute was The court held anyone. not find the defendant’s We do findings. made no further On tutional but arguments persuasive. 5, 1993, conducting hearing, the April after ruling its earlier district court reaffirmed A. found the ease.7 The district court dismiss on its face section 18-8-306 unconstitutional resolved is whether The first issue to be reprisal” and “de- the words “economic since unconstitutionally on is overbroad the statute further vague. are The district court ceit” applied to Janousek in this its face8 and as not contain ease; the letter did determined unconstitution- and if the statute is not Judge overbroad, any ally Allen that direct threats we will then examine vagueness. justified prosecution. issue of facial criminal 45(d) requires request written motions to be did not Crim.P. Janousek maintains that he 5. any pending judge days specified matter still relief from the on the date served at least five before the letter was the court. At the time period before written, however, hearing is fixed for the “unless a different paid his fine Janousek had not by rule or order of the court.” disorderly there was warrant for outstanding conduct and adequate prepara- rule to allow time for this municipal court for his arrest in the response People the motion. See tion in contempt citation. on his second based Court, 159, 887 District 189 Colo. (1975). 18-8-306, (1986), provides: 8B C.R.S. 6. Section Although the district court did not send notice Any attempts person who date, hearing days prior five to the this at least deceit means of or servant given ruling procedural error is harmless our on reprisal against any or economic of violence merits of this case and the result of this thereby property, person with the intent or opinion. decision, public servant’s alter or affect the vote, concerning any matter opinion, action or People contend that Janousek lacks stand- 8.The performed by him considered or which is to be constitutionality ing challenge of the stat- body a mem- agency of which he is or the or grounds. We need not ber, ute on facial overbreadth felony. 4 commits a class since, standing People address the issue copy attorney of the first received 7. The district 599, Batchelor, (Colo.1990), P.2d 601 n. 2 we 800 1, copy Thursday, April 1993. A motion on that the Colorado doctrine of stand- determined signed to the district was not delivered order ing challenges substantially for overbreadth Friday, April attorney’s office until inquiry into the statute’s over- similar to court immediate- p.m. the district 5:00 Because breadth, standing doctrine has be- and that motion, prosecution main- ly on the ruled complex than the overbreadth doc- come more opportunity to they an did not have tains that respond trine. the motion. the merits of to and address prosecution had that the maintains Janousek present opportunity evidence adequate 5, 1993, support its argument April on motion. objection to defendant’s
H93
statute,
conceivably
“The doctrine of overbreadth is de
could
violate that
state,
signed
prevent
regulates
it
therefore it
when
is overbroad on its face. Janou-
speech,
argues
sek
unprotected
encroaching upon
language
from
that the broad
of the
gives prosecutors
protected
beyond
range
communications” that are
of situa-
Weeks,
constitutionally protected
tions which
com-
the statute’s reach.
197
175, 179,
(1979).
attempt-
munications could be
94
A
construed as
Colo.
P.2d
to influence a
servant
facially
and result
overbroad statute will be struck down
prosecution under section 18-8-306.9
substantially infringes upon
as invalid if it
constitutionally protected speech. Broadrick
light
principles
of the basic
of the over-
Oklahoma,
601, 615,
413 U.S.
doctrine,
breadth
we find that section 18-8-
(1973);
L.Ed.2d
Whim
facially
306 is not
overbroad. The
(Colo.
People,
bush v.
challenged in the
facially
statute is not
over-
1994).
analyzing
When
a claim that section
sweep
broad since the statute does not
so
overbroad,
18-8-306 is
we must examine
comprehensively
pro-
as to include within its
prohibit speech
statute tries to
scriptions constitutionally protected speech.
beyond
scope
governmental
that lies
clearly prohibits
person
Section
18-8-306
Whimbush,
1247-48;
regulation.
Bolles v.
using
from
deceit
threats of violence or
*5
80,
People, 189 Colo.
541 P.2d
82
reprisal
public
economic
to influence a
serv-
(1975).
regulates
If a statute
conduct and
narrowly
ant’s actions. The statute is
tai-
merely speech,
not
then “the overbreadth of
People
proscribe
lored to enable the
to
real,
only
a statute must not
be
but substan
type of conduct that
to
rises
a level of crimi-
well, judged
tial
as
relation to the statute’s
culpability.10
nal
plainly legitimate sweep.” People In the In
J.M.,
(Colo.1989)
219,
terest
768 P.2d
224
Nor does the statute chill the exercise
Broadrick,
615,
(quoting
ty justice of the means bending to of this nature. can’t be threats B. level, personal it made me do some On a conclusion, however, In view of this serious, as to wheth- serious consideration still defendant’s additional we must reach judge. being er to continue I want that section 18-8-306 overbroad claim Colo, Weeks, applied to him. See 95. Janousek claims on was ren- final decision this case expression prohibits speech or with 16th, May in—on about 1991. And dered requirement further action. Jan- out get year three type a letter of this that, if be further contends he can ousek quite unusu- after the decision was months letter to a prosecuted a critical written al. - *6 jurisdiction judge longer had who no sentence, change the verdict or then Judge letter to Allen falls with- Janousek’s writing thinking a critical letter to person or proscription attempting in the statute’s prosecution fear and public official could public servant. letter influence a Janousek’s rights have their First Amendment would sys- court his frustration focuses on chilled. unjustly feeling tem and his that he was treated. (Colo. Norman, People
In v. 70S 1986), presented you’re we first with a chal You were We know CROOK. validity lenge many to the of section 18-8-306. other BASTARD! How DAMNED to determine the consti This court declined you you have Bet lost innocents screwed: tutionality of this statute because we conclud you ago! like years count Does a dork support did not defen ed that evidence away get think he can with MURDER? In conviction under the statute.11 dant’s just up might your You end own victim! Norman, we that the critical elements stated you pay I’ll for ... course make sure Of (1) attempt offense are an to influence of this you’ve I all torment caused. of the (2) by by means of deceit or public servant you again.... it wouldn’t want do (3) reprisal or economic violence public alter or affect the with the intent to or action.
servant’s decision King you I thought of when I heard ‘justice by by hook or verdict and its protect of the statute your all perversion or in- crook.’ It was brand public servants from undue influence Norman, defendant, permit an infer- People this comment did not a revenue mined that 11. In Service, beyond that the defen- al- ence a reasonable doubt Revenue was officer of Internal employee’s alter or single dant intended to decision, affect leged to have comment to made an at- therefore did not establish employee office: that he of the court assessor's tempt part of the employee problems defendant lots of in the on could cause the Norman, 1269- warranty 703 P.2d record the servant. event she was unable to (Colo.1985). deter- had submitted. We deed defendant
H95
again....
you
A
over
nut
like
would
III.
probably say that
A-
[the verdict] was
Relying
on
in New
Times
York
happened
your
OKAY.
it
to be
Unless
Sullivan,
264, 269,
376 U.S.
face!
beaten
(1964),12
The letter contains numerous of determined that the words “deceit” and “eco- thought contemplated violent action. reprisal” nomic render the statute unconsti- Implicit explicit in Janousek’s letter is tutionally vague because the are words threat of harm if he does not receive defined the statute. The court reasoned monetary compensation from the court. For facially the statute is unconstitutional writes, example, Janousek “it because strikes down the statements that could per- be decided to be deceitful one pay up You must now or face a much another, and that[ ] [are] son denied both pricier levy, your I’ll crap as tolerate no may of whom be officials.” Because another, longer. way One I’ll GUAR- the district court did not find a direct threat you pay. ANTEE that You could make it letter, granted of violence in Janousek’s it his expensive yourself, you VERY if insist. motion to dismiss. you might just In give up everything, fact do, you per- would have me all for the you addressing challenge up your version cooked to a mind.... unconstitutionally vague,
statute as
we are
guided by
principles
several basic
of statuto
someone,
you
Next time
abuse
if there is
ry
presumed
construction. A statute is
to be
time,
everyone
a next
consider that not
has
constitutional,
party challenging
and the
its
the same tolerance for abuse. When
validity
proving
has the burden of
unconsti
get
screwing
just
around to
someone it
tutionality beyond a reasonable doubt. Peo
may
pummel you
be his survival instinct to
(Colo.
Gomez,
ple v.
843 P.2d
Shaming
back.
someone can cause violent
1993);
People Rosburg,
805 P.2d
results;
just
any psychiatrist.
ask
Point-
(Colo.1991);
Revello,
blank, you
grave you dig.
must lie in the
(Colo.1987).
inquiry
The essential
pervert reality
You should
never
order
fairly
whether the statute
describes the con
crazy; they may
up
drive someone
end
*7
persons
duct forbidden so that
of common
sharing
way you
it with
in a
never
intelligence
readily
can
understand its mean
Remember, everything you say
intended.
Gomez,
application.
and
843 P.2d at
you.
against
Every-
can and will be used
penal
A
sufficiently
1322.
statute must be
thing you
do can and will be used
give
warning
proscribed
definite to
fair
of
you.
your
Better
look over
shoulder.
persons may guide
conduct so
their ac
damage you’ve
Look at all the
done.
accordingly. Regency
Corp.
tions
Servs.
v.
Comm’rs,
1049,
County
Board
819 P.2d
language
The tone and
of the letter evince a
of
(Colo.1991);
Batchelor,
People
1055
v.
800
threatening
language suggests
manner. The
(Colo.1990).
599,
Further,
penal
P.2d
603
squarely
conduct
is
within the statute’s
proscriptions
protected by
statute must define an offense with sufficient
and is not
the
clarity
prevent arbitrary
First Amendment. The statute is therefore
to
and discriminato
Gomez,
applied
ry
constitutional as
to the defendant.
enforcement of the statute.
843
Sullivan,
mind,
quotes
although
always
perfect
12. The district court
New Yorkv.
one’s
not
with
taste,
P.2d
411, 415 (Colo.1985). However,
felony.
4
“a crim
a class
P.2d
precise
inal statute
not contain
defini
need
Applying
statutory
rules of
construc-
these
phrase constituting
every
of
or
tions
word
tion,
note
“eco-
we
that neither “deceit” nor
Schoondermark,
of
element
the offense.”
reprisal” is defined in the statute.
nomic
Castro,
(citing People
P.2d at
657
699
416
words, however, are
of common
Both
terms
(Colo.1983);
Nissen,
People
650
usage,
intelligence
people
ordinary
and
(Colo.1982)).
P.2d 547
guess
meaning.
not
at their
there-
need
We
dictionary
to
of “de-
fore refer
the
definition
phrases
Words and
used
statutes
determining
reprisal”
and
ceit”
“economic
according
gen
interpreted
are to be
to their
ordinary
plain
meaning of these
and
erally accepted meaning,
court has
and the
According Dictio-
words.
Black’s Law
duty
provide
practical
a reasonable and
(6th
1990), reprisal
nary 1302
ed.
is defined
construction to the
so that the stat
“any
person
one
action taken
either
vagueness. Rosburg,
ute is
void for
[perceived]
for
or
spite
a[ ]
or as
retaliation
P.2d at 439.
wrong
Dic-
real
another.”13 Black’s Law
tionary
“[a]
defines deceit as
fraudulent
A specific intent element contained
by one
deceptive misrepresentation ... used
being
may prevent
a statute
a statute from
another,
persons
more
to deceive
trick
or
Gomez,
challenged
vagueness.
for
843 P.2d
facts,
ignorant
the true
to the
who is
Gross,
1325;
see
prejudice
damage
party imposed
(Colo.1992). As the United States Su
Similarly,
Id.
upon.”
at 405.
in Webster’s
observed,
preme Court has
Dictionary
Third New International
Court, indeed,
recognized
has
that the
(1986),
trick,
“any
deceit
defined as
collu-
requirement
specific
intent
to do
sion, contrivance,
representation, or un-
false
may
prohibited
those conse-
act
avoid
practice
derhand
used
defraud another.”
quences
may other-
to the accused which
vague or
statute
wise render a
indefinite
Contrary to the district court’s as
invalid_
im-
punishment
[W]here
sertions,
sufficiently specific
so
statute
only
knowingly
an act
posed is
done
provide
constitutionally required
as to
doing
with
that which
guidance
seeking
comply
to citizens
prohibits,
cannot be
statute
accused
law,
or
law enforcement officers seek
warning
from lack of
said
suffer
view,
ing to
the statute.
enforce
our
knowledge
the act which he does is a
clearly
type
delineates the
of con
violation of law.
deceit,
reprisal, or threats of
economic
duct —
subjects
person
to criminal
violence—that
States,
91, 101-02,
Screws United
U.S.
*8
(1945) prosecution. The statute defines the offense
1031, 1035-36,
intent alter or the statute is not affect decision, vote, requires prosecution prove opinion, or action since it servant’s specific be con- acted with the concerning matter which is to defendant by agency public “deci- performed sidered or him or the intent influence servant’s inference, monetary by reprisal, refers to retaliation that is in nature. 13. Economic sion, vote, opinion, concerning any action specially or Justice MULLARKEY per- concurring: is to matter which be considered or by by engaging
formed
him”
in deceitful
agree
I
majority opinion
with the
using
conduct or
threats of violence or eco-
18-8-306,
(1986),
section
8B C.R.S.
is not
reprisal against
nomic
another.
unconstitutionally vague and overbroad on its
face
violation of the state and federal
We do not find section
18-8-306
separately, however,
constitutions.
I write
vague
ambiguous,
be either
or
and therefore
disagree
I
analysis
because
with the
em-
conclude that the statute is constitutional.14
ployed by
majority
part
II.B. of its
Colo,
Weeks,
178-79,
People v.
See
view,
opinion.
my
In
we should not decide
(rejecting
void-for-vagueness
P.2d at 94
the statute is unconstitutional as
challenge
portion
telephone
to a
of the
applied
styled
Although
to Janousek.
as an
by determining
harassment statute
that the
applied” challenge,
complaint
“as
Janousek’s
telephone
defendant’s
calls to a woman dur
fact,
is not
constitutional
nature.
both
ing which the defendant described various
Janousek and the trial court concede that
fairly
sex acts could be
characterized as fall
punished
Janousek could be
under this stat-
ing
proscription
within the statute’s
of ob
if
ute
his letter
constitutes
“threat of vio-
communication);
Randall,
scene
meaning
lence” within the
of the statute. As
(Colo.1985) (upholding
question of constitutional law. IV. provides person Section 18-3-306 that a guilty attempting public to influence a We find has not met his defendant if servant he or she: proving unconstitutionality beyond burden of Consequently, a reasonable doubt. this [Attempts any public servant court concludes that section 18-8-306 is nei- by by means of deceit or violence vague, overbroad, facially ther nor it nor is reprisal against any person or economic or applied particular overbroad as to this defen- property, thereby the intent to alter clarity possesses decision, vote, dant. The statute sufficient public or affect the servant’s apprise person intelligence opinion, concerning any of common or action matter by meaning application. performed its are which is to be considered or terms agency body him or the of which he is a unambiguous meaning. clear their member. Accordingly, the trial court’s we reverse or- dismissing der the case and remand the case (1) The critical elements of this offense are
to the trial court with directions to reinstate (2) attempt to influence a servant charge against the defendant. means of deceit or threat of violence or (3) reprisal
economic with the intent to alter MULLARKEY, J., concurs, specially or affect the servant’s decision or ac *9 ERICKSON, J., joins Norman, special 1261, 1269 in the tion. v. 703 P.2d (Colo.1985). problem concurrence. The in this ease con- servant, properly 14. An examination of similar statutes from other found that the statute related jurisdictions supports further our conclusion that proscribed performance the threats to the of a example, the statute is constitutional. For stated, public duty when it "The elements of the State, 1255, (Fla.Dist.Ct. Bragg v. 475 So.2d 1257 require proof crime of threat of unlawful harm to court, Dist.1985), App. construing § 5th the 838. public person threat- a servant to influence the 1(3)(b), (1989), 02 Florida Statutes the statute do, do, discretionary ened to or not some act.” public which condemns threats of harm to a 1198 element, statements, the in the context the viewed the critical means
cerns
second
written,
spoken
consti
they
which
were
attempted.
the
was
which
influence
Watts,
708,
at
tute a
threat.”
394 U.S.
“true
Although
submitted
“bill”
Janousek
Welch,
1401;
745
89
United
S.Ct.
States
demanding
such
judge
outlandish items
the
(10th
denied,
Cir.1984),
614,
F.2d
cert.
618
seriously
pass, no one is
a life-time ski
as
1006,
1364,
384
470
84 L.Ed.2d
U.S.
charge
this
maintaining that
basis of
is
the
(1985);
Dysart,
705 F.2d
States
United
Rather, the crit-
reprisal.
of economic
threat
1247,
(10th Cir.),
denied, 464 U.S.
1256
cert.
statutory language involved
this case
ical
(1983).
934, 104
339,
A
“unconstitutional as ERICKSON, J., joins special in the my opinion, adopted the trial court concurrence. unduly interpretation phrase narrow requiring “threat violence” it will fall
threat be “direct” before within contexts,
scope In other of section 18-8-306. “threat” have defined the term to mean
we inju- or intent to cause
statement person,
ry or harm another have Peo-
required the threat to be “direct.” See Hines, (Colo.1989);
ple v. People, 174 Colo.
Schott (1971). Instead, inquiry the critical *10 purposes is
for First Amendment