Motion for Discretionary Review, ie Roger Keith Haynes case

COMMONWEALTH OF KENTUCKY

KENTUCKY COURT OF APPEALS

CASE NO. ____________

On appeal from Breckinridge County Circuit Court Case No. 15-XX-00003

JOHNATHAN MASTERS,

            MOVANT

V.

COMMONWEALTH OF KENTUCKY,    RESPONDENT

MOTION FOR DISCRETIONARY REVIEW

Comes the movant, Johnathan Masters, and pursuant to CR 76.20 and all other applicable authority moves this court to grant discretionary review of a decision of the Breckinridge County Circuit court. As grounds for this motion, movant states the following:

RECITATIONS REQUIRED BY CR 76.20(3)

1. Movant is Johnathan Masters represented by Ronald Joshua Pence, Assistant Public Advocate, Department of Public Advocacy, 226 South Mulberry Street, Elizabethtown, KY 427011. Respondent is the Commonwealth, represented by Brett Butler, Breckinridge Assistant County Attorney, 213 South Main Street, Hardinsburg, KY 40143
2. The decision sought to be reviewed is the decision of the Breckinridge Circuit Court entered on October 21, 2015;
3. The Appellant has not sought bail on appeal.

(d) No petition for rehearing or motion to reconsider is pending in the Breckinridge Circuit Court.

(e) No supersedeas bond nor bail on appeal has been executed.

STATEMENT OF MATERIAL FACTS

At the trial in Breckinridge District Court, Principal Keith Haynes testified that he and Johnathan Masters, the Movant, had a disagreement on December 16, 2014 at Cloverport Independent Schools in Cloverport, KY. The subject of the conversation was whether Principal Haynes would hand out some surveys to the students that Mr. Masters had constructed regarding American Civics. The surveys were for a Masters’ Degree program in which the Movant was enrolled. When the disagreement escalated, Principal Haynes stated that the Movant used profane language and offered for the two to settle it physically outside, before leaving and never returning to the school (V.R. 6/26/15 10:20:45 – 10:21:40; 10:42:05 – 10:43:25). By all accounts, the entire discussion was brief and over in a matter of minutes. (V.R. 6/26/15 10:40:00 – 10:56:00)

Based on this encounter, Principal Haynes contacted the Breckinridge County Attorney’s office to file a criminal complaint against Mr. Masters. On December 16, 2014, the Movant was charged with Abuse of a Teacher under KRS 161.190, which is a Class A misdemeanor.

The Movant filed a motion to dismiss the case based on the unconstitutionality of KRS 161.190 on June 2, 2015. The Movant argued that the statute was unconstitutional based on its vague and overbroad language, and because, as applied in his case, it infringed upon his First Amendment right to free speech. The Hon. Judge Embry overruled the motion after it was presented at the final pretrial conference on June 9, 2015. See Calendar Order. At the beginning of the trial, the Movant’s attorney renewed his motion, and Judge Embry confirmed that the motion was overruled (V.R. 6/26/15 08:54:40 – 08:54:55). After the motion was overruled, a jury found the Movant guilty of Abuse of a Teacher at a trial on June 26, 2015. The Movant was sentenced to pay a fine of $500. Upon appeal, the district court judge’s ruling was affirmed by Hon. Judge Butler in Breckinridge Circuit Court on October 21, 2015.

QUESTION OF LAW

1. Is KRS 161.190 unconstitutional, both as enacted and as applied in the instant case, due to its vague and overbroad provisions, which violate the First, Sixth, and Fourteenth Amendments of the United States Constitution and Sections 1(4), 2, 8, and 11 of the Kentucky Constitution?

REASONS FOR GRANTING REVIEW

1. KRS 161.190, in its present construction, is unconstitutionally vague and fails to give a person of ordinary intelligence “fair notice”.

KRS 161.190 defines the Class A misdemeanor offense of abuse of a teacher as follows:

Whenever a teacher or school administrator is functioning in his capacity as an employee of a board of education of a public school system, it shall be unlawful for any person to direct speech or conduct toward the teacher or school administrator when such person knows or should know that the speech or conduct will disrupt or interfere with normal school activities or will nullify or undermine the good order and discipline of the school.

None of the statute’s terms are defined, failing “to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” United States v. Harriss, 347 U.S. 612, 617 (1954). The Supreme Court has said that “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Id. Because this statute leaves so much undefined, it is virtually impossible for an individual to determine when he has committed a criminal offense.¹ The circuit court judge determined that online dictionary definitions of the statute’s terms (“disrupt” and “interfere”) were adequate enough to clarify the statute’s ambiguous language. This suggests that the common parlance of words would suffice enough to protect the sanctity of First Amendment rights. The opposite is true when even the dictionary definitions leave so much room for interpretation.² Therefore, the statute is unconstitutionally vague, violating the Sixth and Fourteenth Amendments to the U.S. Constitution and Sections 2 and 11 of the Kentucky Constitution.

2. The unconstitutional vagueness of KRS 161.190’s language also violates the Equal Protection clause through its potential for arbitrary enforcement.

The statute’s lack of definition creates the potential for selective prosecution and inconsistent enforcement throughout the Commonwealth, which violates the Defendant’s equal protection rights that are set forth in the Fourteenth Amendment to the federal constitution and Section 3 of the Kentucky Constitution.³ The danger is greater when the mens rea that triggers liability under the statute requires than the person charged knowingly performing the conduct that is criminalized (“should know”). The circuit opinion made no mention of whether KRS 161.190 violated the Equal Protection clause.

3. KRS 161.190’s language is overly broad and criminalizes speech and conduct that should be protected by the First Amendment.

The statute is overly broad in violation of the First and Fourteenth Amendments to the U.S. Constitution and Sections 1(4) and 8 of the Kentucky Constitution.  The statutory language is so ambiguous that it “criminalizes not only unprotected expression but expression protected by the First Amendment.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 397 (1992). Potentially, a parent could violate this statute by knocking on a classroom door and “disrupting” a class that is in session. Additionally, a parent cheering too loudly at a football game could be “interfering” with a “school activity”. Because this statute “may deter the legitimate exercise of First Amendment rights” by its loose construction and overly broad liability, it should be held unconstitutional for chilling speech which otherwise be protected under the aforementioned constitutional provisions. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975). As this statute can punish a defendant “criminally for the use of words alone”, it must be “carefully drawn or authoritatively construed to punish only unprotected speech”. Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408, 414 (1972). The above examples were only limited by the attorney’s imagination, and the statute could easily swallow up even more speech that should be protected. The circuit court was satisfied that KRS 161.190 was “carefully drawn” but offered no explanation for how it reached that conclusion. See Circuit Opinion, Page 4.

4. Based upon the facts in the instant case, KRS 161.190 was also unconstitutionally applied against the Defendant.

Under the facts alleged at the Movant’s trial, the statute is unconstitutionally applied. At trial, Principal Haynes stated that he saw no students in the office when the statements were made (V.R. 6/26/15 10:44:00 – 10:44:05). He also stated that the nearest classroom was “at least twenty yards away” (V.R. 6/26/15 10:44:36 – 10:44:40). If no students could hear the statements, it is unclear how the speech could “nullify or undermine the good order and discipline of the school”. In fact, the only person who heard any part of the Principal’s encounter with Mr. Masters was Ms. Alysia Booth, the school counselor. She stated at trial that the only noise that caused her to leave her office was a “light thunk” (V.R. 6/26/15 10:53:55) (possibly the lobby door closing), and that her entire exposure to the two gentlemen’s encounter was “ten or fifteen seconds”. (V.R. 6/26/15 10:55:10 – 10:55:23). Mr. Masters had already left when she stepped out of her office (V.R. 6/26/15 10:54:38 – 10:54:43). The minimal effect of Mr. Masters’ purported statements on Ms. Booth’s ability to work indicates that his speech did not “nullify or undermine the good order and discipline of the school”.

At trial, Principal Haynes stated that he put the school on a “soft lock-down” after the incident occurred (V.R. 6/26/15 10:22:25 – 10:22:30). However, Ms. Booth later admitted that the soft lock-down neither affected what time she nor the children left the school premises that day (V.R. 6/26/15 10:55:23 – 10:56:00). Therefore, even with the Principal’s testimony, it does not appear Mr. Masters’ conduct and speech disrupted or interfered with the school’s “normal activities”. Furthermore, without a definition of what “normal school activities” are, there is no indication that the Movant’s statements disrupted or interfered with any applicable school functions.

5. The Defendant’s speech and conduct, even if subjectively offensive, was still protected by the First Amendment and did not rise to the level of “fighting words”.

While the Movant is alleged to have used profane language in his discussion with Principal Haynes, his speech and conduct did not rise to the level of “fighting words” and was still constitutionally protected under the First Amendment. According to Commonwealth v. Ashcraft, 691 S.W.2d 229, 231 (Ky. Ct. App. 1985), “words which merely offend, disgrace, anger or frustrate may not be prohibited in violation of one's right to freedom of speech” (citing Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). “Fighting words”, on the other hand, are “words which by their very utterance inflict injury or tend to incite an immediate breach of the peace” and are not protected by the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 770. Mr. Masters’ alleged speech and conduct, while inappropriate, has not been proven by any evidence to have aroused any teacher or student to violence or to have incited an audience breach the peace.⁴ Mr. Masters made a few poorly chosen comments and was out the door in a matter of minutes. Whatever negative effect it had on Principal Haynes was limited to his filing a criminal complaint and not resorting to violence. Furthermore, as the United States Supreme Court stated in Perry Educ. Ass'n. v. Perry Local Educator's Ass'n., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), there are “numerous cases standing for the proposition that First Amendment rights are not magically given up when one steps through the schoolhouse door.”

Conclusion

Based on the foregoing, the Movant respectfully requests that this Court grant his Motion for Discretionary Review.

Respectfully submitted,

___________________________

Ronald Joshua Pence

Assistant Public Advocate

Department Of Public Advocacy

226 South Mulberry Street

Elizabethtown, KY 42701

(270) 766-5160

NOTICE

All interested parties will please take notice that this Motion for Discretionary Review will be filed in the Office of the Clerk of the Kentucky Court of Appeals on the 20th day of November, 2015.

CERTIFICATE OF SERVICE

I hereby certify that a true copy of this motion was delivered by hand or first class mail, postage prepaid on the 20th day of November, 2015, to:

Brett Butler

Breckinridge Assistant County Attorney

213 South Main Street

Hardinsburg, KY 40143

Cindy Rhodes

Circuit Clerk

Breckinridge County Justice Center

111 West 2nd Street

P.O. Box 111

Hardinsburg, KY 40143

David Williams

Commonwealth Attorney

125 East White Oak Street

Leitchfield, KY 42754

Jack Conway

Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601

1 See Musselman v. Commonwealth, 705 S.W.2d 476, 478 (Ky. 1986) (“The problem here is that the statute itself has no such measuring stick, so that, consistent with its terms, in a broad range of cases persons may be found guilty of its violation in circumstances that will infringe constitutional guarantees of free speech.”)

2 “The dictionary defines ‘disrupt’ as ‘to cause (something) to be unable to continue in the normal way; to interrupt the normal progress or activity of (something),’ and ‘interfere’ as ‘to be involved in the activities and concerns of other people when your involvement is not wanted’”. Circuit Opinion, page 3 (citing Merriam-Webster.com. Merriam-Webster, n.d. Web. 20 Oct 2015.)

3 See Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983) (“Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine “is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith v. Goguen, 415 U.S. 566, 574, 94 S. Ct. 1242, 1247, 39 L. Ed. 2d 605 (1974). Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”)

4 See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 reh. den. 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124 (1971).