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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANK W. TURNEY, )
) Court of Appeals No. A-5852
Appellant, ) Trial Court No. 4FA-94-3007 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1478 - August 9, 1996]
______________________________)
Appeal from the District Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: J. John Franich, Assistant Public
Advocate, Fairbanks, and Brant G. McGee, Public
Advocate, Anchorage, for Appellant. Joseph S.
Slusser, Assistant District Attorney, Harry L.
Davis, District Attorney, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Frank W. Turney appeals his convictions for second-degree
trespass, AS 11.46.330(a)(1), and disorderly conduct, AS 11.61.-
110(a)(2). Turney was prosecuted for these offenses as a result of
his protest activities outside the state courthouse in Fairbanks.
On appeal, Turney asserts that his protest activities were protected
by the First Amendment to the United States Constitution and Arti-
cle I, Section 5 of the Alaska Constitution. For the reasons
explained in this opinion, we reverse Turney's trespass conviction
but we affirm his disorderly conduct conviction.
Since 1990, Turney has been demonstrating at the Fairbanks
courthouse in support of the "Fully Informed Jurors Association".
Turney believes that jurors should be told of their power to engage
in "jury nullification" þ a jury's effective power to disregard a
trial judge's instructions and refuse to enforce laws they disagree
with.
In March 1994, Turney acquired a bullhorn, and his
demonstrations both inside and outside the courthouse grew
increasingly aggressive and disruptive. Ronald J. Woods, the Area
Court Administrator for the Fourth Judicial District, received
complaints from both jurors and court staff that Turney had
disrupted proceedings with his protests. Among his other activi-
ties, Turney would stand outside the wall of the jury assembly area
and yell with his bullhorn. At other times, Turney would bleat like
a sheep at the prospective jurors and he would beat on the doors of
the room, disrupting not only the jury assembly proceedings but also
other court proceedings in adjoining areas of the building.
Brenda Richard, a jury clerk, testified that the court's
jury orientation sessions were often disrupted by Turney's loud
protests outside the jury assembly room. When Richard tried to
deter Turney by closing the window blinds, Turney would yell even
louder and would come closer to the building or would go around to
the glass door to the jury assembly room (which had no blinds).
Rita Roy, another jury clerk, testified that Turney engaged in
protests outside the juror assembly room every day that jury trials
were held in the courthouse. His stridency was not only disruptive
and distracting to the potential jurors, but also so distressing to
Roy personally that it became emotionally difficult for her to do
her work.
On the morning of May 9, 1994, Woods hand-delivered a
letter to Turney concerning his protest activities. In this letter,
Woods told Turney that he was welcome to enter court property "to
peaceably conduct court business or to observe court proceedings".
Woods also told Turney that he could continue to use the sidewalks
encircling the courthouse as a site for his protests, since these
sidewalks "are a traditional public forum, subject only to
reasonable time, place, and manner restrictions". However, Woods
informed Turney that he was now "prohibited from entering or
remaining on court property to engage in protest activities,
picketing, or pamphleteering". Woods also told Turney that he was
"prohibited from making excessive noise that disrupts or interferes
with court business".
Approximately two months later, on the morning of July
13th, Turney was again outside the jury assembly room of the
Fairbanks courthouse. Using his bullhorn, Turney shouted at the
windows of the jury assembly room and bleated like a sheep. Brenda
Richard was showing a juror orientation videotape to the potential
jurors. She testified that Turney's amplified shouting made it
difficult for prospective jurors to listen to the videotape and to
hear Richard's instructions. She noted that prospective jurors were
"distracted" by Turney's shouting and that some of the prospective
jurors questioned her about Turney.
Richard called the Judicial Services Section of the Alaska
State Troopers to complain that Turney was again using a bullhorn
outside the jury assembly room. One of the troopers went outside
and asked Turney to leave. Turney complied with this request. On
the basis of this incident, Turney was charged with trespass and
disorderly conduct. A jury convicted Turney of both counts.
The Trespass Conviction
Turney argues that the State failed to prove that he
committed a trespass. Under AS 11.46.330(a)(1) and AS 11.46.-
350(a)(1)þ(2), the crime of trespass can be committed in two ways
pertinent to Turney's case.
First, trespass is committed when a person enters or
remains upon property at a time when the property "is not open to
the public and ... the defendant is not otherwise privileged to [be
there]". AS 11.46.350(a)(1). The trial judge in Turney's case
ruled that Turney could not be convicted under this section because
Turney conducted his protest activities during normal business hours
when the courthouse and its surrounding grounds were open to the
public.
Second, trespass is committed when a person enters
property that is open to the public but then "fail[s] to leave ...
after being lawfully directed to do so personally by the person in
charge [of the property]". AS 11.46.350(a)(2). The trial judge
ruled that the State could proceed under this theory of trespass.
The judge told the jurors that, in order to find Turney guilty of
trespass, they had to find that Turney "knowingly remained
unlawfully in or upon the premises of the courthouse, after
personally being ordered to leave ... [and that he] recklessly
disregarded a lawful order that he not remain."
The problem in Turney's case is to identify the "lawful
order" directing him to leave the courthouse grounds. As noted in
the introductory section of this opinion, Turney voluntarily ended
his protest and left the courthouse grounds on July 13th when the
trooper asked him to leave. Thus, Turney could not be convicted of
ignoring the trooper's instructions on the day named in the
complaint. Rather, the State's theory of prosecution was that
Turney had committed trespass by returning to the courthouse to
renew his protest activities after receiving Ronald Woods's letter
on May 9th. As noted earlier, Woods's letter informed Turney that
he was "prohibited from ... remaining on court property to engage
in protest activities". This letter, the State contended, was the
"lawful order" directing Turney to leave the courthouse property and
never return to conduct protest activities.
The trial judge's instructions to the jury embodied this
theory of the case. In particular, the trial judge instructed the
jury:
[A]n owner or occupier of premises can put
limits upon the right of another to enter or
remain upon the premises. If the owner or
occupier informs another of those limits, then
that person ... may become a trespasser if he
or she later enters upon the premises and
exceeds those limits.
On appeal, Turney argues that he has a First Amendment
right to engage in protest activity on court property. Turney
contends that the court administrator had no authority to bar future
protest activity on court property, and therefore Woods's letter to
Turney constituted an unenforceable "prior restraint" on constitu
tionally protected speech.
The United States Supreme Court has indicated that similar
restrictions on political activity at a courthouse are constitution-
al. See United States v. Grace, 461 U.S. 171, 177-78, 182; 103
S.Ct. 1702, 1707, 1709; 75 L.Ed.2d 736 (1983). However, we need not
resolve this issue of First Amendment law to resolve Turney's appeal
of his trespass conviction. The threshold question presented is
purely one of trespass law. Even if we assume that, consistent with
the First Amendment, the Area Court Administrator had the authority
to bar Turney from protesting in and around the courthouse, there
are two flaws in the State's theory of prosecution.
"Unlawful Remaining", as Applied to Public
Buildings and Surrounding Property, Requires
that the Trespasser Refuse or Ignore a Contem
poraneous Order to Leave.
Turney was convicted under the theory of trespass codified
in AS 11.46.350(a)(2): that he "fail[ed] to leave [the courthouse]
premises ... after being lawfully directed to do so". Courts
construing similar statutes generally hold that, when the property
involved is a public building, a person does not commit a trespass
unless the person ignores or refuses a contemporaneous request to
leave. That is, this type of trespass statute does not authorize
a government official to bar a person from returning to a public
building and its surrounding property in perpetuity.
[A] statute may legitimately criminalize
an act of peaceful but unauthorized presence on
public property for purposes other than those
to which the property has been dedicated[.]
[But] a criminal trespass statute which [ap-
plies to] public property [in general], and
which [proscribes] refusing or failing to leave
a public building or [public] grounds upon
being requested to do so by an authorized
employee[,] limits the power of public offi-
cials ... to notifying people, in specified
circumstances, that they may not remain on the
property and does not permit them to bar entry.
75 Am.Jur.2d 137, Trespass,  179.
For instance, in In re Appeal No. 631, 383 A.2d 684 (Md.
1978), the Maryland Court of Appeals construed a trespass statute
which proscribed the act of "refusing or failing to leave a public
building ... upon being requested to do so by [an] authorized
employee". 383 A.2d at 686. The defendant in that case visited a
junior high school after being told on previous occasions that he
was not to return to the school property. He was taken to the vice-
principal and asked to explain why he had come back to the school;
when he failed to advance a satisfactory explanation for his
presence, he was arrested. The Maryland court reversed the defen-
dant's conviction:
[T]he State concedes that at no time on [the
day of the alleged trespass] was the defendant
asked to leave the school premises. He was,
rather, immediately arrested after failing to
disclose to the vice-principal reasons suffi-
cient to justify his presence. No request [to
leave] having been given, there was none to
disobey. It is true that the vice-principal
had twice previously warned the defendant that
he was "not to be on this property." These
requests to leave, however, were given on
occasions one or two weeks prior to the subject
incident[.] [The trespass statute] makes a
person's conduct criminal only when he "refuses
or fails to leave the building or grounds of
these institutions after being requested to do
so by an authorized employee of the institu-
tion."
In re Appeal No. 631, 383 A.2d at 687 (emphasis in the original).
In State v. Johnson, 381 So.2d 498 (La. 1980), a case
dealing with quasi-public property (a bus terminal), the defendant
entered the terminal cafeteria and was arrested for trespassing
because he had previously been ordered to leave the bus terminal and
never return. The government conceded that, during the episode in
question, the defendant was "at no time requested ... to leave the
premises ... because of [the] prior warnings and admonitions". 381
So.2d at 499.
The Louisiana statute, 14:63:3A, defined trespass as the
act of "go[ing] into or upon or remain[ing] in or upon ... any
structure ... or [land] ... after having been forbidden to do so."
Nevertheless, the Louisiana Supreme Court construed the statute to
require
a reasonably contemporaneous [oral] or written
request to leave as an indispensable element of
the offense. ... "[R]easonably contempora-
neous" ... does not necessarily mean a request
immediately preceding the arrest of an alleged
[trespasser]. We deem a request to be reason
ably contemporaneous if given a few hours prior
to the arrest, the same day as the arrest[,] or
such other pre-arrest interval [as is] reason
able under the ... circumstances of each
particular case. [But] it is patently unrea-
sonable [to construe the trespass statute to
allow] a citizen with peaceful intent [to] be
permanently and perpetually barred from the
premises of a public transportation facility[.]
State v. Johnson, 381 So.2d at 500.
This court has previously looked to judicial decisions
construing New York Penal Law  140.00 et seq. for aid in construing
Alaska's trespass and burglary statutes. See Johnson v. State, 739
P.2d 781, 783 n.1 (Alaska App. 1987); Arabie v. State, 699 P.2d 890,
894-95 n.3 (Alaska App. 1985). In trespass cases dealing with
orders to leave and not return, the New York courts recognize a
distinction between public facilities and private property. Owners
of private property (even private property open to the public for
commercial purposes) may order a person to leave and never come
back. If the person returns, he or she can be convicted of trespass
for the mere act of returning. People v. Licata, 268 N.E.2d 787
(N.Y. 1971). This court enforced a similar ban imposed by the owner
of private property in Johnson v. State, 739 P.2d 781 (Alaska App.
1987): the defendant was convicted of trespass for returning to a
ski resort after being ordered not to return to the premises for the
rest of the season.
But, under New York's general trespass statutes, the
supervisor of a public facility has no such power to bar an
individual from ever returning to the facility. Even though a
person has previously been ordered to leave and not return, this
person may not be prosecuted for trespass merely for returning on
another occasion. People v. Marino, 515 N.Y.S.2d 162, 165-66 (N.Y.
Justice Ct. 1986); People v. Hutchinson, 477 N.Y.S.2d 965, 967-68
(N.Y. Sup. Ct. 1984); People v. Wilson, 469 N.Y.S.2d 905, 907 (N.Y.
City Ct. 1983); People v. DeClemente, 442 N.Y.S.2d 931, 934-35 (N.Y.
City Crim. Ct. 1981); People v. Nu¤ez, 431 N.Y.S.2d 650, 653 (N.Y.
City Crim. Ct. 1980), aff'd 454 N.Y.S.2d 290 (N.Y. App. 1982);
People v. Wolf, 312 N.Y.S.2d 721, 724 (N.Y. Dist. Ct. 1970). (EN1)
We note that, in analogous situations, government agencies
have obtained civil injunctions barring individuals from entering
or using government properties for unauthorized purposes. See, for
example, United States v. Gilbert, 920 F.2d 878 (11th Cir. 1991).
In addition, both the federal government and various state
governments have enacted statutes which empower public officials to
bar individuals from returning to specified public facilities. (EN2)
But the statute that Turney was charged with violating, AS 11.46.-
350(a)(2), is not this type of statute.
Alaska Statute 11.46.350(a)(2) is a general trespass
statute which provides that a person may not remain on property
after being lawfully ordered to leave. As explained above, this
type of statute is generally construed not to grant officials the
authority to permanently ban people from public facilities. We
construe AS 11.46.350(a)(2) in accordance with these authorities and
hold that this statute did not authorize the Area Court Adminis-
trator to permanently ban Turney from the courthouse property. A
person can not be convicted under AS 11.46.350(a)(2) of "fail[ing]
to leave" a public facility "after being lawfully directed to do so"
unless the person fails to heed a reasonably contemporaneous
directive to leave, or (as in People v. Bembry, cited in footnote
1) the person heeds the directive to leave but then returns to the
public facility after only a short while.
In the present case, Woods's letter was delivered to
Turney on May 9th. Turney returned to the courthouse on July 13th.
Even if Woods's letter had purported to completely ban Turney from
the courthouse grounds, the delivery of that letter was not
sufficiently contemporaneous with Turney's act of returning to the
courthouse to make Turney's action an "unlawful remaining".
When a Person Lawfully Enters Property, the
Person's Intent to Engage in Prohibited Activ-
ities on the Property Does Not, By Itself, Make
the Person's Continued Presence an "Unlawful
Remaining".
As noted above, Woods's letter to Turney did not totally
prohibit Turney from returning to the courthouse. Instead, Woods
told Turney that he was welcome to come onto courthouse property for
some purposes ("to peaceably conduct court business or to observe
court proceedings") but that he was prohibited from "remaining on
court property to engage in protest activities". Thus, the State
could argue, Turney was free to enter the courthouse or its grounds,
but he was on notice that he could not "remain" on courthouse
property if he intended to renew his protest activities.
Under the State's theory, Woods's letter was a self-
effectuating order directing Turney to desist from protest. Turney
might have initially entered the courthouse property lawfully, but
his subsequent decision to engage in protest (knowing that the Area
Court Administrator had forbidden him to do so) turned his continued
presence on the courthouse grounds into an unlawful "remaining" for
purposes of the trespass statute. This appears to be the theory of
prosecution embodied in the jury instructions in Turney's case.
Such a theory of criminal liability is inconsistent with
both New York and Alaska decisions. In People v. Graves, 555 N.E.2d
268, 270 (N.Y. 1990), a case dealing with the definition of
burglary, the New York Court of Appeals carefully distinguished
between the requirement of (1) an unlawful entry or remaining, and
(2) the requirement of an intent to commit a crime. The New York
court held that a defendant's secret intent to commit a crime does
not turn an otherwise lawful entry or lawful presence into an
unlawful entry or an unlawful remaining. Three decades before, the
Alaska Supreme Court applied the same rule in Smith v. State, 362
P.2d 1071, 1073-74 (Alaska 1961). The court held that a defendant's
lawful entry into a building does not become an "unlawful entry" for
purposes of the burglary statute merely because the defendant at all
times intended to commit a crime inside the building. (EN3) See
also Pushruk v. State, 780 P.2d 1044, 1048 (Alaska App. 1989) (a
trespasser who, inside the building, forms the intent to commit a
crime does not thereby commit burglary); Shetters v. State, 751 P.2d
31, 36 n.2 (Alaska App. 1988) (rejecting the notion that a lawful
presence on property is converted to an "unlawful remaining" when
the person forms an intent to steal).
Thus, a defendant's intent to commit a crime does not
convert his lawful presence on property into a trespass. Were the
rule otherwise, a store owner could convert all shopliftings into
burglaries by the expedient of posting a sign at the door informing
customers that they are permitted to remain on the premises only as
long as they intend to commit no crime.
We construe AS 11.46.350(a)(2) accordingly. When a person
has lawfully entered a building or has lawfully entered upon
property, that person does not "remain unlawfully" merely because
the person engages in activities that the person knows are forbidden
by the property owner. Although the person may be civilly and/or
criminally liable for these prohibited actions, there is no trespass
(unless, of course, the property owner becomes aware of the person's
activities and asks the person to leave, and the person then
refuses).
In the present case, the trial judge ruled (and the State
effectively concedes) that Turney entered the courthouse grounds
lawfully. (Turney entered the property during business hours, when
the courthouse was open to the public.) We assume that Turney
entered the property with the intention of renewing his protest
activities þ activities that Woods, the person in charge of the
property, had explicitly forbidden. Nevertheless, neither Turney's
intent to engage in protest on the courthouse grounds nor his actual
renewal of protest activities was sufficient, by itself, to convert
Turney's entry onto courthouse property into an "unlawful entry".
Because Turney committed no unlawful entry, the only other
theory of criminal liability available to the State was that Turney
had committed an "unlawful remaining". As explained above, before
Turney could be convicted under AS 11.46.350(a)(2) of "unlawfully
remaining" in a public facility, the State had to prove that Turney
disregarded a reasonably contemporaneous directive to leave.
Woods's letter to Turney was not a directive to leave; rather, it
was a statement of the conditions placed on Turney's return to the
courthouse. Moreover, even if Woods's letter could be construed as
a conditional directive to leave (if Turney resumed his protest
activities), it was delivered to Turney on May 9th; this directive
was not reasonably contemporaneous with Turney's conduct on July
13th.
It is undisputed that Turney left the courthouse on July
13, 1994 without incident after the trooper asked him to leave.
Turney therefore never committed an act of unlawful remaining on
July 13th. We thus conclude that Turney committed no act of
trespass on that day, and we reverse Turney's conviction for second-
degree trespass.
The Disorderly Conduct Conviction
Turney was convicted of disorderly conduct for violating
AS 11.61.110(a)(2). In pertinent part, this statute defines the
crime of disorderly conduct as "[making] an unreasonably loud noise"
"in a public place[,] with intent to disturb the peace and privacy
of another or with reckless disregard that [one's] conduct is
[disturbing the peace and privacy of another] after being informed
that [one's conduct] is having that effect". Turney raises two
arguments against his conviction.
First, Turney asserts that all political advocacy is
exempted from the disorderly conduct statute. Turney's argument
turns on the definition of "noise" contained in AS 11.61.110(b):
As used in [AS 11.61.110], "noise" is
"unreasonably loud" if, considering the nature
and purpose of the defendant's conduct and the
circumstances known to the defendant, including
the nature of the location and the time of day
or night, the [defendant's] conduct involves a
gross deviation from the standard of conduct
that a reasonable person would follow in the
same situation. "Noise" does not include
speech that is constitutionally protected.
(Emphasis added.)
Turney asks this court to concentrate on the second
(italicized) sentence of this definition. He argues that his
advocacy of jury nullification was protected by the First Amendment
(which generally protects all political advocacy). From this,
Turney derives the proposition that his protest at the courthouse
does not fall within the definition of "noise" because, under the
second sentence of AS 11.61.110(b), "noise" does not include
constitutionally protected speech. Thus, Turney concludes, he can
not be convicted of disorderly conduct for engaging in constitu-
tionally protected speech, even if his speech was "unreasonably
loud" (as defined in the first sentence of the statute).
Admittedly, the second sentence of AS 11.61.110(b) could
be read in the manner Turney suggests. However, under such a
reading, a protester could station himself on the street outside a
political opponent's window and shout all night through an amplifier
without violating the disorderly conduct statute (as long as he was
shouting about political or social issues). Similarly, a protester
could use a bullhorn in the hallways of a courthouse to disrupt
court proceedings throughout the day.
Moreover, the phrase "constitutionally protected speech"
encompasses more than political advocacy. For instance, the First
Amendment protects truthful commercial speech. See 44 LiquorMart,
Inc. v. Rhode Island, ___ U.S. ___, 116 S.Ct. 1495 (1996). If the
second sentence of AS 11.61.110(b) were read as Turney suggests,
then merchants who blared advertisements for their wares over a
loudspeaker as they drove through residential neighborhoods at three
o'clock in the morning could not be prosecuted for disorderly
conduct (since commercial speech is "constitutionally protected").
We doubt that the legislature's intent when enacting the
second sentence of AS 11.61.110(b) was to create such broad
exemptions to the law's regulation of disruptive noise. Rather, the
legislative history of AS 11.61.110(b) strongly suggests that the
the second sentence of the statute was intended to clarify that
AS 11.61.110(b) should not be interpreted to interfere with First
Amendment rights.
As drafted by the Criminal Code Revision Subcommission,
proposed 11.61.110(b) originally read:
As used in [TD 11.61.110], "unreasonably
loud noise" means noise which constitutes a
gross deviation from the standard of conduct
that a reasonable person would follow in the
same situation as the defendant, considering
the nature and purpose of the conduct of the
defendant and the circumstances known to him,
including the nature of the location and the
time of day or night.
Alaska Criminal Code Revision, Tentative Draft, Vol. 5, p. 79. In
their commentary to this section, the drafters stated:
In Marks[ v. Anchorage, 500 P.2d 644, 663
(Alaska 1972)], the [supreme] court noted that
the phrase "unreasonably noise" without more
might be considered "indefinite." Subsection
(b) both clarifies the meaning of "unreasonably
loud" and insures that free speech will not be
infringed upon by requiring that noisemaking
constitute a "gross deviation from the standard
of conduct that a reasonable person would
follow in the same situation." The intent of
the Subcommission is clear: the legitimate
exercise of first amendment rights can never
constitute disorderly conduct.
Tentative Draft, Vol. 5, p. 86.
The legislature departed from the Tentative Draft by
enacting a two-sentence version of AS 11.61.110(b). The first
sentence of the statute is a reworded variant of the tentative
draft:
As used in [AS 11.61.110], "noise" is
"unreasonably loud" if, considering the nature
and purpose of the defendant's conduct and the
circumstances known to the defendant, including
the nature of the location and the time of day
or night, the [defendant's] conduct involves a
gross deviation from the standard of conduct
that a reasonable person would follow in the
same situation.
The legislature then added a second sentence of their own device:
"Noise" does not include speech that is con-
stitutionally protected.
The purpose of this second sentence was apparently to codify the
limitation contained in the Criminal Code Revision Subcommission's
commentary: that "the legitimate exercise of first amendment rights
can never constitute disorderly conduct". This legislative purpose
is expressed in the legislature's commentary to AS 11.61.110(b) (a
commentary that mirrors the Subcommission's commentary to the
Tentative Draft):
In Marks v. City of Anchorage, 500 P.2d
644 (Alaska 1972), the court noted that the
phrase "unreasonable noise" without more might
be considered "indefinite." Subsection (b)
both clarifies the meaning of unreasonably loud
noise and insures that free speech will not be
infringed upon by specifically providing that
"noise" does not include speech that is con-
stitutionally protected. Under the Code the
exercise of protected first amendment rights
can never constitute disorderly conduct.
1978 Senate Journal, Supp. No. 47 (June 12), p. 95.
According to Turney's argument, the second sentence of
AS 11.61.110(b) means that the disorderly conduct statute simply
does not apply to any speech afforded protection under the First
Amendment. But the legislative commentary to this sentence states
that the purpose of this second sentence was to insure that "the
exercise of protected first amendment rights can never constitute
disorderly conduct". (The legislature's commentary tracks the
commentary to the tentative draft, which speaks of "the legitimate
exercise of first amendment rights".)
There is a crucial difference between engaging in speech
that is protected by the First Amendment and "exercis[ing] ...
protected first amendment rights". Even though political and
commercial speech is protected by the Constitution, the government
retains the power to regulate the time, location, and manner in
which that speech is disseminated. The United States Supreme Court
has "regularly rejected the assertion that people who wish to
propagandize protests or views have a constitutional right to do so
whenever and however and wherever they please". United States v.
Grace, 461 U.S. at 177-78, 103 S.Ct. at 1707. Rather, the
government can place reasonable restrictions on the time, place, and
manner of political protest. Grace, 461 U.S. at 177, 183-84; 103
S.Ct. at 1707, 1710. The Alaska Supreme Court has recognized that,
consistent with the First Amendment, a state government can "limit
speech or assembly in specific places under limited circumstances,
as, for example, in a courtroom while the court is in session".
Marks v. Anchorage, 500 P.2d 644, 647 (Alaska 1972). See Fardig v.
Anchorage, 803 P.2d 879, 882-83 & 883 n.4 (Alaska App. 1990)
(discussing the limitations that a government can legitimately place
on political speech occurring on public property).
The wording of AS 11.61.110(b)'s second sentence þ the
declaration that "noise" does not include "speech that is consti-
tutionally protected" þ is admittedly susceptible of the reading
Turney suggests. But the fundamental question in this case is to
ascertain the legislative purpose behind that second sentence. See
Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992) ("The guiding
principle of statutory construction is to ascertain and implement
the intent of the legislature[.]").
The legislative commentary adopted with the statute
declares that the second sentence of AS 11.61.110(b) was intended
to insulate "the exercise of protected first amendment rights" from
prosecution under the disorderly conduct statute. The legislature
apparently believed that this intention was perfectly expressed in
the second sentence of AS 11.61.110(b). But, as discussed above,
the government is authorized to regulate the time, place, and manner
in which people engage in speech, even if that speech is protected
by the First Amendment. In other words, people engaged in
constitutionally protected speech are not necessarily engaged in
activity that is protected from criminal prosecution by the First
Amendment.
Under Turney's suggested interpretation of AS 11.61.-
110(b), political protesters and fish mongers alike could bellow
their messages at all hours of the day in any location they chose,
disrupting other people's business and sleep without restraint.
Turney suggests no rationale for exempting such behavior from the
disorderly conduct statute, and we can think of none. The First
Amendment requires no such exemption.
In ascertaining the legislature's intent, this court "is
obliged to avoid construing statutes in a way that leads to patently
absurd results or to defeat of the obvious legislative purpose
behind the statute". State v. Lowrence, 858 P.2d 635, 638 (Alaska
App. 1993). We conclude that the second sentence of AS 11.61.110(b)
was not intended to create a wholesale exemption for political and
commercial speech irrespective of time, place, or decibel level.
Rather, the second sentence embodies the legislature's intention
that the disorderly conduct statute not be used to prosecute
activity that is protected from prosecution by the First Amendment.
Turney argues that, if the second sentence is construed
in this way, it becomes superfluous: no criminal statute can
lawfully be used to prosecute activity that is protected from
prosecution by a provision of the Constitution. However, as we read
AS 11.61.110(b), the second sentence of the statute modifies and
clarifies the first sentence.
The first sentence of AS 11.61.110(b) declares that
conduct can be prosecuted if it constitutes a "gross deviation from
the standard of conduct that a reasonable person would follow in the
same situation". The second sentence, by exempting the legitimate
exercise of First Amendment rights, clarifies that the existence of
this "gross deviation" must be gauged only by reference to the time,
place, and manner in which a speaker delivers his or her message,
and not the substantive content of the speech itself. In other
words, no matter how "unreasonable" the speaker's message, the
content of that message can not be used to determine whether the
speaker's conduct deviated from "the standard of conduct that a
reasonable person would follow in the same situation".
We therefore reject Turney's assertion that the disorderly
conduct statute exempts all political speech. If Turney engaged in
"unreasonably loud" protest at the courthouse (as defined in
AS 11.61.110(b)), he could be prosecuted for violating the
disorderly conduct statute.
Turney argues in the alternative that, if the disorderly
conduct statute is construed to cover unreasonably loud political
protest, then the statute is unconstitutional. Turney contends that
the disorderly conduct statute is both overbroad and vague.
To support his constitutional challenge, Turney relies
primarily on Marks v. Anchorage. In Marks, the supreme court dealt
with a now-superseded disorderly conduct statute. That statute
proscribed "making unreasonable noise" with "intent to cause public
inconvenience, annoyance[,] or alarm". 500 P.2d at 645. The
supreme court concluded that the terms "unreasonable", "inconve-
nience", "annoyance", and "alarm" were all too vague to give
adequate notice of what conduct was prohibited, and were so broad
as to stifle many forms of speech protected by the First Amendment.
500 P.2d at 652-53.
However, Turney was not prosecuted under the older statute
interpreted in Marks. Rather, Turney was prosecuted under the
current disorderly conduct statute, AS 11.61.110. In Earley v.
State, 789 P.2d 374, 376 n.2 (Alaska App. 1990), this court upheld
AS 11.61.110 against both overbreadth and vagueness challenges.
Turney completely ignores Earley. His opening brief does
not cite the case. Even after the State's brief pointed out that
Earley was the controlling authority on Turney's constitutional
claims, Turney failed to discuss (or even acknowledge) Earley in his
reply brief. Turney's pointed refusal to address a controlling
decision of this court must be interpreted as a tacit concession
that Earley is dispositive of Turney's overbreadth and vagueness
challenges to the disorderly conduct statute.
Conclusion
Turney's conviction for second-degree trespass is
REVERSED. His conviction for disorderly conduct is AFFIRMED.
ENDNOTES:
1. Compare People v. Bembry, 490 N.Y.S.2d 431, 432 (N.Y. City Ct.
1985): the defendant, who was ordered to leave a public office
building and not return until he was sober, could properly be
convicted of trespass for returning a few minutes later.
2. See, for example, Maryland Code, Article 27, Section 577B
(discussed in Appeal No. 631, supra), which authorizes the highest
official or governing body of any public school to deny access to
the buildings or grounds of the institution to persons who are not
registered as students, faculty, or staff of the institution and
who "are acting in a manner disruptive or disturbing to the normal
educational functions of the institution". The constitutionality
of this statute was upheld in Kirstel v. State, 284 A.2d 12 (Md.
App. 1972). See also People v. Leonard, 465 N.E.2d 831, 834 (N.Y.
1984) (discussing a similar regulation that authorizes the banning
of individuals from New York university campuses); 18 U.S.C.  1382
(authorizing the commander of a military installation to bar
specified people from entering the base).
3. This was the rule at common law as well. "Because breaking,
as an element of common-law burglary, requires a breach of the
building made by trespass, it cannot be established by the act of
one who had authority to open that very door at that particular
time. ... [O]pening a door to enter a store during regular
business hours is not a breaking even if done with intent to
steal." R. Perkins & R. Boyce, Criminal Law (3rd edition 1982), p.
250 (italics in the original).
