stating that “[t]he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system” of trying criminal cases, “whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment”
How later courts described this case
- stating that “[t]he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system” of trying criminal cases, “whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment”
- explaining that due process requirements are not “designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited”
- recognizing that “[t]he State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction”
- holding that the presumption of vindictiveness did not apply to a more severe sentence imposed in a “two-tier” court system, where the defendant was first tried in a court of limited jurisdiction and then “appealed” for a de novo hearing in the superior corut
Written by the judges who cited it.
Distinguished
Distinguished by State v. Church, 262 Wis. 2d 678 (2003)
407 U.S. 104, 117 (1972) (holding that presumption of vindictiveness is inapplicable in a system which gave a convicted defendant the right to a trial de novo in another court); and
Distinguished by Macomber v. Hannigan, 791 F. Supp. 271 (1992)
Similarly, in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Court held that the presumption was inapplicable to a state’s two-tier court system for adjudicating some cases.
The opinion
Mr. Justice Douglas,
dissenting.
This case arose in the aftermath of a visit of the President’s wife to Lexington, Kentucky, where nothing ' untoward happened. After her plane had left, appellant and a group of his friends got into “some six to ten cars” and started down the access road leading from the airport to the main highway. The lead car was stopped by the police because of an expired license plate and at the .officer’s request, pulled onto the shoulder of the access road. Appellant, who followed, also pulled onto the shoulder as did the other cars in the group. So there were no cars belonging to appellant’s group blocking traffic.
The people in the cars, howeyer, walked around, some talking with the police, and appellant talking mostly with the driver of the lead car. Appellant claimed that he only wanted to advise the man who was getting the citation of his rights, and to help arrange for the driver and passengers in the lead car to get to Lexington. The. Court of Appeals of Kentucky, however, said that “Col-ten’s real intent was simply to aggravate, harass, annoy and inconvenience the police, for no purpose other than the pleasure of aggravation, harassment, annoyance and inconvenience.” 467 S. W. 2d 374, 376 .
The statute under which petitioner was convicted read in relevant part as follows: 1
“(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(f) Congregates with other persons in a public *121 place and refuses to comply with a lawful order of the police to disperse . . . .”
The Court of Appeals sustained the statute as applied because the inconvenience 2 and annoyance to the police far outweighed appellant’s speech which fell “far below the level of minimum social value.” . 467 S. W. 2d, at 377 . That court, citing our obscenity cases, said if “the lack of redeeming social value is a basis upon which the right of freedom of speech may be required to yield to the protection of contemporary standards of morality ... it would seem that the public’s interest in being protected from inconvenience, annoyance or alarm should prevail over any claimed right to utter speech that has no social value.” Ibid. ;
But the speech involved here was nonerotic, having, no suggestion or flavor of the pornographic.
The speech here was quiet, not boisterous, and it was devoid of “fighting words.”
Moreover, this was not a case where speech had moved into action, involving overt acts. There were no fisticuffs, no disorderly conduct in the normal meaning of the words. ,
The Court of Appeals said “Colten was not seeking to express a thought to any listener or to disseminate any idea.” 467 S. W. 2d, at 378 . Nor was he, it said, “exer- " cising the right of peaceable assembly.” Ibid.
He was, however, speaking to a representative of government, the- police. And it is to government that one. goes “for a redress of grievances,” to use an .almost forgotten phrase of the First Amendment. But it is said that the purpose was “to cause inconvenience and an *122 noyance.” Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that w;e the people are the sovereigns, the state and federal officials only our agents. We who have the. final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet. The situation might have indicated that Golten’s techniques were ill-suited to the mission he was on, that diplomacy would have been more effective.. But at the constitutional level speech need not be a sedative; it can be disruptive. As we said in Terminiello v. Chicago, 337 U. S. 1 , 4:
“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may. strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
Under that test this conviction should be set aside.
Ky. Rev. Stat. § 437.016 (Supp. 1968).
Neither appellant nor any in his group blocked-traffic, their cars being parked on the shoulder of the road.- Any blocking of traffic was caused by police who pulled up to see what was going on, leaving their patrol cars in the access road. See 467 S. W. 2d 374, 376 .