Washington appeals court: Man may be tried under phone-harassment law

Tuesday, February 1, 2000

Washington’s phone-harassment law, which prohibits making threatening telephone calls, applies to calls that contain a threat anytime during a conversation and does not infringe on protected speech, a state appeals court has ruled.

In 1997 Steven Burkhart called his estranged wife, Anita, on the telephone to speak to his son. When his wife refused to let him speak to the boy, Burkhart became angry and told her that he would kill her, file for divorce and custody and keep her away from their son.

Redmond prosecutors charged Burkhart with violating the state’s phone-harassment law, which prohibits use of a telephone to make a call “threatening to inflict injury on the person or property of the person called or any member of his or her family or household.”

Burkhart argued that the statute could not be applied to him because at the time he initiated the telephone call, he did not intend to make a threat. He argued that applying the statute would amount to punishing him for his speech in violation of the First Amendment.

Two lower courts agreed with Burkhart’s interpretation of the statute and dismissed the charges. However, on appeal, the Court of Appeals of Washington reversed and reinstated the charges in City of Redmond v. Burkhart. The case has been sent back down to a trial court.

In his appeal, Burkhart cited a case from Vermont — State v. Wilcox — in which the Vermont Supreme Court reversed a telephone-harassment conviction because the caller did not initiate the call with an intent to threaten. Instead, the caller made a threat about 20 minutes into the conversation.

The Vermont high court concluded that under its state law “intent should be measured at the time the person telephones” or initiates the call.

However, the Washington appeals court pointed out that the language of the Washington statute was different from that of the Vermont law. The appeals court also said that it disagreed with the reasoning of the Vermont court.

Making a threat is a “continuing, rather than a discreet, process,” the Washington court wrote. “We are not persuaded by the Wilcox decision that the intent element must be in association with the dialing process.”

The Washington appeals court said in its Jan. 24 opinion that the Vermont court had engaged in a “limited reading” of the Vermont phone-harassment law and had drawn an “illogical distinction between threats made by a caller who initiates the call with the intent to intimidate and those made by a caller who formulates the intent to intimidate mid-conversation.”

The Washington appeals court noted that “although speech over the telephone is primarily protected speech, that speech may be properly regulated within the parameters of the First Amendment.”

“In the context of a telephone call, it is reasonable to regulate threats accompanied with the intent to intimidate regardless of their timing,” the court wrote.

Burkhart’s attorney was out of the office until Feb. 3 and could not be reached for comment.

The attorney for the city could not be reached for comment.