“Private Words, Public Peace” – State v. Baertsch and the Public-Disturbance Threshold for Disorderly Conduct

1. Introduction

State v. Douglas Baertsch, 2025 MT 143, is a high-profile decision of the Montana Supreme Court that recalibrates two discrete areas of Montana criminal law:

The reach of disorderly-conduct predicates in burglary prosecutions, and
The power of sentencing courts to curtail a defendant’s statutory right to seek early termination of a suspended sentence.

The case stemmed from a volatile domestic dispute in which Baertsch kicked in his girlfriend K.W.’s front door, entered the residence, and uttered a string of profanities before fleeing. A Lewis and Clark County jury convicted him of (1) Partner or Family Member Assault (PFMA), (2) Criminal Mischief, and (3) Burglary premised on “disorderly conduct” allegedly committed inside K.W.’s home. The district court also imposed a seven-year bar on any petition by Baertsch for early termination of his suspended sentences.

On appeal, the Supreme Court was asked to decide:

Whether sufficient evidence supported the burglary conviction when the “other offense” element was pegged to disorderly conduct based solely on profane language uttered in a private residence, and
Whether the sentencing court had authority to block early-termination petitions for seven years.

2. Summary of the Judgment

Justice Katherine Bidegaray, writing for the majority, vacated the burglary conviction and struck the early-termination restriction. The Court held:

Insufficient Evidence of Predicate Disorderly Conduct – To qualify under § 45-8-101(1)(a)(iii) MCA (2019) (now subsection (c)), disorderly conduct must involve a disturbance of the public peace. Abusive words spoken in the privacy of a home, heard only by the victim, do not satisfy that element; therefore, the burglary count under § 45-6-204(1)(b) MCA failed as a matter of law.
Sentencing Restriction Illegal – A district court cannot unilaterally expand the statutory waiting period in § 46-18-208 MCA absent the defendant’s knowing waiver in a plea agreement. The seven-year bar was stricken.
The ineffective-assistance claim was rendered moot by reversal of the burglary charge.

3. Analysis

3.1 Precedents Cited and Their Influence

State v. Tellegen, 2013 MT 337 – Established that a burglary charged under § 45-6-204(1)(b) requires proof of the commission of another offense inside the structure. Used here to frame the evidentiary burden.
State v. Rodriguez, 2024 MT 132 – Clarified that only conduct occurring after unlawful entry can serve as the predicate offense. Provided the analytical template for excluding Baertsch’s porch and yard conduct.
State v. Ytterdahl, 222 Mont. 258 (1986) – Defined “disturbing the peace” as conduct “tending to create public tumult.” The Baertsch Court extended this definition to all disorderly-conduct variants, expressly overruling part of Compas that had limited Ytterdahl to public-meeting disruptions.
City of Bozeman v. McCarthy, 2019 MT 209 – Stated the de novo review standard for sufficiency of evidence; applied throughout.
State v. Brady, 2025 MT 105 – Recently held that courts cannot enlarge the waiting period for early termination unless bargained for. Controlled the sentencing issue.
Historical “profane language” cases: Batten (1985), Bennett (1991), Felando (1991), Granby (1997), Ashmore (2008), Nelson (2014). These were dissected to show that each involved conduct in a public setting or one with public spill-over potential.

3.2 Legal Reasoning

“Disorderly conduct is, and historically has been, an offense against the public order … A purely private dispute, confined to a private residence, does not suffice.”

The Statutory Chain.
• Burglary (predicate-offense theory) = (a) unlawful entry + (b) commission of “any other offense” within the structure.
• Predicate offered = Disorderly Conduct under § 45-8-101(1)(a)(iii) MCA.
• Disorderly Conduct requires: (i) threatening/profane/abusive language + (ii) disturbance of the peace.
Locational Nexus. Because § 45-6-204(1)(b) speaks of “within that structure,” only words spoken inside the residence count. The Court therefore excluded the highly audible shouting on the porch and in the yard.
Public-Disturbance Component. Drawing on Ytterdahl, First-Amendment jurisprudence (Cantwell v. Connecticut, 310 U.S. 296), and the “offense against public order” heading in Title 45, the Court held that the “peace” referenced in § 45-8-101 is the public peace. This construction avoids criminalising purely private speech that may be offensive yet constitutionally protected.
Application. The only in-home words identified—“stupid bitch” or “dumb cunt”—were doubtless profane, but they did not incite or threaten public tumult, no neighbour heard them, and the utterer immediately fled. No rational juror could find the public-disturbance element beyond a reasonable doubt.
Partial Overruling of Compas. The Court jettisoned dicta in State v. Compas, 1998 MT 140, that had cabined the Ytterdahl definition to meeting-disruption cases, thereby harmonising all disorderly-conduct variants under a single “public-peace” lens.
Sentencing Ruling. Re-affirming Brady, the justices stressed that the legislature—not the judiciary—fixes the minimum service requirement before an offender may seek early discharge. The sentencing court’s seven-year moratorium was therefore ultra vires.

3.3 Impact of the Decision

Charging Decisions. Prosecutors must now prove a tangible public component when using disorderly conduct as a burglary predicate. Alternate predicates (e.g., PFMA, assault) may be safer in domestic-context burglaries.
Domestic-Violence Cases. Verbal abuse inside a home, however vile, will not automatically sustain a disorderly-conduct enhancement unless it reverberates into the public sphere. Victims remain protected through PFMA and assault statutes.
First-Amendment Alignment. The ruling narrows criminal liability for speech, reducing constitutional risk and providing clear guidance that Montana’s disorderly-conduct statute targets speech likely to provoke public breach.
Overruled Precedent. Trial courts must apply the Ytterdahl “public-tumult” definition across all § 45-8-101 sub-sections, overruling Compas to the extent of inconsistency.
Sentencing Practice. Post-Baertsch, district judges cannot extend the § 46-18-208 waiting period on their own initiative. Any waiver must arise from a negotiated plea agreement.
Appellate Strategy. The decision showcases how a sufficiency-of-evidence attack, tightly focused on the State’s chosen theory, can overturn a conviction even in the face of unseemly facts.

4. Complex Concepts Simplified

Burglary – Predicate-Offense Theory: Montana recognises two kinds of burglary. One relies on intent at entry; the other (used here) requires the State to show that after entry the accused committed another crime in the structure.
Disorderly Conduct: A catch-all public-order offence targeting conduct that disturbs community tranquility — not merely one person’s feelings.
“Public Peace” vs. “Private Annoyance”: The Court draws a constitutional line. Speech inside a home between intimates = private realm; speech in streets, parks, meetings, or audible to bystanders = public realm.
Suspended Sentence & Early Termination: A jail/prison term is “hung” over an offender’s head but not served if conditions are met. § 46-18-208 MCA allows application to end supervision early after 3 years or two-thirds of time, whichever is less.
Fighting Words: Extremely provocative words likely to incite immediate violence; even those are not automatically “disorderly conduct” unless public disturbance is shown.

5. Conclusion

State v. Baertsch tightens the analytical screws on two fronts. First, it clarifies that disorderly conduct is inherently a public-order offence; prosecutors who wish to employ it as the “other offense” in burglary must show a disturbance capable of rippling beyond private walls. Second, it re-asserts legislative supremacy over sentence-termination timeframes, limiting judicial creativity unless a defendant bargains away the right. The ruling harmonises Montana precedent, enhances First-Amendment compatibility, and offers a roadmap for both prosecutors and defence counsel navigating predicate-offense burglaries and sentencing conditions in the Treasure State.