CITY OF RENO, PETITIONER, v. SECOND JUDICIAL DISTRICT COURT, AND JOSEPH JAMES BARRETT AND JOHN GEORGE BULLIS, RESPONDENTS.
No. 5225
Supreme Court of Nevada
May 3, 1967
427 P.2d 4
Affirmed on all issues except the question of damages, concerning which the order of the trial court is reversed and the matter remanded.
THOMPSON, C. J., and ZENOFF, J., concur.
Clinton E. Wooster, of Reno, for Petitioner.
Samuel B. Francovich, of Reno, for Respondents.
C. G. Griswold and Jerry Carr Whitehead, of Reno, for Nevada Trial Lawyers and Nevada Civil Liberties Union, amicus curiae.
By the Court, THOMPSON, C. J.:
The Reno, Nev., Municipal Code, 12-112-1, creates a crime called “disorderly conduct” for which one may be punished by a fine not to exceed $500, by imprisonment not to exceed 6 months, or by both. The part of the ordinance with which this proceeding is concerned prohibits persons of evil reputation from consorting for an unlawful purpose. A person of evil reputation is defined as one who has been convicted of any felony, misdemeanor or gross misdemeanor involving moral turpitude, or has the general reputation in the community as a prostitute, panderer, narcotics user, burglar or thief. Proof that the accused bears an evil reputation and is found consorting with any person of evil reputation is prima facie evidence “that such consorting was for an unlawful purpose.”
The district court declared the ordinance unconstitutional. The City has brought this proceeding in certiorari to review that ruling. The proceeding is authorized.
It is suggested that the rationale expressed in the cited authorities should control the resolution of the enactment before us since its effect is to make criminal the mere state of being an ex-convict, or of having an “evil reputation.”
Subordinately, the disorderly conduct ordinance is attacked on the ground that its language is so vague and indefinite as to violate due process. It is submitted that the terms “evil reputation,” “general reputation,” “consorting,” “moral turpitude,” “unlawful purpose,” are unclear and uncertain for a valid penal law. In this regard the following authorities are offered. Lanzetta v. New Jersey, 306 U.S. 451 (1939) [holding New Jersey‘s “gangster” act unconstitutional on the ground of vagueness]; Connally v. General Construction Co., 269 U.S. 385 (1926) [where, inter alia, the court wrote: “And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.“]; Edelman v. California, 344 U.S. 357, 362 (1953) Black, dissenting [where the term “dissolute person” was, by Justice Black, found too vague and uncertain]; Musser v. Utah, 333 U.S. 95 (1948) [where the court hinted that the phrase “injurious to public morals” might attempt to cover so much that it effectively covers nothing]; People v. Belcastro, 190 N.E. 301 (Ill. 1934) [where the Illinois Vagabond Act was struck down]; cf. In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967).
Finally, a constitutional challenge is aimed at sub-section (c) of the ordinance which allows proof that the defendant bears an evil reputation and is found consorting with any person of evil reputation to be prima facie evidence that “such consorting was for an unlawful purpose.” It is argued that proof of the mere association of persons of evil reputation bears no rational connection to the fact presumed—that the association was for an unlawful purpose—and must be struck down on the authority of Tot v. United States, 319 U.S. 463 (1943); United States v. Romano, 382 U.S. 136 (1965); Carter v. State, 82 Nev. 246, 415 P.2d 325 (1966); People v. Licavoli, 250 N.W. 520 (Mich. 1933); Ex parte Smith, 36 S.W. 628 (Mo. 1896). It is suggested that the association of such persons does not necessarily point to an unlawful purpose; that the sub-paragraph is wholly incompatible with the presumption of innocence, and with the burden cast upon the state to prove guilt beyond a reasonable doubt. Contra: State v. Salerno, 142 A.2d 636 (N.J. 1958); People v. Pieri, 199 N.E. 495 (N.Y.Ct.App. 1936).
The district court relied upon each of the mentioned constitutional standards in striking down the ordinance.
The traditional concept of a crime contemplates action or the failure to act. Indeed, our legislature defines a crime as “an act or ommission forbidden by law.”
The justification for such proscription must be found, if at all, within the police power of a municipality to legislate for the public welfare and safety. The cases of People v. Pieri, 199 N.E. 495 (N.Y.Ct.App. 1936) and State v. Salerno, 142 A.2d 636 (N.J. 1958) may be read to support this view, though in Salerno the court did not undertake to resolve the constitutional challenge. In any event, it is apparent that the exercise of governmental power in this fashion confronts the revered doctrine that one may not be deprived of his liberty or property without due process of law. One force must yield to the other. Our role is to decide which has the greater stature in the matter at hand.
The aim of the ordinance is to prevent crime. Armed with the authority which it bestows, an officer may harass a reputed criminal, and, perhaps, force him to leave town. He may arrest and jail on mere suspicion. He may round up individuals for interrogation, and otherwise use its protections in any
This type of law is not needed to grant an officer the right to stop persons and make some inquiries incident to a legitimate investigation. A citizen‘s freedom may be temporarily interrupted for that purpose. People v. Mickelson, 380 P.2d 658 (Cal. 1963); cf. People v. Rivera, 201 N.E.2d 32 (N.Y.Ct.App. 1964) dealing with the New York “stop and frisk” statute. The vice of the ordinance before us is that it allows the forceful detention of persons belonging to the class described without any showing of probable cause—not a mere temporary interruption to answer questions. One possessing an evil reputation may be arrested, booked, arraigned, put to the expense of bail and counsel, or, if indigent, he must languish in jail awaiting trial—all because of the officer‘s subjective, on the spot evaluation, aided, of course, by the presumption that the defendant had some unlawful purpose in mind. In our judgment the interests of a free society are not promoted by such an ordinance. We share the view of the district court that the ordinance is unconstitutional on its face since its effect is to make status a crime thereby violating due process. This proceeding is dismissed and the judgment below is affirmed.
ZENOFF, J., concurs.
COLLINS, J., dissenting:
Our duty is clear that we must uphold the constitutionality of a statute (or ordinance of the City of Reno in this case) if we can. To put it another way, if there is any doubt upon the constitutionality of a law it ought to be sustained. State v. McClear, 11 Nev. 39, 68 (1876). All statutes (and ordinances) come to this court clothed with a presumption of constitutionality. We should not declare them unconstitutional unless we have no choice. Here we have another choice.
The New York ordinance, discussed in Pieri, supra, reads in part:
“Section 722: Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: * * *
“Who bears an evil reputation and with an unlawful purpose consorts with thieves and criminals * * * consorting with persons of like evil reputation, thieves or criminals shall be prima facie evidence that such consorting was for an unlawful purpose.”
Interpreting the elements of the crime necessary to be proved to sustain a conviction, the court said in Pieri, supra, at page 497:
“Here then is the crime. If a person of bad reputation, with intent to provoke a breach of the peace, keeps company with criminals, makes them his associates, for an unlawful purpose, he is guilty of disorderly conduct. Nothing unconstitutional about such a statute. [Emphasis supplied.] There may be difficulty in finding the evidence or in proving the case, but when proved, an offense is committed not unlike ‘vagrancy,’ which has been in the statute books for many a day.”
That is the touchstone of Reno‘s problem. One can envision great difficulty in securing evidence and in getting it admitted at the trial, but we should let Reno try and not strike down the ordinance before any experience is had with it. This court, the district court and the Reno municipal court would still have the obligation to require the city attorney to comply with constitutional requirements of due process in its enforcement.
The Reno City Council, in its wisdom, saw fit to adopt the measure in an effort to combat crime attributable to persons of “evil reputation.” Thus, when a municipality such as Reno undertakes to experiment with programs and techniques to deal with the problem, we should not prevent that undertaking unless it is our clear, legal and constitutional duty to do so.
The United States Supreme Court has not seen fit yet to hold unconstitutional vagrancy statutes, including the “status” question presented here. Hicks v. District of Columbia, 383 U.S. 252 (1966). Hence, in the absence of any decisive mandate from that court, we should hold unconstitutional only those ordinances and statutes where we have no choice.
We must be extremely careful that our dedication to pure constitutional principal does not destroy the very thing we are trying to protect. Society has to adjust to the rules of the game being played, and if that game is ruthless, brutal crime, society has to have ingenious, but lawful techniques to deal with it.
I respectfully dissent.