*1 1980; 12, Argued February and submitted March resubmitted in banc February April reversed and remanded reconsideration denied (291 117) petition for review denied June GAFFEY, Appellant, al, et BABB Respondents.
(No. 13882) C78-12-114, CA
Hugh Downer, him the brief was respondents. Spicer With Gold Beach.
RICHARDSON, P.J.
THORNTON, J., dissenting opinion. P.J.,
RICHARDSON, ac- brought Petitioner tion a criminal seeking a declaration that Brookings enjoin enforce- City unconstitutional and to ment of the ordinance. The trial court held ordi- nance was constitutional appeals. establishment,
Petitioner owns a business de- scribed as a "head sale shop,” pipes, which offers cigarette rolling books, papers, magazines posters, among other items. A as "a shop” place "head was described engaged business frequented persons use or sale of nareotics or controlled substances.” That definition amplified was the witness as follows:
"Well, shops, by explanation head now so I can way your question, answer shops today head have taken on a posture They’re different than they originally. did a mixed business they legitimate now. Record where shops sell records, element, and to entice particular enhance business, they their engage also the sale of other items type engaged draw this person, persons those use, shop.” abuse controlled substances their *3 October,
In Brookings City adopted the an ordinance prohibiting In dealing paraphernalia. December, 1978, petitioner declaratory filed a judgment action that alleging the ordinance was unconstitutional. The city repealed then the ordinance and enacted the ordinance under presently review. The ordinance took ef- fect immediately and upon passage, petitioner challenged the new ordinance an complaint. amended
Petitioner has his shop closed on advice counsel for fear he be subjected by would to the prosecution city however, attorney, he if reopen would the ordinance were declared invalid. questions
Threshold are whether the complaint alleges justiciable controversy, a whether has petitioner standing challenge to the and the issue whether is ripe charged for decision. has not with Petitioner been alleges violation of the ordinance. that there complaint justiciable is a that controversy petitioner suffering and in future harassed irreparable injury by the will be utilizing defendant the further complaint ordinance. on its alleges that the ordinance is unconstitutional face. justiciabili not issues of Defendants did raise the nor in a ripeness in their ty, standing pleadings Ashland, In City demurrer. Cornelius (1973), that the proper 506 P2d rev den suggested we way responsive raising by method of those issues was however, issues, If are by and not demurrer. the pleading if its parties may the the court determine raised in a adjudicative parties are invoked. powers properly determina declaratory judgment judicial action who seek validity may tion the constitutional of an enactment to no court challenge right have incentive to If on depend entirely determine the merits of claim. we in a to raise the judgment the defendant action declaratory may case be led authority of the comb’s to hear the issue issuing deciding into an issue which advisory opinion In urge. has no to Gortmaker petitioner standing Seaton, (1969), the Comb Supreme P2d declaratory judgment declined to reach the merits of a bring to standing that did not have petitioner basis took fact despite the action. The court that action trial court. neither raised the issue party a case, there is petitioner alleged irrepar- and that he would suffer justiciable controversy harassed defen- injury able the future will be is unconstitutional enforcing the ordinance he claims dants his prove presented tending on its face. He evidence can There thus from which we evidence allegations. if is a if there standing determine has which is determination. justiciable controversy ripe the issue of argument propriety oral we raised During challenge declaratory judgment action on the memoranda requested ordinance. We supplemental parties complied request. and both have issue that will serve all It is difficult to formulate rule action if a purposes determining the mini At a criminal enactment. proper *4 (1) genuine is a there mum, a must establish that (2) that peti controversy truly parties; between adverse to a injury concrete subjected to a particular tioner will be interest; or other substantial property right demonstrated (3) in irreparable injury be immediate will (4) prosecution; the matter is likelihood of terms of the ripe adjudication precise situation in that there is a fact adjudication that a final of the issue or sufficient to allow unnecessary challenged law fact situation is to test the (5) alleged face; to be invalid its because it proceedings legis- pending there are no other challenged. lation can be juris- Declaratory Judgment expands Act peti-
diction of courts to include those cases where the "rights, legal tioner’s status or other relations” are affected challenged be enactment. ORS 28.010. The act is to liberally wrong construed, ORS 28.120. No actual need be declaratory committed or loss incurred in order to invoke remedy litigants declaratory judgment designed relief. The of a was uncertainty by adjudicating to relieve their rights any wrong damage before is committed or incurred. general declaratory judgment is a
There rule that a interpret challenge action is not available to a criminal continually enactment. That rule has been eroded ad exceptions general expanding hoc and a trend toward declaratory exception relief. Cornelius demonstrates an genera} recognition judicial rule and a of the trend. In discussing availability declaratory relief relation legislation, to criminal we said in Cornelius: «* * * remedy declaratory judgment design- 'rhe was parties ed uncertainty by adjudicating rights to relieve wrongs actually and duties have been committed before short, damages declaratory judg- In have been suffered. preventive justice. ment perceptible
"Such a result is consistent with a trend expansion availability declaratory relief to toward validity applicability test of criminal statutes. (1966). Annotation, arguments Strong sup- 10 ALR3d 727 Note, port expansion the continuation and this trend. (1967).” original.) L (Emphasis Harv Rev 1490 App at 188. conjunction expanding the trend to make
declaratory judgment available as a vehicle to statutes, criminal noted a further reason to allow chal- relief Cornelius. Because the ordinance lenged provided only but no for detention Cornelius charge, not have an detained would *5 622 the basis of his challenge available to proceeding
effective rule, to the discussing exceptions general detention. said in Cornelius: of a validity applicability
"A declaration of the
statute has never been denied on the
substantive
plaintiff
potential
had the
alternative
grounds that
defending
Anthony v.
remedy
just
prosecution.
a
Veach
493,
(1950),
462,
appeal
220 P2d
Petitioner has judgment proceeding. in validity ordinance’s "* * * status or other rights, A has if his standing Standing by are affected the ordinance. legal relations” in direct, interest allegation an of a substantial requires Seaton, See Gortmaker controversy, ORS 28.020. city in the shop” "head Petitioner owns supra. him to subject prosecu- He sells items that could Brookings. to the presented the ordinance. The evidence tion under at peti- was directed indicates the ordinance trial court in the interest He has a substantial establishment. tioner’s citi- the other direct than litigation more outcome of ordinance, Following enactment Brookings. zens of attorney that of his his business on advice closed petitioner by the arguably prohibited selling he was were the items that peti- inference supports The evidence ordinance. is de- if the ordinance to resume business intends tioner a busi- carry to right his Consequently, clared invalid. the ordinance. by affected substantially directly ness is Arguably, business, because he has doing ceased longer no is faced with potential prosecution thus does not have standing challenge the ordinance. on the placed Petitioner horns of a dilemma. If he closes his in to the risk shop response under an prosecution invalid, ordinance he considers may he then have removed a critical element of standing. city has its accomplished in forbidding the sale purpose of certain items without having to defend the ordinance. If petitioner, order to standing, items, have continues selling the he runs suspect prosecution, the risk of arrest and the result he seeks to avoid his declaratory judgment Petitioner has petition. his willingness demonstrated to abide the ordinance by closing his business on advice of counsel. All he seeks is a determination whether he can resume business lawfully. standing should requirement interpreted not be such a fashion that it places artificial impediments resolution of bona fide disputes. Petitioner’s interests are affected as substantially those of the petitioners Ashland; Veatch; City Anthony Cornelius v. Am. F. al; Foster; L. et al v. Bain et McKee v. ’n v. Mult. Co. Fair Ass Langley, supra. all to the ordinance is that it is uncon- Thus,
stitutional
on its face.
it is
unnecessary
develop a
fact situation
order to review the merits of that
precise
contention.
courts have
a number of
Appellate
developed
rules and
of a
guidelines
analyzing
constitutionality
statute. One
those rules deserves mention
*7
terms
for decision in
factual
ripeness
respect
of
to a
basis
for
the issue of
a
constitutionality. When
approaching
face, it is
challenged
statute is
as unconstitutional
on its
to sustain
if we can
it a
generally
duty
give
our
the statute
interpretation
by
constitutional
construction
narrow
as
set of
finding
applied
particular
it constitutional
to a
Drummond,
558,
v.
6 Or
625
that a
complaint
alleging
its
serves the same
is
face
enactment
unconstitutional
in a
We have
demurrer
criminal proceeding.
as a
purposes
when
question
a constitutional
approach
to
hesitated
Elston,
demurrer,
v.
City
Portland
e.g.,
raised
of
Harris, 40 Or
125,
(1979);
App
State v.
sion in terms of need a factual if construed analyze the ordinance to determine it could be any be as to fact situa- applied potential to constitutional prosecution. explained tion in a criminal As subsequently detail, the ordinance are the definition portions more to conceivable fact unconstitutionally vague applied Thus, regardless prosecution may the facts the situation. ordinance, it does not in a under develop prosecution citizens, trier reasonably inform the of fact what police necessity There prohibited. precise conduct is is no petitioner’s challenge. fact situation in order to determine standing It is proper determining question judicial from relief. See hardship denying consider Grath; v. City Committee v. Me Cornelius Anti-Fascist of is Ashland, if supra. hardships both Hie he petitioner substantial. He close an may denied relief are permanently prosecu- business for fear of arrest and otherwise lawful of violation of the law and subse- tion. The alternative unacceptable. to its validity equally quent innocent, he found must ultimately Even if petitioner the atten- rigors prosecution undergo in order to vindicate his views as disapproval dant public See, Zeitlin e.g., validity the ordinance. constitutional P2d 383 Rptr Cal 2d Cal Arnebergh, (1963). personal cert den 375 US ALR3d prosecution a criminal undergoing to a person damage damages for many awarding as the cases not insubstantial A citi- demonstrate. prosecution and malicious false arrest facing hardships to endure the zen should not be required requirements strict construction by a standing ripeness. controversy, *8 Having concluded that is properly issue before us and is action proper instance, we review the merits of petitioner’s claim. The provides material part:
"Section 1: "It shall be unlawful any person knowingly for deliver, manufacture, drug or sell paraphernalia or to possess drug paraphernalia with the intent to manufac- ture, deliver, or sell paraphernalia.
"Section 2: "For of purposes this ordinance: "(a) actual, 'Deliver’ means the or constructive at- tempted transfer from one person drug para- to another of phernalia, agency relationship; whether not there is an or
"(b) production, 'Manufacture’ means the preparation, construction, processing paráphemalia, or and includes any packaging repackaging drug paraphernalia, or container; labeling relabeling or the or its "(c) instrument, 'Drug paraphernalia’ any means de- vice, article, used, use, designed or contrivance in ingesting, administering, intended for use smoking, preparing controlled substance defined in ORS 475.015.
The ordinance contains an exception for instruments used in the lawful administration drugs. penalty provided is a up maximum fine to six months incarcera- $500 tion.
Petitioner the ordinance a num- challenged under ber of constitutional we theories. Because determine vague the ordinance is thus violative of due process law, will not address petitioner’s remaining contentions. Court,
The United States Supreme Colautti Franklin, (1979), 439 US 99 S L Ed 2d Ct an if determining reiterated often articulated standard for for vagueness: enactment void that, as a process, "It settled matter of due give ordinary intelligence statute that 'fails his contemplated fair notice that conduct forbidden * * * statute,’ encourages is so indefinite that 'it * * * convictions,’ is void arbitrary and erratic arrests * * * true especially to be vagueness. appears 'This threatens to uncertainty by the statute induced where * * rights. constitutionally protected inhibit the exercise of *9 omitted.) (Citations US at 390. 439 Hodges, in the rule follows State Oregon, was stated as (1969): 21, 457 P2d 254 Or 491 " require- the 'It is established that a fails to meet law vague and if it is so of the Due Process Clause ments as to the that it uncertain public standardless leaves the jurors free to prohibits judges it or conduct leaves decide, standards, pro- what is legally without fixed ” * * *’ case. particular hibited and what is not each (Citations omitted.) Or at 25. as un legislative challenged
When a enactment interpret it is our constitutionally vague, obligation result in a statute, if in a manner which will possible, White, 9 Or finding constitutionality. City Portland 239, 495 (1972); Yancey, P2d rev State v. den App (1978). P2d does not obligation But that engage us to in tortured or to amend the analysis require limitations by inserting enactment definitions or to delete terms adopted through legislative process enacted. of the find unconstitu portion ordinance we vague "drug paraphernalia” is the definition of
tionally 2(c), defines The essence of that subsection supra. section instrument, terms of the use "drug paraphernalia” it is device, or It is not the use to which article contrivance. seller, but the use in the hands of the manufacturer put consumer. of the item the hands of the ultimate made by testimony Both evidence parties presented in enforcement of who had established persons expertise there are indicated drug testimony use laws. abusers. The by drug that can and are used items be myriad drug paraphernalia of items could be considered range For illicit users. ingenuity is limited several common testimony indicates example, range of general in the items or items available household aid in as an been adapted spontaneously retail stores have electrical A common ingestion. illegal drug preparation cigarette marijuana used hold a often alligator clip order that it be may consumed to A its full extent. pull tab from an aluminum beverage can has been used for the purpose ingesting cocaine into the nostrils. A small mirror and pocket razor blade is often used to separate powdered drugs such as heroin or cocaine into smaller Most of proportions. the items identified or described expert uses; witnesses have dual one use for which they originally were manufactured and a second use when adapted illegal preparation administration con- trolled substances. The number or of items that could type come within the purview of the ordinance is only by limited the use to which the ultimate consumer the item. puts
The city argues that generality of the descrip- tion can be cured by at expert testimony a trial violation of the ordinance. The contention to be that appears recog- nized can experts determine if a item is particular used or intended for use in illegal preparation or administra- drugs. method, tion of By argues, city judge or jury can be informed as to the character of the item the *10 accused is charged with manufacturing, selling or delivering. The difficulty with that is that it is argument the antithesis of the that a ordinance requirement statute inform the public and law enforcement personnel of the standard of conduct ordinary citizen required. should not have to depend on the of an at testimony expert trial to determine if his conduct by the ordi- prohibited nance. The law enforcement agencies must also have stan- dards of enforcement in order that enforcement of the ordinance will not be arbitrary or testi- capricious. Expert mony presented in the adversary setting of a trial does not provide standards for the persons sought whose conduct regulated to be police or the enforcement of charged with the ordinance.
In determining is vague whether an enactment its face we need not it in review terms of an actual fact case, however, situation. The evidence presented in this serves to illustrate the difficulty determining what items are considered drug The conclusions paraphernalia. of the who that could be experts regarding testified items drug considered mea- paraphernalia large were based A criminolog- sure on actual use of the described item. Oregon ist for the State Police testified that his conclusion on his was based that certain items are paraphernalia he of which items, percent of these examination The other a a residue of controlled substance. discovered testified that officers, likewise police who were experts, two they identified demonstrated the items experiences their of actually process had been used drug paraphernalia does question here drug ingestion. illegal regulate seeks to the use of items but regulate use. Thus manufacture, sale or of item delivery prior be determined an electrical could alligator clip the sale of on the drug paraphernalia to be the sale of expert are, experience in the alligator clips basis that smoking marijuana cigarettes. used for expert, supra, State a statute Yancey, upheld (ORS records gambling possession prohibiting 167.132) in the statute was the face of a contention that unconstitutionally its face. held vague on We it rescued from knowledge requirement statute vagueness. portion provides: The relevant statute "(1) possession A person commits the crime of if, knowledge gambling degree records in the second thereof, any writing, paper, possesses of the contents he instrument or article:
"(a) operation commonly Of a kind in the used enterprise; a promotion bookmaking scheme or "(b) kind commonly operation, promo- Of a used in the or enter- playing lottery tion or or numbers scheme prise.” stated:
We knowledge requirement
"This alleviates vagueness the state shows problem since who object type com- knowledge possessed had that the is of ”* * gambling used in a can be convicted.* monly scheme *11 App at 480. Yancey, supra, State v. rationale utilized here at issue. readily not save the ordinance applicable records, made, gambling once a use as Gambling have may make the records paper records. and used to pencil paper once many purposes pencil applied have but to one record, the use of the' is narrowed paper make a i.e., in a scheme. commonly gambling records used purpose,
The ordinance here challenged provides: "It any knowingly shall be unlawful person to * * manufacture, deliver, drug paraphernalia or sell added.) (Emphasis knowledge by the person charged, the item manu- factured, delivered or sold is drug adds little paraphernalia, to the definition of what can be lawfully manufactured, delivered or sold. The items as drug described parapherna- lia are like much the pencil used to make paper A gambling records. person pencil who possesses with the paper knowledge used they going are to be to make gambling records is not in violation of the statute. Once the gambling record is made knowledge, with the possessor’s all the elements gam- statute are and the supplied bling records have no other use.
The knowledge requirement of this ordinance does not supply missing standards to determine what is not included in the A definition. of a proprietor hardware store offer may alligator clips fully sale aware that are often used to clips smoke in addi- marijuana cigarettes tion to their use in may electrical A repair. druggist sell mirrors hand and razor or cigarette rolling blades papers knowledge with the these items used or are intended for use consumer for illegal drug preparation A ingestion. grocery store clerk sell may beverages aluminum cans knowing that tabs of the cans pull are to ingest used cocaine Applying into the nostrils. Yancey rationale of to uphold the arguably statute would make these merchants liable for An item prosecution. which has legitimate as well as an illegal purpose, de- pending the use upon applied, to which it is does ultimately its change character knowledge simply person it. manufacturing, selling delivering
It is urged that analytical approach State v. Tucker, Or App 558 P2d rev den 277 (1977), can be used to uphold the definition of this portion 166.240, ordinance. In Tucker we upheld pro- ORS carrying hibits the of concealed weapons: "* * *[A]ny person who his carries concealed about any manner, revolver, any pistol or other firearm, knife, ordinary pocketknife, other than *12 knuckles, shot, in- dirk, any dagger, slung metal or any upon injury which be the use could strument inflicted of * * *.” any (Emphasis property person other the of added.) of the stat- alleged portion that the emphasized Defendant held: unconstitutionally We vague. ute was * * * preceded by phrase controversy "The here in knives, i.e., firearms, knuck- weapons, list of metal specific les, slung phrase to embrace and shot. We construe this the items which are similar in nature to enumerated those as designed primarily and intended objects, are Accordingly we bodily to inflict death. weapons injury or applies this statute to not enumerated which hold items the designed primarily injury and intended inflict are person at property of 33. another.” in- In the legislature Tucker we determined what at looking specific the the general phrase by tended of in the statute. prohibited weapons included examples intended analysis legislature the From determined com- the prohibit carrying weapons possessed which con- mon characteristic of those enumerated. statute meaning general as to legislative guide tains the the The same cannot said of ordinance description. be specific examples ordinance does not contain question. city items the intended to prohibit. commission addition, in the term "manufacture” used ordinance of an item but also making defined to include not of an an elec- labeling repackaging Consequently, item. as when labeled alligator clip repackaged trical drug paraphernalia. "roach holder” is the manufacture though be even This would so under as an clip designed primarily was and intended alligator connector. electrical
The major ambiguity defining parapherna- item is the lack design lia in terms distinguish purposes characteristics lawful design dealing the unlawful In Tucker we were purposes. from items, have a common weapons, a class readily recognizable- characteristic distinguishing items not so from designed weapons items as separates but usable as such. designed perhaps
In Tucker we noted there are a number of common items combs, such as rat-tail letter openers, screwdrivers or ball point pens which can be used to inflict injury. We concluded that did they not fall under the general defini- tion of the statute reviewed in Tucker they because were designed primarily as weapons. fact these common items may be intended by the possessor be used did weapons not include them in the definition. Conse- quently, the intention to use the item a prohibited fashion does not make it a prohibited item under *13 Tucker rationale.
The drug paraphernalia ordinance prohibits more than selling or delivering items designed illegal drug use. It is broad enough to cover items used or intended for It use. thus cannot be by judicial restricted construction only to apply items designed primarily illegal drug use. The rationale of Tucker does not save the ordi- nance. Drug
The Enforcement Administration United States Department of Justice drafted a Model Drug Act Paraphernalia to assist state and governments local enacting drug paraphernalia statutes which would with- stand constitutional attack. Drug Enforcement, March 7, Vol 28. p Statutes and ordinances based on the Model Act have had a checkered career in the courts. For example, Tobacco Treen, Accessories and Novelty, Etc. v. (E.D. F Supp 501 1980), La the District Court upheld the Louisiana statute based on the Model Act. prin- The cipal challenge was that the statute unconstitutionally was vague in defining drug paraphernalia. The United States Court of Appeals for the 6th Circuit declared several local ordinances modeled on the Model Act to be unconstitution- ally vague regarding critical definition. Record Revolu- (6th 1980). tion No. Inc. v. City Parma, F2d 638 916 Cir opinions those two courts are diametrically opposed and the conflict in analysis is not resolvable. It would seem the Circuit Court’s opinion would weight have more and it appears be the better reasoned opinion.
The definition paraphernalia the ordi- nance offers no clear standard which a person of com- mon understanding could determine what items fall within
633 the courts agencies, The law enforcement its prohibition. guard standard to are not sufficient juries supplied or ad hoc enforcement. The ordinance arbitrary against is re- judgment on its face. unconstitutionally vague entry judgment is remanded for of a versed and case deter- Because we the ordinace unconstitutional. unconstitutional, we are confident mine the ordinance it, seek to and it is therefore the defendants will not enforce enforcement. unnecessary enjoin Reversed and remanded. J.,
THORNTON, dissenting. con- justifiable concludes majority my case. I In the trial troversy disagree. exists in this view declara- assuming jurisdiction granting erred court relief. tory criminal general
This is a ordinance. The lie that a does not proceeding rule is as to the construction of advisory opinion to obtain Seaton, 440, 450 P2d law. See Gortmaker v. (1969); P2d Knight, Nelson (1969). Gortmaker, the court out the rationale pointed following language: this rule *14 litiga in this 'The construction of the statutes involved adversary if accomplished, necessary, tion can be any time a demurs to an indictment proceeding on the defendant charge does a grounds the indictment not that the under If a defendant should assert rules crime. being properly promul prosecuted which he were question and either gated, the trial court can decide the simple con appeal. can ORS 138.020. When a party law, declaratory a testing is at hand for venient means suit between friendly parties [Citations lie. omitt will not Or 450 P2d ed.]” 252 at 547. City Ash relies on Cornelius majority (1973),
land, P2d rev den for in this was declaratory judgment proper proposition Cornelius, declaratory relief because we allowed case. charging challenged did not for provide there the ordinance ordinance authorized with a crime. The an individual him for a into and detain custody to take a person police certain investigation period charging without the indi- vidual with a crime. there would be Consequently, no in which the proceeding affected could the ordinance. not in challenge Cornelius therefore point here in that only plaintiff there the open avenue the ordinance was challenge by declaratory judgment. It was impossible plaintiff prosecuted to be for violating Therefore, that ordinance. he did not have the usual rem- edy demurring to the or complaint~as indictment sug- gested in is normally Gortmaker~tina.t available to any desiring citizen a substantive criminal statute. Here there is no why remedy reason the usual to challenge substantial statute or ordinance is not available to this plaintiff. Accordingly, I reverse would and remand with instructions to vacate entered trial court. it
While
is true that our
Court has in
Supreme
granted
number of instances
declaratory relief with ref-
(see
erence to criminal
opinion
statutes
Cor-
dissenting
nelius), an examination
cases
those
will show
justiciable
issue of
never raised or consid-
controversy was
ered
these cases. The
to be
appears
same
true of
granted
the cases wherein
was
as to
relief
civil
ordinances,
exception
statutes and
with the
of Recall Ben-
al,
(1952),
nett Com. Bennett et