Lead Opinion
The Circuit Court, in a written opinion and order dated 28 October 1998, denied Petitioner’s motion to dismiss and motion for judgment of acquittal with regard to the charge of harassment. The court denied the motion to dismiss, but granted the motion for judgment of acquittal, as to the charge of stalking.
Did the trial court err in denying Petitioner’s motion to dismiss and in convicting him of harassment under Md.Code (1957, 1996 RepLVol.), Art. 27 § 121A, now codified with minimal changes as § 123, specifically in the face of a challenge that the statute is unconstitutionally vague and overbroad on its face and as applied to Petitioner and in the face of a challenge that the facts did not support such a conviction?
I.
In 1995, Galloway was convicted of stalking and kidnapping Kimberly Javin (Javin), his “common law wife.” For these crimes, he was sentenced to twelve years incarceration at the Maryland Correctional Training Center (MCTC). It was while serving this sentence that it was alleged that he committed the crime of harassment which is the subject of the present case. According to the agreed statement of facts, between 11 April 1997 and 11 March 1998 he sent 122 letters to Javin at her residence. In addition, he sent an additional 11 letters to her in care of Javin’s parents to their home address. Both before and after 17 April 1997, Javin, her parents, Galloway’s former attorney in the kidnapping/stalking case, and the assistant warden and a correctional psychologist at MCTC, requested of Galloway that he not send letters to Javin. The prosecution, at the 4 November 1998 hearing, stated that at least five people, including Javin, told Galloway directly to stop writing these letters.
By stipulation, the parties agreed that Javin, if called to testify, would state that “the letters seriously alarmed her and caused her to fear for her life on or after ... [Galloway’s] release date, which she believ[ed] to be April of 1999.” It was agreed further that Javin would testify that her fears stemmed from the fact that Galloway was serving a prison term after having been convicted of stalking and kidnaping her on 20 March 1995. As a condition of his sentence and future probation flowing from those crimes, Galloway was
Galloway was charged with harassment and stalking. Maryland Code, (1957, 1996 RepLVol., 2000 Cum.Supp.), Article 27, § 123, the harassment statute, provides:
(a) Course of conduct defined. — In this section “course of conduct” means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
(b) Applicability. —This section does not apply to any peaceable activity intended to express political views or provide information to others.
(c) Prohibited Conduct. — A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:4
(1) With intent to harass, alarm, or annoy the other person;
(2) After reasonable warning or request to desist by or on behalf of the other person; and
(3) Without a legal purpose.
(d) Penalty — A person who violates this section is guilty of a misdemeanor and, upon conviction, is subject to a fine not exceeding $500 or imprisonment for not more than 90 days or both. (Emphasis added).
The trial judge acquitted him of the stalking charge, but found him guilty of the harassment charge. Galloway argued that § 123 is unconstitutionally vague and overbroad under the U.S. Constitution
In sending the victim over 130 letters over the course of eleven months, the Court can find that [Galloway] maliciously engaged in a course of conduct that seriously alarmed and annoyed the victim. In repeating the same messages and expressing [Galloway’s] desire to reunite with the victim, the Court can find that Defendant intended to harass the victim. As [Galloway] admits in his letter that he knew that victim did not want him to contact her, the Court can find that [Galloway] received a reasonable request to desist. As these were personal letter [sic], the Court can find that they served no legal purpose. Therefore, the Motion for Judgment of Acquittal is denied.
The Court of Special Appeals affirmed the Circuit Court’s judgment, agreeing that the language of § 123 was neither vague nor overly broad and that there was sufficient evidence to support a conviction of harassment.
In this opinion, we shall address the following: (1) is § 123 unconstitutionally vague; (2) is § 123 unconstitutionally overly broad; and, (3) if § 123 can withstand constitutional scrutiny, was the evidence adduced against Petitioner sufficient to support a finding of harassment. We determine, after examining the legislative history of § 123 and surveying the treatment accorded similar statutes by other courts, that a reasonable person standard should be read into the language of subsection (c)(1) of § 123, and with that judicial gloss, § 123 survives constitutional scrutiny.
II. Constitutionality of § 123
In determining the constitutionality of statutes, “[t]he basic rule is that there is a presumption” that the statute is valid. State v. Wyand,
A. Legislative History, of § 123
According to the 1986 Maryland Laws, chapter 721, the purpose of § 123 is
prohibiting a person from following another person in a certain manner or from engaging in certain other conduct under certain circumstances; defining a certain term; providing penalties for a violation of this Act; providing that this act does not apply to certain conduct; and generally relating to the crime of harassment. (Emphasis added).
There is no documentation in the bill file regarding whether this statute was modeled after that of another state, even though, as we discuss infra, other states have used identical or similar language in fashioning their harassment statutes and in defining the term “harass” in their statutes. The only other insight provided is in the Summary of Committee Report on House Bill 381 (the bill from which the harassment statute came) prepared by the Senate Judicial Proceedings Committee. According to the Report, the proposed harassment statute
will help law enforcement agencies in their attempts to defuse ongoing feuds and longstanding disputes between neighbors, former boyfriends and girlfriends, and adults which arise on a daily basis. The Baltimore Police Department testified that police departments’ hands are virtually tied without this legislation. House Bill 381 would give law enforcement personnel the opportunity to avoid extreme situations which occur due to harassment and would allow the police to diffuse potentially harmful activity This bill also provides a vehicle for the relief of many victims of harassment who are without legal means to otherwise deal with the problem of harassment.
Summary of Comm. Rep. on H.B. 381, at 1-2 (1986). Though this Report is helpful in elaborating on the purpose of the harassment statute, it does not mention whether the Maryland statute was modeled after the harassment statutes of other states.
B. Vagueness
Petitioner argues that the statute’s use of the words “harass,” “annoy,” “alarm,” and “without legal purpose” in § 123(c) and “political views or ... information” in § 123(b) are unconstitutionally vague, even in light of Eanes v. State,
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.”
Grayned v. City of Rockford,
A well grounded principle in federal constitutional law is that, when considering the void-for-vagueness doctrine, courts consistently consider two criteria or rationales. See, e.g., Williams,
The second criterion of the vagueness doctrine regards enforcement of the statute. This rationale exists “to ensure that criminal statutes provide ‘legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.’ ”
merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials. It is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle.
As a general rule, the application of the void-for-vagueness doctrine is based on the application of the statute to the “facts at hand.” Bowers,
If the challenged statute, however, encroaches upon fundamental constitutional rights, particularly First Amendment guarantees of free speech and assembly, then the statute should be scrutinized for vagueness on its face.
So considered, the principle is essentially a rule of standing, permitting a defendant to challenge the validity of a statute as applied to marginal cases, even though the acts for which he has been charged may be squarely within the coverage of the statute. Once it is determined, however, that a strict specificity standard ought to apply in any given case, the criteria for measuring the validity of a statute under the vagueness doctrine are the same as in a non-First Amendment context: fair warning and adequate guidelines.
Bowers,
Although the Court of Special Appeals has determined that a telephone harassment statute using the words “annoy” and “harass” is not unconstitutionally vague,
Although ultimately we shall not follow those jurisdictions that have found harassment statutes to be unconstitutionally vague, we briefly identify now the reasons that tip our analysis in the other direction and to which reasons we shall return later in our discussion for amplification. In short, even if arguably otherwise deficient, § 123 is salvageable because we shall employ a limiting construction to the statute to ensure that it provides a standard of conduct and indicates whose sensibilities are to be offended. See, e.g., Schochet v. State,
i. State and Federal Courts: Finding Harassment Statutes Unconstitutionally Vague
Petitioner directs our attention to the Supreme Court of Colorado’s determination in People v. Norman,
The court in Norman found fault with the phraseology of the statute. According to the court, the statute did not define any legislative concern, and the statute covered “any and all conduct, by any person.” Norman,
As we shall discuss further, Maryland’s statute, though also employing the words “annoy” and “alarm,” contains limiting language, and we are further willing to read a limiting “reasonable person” standard into the statute. Cf. Boychuk, supra, at 788 (contending that either a judicial or legislative formulation of an objective standard by which to judge harassment would save the statutes from constitutional demise). Moreover, Petitioner misapplies the Norman case in arguing for its application to § 123. The Colorado Supreme Court later emphasized that the phrases “intent to annoy” and “intent to alarm” alone are not unconstitutionally vague, but rather, coupled with restrictive language, other subsections of the same harassment statute withstand constitutional scrutiny. See People v. McBurney,
Petitioner also relies on Kansas v. Bryan,
Petitioner incorrectly relies on the Fifth Circuit case, Kramer v. Price,
The Fifth Circuit identified as a difficulty that the “Texas court refused to narrow the statute by, for example, holding that it applies to writings which would annoy the hypothetical reasonable person and that its standard does not vary with the sensitivity of each complainant.” Kramer,
Petitioner also relies on Oregon v. Sanderson,
Furthermore, the Court of Appeals of Oregon in Oregon v. Schwartz,
[A]n argument that a statute covers too much ground can never, standing alone, support a vagueness challenge. As a matter of logic, the conclusion that a law is insufficiently definite to provide guidance to its potential violators and enforcers simply does not follow from the premise that the statute criminalizes too broad a category of conduct. Secondly, such an argument cannot provide the bases for an overbreadth claim, because “[a] legislature can make a law as ‘broad’ and inclusive as it chooses unless it reaches into constitutionally protected ground.” ... The sole limit on a statute’s breadth is constitutionality, not our second-guessing of what the legislature could or could not have deemed “socially tolerable.”
Schwartz,
ii. Maryland’s Harassment Statute Survives Vagmness Analysis
Whether § 123 should be tested for vagueness on its face is immaterial; § 123 survives the void-for-vagueness doctrine whether it is scrutinized using the agreed facts of the present case alone or employing the imagined facts of “marginal cases.” The statute, on its face and as applied to the facts of Galloway’s case, provides fair warning to potential offenders and adequate guidelines to enforcement authorities when the judicial gloss of a reasonable person standard is read into the statute, along with the inherent restrictions in the statute and the requirement of specific intent.
We agree with the reasoning of the Court of Special Appeals in Caldwell v. State, supra, and with those states finding
We have discussed the intent requirement — “with intent to harass, alarm, or annoy the other person” — and have determined, without difficulty in applying these terms, that certain factual determinations in a protective order provided evidence of intent as required by § 123. We acknowledged
Other jurisdictions have also determined that the words “alarm” and “annoy” have commonly understood meanings and definiteness.
As demonstrated in the above discussion, not all reviewing courts have felt comfortable that there is a common understanding as to the meaning of the words “annoy,” “alarm,” and “harass.” It is often argued, as it was at oral argument in the present case, that these words are broad enough to cover telephone calls from creditors, as well as the actions of a street performer. See, e.g., Norman,
Section 123 contains the provision “[ajfter reasonable warning or request to desist by or on behalf of the other person.” (Emphasis added). See supra p. 609. We have held that such a warning ensures that the offender is aware that further conduct will “alarm[ ] or seriously annoy[ ]” the “other person,” and as such, the offender has fair notice that he or she may be subject to prosecution. Eanes,
Additionally, § 123 has a specific intent requirement— “[w]ith intent to harass, alarm, or annoy the other person.” We repeatedly have determined that such a requirement, while it may not be able alone to save a statute from constitutional infirmity, can help in avoidance of a legally factual conclusion.
The U.S. Supreme Court recognizes that a specific intent requirement aids in ensuring that an accused has fair notice that he or she is violating a criminal statute. In Screws v. United States, the U.S. Supreme Court stated:
The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning. But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does in violation of law.
Reading a reasonable person standard into § 123 helps to narrow further the construction of the statute, keeping in mind that a statute “does not become unconstitutionally vague merely because it may not be perfectly clear at the margins.” Williams,
The California appellate court similarly factored in a reasonable person standard in California’s stalking statute to aid in narrowing its construction.
Moreover, unlike Oregon v. Sanderson, discussed supra, in which the Oregon court determined that it would not read in a reasonable person standard because the legislative history indicated an intention to create a catchall offense, the legislative history of § 123 supports a contrary tact.
The last aspect of Petitioner’s vagueness argument is whether “without legal purpose” is constitutionally adequate. The courts have come down on either side of the fence regarding the issue of whether “without legitimate purpose” is unconstitutionally vague. Compare Oregon v. Norris-Romine,
As for Petitioner’s argument that the statutory exemption for conduct to “express political views or provide information to others”
None of the words and phrases under scrutiny in § 123 are unconstitutionally vague. They have a common meaning and understanding known to the person of common or average intelligence. Moreover, employing a reasonable person standard and the inherent specific intent requirement alleviates further potential doubt. Finally, a potential offender does not have to be wary of unanticipated criminal liability because of the condition that there be a reasonable request to desist. In the present case, Javin, her parents, the assistant warden and psychologist at the prison, and Petitioner’s former counsel told Petitioner not to send letters to Javin. Despite these warnings, Petitioner proceeded to send a large volume of additional letters to Javin within a relatively short period of time. The facts of the present case are also congruent with the intended purpose of the statute. As the Court of Special Appeals stated, “[i]t strains credulity to suggest that ... [Petitioner] could not reasonably understand that these letters would alarm or seriously annoy a woman who [was] the victim of his prior crimes of kidnapping and stalking.” Galloway,
C. Overly Broad
Petitioner also is incorrect in arguing that § 123 is unconstitutionally overbroad. The U.S. Supreme Court explained that “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Grayned,
The crucial question ... is whether the [statute] sweeps within its prohibitions what may not be punished under the First and Fourteenth amendments. The concern is that an overbroad statute may, by that very fact, have a chilling effect on free expression. That is, if a statute is to be struck down as overbroad, it must appear that the statute’s very existence will inhibit free expression. The doctrine is ‘strong medicine’ and should be applied sparingly. It should not be invoked when a limiting construction can be placed on the statute. Because the over breadth doctrine involves a challenge to the facial validity of a statute, a court should not resort to it unless there is a realistic danger that the statute itself will significantly compromise recognized first amendment protection of parties not before the court.
Eanes,
The U.S. Supreme Court has applied the over breadth doctrine to a wide spectrum of cases ranging from those statutes that regulate only the spoken word to those that involve “expressive” conduct. Broadrick,
[T]he plain import of our cases is, at the very least, that facial over breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.
Broadrick,
Explained in another way:
[P]articularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.
Broadrick,
As with the vagueness challenge, the courts of our companion states have divided in their views regarding their respective statutes dealing with harassment as unconstitutionally overbroad or not. We conclude that the reasoning of those states that have determined that their similar harassment statutes do not transgress the confines of the over breadth doctrine are more persuasive, taking into account the mandates of the doctrine and the language of § 123. In following these states, we further determine that § 123 sanctions conduct that is within the state’s power to prohibit and that any overbreadth that the statute arguably may be subject to is not substantial in relation to that conduct which § 123 is meant legitimately to prohibit (or protect).
Many states have concluded that their harassment statutes are not overbroad because of their statutory requirements for purposeful conduct, such as in the present case, requiring an “intent to harass, alarm, or annoy the other person.” In Connecticut v. Snyder,
The over breadth principle is not violated by the unrestricted scope of the messages which the statute may ban because it is the manner and means employed to communicate them which is the subject of the prohibition rather than their content. The statute is not flawed because a recital on the telephone of the most sublime prayer with the intention and effect of harassing the listener would fall within its ban as readily as the most scurrilous epithet. The prohibition is against purposeful harassment by means of a device readily susceptible to abuse as a constant trespasser upon our privacy.
Snyder,
Since the statute proscribes conduct, rather than content of the mailings, the risk that the statute will chill people from the exercise of free speech is minor compared with the unfortunately prevalent misuse of the postal system to harass others and invade their privacy. Thus, because this statute prohibits intentional harassment by means of the mail and does not seek to regulate the content of such mailings, we hold that first amendment freedoms are not involved and the statute is not unconstitutionally overbroad.
Snyder,
Similarly, in People v. Taravella,
Do telephone calls by an angry parent to a student with failing grades, by a dissatisfied consumer or by a disgruntled constituent, if accompanied by language thought to be ‘offensive’ by the recipient of the call, subject the caller to criminal sanctions under the statute? In each case, defendant claims, the caller’s exercise of his constitutional right of free speech might ‘annoy,’ ‘frighten’ or be considered ‘obscene’ or ‘harassing’ by the listener. Thus, under defendant’s interpretation of the statute, if is the listener’s perception or characterization of the nature of the call which would control. We disagree. The statute clearly provides that the focus is on the caller; it is the malicious intent with which the transmission is made that establishes the criminality of the conduct.
Taravella,
On the same note,
The government has a strong and legitimate interest in preventing the harassment of individuals.... ‘Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech. The statute prohibits only telephone calls made with the intent to harass. Phone calls made with the intent to communicate are not prohibited. Harassment in this case, thus is not protected merely because it is accomplished using a telephone.’36
Id. (quoting Thorne v. Bailey,
Furthermore, § 123 expressly eliminates constitutionally protected speech from its ambit. Section 123 “does not apply to any peaceable activity intended to express political views or provide information to others” and the conduct to be prohibited must have no “legal purpose.” Other states have concluded that similar restrictive language helps to abate any over breadth. Cf. Boychuk, supra, at 788 (suggesting that employing language in stalking and harassment statutes that “specifically except[s] protected activities from the scope of the statute” would aid in ensuring that such statutes do not “infring[e] on legitimate activities”). In People v. Shack,
In McKillop v. Alaska,,
A criminal statute should not infringe upon the First Amendment. The First Amendment, however, is not an impenetrable shield which protects any speech or conduct, whatsoever, with disregard to its harm and effect. Despite our First Amendment rights, we are not free to harm others under the guise of free speech. “As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the State has greater latitude to regulate expression.” People v. Borrelli,77 Cal.App.4th 703 ,91 Cal.Rptr.2d 851 (2000) (referring to Shackelford v. Shirley,948 F.2d 935 , 938 (5 Cir.1991)). “Application of the overbreadth doctrine ... is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.” Broadrick,413 U.S. at 613 ,93 S.Ct. 2908 . Concerning stalking laws, there must be a balance that is struck between our constitutional right to free speech and our personal right to be left alone.
Whitesell,
The Kansas court then favorably repeated the following quote:
“Many crimes can consist solely of spoken words, such as soliciting a bribe ... or making a terrorist threat.... The state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside of the scope of the First Amendment protection.... In this context, the goal of the First Amendment is to protect expression that engages in some fashion public dialogue, that is ‘communication in which the participants seek to or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs.... A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of the spoken words.”
Whitesell,
Petitioner cites other out-of-state cases in which a statute was deemed to be unconstitutionally vague despite an intent requirement. These cases, however, do not discuss statutes with the restrictive language of § 123 — “does not apply to any peaceable activity intended to express political view or provide information to others” — and are worded quite differently from § 123. For instance, in Bolles v. People, the Supreme Court of Colorado found that the Colorado harassment statute was unconstitutionally overbroad because the dictionary definitions of “intent to alarm” and “annoy,” as used in the statute, would render criminal such acts as forecasting a storm and warning against illnesses. Bolles,
III. Sufficiency of the Evidence
Petitioner contends that the evidence presented in the agreed statement of facts in the present case was insuffident to prove beyond a reasonable doubt that Petitioner was guilty of violating § 123. We disagree. We have dedared that upon appellate review the “applicable standard is whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bloodsworth v. State,
Our concern, therefore, is not whether the verdict was in accord with the weight of the evidence but rather, whether there was sufficient evidence produced at trial “that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.”
Sowell,
Applying this standard, we conclude that there was sufficient evidence to support
Petitioner maintains that the letters were part of “a peaceable activity intended to express political views or provide information to others” and that they had a “legal purpose” so that § 123 did not apply to his conduct. According to Petitioner, the “letters were basically intended to provide religious information to Javin, to express concern for her religious future and to convince Javin of Petitioner’s love for her.” (Emphasis added). After the initial few letters, however, Galloway was warned multiple times that Javin did not wish to receive communications from him. Those instructions notwithstanding, he continued his course by sending a large number of additional letters. From this, a reasonable fact-finder reasonably could conclude that Galloway’s intent was, in fact, to harass Javin, rather than merely to engage in a peaceable activity, with a legal purpose. We have stated that “the determination of an accused’s intention is, in the first instance, for the trial judge, when sitting without a jury, and this determination will not be disturbed on appeal unless clearly erroneous.” State v. Raines,
The evidence in the record supports the trial court’s explicit and implicit conclusions that the letters were meant beyond a reasonable doubt, (1) to harass, alarm, or annoy Javin and (2) necessarily were not intended as the dissemination of mere religious instruction. See supra note 3. It was not necessary, as Petitioner contends, that the trial judge specifically discuss whether the exceptions of “peaceable activity” and “legal purpose” applied to the present case. It was enough that the trial judge found that the harassment elements of the statute had been satisfied. Taking into account the plethora of letters, Petitioner’s prior convictions of stalking and kidnapping Javin, and the numerous requests for Petitioner to stop sending the letters, the trial judge could find, as Javin herself did, that the frequent references in the letters to Petitioner being “Moses and the enforcer of the law and God’s and Jesus’s ambassador” meant that Petitioner intended to kill her so that they could be together again, but in a non-corporeal way. Although the threat may not have been explicit, and even considering that some of the letters began with such statements as “[njothing in this letter is meant to be a threat,” a threat reasonably may be inferred
Furthermore, sufficient evidence supported the conclusion that the act of writing and mailing the letters was malicious and was not, as Petitioner argues, merely a minimal intrusion that Javin could have avoided by throwing out the letters, unopened, that came from Petitioner or bore his return address at MCTC. It is true that Javin, after receiving and reading a few of the letters, could have stopped reading them; however, the sheer volume of letters received from the known source and the pre-existing circumstances that created the background context surrounding the letters from that source are enough to support a finding of malice and more than a minimal intrusion. The mere sending and receipt of that volume of letters, coming after the warnings to Galloway, even had Javin not opened them, supported a reasonable inference of Galloway’s unlawful intent and the adverse effects on the victim.
We conclude that there was sufficient evidence to find Petitioner’s sending of the letters was a malicious engagement in a course of conduct that alarmed or seriously annoyed Javin (or a reasonable person in the same circumstances) and that Petitioner engaged in this course of conduct with the intent to harass, alarm, or annoy Javin. Petitioner received several reasonable warnings and requests to desist such conduct. It also is evident from the record that Petitioner acted without a legal purpose.
JUDGMENT AFFIRMED, WITH COSTS
Notes
. The current harassment statute is Md.Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Art. 27 § 123. The current statute was effective as of 1 October 1998 and redesignated former § 121A to be the present § 123. No substantive changes were made otherwise. Therefore, § 123 will be referred to in this opinion.
. In his 28 October 1998 written opinion and order, the trial judge stated that he granted both the motion to dismiss and the motion for judgment of acquittal with regard to the charge of stalking. At a hearing on 4 November 1998, the trial judge made a verbal correction; as to the stalking charge, the motion to dismiss was denied, and the motion for judgment of acquittal was granted.
. The Dissent benignly characterizes the letters as containing "religious views, expressions of feelings, and apologies for past conduct.” Dissent, op. at 652, 660, 656, 677. Such a description is generous to a fault. The letters provided in the record contain such representative statements (repeated numerous times throughout the letters) as “they will cast you into ... hell”; "my words are not my words, they are Gods [sic] words that he taught me to say ... God and Jesus taught me many things about us, and what happened to us, and what I must do for us. You are not cooperating with us”; “your lies are about to turn on you because you refuse to listen”; "I am God's and Jesus’ ambassador”; "I am God’s representative”; "you fear me. You fear what you don't understand”; "you have received feminist indoctrination”; "what is about to happen needs to happen”; "no one in this country has a right to stop me from what I have been doing.” The letters also contain such passages as
I went to prison because of love and lies. God knows this, and I could care less what society thinks. I have to answer to God for allowing the devil to deceive them. You are not prepared for what lies ahead of you. What you have sowed will come back to haunt you.
The letters also express such sentiments as
until you make the choice to face your problems and solve your problems you will live in torment and may do time in Prison like I did time.... [Y]ou are forcing me into shaming you and possibly putting you in jail and prisons____ You have made people believe your lies in the past and present. I am about to shine some serious light onto this situation.... I am only trying to do the will of God. You are doing the will of the devil ... I have already been judged. I received life with our two children, who will be coming with Jesus and many angels in the future. You are not prepared for what lies ahead.
. It is important to note the adverb "seriously.” The Dissent, although it necessarily includes lip service reference (see Dissent, p. at 652, 678), largely ignores in its analysis the significance of this requirement.
. Galloway makes no arguments under the Maryland Constitution or Declaration of Rights. The Dissent states, however, that the "question encompasses vagueness and overbreadth under the Maryland Declaration of Rights as well as under the First and Fourteenth Amendments.” Dissent, op. at 652, n. 1. It is clear, however, that Galloway did not mount such an argument (expressly, implicitly, or subliminally) under the Maryland Declaration of Rights in his petition for certiorari, brief or in his reply brief to this Court. Ordinarily, we do not supply arguments not presented or made by the parties. Cf. Holbrook v. State,
. Respondent argues that only the constitutionality of the use of the words "annoy” and "alarm” may be raised here because Petitioner, in the Court of Special Appeals and in his petition for writ of certiorari, only challenged the use in the statute of the words "annoy" and “alarm” as unconstitutionally vague. Respondent's Br. at 8 (citing Wynn v. State,
. See Williams v. State,
. Tribe, supra note 7, § 12-27, at 1022 (citing Thornhill v. Alabama,
. The Dissent acknowledges the general applicability of this statement. Dissent, op. at 654. The Dissent is also correct in stating that "[w]hile these principles are generally applicable in resolving constitutional challenges, nevertheless, when a statute or other government action interferes with speech or other freedoms protected by the First Amendment ..., the statute or other government action is subject to scrutiny and must be justified by a showing of sufficient governmental interest.” Id. The Dissent, however, is plainly wrong in concluding that the Majority has improperly placed the entire burden of establishing the unconstitutionality of the statute on Petitioner. Dissent, op. at 656. That to which the Dissent refers is only applicable when the statute in question regulates speech. Dissent, op. at 655. We determine, however, that the § 123 regulates unprotected conduct. See infra pp. 42-46.
Lawrence Tribe described the differences in the two types of analysis: The Supreme Court has evolved two distinct approaches to the resolution of first amendment claims; the two correspond to the two ways in which government may “abridge” speech. If a government regulation is aimed at the communicative impact of an act, analysis should proceed along what we will call track one. On that track, a regulation is unconstitutional unless government shows that the message being suppressed poses a "clear and present danger,” constitutes a defamatory falsehood, or other wise falls on the unprotected side of one of the lines the Court has drawn to distinguish those expressive acts privileged by the first amendment from those open to government regulation with only minimal due process scrutiny. If a government regulation is aimed at the noncommunicative impact of an act, its analysis proceeds on what we will call track two. On that track, a regulation is constitutional, even as applied to expressive conduct; so long as it does not unduly constrict the flow of information and ideas. On track two, the "balance” between the values of freedom of expression and the government’s regulatory interests is struck on a case-by-case basis, guided by whatever unifying principles may be articulated.
Tribe, supra note 7, § 12-2, at 791-92. Tribe goes on to explain, for a statute that regulates speech based on its content to survive track one, the state must demonstrate that restriction is "necessary to serve a compelling state interest and ... narrowly drawn to that end.” Id. § 12-3, at 798-99 (citation omitted) (alteration in original). It appears that the Dissent has determined that § 123 rides on track one, while the Majority concludes that it travels on track two.
. The Dissent, without elaboration, describes Eanes as "an aberrant decision.” Dissent, op. at 654. We assume the justification for this characterization may be found in the dissent in Eanes,
. We have not applied this standard to a facial challenge other than one implicating First Amendment rights. See Bowers v. State,
. Justice White, joined by Chief Justice Burger and Justice Blackmun, in his dissent in Coates v. Cincinnati,
Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional over breadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.
Coates,
. In Ayers v. State, we declined to reach the issue of whether the term "harass” was unconstitutionally vague because the defendant had not been charged with harassment. Ayers v. State,
. The court noted that subsection (l)(d) addressed conduct while (l)(e) addressed communications, but the court determined this distinction made no difference in its constitutional analysis. People v. Norman,
. Kansas’s stalking statute states, in pertinent part:
(a) Stalking is an intentional and malicious following or course of conduct directed at a specific person when such following or course of conduct seriously alarms, annoys or harasses the person, and which serves no legitimate purpose.
(d) For the purposes of this section ‘course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of ‘course of conduct.'
Kansas v. Bryan,
. Coates v. Cincinnati,
Moreover, the force of Coates, as far as its view of "annoying conduct,” has been put in doubt subsequently. See Colten v. Kentucky,
. Since the present case has been heard, the Supreme Court of Kansas held that its most recent stalking statute, Kan. Stat. Ann § 21-3438 (2000), was neither unconstitutionally vague nor overbroad. Kansas v. Whitesell,
. The Kansas statute uses the word "reasonable” in relation to course of conduct, but not with regard to “following.” See supra note 15. Section 123 does not use the word "reasonable” in defining "course of conduct” or "following,” but does use it in subsection (c)(2) requiring a "reasonable warning or request to desist.”
. In Kramer v. Price,
After the panel decision in this case, reported at712 F.2d 174 (5th Cir.1983), was vacated by our grant of rehearing en banc, the Texas statute at issue was repealed and replaced by another differing from it in many respects-one that appears would not bear on Kramer’s conduct which resulted in her conviction. We are aware of no other case involving the constitutionality of the earlier, now repealed statute. In view, therefore, of the limited scope of action remaining open to us after this development, we affirm the judgment of the district court but without approving or adopting its rationale.
Price,
. The Texas statute in question states "a person commits an offense if he intentionally ... communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient....” Kramer, 712 F.2d at 175 (emphasis added) (quoting Tex Penal Code Ann. § 42.07(a)(1)).
. In support, the Fifth Circuit cited Chaplinsky v. New Hampshire,
. Petitioner also discusses how the Court of Appeals of Washington adopted the reasoning in Oregon v. Sanderson,
. The Court of Appeal of California, determining that a stalking statute, which includes a definition of "harasses” that employs the word "annoy,” was not unconstitutionally vague, noted that "annoy” is the most "subjective and least serious” of the challenged words, but that "the word given its context ... is 'sufficiently certain to inform persons of ordinary intelligence of the nature of the offense which is prohibited.' " People v. Ewing,
That case involved a covenant of a lease that the lessee would not do on the leased premises anything which might grow to the annoyance, nuisance, grievance, or damage of the lessor or the inhabitants of adjoining houses. Construing this part of the Lease, Lord Justice Cotton said: The [judges] must decide not upon what their own individual thoughts are, but on what, in their opinion and upon the evidence before them, would be an annoyance or grievance to reasonable, sensible people; ... It is not sufficient in order to bring the case within the words of the covenant, for the plaintiffs to show that a particular man objects to what is done, but we must be satisfied by argument and by evidence, that reasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved by what is being done.
Ewing,
. The other definition of the verb form of alarm is "to give warning to.” Merriam Webster's Collegiate Dictionary 26 (10th ed.1993). It is obvious that this definition of “alarm” and the other definition of "harass,” infra note 25, are not meant to be applied in § 123, which is intended to penalize harassment. See Williams,
. The other definition of "harass” is "to worry and impede by repeated raids.” Id. at 529.
. Employing the words "alarm” and "annoy” serves another important purpose in the statute. It has been noted that "[t]he harm which the offender inflicts upon the victim should be as broadly worded as possible” so as to include "those victims who may be distressed or angry.” Carol E. Jordan, et al., Stalking: Cultural, Clinical, and Legal Considerations, 38 Brandéis L.J. 513, 578 (2000). It has been noted that the same is true with harassment; "harassment warrants multiple legal sanctions that respond to the differences among perpetrators and victims.” Note, A Remedial Approach to Harassment, 70 Va. L.Rev. 507, 508 (1984). A flexible legal response to harassment is warranted because (1) "[t]he diversity of harassers matches the variety of their methods” and (2) "[t]he attitudes of harassment victims, like the perpetrators and their methods, are not easily pigeonholed.” Id. at 513.
. The statute in question included the following definition of "harass”: "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that severs no legitimate purpose." Ewing,
. Requiring that a request to desist be delivered may have an even more important function. One author has noted that requiring a request that the defendant stop contact "may function as a constructive supplement to the statute, since it provides for a mechanism by which the victim's voice can be heard, in contrast to much of the law on sexual assault and domestic violence, which far too often negates the victim’s voice.” Jordan, supra note 27, at 577.
. Respondent aptly points out that "other courts have upheld harassment statutes against a vagueness challenge where the statute requires a specific intent to harass or alarm another person.” Petitioner’s Br. at 11; cf. Jordan, supra note 27, at 564 (noting that many courts have determined that a specific intent requireirient in stalking statutes "saves them from any vagueness problems”). In United States v. Smith,
. The Court of Appeals of Indiana has also read a reasonable person standard into a harassment statute and thus saved it from being considered unconstitutionally vague. The court stated that even though the language of the statute did not contain a reasonable person standard, “[t]he standard to be used is that of a reasonable man and, using that standard, the statute and the relevant words have an ascertainable meaning.” Kinney v. Indiana,
. The Oregon court also had difficulty applying a reasonable person standard because the purpose of the statute could not be determined. Oregon v. Sanderson,
. In Papachristou v. City of Jacksonville,
. This same language appears in Md.Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Art. 27 § 55C, which concerns the prohibitions and penalties regarding electronic mail. The constitutionality of the language in § 555C has not been questioned.
. The Court is referring to those cases "involving statutes which, by their terms, seek to regulate ‘only spoken words.’ ” Broadrick,
. The Supreme Court of Pennsylvania also concluded that slate’s harassment statute was not unconstitutionally broad because
[t]he government has a legitimate interest in preventing the harassment of individuals. The statute is not directed at the content of speech and is unrelated to the suppression of free expression. Rather the statute focuses on the manner and means of communication and proscribes communications made with an intent to harass. By requiring an intent to harass, the statute does not punish constitutionally-protected conduct and under the principles espoused in Broadrick, the statute is not facially overbroad in relation to its legitimate purpose.
Hendrickson,
. The Dissent appears to overlook this concept in its criticism of the Majority: “How does a court conclude that the sending of letters is without a legal purpose, or is not the expression of political views, or is not the providing of information, without looking at the content of the letters?” Dissent, op. at 669. Of course, the content must be examined, but when the content reveals that which is harassment (more specifically the intent to harass, alarm, or annoy), it no longer falls under protected speech.
. In Rowan v. United States Post Office Dept.,
. Kansas Statute Annotated § 21-3438, "Stalking," states, in pertinent part:
(a) Stalking is an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person’s safety.
(d) For the purposes of this section: (1) "Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included with the meaning of "course of conduct.”
(2) “Harassment” means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves on legitimate purpose.
(3) "Credible threat” means a verbal or written threat, including that which is communicated via electronic means, or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for such person’s safety. The present incarceration of a person making the threat shall not be a bar to prosecution under this section.
. Petitioner relies on cases in which the statutes are worded quite differently than § 123 and do not contain limiting language. See Moore,
Dissenting Opinion
dissenting.
The majority interprets “course of conduct” proscribed by Maryland Code (1957, 1996 Repl Vol., 2000 Supp.), Art. 27, § 123, as encompassing the repeated sending of communications, i.e., first class mail containing religious views, expressions of feelings, and apologies for past conduct. The majority also interprets § 123 to authorize criminal punishment for that course of conduct where the sender of the communications had been requested to stop sending them, and where the recipient of the communications was seriously annoyed or alarmed by them. The majority further holds, without any explanations, that such conduct is “[wjithout a legal purpose” within the meaning of § 123(c)(3) and is not encompassed by the “providing] of information” exception in § 123(b).
In my view, Art. 27, § 123, as interpreted by the Court today, is unconstitutionally overbroad and vague in violation of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and Articles 24, 36, and 40 of the Maryland Declaration of Rights.
I.
Before discussing in detail the unconstitutional overbreadth and vagueness of § 123 as interpreted by the majority, it would be useful to discuss some of the general principles applicable to this case and to clarify what is before the Court.
A.
In its initial discussion of § 123’s constitutionality, the majority relies upon the principles that a statute is presumed valid and that the “party attacking the statute has the burden of establishing its unconstitutionality.” (Opinion at 610-611). While these principles are generally applicable in resolving constitutional challenges, nevertheless, when a statute or other government action interferes with speech or other freedoms protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights, the statute or other government action is subject to scrutiny and must be justified by a
Even in Eanes v. State,
“The fundamental importance of free speech in our constitutional scheme requires, however, that restrictions on its exercise be subjected to searching scrutiny.”
See, e.g., Denver Area Educ. Telecom. Consortium, v. F.C.C.,
Consequently, the majority errs in placing the entire burden of establishing unconstitutionality
B.
Although the majority purports to treat separately the issues of overbreadth under the First Amendment and vagueness under due process requirements, the majority does seem to acknowledge the interaction between the two constitutional principles when a statute is challenged on both overbreadth and vagueness grounds. The Supreme Court thus explained in Smith v. Goguen,
“We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.”
See also, e.g., Gentile v. State Bar of Nevada,
Moreover, the majority correctly states that when a “challenged statute ... encroaches upon fundamental constitutional rights, particularly First Amendment guarantees of free speech and assembly, then the statute should be scrutinized for vagueness on its face” (opinion at 616), and that “[b]ecause of the potential ‘chilling effect’ that vagueness can have on First Amendment liberties,” a defendant is permitted “ ‘to challenge the validity of a statute even though the statute as applied to the defendant is constitutional.’ ” (Id. at 616-617, quoting Ayers v. State,
C.
It is important to clarify just what is and what is not before the Court in the present case. George Galloway and Kimberly Javin had formerly lived together, and later Javin terminated the relationship. Thereafter, in 1995 Galloway was convicted of stalking and kidnapping Javin and was sentenced to prison for 12 years with all but seven years suspended. He was to be on probation for the suspended portion and was directed, as a condition of probation, to have no contact with Javin. Nevertheless, the case at bar is not a prosecution based on Galloway’s 1994 and 1995 conduct and is not a proceeding based upon an alleged violation of probation. Although the majority indicates that the trial judge’s “conclusions” in the present case properly took “into account ... Petitioner’s prior convictions” and “the pre-existing circumstances” (opinion at 651, 652), the majority does not suggest that Art. 27, § 123, is limited to circumstances where there was prior criminal involvement with the victim. Furthermore, nothing in the statutory language would support such a limitation. Persons who have never previously been convicted of any criminal offense are equally subject to § 123. In addition, the majority appears to rely on the 1995 convictions only as evidence that Galloway in 1997 and 1998 had the “intent to harass, alarm, or annoy” Javin. While this inference may be debatable, it clearly has no bearing upon the vagueness or overbreadth of the statutory language or whether other statutory requirements were met.
This case is also not concerned with the restrictions upon First Amendment or other constitutional rights which may legitimately be imposed upon inmates of a correctional institution because of security or other “needs and exigencies of the institutional environment,” Wolff v. McDonnell,
Furthermore, unlike Rowan v. United States Post Office Department,
Finally, while the majority refers to the principle that the trial judge’s findings of fact “ ‘will not be disturbed on appeal unless clearly erroneous’ ” (opinion at 650), it should be emphasized that there was no dispute about the basic or historical facts in this case. The case was tried entirely on a written agreed statement of facts which the prosecuting attorney read into the record, plus one additional fact agreed to by the prosecuting attorney and defense counsel, and 13 of the letters which were submitted to the trial court as “sample[s].”
In addition, contrary to the statement in the majority opinion, the trial judge made no finding that the letters “were not intended as the dissemination of mere religious instruction.” (Opinion at 650). In rendering his verdict, the trial judge expressly made only one finding of fact, namely that “the intent of the defendant’s letters was clearly to annoy or to harass
“MS. JAVIN: Going in the car down that dirt road he told me that he was going to kill me and bury my body with a piece of machinery that was on the side of the road. All during that time he threatened to kill me.
“So I have real fear and reason to believe that when he gets out, he will follow through with what he had said he was going to do. He is clever enough not to write it down in his letters so that he can follow through with his plan for sure.”
* * *
“I have spoken to people at the prison to try to get them to stop him from writing letters. But even if he stopped writing the letters, I still am fearful for when he gets out what he is going to do. I just don’t know how I am going to be protected.”
Furthermore, in assessing the facts in a case such as this, we must heed the Supreme Court’s admonition that “in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc.,
The majority relies upon the recitation in § 123(b) that the statute “does not apply to any peaceable activity intended to express political views or provide information to others.” The majority states that this exception, which “ ‘expressly excludes constitutionally protected speech from its reach,’ ”
As this Court has pointed out, however, a recitation in a statute that the statute does not apply so as to impair constitutional rights does not affect the resolution of the underlying constitutional issues; it simply equates the constitutional issues with the statutory interpretation issues. For example, in Washington Nat’l Arena v. Pr. Geo’s Co.,
“The issue in this case could be viewed either as one of statutory interpretation or as a matter of constitutionality. It makes no practical difference whichever way it is viewed. The Legislature, in Ch. 129 of the Acts of 1976, expressly stated its intention that the statute should not apply ‘whenever constitutionally protected rights would be impaired.’ Consequently, from a technical viewpoint, if the retroactive application of the 1976 tax statute to the recordation of written instruments at various times between September 1968 and 1976 would impair taxpayers’ constitutional rights, then, as a matter of legislative intent, the statute does not apply. However, in order to determine the application of Ch. 129 on this statutory interpretation ground, it is obviously necessary to resolve the constitutional question.”
See also Turner Broadcasting System, Inc. v. F.C.C., supra,
E.
The “[pjrohibited conduct” under Art. 27, § 123(c), requires for a violation, inter alia, that the defendant’s course of conduct be “[w]ith intent to harass, alarm, or annoy the other person.... ” § 123(c)(1). The majority states that, instead of an intent to harass, alarm, or annoy “the other person,” a “reasonable person standard should be read into the language of subsection (c)(1) of § 123, and with that judicial gloss, § 123 survives constitutional scrutiny.” (Opinion at 610-611). Thus, in lieu of “the other person,” the object of the intent set forth in subsection (c)(1) becomes “a reasonable person.”
This Court, however, has generally declined to re-write or insert words into statutory language in order to save the constitutionality of statutes. Just this year, in Montrose Christian School v. Walsh,
In Wheeler v. State,
“We are not at liberty to bring about a different result by inserting or omitting words to make the statute express an intention not evidenced in its original form.”
See also Birmingham v. Board,
The majority, in concluding that “§ 123 is salvageable because we shall employ a limiting construction to the statute” (opinion at 619), goes on to rely on the statement in Schochet v. State,
Furthermore, in the Schochet case the narrowing interpretation of the statute was employed to reverse the defendant’s criminal conviction; thus, no issue concerning unfair retroactivity was involved. In the present case, however, the defendant allegedly committed the offense and was convicted prior to this Court’s placing a “judicial gloss” on the statute. See, e.g., Marks v. United States,
Nonetheless, for reasons later set forth in Part II of this dissent, I do not believe that inserting “a reasonable person standard” in subsection (c)(1) cures the overbreadth and vagueness defects in Art. 27, § 123, as interpreted by the majority.
II.
I shall now turn specifically to the language of Art. 27, § 123, and the majority’s interpretation of that language.
Section 123 reads as follows:
“ § 123. Harassment.
“(a) Course of conduct defined. — In this section ‘course of conduct’ means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
(b) Applicability. — This section does not apply to any peaceable activity intended to express political views or provide information to others.
(c) Prohibited conduct. — A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:
(1) With intent to harass, alarm, or annoy the other person;
(2) After reasonable warning or request to desist by or on behalf of the other person; and
(3) Without a legal purpose.
(d) Penalty. — A person who violates this section is guilty of a misdemeanor and, upon conviction, is subject to a fine not exceeding $500 or imprisonment for not more than 90 days or both.”
The conduct proscribed by the statute is set forth in subsection (c), and the State must prove four distinct elements to bring the conduct within the prohibition of subsection (c).
First, the State must prove either that the defendant followed another person in or about a public place or, alternatively, that the defendant maliciously engaged in “conduct that alarms or seriously annoys” the other person. The alternative “engaged in conduct” element was allegedly involved in the present case.
Second, under subsection (c)(1), the State must prove that the defendant acted with one of the alternative requisite intents, namely to harass or to alarm or to annoy the other person. Interestingly, with respect to “annoy,” under the initial language of subsection (c) the conduct must in fact “seriously” annoy the other person, whereas the accompanying intent under subsection (c)(1) does not require “serious” annoyance. Also, the prohibited course of conduct under the initial part of subsection (c) is limited to that which alarms or seriously annoys, but the accompanying intent under subsection (c)(1) adds “harass” to “alarm, or annoy.”
Third, under subsection (c)(2), it must be shown that the defendant had, prior to the charged conduct, been given a reasonable warning or request to desist. This may be the only element of the offense which is set forth with reasonable clarity and is not muddled by the majority.
Fourth, under subsection (c)(3), the prosecution must prove that the defendant acted “[without a legal purpose.”
In a case where the State establishes the various elements of the offense set forth in subsection (c), the defendant nevertheless cannot be convicted under § 123 if his conduct fell within either of the exceptions delineated in subsection (b). Subsection (b) excepts from the coverage of the statute peaceable activity which is intended either “to express political views” or to “provide information to others.”
Subsection (a) of the statute is the definitional subsection, although it contains a partial definition of only one of the phrases in the statute, namely “course of conduct.” The statute contains no definitions of “harass, alarm, or annoy.” It contains no definitions of the element “[w]ithout a legal purpose” or of the exception for “providing] information to others.”
Where the conduct prohibited by § 123 consists of sending communications, the majority indicates that the prohibition relates to “ ‘the manner and means employed to’ ” send the communications “ ‘rather
When the prohibited conduct involves speech or the sending of communications, it seems clear that § 123 is concerned with the content of the speech or communications. This is shown by the exceptions in subsection (b) and the “legal purpose” element in subsection (c)(3). Accordingly, § 123, when applied to oral or written speech or communications, requires the “application of the most exacting level of First Amendment scrutiny,” rather than “the intermediate level of scrutiny,” Turner Broadcasting System, Inc. v. F.C. C., supra,
B.
Throughout much of the majority opinion, the Court relies upon the “[without a legal purpose” element in subsection (e)(3) and the exceptions in subsection (b) as “limiting language” and “inherent restrictions” having “a definite and clear meaning that helps in setting the boundaries for the enforcement of § 123” (opinion at 620-622, 627, 630-631, 637). The majority further points to subsections (c)(3) and (b) as “restrictive language [which] helps to abate any overbreadth” (opinion at 644). The Court also relies on these provisions in distinguishing the Maryland statute from statutes in other jurisdictions which have been held unconstitutional on over-breadth and/or vagueness grounds (e.g., opinion at 620, 648-649).
After placing so much reliance upon subsections (c)(3) and (b) as “inherent restrictions,” however, the majority goes on in the later part of its opinion to construe and apply these provisions in a way that renders them largely nugatory. At the very least, the majority’s construction and application of subsections (c)(3) and (b) leave a reader in total bewilderment as to the meaning of the provisions. Instead of
As previously discussed, subsection (c)(3) requires the State to prove, as an element of the § 123 offense, that the defendant’s conduct was “[wjithout a legal purpose.” If this provision were given its plain, broad, ordinary meaning, it would materially help to overcome the overbreadth and vagueness inherent in a prohibition against annoying or alarming conduct. Under the plain language of subsection (c)(3), as applied to letters, an illegal purpose would be if the letters solicited someone to commit a crime, or were involved in a criminal conspiracy, or contained threats in violation of another statute, or contained matter in violation of federal law or postal regulations, or were smuggled out of a correctional institution in violation of prison regulations, or discussed plans for an escape from prison. Many other examples of illegal purposes could be set forth. But what is illegal about a series of letters, presumably permitted by prison and postal regulations, from an obsessive former boyfriend containing expressions of religious beliefs, emotional feelings, and apologies for past conduct? In this connection, the trial judge’s remarks to Galloway when he was first sentenced to prison in 1995 are pertinent. Judge Thieme, the sentencing judge, then stated:
“[Y]ou can write her every day. There is nothing I can do about it. ' You can call her on the phone; there is nothing I can do about it.”
The trial judge in the case at bar, in his opinion denying the defendant’s pre-verdict motions, seemed to hold that Galloway’s letters were without a legal purpose because they were “personal.” He did not explain why a “personal” communication is without a legal purpose, whereas a non-personal communication would have a legal purpose. If the meaning of subsection (c)(3) is that all “personal” conduct is “[wjithout a legal purpose,” the subsection would do very little to cure the overbreadth and vagueness inherent in a statute punishing annoying or alarming conduct.
The majority indicates, and I agree, that “legal purpose” has a clearer and more definite meaning than the phrase “legitimate purpose” found in some statutes which have been invalidated in other jurisdictions, and that “ ‘[l]egal’ derives from or is found in law,” whereas “ ‘legitimate’ ... encompasses that which is legal and beyond.” (Opinion at 636-638). The majority fails to tell us, however, what is not “legal” with respect to sending letters of the type here involved.
Finally, the majority simply concludes its opinion by stating: “It also is evident from the record that Petitioner acted without a legal purpose.” (Opinion at 652). We are not informed as to what in the record makes this evident. The Court today gives utterly no meaning to subsection (c)(3) and proceeds as if the element were not in the statute. Under these circumstances, the majority’s repeated reliance upon subsection (c)(3), as restrictive language helping to cure § 123’s overbreadth and vagueness, leaves one dumbfounded.
The same is true of the majority’s treatment of the exception in subsection (b) for “peaceable activity intended to ... provide information to others.” Again, if this exception were given its plain, broad, ordinary meaning, it would also help in curing the overbreadth and vagueness in the statutory prohibition against annoying or alarming conduct. And the majority initially indicates that the exception is broad, exempting from the statute’s coverage
With regard to both the “legal purpose” element in subsection (c)(3) and the exceptions in subsection (b), the majority’s ultimate position is set forth towards the end of the opinion where the Court states (Opinion at 650, emphasis supplied):
“After the initial few letters, however, Galloway was warned multiple times that Javin did not wish to receive communications from him. Those instructions notwithstanding, he continued his course by sending a large.number of additional letters. From this, a reasonable fact-finder reasonably could conclude that Galloway’s intent was, in fact, to harass Javin, rather than merely to engage in a peaceable activity, with a legal purpose.”
The majority seems to be saying that, if the intent element of subsection (c)(1) is established, then the “peaceable activity” exceptions in subsection (b) are inapplicable and the “[wjithout legal purpose” element in subsection (c)(3) is proven. This approach renders subsections (b) and (c)(3) entirely nugatory.
Obviously, under the structure and wording of the statute, one can send a communication with more than a single intent. One can intend “to harass, alarm, or annoy,” and also intend to furnish information. If conduct is not accompanied by an “intent to harass, alarm, or annoy,” the conduct is not prohibited, and there is no occasion to consider the statutory exemptions in subsection (b) for political views or the providing of information. The exception in § 123(b) for the expression of political views or the communicating of information only becomes pertinent and meaningful when the expression or communication is with the intent to harass, alarm, or annoy. Under the majority’s reasoning, if a candidate for public office repeatedly mails a “plethora”
Similarly, the “[wjithout legal purpose” element in subsection (c)(3) is totally distinct from the “intent” element in subsection (c)(1). Under Art. 27, § 123, the State must prove both that the defendant had the “intent to harass, alarm, or annoy the other person” and that the defendant’s conduct was “[wjithout a legal purpose.” The majority, by contrasting the intent to harass with legal purpose, and suggesting that the intent to harass negates any legal purpose, has merged two distinct elements
C.
The majority opinion acknowledges that courts in other jurisdictions have held that harassment statutes, prohibiting conduct intended “to alarm, annoy, or harass” another person, are unconstitutionally overbroad and/or vague. In fact, the majority of cases over the past 30 years, dealing with the constitutionality under the First and Fourteenth Amendments of harassment statutes similar to Maryland’s Art. 27, § 123, have held that such statutes are unconstitutional. The Court today, however, purports to distinguish some of those cases on the grounds that the Maryland statute has “inherent limitations” such as the requirement of no “legal purpose” in subsection (c)(3) or the exception for “providing] information to others” in subsection (b), and that the Maryland statute “is salvageable because we shall employ a limiting construction” by inserting the words “reasonable person” in subsection (c)(1). (Opinion at 619). The majority also announces that “we shall not follow those jurisdictions that have found harassment statutes to be unconstitutionally vague.” (Ibid.).
For the reasons set forth above in Part II B of this dissenting opinion, the “[wjithout legal purpose” element in subsection (c)(1), and the exceptions in subsection (b), as construed and applied by the majority today, are not “inherent limitations.” Instead, the majority’s interpretation and application of those provisions enhance the statute’s overbreadth and vagueness. Furthermore, as discussed below, the insertion of “reasonable person” language in subsection (c)(1) does not cure the inherent vagueness and overbreadth of a statute which criminally punishes one who intentionally “annoys” or “alarms” someone else, regardless of whether the latter is a “reasonable person.”
In rendering his verdict, the trial judge specifically found that Galloway intended “to annoy or to harass” within the meaning of subsection (c)(1) (emphasis supplied). The judge, however, did not explain the difference between “annoy” and “harass,” if any, and did not say which intent Galloway had.
The Supreme Court in Coates v. Cincinnati,
“Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, ‘men of common intelligence must necessarily guess at its meaning.’ Connally v. General Construction Co.,269 U.S. 385 , 391,46 S.Ct. 126 , 127,70 L.Ed. 322 , 328.
“It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city’s constitutionalpower to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. Gregory v. Chicago, 394 U.S. 111 , 118, 124-125,89 S.Ct. 946 , 950, 953-954,22 L.Ed.2d 134 , 139-140, 143-144 (Black, J., concurring). It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.”
The same may be said of the “conduct” prohibited by § 123. Except for the statement in subsection (a) that the conduct must be a pattern consisting of a series of acts, neither the words of the statute nor the majority opinion in this case tell us what type of “conduct” is prohibited. The word “conduct” itself covers virtually the entire range of human activity, and the only statutory limitation as to the type of conduct is that it be repeated and seriously annoying or alarming.
The majority’s insertion of a “reasonable person” standard does little or nothing to cure the vagueness. The Supreme Court’s language in Coates is still applicable even with the insertion of a reasonable person standard, i.e., “[cjonduct that annoys some [reasonable] people does not annoy others.” 402 U.S. at 614,
“But the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates the constitutional right of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms.... The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is ‘annoying’ because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.”
Similarly, the First and Fourteenth Amendments, as well as Articles 36 and 40 of the Maryland Declaration of Rights, would ordinarily preclude a state from criminally punishing one who writes letters expressing feelings, religious views, and apologies, to someone with whom the writer had previously cohabited. Again, while these constitutional provisions might allow such punishment under the particular facts of the present case, neither the statutory language nor the majority’s interpretation of the statute is so limited. As the Supreme Court emphasized in Coates v. Cincinnati, and numerous other cases, conduct otherwise protected by the First Amendment cannot be prohibited or punished merely because it annoys, or angers, or offends, or induces unrest, or is objectionable to, or is obnoxious to others. See, e.g., Texas v. Johnson,
The majority distinguishes the Supreme Court’s holdings in Coates v. Cincinnati, saying: “The Maryland statute is distinguishable because it proscribes a course of conduct and requires specific intent on the part of the defendant ...” (opinion at 622, n. 16). The ordinance involved in Coates, like § 123, prohibited “conduct” which was “annoying.” While the Coates ordinance may not have required repeated activity, this difference has little or no relevance to the vagueness or overbreadth inherent in punishing “annoying” conduct. The factor of repetition does not clarify the vagueness or over-breadth associated with the words
Likewise, the requirement of a specific intent to annoy or alarm in subsection (c)(1) of the Maryland statute does not cast any light on what type of conduct is criminally “annoying” or “alarming.” The same vague and broad language used in the initial part of subsection (c) is also used in subsection (c)(1) containing the intent requirement. Prohibiting intentional unknown conduct is just as vague as prohibiting unintentional unknown conduct.
Furthermore, activity protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights remains protected when it is intentional. In fact, most conduct protected by the rights to freedom of speech and freedom of religion is intentional. With a few exceptions not applicable here, neither the element of intent nor the element of malice removes from oral or written speech the protections of the First Amendment and Articles 36 and 40 of the Declaration of Rights. As the Supreme Court pointed out in Hustler Magazine v. Falwell,
“many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana,379 U.S. 64 ,85 S.Ct. 209 ,13 L.Ed.2d 125 (1964), we held that even when a speaker or writer is motivated by hatred or illwill his expression was protected by the First Amendment.... ”
Coates v. Cincinnati, as well as many other cases invalidating statutory provisions which attempt to punish annoying conduct, are not distinguishable from the present case on any principled or logical basis.
“However, a statute intended to proscribe unprotected activity must not also proscribe activity protected under the First Amendment.
“In short, in the First Amendment area, a statute must be narrowly drawn to implement legitimate and constitutional legislative purposes.
“The statute before us in this case is anything but narrowly drawn. It could, of course, be relied upon to punish for obscene, libelous, riotous communication which is probably constitutionally permissible. Yet the crucial factor is that this statute could also be used to prosecute for communications that cannot be constitutionally proscribed.
“To illustrate the overbreadth of this statute, it is useful to first define some of the significant terms used in the statute. According to Webster’s New International Dictionary of the English Language, (3d ed. Unabridged, 1961), ‘annoy’ means ‘to irritate with a nettling or exasperating effect.’ ‘Nettling’ means ‘to arouse displeasure, impatience, or anger in: provoke, vex.’ ‘Alarm’ means ‘to arouse to a sense of danger; to put on the alert; to strike with fear; fill with anxiety as to threaten danger or harm.’
“If we substitute these definitions in place of the terms used in the statute, we find that one is guilty of the crime of harassment if he intends to ‘alarm’ another person-arouse to a sense of danger-and communicates to that other person in a manner likely to cause alarm. It would therefore be criminal in Colorado to forecast a storm, predict political trends, warn against illnesses, or discuss anything that is of any significance.
“So, also, if one has the intent to annoy — to irritate with a nettling or exasperating effect — and he communicates with another in a manner that is likely to cause alarm — to put on the alert — he too is guilty of harassment. The absurdity of this is patently obvious to anyone who envisions our society in anything but a state of languid repose. The First Amendment is made of sterner stuff.”
The lower court in the Bolles case had “attempted to save the statute from successful constitutional attack by engrafting onto it a statement that it applied only to
With respect to the prosecution’s argument in Bolles that a recipient’s “right of privacy in the home justifies the broad wording of the subsection in question” (189 Colo, at 399,
“Use of the mail to convey one’s message no doubt encroaches on the sanctity of the home; however, the intrusion into the recipient’s privacy is only minimal since he is not only free to discard at once any mail that he does not wish to receive, but can also ensure that he will not receive any more like it from the sender. See Rowan v. United States Post Office Department, supra.”
Factually similar to the present case is Kramer v. Price,
Other cases holding similar statutory language unconstitutional, on overbreadth and/or vagueness grounds, include, e.g., People v. Hickman,
D.
As previously discussed, a narrowly drawn statute targeting conduct like Galloway’s, under the circumstances here, might well be constitutional. Moreover, § 123 itself might well be constitutional if the majority were willing to give effect to the plain language of subsection (b) which broadly exempts the providing of information and of subsection (c)(3) which requires the State to prove illegality of purpose. Giving effect to the plain language of subsections (b) and (c)(3) would substantially limit and clarify the broad and vague words in (c) and (c)(1). Of course, giving effect to the words of subsections (b) and (c)(3) would require a reversal of Galloway’s
This case is a classic example of the saying that hard cases make bad law. No reasonable person would condone Galloway’s atrocious conduct. Nevertheless, sustaining his conviction and 90 day additional sentence is not worth obfuscating the language of statutory provisions or failing to apply important constitutional safeguards.
I would reverse.
Chief Judge BELL and Judge RAKER have authorized me to state that they concur with the views expressed herein and join this dissenting opinion.
. The majority states (opinion at 609, n. 5) that the petitioner "makes no arguments under the Maryland Constitution or Declaration of Rights.” The single question presented in the petition for a writ of certiorari, and repeated verbatim in the petitioner's brief, was not limited to the First and Fourteenth Amendments to the United States Constitution. Instead, the question presented was broadly worded as follows:
"Did the trial court err in denying Petitioner’s motion to dismiss and in convicting him of harassment under Md. Ann.Code, Art. 27, § 121A, now codified with minimal changes as § 123, specifically in the face of a challenge that the statute is unconstitutionally vague and overbroad on its face and as applied to Petitioner and in the face of a challenge that the facts did not support such a conviction?”
The question encompasses vagueness and overbreadth under the Maryland Declaration of Rights as well as under the First and Fourteenth Amendments. The majority seems to assert that the petitioner’s over-breadth and vagueness arguments in his brief and reply brief are based solely on federal constitutional grounds and not on state constitutional grounds. Except for a few references on two different pages to "First Amendment guarantees,” or "liberties” or "expression,” the petitioner's overbreadth and vagueness arguments in his briefs are general and equally applicable under the Fourteenth Amendment or the Maryland Declaration of Rights. Moreover, in cases decided by the Court of Special Appeals, or by a circuit court in the exercise of its appellate jurisdiction, the issues before this Court are determined by the certiorari petition, any cross-petition, and any order of this Court limiting or expanding the issues. Maryland Rule 8-131(b). See, e.g., Wynn v. State,
Articles 24, 36, and 40 of the Declaration of Rights provide as follows:
“Article 24. Due process.
"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”
“Article 36. Religious freedom.
"That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought fay any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights....”
"Article 40. Freedom of press and speech.
"That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.”
. It may well be that a clearly drafted and narrowly tailored statute, prohibiting the repeated sending of unwanted communications to a person, where the sender had previously been convicted of a violent crime against the recipient or had been the subject of a domestic violence protective order involving the recipient, or had threatened the victim’s life, would be constitutional. As pointed out above, however, § 123 is not such a statute.
. Furthermore, the overbreadth doctrine would not be applicable in the Rowan situation because "the overbreadth doctrine does not apply to commercial speech.” Village of Hoffman Estates v. Flipside,
. The entire transcript relating to the trial court's rendition of the verdict is as follows:
"THE COURT: I think the underlying question here is whether a defendant who is incarcerated can commit the crime of harassment as it relates to someone who is not incarcerated.
"The statute that the Court has for consideration is Article 27, Section 121A. It provides in pertinent part that a person who maliciously engages in a course of conduct that either alarms or seriously annoys another person, with the intent to harm, annoy or to alarm, after reasonable warning to stop it, has committed the crime of harassment.
“The facts of this case are that the defendant sent over 130 letters over a period of 11 months. In reading the letters, and taking into consideration the relationship between these two people, this Court is satisfied that the intent of the defendant’s letters was clearly to annoy or to harass. I am satisfied to that beyond a reasonable doubt.
“Accordingly, I am satisfied that the elements of the statute have been satisfied. I am satisfied further that they have been met or proven beyond a reasonable doubt and the Court enters a verdict of guilty to the crime of harassment.
“Even though Judge Thieme may have made some comment about he couldn’t stop the defendant from writing, I can’t stop him from writing. I will tell you that. I cannot stop him from writing. Even if I cut your hands off, you would probably find some way to write.
"But what I am telling you is that when you do this in the manner in which you did it, where there is clear inference to be drawn from it and intent to annoy or to harass, it is harassment. If you keep doing it, you are going to probably keep getting charged and keep getting convicted. You will end up serving a life sentence 90 days at a time. Anything else?’’
The majority quotes (opinion at 609-610) a paragraph from the trial judge stating certain "conclufsions]” based on the evidence, including a statement that the letters were “personal” and that, therefore, “the Court can find that they served no legal purpose.” (Emphasis added). This paragraph was from the trial judge’s written opinion of October 28, 1998, denying the defendant’s motion to dismiss and motion for judgment of acquittal. The trial judge rendered his verdict at a proceeding on November 4, 1998, after hearing arguments on "guilt or innocence as to the harassment charge.” Thereafter on November 4th, the trial court went on to conduct a sentencing hearing.
. The Supreme Court’s Bachellar decision invalidated, on First Amendment grounds, a criminal conviction under a former § 123 of Art. 27 of the Maryland Code.
. Quoting from People v. Shack,
. Opinion at 650.
. Cf. Monhollen v. Commonwealth of Kentucky,
. In a much more limited statute than Art. 27, § 123, the insertion of a "reasonable person” standard might help to cure some of the vagueness. This was the situation in the Indiana case relied on by the majority (opinion at 628, n. 25), where the statute was restricted to harassing telephone calls. Kinney v. Indiana,
. The majority (opinion at 631-632) relies on two cases for the assertion that a requirement of repeated conduct mitigates against vagueness, namely United States v. Smith,
. The majority opinion in the case at bar also suggests (opinion at 622, n. 16) that the holdings of Coates v. Cincinnati were "put in doubt” by the opinion in Colten v. Kentucky,
. The majority opinion correctly points out (opinion at 624-625) that the United States Court of Appeals in Kramer, with regard to vagueness, relied upon the failure of the Texas Courts to interpret the statute as incorporating a "reasonable person standard.” What the majority opinion overlooks or blurs, is that the court in Kramer found two “infirmities” in the Texas statute which could have been cured by state court interpretations but were not. The first was that the "Texas Courts have made no attempt to construe the terms 'annoy’ and 'alarm' in a manner which lessens their inherent vagueness.”
. At times the majority opinion in the case at bar makes flat statements about what is and what is not covered by Art. 27, § 123, without setting forth any satisfactory basis for the statements. For example, as to whether the prohibition of "a course of conduct that alarms or seriously annoys another person” covers "[tele]phone calls from creditors,” the majority states that the statute "was in no way intended to cover such situations,” and cites its discussion of the legislative history. (Opinion at 635-637). Nothing in the legislative history set forth in the majority opinion (id. at 612-613) lends the slightest support to the majority’s assertion. While the report of the Senate Judicial Proceedings Committee, quoted by the majority, refers to "disputes between neighbors, [and] former boyfriends and girlfriends,” the report goes on to refer to harassment generally. What might be covered beyond neighbor disputes and boyfriend-girlfriend disputes is not disclosed by either the legislative history or the statutory language. The history and statutory language set forth in subsection (c) and (c)(1) are certainly broad enough to cover unwanted repeated telephone calls from creditors and tele-marketers, particularly at dinner time.