STATE OF HAWAII v. FAUSTINO ABELLANO, ET AL.
No. 4705.
STATE OF HAWAII
MAY 23, 1968.
384
RICHARDSON, C.J., MIZUHA, MARUMOTO, ABE AND LEVINSON, JJ.
The thirteen defendants-appellees were arrested on August 1, 1965 for violating section 13-3.1 of the Revised Ordinances of the City and County of Honolulu, 1961.1 The State charged that defendants:
did engage or participate in, or were present at, a cockfight exhibition . . . .
Although they were formally charged with participating, apparently the defendants did no more than be present at a place where a cockfight was being held. A district magistrate granted the defendants’ motion to dismiss on the grounds that the ordinance is:
null and void as being in conflict with State statute [and] unconstitutionally and unreasonably infringes upon a person‘s freedom of locomotion and movement.
The State appealed.
A fundamental aspect of the somewhat amorphous concept of due process of law is that a penal statute must state with reasonable clarity the acts it proscribes. Territory v. Naumu, 43 Haw. 66 (1958); Territory v. Anduha, 31 Haw. 459 (1930), aff‘d 48 F.2d 171 (9th Cir. 1931). A criminal statute is unconstitutional if it is not
sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . . And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 391 (1926).
In determining whether the standard of being “present at” a cockfight is unconstitutionally vague, we are met at the outset with this court‘s ruling in Territory v. Wong, 40 Haw. 257 (1953). There the court sustained against the claim of unconstitutional vagueness a statute which made it unlawful to be “present” where a gambling game was being played. The court construed the word present to mean intentional presence with knowledge that a gambling game was going on. It set out orbits of nearness and determined whether persons within each orbit were present as that term was used in the statute. While recognizing that the applicability of the statute remained dubious in many situations, it concluded that the statute as construed was not constitutionally defective for vagueness.
We overrule Territory v. Wong. The court went too far in attempting to sustain the statute. The judicial power to hold a legislative enactment unconstitutional should be exercised prudently and with restraint. But this does not mean that the legislature can avoid the constitutional mandate to state clearly the acts proscribed and then expect a court to narrow the overly broad terms it selected. The mere fact that marginal cases are conceivable does not, of course, justify a court in holding a statute unconstitutional. United States v. Harriss, 347 U.S. 612, 618 (1954); United States v. Petrillo, 332 U.S. 1, 7 (1947). Scrutinizing the Wong opinion convinces us that even the court‘s ingenious construction of “present at” left more than marginal cases hanging in the balance.
An ordinance or statute proscribing presence, whether at a cockfight, a gambling game, or a house of prostitution, is too vague to satisfy the requirements of due process. Primarily, the term presence has a spacio-physical frame of reference. Unless the activity at which presence is unlawful is in a narrowly confined place, determination of what constitutes presence at the activity can be resolved only on the basis of policy. Setting such policy is a legislative function. The legislative body has failed to make clear its policy determination. For this court to attempt to rewrite the ordinance to cure the constitutional defect would be an unconstitutional exercise of legislative power.
Affirmed.
John A. Radway, Jr., Deputy Prosecuting Attorney (John H. Peters, Prosecuting Attorney, and T. Irving Chang, Deputy Prosecuting Attorney, with him on the briefs) for plaintiff-appellant.
John C. Lanham for defendants-appellees.
CONCURRING OPINION OF LEVINSON, J. IN WHICH RICHARDSON, C.J. JOINS.
I agree with the majority opinion that the ordinance is unconstitutionally vague, thereby violating the due process clause of the
The appellees argued that the ordinance infringes on their constitutionally guaranteed freedom of movement. I think it is
Although the Federal Constitution does not refer to a general right of privacy or freedom of movement, both have been long and consistently recognized as adjuncts of specific constitutional provisions. Griswold v. Connecticut, 381 U.S. 479 (1965); Kent v. Dulles, 357 U.S. 116 (1958); Williams v. Fears, 179 U.S. 270 (1900); Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867). Furthermore, the Constitution has been held to protect other rights not specifically mentioned, Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
Most recently, in Griswold v. Connecticut, 381 U.S. 479 (1965), the Court, with only one justice dissenting, recognized a constitutional right to marital privacy which a state could not invade by a law prohibiting the use of contraceptives. Unfortunately, the majority and concurring opinions disagreed as to the constitutional source of that right. Justice Douglas’ opinion for the Court concluded that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” 381 U.S. at 484. Justice Goldberg‘s concurring opinion concludes that the Ninth Amendment
lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. 381 U.S. at 493.
Justices Harlan and White, in separate concurring opinions, applied the flexible due process approach of the Fourteenth Amendment and found the right to marital privacy fundamental.
Despite the disagreement over the proper approach, it is clear that a majority of the United States Supreme Court has recognized a right of privacy as fundamental.1 Concededly the privacy pro-
When faced with the assertion of a constitutional right not previously recognized either in judicial opinions or enumerated in the Constitution, a court must determine the answers to two preliminary questions. First, precisely what is the nature of the right asserted? Second, where in the Constitution is the right guaranteed?
The precise nature of the right the appellees assert is one basic to all free men. Freedom is meaningless if it does not include the right to move from place to place during the course of a day, to stand in an open field, to visit a friend‘s home, to sit and listen to a lecture or participate in a discussion. The appellees do not assert that they were exercising a First Amendment freedom or that their First Amendment freedoms will be curtailed by application of the ordinance to their conduct. The right they as-
Freedom of movement is a species of the general right to be let alone so basic to a free society and so well articulated by Justice Brandeis:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man‘s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. Olmstead v. United States, 277 U.S. 438, 478 (1928) (dissenting).
It would be folly of the greatest magnitude to underestimate, in its many manifestations, the importance to a free society of the right of privacy. Privacy, as a basic aspect of liberty, is an attempt
to do more than maintain a posture of self-respecting independence toward other men; it seeks to erect an unbreachable wall of dignity and reserve against the entire world. Rossiter, The Pattern of Liberty, in Aspects of Liberty 17 (Konvitz and Rossiter 1958).
The source of protection for a right of privacy in the Constitution has not been determined by a majority of the Supreme Court, see Griswold v. Connecticut, 381 U.S. 479 (1965). After analyzing the historical and logical arguments, the plain language, and the inherent nature of the Federal Constitution, I would conclude that a general right of privacy is one of those protected under the Ninth Amendment, that the Ninth Amendment may well be “the cornerstone of the Constitution” in years to come, Patterson, The Forgotten Ninth Amendment 1 (1955).2 The Ninth Amendment declares:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Historically, it was included to nullify the argument that the enumerated rights were intended to be the only rights protected.3 Therefore, to reject the Ninth Amendment as a source of substantive rights would be to accept the precise argument it was intended to nullify.
As for its applicability to the states, by definition, the rights protected by the Ninth Amendment are those fundamental to a free society and therefore are included in the Fourteenth Amendment.4 The Ninth Amendment is a reservoir of personal rights necessary to preserve the dignity and existence of man in a free society. I have found no approach which provides greater certainty without sacrificing the flexibility requisite to making the Constitution a pillar of cloud by day and a pillar of fire by night to guide us in the continuing quest for optimum individual freedom.
Recognition of unenumerated rights, whether under the Ninth Amendment or the due process clause of the Fourteenth Amendment, has been severely criticized.5 To Justice Black, both
require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. Griswold v. Connecticut, 381 U.S. 479, 511-12 (1965) (dissenting).
I cannot accept the argument Justice Black has so artfully articulated against the use of any provision in the Constitution to protect unenumerated rights for three reasons.
First, although I am aware of the past use of the due process clause of the Fourteenth Amendment to substitute the Court‘s conclusion as to the wisdom of social or economic legislation for the legislature‘s, I am also aware of the profound recognition of the error of that approach.6 In the twenty years since the Court struck down New Deal legislation, the Court has time and again recognized that:
The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).7
Second, the argument fails to distinguish between recognition of a constitutional right and the standard employed in determining the constitutionality of legislation infringing on the right.9 In abandoning Lochner, the Court has not declined to recognize that freedom of contract and the right to property are constitutionally protected. It simply has determined that when a legislative enactment is alleged to infringe on those rights, the Constitution requires no more than that the legislative purpose be one within the legislature‘s powers and that the means selected to achieve the purpose bear a reasonable relation to that end, Ferguson v. Skrupa, 372 U.S. 726 (1963). In cases involving First Amendment freedoms, a more stringent test is applied. NAACP v. Button, 371 U.S. 415 (1963).
Third, and by far most important, to refuse to recognize the efficacy of the Constitution to meet the challenge of modern society would be to ignore Chief Justice Marshall‘s admonition that “we must never forget, that it is a constitution we are expounding“, M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). It is fundamental error to argue that the framers believed their subjective intentions were to control the construction of the Constitution in the centuries to come.10 They drafted and adopted a constitution
intended to endure for ages to come, and, consequently, to be adapted to the various crises for human affairs . . . 17 U.S. (4 Wheat.) at 415.
Their aim was to construct a document:
to approach immortality as nearly as human institutions can
approach it. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 387 (1821).
The framers were men with great insight and wrote flexibility into the great document. The rights they enumerated in the first eight amendments were the rights which they had most often been denied.11 The Ninth Amendment is the place to which we must turn for protection of individual liberty from infringements not enumerated, and perhaps not contemplated, by the founding fathers.12
The Constitution of the United States has lasted more than 180 years. Few written constitutions drafted in the mid-seventeenth century lasted anywhere near that length of time. Such longevity is due to a basic shift in the attitude toward constitutions which the framers brought to Philadelphia in 1787. To survive, a constitution must be efficacious rather than perpetual, adaptable rather than immutable, and enforced by appeal to the courts rather than by appeal to heaven.13 Article V, providing for formal amendment, was not the only provision in the Constitution for flexibility.
The slow and cumbersome mechanism of Article V can at most produce a needed change in the literal text of the Constitution; the goal of adaptation requires more than that, the goal of efficacy requires considerably more. How can we discover just what the broad, sweeping phrases of the text signify as concrete legal mandates unless they should be interpreted by some authoritative organ? How can their meaning reflect the shift and flux of social conditions, economic interests, and political ideals unless the organ which interprets should likewise be equipped to reinterpret? Cahn, Confronting Injustice 75 (1966).
To place decisive weight on the need for certainty, particularly
I do not suggest that the right to be let alone and to be where one chooses is an absolute right.15 The infringement in this case may not appear great. The crime charged is not one tending to devastate society.16 But the relative unimportance of a crime or slight nature of the penalty imposed cannot diminish the potential threat from permitting the law-making body to make “presence” a crime.
[U]nconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. Boyd v. United States, 116 U.S. 616, 635 (1886).
The standard to be used in testing the constitutionality of a statute infringing on the right of privacy should depend on the precise aspect of privacy invaded. Where the aspect of privacy
The anti-cockfight ordinance is aimed at preventing cruelty to animals. Such legislation is a proper subject of the police power. Looking, however, to the sweeping infringement on the freedom of movement and privacy, I think that the ordinance goes further than reasonably necessary to achieve its purpose. Making it a crime “to engage or participate in” a cockfight provides an effective basis for enforcing a policy against cruelty to animals without unnecessarily infringing on freedom of movement, particularly when considered in connection with the state statute on the subject.18
The Hawaii Constitution guarantees the right to life, liberty, and the pursuit of happiness,
Visitors, lured by the fame of our climate and of our natural scenery and the hospitality of our people, come here for recreation and pleasure. Many of them, having no other occupation, habitually but harmlessly idle or loiter upon our streets and highways. In their pursuit of happiness, which is a guaranteed right, they loiter before shop windows, pause to enjoy the changing colors of the ocean and to talk with friends. it would be shocking to say that so long as they are innocent of any wrong and conduct themselves with due regard to the rights of others and the good order of the community the legislature has the constitutional authority to declare them misdemeanants and subject them to arrest and imprisonment. Territory v. Anduha, 31 Haw. 459, 461 (1930). aff‘d 48 F.2d 171 (9th Cir. 1931).
Notes
which roams through the Bill of Rights picking up a letter here and another there to spell out the new right . . . Dixon, The Griswold Penumbra: Constitutional Charter For An Expanded Law of Privacy?, 64 Mich. L. Rev. 197, 205-06 (1965).He concluded, however, that the breadth and uncertainty is a virtue, leaving opportunity “for continued probing and refinement of the privacy principle,” supra at 206. Justice Douglas’ opinion also has been construed as applying the flexible due process approach, Kauper, Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case, 64 Mich. L. Rev. 235, 252 (1965), as well as adopting the civil law method of analogical reasoning from written text, Franklin, The Ninth Amendment As Civil Law Method and Its Implications for Republican Form of Government: Griswold v. Connecticut; South Carolina v. Katzenbach, 40 Tul. L. Rev. 487 (1966). Justice Goldberg‘s opinion, relying in part on the Ninth Amendment, has been observed to bear a pronounced resemblance to the flexible due process approach. McKay, at 270. The difficulties with the flexible due process approach have long been articulated. Adamson v. California, 332 U.S. 46, 68 (1947) (Black, J. dissenting). See also, Griswold v. Connecticut, 381 U.S. 479, 511-18 (1965) (Black, J. dissenting).
Thus the power of legislatures became what this Court would declare it to be at a particular time independently of the specific guarantees of the Bill of Rights. 332 U.S. at 83.He would recognize a right of privacy only insofar as a specific constitutional provision restrains government action. Only in this way, he argues, can security from judicial usurpation of the legislative function be achieved, 381 U.S. at 507.
It [judicial self-restraint] will be achieved in this area [of due process], as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms. 381 U.S. at 501.
To suggest that people have judicially enforceable rights other than those specifically enumerated in the Constitution raises for many the spectre of conservative jurists striking down regulatory legislation under the banner of “freedom of contract.” Redlich, supra note 2, at 794.Indeed, Justice Douglas reaffirmed this conclusion in his opinion for the Court in Griswold.
We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. 381 U.S. at 482.