State v. GriffinState v. Griffin
On March 11, 1986, defendant Griffin was charged in a bill of information “IN THAT HE DID ON OR ABOUT THE 20th DAY OF FEBRUARY, 1986, intentionally gamble in public in open view of the public in a public parking lot, in a game contest, etc. whereby he risks the loss of anything of value in order to realize a profit, in violation of
Defendant‘s motion to quash the “gambling in public” count of the bill of information was based upon two grounds. First, he urges the information did not sufficiently inform him of the nature and cause of the accusation against him. Secondly, he asserts the statute does not define the offense or specify the manner in which it can be committed. In the understanding of the trial judge, this second ground was broad enough to include an attack on the facial constitutionality of the statute. At the hearing on the motion to quash, defense arguments focused mainly on the alleged defects in the information itself. However, the trial judge was more interested in the potential reach of the statute. Without expressly ruling on the bill of information the trial judge granted the motion to quash, finding
The State of Louisiana appealed the ruling to this Court, arguing the statute as written is clearly constitutional. The State contends it should be its burden at trial to prove whether or not the acts committed by the defendant come within the purview of the statute. The defendant did not address the trial court‘s ruling on the constitutionality of
A. Gambling in public is the aiding or abetting or participation in any game, contest, lottery, or contrivance, in any location or place open to the view of the public or the people at large, such as streets, highways, vacant lots, neutral grounds, alleyway, sidewalk, park, beach, parking lot, or condemned structures whereby a person risks the loss of anything of value in order to realize a profit.
B. This Section shall not prohibit activities authorized under the Charitable Raffles, Bingo and Keno Licensing Law, nor shall it apply to bona fide fairs and festivals conducted for charitable purposes.
C. Whoever commits the crime of gambling in public shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
Constitutional scrutiny favors the statute. Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Brenner, 486 So.2d 101 (La.1986); State v. Rones, 223 La. 839, 67 So.2d 99 (1953). Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. The attack will fail if there exists a reasonable relationship between the law and the promotion or protection of a public good, such as health, safety or welfare. Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515 (La.1983); Gilbert v. Catahoula Parish Police Jury, 407 So.2d 1228 (La.1981). The legislation must have a rational relationship to a legitimate state interest in order to satisfy the substantive guarantee of due process in the federal and state constitutions. Theriot, supra, at 520; City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Harry‘s Hardware, Inc. v. Parsons, 410 So.2d 735 (La.1982), cert. denied 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 145 (1982).
This Court has previously held the suppression or regulation of gambling is a legitimate state interest. Theriot, supra, at 521. Moreover, this interest is of such import it is embodied in the Louisiana Constitution.
Attacks on the constitutionality of a statute may be made by two methods. The statute itself can be challenged, or the statute‘s application to a particular defendant can be the basis of the attack. Possible constitutional challenges may be based on either “vagueness” or “overbreadth” grounds. In this case the trial judge ruled
A statute would be void for vagueness when it does not give “a person of ordinary intelligence ... fair notice of what conduct is forbidden....” State v. Defrances, 351 So.2d 133, 135 (La.1977). The requirement of lack of vagueness or definiteness is derived from the due process clauses of the United States and Louisiana Constitutions, and from
Though the constitutionality of
Varnado, supra, found the statutory definition of gambling, which was the same in 1944 as it is today, not vague or indefinite due to the innumerable ways in which gambling can be conducted and the countless games, contests or contrivances with which it can be accomplished. It therefore seems clear the similar language contained in
Nor should the “public” terminology of
According to the Reporter‘s Comment to
As for the trial judge‘s ruling on overbreadth grounds, this cannot be maintained in light of existing jurisprudence. Individuals are protected from incursions by the state into certain areas of their lives by the
Hardwick, supra, concerned the reach of Georgia‘s sodomy law insofar as it criminalized consensual sodomy. The only claim before the Court was Hardwick‘s challenge to the statute as applied to consensual homosexual sodomy, and the issue was whether or not the United States Constitution provides a fundamental right to homosexuals to engage in sodomy. The Court noted it has in proper cases sought to identify those rights which qualify for heightened judicial protection, even though not actually identifiable in the Constitution‘s text. It continued with the following:
In Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 151, 152, 82 L.Ed. 288 (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are “deeply rooted in this Nation‘s history and tradition.” Id., at 503, 97 S.Ct. at 1938 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S., at 506, 85 S.Ct., at 1693.
A majority of the Court concluded “to claim that a right to engage in such conduct is `deeply rooted in this Nation‘s history and tradition’ or `implicit in the concept of ordered liberty’ is, at best, facetious.” Id, 106 S.Ct. at 2846. Under Hardwick it seems clear if the state can reach into the privacy of the home and regulate the consensual sexual acts of adults, it may also regulate public gambling with a broad enough stroke to reach some of those activities mentioned by the trial judge, such as playing marbles for keeps in the school yard and Sunday games of golf. While wagering on games and contests may have ancient roots, attempts to prohibit and suppress it are just as old. It can hardly be said gambling is conduct “deeply rooted in this Nation‘s history and traditions” or “implicit in the concept of ordered liberty.” In addition,
Finally, to suggest in this context that Louisiana‘s constitution may provide greater due process rights than the federal constitution appears completely erroneous in light of the Louisiana Constitution‘s explicit directive to the legislature to define and suppress gambling.
Though the State and defense have provided almost no facts in this case, and the matter is still before trial, it appears from the bill of information defendant Griffin is more similar to the player of marbles in the school yard, than the Sunday golfer. Because more social ills result from street games than from the pastoral setting of a golf game, the legislature may have had only the former in mind when it enacted
Defendant Griffin also attacked the sufficiency of the bill of information, relying almost exclusively on State v. Varnado, supra, and State v. Straughan, 229 La. 1036, 87 So.2d 523 (1956). These early cases were authority for the proposition a defendant should not be required to look beyond the four corners of a bill of information to identify the transaction to which the indictment relates, and also for the rule deficiencies in the bill of information could not be cured with a detailed bill of particulars. Defendant‘s authority, however, is not persuasive, as by relying on Straughan, supra, he relies on a now discarded constitutional interpretation. Straughan interpreted
The trial court‘s order to quash the bill of information is reversed. The statutory language in
For the above reasons, we reverse the trial court‘s granting of the motion to quash, and remand the case for further proceedings.
REVERSED AND REMANDED.
CALOGERO, J., concurs and assigns reasons.
LEMMON, J., concurs.
CALOGERO, Justice, concurring.
There is not reason for us to rely in this case on Bowers v. Hardwick, ___ U.S. ___, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) the recent United States Supreme Court decision involving Georgia‘s statute which criminalized consensual sodomy. Our cases, State v. Tucker, 354 So.2d 1327 (La. 1978) and State v. Cox, 352 So.2d 638 (La. 1977) adequately support the legal point that in order for the principle of overbreadth to apply, a constitutionally protected right must be claimed in the prosecution.