*1 382 unnecessary timely. in undue and It could result
is not objectors and other of record. Applicant to the burdens authority to make such Department had We determine the intervention and permissive connection with determinations in Electric’s finding that Basin abuse its discretion did not timely. intervention was not finding disposes of Basin Electric’s Department
The same unique. proceeding The has been argument position that its concerning phase, latest going on since its habitat, years. Department 2 The whooping crane for almost very which Electric employees of the trust to Basic found that observing for several proceeding сontributed have been organizations in the years. National and local wildlife have been years interests as Basin proceeding protect same regard. Electric in this Department denying Electric’s action of Basin
petition in intervention is affirmed.
Affirmed. appellant. v. Kevin R. Nebraska, appellee, Groves, State N.W.2d Filed March 84-282. 1985. No. *2 Levy Lazer, P.C., Levy
Michael T. & appellant. for Bucchino, Fitle, City Attorney, Gary Herbert P. M. Omaha Prosecutor, Jones, F. City Omaha and David Richard M. Smalheiser, appellee. for C.J., Boslaugh, Hastings, Krivosha, White, Caporale, JJ., J., D. Retired. Shanahan, Colwell, J.
White, Groves, Appellant, Kevin R. was convicted after trial in the municipal city Omaha, court of Douglas County, Nebraska, of disorderly the offense of conduct as defined Omaha Mun. Code 20-42 (1980). The district § court for Douglas County affirmed the conviction but modified the sentence of municipal days. court from 75 to 20 He appeals to this court. assignments advanced,
Two of error are which summarized as follows. Section 20-42 is unconstitutional because it is overbroad in applies protected that it conduct under the Constitution of the United States and the Nebraska, Constitution of the State of and this section is give that it fails to adequate fair and type notiсe of the prohibited conduct susceptible and is arbitrary enforcement. We assignments shall consider the together. A brief recitation of necessary. the facts is 5,1983, Hale,
On October police city Edward a officer of the Omaha, working was private security guard as a at the Holiday complex Street, Inn motel Omaha, at 3321 South 72d complex Nebraska. The buildings consists of a number of and a large parking 14-acre lot. Officer employment Hale’s included security provide truck to parking lot
patrolling a.m. Officer Hale parked there. At about 3:40 vehicles Groves, part pаrking in the far east of a appellant, observed lot, parking lot standing Cadillac automobile. The was next to a building. 200 feet the nearest approximately located from Groves, who about 100feet from approached Officer Hale was Groves, appeared he observed what him. As the officer neared right pocket. rear When Officer pair to be a of boltcutters Groves, started to walk pulled Hale within 10 feet of Groves officer, away. police Hale identified himself as a Officer badge, response produced his and showed it to Groves. Groves’ was, you responded “What the fuck do want?” Officer Hale he to see his identification. Groves reached into his that wished license, officer, gave pocket, got police out his driver’s it to the and advanced toward Officer Hale in what Hale described as a were, menacing words at that time “I don’t manner. Groves’ fuck, you give give response, a fuck who are.” In Officer Hale produced pointed his revolver and it at Groves. Groves then *3 walking about feet started to his own automobile 40 from parked. where the Cadillac was Officer Hale summoned and, Department assistance from the Omaha Police later, approximately responded. 8 minutes several cruisers arrived, car, appellant stepped Before assistance inside his out, parked backed it and it near where Officer Hale’s truck was car, stopped. Groves came out of his aware that Officer Hale assistance, had called for and called Officer Hale a requested try “pig” “motherfucker” and a the officer to singlehandedly. him At time arrest of this confrontation hip, partially Officer Hale observed sheath on defendant’s recognized concealed beneath his coat. Officer Hale sheath typically as one that contained a “Buck knife.” When arrived, police additional officers Groves called one of the “fuckhead,” struggle summoned officers a and a ensued with forcibly the officer before Groves was handcuffed and arrested. The boltcutters observed Officer Hale were under recovered from the front seat of Groves’ car. Municipal provides
Section 20-42 of the Omaha Code as any person purposely follows: “It shall be unlawful for or inconvenience, knowingly annoyance to cause or alarm or
[385] create any the risk person by: (a) Engaging thereof to fighting, threatening conduct; abusive, or violent (b) Using or threatening or fighting language gestures; other (c) or Making vagueness unreasonable noise.” We shall address the arguments together. overbreadth
Recently, in
Frey,
State v.
218 Neb.
of a in this a claim that the law is invalid in toto and incapable any therefore valid application, our first task is to determine whether the enactment reaches a substantial amount of consti tutionally not, protected conduct. If it does then the challenge overbreadth must fail. We are to then examine and, facial challenge assuming the implicates enactment no constitutionally protected conduct, uphold challenge only if the enactment is impermissibly vague in applications. all its In order to standing have challenge vague statute, one must not engaged in conduct clearly which is proscribed by the statute, and complain cannot of the law applied as to the conduct of others.
Therefore, applying language Frey case, of State v. to this then, our question, first is whether or not the enactment reaches a substantial amount of constitutionally protected conduct. It does not. As Boss, we observed in 467, 471, State v. 195 Neb. 238 N.W.2d (1976):
The word
similarly
abuse and
broad
terms
like statutes
*4
have been
pass
held to
constitutional muster under the
First Amendment to the Constitution of the United States
only
they
if
are construed so as
apply
to
the statute to
punish only what have
“fighting
been called
words.”
Chaplinsky
v. New Hampshire, 315 U.S.
62 S. Ct.
“
766,
which their ” peace.’ the immediate breach of an are and “motherfucker” that the words “fuckhead” Wehold words, reject implicit again specifically we fighting such officer is by appellant police that a argument advanced members of the susceptible to abuse than other somehow less we in Boss: general public. As said authority Williams v. reject the of specifically
We Columbia, F.2d and the concurrence District of Orleans, City in Lewis v. of New of Mr. Justice Powell here suggested it that the words used supra, wherein fighting police words when directed to a officer cannot be accept without violent he is trained to such abuse because reaction.
Id. constitutionally protected, conduct is not
As Groves’ are, then, rejected. We now to argument must be overbreadth vague. Section whether or not the ordinance is conclude constitutionally suspect. again We are faced with the 20-42(c) is said, standing We to attack this record. defendant’s lack 561-62, 357 Frey, supra v. at N.W.2d repeat to the words State statute, standing challenge vague “In order to have at 219: clearly engaged in conduct which is not have one must statute, complain by the and cannot proscribed аpplied to the conduct of others.” As the of the law as clearly prohibited engaged conduct applied Groves, standing suggest that the ordinance he lacks assignments The error are impermissibly applied to others. are judgment and sentence of trial court without merit. affirmed.
Affirmed. Krivosha, C.J., dissenting. majority opinion in respectfully dissent from the this
I must First, grounds. specific three I believe that case. I do so on declaration that in order for majority opinion is in error its challenge to the overbreadth and to maintain a facial one the enactment does not reach а of a law where conduct, constitutionally protected substantial amount impermissibly challenge upheld only if the enactment is can be *5 Second, applications. in all of its I believe that the language impermissibly vague, of the statute is and therefore Third, unconstitutional. I believe that the facts of the case fail to establish that the defendant committed the crime for which charged he was and convicted. question
I turn first
challenge
to the
of when a facial
as to
vagueness
overbreadth or
can be maintained. I am afraid that
just as the
Supreme
got
wrong
Court
onto a
track when it
decided the case of
Flipside,
Estates v.
Hoffman
Hoffman
Estates,
489, 102
1186,
455 U.S.
S. Ct.
71 L. Ed. 2d
(1982),
so
did
get
too
this court
wrong
onto the
track
recently
when we
decided
Frey,
558,
the case of State v.
218 Neb.
light
a later decision of the U.S.
Kolender v.
Lawson,
103 S. Ct.
challenge of a seeking regulate civil statute an economic by Estates, matter. As majority observed supra Hoffman at 498-99: not, course, These standards should mechanically applied. degree The that the Constitution importance tolerates —as well as the relative of fair notice and fair depends part on the nature of enforcement — Thus, the enactment. regulation subject economic to a less strict subject test because its matter is often businesses, narrow, face which because more carefully, can be plan demands to behavior economic legislation advance to consult relevant expected Indеed, regulated enterprise action. clarify meaning regulation by its own
ability process. administrative to an resort inquiry, *6 greater of enactments expressed also tolerance Court has criminal, the penalties because rather than with civil qualitatively less severe. consequences imprecision are recognized requirement Court that a scienter And the has mitigate vagueness, especially respect with to may a law’s that complainant to the his conduct adequacy notice the is proscribed. affecting important factor the
Finally, perhaps the most it of a law whether clarity that the Constitutiоn demands is constitutionally to inhibit the exercise of threatens rights. If, example, law with protected for the interferes association, stringent right speech of free or of a more the apply. test should regulates simply business behavior and This ordinance respect requirement with to the contains a scienter use” The “marketed for standard. alternative only penalties. nominally imposes civil Any opinion Estates to reference in the other Hoffman required standards such criminal criminal action the actions mere dicta. Estates, supra majority opinion
The at said: Hoffman сonstitutionally protected not reach A law that does therefore satisfies the overbreadth test conduct and challenged unduly vague, in be on its face as nevertheless succeed, however, the process. of due To violation demonstrate that the law is complainant must applications. in all of impermissibly its proposition that than authority was cited for other No Furthermore, passage be read itself. this must Estates Hoffman in specific acknowledgment that light Court’s subject relaxed regulation is to a commercial earlier, analysis. opinion even the Estatеs As noted Hoffman first recognizes legislation interfering with amendment stringent vagueness interests is examined under test.” “a more recognized Apparently, Supreme the U.S. Court has already error of Estates and has its abandoned Hoffman Lawson, teachings. We should do Kolender v. likewise. supra, Supreme upon pass the U.S. Court was asked to constitutionality provided: of a penal California statute which
Every any following person who commits acts conduct, guilty disorderly shall be a misdemeanor: . . . (e) upon place Who loiters wanders the streets or from place apparent without rеason or and who business identify presence refuses to himself and to account by any do, requested peace when officer if so to surrounding circumstances are such as indicate to a safety man that public reasonable demands such identification.
See 647(e) 1970). Cal. Penal Code (West petitioner § was approximately occasions, though detained or on arrested he only prosecuted was brought twice and once. convicted He then seeking declaratory judgment civil action 647(e) § Neither presented unconstitutional. the facts as nor the Court statutе itself is such would that it *7 vague applications. in all Obviously, just of its one who had wandering committed a crime and was about the street without apparent might identify reason asked himself presence. Nevertheless, account for his the U.S.
Court struck being the statute down as unconstitutionally vague. doing In so the Court said: generally stated,
As void-for-vagueness the doctrine requires penal that a statute define the criminal offense with sufficient ordinary definiteness that people can prohibited what understand conduct is and in a manner encourage arbitrary does not discriminatory enforcemеnt. Although the doctrine [Citations omitted.] focuses both on actual notice to arbitrary citizens and enforcement, we recognized recently have that the more important aspect doctrine not “is actual notice, principal but other element of requirement legislature doctrine —the that a establish guidelines govern minimal law enforcement.” [390] 357-58, 1855, 352, 75 Lawson, Ct. 461 103 S. U.S.
Kolender v. opinion In n.8 Court addressed (1983). Ed. 2d to the L. 903 opinion, saying at 358-59: Estates the Hoffman dissent, WHITE claims that JUSTICE “[t]he his whether not a statute upshot cases ... is that of our conduct, constitutionally protected it regulate purports to unconstitutionally vague its face held on should not be vague possible applications.” unless all of its it is holdings description of our omitted.] [Citation First, it neglects the fact that respects. inaccurate in several permit challenge we facial if a law reaches “a substantial a constitutionally protected amount of conduct.” [Citation Second, imposes criminal where a statute omitted.] certainty higher. penalties, the standard of [Citation has, times, led invalidate This concern at us to omitted.] conceivably its when it criminal statute on face even could See, application. e.g., have valid Colautti v. some Franklin, (1979); v. New 439 U.S. 394-401 Lanzetta Jersey, (1939). U.S. 451 The dissent concedes that 306 permits challenge of “the overbreadth doctrine facial law reaches a amount of conduct substantial by . protected the First Amendment . . .” [Citation However, view, in the dissent’s one not omitted.] by attacking “confuse and overbreadth being applied to other than enactment as as conduct traditionally we But own.” omitted.] [Citation logically vagueness and overbreadth as related and viewed See, Keyishian e.g., Board similar doctrines. v. 589, 609 Button, Regents, (1967); U.S. NAACP v. (1963) . . . . authority by supports argumеnt cited its No the dissent challenges arbitrary about in the enforcement facial Estates, supra, upon relied context. . . . also Hoffman dissent, position. not its In addition to support does validity reaffirming challenges of facial in situations *8 speech where affected free or free association are omitted], emphasized Court the the [citation “simply regulates ordinance in Estates business Hoffman regulation subject to a behavior” that “economic subject often strict because its matter is less test more narrow.” omitted.] [Citation the firmly
I am
should we continue to follow
сonvinced that
authority in
mistakenly
by
unsupported
trail
set out for us
Estates,
end and be
up
we shall wind
at a dead
Hoffman
way
compelled to find our own
back. We should abandon
now,
misled,
again
trail
concede that we were
and once
rule,
jurisdiction
long
reestablish what has
been the
both in this
Hamilton,
jurisdiction
the federal
as well. See State v.
694,
(1983).
215 Neb.
At least where the
on first
values,
expressed by
amendment
I
be
believe the rule to
as
Wilson,
518, 521,
Gooding
Court in
v.
405 U.S.
1103,
S.92 Ct.
I turn next to the question of whether the ordinance is unconstitutionally vague. by majority, and as As noted by city Omaha, apply conceded is able to unless this court judicial some valid limiting construction the reach solely we constitutionally speech, unprotected have no choice but to I believe declare the ordinance invalid. judicial gloss simply that the sought court applied to be does not adhere and therefore test. fails to make the
392 “fuckhead” and majority has determined that the words fighting I believe that not to per arе words se.
“motherfucker”
467, 472, 238
639,
Boss,
N.W.2d
In
v.
195Neb.
be the law. State
by majority,
agree
“we
that
(1976),
upon
relied
the
we said
643
language
any particular
whether
use of abusive
constitutes
words,’
words,
only
upon
but
‘fighting
depends
upon
not
well.” I believe that under the facts of this
the circumstances as
fighting
the use of those words could not have constituted
case
words,
juncture
simply
I defer
for moment. At this
I
but
a
vague.
is
In
question
address the
of whether
“
doing we
reminded
crime must be defined
so
are
‘[a]
and there must be ascertainable
with sufficient definiteness
guilt
subject
standards of
to inform those
thereto as to what
punishment
conduct will rеnder them liable to
thereunder.
. .
”
Hamilton,
695,
supra
.’
at
State v.
Vague important First, offend laws several values. because we assume that man is free to steer between lawful conduct, give we person and unlawful insist that laws ordinary intelligence opportunity a reasonable to know prohibited, accordingly. Vague what so that he act warning. fair providing not may trap the innocent laws discriminatory is to Second, enforcement arbitrary if and explicit standards provide laws must prevented, impermissibly law them. A apply those who judges, and policemen, delegates policy basic matters basis, subjective juries for resolution on an ad hoc arbitrary dangers with the attendant discriminatory application. also, Hamilton, N.W.2d 397
See, 215 Neb. State v. *10 (1983). question perfect is a the ordinance in
An examination of
which we werе
it
in Hamilton about
example of what was
with,
only
on its face not
begin
To
this ordinance
concerned.
but, likewise, makes it a
fighting words
makes it a crime to use
activities,
making
including
engage in
crime to
a whole host
inconvenience,
to cause
unreasonable noise in such a manner as
If
alarm,
any person.
annoyance, or
or create the risk thereof
they
street,
fact that
enjoying
on the
two individuals
noise, thereby
task,
accomplished some
make unreasonable
has been
causing annoyance
person,
third
the ordinance
to a
an
imagine
one could draft
It is difficult to
how
violated.
In
under consideration.
ordinance more
than the one
611,
Conduct that Thus, vague, in the sense others. the ordinance is not imprecise to an requires person it to conform his conduct standard, in the but rather comprehensible but normative As a specified at all. sense that no standard of conduct is necessarily result, must intelligence “men of common guess meaning.” at its 894, 93 Ct.
See, also, 69 S. Chicago, 337 U.S. Terminiello v. 518, 92 Ct. S. Wilson, 405 U.S. (1949); Gooding L. Ed. 1131 v.
1103, 31 L. Ed. 2d (1971). 408 examine upon to
The Alaska Court was called P.2d Anchorage, City similar ordinance Marks v. striking the court said at 1972). In down the ordinance
(Alaska 652-53: long-established
When these fundamental applied to the principles of constitutional law are ordinance, escape from the Anchorage there is no void for the ordinance is likewise conclusion ordinance,. vagueness. prefatory language Since containing specifically enumerated the mens rea for the acts, impermissibly vague, part no prohibited is itself language prefatory can The dеfective ordinance stand. inconvenience, purpose public “with intent to is cause recklessly annoyance or alarm or create a risk thereof.” Cincinnati, supra, v. (emphasis added). Coates “annoying” specifically declared the word to be unconstitutionally vague and the words “inconvenience” and “alarm” are not so. The rest of the less ordinance peppered also with indefinite words .... sum, only give not does the ordinance fail to
adequate prohibited, notice conduct is it of what but particularly subject to the abuse of uneven enforcement. majority difficulty presented to avoid the seeks to us by suggesting though the ordinance that even some of the invalid, portion of Omaha Mun. Code *11 20-42(b) (1980) specifically referring “fighting language” to § difficulty was sufficient to convict. The with all of that is that charged violating by 20-42(b) using Groves was not with § fighting language. charged He was with a violation of all three 20-42, parts guilty violating of and he was found all of § way knowing 20-42. We have no whether he was found § guilty by finding reason of the court that he had in fact used fighting simply making words or because he was unreasonable Columbia, (D.C. noise. See Williams v. District F.2d 638 App. 1968). suggested by It is not this dissent that there not might be a mаnner in which a constitutional ordinance be is, however, suggested drafted. It that where the drafters have duties, perform failed to their this court should not undertake to do so. simple person
The fact of the matter is that no reasonable can truly activity, prohibited by know in advance what is provisions of 20-42. For that reason the ordinance must § declared unconstitutional. final I majority opinion reason believe the is in error I
because do not believe the evidence was to sufficient convict inconvenience, annoyance, of causing by using Groves or alarm fighting language. officer, drawn,
It is difficult for me to an with conceive how a revolver, by being specifically paid loaded service who is a private provide security type business to of the that the officer occurred, providing was at the moment altercation could be inconvenienced, annoyed, either or a man alarmed with a only testimony foul mouth. The in the record which even remotely inconvenience, annoyance, or establishes alarm on part police officer as follows:
Q. right. you, conclusion, All Can rather than state a “menacing,” you can describe what sort of or actions posture in, what sort expressed you he was words to as approached you? he fuck, says, give give
A. He “I don’t a you a fuck who are.” And he started towards me a fashion I felt was me, menacing my safety. own point
It this was at that the officer drew loaded revolver. It is difficult to conclude that this evidence was sufficient to inconvenience, annoyance, establish alarm or of a man who is being inconvenienced, paid annoyed, alarmed, to be permitted carry therefore a loaded revolver. That fact is when, further borne cross-examination, out on Officer Hale testified as follows: Hale,
Q. long you Officer how police been a officer? years.
A. Twelve Q. before, been you... You’ve called names haven’t Many A. times. your
InQ. connection with . . duties.
A. Yes. police
Q. As a officer? You’ve been called before, motherfucker your connection with duties as police officer?
A. I have. territory, with doesn’t it? goes
Q. It A. It does. testimony that the
Furthermore, apparent it is from could, any reasonable under before the officer arrest occurred alarmed, inconvenienced, annoyed, or even if circumstance, be arresting officers meant. One of what those terms we knew as follows: testified language he used that any specific you recall
Q. Do conclusion, you any did hear abusive you led to threatening language? language or loud tone. Yes, swearing a in a rather quite A. bit of At who? Q. any intitially one in at
A. It wasn’t directed [sic] conversation; however... just in particular, a manner specific words were used? Q. What party I told the A. the word fuck several times. He used disorderly quiet placed or be under arrest for to down he’d conduct. response was to that?
Q. What said, nothin’ but a fuckhead.” A. He “You’re happened next? Q. What ” conduct, said, disorderly I under arrest for A. “You’re under placed him arrest. effect, then, expressed we made words no one have now
In words, thereby permitting an individual fighting particular already determined that he was arrested. The officer had to be noise, going Groves if he continued to make whether to arrest anyone at fighting words directed not. he used language use of foul addressed to No one condones the officer; yet, anyone, particular to a law enforcement unacceptable language socially finding the use of foul denying one first making it the basis a not the same as right speech. amendment free and, therefore, my violаtion view the ordinance is which I that this is a case in we can the Constitution. believe the evidence is I further believe that
make that determination. beyond reasonable doubt that the establish insufficient to inconvenienced, annoyed, question could have been officer in difficulty believing that one with loaded I have or alarmed. *13 annoyed by with a loaded mouth. can be one revolver Shanahan, J., dissenting. join
I Chief Justice Krivosha dissent questioned vague, unconstitutionally ordinance is but make vagueness. additional comment about ordinance’s What is sought prohibited by “inconvenience, to be ordinance annoyance alarm,” creating or causing or risk such situations or To paraphrase prohibition conditions. the basic ordinance, it is somebody, unlawful to make trouble for someone, frighten irritate anybody, bring or to about the possibility danger trouble, causing irritation, or fright anyone. subjective Such and nebulous situations cannot constitutionally prosecution. be the basis for The various subparts of the only are vagueness. futile facade for appellant. Nebraska, appellee, Fiene, v.Kevin R.
State of
Nye, Hervert, Watson, Jorgensen P.C., & for appellant. Douglas, Attorney General,
Paul L. Henry M. Grether III, appellee. for C.J.,
Krivosha, Boslaugh, White, Hastings, Caporale, Shanahan, Grant, JJ.
Grant, J. Defendant, Fiene, Kevin R. was arrested and tried in the county for County driving court Dawson an automobile