State v. HairState v. Hair
TRAYLOR, J.*
Defendants Ronnie Hair, Allie Brewer, and Albert Ducote were charged with criminal responsibility for the discharge, emission, or disposal of asbestos in violation of
Defendant Ronnie Hair is the director of operations of the England Economic and Industrial Developmental District, a public agency charged by the State of Louisiana with the redevelopment of England Air Force Base, a former military installation. As director of operations, defendant Hair was responsible for overseeing the repair, remodeling, renovation, and demolition of certain buildings located on the base. Between October and December 1997, defendant Hair supervised the demolition of Building # 1200, also known as the commissary. During the project, defendants Brewer and Ducote agreed to work overtime to remove asbestos-insulated water pipes from the ceiling. On two consecutive days after the normal workday ended at 4:00 p.m., Brewer and Ducote donned protective suits, face masks, and air packs, wet the pipe casings, and sawed the pipes into pieces. They then used a saw to remove the pipes’ hard casing of asbestos. Defendants Brewer and Ducote placed the asbestos in regular 30 gallon plastic garbage bags and used a front-end loader to haul the bags to a nearby warehouse for storage. The remaining stripped pipes were not cleaned and were loaded into Ducote‘s pick up truck, hauled to and discarded behind England‘s shop.
A few weeks after removing the asbestos, defendant Hair contacted the Department of Environmental Quality (DEQ) for information on the proper disposal means of the asbestos casings. Hair‘s inquiry to the DEQ apparently led to an investigation of the defendants’ actions, and eventually to the return of the indictment charging the defendants with violating the criminal statutes at issue before this court.
In April of 2001, Hair, Ducote, and Brewer filed a motion to quash the indictment alleging that the general criminal penalty enforcement provision of
In this case, it appears that the defendants proceeded as if the insulation they removed contained asbestos by donning elaborate protective gear. However, the defendants took no steps to contain the asbestos to the site or protect anyone else despite the plethora of federal and state regulations designed to protect general health and welfare during asbestos abatement.
The defendants further argued, without citing any supporting authority, that the “scientific community” accepts that there is no way to visually identify asbestos and may only confirm whether a material is asbestos by taking a sample and analyzing it in a laboratory. As such, the defendants contended that the average person, who likely does not have the necessary scientific training or access to a laboratory, cannot determine whether asbestos is friable or non-friable and, thus, does not know whether his or her actions fall within purview of the criminal statute,
The trial court agreed and quashed the indictment, stating:
[T]he statute is unconstitutionally vague in that it fails to prescribe specific conduct that an individual would in fact be put on notice that would be against the law. When the term asbestos is used, that term may be used for a number of different materials and as stated by Mr. Walsh [defense counsel], it‘s not until certain asbestos is removed and/or crumbled that that asbestos becomes what is believed to be prescribed conduct that the State of Louisiana and/or United States is trying to deter.2
MOTION TO QUASH
It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); State v. Boyd, 97-0579 (La.4/14/98), 710 So.2d 1074. A defendant engaged in conduct clearly described in a statute cannot complain of the vagueness of the statute as applied to others. Melugin v. Hames, 38 F.3d 1478, 1486 (9th Cir.1994). A defendant may not establish that a statute is unconstitutionally vague by speculating about hypothetical conduct which could also be prosecuted under the same statute. State v. Sandifer, 95-2226, p. 10 (La.9/5/96), 679 So.2d 1324, 1331-32 (citing City of Baton Rouge v. Norman, 290 So.2d 865, 868 (La.1974)). Following this “as applied” rule, this court in State v. Boyd, held that the defendant‘s vagueness challenge to the phrase “requires medical attention” in the battery of a police officer statute was raised prematurely because “[w]ithout any facts before it, the trial court could not determine whether the statute was applied unconstitutionally against defendant.”
In the instant case, given that the challenged statutes do not address First Amendment freedoms, the defendants must show that it lacks specificity to their own behavior and not to a hypothetical situation before they are entitled to relief. The transcript of the pretrial hearing reveals that at the outset of the hearing the State introduced into evidence two references to scientific documents about asbestos, a letter from the England Authority “relative to this proceeding, relative to the issue of asbestos,” and a transcript of defendant Ducote‘s statement to a Louisiana State Police detective and an investigator from the Louisiana Department of Environmental Quality.
The transcript also reveals that during the oral argument the parties made numerous references to the specific actions of the defendants and not simply to the speculative actions of some hypothetical defendant. Though the trial court quashed the indictment before evidence was presented at trial, the court did have some facts before it when evaluating the constitutionality of the statute relative to the defendants’ conduct. Accordingly, this case is distinguishable from the above-mentioned cases and, therefore, the defendants properly raised their vagueness challenge in a pretrial motion to quash the indictment. Because the defendants presented adequate evidence upon which the court could rule, the motion to quash was properly raised. The sole issue remaining before this court is the trial court‘s pronouncement that the statutes are unconstitutionally vague.
In determining the constitutionality of a statute, we must follow the basic rules of statutory construction. State v. Muschkat, 96-2922 (La.3/4/98), 706 So.2d 429. A statute
VAGUENESS
A statute is unconstitutionally vague if an ordinary person of reasonable intelligence is not capable of discerning its meaning and conforming his conduct thereto. State v. Greco, 583 So.2d 825, 828 (La.1991); State v. Pierre, 500 So.2d 382, 384 (La.1987); see also Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Palmer v. City of Euclid, 402 U.S. 544, 545, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). This occurs where a statute 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. In such instances, the statute violates due process of law. Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A criminal statute must provide adequate standards by which a party may be determined to be guilty or not guilty so that an individual‘s fate is not left to the unfettered discretion of law enforcement. State v. Muschkat, 96-2922 (La.3/4/98), 706 So.2d 429, 432, citing Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); State v. Schirmer, 646 So.2d 890, 903 (La.1994).
Accordingly, under the “void-forvagueness” doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of the accused. State v. David, 468 So.2d 1126, 1128 (La.1984), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986); see also
In the instant case, the defendants contend that the complained of statutes are unconstitutionally vague because certain phrases within those statutes are themselves vague. The defendants specifically challenged the phrases “one that endangers or that could endanger human life or health” in
As to the endangerment phrase, Louisiana courts have found that similar phrases are not unconstitutionally vague. For example, in State v. Baron, 416 So.2d 537, 538 (La.1982), this court held the phrase “foreseeable that human life might be endangered” was not vague because the phrase refers to “that which would ordinarily be anticipated by a human being of average reasonable intelligence and perception.” Moreover, in State v. Clark, 325 So.2d 802, 811 (La.1976), this court found that the phrase “under circumstances wherein human life is endangered” is not impermissibly vague, and stated that the phrase “offers a sufficiently clear and definite standard of criminal conduct.” The jurisprudence regarding these phrases, which are similar in essence to the complained of phrase in the instant case, suggests that the present phrase has a generally accepted meaning such that a person of ordinary and reasonable intelligence would be capable of discerning its meaning. The instant endangerment phrase meets these tests. Defendant‘s challenge to the constitutionality of the statute fails in this case.
The phrase “scientifically accepted data,” found in
The defendants also contend that because they did not know whether the asbestos was friable and, therefore, constituted a “toxic air pollutant,” they did not have the requisite mens rea requirement, i.e. acting willfully or knowingly, for criminal liability under
Applying the standards of statutory construction, the Louisiana Air Control Law is not unconstitutionally vague. The challenged statute is clearly and readily understandable and provides clear standards for determining guilt or innocence of the accused. For these reasons, we reject defendant‘s argument and the trial court‘s determination that the statutes are unconstitutionally vague.
CONCLUSION
The defendants properly raised their vagueness challenge in a pretrial motion to quash the indictment. Though the trial court should normally pretermit a ruling on the constitutionality of an allegedly vague portion of a statute where no evidence has yet been presented, the State in the present case introduced some evidence at the outset of the hearing, and therefore the court had some facts to consider when evaluating the constitutionality of the statutes relative to the defendants’ conduct.
The general enforcement provision of the “Louisiana Air Control Law,”
The trial court erred in declaring the Louisiana Air Control Law unconstitutional. For the reasons assigned, the judgment of the trial court is accordingly reversed. The judgment sustaining the motion to quash is reversed and set aside and the motion is overruled. The case is remanded to the trial court for further proceedings.